No original CCA or DN

[waroo]

Can anybody give me a little bit of guidance on a court claim I am in the middle of.

 

This claim started in January & they have repeatedly withheld information &/or missed deadlines set by the court. I had to submit a disclosure list & they didn't submit theirs so I made an order however they sent the info late but before the hearing so it was a bit of waste of time howver I was awarded costs (suprise suprise they have't yet paid & it's 3 days after the deadline set by the court for paying it).

 

They have already sent me a letter saying they don't have an orginal CCA (just microfiche copy) or the default notice

 

They have now applied for summary judgement & I'm not sure what I should do now. I was thinking about requesting to view the original documents - should I do this using an N244 asap or should I put together a defence ready for the hearing for summary judgement & request it within this?

 

Can anyone advise on acts/sections relating to keeping original documents (I may be wrong but think I've read something before about money laundering?)

[42man]

I'll move this to the legal forums.....just one thought, if they have failed an order by the judge then you could apply for a strike out with an N244....!!

[the_shadow]

Can anybody give me a little bit of guidance on a court claim I am in the middle of.

 

This claim started in January & they have repeatedly withheld information &/or missed deadlines set by the court. I had to submit a disclosure list & they didn't submit theirs so I made an order however they sent the info late but before the hearing so it was a bit of waste of time howver I was awarded costs (suprise suprise they have't yet paid & it's 3 days after the deadline set by the court for paying it).

 

They have already sent me a letter saying they don't have an orginal CCA (just microfiche copy) or the default notice

 

They have now applied for summary judgement & I'm not sure what I should do now. I was thinking about requesting to view the original documents - should I do this using an N244 asap or should I put together a defence ready for the hearing for summary judgement & request it within this?

 

Can anyone advise on acts/sections relating to keeping original documents (I may be wrong but think I've read something before about money laundering?)

 

As 42man has suggested, if they've not complied with an order of court you can apply for a strike out of their claim.

 

You might want to give us a bit more detail, the particulars of the claim and the defence you supplied would be helpful for peeps to offer advice. Making sure you remove any personal info though....

 

S.

[Spamalot]

As 42man has suggested, if they've not complied with an order of court you can apply for a strike out of their claim.

 

You might want to give us a bit more detail, the particulars of the claim and the defence you supplied would be helpful for peeps to offer advice. Making sure you remove any personal info though....

 

S.

 

I posted on this one...

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/207092-no-original-cca-dn.html

 

It might be an idea to get one of the threads deleted and just use the one.

 

Spam.

[AndyOrch]

Hi Waroo

 

Have you recieved a copy of the Claimants Application for SJ and more importantly have you got their WS?

What date is the hearing?

 

Regards

 

Andy

[waroo]

thanks for replys.

 

I have already submitted 2 N244's. First one seeking an order for them to comply with my CPR request was rejected because the disclosure list would deal with this. The second was for a strike out because they failed to meet the deadline for submitting their disclosure list, by the time the hearing came they had in the meantime sent the info a week late so the judge just ordered them to pay costs. I have just received a cheque from them some 3 days after the order deadline for doing so.

 

The first part of this whole stuation is pretty much idential to this one http://www.consumeractiongroup.co.uk/forum/legal-issues/178441-lloyds-issue-court-claim.html

 

I haven't been so lucky to receive a discontinuation notice though.

 

The particulars of claim read:

 

1 By an agreement in writing & regulated by the CCA 1974 the claimants issued to the defendant a credit token lloyds personal advance card, for the purpose of the defendant acquiring goods/services on credit.

2. Clause 7 provided that the claimants would furnish the defendant with a monthly statement showing the balance currently due, the minimum payment to be made & the date for payment. If thebalance was not paid then provided the defendant made the minimum payment on or before such date, the remainder of the balance should remain outstanding and the defendant should pay interest upon it per month in accordane with clauses 8 & 9 f the agreement.

3 In breach of the argeement th defendant faled to make payment and on 10/06/08 the claimant issued a default notice pursuant to secton 87(1) of the CCA 1974.

4. O 9/7/08 the claimants did issue a formal demand to the defndant.

5. the clamant therefore claims the balance due under the agreement.

 

We submitted the AoS & sent CPR request off. The letter from SC&M came back saying:

'we would advise that it is your decision whether to file an admission, defence or counterclaim, however, you need to be aware of timescales.

our client will await the courts directions for the further conduct of this matter once your response to the claim has been filed'

 

We submitted our holding defence by the deadline via the internet (similar to ones found on here) with request to submit amother should the info be provided etc.

 

We received what seems to be a standard letter saying they have requested the court to enter judgement aganst me and an order detailling payment will be sent. They enclose a standing order mandate for me to use in the meantime (how nice of them!) & a paying in book a few days later.

 

I did the AQ & the case seemed to fast forward to a court order for submitting disclosure list, inspection of docs, witness statement & pre-trial checkllist. (then what I have said at top of page fits in here)

 

I have now received a notice of applicaton for hearing from the claimant scheduled for early August. They have stated they wish to apply for my defence to be struck out (it would have been nice if they'd given me the info to enable me to submit a defence to be struck out!) & request summary judgement because I have no real prospect of successfully defending the claim (obviously I haven't because they don't seem to want to give away any details of the claim)

 

also, a few days before the heaing for a strike out which I did an N244 for they sent some info in response to my CPR request (4 months late!) In the letter they admitted they only have a microfiche copy of the application/agreement & no copy default notice.

 

The witness statement attached to the hearing notice is quite basic from my understanding. it refers to the credit card acceptance form & agreement (I can try to scan up a copy of this) They go on to say 'they do not need to produce the original agreement which they no longer have. The copy on if system is admissible by virute of sections 8(1) & 9(1) of the Civil Evidence Act 1995. They make reference to the varied t&c's, compliance & breach of agreement & issue of default notice. They state the DN was computer generated & sent by Royal Mail 1st class post. They state they don't hold a copy but have attached a template (contains xxxxx where the info is input), They then go on to state the failure to remdy the breach & the closure of the account.

 

Sorry it's so long winded but I though it best to note it all down & I can then perhaps elaborate where someone thinks I need to.

[the_shadow]

Ok if they have applied for a summary judgment and you have a hearing date then thats what you need to prepare for...

 

In my mind you need to put together a witness statement which needs to answer every paragraph in their witness statement whilst putting doubt on their original claim.

 

You'll find the witness statement will help with the defence later on as you'll be using some of the same stuff.

 

If you can post up their witness statement and a copy of a) the default notice template and b) the credit agreement

 

As to their comments about the civil evidence act they are correct in what they are quoting however, where a claim is brought upon a contract the original of the contract should be presented to the court. Any copies used need to be entered as hearsay evidence and given less credence. Different judges interpret the law in their own unique ways though unfortunately

 

S.

[waroo]

cca

will try & get the rest up(hopefully a bit smaller)

Back

Edited July 6, 2009 by waroo

[waroo]

default

Back

 

[the_shadow]

Thats a nasty agreement, it appears to have all the prescribed terms but it also refers to other t&c in the same paragraphs, not sure on the interpretation of that I'm afraid.

 

As to the default notice, its just the basic template letter, your details would have been mailmerged in at time of printing. So it has no dates to verify when it was sent, the amounts on it or the date of service

 

S.

[waroo]

Along the lines of the agreement terms & conditions. It does refer to 'see point xx' however, the copy of the terms & conditions they have sent are for 2, 3 & 4 years after the agreement date (being a leaflet of amended t&c's) The points they have refered to in the PoC do not in any way correspond to these amended t&c's (which they say are what applied at the time) or the points refered to in the actual copy agreement. There is no correlation between the agreement, PoC or the t&c's.

 

Any thoughts would be appreciated.

[hammyhound]

Waroo,

 

what is the year of your "agreement". For an 11% APR it must have been a very long time ago.

 

HH

[waroo]

2004

[waroo]

bump

[waroo]

On the agreement (see post no.8) should there be an agreement number on it printed or such like in a specific box or area. There is an agreement number randomly hand written across the top area of the page (I've covered this over to post on here). How can it be definate that the agreement is for the account number written on it. This could have been written on just before they sent me a photocopy for all I know.

 

Is it arguable that this was only signed as an application for a credit card. Upon being sucessful they've simply turned it into an agreement by writing a number on it. Should a signature not need to be applied to an agreement after they bank has made it's descision & not before?

 

Does the fact that they don't have a copy of any default notice constitute unlawful termination?

 

How do I best request that they bring the original documents to court? I have to file a response to their application for summary judgement in a few days.

 

Any help & advice would be very much appreciated, thanks

[waroo]

Please can anyone help on this

Thanks

[underdog13]

I'm afraid I don't have the legal knowledge to help personally, but if someone doesn't pop in to help soon, try clicking on the red triangle in the bottom left hand corner to alert the site team to your plight.

 

Best of luck with it:)

[Spamalot]

Hi Waroo,

 

Did you actually receive a default notice for this account?.... If not then that should form a big part of the defence... sending a template of what it should have looked like doesn't really fit the bill.

 

They need to be put to strict proof that one was sent by them and received by you. i.e proof of signed for delivery.

 

If they cannot prove this then they have terminated the agreement unlawfully.

 

Spam.

[AndyOrch]

On the agreement (see post no.8) should there be an agreement number on it printed or such like in a specific box or area. There is an agreement number randomly hand written across the top area of the page (I've covered this over to post on here). How can it be definate that the agreement is for the account number written on it. This could have been written on just before they sent me a photocopy for all I know.Probally because its an application form

 

Is it arguable that this was only signed as an application for a credit card. Upon being sucessful they've simply turned it into an agreement by writing a number on it. Should a signature not need to be applied to an agreement after they bank has made it's descision & not before?Thats the catch 22 question " when does an application form become a CCA the answer is never if it does not contain the perscribed terms and form and layout.

 

Does the fact that they don't have a copy of any default notice constitute unlawful termination? Not unless they can prove that they did serve one and again in the perscribed format and valid/lawful balance

 

How do I best request that they bring the original documents to court? Via your Proposed Directions within you AQ I have to file a response to their application for summary judgement in a few days.Or again in your objection to SJ Witness Statement

 

Any help & advice would be very much appreciated, thanks

 

Regards

 

Andy