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Address

 

September 16, 2009

 

Clydesdale Bank

Customer Engagement Leeds

3rd floor

20 Merrion Way

Leeds

LS2 8NZ

 

 

 

ACCOUNT IN DISPUTE

 

Ref: x

 

Dear Sir/Madam

 

Thank you for your letter of 04/09/09, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On 25/08/09 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. This was signed for as delivered on the 26/08/09

You have failed to comply with my request, and as such the account entered default on 15/09/09

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

 

This limit has expired.

 

As you will know section 180(1) (b) states that, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form” is permitted. This refers to statutory instruments made under the heading The Consumer Credit (Agreements) Regulations 1983 SI 1983 No.1557 which state:

 

3 General requirements as to form and content of copy documents

 

(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.

(2) There may be omitted from any such copy--

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations there under as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document; this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

 

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

 

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

 

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

 

MUM

 

 

 

 

Will see what happens now.

 

M1

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  • 1 month later...

Update.

 

Reply to above letter

 

complaintreply119.jpg

 

Then more of the same

 

complaintreply249.jpg

 

And again

 

complaintreply249.jpg

 

 

The same day this came

 

lawyer1.jpg

 

 

Replied to that with

 

 

 

Address

 

Jeremy Sutcliffe & Co

PO Box 652

Brunswick Point

Wade Lane

Leeds

LS1 9BJ

 

ACCOUNT NUMBER: x

 

Dear Sirs

 

I refer to your letter of 14th October 2009, the content of which is noted. No debt to your client is acknowledged.

 

On 25th August I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. This was delivered on the 26th August 2008 They have failed to comply within the statutory time limit, or at all. A follow up letter was sent on 16th September 2009 and delivered 17th September 2009 outlining some of the errors in the paperwork sent by your client. This was acknowledged with a reply that they are looking into these matters.

 

It should not be necessary to have to remind solicitors that the provisions of s.78(6) now apply.

 

In the circumstances, your/your clients threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection. Should you or your client bring proceedings, they will be robustly defended, and the Court's attention drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

 

Yours faithfully

 

 

 

 

 

 

 

This was followed by

 

citation1.jpg

 

citation2.jpg

 

 

Any advice welcomed.

 

Thanks

 

M1

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Sorry should add Sar done

 

sarreply.jpg

 

Points 1 - 10 were

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

 

M1

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Guest Old_andrew2018

Have you considered clicking on the red triangle report.gif and leaving a message for the site team, I think they may be able to direct your thread to people with expertise.

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Hiya,

 

sar done good. what did they provide in the sar as a cca?

 

iv'e copied this from Monty, who might come along and help with guidance for you

 

This is a very standard writ for an Ordinary Cause summons with respect to a disputed debt and you must return Form O7 (notice of Intention to Defend) with the fee of £80. Personally I would take it to the Sheriff Court and ensure you get it lodged on the Record. Especially that the postal service is now subject to industrial action.

 

The Ordinary Cause process is outlined in this link:

 

Ordinary Cause Rules

 

I would also get hold of a copy of Charles Hennessy's book entitled "Civil Procedure and Practice" (costs about £40) which will give a good introduction to the process and help with the terminology and provide a basis for your defence and pleas in law.

 

You have to lodge Form O7 with 21 days as it states in the writ, the court will then issue you and the Pursuer Form G5 which sets out dates for submission of your defence and a period of adjustments to both their writ and your defence and pleas-in-law. The purpose is to allow the Sheriff to focus on the key issues of the case, during the adjustments process it will be between just the Defender and the Pursuer, following which the final version will form "the Record" which is what the Sheriff will make a decision on at the "Options Hearing". Don't worry too much about what these mean at the moment.

 

The key point is that the process is long and drawn out, purposefully to enable settlement through the adjustments process. The disclosure of documents during an Ordinary Cause process is through serving a Motion which can be done through a solicitor or Bailiff or at the Bar (at the hearing). They will also need to provide you with an Inventory of Productions when they submit the final Record that will contain any documents that they seek to rely on in court, you will have to do the same. My case filled three lever arch files since the Sheriff wanted each case printed out in full and all acts/SI's etc. So be prepared for a lot of work.

 

What I would suggest is that you:

 

1. File Form O7, post up what you get back in respect of Form G5.

2. Serve a Subject Access Request on the creditor/Pursuer as Ida suggests. You should also request your agreement and use a template letter from CAG. Send both with the correct payments and via Guaranteed next day delivery, do it quick since the post office is about to strike.

 

Then post up what you get back.

 

One note of caution:- the costs with an ordinary cause action can be substantial, the process can go through legal debate, proof (leading of evidence) or proof before action (essentially the same). However many never get this far, but you need to be sure about your defence and legal arguments.

 

You should think about your defence? What angles do you have? the agreement? the insurance? the default notice?

 

Ida x

Please contact a member of the site team if you are offered help off the forum for a a paid or no win no fee service.

 

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Hey Ida,

 

The cca is the same in the Sar as the op.

 

The letter objecting to the the cca is post 3. I did not mention that there is no apr. They have since sent 3 replies to say they are looking into things. No final response so far. Then the legal docs came.

 

In the sar response the stated they had nothing on file regarding defaults etc. Point 4 of the sar above.

 

I have also noticed the only terms and conditions supplied are new ones as they state £12 charges. No original terms have been sent either via s78 or sar.

 

 

My mum did bury her head for ages so i can't say there was no default etc but they say they don't have them ? Court action isn't allowed without ?

 

Cheers M1

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no enforecable cca

no copy of defaults

raising court action when in dispute and they acknowledged it

 

no no no no bad bad bad bad

 

here is some threads that will help you with the process'

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/176298-need-help-court-defence.html

 

http://www.consumeractiongroup.co.uk/forum/dealing-debt-scotland/180427-rrfcfan-court-wf-all.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/195822-m-more-court-papers.html

 

 

look as tho trying to slip this through before the 1st dec

 

can you confirm if this is a summary cause or ordinary cause

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This is an Ordinary Cause summons. The documents that they have sent look like the application plus some T&S's. Can you confirm if they contain if the T&C have your signature on?

 

Did they issue a Default Notice.

 

Read what Ida has posted and also look at the other posts, there are a few other OC cases going on in Scotland at the moment so plenty of cases to follow. Their summons is very standard and will be easy to defend.

 

You first need to submit form O7 (notice of intention to defend) and pay the £80, or whatever fee they now require for you to defend yourself.

 

The Sheriff court will issue a list of dates and actions that you then need to post up. The first job will be the defence, I will be able to help with this. You should also get a copy of Henessey as suggested, it gives a good introduction.

 

It is a long process and you need to start to build your case. Can you give more detail, particularly with respect to the DN and also if/when they terminated (which they have essentially done anyway by issuing this action).

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To be honest my mum stopped opening anything that looked like it was from them and others. So the default and termination etc may have been sent but i couldn't say for sure. The SAR reply said they have nothing on file.

 

To defend it says £50 which is ok. I thought of leaving that until the last week as maybe they will finalise the complaint to which they (clydesdale) have sent 3 "we are investigating please bear with us" letters. I wondered if i should write to the solicitors to notify them of this so they might drop the case ?

 

Cheers

 

M1

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To be honest my mum stopped opening anything that looked like it was from them and others. So the default and termination etc may have been sent but i couldn't say for sure. The SAR reply said they have nothing on file.

 

To defend it says £50 which is ok. I thought of leaving that until the last week as maybe they will finalise the complaint to which they (clydesdale) have sent 3 "we are investigating please bear with us" letters. I wondered if i should write to the solicitors to notify them of this so they might drop the case ?

 

Cheers

 

M1

 

I don't think they will drop the case unless you settle, probably in full. This looks winnable, if you can find the DN it may be useful since they may have messed up the dates, format or other. Have a good look.

 

This is worth fighting.

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ok the default is ok if sent first class but not if i was sent second, could only go for sent second and ask for proof for first calss postage

also is there any charges within the default sums?

 

 

ida x

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There are some charges of £10 late fees early 2001 and some overlimit and late fees of £12 2007 +

 

Thought the early ones would be more given the usual Clydesdale standard !!

 

M1

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Got a reply from Clydesdale to the complaint letter in September. It contained a reply, the agreement, the t&c's above and the original t&c's below admission of not complying before now ?

 

 

clrep1.jpg

 

clrep2.jpg

 

cltc1.jpg

 

cltc2.jpg

 

M1

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The original terms are a bit weird since the agreement says the credit limit applied for £200 and under the bank use only section £200 is sanctioned however, the original t&c's say that "for new customers, the credit limit will be £500 or such larger amount ..."

 

So would these t&c's be for this account ?

 

Still investigating but thought i'd ask opinions on that.

 

Cheers

 

M1

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To be honest my mum stopped opening anything that looked like it was from them and others. So the default and termination etc may have been sent but i couldn't say for sure. The SAR reply said they have nothing on file.

 

To defend it says £50 which is ok. I thought of leaving that until the last week as maybe they will finalise the complaint to which they (clydesdale) have sent 3 "we are investigating please bear with us" letters. I wondered if i should write to the solicitors to notify them of this so they might drop the case ?

 

Cheers

 

M1

 

Cupar court have failed to update the forms and it is indeed £80 to defend. Have also ordered the book which was £37.05 from amazon :eek:

 

M1

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get them to state prove of postage on the defualt notice, as they probably sent it from a bulk mailing centre by a private mailing firm. which according to law would be deemed as second class post and is not legally deemed as served until 4 working days after the date of postage. so if it was posted on the 15th you would have received it on the 19th so would have only had 12 days out of the satutory 14 days to pay on the 1st of july being the the date before the 2nd of july and therefore 1st of july being the last day in which you would be able to remedie the default, therefore default invalid. even if they sent it first class by royal mail it would have to have been sent on the 15th as it is 2 working days after the date of postage before it is deemed served by law. so if they posted it 1st class on the 16th then you will have recieved it on the 18th giving you only 13 days out of the 14 days, so again invalid only way it would be valid if it was posted first class on the 15th and by law only royal mail first class is deemed as first class, and private mailing company is deemed as second class regardless of weather it was sent frist class by them thats law.

 

so just get your mum to write on the top of the default noticed received on 18/06/2009, then claim the default is invalid in your defence, as it was not received until the 18th august so you only had 12 days instead of the satutory 14 days to remedie the default therefore its invalid. if the banks representatives argue that you had denied recieving the defualt explain your mum forgot she had received it due to high levels of stress or whatever and then get yorkshire banks representative to stait prove of postage, because i can gaurantee you they will have no record of the postage, only of when it was written.

 

nearly all creditors and banks that use private mailing firms have no knowledge of the laws when i comes to a letter of this kind being deemed as served. and it is 4 working days after the date of postage not from the date of postage for second class mail and private mail firms before its is deemed as served. and royal mail 1st class is 2 days after the date of postage not from the date of postage before it is deemed as served.

 

p.s i would remove the time and dates from the court papers you posted to. because if they are watching this thread like alot of them do they will beable to identify you by the dates and times and the court that is handling the case, and they may well use the information weve given you to prepare their case against you, which would be no help to you whatsoever.

Edited by teaboy2

Please note that this advice is given informally, without liability and without prejudice. Always seek the advice of an insured qualified professional. All my legal and nonlegal knowledge comes from either here (CAG),my own personal research and experience and/or as the result of necessity as an Employer and Businessman.

 

By using my advice in any form, you agreed to waive all rights to hold myself or any persons representing myself of any liability.

 

If you PM me, make sure to include a link to your thread as I don't give out advice in private. All PMs that are sent in missuse (including but not limited to phinishing, spam) of the PM application and/or PMs that are threatening or abusive will be reported to the Site Team and if necessary to the police and/or relevant Authority.

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First draft. Any comments suggestion gladly received even spelling mistakes.

 

 

 

SHERIFFDOM OF Tayside, Central and Fife At Cupar

 

 

Court Ref. No. Axxxxxx

 

 

MOTION FOR THE DEFENDER

 

 

in the cause of

 

 

Clydesdale Bank Plc

30 St Vincent Place

Glasgow

G1 2HL

 

 

PURSUER(S)

 

 

Against

 

 

Mum residing at where I stay

 

 

 

DEFENDER

 

 

ANSWERS TO CONDESCENDENCE

1.The averments regarding the defender are admitted.

 

2. The existence of jurisdiction is admitted. It is explained that these proceedings were raised at a time when the pursuer had advised that they were investigating a dispute.

 

3.Denied. It is explained that the Consumer Credit Act 1974 (“cca”) and associated statutory instruments allowed within, require that any agreement within the scope of the cca must contain certain prescribed terms and some sections must be of a certain format otherwise there is no enforceable agreement. In certain circumstances the courts are precluded from enforcement. These circumstances are present in this case. Quoad ultra not known and not admitted.

 

 

 

 

 

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 61(1)(a) of the Consumer Credit Act 1974 which makes the agreement improperly executed. Section 65(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only. As such it is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

.

 

 

Cheers

 

M1

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First draft. Any comments suggestion gladly received even spelling mistakes.

 

 

 

SHERIFFDOM OF Tayside, Central and Fife At Cupar

 

 

Court Ref. No. Axxxxxx

 

 

MOTION FOR THE DEFENDER

 

 

in the cause of

 

 

Clydesdale Bank Plc

30 St Vincent Place

Glasgow

G1 2HL

 

 

PURSUER(S)

 

 

Against

 

 

Mum residing at where I stay

 

 

 

DEFENDER

 

 

ANSWERS TO CONDESCENDENCE

1.The averments regarding the defender are admitted.

 

2. The existence of jurisdiction is admitted. It is explained that these proceedings were raised at a time when the pursuer had advised that they were investigating a dispute.

 

3.Denied. It is explained that the Consumer Credit Act 1974 (“cca”) and associated statutory instruments allowed within, require that any agreement within the scope of the cca must contain certain prescribed terms and some sections must be of a certain format otherwise there is no enforceable agreement. In certain circumstances the courts are precluded from enforcement. These circumstances are present in this case. Quoad ultra not known and not admitted.

 

 

 

 

 

PLEAS IN LAW

1.The PURSUER’S averments are irrelevant et separatim lacking in specification, the action should be dismissed

2.The purported credit card agreement which the PURSUERS will present as evidence, does not conform in form or content to Section 61(1)(a) of the Consumer Credit Act 1974 which makes the agreement improperly executed. Section 65(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only. As such it is unenforceable under Section 127(3) of the same Act. The Defender craves that the court uses its powers under Section 142 of the same Act and declare that the purported credit card agreement supplied by the Pursuer as unenforceable.

.

 

 

Cheers

 

M1

 

Hi M1

 

Looks like a good basic defence to me, which should results in an interesting adjustments process..........;)

 

The document should be headed: "DEFENCE" - it is not a motion.

 

Regards

 

Monty

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