SAINSBURYS credit card claimform- Help needed

[roygoodbeat]

Thanks.

 

I will read through this. I have tried at the allocation hearing and at a n244 hearing to advise the court that the claimant has not complied with Civil Procedure rules. Each time I was left with the impression that these rules do not apply to a small claims court.

 

When the original court notice came through, I wrote to the claimant requesting info. This did not come for when I requested and I had to submit an embarrassed defence. At the allocation hearing I was ordered to amend my defence as the claimant stated that I had all the documents. This was the first time they admitted nit having the originals.

 

In response I wrote to the claimant to clarify what they had verbally stated in court and to supply there documents. This did not happen by the due day and I applied for a N244 hearing.

 

This came, but the judge dismissed my application as the claimant had supplied everything they were going to. The judge however, ordered that both parties exchange documents by a certain date.

 

After the hearing the claimant's solicitor advised me that courts were not looking favourably at people trying the unenforceable route and advised me to get proper legal advise.

 

The claimant failed to supply the document by the date. They had written stating that they could not supply these until a certain date. I wrote back stating that I expect them to follow the judges request. The failed to give the documents on the date that they said they would. This included the witness statement.

 

Can you advise me what is wrong with this agreement and do you have any case histories regarding it being illegible? Will come back with more questions tomorrow, once I have read up on the info you have given so far.

[bazaar]

OK, Ive asked for some more help here, you should get some replies to this later today..

If theyve failed to provide docs then they are in the wrong.

Also, dont believe anything they tell you, theyare just trying to get you to admit this.

It all depends on your Judge on the day though, so you have as much chance of the judge looking poorly on them for NOT producing as ordered, So we need to specify what you want, so the Judge doesnt have any room for error.

Its going to mean a lot of reading up, but if your arguments are sound, then youve got a good chance

 

Have you requested via CPR 31.15?

[roygoodbeat]

Yes. The request was ignored by the claimant and I advised the court of this. They did not seem interested.

 

Thanks for the help.

 

The arguments that I will need to nail down are:

 

1) Made a request for docs under the Data Protection Act ‘Subject Access Request’. The claimant failed to produce the documents within the timescales and denied receiving these requests. I made a complaint to The Information Commissioner Office. They have put in writing that it is likely that they broke the sixth principle of the data protection act.

2) Made a request under the Consumer Credit Act for copy of agreement. The claimant failed to send this within the timescale and submitted reconstructed docs, as well as the front copy of the application form a month overdue later.

 

These were in response to concerns I had about the agreement and charges.

 

3) I do not recall ever receiving a default notice. When challenged about this, the claimant has only produced a template, a computer print out of the date it was alleged sent and no proof of postage.

4) When submitting original defence, claimant failed to produce docs in response to my CPR requests until after the due date of the defence to be submitted.

5) I only received a reverse copy of what they stated would have been on the reverse side, one working day before the allocation hearing, along with a change of solicitor.

6) After the allocation hearing, in response to submitting an amended defence, as granted by the judge, made another cpr request to claimant. Again, they failed to clarify my questions and send info. Made a N244 application. At the hearing judge ordered both parties to exchange documents by a certain date, and then agree what was in the court pack a week later.

7) Claimant failed to produce these by the due date. They did write stating that this would be delayed by failed to produce this by the day they said they would. Court have been notified of this. Docs, as well as witness statement sent the day the court was notified.

 

This is the chain of events.

 

a) Need to nail down what is wrong with the application form/ credit agreement. This includes not complying with the requirements for credit agreements. The A4 t&C’s is the same as the reconstructed, except it does not have my name and top part. They claim this would have been on the reverse of the application bearing my name.

b) Need to nail down the Waksman ruling as they have used this a couple of times now in their correspondence. I know the case was set up in response to a section 78 request but how can they use this and what can I do to counter this.

 

I know some of the answers but need to clarify in my mind the response, so any help would be appreciated.

[bazaar]

Yes. The request was ignored by the claimant and I advised the court of this. They did not seem interested.

 

OK, then its probably best for you to put up here exactly whats been going on, IE POC's WS etc, so people can take a look, (Make sure you delete any personal info and amounts etc.)

 

It looks like the court is going to ignore letters, so you'll need to be making applications etc, ( Its money in the bank for them)

But the applications you make, need to be rock solid or your wasting your money.

[bazaar]

Thanks for the help.

 

The arguments that I will need to nail down are:

 

1) Made a request for docs under the Data Protection Act ‘Subject Access Request’. The claimant failed to produce the documents within the timescales and denied receiving these requests. I made a complaint to The Information Commissioner Office. They have put in writing that it is likely that they broke the sixth principle of the data protection act.

2) Made a request under the Consumer Credit Act for copy of agreement. The claimant failed to send this within the timescale and submitted reconstructed docs, as well as the front copy of the application form a month overdue later.

 

These were in response to concerns I had about the agreement and charges.

 

3) I do not recall ever receiving a default notice. When challenged about this, the claimant has only produced a template, a computer print out of the date it was alleged sent and no proof of postage. OK, So when is it logged? did it give you enough time to remedy? And did they unlawfully terminate the agreement?

4) When submitting original defence, claimant failed to produce docs in response to my CPR requests until after the due date of the defence to be submitted. Normal Shenaigans,

5) I only received a reverse copy of what they stated would have been on the reverse side, one working day before the allocation hearing, along with a change of solicitor. Thats Hearsay evidence, put them to strict proof

6) After the allocation hearing, in response to submitting an amended defence, as granted by the judge, made another cpr request to claimant. Again, they failed to clarify my questions and send info. Made a N244 application. At the hearing judge ordered both parties to exchange documents by a certain date, and then agree what was in the court pack a week later.

7) Claimant failed to produce these by the due date. They did write stating that this would be delayed by failed to produce this by the day they said they would. Court have been notified of this. Docs, as well as witness statement sent the day the court was notified.

 

This is the chain of events.

 

a) Need to nail down what is wrong with the application form/ credit agreement. This includes not complying with the requirements for credit agreements. The A4 t&C’s is the same as the reconstructed, except it does not have my name and top part. They claim this would have been on the reverse of the application bearing my name. For a start its illegible in certain parts, so the T&C's they reconstituted may be incorrect, so look through them, do the numbers match etc,? we need to pick that apart

b) Need to nail down the Waksman ruling as they have used this a couple of times now in their correspondence. I know the case was set up in response to a section 78 request but how can they use this and what can I do to counter this. I'm sure we'll get an answer on this

 

I know some of the answers but need to clarify in my mind the response, so any help would be appreciated.

 

keep plugging away at it.

 

Check this thread out as well, it may help Vint is very good.

http://www.consumeractiongroup.co.uk/forum/mbna/245517-ruling-judge-waksman-what.html

Edited July 6, 2010 by bazaar

[roygoodbeat]

The POC are:

 

The Claimants claim is for (between 5-6) presently due pursuant to a credit agreement entered into by the parties, full particulars of the claim have been supplied hitherto.

By an agreement dated 30/10/2003 the defendant has an account number (blah blah) with the claimant. The Defendant has failed or delayed to adhere to the terms of the default notice issued by the claimant under the terms of the consumer credit act 1974. The balance as at (blah blah) on said account is (Between 5-6)"

 

This was all they submitted on the form. No other documents at the time.

 

Tell me what to look for exactly in the t&C's and I'll check it.

[bazaar]

OK, firstly as before, where is the original agreement? They dont have one, thats a biggy.

Did they send full particulars? Probably not, so misleading of them.

Did they send a DN? If so, did it allow the correct time for remedy? Was it compliant with the CCA Act as theyve mentioned it?

 

As for the T&C's you'll be looking for differences ( If you can make them out) on the illegible document compared to the reconstituted ones.

 

IE, Clause xxx having different wording to reconstituted, ( So your argument would be they cannot be from the time this agreement was set up, that sort of thing)

 

Theyve admitted to not having the original, so youre gonna be questioning the validity of the made up one

[roygoodbeat]

 

OK, firstly as before, where is the original agreement? They dont have one, thats a biggy.

NO, THEY DO NOT HAVE THE ORIGINAL. THEY ONLY HAVE A MICROFICHE COPY.

 

Did they send full particulars? Probably not, so misleading of them.

NO

 

Did they send a DN? If so, did it allow the correct time for remedy? Was it compliant with the CCA Act as theyve mentioned it?

THEY HAVE ONLY SENT A STANDARD TEMPLATE AND HAVE SAID THAT THEY DO NOT KEEP ORIGINALS. THE TEMPLATE ALLOWS FOR THE CORRECT TIME BUT IT DOES NOT BEAR MY NAME, ADDRESS, AMOUNT, DATES... THEY HAVE SAID THEY DO NOT HAVE TO KEEP A COPY OF THIS.

 

As for the T&C's you'll be looking for differences ( If you can make them out) on the illegible document compared to the reconstituted ones.

IE, Clause xxx having different wording to reconstituted, ( So your argument would be they cannot be from the time this agreement was set up, that sort of thing)

THE A4 T&C'S FOR WHICH THEY HAVE SAID WOULD HAVE BEEN ON THE REVERSE SIDE ARE EXACTLY THE SAME AS THE RECONSTRUCTED VERSION. THE ONLY DIFFERENCE IS THE TOP OF THE AGREEMENT BEARS MY NAME ON THE RECONSTRUCTED VERSION. IT DOES NOT CONTAIN ANYTHING OF THE FRONT OF THE APPLICATION FORM. FROM WHAT YOU CAN SEE, IS THE RECONSTRUCTED VERSION (OR A4 T&C )COMPLIANT WITH THE ACT?

 

Theyve admitted to not having the original, so youre gonna be questioning the validity of the made up one

WHAT PROCEDURES SHOULD BE FOLLOWED IN THIS AS THEY HAVE STORED THE FRONT DOCUMENT ON MICROFICHE AND HAVE NOT SUPPLIED ANY PAPERWORK REGARDING THIS PROCEDURE OR DISPOSAL.

[mystery1]

Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

 

M1

[roygoodbeat]

Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

 

M1

 

Thanks. I am right in saying that if they are lookig to submite scanned documents they must produce an audit trail to prove of its correct disposal. ie:

 

 

Preparation of documents prior to scanning

The code requires that:

[roygoodbeat]

Legal Admissibility, Document Management, Document Imaging, Document Scanning | Archival

 

M1

 

Is this a legal requirement or a code of practice? How does this relate to, if anything to money laundering regulations which state a document must be stored up to 6 years after the relationship has ended? What do they need to produce in court if they are to use a scanned copy.

 

Can this also be used for the default notice that they did not retain a copy of?

[mystery1]

I wouldn't say must. If you have a good judge or you make an issue of it then i'd say they were in trouble without an audit trail but with an uninterested judge and a free pass from you it could sail by without comment.

 

M1

[mystery1]

Is this a legal requirement or a code of practice? How does this relate to, if anything to money laundering regulations which state a document must be stored up to 6 years after the relationship has ended? What do they need to produce in court if they are to use a scanned copy.

 

Can this also be used for the default notice that they did not retain a copy of?

 

An audit trail and the reasons they don't have it i'd assume.

 

M1

[roygoodbeat]

They have a signed witness statement from their legal guy stating that the scanned copy is a true copy. Its dated June this year. That is the only thing they have produced, no audit trail, records of disposal.

[mystery1]

They have a signed witness statement from their legal guy stating that the scanned copy is a true copy. Its dated June this year. That is the only thing they have produced, no audit trail, records of disposal.

 

How does he know ? Did he witness the original ? Destruction ? Storage ?

 

Has it been stored securely ? Tampered with ?

 

If he says he saw it etc make sure he actually is old enough to have worked there at the time as it seems to have happened to caggers before that the witness would have been at school at the time !!!

 

M1

[roygoodbeat]

Ok.

 

This seems straight forward. So this is a legal requirement that all companies have to follow.

 

Have you looked at the agreements. From what they have supplied ie: The reconstructed ones, is that in complaince with the Consumer Credit Act?

[bazaar]

Its as I said earlier and what M1 is also saying, if their witness is stating something, you request them to attend court and you question them.

This alone isnt going to put the judge on side though, its just one argument.

So you need to be looking at every item theyve put into the claim.

 

So DN, Agreement etc, and why you want the judge to see whats wrong.

 

Just think of the Judge as a blank canvass.

 

So, on such and such a date I contatced them, they in turn said ' we dont have the agreement'. This is in contravention of CCA xxxxx, which in turn limits the powers of this court in so much as xxxx etc etc.

 

We make the other side look incompetant at least, then youre more likely to get the judge to swing your way and force them to produce something we all know they aint got.

[roygoodbeat]

Ok. The agreement is covered by the 1974 cc act. It was taken out in November 2003. The claimant state they do not need to produce a copy of the original. Am I right in saying this is covered in a later act and applies to cards taken after a certain date?

 

Regarding the agreement, I am roght in saying I can challenge the copy by the following:

 

The agreement is a microfiche copy. I have not been supplied with the original or anything regarding its destruction. Why is the claimant witness not in court, how long have they been with the company, where is the audit trail, why has no documentation been supplied regarding this, its a requirement of money laundering regs that the original is kept for 5 years after the relationship has ended. What procedures were followed. Was the witness the one who disposed the original. Why has the original T&C's included with this as the a4 ones they supplied are not of consistent quality as the front and therefore was not what was on the reverse.

 

Regarding the recontructed terms and conditions and the front, what is wrong with these? Are they compliant?

 

The alleged debt is about £5700. I am worried about what the claimant may say or judge regarding why I have not paid. I have worked out that over the term, I will have paid about £4,300 in interest (about £325 are in charges) They have breached both my subject access request, Consumer agreement request, pre court protocols and the court order. If their is no original agreement or the reconstructed agreement is non compliant, can they enforce the £5,700, which is made up largly of interest?

 

Sorry, getting nervous as the big day is tomorrow.

Edited July 7, 2010 by roygoodbeat
clarification

[Consumer dude]

Yes. The request was ignored by the claimant and I advised the court of this. They did not seem interested.

 

 

 

 

 

 

 

 

When you say they did not seem interested, did you mean the court ?

[bazaar]

Roy, just flagged the thread OK, hopefully we can bash this into shape a bit.

 

Your questions/ statements to court if allowed.

The agreement ( or is it application ?) is a microfiche and is illegible, this is against CPR.

There is no audit trail provided to prove the existance of an executed agreement.

Ask for the witness to be present, so you can clarify this, this may have to be a direction. from court.

The reconstituted docs, have no relevance because there are no references to you, no dates.

So you cannot possibly know if these are correct, thats why you want the witness there.

Also, have you objected to hearsay evidence?

Have they indeed applied correctly to issue hearsay evidence, if not then tell the court you object and they have failed to follow the correct procedure.

 

For the 5700, well, they havent produced the full statements of account have they?

If they will, you can then remove charges etc and so make a counter claim which will reduce the final amount.

 

But also be a little sly here, as it is over 5000, you are entitled to costs should they discontinue.

 

But you need the statements

[roygoodbeat]

The reconstructed docs have my name and address on it but no signiture.

 

I have received copies of the original statements, this is where I got my interest from.

 

I have not objected to hearsay evidence yet. I do not know if they have applied for hearsay. This is going through a small claims court (limit £5,000) I don't know if this makes a difference.

 

The court pack arrived 5 days after the date the DG ordered we exchange documents. I sent in mine on time.

 

I wrote to them and the court to state that in terms of agreeing what was in the pack, that I submit mine, and let the court decide about theirs.

[mystery1]

Roy, just flagged the thread OK, hopefully we can bash this into shape a bit.

 

Your questions/ statements to court if allowed.

The agreement ( or is it application ?) is a microfiche and is illegible, this is against CPR.

There is no audit trail provided to prove the existance of an executed agreement.

Ask for the witness to be present, so you can clarify this, this may have to be a direction. from court.

The reconstituted docs, have no relevance because there are no references to you, no dates.

So you cannot possibly know if these are correct, thats why you want the witness there.

Also, have you objected to hearsay evidence?

Have they indeed applied correctly to issue hearsay evidence, if not then tell the court you object and they have failed to follow the correct procedure.

 

For the 5700, well, they havent produced the full statements of account have they?

If they will, you can then remove charges etc and so make a counter claim which will reduce the final amount.

 

But also be a little sly here, as it is over 5000, you are entitled to costs should they discontinue.

 

But you need the statements

 

If you have put them to strict proof of a valid executed agreement that complies with the regs then you do not want an audit trail. The evidence has little value without it. If they have it and produce it the value of the evidence goes up and your chances of a successful defence diminish.

 

What you want is to ask them to prove it then hope they fail to do so.

 

They have to prove they have the right to the claim and you have to dispute that right not prove that they don't have it. If you can prove they don't have a valid claim then it's an easy win but if they can't prove the claim they still should lose.

 

M1

[roygoodbeat]

OK.

 

They have admitted they do not have the original.

 

They have a witness statement saying it is a true copy.

 

They have produced no other documents in relation to the original, apart from the front copy.

 

They have only produced what would have been on the reverse, which is the same as the reconstrcuted one (Without my name and address)

 

I can challenge them on these areas.

 

1) Can the judge order that they produce further info even though a dg ordered them to produce everything that they would rely on in court and subseqantly broke that court order? By breaking this the imbalance has between us has got greater.

 

2) What if the judge accepts their hearsay as evidence. In terms of the reconstructed agreement, micrfiche copy and A4 copy, what can I challenge regarding this.

 

3) What if they claim that they do not have to submit an application for hearsay evidence. So far they have claimed throughout that there are no pre court protocols.

Edited July 7, 2010 by roygoodbeat

[supasnooper]

You really must hammer home to the Judge the Claimants ignorance of Court Orders - it should sharpen his mind.

 

have a look at this post which may help - http://www.consumeractiongroup.co.uk/forum/show-post/post-3018697.html

[bazaar]

OK.

 

They have admitted they do not have the original.

 

They have a witness statement saying it is a true copy.

 

They have produced no other documents in relation to the original, apart from the front copy.

 

They have only produced what would have been on the reverse, which is the same as the reconstrcuted one (Without my name and address)

 

I can challenge them on these areas.

 

1) Can the judge order that they produce further info even though a dg ordered them to produce everything that they would rely on in court and subseqantly broke that court order? By breaking this the imbalance has between us has got greater. If theyve submitted all they have, then why give them a second chance? What theyve submitted as ordered by the honourable court is deficient and so you have no way of knowing what is owed , if anything.

 

2) What if the judge accepts their hearsay as evidence. In terms of the reconstructed agreement, micrfiche copy and A4 copy, what can I challenge regarding this. Look at the rules, can you challenge it, Although the strict rules of evidence may not apply you should bear in mind that it is up to the judge how much weight he gives to evidence which is either unchallenged, such a witness who does not attend for cross-examination, or is of doubtful value, such as hearsay evidence. So, IMHO, maybe a challenge or 2 wont go amiss.Such as, have they applied correctly, if not get it struck out, where is the witness? and ask that witness those awkward questions such as how long have they worked there compared to what was done to this agreement way back when.

 

3) What if they claim that they do not have to submit an application for hearsay evidence. So far they have claimed throughout that there are no pre court protocols.

The rules are pretty clear, nail it to their proverbials. Generally, the evidence must be relevant, not hearsay and an original copy of a document when appropriate.

However, the court may still allow photocopies etc, BUT, An exception should be made if the original is lost , destroyed or cant be retrieved.

So keep on the original, where is it? etc.