SAINSBURYS credit card claimform- Help needed

[roygoodbeat]

Hi

 

Need some advice. Just received a letter from Sainsburys. I requested a copy of the reverse side of the application form, copy of default notice, proof of postage and copy of default.

 

Sainsburys have stated that (In Summary) " Judge Waksman at the High court in Manchester ruled that if a form is signed stating terms and conditions, that if is is stapled, it contains the prescribed terms" They have therefore only have to produce a reconstitued version.

 

They have also stated that they do not keep copies of default notices and that their bank records show that this was sent. They have said that this will have been sent first class post, therefore will have been deemed to have been served.

 

They have also stated that unless I reply within 7 days, they will apply to the court that my embarassed defense is struck out and that judgement is passed.

 

Need some advice. They have again only sent an illegible front copy of the application and once again failed to give me the information I requested. I understood that they have to produce the orginal copy in court to make it enforceable. In addition, they have not confirmed that the documents they sent are the ones that they are going to produce in court.

 

Help. Have less than 4 days to send back a response.

[MandM]

Hi

 

Need some advice. Just received a letter from Sainsburys. I requested a copy of the reverse side of the application form, copy of default notice, proof of postage and copy of default.

 

Sainsburys have stated that (In Summary) " Judge Waksman at the High court in Manchester ruled that if a form is signed stating terms and conditions, that if is is stapled, it contains the prescribed terms" They have therefore only have to produce a reconstitued version. Remind them that this is not a Section 77/78 request but a CPR request. Therefore, if they wish to proceed and enforce the alleged debt through the courts then only the original will suffice.

 

They have also stated that they do not keep copies of default notices and that their bank records show that this was sent. They have said that this will have been sent first class post, therefore will have been deemed to have been served. Then they must produce proof of posting/issuing and a true copy of what was issued.

 

They have also stated that unless I reply within 7 days, they will apply to the court that my embarassed defense is struck out and that judgement is passed. If they do not produce the information requested in your CPR request then you will report their actions to the court regarding their attempts to frustrate your defence.

 

Need some advice. They have again only sent an illegible front copy of the application and once again failed to give me the information I requested. I understood that they have to produce the orginal copy in court to make it enforceable. In addition, they have not confirmed that the documents they sent are the ones that they are going to produce in court.

 

Help. Have less than 4 days to send back a response.

 

Try that Roy. Send recorded so you get a signature.

 

Others might look in and add further.

 

M

[Guest Jason King]

Try that Roy. Send recorded so you get a signature.

 

Others might look in and add further.

 

M

 

 

They have also stated that they do not keep copies of default notices and that their bank records show that this was sent. They have said that this will have been sent first class post, therefore will have been deemed to have been served. Then they must produce proof of posting/issuing and a true copy of what was issued.

Excuse me, but I don't think this is correct.

A County Court judge will almost certainly just take the word of the creditor that a Default Notice was sent and therefore received. The creditor won't be put to strict proof to prove this as the judge only has to consider the probability it was sent and will side with the bank.

The bank can just produce a Default Notice during proceedings and say they had sent it.

It happened to me and the first I seen of it was during a preliminary hearing and the judge simply said he was satisfied it was sent!

[MandM]

Interesting.

 

But i'm talking from my own experiences also. I have 2 DNs that I can't find (but I know were sent) and one that I have but not disclosed.

 

In each case when I questioned the bank to 'prove' that they had sent a DN I was given a screenshot from their system to prove/demonstrate that the DN had been raised, by whom and when.

This may also be issued sometimes within a SAR.

 

Further - the onus can then be put on them to prove that postage was 1st class, otherwise it will be deemed as second IMO.

 

M

[roygoodbeat]

Is this OK for a reply.

 

Dear Sir/Madam,

 

 

I refer to your letter dated 8 th February 2010, received today 11th February, the contents of which have been noted. In response to your comments and my recent requests, I would like to remind you of the following.

 

 

1) I respectfully request that you provide me by return a copy all parts of the credit agreement which bears my signature. The copy that you have sent is illegible and does not contain the original terms and conditions. I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore an illegible front copy will not suffice, only a copy of the original contract in its unaltered form will

 

 

 

suffice in these circumstances. Despite my request for this, you continue to ignore this request which was made under Civil Procedure Rules. You have not sent a copy of the reverse side of the original application form or any other document that may be referred to. I require a clear copy of both front and back, along with any other documents referred to. I also require confirmation that you have the original document.

 

 

2) I have requested full copies of all documents that you intend to rely on court which you have appeared not to send everything. I also require confirmation of which documentation you intend to rely on in court in pursuant to the Civil Procedure Rules (CPR 18 & CPR 31.14). You have not responded to this request.

 

 

3) I requested a copy of the default notice, along with proof of postage. You have failed to send this. I require a copy of this, along with proof of postage.

 

 

I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this information to me. The disclosure of these documents will allow me to consider any claim I may have against your organisation. You are preventing me from making a defence and you are frustrating proceedings.

 

 

If you fail to comply with my request I will be left no option but to make an application to the Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which I have requested.

I must advise you that any further delay in you providing the information, I will report you to the Court and advise them that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

I will also consider applying to the court for your application to be struck out.

 

Yours Sincerely

 

[MandM]

I'd go with that Roy. See if anyone else says otherwise. But looks good to me.

 

I've not checked the CPR references, nice to see you're finding your way around them

 

M

[roygoodbeat]

How does the Judge Wakman ruling affect cases such as mine.

 

1) Do they still need to produce a copy of the reverse side. Since this was taken out in 2004, do they still need to produce the original in court in order to enforce the debt.

2) Surely they would have a copy of the original default notice, which I never received. For such an important document, this, or at least proof of postage whould be retained.

3) The copies that they have sent are illegible in places. They have sent this in response to my pre court protocol request after I have submitted my embarrassed defence.

4) After sending the above letter, what should I do next?

 

My partner and I are getting worried and I would like to get this sorted.

[MandM]

How does the Judge Wakman ruling affect cases such as mine.

 

1) Do they still need to produce a copy of the reverse side. Since this was taken out in 2004, do they still need to produce the original in court in order to enforce the debt. As far as i'm aware they will still need to produce the original signed copy in court

2) Surely they would have a copy of the original default notice, which I never received. For such an important document, this, or at least proof of postage whould be retained. They don't tend to keep copies of DNs. In my cases I have been supplied with a template of the original and a screenshot of their system showing that it was issued.

3) The copies that they have sent are illegible in places. They have sent this in response to my pre court protocol request after I have submitted my embarrassed defence.An illegible copy is not acceptable - although I believe that there have been instances when, in court, the illegible copy has been backed up by a legible copy of someone elses to show what it 'should look like'

4) After sending the above letter, what should I do next? I'll post you a couple of threads where action is being considered due to the other side frustrating proceedings by not complying with CPR.

My partner and I are getting worried and I would like to get this sorted.

 

Try not to worry, if it gets sticky you'll get lots of help and support here. Also, have you read PTs thread on dealing with court action? Will post that too just in case you have missed it.

 

M

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/237396-n150-assistance-needed-please.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

[roygoodbeat]

Lastest Update.

 

Wrote to Sainsburys again asking for legible copies of front copy, copy of back t&c's, copy of default notice (Not a blank template), confirmation that they have the original signed agreement and proof of postage.

 

They wrote back saying that they do not agree with my embarassed defence nor did not respond to my second request letter. They wrote stating that they would apply to the court to have my defence stuck out and judgement to be made.

 

The case now has been transferred to the local court and yesterday received a pre court questionaire. On this it states that a) have you followed pre court protocols, have you made an attempt to rectify the claim, and if not, why not.

 

Not sure what to respond as Sainsburys have not complied with my pre court protocols and supplied all the information as requested. The papers arrived by pst yesterday and this needs to be in on Tuesday. Looks like its been delayed) so need to have a quick response. Thanks in advance for any advice.

[roygoodbeat]

Filled in the form and filed draft directions ie: If they return clear copy of application form and reverse side and copy of the default notice, within 14 days, I would then resubmit my defence.

 

Have not heard back from the court but they have again sednt me duplicate sets of info, with an illegible front copy, no reverse, no default notice and no confirmation that they have the original.

[roygoodbeat]

Followed everyones advice. I have now been notified of an Allocation Hearing in 10 days time. Has anyone had experience with this and what should I bring with me???

 

In other words HELP!

[MandM]

Hello Roy.

 

Have another read of the latter stages of costa's thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html where there was an allocation hearing. No doubt they will try and insist that your defence is struck out - as much as you will argue that you require the documents in order to compile your defence!

 

Your only defence at this stage is

Sainsburys have not complied with my pre court protocols and supplied all the information as requested.

which you stated above.

 

Have all your letters/requests/draft directions with you. The best you could hope for at this stage I feel would be for the DJ to allocate to track and to issue directions for the other side to disclose and for you to submit a defence 14 days thereafter.

 

M

[costa12]

Subbing with interest!

[roygoodbeat]

Ok.

 

Still unsure what I need to bring.

 

I have submitted an embarressed defence and filled in an allocation questionaire. Included in this was draft directions. IE: They supply what I ask for within 14 days, I will submit an amended defence within 14 days otherwise I have requested that the case be struck out.

 

They have failed in the pre court protocols, but on their copy of their allocation questionaire they have stated that "There are no pre-action protocols in this matter" and that they have "previuosly sent documents to the defendent in order to resolve this matter".

 

To date they still have not confirmed that they have the original, nor have they sent the reverse side of the agreement or default notice.

 

They have stated in one of their letters the judge wakeman ruling and gone on about if a document is stapled, then it is assumed that the rest would have been attached. In an earlier copy (Still not 100% legible) the copy clearly states terms and conditions overleaf.

 

I have requested documents on an on going basis and they did not respond my pre court protocol request until after I had submitted my embarressed defence.

 

When I started this precedure in April last year (Subject Access Request 1st) they did not repsond within the 40 day period and the Information Commissioner stated that it was unlikely that they complied with the sixth principle of the date protection act.

 

As I have only submitted an embarressed defence and allocation questionaire with draft directions, what can I bring and say based on what I have written hear? Also which laws will I need to point out if I need back up.

[MandM]

Ok.

 

Still unsure what I need to bring.

 

I have submitted an embarressed defence and filled in an allocation questionaire. Included in this was draft directions. IE: They supply what I ask for within 14 days, I will submit an amended defence within 14 days otherwise I have requested that the case be struck out. The court will also have all of this! But you will need to ensure that you have copies of all of this documentation with you - go so far as to have 2 spare copies to hand to the Judge and the other side. It's up to the DJ what happens next - not them (or you). The Judge will be looking for direction no doubt but should have an idea of where he/she is going if they have read your file before hand, although this is by no means a certainty. So be prepared to raise the issues again!!!

 

They have failed in the pre court protocols, but on their copy of their allocation questionaire they have stated that "There are no pre-action protocols in this matter" and that they have "previuosly sent documents to the defendent in order to resolve this matter". Again, you will need to raise this! Have copies of all letters/CPR requests to hand.

 

To date they still have not confirmed that they have the original, nor have they sent the reverse side of the agreement or default notice.

 

They have stated in one of their letters the judge wakeman ruling and gone on about if a document is stapled, then it is assumed that the rest would have been attached. In an earlier copy (Still not 100% legible) the copy clearly states terms and conditions overleaf.

 

I have requested documents on an on going basis and they did not respond my pre court protocol request until after I had submitted my embarressed defence.

 

When I started this precedure in April last year (Subject Access Request 1st) they did not repsond within the 40 day period and the Information Commissioner stated that it was unlikely that they complied with the sixth principle of the date protection act.

 

As I have only submitted an embarressed defence and allocation questionaire with draft directions, what can I bring and say based on what I have written hear? Also which laws will I need to point out if I need back up.

 

The court is looking for the best way forward, how to progress this to the next stage. The AQ you have submitted is needed by the court to help establish this - not to try and apportion blame. And also to try and discount any points that may have now been satisfied. However, the points you raise above are relevant and you need to feel confident that you can raise these in front of the judge for consideration.

 

You are raising issues relating to them frustrating your efforts for the past year. The 'laws' you need to point out will form your defence, at the moment you only need to raise the issues of their non-compliance with your written requests and, therefore, you wish the court to intervene and direct the other side towards correct disclosure in order for you to construct your defence.

 

M

[costa12]

Roy, just a couple of questions to help me understand your case:

 

1. Which AQ did you receive N149 or N150?

 

2. Do you have the Default Notice they sent?

 

Costa

Edited April 8, 2010 by costa12
Typo

[MandM]

Also, on their AQ (which you should have a copy of) how did they answer Section D Case Management Information? I'm assuming this is an N150 AQ by the way.

 

How long have they allowed for this too?

 

M

[roygoodbeat]

At work and haven't the documents to hand.

 

The court has allowed 30 minutes.

 

I do not recall ever receiving a default notice. They have only sent a copy of a template of what it may have looked like.

 

The hearing is on Tuesday 20th, and I unsure what I may be asked. In order to prepare, I need help in the whole process so I have the answers, if asked. Just to ensure that I have the relevent bits, can anyone advise on the following:

 

1) I have only ever been sent the front copy of an application form. The first one referred to terms and conditions overleaf and was illegible in places. In response to the court case, they have sent a copy even more illegible in places.

 

They have also sent two reconstructed credit agreements. The account was taken out in 2004.

 

I have requested this since April 2009 in order to ensure that it conforms to the consumer credit act.

 

Questions

a) What parts of the consumer credit act does it need to contain?

b) If parts are missing, why can a court not enforce it?

c) This was taken out in 2004. Where does it state that an original has to be produced.

d) Why, in my case, can they not use a reconstructed version and whre does it state. From which date can they start using one?

e) In order for a court to enforce an agreement, what do they need to submit. IE: Copy of original with all parts or certified copies.

f) If it is illegible, what part of the law states that it is unenforceable?

 

Any cases to back this up?

 

g) In one of their recent letters, they referred to the Judge Wakeman ruling. How does this relate to my case? They may use this as an excuse to say that the reconstructed copies are all they need to submit??

h) In terms of the civil procedure rules, they have answered in their allocation questionaire that there are no pre protocals required in this case. As they have not responded within the time I originally requested information before I could submit my case, what rules have they broken and what are the consequences?

i) They broke the sixth princpile of the Data Protection Act and did not respond within the 40 day guideline. This highlights their lack of response and disregard for the law. What could I have done in terms of legal terms?

j) I also made a request for my credit agreement under the consumer credit act but they only sent the reconstructed version. I wrote to say that this was not acceeptable and they sent the front copy of the application form. At the time I ask for the reverse side and they stated that they did not have to send this. Anything I can mention here?

 

Finally (Lots of question I know)

 

l) Default notice- I do not recall receiving this. I only have a copy of the template they sent. I know it is down to the judge to decide if it has been sent. Is there anything else I can use in my defence on this??

 

m) I have submitted an embaressed defence. They will look to strike this out. Can anyone come up with any additional legal arguments to cover this?

 

Lots of questions, but I am a little nervous about this. I know some of the answers but I need clarification.

 

THANKS IN ADVANCE!

[costa12]

Roy,

 

I take it the Allocation Hearing Notice was a Form N24. If so there should of been a brief explanation of the decision to hold the hearing.

 

e.g. 'that the court is seeking the parties' consent to allocate the claim to the fast track rather than the multi-track'

 

Was there an explanation and if so can you remember what it said?

 

Costa

Edited April 13, 2010 by costa12
Typo

[MandM]

Hi Roy, will be on this evening.

 

At work and haven't the documents to hand.

 

The court has allowed 30 minutes. OK

 

I do not recall ever receiving a default notice. They have only sent a copy of a template of what it may have looked like. Without the original the DN you don't have much to argue here. Did you ever do a SAR ?

 

The hearing is on Tuesday 20th, and I unsure what I may be asked. In order to prepare, I need help in the whole process so I have the answers, if asked. Just to ensure that I have the relevent bits, can anyone advise on the following:

 

1) I have only ever been sent the front copy of an application form. The first one referred to terms and conditions overleaf and was illegible in places. In response to the court case, they have sent a copy even more illegible in places. Is this in response to your CPR requests or DJs instructions?

 

They have also sent two reconstructed credit agreements. The account was taken out in 2004. Same as above!

 

I have requested this since April 2009 in order to ensure that it conforms to the consumer credit act.

 

Questions

a) What parts of the consumer credit act does it need to contain? Will send you a link this evening.

b) If parts are missing, why can a court not enforce it?

c) This was taken out in 2004. Where does it state that an original has to be produced. It doesn't for a S77/78 request. But it MAY be required in court if the legitimacy of the agreement is in question.

d) Why, in my case, can they not use a reconstructed version and whre does it state. From which date can they start using one? As above - 2 different things.

e) In order for a court to enforce an agreement, what do they need to submit. IE: Copy of original with all parts or certified copies.

f) If it is illegible, what part of the law states that it is unenforceable?

 

Will come back to (e) and (f) later.

 

Any cases to back this up?

 

g) In one of their recent letters, they referred to the Judge Wakeman ruling. How does this relate to my case? They may use this as an excuse to say that the reconstructed copies are all they need to submit?? For S77/78 - try not to get confused between that and where you're at now.

h) In terms of the civil procedure rules, they have answered in their allocation questionaire that there are no pre protocals required in this case. As they have not responded within the time I originally requested information before I could submit my case, what rules have they broken and what are the consequences? They're wrong - you need to raise these arguments before the DJ

i) They broke the sixth princpile of the Data Protection Act and did not respond within the 40 day guideline. This highlights their lack of response and disregard for the law. What could I have done in terms of legal terms? Did you complain to anyone? You could have used the court to force them to produce.

j) I also made a request for my credit agreement under the consumer credit act but they only sent the reconstructed version. I wrote to say that this was not acceeptable and they sent the front copy of the application form. At the time I ask for the reverse side and they stated that they did not have to send this. Anything I can mention here? They should have sent the T&Cs. I assume thats what was on the reverse. If you search on S77/78 requests it willtell you what you SHOULD have been sent.

 

Finally (Lots of question I know)

 

l) Default notice- I do not recall receiving this. I only have a copy of the template they sent. I know it is down to the judge to decide if it has been sent. Is there anything else I can use in my defence on this?? SAR. Check the Comms Log, it should show the date the DN was issued.

 

m) I have submitted an embaressed defence. They will look to strike this out. Can anyone come up with any additional legal arguments to cover this? If they have not fulfilled your CPR requests and any orders by the court, then you will be looking to the court to direct them to do so, defence by you to follow 14 days thereafter.

 

Lots of questions, but I am a little nervous about this. I know some of the answers but I need clarification.

 

THANKS IN ADVANCE!

 

Will catch up with you this evening.

 

M

[roygoodbeat]

Hi

 

I did a subject access request on 27th april 2009. They did not respond within 40 days. Wrote to the information commsioner with proof of postage. They found they it was unlikely that they complied with the 6th principle. Have kept this one as evidence that they have been trying to frustrate proceedings.

 

The illegible copies was in response to my CPR requests. I also requested to see the reverse side of the document, as well as confirmation that they have the original. The reconstructed copies were also sent in responce to this.

 

Prioer to this, they also sent the same copies with the original consumer credit agreement request. The application form was slightly clearer and referred to conditions overleaf.

[wycombe]

Interesting that it can be assumed ordinary mail has arrived when it may have not.

 

Before being hit by illness my business involved sending lots of mail - invariably a small percentage did not reach the intended recipient. Now the law of averages must mean that some court/legal documents must form a proportion of this missing mail. I think that a business who uses the mails uses Royal Mail as an agent to deliver its goods. Therefore if the goods do not turn up the sender is responsible - so how can the Court/Solicitors/Banks be any different. Trading Standards should have the correct terminology.

 

Royal Mail hits the news quite regularly on mail going astray:

 

One postal worker a day is caught stealing from mail | Mail Online

 

and

BBC NEWS | Business | Royal Mail fined for missing post

 

Just two examples after a quick 'Google'

 

I am wondering if it is possible to argue that Royal Mail is not infallible when it comes to delivering the mails!

[MandM]

You could argue that. And I too have post that never reached me. I'm in business and reliant on the post but it has happened MANY times.

 

What Roy can do though is put them to strict proof that it was actually sent. Then the onus is on them to do so. It's hard to prove that you didn't receive something, but not impossible to argue it.

 

If, for instance, you had replied to or acknowledged every letter sent by the OC apart from the DN then you may be able to sway the judges opinion. Unfortunately though, it is just an opinion based on balance of probabilities.

 

In the SAR docs the issuing of a DN should be noted in the Comms Log, if it's not recorded there then how can they say they sent it? It's an easier argument but obviously dependant on whether or not it was actually sent.

[roygoodbeat]

The only thing they have produced is a computer log. It was never sent with my subject access request nor my pre court protocols.

 

They have only sent a template and have stated they do not keep copies. In addition, they have stated that it was sent 1st class mail and has therefore been deemed to have been issued.

 

No proof of postage sent.

 

Its down to them to prove it and for the court to decide. For such an important document, I find it hard to believe that they do not keep copies.

 

The other main part is the consumer credit agreement that I need to win.

[MandM]

And one further point Roy - has this agreement ever been varied? Has the APR or charges remained the same since you entered the agreement?