Court Defence - Help Needed

[mcflipflop]

Hi,

I've been following the advice from Andy in my other thread for the court papers I've received from Lloyds TSB, but am getting a bit out of my depth with this one and as it has moved in a different direction I've started a new thred for this one.

 

I filed a holding defence and requested copies of the credit agreement and default notice for a personal loan. They have sent me a copy of the signed credit agreement which looks authentic as well as statements for the loan. They haven't provided a copy of the default notice as apparently it was not retained by the bank, however they write to confirm that "their records show it was sent and would have contained the following information: name and address, account no. outstanding balance and arrears. "They go on to say "It is averred that notwithstanding that postage alone constitutes service, by reason of section 7 of the Interpretation Act 1978 in the absence of proof to the contrary the default notice is in any event deemed to have been delivered. There is no record of the DN being returned unserved by the post office."

 

Basically they have given me till 11th Dec to either file a defence or return n9a, so I'm running out of time and I'm not really sure what my next step should be. Anyone have some suggestions? Any help much appreciated

[Undercover-Elsa]

Hi Mcflipflop,

Did you keep a copy of the original default notice they sent you?

Could be crucial. Also, did you submit a full Subject Access Request to get ALL the information they hold on you?

Elsa x

[mcflipflop]

hi Elsa

thanks for response. I can't find the original DN, but I doubt I would have thrown it out, so I'll have a thorough look tomorrow and hopefully it will turn up. I haven't sent out a SAR as I was expecting the original CFR request to produce the paperwork. is it worth sending one now bearing in mind the timescales?

[Undercover-Elsa]

Hi,

It's seriously worth finding the original, as if it wasn't worded correctly / didn't allow you the required 14 days to remedy, then they are not entitled to proceed to the next step and terminate the agreement and/or claim the full balance. Ideally you need the envelope it came in too as proof of posting type but not essential. If it wasn't issued correctly they are in breach of contract and can only claim the arrears up to time of issue.

We are finding that they often get it wrong. Also they do not normally keep copies, just note it as sent on your account communications log so they may not even know if it's wrong or not.

A SAR would show only whether they noted a DN being issued, and the date.

Still, it could be useful if there were other discrepancies such as unfair charges, but I appreciate that time is short.

Keep digging and if you find it post it up with your details removed. If it's faulty I'll get some others to look in and advise too.

Meanwhile this will bump your thread up for the morning shift.

Kind regards,

Elsa x

[mcflipflop]

Well I've managed to find the original DN dated 21st July and giving me until 10th August to pay the arrears. Not sure if this is going to help my case as it looks OK, but I'm going to post it up once I figure out how, so hopefully someone can pick holes in it.

[mcflipflop]

This is the DN

Lloyds DN.pdf

[mcflipflop]

I've also now attached the copy of the credit agreement they sent me. Not sure if this will help, but I need to file my defence tomorrow and unfortunately it's looking a bit empty handed. Anyone have any words of encouragement? Thanks.

Lloyds Credit Agreement.pdf

[Undercover-Elsa]

hi Mcflipflop,

Unfortunately both the DN and agreement look compliant to me.

I'll flag the thread for others to look too though, don't just take my word for it.

Do you still have the option of arranging the £50 month payment out of court, mentioned on your other thread?

Elsa x

[mcflipflop]

unfortunately that was for another debt with a different lender so I don't think I have that option. in this case as they've gone for court action. Not really sure what my best option is now as I could definitely do without a ccj.

[slick132]

Hi McFF,

 

Responding to Elsa's reported thread.

 

The Agreement looks sound to me.

 

Are there any penalty charges on the a/c which you can reclaim as a counterclaim to their action against you.

 

Also, if the DN total included any penalty charges, this alone would make the DN inaccurate, although this may not help your case overall.

 

Get the defence in and then write seeking the info you need from the Claimant, using CPR. See the Stickies for help with this.

[FightToTheEnd]

if the DN was sent 2nd class on 21 July would it be deemed to be served on Monday 27th (4 working days?)

 

If so, doesn't allow 14 full days to remedy? (although it does say by the 10th rather than before which may suggest remedy on the 10th would be acceptable)?

[mcflipflop]

Thanks FTTE so should I keep defending this do you think or is it best to accept defeat and offer a monthly payment? Need to decide today. Thanks

[Undercover-Elsa]

Hi Mcflipflop,

I personally can't see on what basis you'd defend, now that they've provided a valid CCA.

FTTE has a point on dates but I think a judge would find it de minimus if there are no other discrepancies. My advice would therefore be to try and negotiate a payment plan if they'll withdraw the claim.

BUT - that's only my opinion and as it's urgent I've asked others more knowledgeable to take a look.

Take care,

Elsa x

[PGH7447]

sorry but their case looks water tight, have you tried to negotiate a DMP with the people yet, it may not be too late to try

 

failing that if you defend hope you would need to get a symapthetic judge, also by offering a dmp, if they refuse then that would go in your favour

[mcflipflop]

thanks guys for this. How would I go about doing a dmp as I have to either complete my defence or complete the n9a form today. If I dont' do either will this result in a judgement by default? As they don't have a copy of the DN could I submit my defence based on the timings as FTTE has said and then write to them offering an out of court monthly payment. Not really sure if this is how it works so any advice would be much appreciated. Cheers

[PGH7447]

if you think they have added charges enter a partial defence against the sum they have entered, then if you have not already done so send the sol a cpr31 and follow up with an offer to pay via a dmp

[Undercover-Elsa]

Hi mcflipflop,

Also if you let them know you have consulted a Debt Management Company they have, by law, to hold action for 30 days. I don't think this applies to an existing summons though, but I may be wrong. You need to contact either Payplan or CCCS today, they will advise. They will negotiate on your behalf and try to get interest frozen too if possible.

Once you've contacted them, let the bank know immediately and ask that they hold action till your plan is set up.

Send the letter recorded, as proof. You may also want to email it through as well, for speed and backup. If you google REWMAIL or READNOTIFY they do a registered email service which gives proof of receipt and contents.

Hope this helps,

regards,

Elsa x

[mcflipflop]

Thanks PGH. I don't think there are any charges as it's a personal loan. They have sent me a copy of statements with the interest being added, but I think this is just the normal loan interest. I have already sent a CFR31 request and asked for a copy of the CCa which they sent, the DN which they don't have and a letter referred to in the particulars of claim which they have completely ignored. Not sure if any of this helps. If I ring them up and offer a monthly figure will this stop the court action (assuming they accept it) or do I need to still reply to the court with something. Feeling a bit out of my depth now so any suggestions much appreciated, thanks.

[mcflipflop]

Thanks Elsa. I'll give this a try too.

[PGH7447]

you would still need to respond to the court

[mcflipflop]

I've just logged on to the moneyclaim website to look at the possible options for online submission and I don't seem to have any. Does this mean I have to submit by post now? If so I've already missed the deadline? There's nothing on the website under my claim ref saying any action is needed by today, just copies of my original online defence.The 11th is only mentioned in the letter the bank sols have written to me when they sent enclosing the CCA etc. Anyone know how this works?

[PGH7447]

if you filed a defence already then the next step is for the court to issue an AQ i belive, this is done by post

[PGH7447]

just read your other thread but that confused me a bit more, so to set it straight

 

you recieved papers for this loan

you acknowldged and filed a holding defence

they responded with a letter stating what?

[PGH7447]

OK I think I get it now

 

You filed a partial defence, so their sols are asking for a full defence from you or you fill in the N9a which is an admission.

 

this has nothing to do with the court it is them trying to pre-empt

 

so cut to the chase and write to the OC with a payment offer

 

what you would be looking for from the court is an AQ which would be sent by post from your local court

[mcflipflop]

Hi PGH, yes and I sent the CFR request letter. They replied with a letter enclosing copy of CCA and statements of my account. The letter said they did not have a copy of the DN, but as their records show it was posted this was good enough. They said I have until 11th Dec to file a defence with the court or return n9a form of admission to their office with an offer of payment. If this is not done then an application for Judgement will be made by default