Lloyds TSB Card Court papers. Help Please,

[lilly white]

Ok are they the same as you have on your statments. please check this.

 

Are the conditions of the same date ie are they saying that they would be on the back of the application

[Guest]

Re your dn - does it contain a statement as shown in schedule 2, para 10a of the 1983 regulations?

[hitchy1]

I dont have the back of the application and the generic terms are over 6 pages. It is very difficult to see if they are the same, it states that these terms apply to all card types.

[hitchy1]

I dont know as i dont have a clue what schedule 2 para 10a is. Sorry if i sound thick but i'm getting more baffled by the minute.

[lilly white]

Ok are they the same date.as the application

 

Are the terms on the docs or in the docs,

[hitchy1]

There are actually 2 documents. One states that these are the conditions of an agreement between us. It has 7 pages of terms and a cancellation notice. It has my name and address but no signatures or date. The other document states that this is a copy of your agreement and has 6 pages again with my details but no signatures and effective from 1st October 2002 which is very strange as the date i signed the application form is 11.11.2002.

[lilly white]

ok.

 

We are looking for the conditions Overleaf.

 

It may be that they sent you a copy of the full terms enclosed for you to keep,

 

In your defence if you are going to defend.

 

Start with this stolen from Paul walton edit to suit.

 

 

 

 

Defence

 

 

Northampton (CCBC) County Court

Claim no.

 

Claimant: CL Finance Limited Defendant:

 

 

1 I, make this statement as my defence to the Claimant’s vague particulars of claim dated 27 October 2008. The Defendant respectfully seeks the courts permission upon clarification of the claimant’s case and disclosure of the necessary documents to amend this defence if required.

 

2 On the 19th May 2005, the Defendant signed an Application Form for a credit card facility to be provided by Claimant. (Exhibit 1)

 

3 Provision of this credit facility was dependant upon a satisfactory credit record being obtained by the Claimant from one or more Credit Reference Agencies, and upon other lending decision criteria. The Application Form was therefore a pre-contractual agreement to enter into a prospective full-regulated credit agreement with the Claimant in the event that the Defendant’s application was successful.

 

4 The Application Form contained a clause, which included the following statement -

'Please issue me with an additional Barclaycard for use on the account(s) to which this application relates. I accept to be bound by the Barclaycard Conditions of use'. As such, the application purports to bind the Defendant to the terms and conditions of any prospective credit agreement with the Claimant.

 

5 Section 59 (1) of the Consumer Credit Act 1974 states that 'an agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.’ The Defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the Defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

 

6 The Defendant’s application for credit was successful and a line of credit was provided. However, no subsequent regulated credit agreement, fully setting out the proposed terms and conditions and containing all the terms, information and statutory statements as prescribed by the Consumer Credit Act, was ever provided by the Claimant for the Defendant to sign and agree to. The credit facility was therefore given with no agreement made for repayment.

 

7 I refer in this section to the alleged agreement exhibit A.

 

8 In respect of that which is denied, if the court should decide that the said agreement is not void by virtue of s59 (1):

 

9 it is respectfully submitted that the agreement is improperly executed because it is not in the prescribed format set out under The Consumer Credit (Agreements) Regulations 1983. The agreement was entered into before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

 

10 Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since the document does not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61 (1)(a) and s127 (3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

 

11 Furthermore, the Defendant disputes the balance of the account, as during the period in which the account was operating The Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest on the charges once applied. The Defendant understands that the Claimant will contend that the charges were debited in accordance with the terms of the contract between the Claimant and the Defendant and accordingly puts the Claimant to strict proof of such terms existence. The Defendant contends:

 

a) No such contractual provision exists to allow Claimant to levy such charges;

 

b) Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach and are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Claimant, which exercises the contractual term in respect of such charges with a view to profit; and

 

c) Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful.

 

d) The Defendant has not been furnished with the requisite default notice in order for the Claimant to terminate the alleged agreement.

 

 

e) And in any event, the Defendant avers that any Default or Termination Notice sent would have included penalty charges, invalidating that Notice as per Woodchester v lease.

 

f) The Claimant contends that they have a claim to monies under an agreement between the defendant and the original creditor, the defendant seeks clarification of this fact and proof of legal assignment as required by Law of Property Act 1925

 

 

12 Accordingly, the Defendant puts the Claimant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

 

13 Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;

 

a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or

b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 10(e) of this

Statement.

 

14 The claimant respectfully requests that the court use its powers under section 141 of the consumer credit act to determine the rights of the parties.

 

 

15 For the reasons set out in this Defence, the Defendant’s position is that the Claimant’s Claim has no real prospect of success and discloses no reasonable grounds for it to be brought. The Defendant reserves the right to seek costs against the Claimant on the basis that such conduct is unreasonable and/or vexatious in bringing and/or pursuing this claim should the matter proceed to a full assessment.

 

 

 

 

 

[lilly white]

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

 

 

Also have a read

 

lilly

[Guest]

imo, wef oct 200 8 dn's re s87 must contain a statement in the form of para 10a of schedule 2

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

[Guest]

hello guests! reveal yourselves, friend or foe?

[hitchy1]

The info is really good and it gives me confidence. I'm worried about copying other peoples defences and trying to adapt.

The way i see it is that the agreement is nothing more than an application form and they dont seem to be submitting it as evidence. The so called terms are dated prior to the application form being signed.The default notice is not compliant if i understand the responses on here.

Is it worth consulting a solicitor to defend or prepare the defence?

[Guest]

bump

[Guest]

hitchy

 

any developments? did you decide to consult a solicitor?

[hitchy1]

I am busy preparing a defence which i will post on here for comment in next few days.

I have a solicitor friend who has said they will represent me in court if it goes that far as they are 99% confidant of a win. (not for free unfortunately)

Will keep you posted.

[Guest]

sounds good! if it goes to ct and you win (as seems v likely according to your sol), then your sol will get their costs and can reimburse you ! any chance they can do a 'no win no fee' for you?

i bumped your thread, but noone looked in! i've found some further info on cag re invalid dn defence if you need.

[hitchy1]

Would be grateful if you good people would read through what i have prepared and advise any amendments. Thanks in advance.

 

Defence

 

 

1. I am the defendant in this action and make the following statement as my defence to the claim made by Lloyds TSB Bank Plc.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. I am embarrassed at pleading to the particulars as they fail to comply with civil procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

 

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

 

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974

 

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit agreement and the Default notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence

 

 

7. Consequently due to the claimants failure to supply the documents required under the Civil procedure rules and the fact that the claimant has failed to sufficiently particularise the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof

 

8. I will now look at the important issues relating to this case which must be brought to the courts attention

 

 

The Request for Disclosure

 

9. Further to the case. On 3rd August 2009 I requested the disclosure of information pursuant to the civil procedure rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim.

 

10. To Date the claimant has ignored my request under the CPR to provide a legible copy of any agreement and I have not received any such documentation requested. The claimant has provided an illegible copy of an application form dated 18th Nov 2002 accompanied by a copy of an unsigned document described as my agreement. The date on this document is 1st October 2002.

11. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists

 

 

 

 

The Credit Agreement

 

 

12. The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

13. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

14. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

 

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

1. Number of repayments

 

2. Amount of repayments

 

3. Frequency and timing of repayments

 

4. Dates of repayments

 

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

15. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

16. Notwithstanding point 15, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

17. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer(whether or not in the prescribed manner).

18. The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

19. With regards to the Authority cited in point 18, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

 

20. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers

 

 

The Default Notice

 

21. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

22. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

23. Notwithstanding point 22, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (amendment) Regulations 2004 (SI 2004/3237)

 

24. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Conclusion

 

25. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

 

26. I further ask the court consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly

 

27. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

 

28. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in points above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

29. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

[Ron 2015]

Hi Hitchy

 

Thay have come after you quite quickly..... Only a few months since you last paid.

 

I don't know if its relevant but all the Paticulars of claim i have seen on CAG have a date on them. ie Credit card issued on the XX/XX/XXXX.

 

Yours is worded a bit strangley as well , credit token? Again all the others I have seen say credit card or loan.

 

Have you asked lloyds for a subject access request? if not , do it straight away. Copy the letter from cag and send it off with a postal order for £10. It may well give some vital info.

 

Cheers Ron

[hitchy1]

Ron

 

If you look at paragraph 9 and 10 in my proposed defence, i did the SAR last August. Thats when they sent me the application forms

with a set of T and C's which stated this was a copy of my agreement. It had my particulars on but no signatures. It was at that time i noticed that the date on the application form was November 2002, yet my so called agreement was October 2002. The inference is that i had an agreement with them before i even applied.

Not only do i believe the documents to be falsified they were completely uncreased which considering they go back to 2002 is unusual to say the least.

Thanks to everyone for your suggestions, i will complete and post my defence over the weekend. If Lloyds still want to go to court i will be there with a solicitor.

[Ron 2015]

Hi Hitchy.

 

I must have missed paragraphs 9 & 10. So the dates seem to be a bit mixed up.

 

I would get a copy of my credit refence from Experian and see what date it says the card was opened. If this says XX Oct 2002, then bingo. They opened the account before the agreement was ever produced.

 

I know it seems obvious , but make sure any solicitor you take knows the consumer credit area of law . if he is not familiar then ditch him and find someone who knows his stuff and is up todate with recent developements.

 

IMHO the poc is still very vague , I have seen quite a few and they all have a date when the agreement was alleged to have begun. Maybe Lloyds dont actually know and this is why they have missed it out.

 

I would ask for a more detailed poc and ask for a date when the alleged debt was alleged to have been approved.

 

I am not an expert , I am learning as I go along. Lots of the succesful threads I have read recently all seem to have a common point. The defendant has asked for more information on many occasions and the claimant has not responded.

 

I dont think the Judges like this , so if there is something missing , pester Lloyds solicitors into providing it. And if they dont provided it , then report to the court/judge. Make sure they know you have requested something 4 times and still no reply.

 

If I were a Judge I would throw a case out on this alone , as its rude to not reply to reasonable requests.

 

Fingers crossed Lloyds will see sense and withdraw.( Go for cost if they do!)

 

Cheers Ron

[hitchy1]

I have received the following response to my defence from SCS. Also included is a load of payment info and unsigned documentation. Would be grateful for any advice on how to respond.

 

 

[Ron 2015]

Hi

 

Did you get anywhere with the dates ?

 

Did they send default and termination notices?

 

They say they have sent you re constituted agreements. These have to be exactly the same as the agreements in 2002.

 

If you can find a copy of a 2002 agreement on cag somewhere and compare what they have sent you , if its not the same T&C's it could provide a line of defence that it is not a true copy.

 

What did you say in your defence ?

 

Cheers Ron

[hitchy1]

My defence is stated in one of the earlier threads. The reconstituted agreements are different. There is nothing with a signature, and they have admitted no record of a default notice as per the letter.

Not sure what happens now, they are suggesting i withdraw but that is not happening. Presumably i will get a court date, if that happens i will instruct a solicitor to defend for me.

Anyone suggest that i write back to them or should i just sit and wait?

[Artie44]

This would indicate that the default notice was sent by recorded or signed-for delivery. Therefore they would have a record of posting from which they can prove delivery.

[freethemice]

I think all you can do is ask and ask again for the information you need to defend your case. Send recorded and keep records of everything.

 

Quick notes I did make on thier response:

While

While Wakeman did allow reconstituted agreements in a case where a claims company took the credit card court to court solely on the issue of failure to comply with a s78 request. You are the defendant here in a case where the credit card company seeks the protection of the court by an enforcement order. It is not unreasonable for you to demand production of the one piece of paper that would prove their case - the original credit agreement.

In the Wakeman case the question of honesty was also raised. If they do not have a copy of the original they do have to admit this.

While the issuing of proceedings may be a step taken with a view to enforcement. For a judge to be able to grant that enforcement s78 compliance would have to be shown.

No default notice available - then how do you expect me to defend when I never receaved this document. Should I and the court be expected to take your word that you wouldn't keep proof of a document which you know if legally vital to be able to terminate an account when you go to such great lenghs to maintain copies of statements and even customer phone calls or should we infer that you simply deny me sight of this document because you know it was either never sent or was invalid.

 

Just something to chew on = sure others will be along soon.

[freethemice]

More to the point if they don't keep a copy of the default notice why would they keep a copy of a returned default notice?