Creation/Irwin 1a small claim Summons old BOS then GE Money Joint Loan *WON*

[seriously fed up]

Missed this LTB - yes, I agree, I think defaults are going to become a more important weapon against them. Particularly as the exercise of defaults is in the control of often poorly trained and not always hellishly well paid drones. Termination is also going to be an issue - particularly re Egg who of course terminated a whole load of people in 2008 who they decided they didnt like any more. Problem is that often these people were "innocent" - ie not behind with payments or anything so hadnt done anything non-contractual. Egg (Citi) just didnt make enough money out of them.

One argument against this is that Egg reserve the right to terminate the contract, but the CCA is also very clear that to be able to do this and stay on the right side of statutory law they should have issued a default notice that hasnt been remedied. If you are up to date with payments, what is the basis of the default notice?

 

I think it was in the Carey judgement where the judge concluded that "it was a matter of substance and not of form" (with regards to the signature being on the same page as the prescribed terms). In other words the banks would have to show that the signature page was part of the same document that was the agreement. As you've said though often the banks just kept the one page with the signature and binned the rest.

 

Trouble with getting a band of people together is that most people wouldn't honestly being able to tell you if they received a copy of their agreement or not, bearing in mind that they may have had the card for years. This would be further compounded by the fact that the agreements would have been taken out over periods of many years with various different companies. The banks could argue that mistakes were made very occasionally but procedures were corrected (or in their words perfected) over time.

 

I would have to take the view that its probably best for litigants to concentrate their efforts on finding precedents to form their cases. This is obviously easier said than done sometimes, especially with SOME judges seemingly giving the banks the green light to do whatever they want.

 

Personally I've got one eye on the whole defaults issue (e.g brandon case). I do remember seeing a thread where I think PT had mentioned there being a supreme court ruling that had addressed the defaults issue (or one of the issues). I haven't been able to find anything so far but that could potentially be very important given the current situation.

[LOVETHEBANKS]

Hello SFU

 

In the case of cards being withdrawn in non-default cases (e.g Egg), I'm not sure that their actually breaching the CCA.

This is because the agreements do not have specified periods and because the creditor is allowed to restrict the right to draw upon credit (look at section 98 (2)(1)(a) and 98 (4) of the CCA 1974).

 

In the case of default cases it gets a bit more complex (for me anyway) in that if a creditor terminates on the back of an invalid default notice, is that termination invalid (as the creditor had no right to terminate) and the agreement continues or is it the case that the creditor has unlawfully broken the agreement?

[24233513afw]

Hi SFu and everyone else

 

Still no sign of SAR from OC the 40 day limit has passed on 4th Sept. I have now sent a Letter Before Action to OC stating I am going to report to ICO, however this doesn't help with the defence as I need these documents to construct a defence and counterclaim for charges.

 

Any pointers on what to do now......due in court 22nd September (14 Days time) but still no further forward with the defence and counterclaim.

AFW

[seriously fed up]

OK, its probably time for another IA to go in. This might be worded as follows:

 

SHERIFFDOM OF wherever you are

SPECIFICATION OF DOCUMENTS

in respect of which a Commission and Diligence is sought by the defender

in causa

THEM

PURSUER

against

YOU

DEFENDER

 

 

1. the defender made a Subject Access Request of the Pursuers on (on whenever this was) by authority of the Data Protection Act 1998. The forty days allowed by the Act for a response expired on 4th September. Thus the defender is forced to seek the authority of the court to order the Pursuers to produce the following documents which are required for preparation of a defence against the Pursuer's Particulars of Claim.
   
   • the consumer credit act 1974 agreement on which which the pursuers will base their case, and which they averred would be produced in their original particulars of claim. This document is required by the defender for the purpose of preparing a defined defence against their claim
     
   • all statements produced for the disputed account in order to provide evidence required by the defender for preparation of a counter-claim against the pursuers for repayment of unlawful fees
     
   • all letters and communications written by the pursuer to the defender during the currency of the account, to provide evidence that the pursuers have not issued a default notice prior to termination as required by the Consumer Credit Act 1974 s87 (1).
     

 

[*]Failing principals, drafts, copies or duplicates of the above or any of them.

If/when they dont come up with the goods then we can go for dismissal.

Edited September 8, 2010 by seriously fed up

[24233513afw]

Hi SFU

Thanks for being so quick to reply. Hope you are well. Could you tell I am getting anxious…..

Was just about to draft up the IA you sent when I noticed this part:

1. The consumer Credit agreement - can I state that the consumer credit act 1974 agreement on which which the pursuers will base their case, and which they averred would be produced in their original particulars of claim. (As they don’t mention the CCA in their statement of claim they only mention the default notice)

 

 

I was reading through the Government legislation sites and found the amended Act of Sederunt which stated this:

 

(5) For paragraph 5(2) (small claim rules) substitute—

“(2) After rule 4.2 (statement of claim) insert—

 

“Actions relating to regulated agreements

 

4.2A. In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974 the statement of claim shall include an averment that such an agreement exists and details of the agreement.”.”. (Dont know where to find rest of this)

Does this mean that they should have stated in their Statement of Claim that the CCA does exist and will be produced.

Cheers

[seriously fed up]

I would have said so, yes. Did they not? If they didnt you MIGHT want to try to get the case dismissed on the grounds that their POC are incompetent. That would be another IA. Whether it would succeed or not I am not sure (meaning I am not sure, not that it probably wouldnt). Really it should get booted out if they havent averred -as you quite correctly point out its in the most recent ammendment to the Act of Sederunt - in other words its in the rules of the game. My concern would be that a Sheriff might just consider this doesnt really matter (and in practice he probably would be right as what they do is put a case into court, and aver that the agreement exists and that it was delivered by Lord Lucan riding Shergar. Two outcomes - the defender rolls over, as in 90% of cases - job done. Or the defender puts up a bit of a fight that might mean a court hearing so at the last minute they withdraw.)

[24233513afw]

I would have said so, yes. Did they not? If they didnt you MIGHT want to try to get the case dismissed on the grounds that their POC are incompetent. That would be another IA. Whether it would succeed or not I am not sure (meaning I am not sure, not that it probably wouldnt). Really it should get booted out if they havent averred -as you quite correctly point out its in the most recent ammendment to the Act of Sederunt - in other words its in the rules of the game. My concern would be that a Sheriff might just consider this doesnt really matter (and in practice he probably would be right as what they do is put a case into court, and aver that the agreement exists and that it was delivered by Lord Lucan riding Shergar. Two outcomes - the defender rolls over, as in 90% of cases - job done. Or the defender puts up a bit of a fight that might mean a court hearing so at the last minute they withdraw.)

 

Hi SFU

 

'Oh Boy' now things are starting to get complicated, I realise what you are saying ...you would think as the court is meant to be a court of law they should abide by the rules but known my luck I shall get the same sheriff as last time (Is that the way the system works or could it be a different sheriff) and boy....did he ask some questions not only too me but to other people who were up in front of him it was like being interrogated by the gestapo. Not sure what to do now....what would you do if you were in my shoes. Could I still put an IA in for the CCA, Default Notice and Statements or do you think this would be thrown out to the lions. Or go down the route of the IA as you have state that I have applied for SAR still not got it so I feel I am at a disadvantage to this case as I cannot construct a defence without the SAR documents and maybe add in a bit regarding the Statement of Claim not having any mention of the CCA.

[seriously fed up]

I dont really see the difference. I would

 

1. put in an IA asking that their statement of claim be dismissed as "incompetent" as they have not averred that the agreement exists as required by the Act of Sederunt. The downside of this is that if is dismissed they can correct it and come back again - but perhaps, as you seem to know your way about - they wont. Its worth a punt imo
   
2. put in ANOTHER IA - make sure its heard after the first - seeking the documents specified. Refer to the SAR, but be clear its the documents you want (with stated reasons why/what for) and not the court to enforce the SAR. This would be a back up in case the first one gets knocked back.
   

You wont necessarily get the same Sheriff - especially in the large Sheriff Court that you would be going to (expect they take it in turns). And dont be afraid to

 

• make sure he's aware that he's dealing with a litigant in person and asu such, if justice is to be done and seen to be done then you require a bit more consideration than one of the other guys who have dressed up for the day (ie the other lawyers)
  
• make clear to him that you are one of the people who pays his (or her?) wages and that you would like treated with the same respect that you are showing him/her - and for a start they can give up the legal jargon
  

Remember under the fancy dress they are only people. If you are well prepared then you wont have anything to worry about.

[24233513afw]

Thanks SFU I shall go for the IA asking for dismissal is there any chance you help me word this.

 

Then you say 2. Put in another IA (Will this go in at the sametime or later.

 

I take it when I put the first IA (Re dismissal) I shall get another IA Hearing date, would the second IA go in at this stage or before. If they go into together how would I ensure that the dismissal IA was heard first ?

Will need help drafting these please

[seriously fed up]

Well my 20.57 post would deal with recovery of the documents. However there is another route that I have come across.

At the Hearing, the Sheriff, faced with your defence that the other side lack the necessary legal papers to enforce their claim (or to allow the court to do this for them) should set a date for another hearing called a "proof". What Chapter 17 of the Act of Sederunt says is

" Productions and documents

 

Lodging of productions

 

17.1.—(1) A party who intends to rely at a proof upon any documents or articles in his possession, which are reasonably capable of being lodged with the court, must–

(a) lodge them with the sheriff clerk together with a list detailing the items no later than 14 days before the proof; and

(b) at the same time send a copy of the list to the other party.

(2) The documents referred to in paragraph (1) include any affidavit or other written statement admissible under section 2(1) of the Civil Evidence (Scotland) Act 1988(20).

(3) A party lodging a document under this rule must send a copy of it to every other party, unless it is not practicable to do so.

(4) Subject to paragraph (5), only documents or articles produced–

(a) in accordance with paragraph (1) (and, if it was a document to which rule 8.5(1) applies, was on the list lodged in accordance with that rule);

(b) at a hearing under rule 8.2; or

© under rule 18.2(2) or (3),

may be used or put in evidence.

(5) Documents other than those mentioned in paragraph (4) may be used or put in evidence only with the–

(a) consent of the parties; or

(b) permission of the sheriff on cause shown, and on such terms as to expenses or otherwise as to him seem proper."

What all that means is that 14 days before the proof they have to put all the documents they will rely on in court, and what is more, they can only deviate from those documents (eg put in something else/different) if you and the court agree. So the Sheriff, faced with an IA like this, may take the view that when/if the case goes to proof you will at least get item 1 (the agreement) - but what you wont necessarily get, and it would be worth making this point, would be the statements (though arguably they are needed to show what is owed) and perhaps not the default notice.

 

Dont know if that helps, but I would be inclined to get another IA in, and have a long moan at the Court at the failure of the other side to follow legal requirements. I mean if you put an IA in tomorrow, it wouldnt be heard till the 16th - so, if they havent come up with the good by then - the 40 days has become 52. They will plead - if they turn up - busy etc, but its a legal requirement and you are being disadvantaged by their failure to comply. As Billy Joel memorably says at the end of "Twelve Gardens" - "dont take no **** from nobody".

 

Re the dismissal application, having looked at it further, I might leave that one. The Act of Sederunt says at Chapater 9 that "Purpose of the Hearing

9.2. (1) If, at the Hearing, the sheriff is satisfied that the claim is incompetent or that there is a patent defect of jurisdiction, he must grant decree of dismissal in favour of the defender or, if appropriate, transfer the claim in terms of rule 15.1(2)." so I suspect that is going to be the first element of your defence - before we even get to their dodgy paperwork. You could put in an IA, but he might just give them time to adjust their claim. If you wait to the hearing, then it seems clear there are defects in their claim - just depends on whether the Sheriff comes to the view that it makes the claim incompetent. Even if he doesnt, unless they have something up their sleeve you will get them on the lack of a sig and prescribed terms.

 

So, if you are happy with the IA as writ above, lets get that in and see what that does for them

[seriously fed up]

that is a really good question. To reply to your last pm I had to clear my mail as well and the only way I could find to do it was to delete the lot.

Not a lot of help to you, but when you find out, let me know.

[24233513afw]

Hi SFU

 

I don't feel so stupid now......Come on Site Team let us into the secret.

 

SFU couldn't get to court today I have reformated the IA I am trying to send it to you by PM for you to have a look at before I take it up to court tomorrow. I don't want to spoil any of your hard work so I would fel better if you can have a look for me....Once I find out how to delete even 1 message tonight just so I can send youa PM.

 

I hope to get the PM to you tonight as I really want to hand this in tomorrow before the courts close.

 

Once this case is over with I shall post everything that SFU has guided me through on here for all to see so that it may help somebody else steer the path as I couldn't have got this far if it were not for SFU.

 

Can't imagine why you are not on the site team SFU your a minefiled of information.

Cheers

AFW

[IdaInFife]

when you go into your notifications there should be tick boxes on the right hand side to each PM for you to check and then click delete - there are some minor problems when using IE at the momnet on CAG but all is working with firefox

[24233513afw]

Hi SFU

 

Daughter took IA up to court today, she returned with a letter for a Incidental Hearing on 22 Sept but this is the same date for my continued hearing, any idea if this is correct. Can both hearings be on the same day, will they be at the same time.

 

Now again a waiting game, the Sheriff did say at last hearing I had to have a defence in before 22nd Sept, BUT how can a defence be presented when we dont have the documents to base a defence on!!!!!.

 

So does this mean I turn up in court on 22nd and again tell the sheriff cannot construct a defence without the documents.

 

Chers

AFW

 

Thanks Ida, I thought I was just really stupid, until SFU said he had the same prob, then I didny feel as bad. I am told we are using IE therefore this could be the problem. I have been having major problems with the formatting, any idea when this will be fixed.

 

Cheers

AFW

 

Hi SFU

 

Surprise, Surprise, guess what came this morning, my SAR after I wrote on Tuesday to say I was contacting ICO. It was posted yesterday same day I put in the IA to the court. Sent by Recorded delivery.

 

They have sent me:

 

1. A true copy of the agreement, including T & C's, financial, and related particulars and statutory notices. (Exact same Blank copy that I have received from OC and Solicitors) This was copied onto A3 size paper.

 

2. T & C's relating to the account (For accounts opened after 2005 according to them my account was opened in October 2002)

 

3. Notice of Variation (Can’t read it, will have to by a magnifying glass)

 

4. Copies of available statements (Can now calculate charges, do I include their interest rate or 8%)

 

5. Copies of letters held on the account (including the one stating they know they cat enforce this account) (Including the letter stating they cannot enforce this account)

 

6. Copies of memos on the account. (This is a spread sheet detailing a lot of coded details noticed there is a item on here detailing CHARGE OFF 13/09/2007 this is when they registered a default on my credit file)

 

7. Template of default notice (This does not match the default notice I received from them in May 2010, it was slightly different – it could be a copy of the default notice that I never received in Sept 2007 when they registered the default on my credit file).

 

Will need to go through the statements that they have sent and calculate the charges, am I allowed to add interest onto these charges as they would have been charging me interest on these charges.

 

Would I do the full amount of charges or 5 years worth.

 

I take it now the courts will expect there defence in before 22nd as that is what the sheriff stipulated in the last hearing as he was only going to give me a two continuation but due to my persona; circumstances he allowed the 4 weeks. Unfortunately my husband is still very ill and awaiting more test and results but of course this wont be any concern for the solicitors ..what do they care.

 

Any idea what I do about the IA I have just put in yesterday. Do I cancel or what…..and once more SFU thank you for all your help and your continued support in this case.

 

Cheers

AFW

[seriously fed up]

OK - ignore PM - hadnt read this before sending.

Charges calculator attached - this one will work.

Some heavy duty stuff at work to do by Tuesday, so will get to your defence after that.

Fairly simple anyhow

 

1. breach of s61 so court cant make order
   
2. your counterclaim - lets see how that relates to what they are claiming
   
3. DN looks dodgy - not the original. Is there ANY indication that this was ever sent (eg in 5 or 6 is there an entry for a DN with a date - if not its just an assertion.) Question for Ida - or someone else here - does chargeoff not mean they have terminated the account? I am not sure about this, but if it does mean that they terminated the account on the same day as they sent the DN. Tut tut.
   
4. they have already indicated that they recognise the account isnt enforceable - on the other hand, they can change their mind.
   

bankchargescalculator2-1.xls

[24233513afw]

 

Hi SFU

 

Many thanks for your reply, I do appreciate that you have other things to attend to, I hope you don't think I am being to demanding on your time, I am just a little anxious.

 

1. Counterclaim for 5 years worth charges amounts to £400.00 + £126.44 = £526.44 (still couldn't use the calculator found another on Money Saving forum.

 

2.. They didn't send me a DN at Charge off date Sept 2007. They only recorded a Default on my Credit File for that same date. I didn't receive a DN until 14th May 2010 which was dated 9th May 2010 so they obviously recorded a default that I never received and sent a DN out this year, which is different to the one I received.

3. No entry in 5 or 6 (Memos or Letters) for DN or date.

 

Hope Ida or someone can confirm what Charge Off means…..

Cheers

AFW

[seriously fed up]

Re what they say you owe them, what sort of % are the fees you would look to reclaim?

Problem with alleging that they sent a DN is that you say they didnt, and they reply "oh yes we did". Hard to prove they didnt - but easier if their computer system cant show a record of sending a DN.

However, it really shouldnt get that far - for one thing if they have not averred the agreement exists then its arguable that their claim is incompetent. Problem with that is that they might just go round the block and make the averrment this time, so you are back in the same position in a few months. That said, the document they have given you as the agreement just cannot be enforceable in terms of s61 - signed - nope; prescribed terms - nope.

Btw, did you give the court notice that you are withdrawing your IA?

When does the defence need to go in?

[maroondevo52]

Hi,

 

Pulled this from another thread....................

 

Charged off means this.

 

You have fallen into arrears and failed to meet your min monthly payment for 6 executive months,

Once you fall in to your second month of arrears, a block is placed on your card this is called Stage 2, if you clear your arrears at this point you will return to stage 1 and the block lifted. if you pay the mim require but not the arrears, you will remain in stage 2, if you do not make payment or you pay lower than the min, your account will go to stage 3 and so on until it reaches stage 6. at this stage you have 4weeks to clear the arrears before it is "charged off" passed to a DCA.

 

This refers to a Halifax account.

[seriously fed up]

cheers Scott. But do you think I would be correct in saying that this is hardly proof that a DN was sent?

[maroondevo52]

Yes, totally agree with you, It's not something I'm too clued up about, I had a look about for the meaning of charged off, and found that quote.

[24233513afw]

Hi SFU

Where on earth do you get all your info from SFU.

I have found more paper work for this lot. When they started to hound me I was looking after my Dad who had Alzheimers Disease and Parkinson's Disease so it was a trial in its self and I put some of the paper work away safely...as you do but I have just found it.

Don't know if it will make any difference.

Hers a wee Diary:

June 2007 - Had company called Newman Debt Collection hounding me, I had just giving up work to look after my Dad and Husband who were both very ill my Dad being Terminally. I paid them a few months of £50,, but couldn't keep it up.

So would this mean they had terminated my account.

Sept 2007 - Default registered on Credit File with Experian did not get a default notice at the time.

Feb 2009 - Another company called West Midlands Debt Collections staterd their antics hounding me constantly thats when I found this site and reported them too Office of Fair Trading.

May 2010 - Received Default Notice (But default registerd above can they issue to DN remembering first one I didn’t get)

June 2010 - Ascent Collections sent a letter demanding payment sent them Account in Default

June 2010 - Solicitors Letter

July 2010 – Served with court paper by Sheriff Officers

The Memo sheets they have sent only have my account number on one of them the other five sheets have a different account number ?????

Charges are £526.44 they are demanding approx £2000 don’t’ want to put exact figure on here just now but is very near to this.

Cheers

AFW

[seriously fed up]

IF they didnt terminate on the basis of the default they registered in 09/07 then they could issue another notice later on (you cant default a terminated agreement). S87 says

 

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

 

(e) to enforce any security.

 

So termination would, in this case, be by demanding the full amount , so when was the first time they did this? Not just that you make good arrears, but the full amount (or in any event more than was contractually due at the time - check out the Halifax view of "charge off" - that illustrates it)

 

So, June 2007 wouldnt be termination - but check 5 and 6 of what they have sent you to see what's there.

 

In any event this is just adding to their problems - how you can enforce an unsigned agreement with no prescribed terms on the sig page is just beyond me. If we went down the no DN so no lawful termination so unlawful rescission of the contract is quite technical and way beyond me. On the other hand, its worth throwing at them - I always prefer the kitchen sink approach myself.

 

Re the charges that must be about 25%. If the interest charged was contractual and not judicial (8% is the judicial rate - they will have been charging you about 3 times that) it would take your counterclaim up to about 33% I would reckon (ie the fees + interest x 3).

 

So, nothing there to worry about.

When does the defence need to go in?

 

double post - sorry - not that good was it?

[24233513afw]

Hi SFU

 

Not sure when I should put defence in. I shall be guided by you. At the last hearing the Sheriff said he would give me the 4 weeks but that would give me plenty time to get defence before next hearing and a copy to the pursuers (didn't realise had to send them a copy)

 

So the hearing is set for Wednesday 22nd September 2010 @ 10.30am. I am going to try and go up to the court on Wednesday to have a listen to some of the other cases. Wish I could have done that the other week as they were pursueing for the same company but my Husband was too ill to leave on his own. He is still very ill so thrying to juggle both things. Hopefully he will get more test done soon.

Cheers

AFW

[24233513afw]

Sorry meant to ask...if they didn't terminate should they still be charging me interest and sending statements.

 

Just a thought as they haven't charge interest since 2007 and I haven't received any statements since then.

 

Sorry once again.... forgot to answer your question in post 14.03.......

 

You asked: So termination would, in this case, be by demanding the full amount , so when was the first time they did this?

 

Newman Debt Collectors first asked for the full amount when I received a letter from them in June 2007. Thats what I can't understand I thought for this to happen they would have to have terminated the account to allow a debt collector to chase the whole amount. But remeber I don't know head from my feet just now very possible I am getting confused. I can send you the letters tonight, got to take Husband to Doctor's appointment just now so if you want them let me know.

 

However not too caring about this unless you think something would help I shall be steered by your continued help and support you have kindly given me.

 

You mention contractual interest in post 106 13/9/10 and that would increase my claim any idea how I go about calculating this into the claim ?

Cheers

AFW

[seriously fed up]

this should see you ok

bankchargescalculator2-1.xls

 

Your mailbox is full - so I cant send a PM.

Change item 2 to 2.

A. It is explained that, there is no signed agreement in existence for the (whatever type of card it is they are claiming for – be it mastercard/ visa or whatever – include the account number there are quoting). The DEFENDER will present a letter from the PURSUERS confirming this in her first Inventory of Productions (I would copy this and send it with your defence).

The agreement allegedly entered into on or about (whenever) is unenforceable under the Consumer Credit Act 1974 Section 60(1)(a) by virtue of , including, but not limited to,

1. the document not having been signed by the DEFENDER;

2. no credit limit being specified, nor how it will be notified.

Therefore s127 (3) of the Consumer Credit Act 1974 applies, specifically that “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)”.