SCM County court Claim recieved for LLoyds CC!!

[Gfunk9]

Firstly the site has been very helpful and this is my first post in the hope I can defend this succesfully.

 

 

Hi need some help I have recieved a claim form and have decided to defend and acknowledged with northampton.

 

After numerous back and forths for CCA agreement I only ever recieved their application which for my own sins was a Staff member and their terms and conditions which related to a normal platinum card. I no longer work for them due to numerous reasons which I defended in a tribunal against their sales practices. I have attached the form they sent.

 

If any idea if this enforceable as im thinking not but would like your views

 

I put the account in dispute letter to them for non compliance of my request and kept hold of most of the letters that were sent but due to a laptop problem some got wiped.

 

Need some advice in respect to defending as the the default notice was issued after my account in dispute letters back at the end of last year and does not tally up with my credit profile as to when this was defaulted and I am a little confused. also MHS were acting after the account in dispute letter was sent aswell

 

I need to submit a defence but do I have to send a CPR ?

Also PPI was ticked but have not request SAR yet for statements?

doc20100914133350.pdf

[Gfunk9]

was looking for a little guidance if anyone has any!!!!!!!!!!!!!!!!!!

[jdes26]

i have hit red triangle for you

someone will help u out

ps welcome to the cag

[silverfox1961]

Hi,

I'm going to move this thread to our legal issues forum where you will get more help

[citizenB]

Ooer, did you send a CPR request for any documents that you might need. The agreement, the Default notice, the Formal Demand. Or do you have all of those.

 

If you do, can you please let us have sight of the Default notice with the date of producing and the date of remedy still left in.. but take out all other pesonal information. Remove any barcodes as well

 

Date of issue on the POC is 31st August so by my reckoning you need to have a defence in by the 3 October (which is a Sunday) so you will need to submit by the 1st I would think.

 

If you have the agreement, it would be useful to have sight of that as well.

[jdes26]

maybe you could share your knowledge of that evil bank lloyds to!!!!!!!!! but we are here to help

[silverfox1961]

Hi,

I have looked at the agreement and I think a judge would deem it good. It does make reference to items overleaf and with the bleedthrough from where someone wrote STAFF on it, I think the back page is part of the same document.

 

As the amount is for over 5k, it will probably end up as fast track (as opposed to small claims)

 

I think that you would need to cpr the claimant for copies of what they have stated in their Particulars of Claim so you can then put in your defence

[Gfunk9]

Sent CPR last week recieved by SCM on 17th but no reply.

 

CCA letter sent last year and only recieved application form so sent non compliance and dispute letter yet they still added charges and intrerest and passed from DM to DM .

 

Also the fact the application has staff on means it was a staff credit card and the normal interest rates would not of applied as discounted for staff so a seperate CCA surely would of been required???????

 

 

default not recieved but listed on my credit profile as 3 months later than claim form

[Gfunk9]

p.s PPI was ticked on application but cant remember if I noticed it had been done and cancelled it.

 

Also was previously a VISA card and was changed to Mastercard with amended terms!!!!!!!!!!!!!!

[Gfunk9]

thats was ment to say without amended terms or new agreement

[citizenB]

Well if they didnt issue a Default Notice and just sent a Formal Demand or started court action, then they could be in trouble... so you definitely require sight of one of those. If you say it is recorded that they issued the Default Notice 3 months later than the date they issued the Claim form that is proof that they didnt default correctly.

 

Below is a defence that has been specifically drafted for a dodgy default notice... I guess it will have to be seriously amended to show that NO default notice was issued. IMHO, that means they cannot serve one on you now as the contract was effectively ended once the Claim or Formal demand for the whole amount was issued.

 

You should ensure that both are amended to suit your particular circumstances. Also you need to be aware that MCOL only permits 8,000 characters to be entered on to the online defence form. So you may need to post this to them. In which case you would need to send it Special Delivery to both Northampton and the opposition in order for it to be on time.

 

If the card was changed from a Visa to a Mastercard, then that would require a modifying agreement with different terms and conditions. They are two different types of product. Mastercard could be used everywhere, where as Visa was not always acceptable. You would have to research that.

 

I think this should be put here too...

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday

.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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).

 

6. The 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 an 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.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(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.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest

added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on

XX/XX/XX

. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

And a strike out request based on the defence above..

 

 

The Claimant respectfully requests that an order may be made as follows

:

 

1

. That the Claimant's statement of case

is struck out pursuant to rule 3.4(2)(a) of the

Civil Procedure

Rules

as

t

he Calimant's statement of case discloses no reasonable grounds for bringing the claim

.

 

The claim is for the early repayment (ie before the full term of the allleged agreement between the Claimant and the Defendant) of a sum of money consequent on a breach of the alleged agreement by the Defendant. The Claimant is only entitled to file such a claim after first having served a defeult noitice under section 87(1) of the Consumer Credit Act 1974 and in accordance with s88 of the Act.

 

Inter alia

, the regulations made by the Sectratary of State

related to s88

concerning default notices require that a period of 14 clear days be given to the Defendant to remedy the default before enforcement action (including filing a claim) may be started.

The default notice supplied by the Claimant in response to the order of the Court dated

date

is dated Friday 3 August 2008 and says "To remedy this breach, payment due on your account of £

xxx

must be received within fourteen calendar days from the date of this default notice", ie by Wendesday 17 August. Under CPR Part 6.2, a letter is deemed served on the second day after it was posted, provided that day is a business day. That means that a default notice posted on Friday 3 August would be deemed served on Tuesday 7 August and 14 clear days from then is Tuesday 21 August. Therefore the default notice does not comply with the regulations in respect of giving the Defendant the statutory length of time to remedy the default.

The failure of the default notice to comply with the regulations made by the Secretary of State invalidates the default notice (Woodchester Lease management Services Ltd v Swain and Co - [2001] GCCR 2255), is an unlawful rescission of contract and prevents the Court from enforcing

any alleged debt (Kpohraror v Woolwich Building Society [1996] 4 All ER 119).

The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case.

[Gfunk9]

thankyou that will help.

 

Any ideas on the CCA side anyone in respect to the card being a staff credit card but applied for on a normal application as the terms would be different as well as the APR i would of thought meaning that even if they were to rely on the pplication it would be null and void.

 

Im thinking this would be provable by any statement that was issued after application as the rates would be different. No CCA in place for staff agreement

[Gfunk9]

can someone comment on the staff agreement CCA question above? FOR ME OR PRESS RED BUTTON cant seem to download the toolbar at the moment.

 

Thanks for your help so far.

 

CPR sent last week has now been 7 days no response yet

[Gfunk9]

Still no respones for CPR which was delivered on 17th Aug and need to submit a defence this week could any help. Im not to sure if I have the phone the court to advice or write to them that they have not responded.

[Gfunk9]

thankyou that will help.

 

Any ideas on the CCA side anyone in respect to the card being a staff credit card but applied for on a normal application as the terms would be different as well as the APR i would of thought meaning that even if they were to rely on the pplication it would be null and void.

 

Im thinking this would be provable by any statement that was issued after application as the rates would be different. No CCA in place for staff agreement

 

can someone comment on the staff agreement CCA question above? FOR ME OR PRESS RED BUTTON cant seem to download the toolbar at the moment.

 

Thanks for your help so far.

 

CPR sent last week has now been 7 days no response yet

 

Still no respones for CPR which was delivered on 17th Aug and need to submit a defence this week could any help. Im not to sure if I have the phone the court to advice or write to them that they have not responded.

[Gfunk9]

that was meant to be 17th September CPR delivered

[Gfunk9]

Submitted my defence on 1st of October and recieved a letter today from SCM advising that they have been instructed by lloyds to obtain judgement against me. I should recieve a copy of the order shortly.

 

They have also attached a standing order form for me to complete.

 

Is this normal practice as no judgement has been made and defence was filed on time.????????????????????????

 

whats the next step? ANYONE HELP?

[cymruambyth]

It is [problem] blackmail and standard procedure! If your defence was submitted on time they cannot obtain judgement without going to court, even if to try for summary judgement because you have no defence (in their opinion).

[problem] read CAG and play dirty, just for your information (in my opinion)

[Gfunk9]

Ok situation of play is help gratelly appreciated

 

Recieved letter now from SCM stating in short.

 

The claiment belives the agreement is enforcebale. Enclosed statements (which show PPI and confirm that the first statement ever recieved was on a staff interest rate and not appicable to the application which was signed stating differently) So no actrual staff credit agreement exisits????????????????????

 

The claiment does not hold a true copy of the default notice due to the large number of such notices produced but has enclosed a computer system record of the notice and formal demand notice. A copy of the banks template for card default notice is also enlclosed.

 

They have stated they are prepared to accept a monthly payement scheme for the outstanding balance or offer full and final of 85% of balance.

 

I have not had any correspondence from the court saying the case has been moved to a local court only that my defence was sent to SCM and that they had 28 days to respond or the case would be stayed should this not be received is this right.now two days away from the 28 days i think.

 

This is in short the situation

[Gfunk9]

Can anyone tell how I find out if the action has been stayed as there has been no further correspondence or update on money claim on line and its now over 28 days???????????????

[rebel11]

Hi Gf

 

You could contact Money Claim :- http://www.hmcourts-service.gov.uk/HMCSCourtFinder/Search.do?court_id=713

 

Can anyone tell how I find out if the action has been stayed as there has been no further correspondence or update on money claim on line and its now over 28 days???????????????

[Gfunk9]

OK SCM have asked for stay to be lifted and hearing on the 19th. Any advice?

 

I am still hopefully on the fact that they cannot produce a staff credit card agreement just the application form which states incorrect interest rates as per the statements they have sent confirming this is would be a staff card. If im correct then any subsequent default notice or final demand would be irrelevant anyways as not legally binding agreement rendering the contract unenforceable.?

 

Does anyone have any thoughts on this???????