Lloyds TSB : Lloyds taking me to court?????????? *** Discontinued ***

[paulwlton]

Okay - that is a very valid point - thanks

 

Can I just ask - if I state the bad notice in my defence - can they then serve a good notice on what is a terminated agreement?? Is the formal demand the termination?

 

Also, can I put in my defence that they failed to tell me that they had sent my account to a DCA?? - and also failed to supply me with a copy of my original agreement until I SARd them - claiming previosuly that they could not find it.

 

I also received a letter from **** solicitors today - enclosing my 'executed agreement' - which was a copy of the application form that I posted on here previously. The other one I received within my SAR documents - which there doesn't seem to be much of tbh.

 

Thanks in advance.

 

Foxy

 

This is my take on the matter.

 

The service of a correct default notice is a prerequisite for enforcement and if the notice is bad they are unable to enforce. Should they start proceedings after serving bad default notice then they would need to discontinue the claim and start again from scratch. On the other hand if they proceed to trial the DJ (imo) would have to dismiss the claim.

Edited April 17, 2011 by paulwlton

[paulwlton]

duplicated.

[foxyflugel]

Ok - here goes. I have attached my defence and based the layout on what I have received from ****.

 

Bearing in mind that I am a court virgin :lol:so if I have the wrong end of the stick then please let me know asap as I need to have my defence in by Friday.

 

Also, I have had another look through the docs and discover the points stated in my defence - am I right in thinking that I can send a CPR18?? asking them to swear that the rec agreement is a true and accurate copy? If I did this, a) can I request another extension (due to not receiving the application form agreement until a week after the first CPR docs) b) would it be worth it?

 

Cheers everyone for your continued support.

 

Foxy

Defence.pdf

[Always Struggling]

Hi Foxy, the points I raised in relation to CPUTR sect6 is, I fear, at best, a last ditch attempt, based on interpretating the rules in such a way that through their lack of ability to provide a true copy etc. you made a 'transactional' (in the loosest sense tbh) decision, in as much you didn't acknowledge the debt as being enforcable therefore alleviating the pressure of your current financial situation. If the documents had been forthcoming you would have acted accordingly, saving the courts time. All ltsb had to do, was to send you a copy before starting court proceedings. As it is, this information had been withheld until court proceedings had started, you then only got the a true copy after sending a SAR to their solicitors. This all shows an abuse of their power IMO.

 

I don't think, tbh this is much (if any) of a defence, rightly or wrongly they have eventually fulfilled the request for a true copy. I think it's an abuse of power the way in which the bank has behaved but that I feel isn't of much help from a legal point.

 

You should await pt and others to reply. He has far greater knowledge than I do of any legal points such as DN etc.

[Dotty50]

Foxy, don't forget Friday is a bank holiday so you may need to get your defence in on Thursday

[foxyflugel]

Hi guys

 

Thanks for your prompt replies as always - much appreciated

 

AS - do you think I ought to take that bit out then?and just state about the bad notice?

 

I had thought of that Dotty tbh - but will await PT (hopefully) to look at my defence and then will submit it online.

 

Many thanks guys

 

Foxy

[Always Struggling]

Hi Foxy, yes, I probably would as it isn't so much a defence as a criticism of their behaviour. It just makes my blood boil when people request copies of their original agreement only to be sent 'reconstituted' versions, then .... low and behold, when they decide to go to court, it has 'turned up'.

[The Mould]

Ok - here goes. I have attached my defence and based the layout on what I have received from ****.

 

Bearing in mind that I am a court virgin :lol:so if I have the wrong end of the stick then please let me know asap as I need to have my defence in by Friday.

 

Also, I have had another look through the docs and discover the points stated in my defence - am I right in thinking that I can send a CPR18?? asking them to swear that the rec agreement is a true and accurate copy? If I did this, a) can I request another extension (due to not receiving the application form agreement until a week after the first CPR docs) b) would it be worth it?

 

Cheers everyone for your continued support.

 

Foxy

 

Good evening Foxy

 

Constructive criticism here so please do not take to heart.

 

You need to re-draft your defence, you have not put - In the (name of court) County Court, the Claim no: xxxxxxxxxx, who the Claimant is, your name as the Defendant.

 

The opening line of your defence/response should read something along the lines of:

 

I, Mrs Foxyflugel, age (put your age) of (put your full address) am the defendant in these proceedings and I make this statement as my defence/response to the claim.

 

You should paragraph out (in short para) your response, if you deny the allegation, you should state that you deny it and the reason why. Try and put a short title over each part of your defence, type the title in bold and underline it.

 

At the end of your statement type the words - STATEMENT OF TRUTH and underneath that, write - I believe that the facts stated herein are true.

 

Sign and date your defence.

 

I think (based upon what you have written in your draft) it might be worth your while having a read of para 83 of the Harrisson V. Link case in respect of the treatment that you complain of suffering from in your defence.

 

It would also be a good idea to quote para 75 from said case in full.

 

Kind regards

 

The Mould

[foxyflugel]

Hi and thanks for your replies.

 

AS - I know - they think they can play about with us and it really gets you wound up - think they ought to send the 'searchers' to specsavers

 

Mould - thanks for your reply and your guidance whether constructive criticism or not it is much appreciated and I will not take it to heart. When you say about denying or admitting their allegation - is this of owing them the money? I can't deny that I have failed to make payments or recieve the dn or termination as stated in their POC.

 

Will redraft tomorrow and post up.

 

Many thanks everyone

 

Foxy

[foxyflugel]

Hi everyone

 

I have redrafted my defence but I don't know if I'm including too much info and don't want to confuse myself.

 

Also, having looked again at the agreement included in the CPR31.14 request from **** - it has got my correct address on and it differs to the one sent in my S78 request - so it doesn't look like they actually included a recon copy of my original agreement - just the present one!! So the £12 and £25 charges and minimum payment amounts don't really apply now

 

However, I have scanned through the agreement that **** have sent with court docs and also the microfiche copy from LTSB of the application form.

 

I have found that an APR differs - it states on both docs

 

APR for purchases 13.9% new balance transfers is 9.9%

 

However, for cash advances and cheques - it says on the SCM agreement 9.9% and on the microfiche copy it says 15.7%

 

It also says that the minimum balance transfer is £250 on the microfiche copy of T&Cs and it says £0 on the recon agreement.

 

It also says on the SCM recon agreement

 

IMPORTANT - YOU SHOULD READ THIS CAREFULLY

 

YOUR RIGHTS

 

The CCA 174 covers this agreement and lays down certain requirements for your protection which must be satisfied when the agreement is made. If they are not, the Bank cannot enforce the agreement against you without a court order.

 

Then it goes on to say about my rights to settle etc.

 

This is not included anywhere on the alleged 'back' of the application form or anywhere on the front.

 

Also, bear with me on the second page of the microfiche copy of the application form in the top left corner - you can see the top right of the 1st page - therefore they can't have been 1 page?? and also it does not contain my surname anywhere - only in someone else's writing (clearly not mine) in the top box??

 

Can I put them to strict proof to produce the original in court to prove that everything was on 1 page??

 

Any help is much appreciated as I have to submit my defence tomorrow.

 

Thanks

 

Foxy

[foxyflugel]

Apologies peeps - have attached my defence this time.

 

Comments welcomed on my above thoughts also please.

 

Many Thanks

 

Foxy

Defence mk 3.pdf

[Always Struggling]

Did you read through the points Mould made Foxy? Harrison v Link? Although I hadn't realised about this case at the time I posted the points I had made about their behaviour would seem wothwhile mentioning possibly.

 

Look through the case Mould mentioned above and those relevent para's and see how they fit into your situation.

 

As I am slowly realising with consumer credit, understanding the rules is a very powerful tool, read thoroughly various rules, regs, cases etc, understand what is being said, read again, interpret, then re-read again

[Always Struggling]

Ignore my post Foxy .... didn't see you posted up defence lol

[Always Struggling]

Hi Foxy, have restructured the last para to help I hope . Maybe someone could look and add ref. to any regs broken or correct mine etc.

 

Failure of CCA request and Unfair Relationship

After my CPR 31.14 request I received correspondence dated 15th April 2011 from SCM solicitors stating that they had enclosed a copy of my executed agreement – of which the second page is illegible – after the Claimant stated that they were unable to locate this document over 12 months previous, now escalating enforcement to court action.

 

I believe the Claimant has acted unfairly as they have not only failed to produce this true copy under CCA section 78 as per request in April 2010 but also to my subsequent requests in May and June of 2010, until they have proceeded to court and only then has the Claiment sent such copy under the CPR request.

I conceed that the claimant can 'find' a true copy of the agreement at a later date than an original request is made. However, this should have been voluntarily forthcoming at the earliest opportunity and not been omitted from fulfilling the earlier CCA request and subsequent requests thereafter, especially as it would appear to be such a pivotal and important document in the Claiments case, hence its use at court.

 

I can only conclude that the Claiment has either mislead me to believe the document didn't exist -until such time to proceed to court, or has simply omitted the document, again, until such time to proceed to court. Either way showing an Unfair Relationship in my view under CPUTR part 2 Regulation 3.

[Dotty50]

Foxy, are you able to post up your defence as a word document?

 

It will make it easier for others to highlight and amend bits where necessary.

[foxyflugel]

Thanks Dotty - never thought of that.

 

PS what did you think about my theory on the microfiche copies of the application form and t&cs??

- they were - if the sides were on 1 sheet then they couldn't possibly put them side by side to copy - as the top right of the 1st page appears on the top left of the 2nd page. Is this still relevant - the within four corners bit??

 

Many thanks to you guys for your continued support.

 

I have attached my defence in word format.

 

Foxy

Defence mk 3.doc

[foxyflugel]

Anyone??????????

 

Thanks

 

Foxy

[paulwlton]

Are there any charges on the account?

[Dotty50]

A bump for some assistance for Foxy who needs to submit a defence today!

 

Any legal experts around?

[foxyflugel]

Hi Paul

 

There are only a few but most are default charges.

 

Thanks for taking a look.

 

Foxy

[pt2537]

Section 78 (1) Consumer Credit Act 1974 1. The Claimant is in breach of its obligations under the Consumer Credit Act 1974 section 78(1). The Defendant made a request in writing for a copy of the executed credit agreement. The document provided did not comply with the requirements of the aforesaid section because 11.1 the document was not easily legible as required by Regulation 2 Consumer Credit Cancellation Notices and Copies of Documents Regulations 1983 11.2 no copy of current Terms were produced 11.3 no statement of account was adduced. Accordingly s78 (6) Consumer Credit Act 1974 acts as a bar on enforcement and per HFO services Limited vs Kirit Patel, Claim number 8QC52414, before His Honor Judge Platts, the Claimants claim ought to be dismissed.

that is how i set out the breaches of s78 in respct of default notices

Notice of sums in arrears. 13. Pursuant to s86 (A-C) Consumer Credit Act 1974 there is a duty to serve notice of sums in arrears. The Claimant has not served such notices nor has it pleaded such, therefore the Defendant avers that by virtue of s86D Consumer Credit Act 1974 the Claimant cannot enforce the agreement as matters stand. For the avoidance of doubt the notice referred to within this paragraph are in addition to the Default notice not in place of. 14. Furthermore no OFT arrears sheet as required by s86©(3) Consumer Credit Act 1974 has been served. 15. By virtue of the failures outlined in Para 14 & 15 above the Claimant is not entitled pursuant to s86D (4) Consumer Credit Act 1974 to levy any interest from the point of the failure to serve the aforesaid notice of sums in arrears nor is the Claimant entitled to levy any default charges during the period of non compliance. Default under s87 (1) Consumer Credit Act 1974 16. The Claimant pleads that the Defendant breached his contract. By virtue of a breach of contract and pursuant to s87 (1) Consumer Credit Act 1974 the Claimant is required to serve a default notice in the form prescribed by Consumer Credit Default Enforcement and Termination Notices Regulations 1983(The Regulations). No notice compliant with the Consumer Credit Act was served therefore the Claimant is barred from terminating the agreement and demanding the sums claimed from the Defendant. In respect of the defects within the Default notice, the Defendant relies upon the following particulars of the breaches: 17.1 The Default notice served fails to state adequately the name and address of the Creditor, thus breaches regulation 2 and schedule 2 Para 2(1) of the Regulations 17.2 The Default notice served fails to contain an adequate description of the agreement sufficient to identify it as the account number specified is materially wrong. Furthermore there is no reference to the type of agreement concerned within the body of the notice. The account number stated is inherently wrong. This is a breach regulation 2(2) and schedule 2 Para 1 of the Regulations. 17.3 The Default notice served fails to specify the information required by Regulation 2 and schedule 2 paragraphs 3(a-c) of the Regulations. Furthermore the notice demands the full balance outstanding, this is not permitted as the service and expiry of a Default notice in accordance with s87 (1) Consumer Credit Act 1974 is required before a creditor can become entitled to demand accelerated payments. 17.4 Furthermore, the Default notice provides that the Debtor should make a “down payment of 40% of the balance”. Schedule 2 of the Regulations do not allow for such an ambiguous statement to be made in respect of the action required to be taken under paragraph 3© of schedule 2 of the Regulations. 17.5 The Default notice served fails to contain the statutory wording required by regulation 2 and schedule 2 Para 4 of the Regulations. For the avoidance of doubt the regulations require the wording specified by the schedule to be used without variation as laid out at Regulation 2(6) of the Regulations. 17.6 The Default notice served did not contain the Office of Fair Trading fact sheet as required by paragraph 10(A) of Schedule 2 of the Regulations. 17.7 The Default notice fails to adequately state the balance of the account due to the inclusion of interest and default charges within the outstanding balance and which the Claimant is not entitled to charge due to the matters pleaded within paragraph 14,15 & 16 above. 17. Accordingly the Default notice is bad and no enforcement is permitted. The Defendant relies of Harrison vs. Link Financial Limited [2011] EWHC B2 Mercantile to support this.

now this is taken from a successful defence which was dealt with before a County Court. It is not nor should it be taken to be advising the OP as to what to write, it is merely for guidance of the issues that need to be addressed. Also in respect of penalty charges

Penalty Charges for breach of contract 18. The Defendant avers that the sums claimed by the Claimant include sums that are not recoverable. These sums referred to relate to late payment penalty charges and the Defendant will seek to exercise his right of set off against any sum found due and payable by the Court. The Defendant is unable to plead the quantum of such charges at this stage and shall require full disclosure of the statements over the term of the agreement. 19. In respect of the said late payment charges and interest, the Defendant denies the Claimant’s entitlement to recover the same. PARTICULARS OF DISPUTE AS TO ENTITLEMENT OF RECOVERY OF CHARGES AND INTEREST LEVIED BY BARCLAYS BANK PLC T/A BARCLAYCARD 20. The Claimant is not entitled to recover the said charges and interest because: - (a) The said charges are irrecoverable as they amount to penalties in law as they are: - (i) Punitive in nature by reason of their being levied when an alleged breach of contract occurs; (ii) Not a genuine pre-estimate of cost incurred by Barclays Bank Plc T/A Barclaycard; (iii) Excessive by reference to the actual loss incurred by the Defendant as a result of the alleged breaches of contract; (iv) Extravagant and unconscionable in amount by reference to the greatest actual loss that could conceivably be proved to have followed the breach; and (v) Existing to act as a means of menacing the Defendant and other account holders into contractual compliance. (b) Insofar as the charges and interest levied are argued to be charges for services rendered by Barclays Bank Plc T/A Barclaycard, the Defendant avers that the said charges and interest were not levied for any service of contractual or other benefit to the Defendant; and © In relation to the account, the Defendant deals with Barclays Bank Plc T/A Barclaycard as a consumer and, therefore, the contractual terms under which the Claimant may seek to justify the imposition of the said charges and interest are contractual terms which are subject to the Unfair Terms in Consumer Contracts Regulations 1999 (the 1999 Regulations) and the Defendant claims that the said terms are unfair within the meaning of Regulation 5(1) because: - (i) The terms are the standard terms and conditions of Barclays Bank Plc T/A Barclaycard; (ii) The bargaining position of the parties is significantly unbalanced in the favour of Barclays Bank Plc T/A Barclaycard; (iii) The Barclays Bank Plc T/A Barclaycard is one of a limited number of banking providers who exercise a collective dominance in the market-place; (iv) The charges levied by Barclays Bank Plc T/A Barclaycard were similar in nature and magnitude to charges levied by other banking institutions, meaning that individuals in the position of the Defendant would have had no real choice as between credit card providers and would have been forced to acquiesce to Barclays Bank Plc T/A Barclaycard charges; (v) There is no opportunity for the Defendant to negotiate as to the terms of the contract and no opportunity to assess the fairness of the charges at the time of entering into the contract; (vi) In any event, the charges were of peripheral interest to individuals such as the Defendant and were not likely to have influenced the Defendant in entering into the contract for the account; (vii) The Charges are excessive and exorbitant by reference to the actual cost to Barclays Bank Plc T/A Barclaycard of the performance of the tasks for which it levies the charges; (viii) The Defendant received no benefit or service in return for the imposition for the charges and interest. 21. In the premises, the Defendant avers that the terms under which the charges were levied were unfair and thus not binding upon the Defendant by virtue of Regulation 8 of the 1999 Regulations 22. Without prejudice to the foregoing, and in light of the difficulty that the Defendant suffers in knowing the Claimant’s case due to the Claimant’s failure to properly plead the same, the Defendant avers that: - (a) Insofar as the said charges and interest form any part of the sum claimed, the Defendant denies that the Claimant is entitled to recover the same; and (b) Insofar as the said charges and interest do not form part of the sum claimed in the Claim, the Defendant shall aver that the said sum should be set off against the sum found to be due to the Claimant in respect of the Claimants Claim.

I hope these excerpts assist

[foxyflugel]

A bit too late Pt - my defence had to be in by 4pm today

Thanks anyway Pt - they will come in handy when I have to face them in court. I will read them carefully.Foxy

[foxyflugel]

1 word - gutted!!But many thanks to those who have assisted me and given me support.Foxy

[pt2537]

gutted? you can send an updated defence and ask the court to serve the amended one as opposed to the first one if your quick courts will not deal with them today anyway

[Always Struggling]

gutted? you can send an updated defence and ask the court to serve the amended one as opposed to the first one if your quick courts will not deal with them today anyway

 

So, so long as your defence is in by the official date and time, any amendments/additonal points you remember after sending in the defence you can, (so long as it's within a day or 2) resubmit an updated defence?

 

So with it being bank holiday weekend in this case foxy could do an update and send in on Saturday for them to have it by Tuesday?