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

foxyflugel · February 19, 2011

Hi everyone

I am in the same boat as a lot of other caggers on here and have been regularly reading up to keep myself up to speed.

However, I am concerned as the general opinion was to ignore/reply to DCAs when they bothered people with letters/calls. This morning a court paper dropped on my doorstep :jaw:and I am somewhat confused. :???:

This is the gist of my dealings with Lloyds.

I took a cc out with them in 1989 (I worked for them and it was my 1st cc).

As per advice, I CCAd them in March 2010 and they sent me a letter back (it would appear it's exactly the same one as others have received) - no CCA - just telling me within the letter what was in the 'original' agreement.

I then sent them a non compliant CCA letter - and they replied saying that it was compliant etc etc (again, the same letter as others have received) - I sent them another 2 of these letters and they replied the same each time. I then sent them an A/c in dispute letter - back in August 2010 and I also sent them a harrassment by telephone letter - and they still continued to call several times a day at stupid-o-clock - I ignored them.

I have had various threatening letters from DCAs which stated 'may' proceed 'may' take legal action.

I thought I was pretty safe to be honest as it is 21/22 years since I took the card out. I don't know if they have truly got my CCA original agreement but is seems a bit extreme to start court proceedings just as a 'scare' tactic to make me pay - but with these companies I suppose any new tactic is worth a go.

It says on the particulars of claim:-

1. By an agreement in writing & regulated by the CCA 1974, the claimants issued to the defendant a credit-token, Lloyds Personal Advance Card, for the purpose of the defendant acquiring good/services on credit.

2. The agreement provided that the claimants would furnish the defendant with a monthly statement showing the balance currently due, the minimum payment to be made and the date for payment. If the balance was not paid then provided the def made the minimum pt on or before such date, the remainder of the balance should remain outstanding and the def should pay interest upon it per mth in accordance with the agreement.

3. In breach of the agreement, the def failed to make pt on XXXXXXX the claimants issued a default notice pursuant to section 87(i) of the CCA 1974

4. On XXXXX the claimants did issue a formal demand to the defendant.

5. THE CLAIMANTS THEREFORE CLAIM THE BALANCE DUE UNDER AGREEMENT ****£xxxxxxx.

What do I do now???? Do I SAR them??? or do I send (don't know what number request it is) the doc that requests to view what paperwork they intend to rely on in court??? Or the request that forces them to provide my original agreement (sure I've read somewhere that there is one!!)

Any help would be great as I only have 14 days to acknowledge service.

Many thanks :-)

paulwlton · February 19, 2011

How much is the claim for?

foxyflugel · February 19, 2011

£'s (£'s balance £'s court fees and £'s solicitor's costs)

Thanks a lot Paul for taking a look at my thread. :wink:

Edited February 22, 2011 by the_shadow
Amounts removed at request of OP

Jurisprude · February 19, 2011

£'s(£'s balance £'s court fees and £'s solicitor's costs)

Thanks a lot Paul for taking a look at my thread.

They aren't obliged to provide you with the original copy of the CCA. You would be better off negotiating a settlement figure, or requesting a write off of the balance.

Edited February 22, 2011 by the_shadow
Quoted amounts removed as per OP's request

foxyflugel · February 20, 2011

They aren't obliged to provide you with the original copy of the CCA. You would be better off negotiating a settlement figure, or requesting a write off of the balance.

It was my understanding that they had to have the original agreement to take you to court. Is there not another request whereby they have to provide you with the original - or advise you if they do not possess it?????? I can't see them writing it off tbh. :!:

Undercover-Elsa · February 20, 2011

Hi Foxy, :-)

First off, I've asked or this to be moved to the debt collection/legal issues forum as you'll get much more attention and help in there.

Time to get serious, can you scan and post up exactly what they sent in response to your CCA Request (after removing personal details)

as it's not clear whether it was just a letter or a reconstituted agreement. Did they send terms and conditions from inception and as varied, plus a statement of account?

Who is named as claimant..Lloyds or a DCA?

Which solicitor is handling this ?

Till the troops come along, some tasks to get you started.. :-)

1. Send a Subject Access Request to Lloyds.

The link to the correct template is in my debt help blog linked in my signature below.

2. Have a read of this thread about how to handle the court process: http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

If you're going to defend, you will need to send a CPR 31.14 request for the agreement and default notice and anything else mentioned in the POC.

You'll get help with that, don't worry.

That's enough to start with till we get the requested info,

kind regards,

Elsa x

PriorityOne · February 20, 2011

It was my understanding that they had to have the original agreement to take you to court. Is there not another request whereby they have to provide you with the original - or advise you if they do not possess it?????? I can't see them writing it off tbh.

They do need the original Agreement but ONLY if challenged to produce it in court. If they're not challenged to produce it, then they will hope for a CCJ by default (undefended).

You need to do a search for threads by pt2537 re. docs. to request at this stage.... in order to understand the Civil Procedure Rules better. In the meantime however, it's a CPR 31.14 request that you need (to inspect the docs. they're hoping to rely upon in court) and CPR. 18 (to inspect docs. mentioned in the POC).

This thread may help...

http://www.consumeractiongroup.co.uk/forum/showthread.php?184213

:-)

Post crossed with Elsa's.... Hi Elsa.... :-)

Undercover-Elsa · February 20, 2011

Snap! :lol:

paulwlton · February 20, 2011

They do need the original Agreement but ONLY if challenged to produce it in court. If they're not challenged to produce it, then they will hope for a CCJ by default (undefended).

You need to do a search for threads by pt2537 re. docs. to request at this stage.... in order to understand the Civil Procedure Rules better. In the meantime however, it's a CPR 31.14 request that you need (to inspect the docs. they're hoping to rely upon in court) and CPR. 18 (to inspect docs. mentioned in the POC).

This thread may help...

http://www.consumeractiongroup.co.uk/forum/showthread.php?184213

Post crossed with Elsa's.... Hi Elsa....

If you deny signing an agreement the court would probably require the signed original. If you admit signing an agreement the claimant would need to prove, on balance that the original complied with the statutory requirements and that it was enforceable.

Edited February 20, 2011 by paulwlton

PriorityOne · February 20, 2011

Why do you state that they need the original agreement to enforce?.

Why wouldn't they?

paulwlton · February 20, 2011

Why wouldn't they?

I altered the above post.

PriorityOne · February 20, 2011

If you deny signing an agreement the court would probably require the signed original. If you admit signing an agreement the claimant would need to prove, on balance that the original complied with the statutory requirements and that it was enforceable.

Denying siging an Agreement is foolish, IMO.... and I'm not aware of a pre-court scenario where a person would want to state this, unless he/she chooses to do so. Similarly with admitting to signing one.... unless you are the Claimant and admit to signing one in the hope that the creditor can't produce it and writes it off. Again.... foolish unless you're very sure of what you're doing.

As I'm assuming that OP is not the Claimant, then the burden of proof is with whoever is pursuing him/her through the courts as Claimant and since this is an old account, it's covered by sec. 127 (3). That's why the Claimant needs to produce it under CPR. The "balance of probabilities" theory is therefore not relevant.

:-)

paulwlton · February 20, 2011

Denying siging an Agreement is foolish, IMO.... and I'm not aware of a pre-court scenario where a person would want to state this, unless he/she chooses to do so. Similarly with admitting to signing one.... unless you are the Claimant and admit to signing one in the hope that the creditor can't produce it and writes it off. Again.... foolish unless you're very sure of what you're doing.

As I'm assuming that OP is not the Claimant, then the burden of proof is with whoever is pursuing him/her through the courts as Claimant and since this is an old account, it's covered by sec. 127 (3). That's why the Claimant needs to produce it under CPR. The "balance of probabilities" theory is therefore not relevant.

Sec 127 requires that a document was signed by the debtor. Secondary evidence is permissible whether the claimant can convince the court is another matter.

PriorityOne · February 20, 2011

Sec 127 requires that a document was signed by the debtor. Secondary evidence is permissible whether the claimant can convince the court is another matter.

"Sec. 127 requires that a document was signed by the debtor"..... and it's unenforceable without it; "secondary evidence" doesn't alter the law.... providing it's defended properly.

:-)

paulwlton · February 20, 2011

"Sec. 127 requires that a document was signed by the debtor"..... and it's unenforceable without it; "secondary evidence" doesn't alter the law.... providing it's defended properly.

Carey v HSBC

The letter also said that the bank was obliged to keep a copy of the signed agreement not only to comply with its statutory obligations but also to ensure that it could take enforcement action in the event of default. The latter does not follow. It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient. The letter from Ascots contained no allegation of any kind from their client as to what he understood he had signed or when.

PriorityOne · February 20, 2011

Carey was the Claimant.

Despite that, I know how your extract reads..... and I also know how creditors like to cherry-pick bits in Carey that suit them the best. Carey said a lot of things, including that an original would need to be produced as part of proceedings. Your extract says that a creditor can commence enforcement action; not that they'd succeed... or even go through with it. Carey doesn't just wipe out sec. 127 (3).

**MARTIN3030** · February 20, 2011

You say that you sent the request under CCA in 2010,but what is the history ?

When did you last make payment/when was card last used/ etc etc.

Also I can imagine theres been lots of charges over this period ?

paulwlton · February 20, 2011

You really need to post what they've provided under sec 78.

patrickq1 · February 20, 2011

hi foxy there are some very relevant questions above so before any advice can be offered could you please answer elsa priority and pauls questions , this will help speed things up for us to offer the way forward ,

patrickq1

WelshMam2009 · February 20, 2011

Carey v HSBC

The letter also said that the bank was obliged to keep a copy of the signed agreement not only to comply with its statutory obligations but also to ensure that it could take enforcement action in the event of default. The latter does not follow. It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient. The letter from Ascots contained no allegation of any kind from their client as to what he understood he had signed or when.

Carey was the Claimant.

Despite that, I know how your extract reads..... and I also know how creditors like to cherry-pick bits in Carey that suit them the best. Carey said a lot of things, including that an original would need to be produced as part of proceedings. Your extract says that a creditor can commence enforcement action; not that they'd succeed... or even go through with it. Carey doesn't just wipe out sec. 127 (3).

Am following this thread as am in dispute with LTSB at the mo.

However, in respect of the above comments, this worried me. It is contained in OFT172 guidance, (relating to s77/78/79 requests, issued October 2010):

2.19 Often consumers and their advisors assume that if a signed copy is not provided by the creditor or owner, this necessarily means that the agreement cannot be enforced: either on the basis that section 77(1), 78(1) or 79(1) (as the case may be) has not been complied with, or in reliance on section 127(3) (in the case of agreements to which that
subsection still applies). This overlooks the fact that there is no obligation on an information request to provide a copy which includes a copy of the signature.

It also overlooks the fact that section 127(3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the prescribed terms 'was' signed by the debtor or hirer. The creditor or owner may be able to provide evidence that its practice was always to require a signature to its agreements and that its agreements always complied with section 61(1)(a) of the Act and the debtor or hirer may be unable to satisfy the court that he or she did not sign an agreement.

Any thoughts?

PriorityOne · February 21, 2011

On the face of it, it would appear that OFT have failed to differentiate between the information purpose and the proof purpose (1st para)..... and got their CCAs confused; 1974 and 2006 (2nd para).

:-)

foxyflugel · February 21, 2011

Hi Foxy,
First off, I've asked or this to be moved to the debt collection/legal issues forum as you'll get much more attention and help in there.

Time to get serious, can you scan and post up exactly what they sent in response to your CCA Request (after removing personal details)

as it's not clear whether it was just a letter or a reconstituted agreement. Did they send terms and conditions from inception and as varied, plus a statement of account?

Who is named as claimant..Lloyds or a DCA?

Which solicitor is handling this ?

Till the troops come along, some tasks to get you started..

1. Send a Subject Access Request to Lloyds.

The link to the correct template is in my debt help blog linked in my signature below.

2. Have a read of this thread about how to handle the court process: http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

If you're going to defend, you will need to send a CPR 31.14 request for the agreement and default notice and anything else mentioned in the POC.

You'll get help with that, don't worry.

That's enough to start with till we get the requested info,

kind regards,

Elsa x

Thanks Elsa for your invaluable input (and everyone else too!!)

The solicitors are SCM - will look out the above docs and the rest of the info tommorow and scan what they sent me. I am ok with sending the SAR . You mention CPR 31.14 - do I send that now?? to Lloyds TSB or SCM? do I need to make any payment?? How should I respond on my court form?

Also - will I have enough time to get the above requested docs back before court??

I have also had letters from 2 (I think from memory) DCAs - should they have advised me that they had passed it onto a DCA? (because the didn't).

Many thanks

Foxy :-D

Edited February 21, 2011 by foxyflugel

Undercover-Elsa · February 21, 2011

Hi Foxy,

You can request extensions if you need more time.

We'll sort out the cpr 31.14 and most importantly an accompanying letter to send to the solicitors when we've seen your docs.

[if they've messed up enough a stiff letter can sometimes make them withdraw the action.]

Also, do you recall them sending the Default Notice, and any chance you could find it & scan it?

Elsa x

Edited February 21, 2011 by Undercover-Elsa

paulwlton · February 21, 2011

Am following this thread as am in dispute with LTSB at the mo.

However, in respect of the above comments, this worried me. It is contained in OFT172 guidance, (relating to s77/78/79 requests, issued October 2010):

Any thoughts?

There are cases where customers did not sign a document containing the prescribed terms and a case in point would be a catalogue agreement therefore the debtor would deny this and it would be verging on fraud if the creditor made submissions that its practices would have required a signature on a compliant document. Now if a customer has signed a document he will have to argue that the prescribed terms were set out in a separate document, failure to comply with sec 78, NOA issues, default notice issues, unfair relationship including harassment etc.

There's an High Court Judgment being made public in March which may be useful on the above issues.

Paul

Edited February 21, 2011 by paulwlton

foxyflugel · February 22, 2011

Hi guys

Apologies for the delay - I've been rooting out my documents.

Firstly, Elsa - the claimants are Lloyds TSB and the solicitors are SCM.

I have attached my docs in pdf format (hope they've worked!!). One is the reply to my CCA request - I then sent them a letter and they then sent me another letter actually saying that they could not locate the original agreement (I had forgotten about this). The other letter is their final response.

I am unsure as to whether I have found the default notice (if not I shall continue to look) - I have found a doc that says default notice - it does state my balance and the arrears amount - it's dated 29th June 2010 ands gives me until 19th July 2010 to pay the arrears. I would have scanned it but my scanner was playing up and it took me ages to scan the docs here. :madgrin:

I have also found letters from DCAs

MHA Collections - 3rd Sep 2010 28th Sep 2010

BLS Collections 9th Nov 2010 22nd Nov 2010 13th Dec 2010 29th Dec 2010

Have I forgot anything?

A few questions - do I still need to send the SAR? What do I respond on my court form? That I am going to defend?

Many thanks for all your help.

ltsb 2.pdf

reply 2 cca pg 1.pdf

lloyds tsb letter.pdf

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