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

[paulwlton]

How much is the claim for?

[paulwlton]

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

[paulwlton]

Why wouldn't they?

 

I altered the above post.

[paulwlton]

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.

[paulwlton]

"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.

[paulwlton]

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

[paulwlton]

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

[paulwlton]

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.

 

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.

 

Where's the reconstituted agreement they refer to?

[paulwlton]

Taken from Carey.

 

 

part) by Mr Uff and Mrs Thompson then he is at a disadvantage should he wish to challenge whether he made a properly executed agreement at all. I do not agree. First,*this point only has real force if the Proof Purpose underlays s78 and I do not think that it does. Second, it assumes that there is no obligation on the debtor to make out at least some sort of positive case as to improper (or non-) execution of the original agreement. If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement,*or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation. (I deal further with the absence of such positive allegations in relation to s61 when I consider below the Applications.) But that tells one nothing about the scope of s78;

[paulwlton]

May be of use.

 

Paul

 

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?166878-My-Mrs-v-Barclaycard-***WON***/page2

[paulwlton]

If the prescribed are correct and were contained overleaf then the agreement is enforceable. However, the document is illegible so unenforceable until they rectify this.

[paulwlton]

Pt - would you be kind enough to pm me the wording that I should put on my defence.

 

Many thanks

 

Foxy

 

If you intend to defend any claim you MUST research and fully understand the arguments you intend to rely up on.

 

Post your defence and others will comment and/or advice.

[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.

[paulwlton]

Are there any charges on the account?