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

[Always Struggling]

Hi Foxy, I'm not sure how useful this is but I'm sure others will say as to how relevent this argument might be dates would have to be checked.

 

You first sent a CCA request to Lloyds a year ago when you started to struggle with their demands of payment. You took general advice and wanted to ensure the agreement was all compliant so you would know how enforceable it was and if they could get a CCJ against you, which you were continually being threatened with for non payment at the amounts they requested. Even if you found it to be 'non-enforceable' you knew that you would still owe the money but would find a certain amount of control in the payments back, allowing you to cover living expenses and pay back what you could afford without the stress and worry when receiving letters threatening CCJ's (if found unenforceable would be empty threats therefore not as stressful to receive) as you were trying to empower yourself to take control, even if somewhat misguided at the time. (be honest with the judge).

They sent you a copy of current t&c's APR etc but nothing in relation to original agreement which is what CCA 78 is for, taken at face value to the average person. The standard practice, it appears after hearing about others in similar states of financial hardship making similar requests, is they interpret casey v HSBC 'sections' which is send information but NOT the original application/agreement stating they had now complied with section 78 with what they (lloyds) have decided 'fits' the scope.

 

The OFT state on a pdf on their website

( http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1266.pdf )

about a CCA request under sect. 78 the following:

What you should get

You should get a copy of your agreement. If it's hard to read, for example a bad photocopy, ask them to send you a better version. It doesn't have to be the document you signed, though if it isn’t, they should let you know. The paperwork should:

• tell you what your original agreement was, and if there were any changes made to it later

• include your name and address at the time you first signed the agreement, but it doesn't have to include your signature, or the date you signed it

• include the statements about your rights that were in the agreement you signed.

These were available but obviously not sent (show judge the crappy leaflet copies that were sent)

 

You followed up with a further request after receiving these saying it hadn't been fulfilled they responded by saying they will continue to look for a copy and will get back in touch within 8 weeks. This occurred again after the orignal 8 weeks for a further 8 week period? Still no copy of agreement/ application but every effort will continue. They did point out that taking the money and paying money back meant there would have been an agreement in place, and no card would have been issued without sight of one at the time.

There was never an issue of me saying no agreement (application in this case) existed, just that I would like a copy if one was available, as was my right as far as I was aware.

 

Now, after having to go to court you sent a CPR31.14 to SCM acting for Lloyds who in turn IMMEDIATELY are able to produce a copy of the application you had requested from Lloyds over a year ago.

 

The same application you requested and never received a year ago which would have allowed you to feel somewhat in control of your debt without then the threat of CCJ from Llooyds, or threat of bailiffs on your property at any given time from DCA's.

 

This only leads you to beleive that Lloyds have deliberately omitted information being sent to you that was available to them over a year ago giving cause for you (the average consumer) to choose a different transactional route. If a copy had been provided in the orignal request over 12months ago then, regardless of its enforecability made effort with some form of payments even if only token payments.

This, with Lloyds then sending information which could, in your view as the average consumer, mislead you into the same thinking.

 

This is, in your opinion is the same as if you were going back to a company to make a physical purchase of a product which would be in contradiction to the Consumer Protection of Unfair Trading Regulations 2008 sect 6 Misleading Omissions (1) (a),(b) and ©. with reference to para (2) (a), (3) (a),

 

 

plus possibly but perhaps lesser the section 5. Misleading Actions and relevent subsections.

 

Took me a while to think this through and could be a pointless arguement but am curious to hear anyones response on it.

Edited April 8, 2011 by Always Struggling

[Always Struggling]

Just thought .... the £1 paid (CCA) and subsequent £10 (SAR) are also monetary transactions you wouldn't have made. Mentioning this may just cloud the issue though

[Always Struggling]

This will hopefully get the judge on-side and can't be used to get out of owing monies except to point out to the judge that had Lloyds been more accommodating in the first instance to your situation then you would have hoped to come to some kind of mutual arrangement in regards paying back monies owed along time ago. However, there actions not only hindered this process, it now transcends that Lloyds would appear to have broken certain regulations in regards to CPUTR2008 and you now look to the judge for guidance.

[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.

[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'.

[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.

[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?

[Always Struggling]

Good to know thx..... Only been on this forum a few weeks and never read so much law in my life before...... probable equivalent would be what a blade of grass is to a football pitch, but even that's alot to digest, and my appendix is no help either lol.

 

Then you have to understand the workings of any particular law a bit like studying the single blade of grass on the pitch and find out why it's a different shade or length to one a few feet away

[Always Struggling]

I had a look at the defence - it seems to me that on recent court rulings and our understanding that comes from them, they have complied with your s78 request. It is now established law that they don't have to provide an exact copy of the agreement and, unfortunately, it seems they don't have to provide anything with your signature

 

Hi Steven, I'd like to ask a question please. I was wondering and posted before about this (perhaps not clearly exaplained though). Not so much to do with complying or not complying with s.78 so much but more along the lines of (this is where i don't know how to exalin what I'm getting at very clearly) ... could you not argue that the claiment should supply a reconstitued version if the original is not available? the fact that the original was/is available (provided by the claiment after starting court proceedings and having documents requested by defence), this same document had been requested a year previous and subsequently 2 or 3 further times after to no avail.

 

The fact that the CCA did exist but ltsb chose to send a constituted version rather than the original they held is surely an abuse of their control and shouldn't be able to decide what is or isn't sent out under CCA s78?

 

If they HAVEN'T got the original then they can send a reconstitued version which is, as laid out waksman v hsbc, no argument.

Surely this is only if they haven't got the orignal to copy and send?

 

It is only my interpretation (no one special lol) but i would have said that to send out a reconstituted version when an original DOES exist isn't for ltsb to decide?

 

This would surely fall under CPUTR and omitting information, relevent both at the time of the original CCA request and subsequently relied upon in the current court proceedings.

 

I guess what I'm trying to ask is the fact that if an original cca exists and the bank has it, surely they should have provided it under the orignal cca request or subsequent requests not when they decide to proceed to court as this looks to me to say:

 

We are ltsb, we can send whatever we want, until we go to court then we will use these other documents that we kept from you.

 

Just seems to me that ltsb have abused their position by sending reconstitued versions when an original did exist.

[Always Struggling]

Nothing much I can say i guess. It does appear wrong that ltsb can say we are looking for it and we will send it if we find it, a year ago, to then not send it until court proceedings.

 

Seems they are trying to prove a point.We have a 'true copy' you aren't having it until WE decide to go to court. In the meantime make do with these bits of paper that we wrote on saying whatever we want it to say.

 

Personally I feel they shouldn't be able to rely on something in court that they have previously stated, in correspondence, doesn't exist or can't be found as that has proven to be a lie.

 

Simply wrong and ltsb I believe, imo, trying to be smart a**e's by doing this are saying to consumers, request a cca, we won't send you it even if we DO have it.

Edited April 21, 2011 by Always Struggling

[Always Struggling]

This is why I am looking at this area. Looking at CCA1974/2006 amended and the OFT Guidelines to Businesses in relation to prevent Unfair Business Practices

 

2006 amendments to CCA1974

“Unfair relationships140AUnfair relationships between creditors and debtors.

(1)The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following—.

,br/>(a)any of the terms of the agreement or of any related agreement;.

(b)the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;.

©any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement)..

 

(2)In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor)..

,br/>(3)For the purposes of this section the court shall (except to the extent that it is not appropriate to do so) treat anything done (or not done) by, or on behalf of, or in relation to, an associate or a former associate of the creditor as if done (or not done) by, or on behalf of, or in relation to, the creditor..

 

(4)A determination may be made under this section in relation to a relationship notwithstanding that the relationship may have ended..

[Always Struggling]

The bold section by definition is surely saying if there isn't one then a reconstituted one, therefore by the same token, if there is one, this information has been witheld for a year, therefore giving the creditor an unfair advantage as the debtor could easily (as stated in parliament)or is likely to have lost his original copy therefore not have access to the details of what he agreed (terms, apr etc.)

 

I think in a previous post foxy you stated that you had been sent terms and conditions that were also illegible.

 

If this is the case and you have no legible t&c sent from either CCA request or CPR then you could also still request a 'Stay of Execution' until complied with.

Legibility of any copy2.29 Any copy must be easily legible, as must any copy of notices ofvariation or statement of the terms of the agreement as varied.16 If thecreditor or owner has a poor quality photocopy or microfiche, it shouldretype it or repopulate a template of the relevant agreement form withthe details of the specific agreement, so that the copy sent can be easilyread.

 

6.3 It may be incumbent on traders affected by this guidance to providesuch documents or information as the OFT requests relating to thepractices and procedures that they employ in connection with theirregulated consumer credit business (for example where the OFT requestsdocuments pursuant to sections 36B or 36C of the Act) to enable theOFT to form a view as to whether the practices and procedures thatthey employ are effective. Amongst the matters that the OFT is likely towish to consider are whether the trader:

• provides accurate copies of documents that give the consumer theinformation they are entitled to under sections 77, 78 or 79 of theAct

• provides documentation that is easy to read• provides copies of documentation referred to in the agreementOFT1272 | 27

• is being obstructive in responding to a reasonable request.

 

The latter point as to legibility etc and therefore (short term) non-enforcement would allow a short respite as I'm sure that it would be overcome pretty quickly. It might allow you to better prepare in more detail for a later date though.

 

I'm sure pt and others will say how valid or not these points are as I'm still learning the 'ins and outs'

 

please wait for others to comment foxy