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

[Dotty50]

I wish they would talk in normal sentences!! One minute your hopes are lifted (in this case mine for your!!) and the next is quite negative sounding surmises! Does this mode of language get learned in law school and do they speak it at home I wonder? I am still none the wiser as to the implecations of paragraph 75 or the last sentence where he ends......

 

Hi Lou,

 

You will find after reading threads for a couple of year, things will start to make sense.

 

PT has been around here for a long time (in the nicest possible way) and has helped many on here so don't shoot the messenger! He may be of use to one day.

[Guest]

i am talking as clear as i can do

 

you cannot enforce on the back of a bad notice, this is what the case law tells us, btw Harrison was my case so i am fortunate to have the insight into that case too.

 

You have a bad notice, it cannot lead to enforcement

 

what more can i say? what more do you want me to say?

 

PT. generally, do you think that a cred should be made aware, at the earliest, that they have sent a 'bad notice'? or should it be reserved till later, if at all?

[pt2537]

I think in circumstances where there is a live claim, then the defects will need to be pleaded within the defence

[Guest]

I think in circumstances where there is a live claim, then the defects will need to be pleaded within the defence

 

thanks. what if there is no claim as yet?

[Lou]

Hi Dotty!

 

I know and I appreciate expert advice such as that PT gives. It just gets a bit overwhelming sometimes and seems like one has to learn a foreign language!

 

Thank you PT and I would never shoot you!!

[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.

[foxyflugel]

Hi everyone

 

I have received the docs from my 31.14 request. They have sent me statements (1st one is dated 23/2/00??)

 

Then in the letter it says they have enclosed a reconstituted copy of my agreement and copy stats from Feb 2000. They dfraw my attention to Carey V HSBC where judge found that:-

 

- to comply with Sect 78 creditors may reconstitute agreements and not obliged to provide the original signed agreement (or have sight of original to reconstitute) so long as the recon is 'honest and accurate'.

 

- the recon copy shld contain the name and address of the debtor and, if app, the short form cancellation notice which appeared on the signed agreement.

 

It says - as per court ruling by Waksman "The debtor has a legitimate interest in seeing a copy of the agreement he signed, not in the sense of proof of execution but as info". Therefore we need only provide a "recon" copy of the original credit card agreement.

 

 

Then it goes on to say about the default notice datedc 29th June. ON 30th July \ formal demand letter was sent to me at the address on record - they have no copies of these docs as they are not retained and also no proof of postage - says something about Interpretation Act 1978.

 

Then they say that I failed to remedy the breach so a court claim was issued on 14th Feb through CCPC - the particulars of claim were kept to a minimum as only 1080 characters are allowed. They say about practice direction 7c 1.4(3A) whoch removes the requirement for copies of docs referred to in the POC to be attached for claims issued by CCPC.

 

They then say that whilst they await my defence they are instructed to advise me that the claimant is prepared to agree to settle the matter by Consent and if I am prepared to accept liability for the debt to telephone their office with my repayment proposals.

 

 

 

Any thoughts?? and what do I put in my defence?????????

 

Cheers everyone

 

Foxy

[foxyflugel]

Anyone???????????

 

Thanks

 

Foxy

[The Mould]

Hi everyone

 

I have received the docs from my 31.14 request. They have sent me statements (1st one is dated 23/2/00??)

 

Then in the letter it says they have enclosed a reconstituted copy of my agreement and copy stats from Feb 2000. They dfraw my attention to Carey V HSBC where judge found that:-

 

- to comply with Sect 78 creditors may reconstitute agreements and not obliged to provide the original signed agreement (or have sight of original to reconstitute) so long as the recon is 'honest and accurate'.

 

- the recon copy shld contain the name and address of the debtor and, if app, the short form cancellation notice which appeared on the signed agreement.

 

It says - as per court ruling by Waksman "The debtor has a legitimate interest in seeing a copy of the agreement he signed, not in the sense of proof of execution but as info". Therefore we need only provide a "recon" copy of the original credit card agreement. Yes, in compliance with a s78 request that is correct, but for enforcement purposes, no.

 

 

Then it goes on to say about the default notice datedc 29th June. ON 30th July \ formal demand letter was sent to me at the address on record - they have no copies of these docs as they are not retained and also no proof of postage - says something about Interpretation Act 1978.

 

Then they say that I failed to remedy the breach so a court claim was issued on 14th Feb through CCPC - the particulars of claim were kept to a minimum as only 1080 characters are allowed. They say about practice direction 7c 1.4(3A) whoch removes the requirement for copies of docs referred to in the POC to be attached for claims issued by CCPC.

 

They then say that whilst they await my defence they are instructed to advise me that the claimant is prepared to agree to settle the matter by Consent and if I am prepared to accept liability for the debt to telephone their office with my repayment proposals.

 

 

 

Any thoughts?? and what do I put in my defence?????????

 

Cheers everyone

 

Foxy

 

Good evening Foxy

 

As advised, para 75 of the Harrison v Link case, said Judgment does not permit the claimant to proceed to enforce, put that in your defence, you do not need tp put anything else as the lower courts are bound by the authority given by the High Court/Court of Appeal/Supreme Court.

 

Kind regards

 

The Mould

[citizenB]

It looks to me that they were in breach of their s78 obligations for a while. Then as soon as they found the document you had been requesting, quite legally, they instigated legal proceedings.

 

the particulars of claim were kept to a minimum as only 1080 characters are allowed. They say about practice direction 7c 1.4(3A) whoch removes the requirement for copies of docs referred to in the POC to be attached for claims issued by CCPC.

 

Even so, they should have provided the information requested at the earliest opportunity. What exactly do they say in the letter about the Interpretation Act 1978.. because it quite clearly states..

 

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

 

 

 

What points exactly are you going to defend this claim on ?

[foxyflugel]

Hi CB and thanks for your reply.

 

The Act is referring to the docs being posted so therefore deemed received.

 

Pt2537 said that they have sent me a bad DN (see previous) he has quoted a previous case.

 

Another thought that I had was - when they pass your account onto DCA (ie BLS collections) do they have to advise you of this as LTSB never did. Also, if they send you a bad DN - can this be corrected after they have served a formal demand (is this also called a termination notice)??

 

They sent me an application form which looks like a microfiche copy - but not sure if the T&Cs that came with it were on the back of the document. How do I get them to confirm this? would they do so?

 

Many thanks

 

Foxy

[Guest]

Hi CB and thanks for your reply.

 

The Act is referring to the docs being posted so therefore deemed received.

 

Pt2537 said that they have sent me a bad DN (see previous) he has quoted a previous case.

 

Another thought that I had was - when they pass your account onto DCA (ie BLS collections) do they have to advise you of this as LTSB never did. Also, if they send you a bad DN - can this be corrected after they have served a formal demand (is this also called a termination notice)??

 

They sent me an application form which looks like a microfiche copy - but not sure if the T&Cs that came with it were on the back of the document. How do I get them to confirm this? would they do so?

 

Many thanks

 

Foxy

 

Hi

 

Yes they can. This is what usually happens. The next sentence to the one quoted in the Harrison judgement confirms that bad notices can often be remedied by good ones.

 

The default termination is not valid if the default is inafective so the account is still live and thee is no reason another notice cannot be served.

Use the search facility on here and you will find lots of evidence to confirm this.

 

Peter

[The Mould]

Hi

 

Yes they can. This is what usually happens. The next sentence to the one quoted in the Harrison judgement confirms that bad notices can often be remedied by good ones.

 

The default termination is not valid if the default is inafective so the account is still live and thee is no reason another notice cannot be served.

Use the search facility on here and you will find lots of evidence to confirm this.

 

Peter

 

The act does not say that the termination is ineffective if bad notice served Peter, the circumstances upon which a bad notice can be remedied by the service of a good notice has not been established.

 

Foxy, have a read of Patrick Brophy V. HFC Bank [2010] EWHC in respect of Application Forms.

 

Kind regards

 

The Mould

[foxyflugel]

Peter - I have tried in vain to do searches and I never find what I am looking for - but it is not for the want of trying!!

 

Mould - thanks for your reply.

 

So that's it then -game over - I don't know how to word my defence (if I have one or a strong enough one).

 

 

Think I'm

 

 

 

Thanks

 

Foxy

[foxyflugel]

So that's it then -game over - I don't know how to word my defence (if I have one or a strong enough one). ???????????????????????

 

 

Think I'm

 

 

 

Thanks

 

Foxy

[foxyflugel]

Anyone?? opinions on what I should do under the circumstances??

 

Thanks

 

Foxy

[pt2537]

Lloyds TSB defaults are bad, they fail to contain the information required by schedule 2 para 10a of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Therefore the cannot be enforced without being remedied

[cymruambyth]

Sorry to go away from the thread, pt if this is the case, what is the best way to deal with LTSB if they are farming your account out with these faulty DNs and have not yet started court? (Not in a position to offer a f&f etc)

Thank you

[foxyflugel]

Lloyds TSB defaults are bad, they fail to contain the information required by schedule 2 para 10a of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Therefore the cannot be enforced without being remedied

 

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

 

Many thanks

 

Foxy

[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.

[pt2537]

Totally agree paul

[foxyflugel]

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

[Dotty50]

Hi foxy

 

Best to try and put your defence together and post it here so that others can give you some help.

 

Until you do this, you will get little help imo