Westcot (on behalf of lloyds tsb) County court claim.

[oStreetuk]

at the start of the month i received a claim from from Northampton court, the particulars where as follows

 

The claim is £xxxx being monies owing to the claimant in respect of a credit agreement between Llloyds Tsb and the defendant under account no xxxxxxxxxxxxxxx

The agreement was terminated as the defendant failed to maintain the agreed terms in accordance with the pre action protocols the claimant has attempted to contact the defendant and agree and repayment plan

the defendant has failed to respond or maintain a suitable agreement

and the balance of £xxxx remains due and owing from the defendant to the claimant.

And the claimant claims interest pursuant to section 69 of the county court act 1984 at the rate if 8% per annum from 1/11/2012 to to 05/11/2012 totaling £xxxxx and thereafter at a daily rate of 0.81 to date of judgement or sooner.

 

on advice of a friend i sent Nelson Guest and partners a CPR 31.14 Request and a CCA request, and filed a defense as follows

 

I, abc of this place make this statement as my

defence to the claim brought by Lloyds TSB

o The claimants particulars of claim are vague and fail to

disclose any cause of action, they appear to be an abuse of the

process in that they fail to deal with the basic rules of pleading

in accordance with the CPR even allowing for the constraints of

the bulk issue system

o No documents supporting the claims in the particulars have been

offeredand despite a CPR31.14 request to the claimant for further

information none has been forth coming and as a result I cannot

plead in defence to the claim

o The claimant pleads that the claim is brought under a regulated

creditagreement regulated by the Consumer Credit Act 1974, yet the

claimant claims statutory interest which the claimants hould

surely know it is not entitled to by virtue of the County

Courts(Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12))

in particular section 2 (3) which expressly prohibits such an

award.

o The defendant contends that this claim amounts to a clear abuse

of the process as the claimant would know the law and is trying to

bring a claim for monies which it is not entitled to and knows

that this is the case

o Without clarification of the claimants claim, the defendant is

extremely disadvantaged and the claimants claim appears without

merit

o Further to that above 6 paragraphs, the defendant is unable to

plead effectively or at all. The defendant is embarrassed.

 

last week i received a letter from the court saying they had recieve my defence, and served it on the Claimant.

Today I got the following from wescot...

 

Dear abc.

 

We acknowledge safe receipt of your letter dated the 13th August 2012 requesting the

 

Following documents in accordance with CRP.31.14:-

 

1. The agreement /

 

2. The assignment

 

3. The default notice

 

4. The termination notice

 

5. Statement of Account

 

We would firstly refer you to CPR31.14, sections (l)(a), 31.14.2 and 31.14.3, which state:-

 

31.14 (1) A party may inspect a document mentioned in -

 

(a) A statement of case

 

31.14.2 "... Document mentioned ..."

 

 

 

The wording in the RSC was whether a "reference is made" to the documents. The CPR Wording probably requires a specific identification of the actual document. The mere mention of a transaction which must have used a particular document is unlikely to suffice; the document itself needs to be mentioned.

 

31.14.3 "... A statement of case ..."

 

"Statement of Case" includes a claim form, particulars of claim, defence, PT20 Claim......

 

Therefore, as inspection is limited to documents mentioned in the Statement of Case, items 2 to 5 requested falls outside that ambit, and thus the only document requested, which is mentioned in the Statement of Case is the 'Agreement'.

 

With this in mind and the overriding objectives set out in CRP1.1 (1), I can confirm that in accordance with your request we have approached the original lender for a copy of the agreement and other documents

 

However, have particular regards to CPR1.1(1) we will confirm at this early stage all the Documents you have requested will not be forthcoming and you should therefore take the necessary action that you believe is appropriate, as by virtue of Carey v HSBC Bank Pic [2009] your request does not actually go towards establishing a Defence. You may also wish to take Independent legal advice from a Solicitor or approach the Citizens Advice Bureau who should be able to assist you free of charge.

 

We are able to comfirm that no documants in relation to assignment are availableas we are acting on behalf of Lloyds tsb and this account has not been assigned to wescot.

 

It is our opinion that all the information you have requested will not be necessary to prove our Case. A Court will consider the facts and evidence and make a fair and reasonable Judgment, which in our opinion will be that the funds claimed are due and owing. You may disagree, and it Isn’t really our place to second-guess a decision that will be made by the Trial Judge following the appropriate submissions of evidence by both parties.

 

We hope we have set out our position clearly and fairly and would once again encourage you to take independent advice.

 

Should you have any further queries, please do not hesitate to contact our offices on 0844 8241158.

 

We confirm our file has been placed on hold for a period of 14 days.

 

any advice what i should do now?

[oStreetuk]

hello, today i received an allocation questionnaire (small claims track). In the other other information section, should i put about the letters that have been sent back and forth, and that i still haven't received the documents requested?

Thanks

[AndyOrch]

Suggested " Other "

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a particularised defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

It is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

Therefore it stands to reason that this document must be disclosed before this case can progress any further."

 

Regards

 

Andy

[oStreetuk]

Thanks for the reply, now i've been busy with hospital and doc appointments for the last few weeks plus my OH pc was broken, during this time i received a Notice of allocation the small claims track (hearing) dated 15th jan and it will take place on the 22nd Feb.

In the notification it states that the claimant is to serve on the defendant a statement containing the state of the account before the issue of proceedings by 4pm 25th jan. Which i never received.

today I get a letter from westcot, saying the client sent a loan statement on the 27th of dec 12, and an annual statement on the 14th jan. I do remember receiving something from lloyds the sameday as the notice arrived, but it was more or less a black piece of lloyds tsb headed paper, will have to find it again.

I still don't have anything that i requested under the CPR31.14

I'm confused an i'm not sure what to do next, I had a back account with Lloyds, but didn't let it go to the amount they claim, plus they say its a loan from them

[Guest]

so, they have not served 'a statement containing the state of the account before the issue of proceedings by 4pm 25th jan'?

and in poss satisfaction of the direction they are trying to rely on those statements sent before? do those statements show the required info 'before issue of proceedings'?

Edited February 8, 2013 by Ford

[oStreetuk]

dont remember ever seeing the statement from the 27th dec, and the annual iirc just had a date and and the amount out standing, will hunt it out when the kids go to bed

[oStreetuk]

ok, bit of an update. My OH went on the attack and challenged the claim westcot made with the statements, the annual statement they claim was sent was only a 6 month statement and the other didn't exist, also he had me inform the court they didn't meet the previous order. Its been to court and the court has now ordered the claimant to file by later this month a copy of the credit agreement as previously requested, statement of account from inception to date showing payment history, any correspondence which the defendant acknowledges their obligation under the credit agreement.

In default the obligations in paragraph (1)????

and the case is adjourned till april.

Now do i wait or do i do what my OH believes my OH believes and attack? as they feel its the best form of defence

[AndyOrch]

If they fail to disclose documents instructed by the Court by said date then you bring it to the courts attention and steer the court to make sanctions pursuant to CPR 3.

 

Regards

 

Andy

[oStreetuk]

Thank you so much for the help so far.

Well they haven't disclosed the documents cos there isn't any, i'm going to contact the court tomorrow to see if they have filed any with them. You say to steer the court to make sanctions pursuant to CPR 3. how would i go about that? i'm going to be writing a letter soon to inform the court i wont be attending due to lack of child care and will include it in that.

[Guest]

what did the order say word for word? if it said that non compliance would result in auto strike out then not much for you to do. q would be whether they think that they have complied or not. and then for the j to decide. if no auto strike out, then could poss ask j to strike out re non compliance if deemed?

if it goes ahead, do try and attend if poss.

Edited March 28, 2013 by Ford

[oStreetuk]

the order says.

 

before district judge ABC, sitting at etc...

Upon hearing the solicitor for the claimant

 

IT IS ORDERED THAT

 

1 the claimant shall by 4.00pm on 22nd march 2013 file in court and serve on the defendant the following documents.

a. A copy of the credit agreement as requested by the defendant on 12th november 2012

b A statement of account of the credit agreement from the inception to date showing actual payments.

c Any correspondence in which the defendant acknowledges their obligation under the credit agreement.

 

2 in default of the obligations in pararaph (1)

 

3 the trail is adjourned to 19th of april 2013 at 2.00pm at etc court

 

4 costs reserved

[Guest]

as you say, 2 seems a bit ambiguous?

if they haven't filed anything could consider an application (maybe a fee) to strike out due to non compliance. or could wait until the hearing to make any representations.

perhaps, give andyorch a nudge see what he thinks?

[oStreetuk]

i will pm him and ask him to take a look thanks

[Guest]

ok

have they filed anything as ordered to date?

[oStreetuk]

sadly i forgot to contact the court today, will be contacting them tuesday, I'm not currently aware of anything being filed at the court

[Guest]

no worries, you have a bit of time before the hearing date.

if you haven't received anything, then it seems that they have at least partly non complied. unless they still want to rely on what they say was sent before?

Edited March 28, 2013 by Ford

[oStreetuk]

quick update i've been in touch with the Court, i was told they haven't received anything from the claimant, as ordered. but they were a few days behind in paperwork.

[oStreetuk]

My other half seems to think this is unenforceable under the CCa, as its pre april 2007 and 127 (3) of the cca 1974 Act still applies, he says i should ask the court to strike out the claim as they did not supply the information i requested, and failed to do as the court ordered. he's going to draft out a statement for me to complete and file at court, and get me to fill in a Application Notice Form.

I shouldn't really doubt him, but would that be the best option to take?

[oStreetuk]

hello again, I received an email from wescot today stating the following

 

I refer to the above matter and your email of the 9th April 2013 below.

 

I can confirm that the Claimant has further reviewed the issues raised in this matter and are willing to no longer pursue this matter any further and write the balance off.

 

Please find enclosed a Consent Order, if you agree to the Consent Order could you please sign and return a copy of them to us so we are able to forward this to the County Court before the Hearing listed for the 19th April 2013.

 

Should you wish to discuss this matter further, please call on 0844 824 1158 or by return email.

 

Regards

 

Alun McMillan

Senior Defence Mediator & Technical Advisor

Litigation Department

 

Main: +44 (0)1482 590 590

Ddi: +44 (0)1482 590 583 (Ext 30116)

Fax: +44 (0)1482 590 592

Email: [email protected]

 

I don't really want to sign it, as i know some of the underhanded tricks that cam be pulled off...

 

edit. oh had me create a "protected signature" as he calls it to prevent copying, i've faxed it off to them, and requested written confirmation.

you'd like to thank you for your help

oh says he's looking at giving a donation as the information here is valuable.

thanks again

Edited April 15, 2013 by oStreetuk

[steampowered]

What does the consent order say? Can you type up the exact wording?

[AndyOrch]

Hi oS

 

Subject to what the consent states you need to act swiftly so the hearing can be vacated without further costs...I personally cant see a problem signing the consent...subject to its contents.

 

Regards

 

Andy