Marlins - Claim Form LLoyds Overdraft

[Guest]

10k statutory interest? whatever you do/happens re the original amount, you must dispute/deny that interest, seems likely to be unreasonable.

some odd figures, and credit file reporting. looks like they're taking the P?

 

bump

[theazzmany2k]

I cant work out the creditfile shenanigans

 

it appeared in january stating 29k

 

then in may says 41k?

 

On the claim pack it claims interest of 6.44 I presume this is apr?

 

If thsts the case they only bought the debt in november the maths do not add up,

 

should I print this out and add it to my defence

 

as surely the original sum would have included the interest and charges the bank added already

 

and they cant add interest on before they bought the debt can they?

[AndyOrch]

Hi I have been asked to look in on you.

 

You need to submit a defence by tomorrow so I will need you to be available tomorrow morning.

 

Just out of interest did you ever inform LLoyds of your change of address?

 

With regards to your last post......6.44 is £6.44 per day interest...section 69 interest...this can be charged from default up until judgment or payment so it can be post judgment also.

 

How much are they claiming on the claim form?

What was your O/D limit?

What year did it run from?

When did you last service the account?

 

and as you have already been asked have you ever received a recall termination notice otherwise known as (Notice served under Sections 76(1) and 98(1) of the CCA1974

 

Lastly did you send the following version of the CPR 31.14 ?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387483-LEGAL-CPR-31.14-Request-when-Claim-is-being-made-for-a-Current-Account

 

Regards

 

Andy

[theazzmany2k]

Hi thank you. I never informed Lloyds of change of address because I was told the account was closed.this is the CPR I sent

Ok this is the CPR 31.14 for the summons re overdraft:- Again print name and send recorded del (there is no fee)

 

CPR 31.14 Request (Overdraft and Credit Card)

 

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the claim form in this case issued by you out of the (Name) county court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 The agreement and Overdraft Facility Agreement conformation and Terms and Conditions from that date. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 The Demand/Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974 (Overdraft Content)

 

3.The Default Notice served under sections 87(1) CCA1974

 

4. Notices of Sums in Arrears under running account credit CCA2006 sec 86C

 

5. Statements of account from inception.

 

6. Notice of Assignment

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.CPR 15.5

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

Send the above recorded delivery to their Sols and retain proof of postage.

 

On the claim form the total is 39929.57

Made up of

1, 29396.01

2, interest persuant to section 69 of the cca 1984 namely 9883.56 & continuing until judgement or sooner payment at the rate of 6.44

 

The figures are completely different to my credit profile

My overdraft limit was increased to 10000 between 2007-2008

And I stopped servicing the account in 2008

 

Sorry if so vague

[theazzmany2k]

Also the interest persuant is that from the day marlin purchased the debt which was in November?

[AndyOrch]

Also the interest persuant is that from the day marlin purchased the debt which was in November?

 

Well they should state a start date within the calculation but we will deny the interest anyway.

 

Bear with me and I will have a draft ready for you shortly to check and submit if you are happy to proceed to defend.

 

Regards

 

andy

[theazzmany2k]

Thank you Andy very much appreciated

[AndyOrch]

Particulars of Claim

 

Monies due under current account overdraft.

 

1.The claimants claim is for the balance outstanding under a bank account facility lloydstsb (ltsb) agreed to maintain for the defendant.

 

2.It was a term of the bank account that any debit balance would be repayable by the defendant in full on demand,despite a demand being made, the defendant has failed to repay the amount due.

 

3.The debt was assigned to the claimant on 28/11/2013.

 

4.The claimant therefore claims £29,396.01, 2.interest pursuant to section 69 of the county courts act 1984,namely £9883.56 & continuing until judgement or sooner payment at the rate of 6.44 per day.

 

Total Claim £39,929.57

 

If you can just check the above particulars......are they verbatim?

[theazzmany2k]

Yes that's spot on

[AndyOrch]

####Defence####

 

1. Paragraph 1 is admitted with regards to the Defendant entering into a facility referred to in the Particulars of Claim with the original creditor Lloyds TSB Bank.

My personal overdraft limit was eventually set at £10K after numerous unwanted increases implemented by the bank.

 

2. Paragraph 2 is denied, the account exceeded the agreed overdraft limit not due to overdrawing of funds but is as a result of unfair and extortionate bank charges/penalties being applied to the account after encountering personal financial difficulties which Lloyd's were unsympathetic to address.

 

It is denied I refuse to pay I was never requested or served a Notice under Sections 76(1) and 98(1) of the CCA1974.

 

I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

3. Paragraph 3 is denied I am not aware of any legal assignment or served notice from Lloyds/TSB or the claimant.

 

4. Interest is denied...any alleged debt would have already accrued extortionate overdraft interest and section 69 has yet to be determined by the court.

 

On receipt of the claim form the Defendant sent a CPR 31.14 request dated XX/XX/2014 for a copy of the Overdraft

facility agreement, Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and a

statement of account showing how the amount claimed has been reached, which form the basis of this claim.

 

This was signed for by the claimants solicitors on XX/XX/2014. The claimant has yet to comply.

 

Therefore the claimant in their none compliance to my requests have frustrated my attempts to clarify

their claim and against pre action protocol should be considered when the question of costs arise.

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Claimant has reached the amount claimed for; and

© show Notice served under Sections 76(1) and 98(1) of the CCA1974

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is

owed.

 

On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

Until such time the Claimant can comply with my request for a copy of the Overdraft facility agreement/Notice served

under Sections 76(1) and 98(1) of the CCA1974 it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

 

Check for accuracy complete the dates in red and if you are happy copy and paste into MCOL and print your receipt as proof of submission on this date.

 

Regards

 

Andy

[theazzmany2k]

Andy I cannot thank you enough I will submit tho straight away and will let you know as soon as I have a reply

[theazzmany2k]

Hi just a quick update since I've submitted my defence I've now had a reply of Mortimer Clarke solicitors

 

"We are unable to supply a copy of your signed credit agreement. Having contacted the original creditor, we are informed that such documentation is un available.

 

Section 77-79 of the consumer credit act 1974 does not apply to current accounts. The current account is not a regulated agreement because it provides no credit. The overdraft agreement provides the credit and this sits separately from the current account agreement.

 

Credit agreements normally have to comply with part v of the cca 1974. Part v covers the form and contents agreements, signing of agreements and duty to supply copies of unexecuted and executed agreements. However, current account overdrafts are given a specific exemption from all the part v formality requirements by section 74(1) (b) of the act

 

This exemption applies only when he oft grant a determination under section 74 (3) and this was given for overdrafts on 21/12/1989.

 

The consequence of this is that there is no executed agreement for a current account overdraft and so section 78 (the right to demand a copy of the executed agreement) does not apply.

 

We are instructed by our client regarding the origin of this debt and can confirm

 

1. Relates to a current account held with lloyds tsb

2. Was dated 04/07/1997

3. Bore the number xxxxxxxxxxxxxx

4. Was terminated on 15/02/2010

 

Please find enclosed a copy of the notice of assignment letter sated 03/12/2013 informing you of the assignment of this debt to our client.

 

We have requested copies of the other documents from our client , and will forward these to you upon receipt.

 

We trust at this information is of assistance

 

Mortimer Clarke solicitors

 

Then I have 2 copies of letters I've never seen before one with marlin saying this is notification that marlin has had assigned to it all right title and interest dated on the 28/11/2013

 

And the other is a letter from lloyds bank saying it had assigned it to marlin, again I've never seen this letter before in my life so not sure what to do?

[BRIGADIER2JCS]

Hi just a quick update since I've submitted my defence I've now had a reply of Mortimer Clarke solicitors

 

"We are unable to supply a copy of your signed credit agreement. Having contacted the original creditor, we are informed that such documentation is un available.

 

Section 77-79 of the consumer credit act 1974 does not apply to current accounts. The current account is not a regulated agreement because it provides no credit. The overdraft agreement provides the credit and this sits separately from the current account agreement.

 

Credit agreements normally have to comply with part v of the cca 1974. Part v covers the form and contents agreements, signing of agreements and duty to supply copies of unexecuted and executed agreements. However, current account overdrafts are given a specific exemption from all the part v formality requirements by section 74(1) (b) of the act

 

This exemption applies only when he oft grant a determination under section 74 (3) and this was given for overdrafts on 21/12/1989.

 

The consequence of this is that there is no executed agreement for a current account overdraft and so section 78 (the right to demand a copy of the executed agreement) does not apply.

 

We are instructed by our client regarding the origin of this debt and can confirm

 

1. Relates to a current account held with lloyds tsb

2. Was dated 04/07/1997

3. Bore the number xxxxxxxxxxxxxx

4. Was terminated on 15/02/2010

 

Please find enclosed a copy of the notice of assignment letter sated 03/12/2013 informing you of the assignment of this debt to our client.

 

We have requested copies of the other documents from our client , and will forward these to you upon receipt.

 

We trust at this information is of assistance

 

Mortimer Clarke solicitors

 

Then I have 2 copies of letters I've never seen before one with marlin saying this is notification that marlin has had assigned to it all right title and interest dated on the 28/11/2013

 

And the other is a letter from lloyds bank saying it had assigned it to marlin, again I've never seen this letter before in my life so not sure what to do?

 

 

It is correct that CCA s. 77-79 do not apply to a current account.

 

 

The " Notices of Assignment" from Lloyds and Marlin may be generic as sent as a matter of course, as NOAs are not routinely archived, annotations are made in regard of the date they were sent out.

 

 

When was the full outstanding amount demanded by the bank, has any payment or unequivocal written acknowledgment of the debt been made since the date of said demand for repayment?

[theazzmany2k]

I have got nothing from the bank demanding full outstanding amount. The letter just states they sold it on the 28/11/2013.

 

On the other letter from the solicitor says it was terminated 15/02/2010

 

Sorry if this is not what you meant.

[BRIGADIER2JCS]

I have got nothing from the bank demanding full outstanding amount. The letter just states they sold it on the 28/11/2013.

 

On the other letter from the solicitor says it was terminated 15/02/2010

 

Sorry if this is not what you meant.

 

 

This any payments or acknowledgments since then?

[theazzmany2k]

No I had moved house in 2010 and got a new job I phoned lloyds and was told the account was closed so I put the phone down I did not give them my new address and I certainly have not received a letter from lloyds to my new address

[AndyOrch]

You didn't request a section 77/78 ?

 

Andy

[theazzmany2k]

Hi Andy all I sent to them was the CPR request that I posted earlier shall I sit tight and see what the court has to say now they have my defence the have acknowledged receiving it but I've heard no more from them yet

[AndyOrch]

So what's all that nonsense in their reply .......?

 

This is what you requested :-

 

1 The agreement and Overdraft Facility Agreement conformation and Terms and Conditions from that date. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 The Demand/Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974 (Overdraft Content)

 

3. Notices of Sums in Arrears under running account credit CCA2006 sec 86C

 

4. Statements of account from inception.

 

5. Notice of Assignment

 

the red is what you got..I would be tempted to write back and state you never requested a copy of the credit agreement and request the following :-

 

CCA section 61B Duty to supply copy of overdraft agreement

 

F1

S. 61B inserted (1.2.2011) by The Consumer Credit (EU Directive) Regulations 2010 (S.I. 2010/1010), regs. 9, 99(1) (with regs. 100, 101) (as amended by The Consumer Credit (Amendment) Regulations 2010 (S.I. 2010/1969), reg. 7)

 

(1)Where an authorised business overdraft agreement or an authorised non-business overdraft agreement has been made, a document containing the terms of the agreement must be given to the debtor.

(2)The creditor must provide the document referred to in subsection (1) to the debtor before or at the time the agreement is made unless—

(a)the creditor has provided the debtor with the information referred to in regulation 10(3) of the Consumer Credit (Disclosure of Information) Regulations 2010, in which case it may be provided after the agreement is made,

(b)the creditor has provided the debtor with the information referred to in regulation 10(3)©, (e), (f), (h) and (k) of those Regulations, in which case it must be provided immediately after the agreement is made, or

©the agreement is an agreement of a description referred to in regulation 10(4)(b) of those Regulations, in which case it must be provided immediately after the agreement is made.

(3)If the requirements of this section are not observed, the agreement is enforceable against the debtor on an order of the court only (and for these purposes a retaking of goods or land to which the agreement relates is an enforcement of the agreement).]

 

 

Regards

 

Andy

[theazzmany2k]

Thanks for that Andy glad you could understand what they sent back. I'll send a reply back to them requesting what you highlighted.

 

Regards

 

Aaron

[theazzmany2k]

Hi Andy hope your well, had a letter from the courts today acknowledging receipt of the defence and a copy being served to the claimant. It just says the claimant may contact me direct to attempt to resolve a dispute if the dispute cannot be resolved they must inform the court their wish is to pursue. This must be done within 28 days of hem receiving my defence. Thanks again it's all very much appreciated

 

Regards

 

Aaron

[AndyOrch]

Standard response theazzmany2k...sit tight.

[theazzmany2k]

Hi I'm back with an update. Received a letter from marlin today

"We have received your defence. We are taking our clients instructions in relation to the request raised in your defence and will come back to you as soon as we can. Please find attached copies of notice of assignment and a letter dated 03/12/2013. Our client has complied with its statutory obligations by sending you notice of assignment in accordance with section 136 of the law of property act 1925"

 

The letters attached are the same 2 I had last time which I had never seen before ! I still don't think this is what we requested from them but I'm not sure.

 

Thanks in advance

 

Aaron

[AndyOrch]

Responding to your PM.

 

Look at your CPR request and CCA request......so they have only complied with one document the NoA. Wait to see what the client instructs them to do next.

 

Regards

 

Andy

[theazzmany2k]

Hi if was wondering if I could pick your brains again please I received a letter from the courts dated 05/06/2014 saying my defence was received and would be served on the claimant who then had 28 days to respond if they wished to proceed. I then received a letter off Mortimer Clarke dated 16/06/2014 saying they were taking their clients instructions, have they now overgone their 28 days or is this working days or should I contact the courts I ask because I am out of the country for 2 weeks soon and I'm worried ill get a response that I cannot answer to in time

 

Thanks again

 

Aaron