Cabot/Weightmans Claimform - Old Lloyds credit card***Claim Discontinued***

[rebel11]

I would say that 99% of agreements are stored in a different format to the original form. Thats why sometimes the copies

are undreadable, the clearer the copy the newer the technology to make that copy.

[Bookworm]

Well, we at CAG had a running battle when we 1st started with the likes of Barclaycard and Abbey who maintained that records that were kept on microfiche were not covered by the DPA, and the ICO said that they were, so I would say that the fact it is on microfiche doesn't make it less valid.

 

However, unless I am missing something, this isn't a credit agreement, it's an application form. It doesn't show that the agreement was in fact accepted by the other side, just that OP applied for one. So what? I have applied for lots of cards in the past, many of which were refused, presumably they will still have a copy of my application form on file, doesn't mean I have an agreement with them, least of all an enforceable one. :???:

[twofoot]

I don't know if this is right in law but this is how I see it. An application is precisely that. It is an application for credit. Until it is accepted (executed) it should not be seen as an agreement. When it is executed you get the executed agreement. An application does give consent to use CRA's but it is not a binding credit agreement in my view. I am aware that case law may show applications to be valid agreements but is there any case law showing the opposite? I don't know.

[rebel11]

Looking at the Terms and Conditions, they normally have a reference number, that represent the month and year, can't find a reference number. How is someone to know what period that doc relates too.

[Craigbadger]

Thanks for the views.

Its only been defaulted about 3 months.

Received 1 letter asking for the full amount which I took as termination then a further letter asking for the arrears stating that interest was being added.

 

Well the thing is there are loads of charges and that ppi tick so I think I will get on and charge those now ive got a minute. I guess I just wanted to keep them out the way for a bit.

[UnitedFront]

Yes, since you have already received documents under a SAR, I would definitely go through them and add up any charges. Also, take a look for default notices etc!! Did you receive a default notice? Have you posted it up to check that it is valid?

 

Cheers

UF

[Guest HeftyHippo]

going back to whether a copy is allowed. The CCA says the original should be presented in court. now, as said, most originals are copied and destroyed - paper is difficult and costly to store. That copy is obviously NOT the original. A court can refuse to accept a document if it chooses - the fact that it is clear and legible still doesn't mean its the original, and not having the original makes it difficult to see if the source of the copy (it may be a copy of a copy, rather than from the original) may have been tampered with or may be incomplete in some way.

 

Have a look at

http://www.alliancegroup.co.uk/legal-admissibility.html

for some of the issues involved.

 

When you consider the hash that banks make of just about everything, it is difficult to imagine they would stick to a British Standard and have audit records to prove it. At worst it will tie them up for a while!

[Bookworm]

Bookworm, could you possibly elaborate further on why you feel this would not be accepted as an agreement, should the matter go to court?

Quite simply, because it is NOT an agreement. It's an application form. As I said, I have applied for credit cards before, and was turned down for them, if they were to be presented in front of a judge, it wouldn't matter one jot, it still wouldn't be an executed agreement. Can't make it simpler than that really.

 

We know, without doubt, from the previous experiences of many members here on CAG that courts are perfectly willing to accept something headed "application" as an agreement, so long as it contains all of the prescribed terms required by the Consumer Credit Act....

I can't help it if if judges are willing to corrupt the law, but the fact of the matter is that all of the cases I have seen, it was invariably the judge's own bias towards the "feckless debtor" which swung it, and indeed no matter how well defended the case was, it wouldn't have made one iota of difference. Ultimately, if you have a judge who says: "if you borrowed it, then you have a duty to repay it", using the "moral" argument instead of the legal one, there's not a lot that anyone can do about that.

 

From what I can see, the documents scanned by the OP contain the prescribed terms and is signed by both the alleged debtor and someone on behalf of the OC. Now of course there could be some debate as to whether the second page that has been scanned was actually on the back of the first page, but I feel that may be clutching at straws....?

They may well do... but they're not an executed agreement. It clearly states, in more than one area, "IF you are accepted" "IF we grant you", IF this and IF that. It's not a contract, it's not an agreement, it's an opening of negotiations and no more than that.

 

 

Unfortunately I think that almost any judge would likely accept the documents posted, so long as all other necessary procedures had been complied with...?

Well, I don't pretend to know what goes on in the mind of judges so I won't debate that here. It's moot until the DCA/OC has actually taken the person to court, and my experience in the matter is that as long as they have someone who does know their CCA and shows they are prepared to fight it, and as long as they themselves know they don't have a properly executed agreement, the odds of ending in court are slim.

 

I certainly wouldn't agree that:

 

the only times I'm aware of that "applications" have not been accepted is where they were missing the crucial prescribed terms. That is NOT to say, however, that no such cases exist... only that I, in my very limited experience, have not come across any.

 

There are, however, hundreds of cases (at least) where applications have been accepted as agreements, so long as they have the prescribed terms.

 

I am, sadly, aware of cases where even a sheet of toilet paper with a fake signature on it would have been accepted by the judge , and I am also aware of hundred of cases where the OC washed their hands of a debt they couldn't document and flogged it off to a DCA instead... at which point it becomes a different story altogether, as we all know.

[Bookworm]

Thanks for the views.

Its only been defaulted about 3 months.

Received 1 letter asking for the full amount which I took as termination then a further letter asking for the arrears stating that interest was being added.

 

Well the thing is there are loads of charges and that ppi tick so I think I will get on and charge those now ive got a minute. I guess I just wanted to keep them out the way for a bit.

Well, while you're disputing the charges and PPI, hat makes the account officially in dispute anyway, so they're not allowed to take recovery action in the meantime, so make sure you remind them of that when you write to them.

[Craigbadger]

Well, while you're disputing the charges and PPI, hat makes the account officially in dispute anyway, so they're not allowed to take recovery action in the meantime, so make sure you remind them of that when you write to them.

 

Excellent. Thats my route then.

[UnitedFront]

I agree entirely that there are situations that we are all aware of where Judgments have been won on the basis of appalling documentation - or lack of documentation!! But I have personally never heard of a case going to court on the back of an agreement in the form of an application, where all of the prescribed terms were present, and be thrown out by the judge as not being an agreement simply because it was on a document "headed application"...

 

Again, I'm not saying it has never happened, but I am certainly not aware of it having happened.

 

I totally respect that everyone has their own opinion and I am certainly not an expert, in any way shape or form. But I honestly believe that what is there would be considered an agreement - certainly if it were produced in its original form. Whether or not it would be accepted in its copied form is a matter of pure speculation - it would, my understanding is, entirely depend on whether the court is satisfied as to the copy's authenticity.

 

I'm more than happy to agree to disagree, however, and in my view it is healthy to have an open debate and allow the OP to make up their own mind.

 

All the best.

Cheers.

UF

[Guest HeftyHippo]

But I have personally never heard of a case going to court on the back of an agreement in the form of an application, where all of the prescribed terms were present, and be thrown out by the judge as not being an agreement simply because it was on a document "headed application"...

 

Again, I'm not saying it has never happened, but I am certainly not aware of it having happened.

 

That could be because members look to see if the required terms are there and consider it enforceable if they are, and there hasn't been many if any 'test cases' to see what the lowest standard of proof a court will accept.

 

Much of what was said is true - it is an application, and after sending in the application, the applicant could have changed his mind, it could have been intercepted and used fraudently etc, but that is a case where the person would be claiming never to have had an account, which is not the case here.

 

There is another angle. That is an application. To be valid, there must be an executed agreement. If that is not the actual agreement - it is an application to enter into one, then where is the execute agreement, the one with THEIR signature on it? Many banks didnt sign the agreement it was simply filed. If the subsequently end the "agreement" it could be argued that as they never executed the agreement, it was never actually enforceable (part of the CCA). As they then went on to end the agreement, the court cannot make it enforceable (which they normally can if a document 'itself containing all the required terms' exists but has irregularities) as that would mean resurrecting the ended agreement. Again, that angle hasn't been tested

[UnitedFront]

I agree, once again, that an agreement is not properly executed if not signed by the lender as well as the alleged debtor; but once again, the Judiciary have time and time again showed that they are not willing to consider an agreement unenforceable simply on this basis, if all other necessary terms are present.

 

As a matter of interest, could the OP confirm whether the copy that has been posted does, indeed, contain a signature for the lender? It looked to me, when I looked, that it did have and it had been removed prior to posting here.

 

All the best.

Cheers.

UF

[Guest HeftyHippo]

You miss my point UF. Yes a court can make an unexecuted agreement enforcebale if the rqured terms are there. That IS part of the CCA. My argument is that if the unexecuted agreement was ended by the lender, a court may not be able to make it enforceable - how can you make enforceable, an agreement that the lender chose to end before executing it?

 

It might be worthwile if you have threads or references proving what you say as there may be differences between this cae and those that are important

[UnitedFront]

Aha, my apologies, I can see now where we may be crossing wires, somewhat...

 

I don't mean that the court can make an improperly executed agreement enforceable... I simply mean that, in my opinion, if that document was placed before a judge (in its original form) it would, in itself, be considered as a properly executed agreement. Whether this is correct or not, I cannot be certain, but I consider it more likely than not that, certainly in its original form, it would be considered a properly executed. This is obviously a matter of opinion though and, quite clearly, any view expressed on this particular issue is mere speculation as to what would be found in the County Court.

 

I will have a root around and try and pop back with links etc, as you say, as this may help in some way.

 

All the Best.

Cheers.

UF

[Bookworm]

The keyword in that post above was "if".

 

Out of the what, hundreds, thousands, millions? of letters sent every year threatening court action on an unsecured debt, merely a handful will end up in court, and usually by a creditor which either has an iron-cast case, or the amounts are huge, and/or the debtor is seen as easy pickings.

 

Craig, can you please tell us if it's the credit card company themselves who are pursuing you or is it a debt collection agency?

[UnitedFront]

Once again, I agree with you!! The odds of ending in court are very slim. But personally I feel that it is better to be prepared in advance for the worst case scenario.

 

We do appear to be splitting hairs, between us, now. Returning purely to the topic of the thread, the OP was enquiring for opinions as to whether his pursuers has complied with his request. My view is that they have and that what they have sent would be deemed enforceable in its original form. As to its form as a copy, as I have said, purely speculative.

 

All the best.

Cheers.

UF

[UnitedFront]

I do, however, think that the OP should investigate the possibility of claiming for charges and PPI, as this may be of benefit!!

[Craigbadger]

The keyword in that post above was "if".

Craig, can you please tell us if it's the credit card company themselves who are pursuing you or is it a debt collection agency?

 

Well to be honest I think it is just Lloyds sending out letters under SCM and MHA letterheads as the envelopes look like Lloyds letters till you open them.

 

Theyd be wasting there time though taking me to court, no assets other than £1500 car and laptop both used for work, self employed with low earnings.

 

I'm just gonna get on with the charges and ppi now anyway, if I go for contractual interest it will make up a good chunk of the balance.

[Elise08]

According to the Manchester test case if an agreement has been unilaterally varied then they need to produce the original at a hearing, the trouble with mircofiche it can be doctored and then stored, with an original that is not possible so check if the interest rate has chaged since you took the agreement out, the APR or anything in the terms and conditions is different to what is in your statements.

[Craigbadger]

Had a right funny letter this morning from MHA collections, they clearly consider the account active still, they stare my arrears are £374. Strange thing is they say "We understand you are in financial hardship at present and our client is willing to accept 4 payments of £seventy something for 4 months to catch up there arrears and avoid legal action.

They are still adding interest, sending statements and have as yet not put a default on my credit report.

Surely the letter from scm asking for the full balance in july was termination as they broke the agreement.

 

Something I wondered. If they sent me a letter in may saying pay within 14 or you will be defaulted and then didnt add the default till say december do I have grounds for getting them to move it back?.

 

Anyway i'm in the process of working out the contractual interest for the charges I want to claim back, god its hard work.

[Guest]

imo

they don't seem to think that their [problem] formal demand can be regarded as termination/ending the agreement.

If loyds are true to form, the statements will soon stop, and BL S collections (their 2nd inhouse dca) will probably be next demanding the full bal.

[Bazooka Boo]

OK AFAIK & IMO as soon as they or their approved third party requests full amount, then the account is terminated, as soon as an account is disputed then they CANNOT add any more charges to that account, so you need to have a date of when they received your letter which stated you disputed that account.

 

They are still adding interest, sending statements and have as yet not put a default on my credit report

The account enter default 31 days (4 calendar weeks) from the accounts last activity, ie. what went out, or what went in, OR a "written" confirmation that the alleged debt is in fact owed.

[Craigbadger]

Cabot sorry

 

Grrr.

Old Lloyds card, defaulted in 2010.

 

 

Not a huge amount but far more than I can afford.

 

 

Can maybe pay it over a few months.

 

 

Ive just done my tax return and was under the tax threshold if thats anything I can use to negotiate.

 

 

Was thinking of maybe making an offer?,

 

 

I presume if it went for a ccj I would be paying very little.

 

 

Would rather avoid a ccj though if possible.

 

 

Failing that maybe some advice to drag it out as long as possible so I might have a chance of paying.

 

Would I be right in thinking that if I asked for a further 14 days then paid within a month I would avoid the ccj?.

 

 

What a flaming pain.

 

 

These are my agreement and default notices, not sure if I ever posted them up.

 

 

Agreement from cca request with lloyds in 2010. Personally id say whatever that was scanned off is of low quality or they scanned it with something prehistoric

 

 

Name of the Claimant ? Cabot / Weightmans llp

Date of issue – 02 - Feb

 

What is the claim for – the reason they have issued the claim?

 

 

1. The defendant entered into a credit agreement described by the original creditor as LLOYDS BANK – CREDIT CARD

and having account number **************** (‘the account’)

 

2. The claimant, a UK limited company with company number *******, is the assignee

and legal owner of all rights previously enjoyed by the original creditor in respect of the account.

 

3. The Defendant is indebited to the claimant in respect of the account in the sum of 3***.**

 

4. The Claimant claims the said sum of 3***.88

 

What is the value of the claim? £3441.07

Is the claim for a current account (overdraft ) or credit/loan account or mobile phone account? Credit card

 

When did you enter into the original agreement before or after 2007? Before

 

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. Debt purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment?. Unsure

Did you receive a Default Notice from the original creditor? Yes

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Unsure

Why did you cease payments? Unable to afford to continue all debts due to hardship.

What was the date of your last payment? Unsure, may have been token payments as recently as last year, failing that late 2010.

Was there a dispute with the original creditor that remains unresolved? No

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan? No

[Craigbadger]

I still think that there was no terms on the back of the agreement.

 

 

I am having flashbacks now but I remember noticing an unrelated mark on the apparent reverse

like where something had come through like a stamp or pen although nothing corresponded with the front.

 

 

I swear by this point banks were just printing forms off.

 

The SAR did not contain the apparent reverse side of the agreement only the first page.

 

Anyway I guess my next move is to acknowledge and send a cpr request?