1st credit claimform - LLOyds card - Defended, DQ/Mediation help

[69Eyes]

I am struggling to get them neat and tidy... each attempt seems to make it worse so I'm giving up

[Old Cogger]

2 are showing your name and info, try cover them up then post = for your own safety posting, otherwise o.k.

[Old Cogger]

they are o.k. now

[citizenB]

Where are the terms and conditions ?

[theoldrouge]

well page one is an application form , no heading as a credit agreement

 

the recon agreement contains the wrong name and address (see carey v hsbc)

 

so does not satisfy even a s78 request imo

 

plus no t &cs at closure

[69Eyes]

Thank you! Which ones are showing the info?! I thought I was really careful... and even now I'm looking for it, I still can't see it....

[Old Cogger]

Thank you! Which ones are showing the info?! I thought I was really careful... and even now I'm looking for it, I still can't see it....

 

post 53 says o.k. now

[69Eyes]

FWIW, on the application form, it says at the top (though it's faded out in the middle) something like: "If your application is accepted by our signature below and we send you a card, then this will form the agreement btween you, the principal card holder and Lloyds TSB Bank PLC."

 

The T&Cs were included after the application form. They looked like they were taken from the same document, but I don't believe they are because of the address issue.

[69Eyes]

post 53 says o.k. now

 

Did that mean you fixed it? In that case thank you v much.

[Guest]

trust them to respond to the cca request in time

re default notice; you can still get them to show that one was issued (not 'would have'), and was mostly compliant. loyds comms logs will show whether a def notice was issued.

also, any 'recon' has to be accurate (kotecha v phoenix case), and whether or not it wld satisfy a matter prior to april 07.

[69Eyes]

[removed] How come I have to spend days collating info and submit it all 14 days in advance

... then they pull it all out of a hat in the last 5 days?

Despite me requesting it for years!

 

 

So should I mention all these points at the court hearing?

It's on Tuesday, so I guess it's too late to sumbit anything else to the court by post.

I have no idea what to expect, how I should be presenting my argument or anything.

 

And if the court rule in their favour, I'm worried I'll get CCJ'ed

Edited March 10, 2016 by dx100uk
behave - dx

[Guest]

yes, they are points to mention, and anything else as mentioned.

they say in their statement that a def notice was served, can they show it. show the logs. a def notice, if applicable, is a statutory requirement under section 87 con credit act. and that if deemed served, to show that it was compliant according to the def notice regs.

 

if it goes against, then you wld have a judgment against. but, that can be cleared if paid in full within 28 days.

up to you whether you want to try and see it out, or try negotiate/settle something before, or at the court doors.

[69Eyes]

Thanks for all your input. I have collated all the points you've raised, researched around them, and tried to make sense of it all.

 

 

Below are the points I am thinking to raise during the hearing - but I'm not sure how strong a case I've got...

 

Default Notice

 

They should be able to show me that a DN was issued from their logs. As of yet they have only stated that one 'would have' been issued.

 

If I could say with certainty that one had NOT been issued, I expect that would be a valid defence. However I cannot. The truth is that I just can't remember.

 

 

No T&C at Closure

 

Someone mentioned that there were "no T&C at closure". Does this refer to the part of the application that is signed? Becuase upon close inpsection there is a reference to "terms overleaf and the full Conditions in the Customer Copy". Or have I misunderstood?

 

 

Accuracy of Terms and Conditions

 

The address they have on the TC is 10 years too late! So they're clearly not the actual document from 2001. This might also indicate that it's not an accurate recon. However, it COULD be - I have no way of knowing.

 

If that were brought to their attention, wouldn't they just change the address and say "now it's accurate"?

 

 

Carey v HSBC and Phoenix v Kotecha

 

A couple of folks have referred to Carey v HSBC. As I understand it, the take-away from this is

"HHJ Waksman QC made it clear that the creditor does not need the original agreement to produce a true copy, he can rely on records held in computers and other sources to produce a true copy of the agreement, the only caveat is that the copy must be honest and accurate".

Similarly, the Phoenix v Kotecha case concluded that the agreement provided was unenforcable becuase

 

the interest rates on the agreement provided did not match those on the application, and interest rates were deemed to be a "term of central importance" to an agreement. Therefore it was demonstrated not to be an accurate reconstruction.

Other than the erronous address, is there any way to demonstrate the honesty / accuracy of the T&Cs I've been provided with?

[69Eyes]

I cut it down a bit because it is rather wordy:

 

Now when the original signed application form / agreement is sent to the debtor and there are part terms or no terms, then technically the agreement could be unenforceable .... for example the lender sends a set of terms purporting to be from 1998 with a registered address from 2001. The problem with those sections of the Consumer Credit Act is that they are suspensory and can come back to bite you, why? Because the creditor can remedy the s77,78 or 79 breach even on the day of the trial. As much as i find that galling, it is true sadly as can be seen in Harrison v Link Financial Limited. Link via MBNA had made numerous failed attempts to comply with the relevant provisions yet they had botched it up over and over, it was pretty spectacular really, it was like "heres a true copy, no heres a true copy, no we got that wrong too but honest this one is really the right one".

Edited March 10, 2016 by Andyorch
External link removed

[Guest]

you seem to have the main issues in hand.

re carey, there is more to it, re proper execution of an agreement, not necessarily in favour of the cred.

[theoldrouge]

From Carey

 

The copy of the agreement must contain the name and address of the borrower as it was at the time it was signed. The creditor can supply the name and address from whatever source it has for those details. It does not have to take them from the executed agreement itself. If the agreement had been subsequently varied by the lender then the lender has to supply a copy of the original agreement as well as the varied terms.

[69Eyes]

Thank you.

 

If I argued that the agreement was unenforcable because the address on the terms is incorrect, is it not likely that they would re-submit the T&C with the address corrected?

 

There's an outside chance that they might not have those details, but I wouldn't bet on it.

[dx100uk]

they cant just copy, cut and paste stuff they have from a filing cabinet to make them look correct!

[69Eyes]

I wish you were my solicitor! I'm not confident that I'll be able to come out with the right comments / points when I'm put on the spot.

 

So when I'm in with the judge, would I say something like this?

 

"Sir, I question the accuracy of these T&C because they contain an address that was not in use until 2010"

[theoldrouge]

You would state that the t he recon could not possibly be a true copy of any agreement that you signed as required by s78(1) cca1974

due to the address on the recon being one

that you lived at from 2010

 

Up until the time of judgment they are able to remedy

but you would point out that they have already had

x months/years to get their house in order as regards paperwork

[69Eyes]

Thank you, that's very helpful.

 

With regard to the application form... it does appear to be my signature on there. Is that relevant if the T&Cs are not a true copy?

 

I'm wondering what kind of questions I will be asked? And should I be giving as much info as possible? Or as little?

[AndyOrch]

69Eyes...I think it may be prudent to stop thinking too deep at all the possible scenarios at this stage...your initial defence will be vague in response to the claimants vague particulars initially....its only once you test them and they decide to respond/proceed with the claim would all the above come into play.

 

Relax and enjoy your weekend.

 

Regards

 

Andy

[69Eyes]

Ta Yeah TBH I did think that the court hearing would be a make or break moment. And been pretty worried since they sent the docs through at the last minute (which was unexpected to say the least).

[Guest]

they sometimes do that (send things last minute) unfortunately.

what i meant before if re a judgment is that if it is paid within 28 days then it wont appear as a judgment record. what roughly is the value of the claim again.

your defence was a bit vague, but you mentioned the agreement requirements in it, so its all related to be considered by the J if needs be.

[69Eyes]

It's £3k+ so unfortunately there's no way I'd be able to pay that within 28 days. My main defence was - despite repeated requests - they had never provided me with a copy of the agreement. But now they have (albeit with a ropey recon of the T&C).