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    • look at the timeline in the poc carefully. the a/c was defaulted 30th april the A/C was not sold till 21st june, some 2mts later   I would suggest the £499 was refund of interest or charges or WHY from the OC, hence the different wording to the phantom £1 payment some further 6mts later they claim by you.   the MBNA SAR will most probably clarify the 1st part and should be arriving well in time for your bundle exchange   at that time 2012 -14 were you ever aware of what questioning a debt was all about ?? or were involved in any other debt whereby you used a CCA request etc or were in any kind of debt management etc etc.. we don't have old thread history to guess your background.        
    • get on to Lidl head office and the local press and lay it on with a trowel. Ask the council if there are any conditions in the planning consent that palce limits on parking times- many have a minimum of 2 or 3 hiours free parking and that cannot be changed arbitarily by either Lidl or the parking co. If there are conditions make a big fuss and tell Lidl that you will be going after the closure of their store if they dont tell Athena to wind their neck in   See the case of Tandridge and Caterham branch of Morrisons which was a Somerfield. In short 3 hours free parking  as a minimum, Morrisons chaged it by hiring parking cowboys who limited it to 1 hr when they took over the store and the council told them they would close the store for breach of planning consent if they didnt tell the parking co to do one. Parking co realised they would never make money like that so skulked off.
    • The POFA allows the parking co to create a KEERPER liability if certain conditions are net. POPLA have got the timings wrong as the parking co is allowed 12 days plus 2 days for service so they mut send out the NTK in time (28th) regardless of whether it drops on your doorstep within the 14 days. So they failed to create a keeper liability- this doesnt men that there wasnt a contract with the driver but they cant assume that the keeper and driver are one and the same but this has never stopped a parking co from persuing the person named by the DVLA even if the procsessing of your personal data is unlawful cos they ahve screwed up on their dates. tyhye just lie to the courts and hope.   The BPA will do nothing other than side with the person who pays their wages for the above reasons. they will waffle about assumed driver still a contract so someone ahs to pay and it will be you unless you name someone esle etc. All cobblers but they cant burst the bubble.   Better off saving ink and fighting the parking co if they want to start something but let them waste their time and money in the meanwhile. If the car aprk is local to you get some pictures of the entrance, the signs in there and piccies of any signsthat are different to the signage at the entrance. tell us about the event, the place, time what it is they said you did wrong etc
    • this is for the court claim one should be on your other thread please      
    • no, as numerous threads here regarding AP already shows, AP stays for anything upto 12yrs and kills the score and the account thus remains on file. a default notice should have been issued after the 3rd payment which did not meet the org payment terms of the signed agreement.   the ico is even down on record stating the same about this AP marker, it should not keep an account showing on credit files nor effect one's score whereby otherwise it would now have been removed or the score improved after 6yrs
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barafear799

Hoist Claim Form - TSB Lloyd trustcard Credit Card debt

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Ok, I've since had a letter from the solicitors.

But all it contained was a copy of the Mediation details "urging" me to complete what I had to do. 

 

This rather preempted my next question.

 

I'm assuming I do not contact the solicitors and chase up the appropriate paperwork

- nor do I let them know my reason for turning down mediation

- this is all just done through the official channels?

 

Thanks

 

 

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yep


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Ok, quick update on this. 

Mediation didn't happen - mainly because I missed the deadline for agreeing to the date - I didn't realise the deadline was quite so tight - and I had been away for the weekend and not reading my emails - anyway - although it was bad to not formally respond, it didn't really make too much difference because due to the lack of viable evidence provided by the claimant, mediation would have been pointless.

 

So I've been waiting to head what court date has been allocated to my case. However, instead I received a "General Directions or Order" letter. 

 

Sorry - I meant to bring it in (to where I'm writing this).....but basically the gist of it was that the claimant had 14 days to respond providing evidence e.g. signed credit agreement etc. - and then I had 14 days after that to respond stating whether I accepted that evidence and whether I wanted to withdraw defence. 

 

The letter was sent around the beginning of the month - therefore their 14 days are more or less up - I haven't heard anything - albeit, I need to factor in postage times - but surely this means my 14 days are not really 14 days....but more a case of the time left before the end of October and when or if I get anything from the court of the claimant with their evidence.

 

My question really is: 

 

Is it a stupid question - but I cannot really do anything until I receive anything - at the moment, the court won't know what they've sent me (in response to my CCA request) - i.e. the poorly presented application form - meaningless statements - no clear signed credit agreement etc. - so this step is basically the court asking whether there is enough evidence in order to allocate a court date?

 

I'm assuming I should get a copy of whatever the claimant provides to the court?

 

Many thanks

 

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Hi,

 

The deadline was yesterday for the claimant to respond and they did - I got a large pack in the post. 100 pages in all!!! 

Consisting of their witness statement, followed by " the purported credit agreement" - and then just numberous statements - conveniently with a 10 year gap between the "signed agreement" and with a different account number - as previously mentioned. 

 

There's also copies again of the assignment notices from both LTSB and Hoist (and their various umbrella companies) - with the previously mentioned anomoly of the outstanding amounts being vastly different - LTSB being almost £2000 more - am I to believe that Hoist just wrote off £2k? 

 

I didn't really follow that what I received previously was the cue for me to be thinking about a witness statement. but that is what they have provided. 

 

So, they have added 7 pages to what they previously described as the "signed credit agreement" - clearly the additional 7 pages are just a set of terms and conditions which they have plucked out of somewhere and are now trying to fob off as being part of my signed agreement. 

 

I now have until the end of October to state whether I am still in dispute - clearly I am - but I would appreciate some guidance with putting together what I need to put together. 

 

Is it a full "witness statement" - and rebutting the "evidence" (or lack thereof) that they have provided?

 

Many thanks

B

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scan it all up inc the exhibits 

we don't need all the statements

but the 1st page of it will do to see where they came from.

 

remember one multipage PDF only please

 


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Thanks DX. 

I've ploughed through the pages and dug out what I feel are the relevant ones.

Obviously, some of these are duplicates of what I've put up before. 

Anyway, I would be hugely grateful if someone can look over and advise.

Reading though other posts and on other cases that I've had help with from here, I don't think they have much of a case - given the weakness of much of their "evidence" - but obviously I would be grateful for some expert advice from the helpful souls on here. 

 

Thank you. 

 

B

 

 

 

 

 

all other letters.pdf claimant_[part]_witness_staement_(1).pdf

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quick notes:

you don't need to redact random parts of date entries

whats the crack with not bothering to redact any of the exhibits?? ive done them all now

 

seems like the writer of the WS is trying to craftily say they are going to rely on hearsay evidence and evidence from the CLAIMANTS not the ORIGINAL CREDITORS data systems for some very important [and potentially fatal to their claim] information: namely

 

the defaulted date para 10/11.. [from the claimants records]

 

crap WS 

you should win this easy

 

ive merged and uploaded all your other previous upload above too for ease.

 

dx

 

 


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Hi,

 

Having had a PM exchange with Shamrocker (thank you) I've been advised to upload the General Order/Judgement that was sent to me at the end of September. 

Can someone (possibly Andy) clarify that I need to complete a WS for my "side of the bargain".

 

Obviously, I have just received and uploaded the claimant's WS so I suspect I do, but the actual order was "vague". 

 

Many thanks

B

 

General Order & Direction Oct19.pdf

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No you dont have to submit a witness statement ...nor did the claimant ....the Order dated 10th Sept quite cleary requests documents  relied upon...not a statement to fudge matters and reasons for not having the correct documents.

 

Simply inform the court in writing by the date stated that the claim remains in dispute...I assume it is still in dispute and they have not satisfied your requests for disclosure ?

 

Andy


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Thanks for the prompt response.

 

Although I will feel slightly awkward putting in a two sentence response to the claimants 100+ page WS!!

 

Should I allucidate on the exact reasons for the dispute..

.i.e. no proper signed credit agreement primarily plus a few other points of shoddy paperwork or audit trails.

 

Thanks Andy and everyone else.

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100 + ?   I count 4 pages...the rest is guff...now whether you accept the guff then that decides if you wish to inform the court you wish to proceed or whether you wish to admit...either way you have not been directed to submit a witness statement ....that comes after allocation should the claim proceed.....not at this stage.


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Thanks Andy.

Sorry to ask a stupid question - but in my response, how deep do I need to go.

 

Do I simply state "I am still in dispute with the claimant's claim, therefore I cannot withdraw my defence" or do I need to state "because the purported credit agreement does not meet the requirements of the CCA, in that it is not a signed copy of the original credit agreement.....at best an application form .....and very illegible." 

 

Sorry - just wanted to ensure I was as thorough as I needed to be. 

 

Thank you once again.

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No depth or detail needed. Just give it the appropriate heading, details of the claim, etc... and state something like:

 

"Further to the Order of the Court, dated _________, requiring the Claimant to _________________________________________, the Defendant confirms having received the Claimant's submissions in response. After giving consideration to the contents, it is the Defendant's position that the claim remains in dispute.

 

Yours faithfully,

 

Barafear

(Defendant)"

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Hi. Another update, another request for assistance/clarification of legal jargon.

 

I completed the above steps within the timeframe required, and have since been waiting for any correspondence from court or claimant regarding any further steps. I have actually been expecting a date for the case to be heard at my local court. 

 

But instead, yesterday, I received a further letter asking for further info. 

 

I won't bother to scan it because it is quite short - so verbatim this is what it is/asks:

 

Again it is a "General Form of Judgment or Order"

 

And states:

 

"Before Deputy District Judge xxxxx sitting at the County Court at xxxxxx."

 

IT IS ORDERED THAT

 

1. By no later than 4pm on 12th December 2019 the Defendant shall file a formal defence to the claim"

 

So, my question would be: 

 

Is this now my cue for a "witness statement" 

 

I'm assuming I now need to expand on my original defence way back within the first 28 days after the claim was served on me? 

 

I will be "picking holes" in the info provided by the claimant

- focusing on the lack of "signed credit agreement"

- and the default notice served by the original creditor

- on which the claimant relies on their own internal management system?

 

Assistance much appreciated. 

 

Thanks

B

 

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I suspect the judge is giving you the opportunity to change [should your wish] anything in your initial defence now that the claimant has played their hand.

it doesn't say witness statement but formal defence.

 

dx

 


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Particularised defence...a statement


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A statement? Same format as a WS? 

In effect, asking me to do what the claimant has already erroneously provided?

 

So, just to clarify, is this to be based on rebutting their statement and arguing that the evidence they have provided is irrelevant or does not prove the debt is outstanding or that they have the right to collect/pursue it. 

 

thank you.

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I've been researching in preparation of compiling my particularised defence/WS. 

 

I'm none too happy that some judges still seem to be siding with DCAs and seemingly brushing aside anything that we have assumed to be "necessary" for DCAs to have a winning case. 

 

Reading a recent "summary" from another poster (another thread with case similar to mine - very old, illegible application form, no default notice, reliance on their own software to prove it was ever sent) and the judgment made in favour of the DCA and even suggesting that there was no "agreement with the DCA, they simply owned the debt, not the agreement" 

Makes me very nervous. 

 

Especially if cases like this will be judged on "probability" - the probability that if I signed the original application form, then I must have taken out the credit card and racked up the alleged debt as shown in statements enclosed in their WS (and dated some ten years later).

 

Is it ok to post some "evidence" I've found from elsewhere? 

 

This is in line with my fears that regardless of how hard one tries to rebut the "lack of evidence" produced by DCAs for chasing these very old "alleged" debts, it does appear to come down to the luck of what judge you get on the day and how much they can be swayed by the DCA solicitor. 

 

A quick Google search produced the following - from one case - this related to a credit agreement - which resulted in someone being made bankrupt - that person appealed the bankruptcy order on the grounds of defective credit agreement and default notice and this was the appeal judge's decision:

 

  1. The necessary formalities for the entry into the regulated consumer credit agreement (which related to the debt in issue) were not complied with;
  2. The default notice served in respect of that credit agreement was defective.
  3.  

The First Ground

The Appellant argued that she did not receive the terms and conditions when she entered into the credit agreement and, accordingly, section 61 of the Consumer Credit Act 1974 (“CCA”) had not been complied with and the agreement could not be enforced. The agreement had been entered in 1995 and, whilst it had provided a microfiche copy of the front page of the application, the Respondent had been unable to provide a copy of the terms.

 

Despite the terms not being produced, the District Judge had found that, in the circumstances, it was very likely that such terms existed and would have been provided to the Appellant when she entered into the Agreement. Mr Justice Mann held that this was a finding that the District Judge was entitled to make.

 

Further, Mr Justice Mann found that it was implicit from the District Judge’s findings that she considered that the terms and conditions not only existed but had been subscribed to by the Appellant’s signature and, consequently, the requirements of section 61 CCA were fulfilled. Mr Justice Mann held that this was also a justifiable finding which should not be interfered with on appeal.

 

The Second Ground

The Appellant also argued that the default notice upon which the Respondent relied did not comply with the Consumer Credit (Enforcement, Default and Termination Notice) Regulations 1989 because it stated the full balance of the account rather than the total of the missed payments. The Respondent argued that, as a result of the missed payments, it was contractually entitled to the entire balance subject to the service of the appropriate notice, a requirement which was fulfilled by the default notice itself and, consequently, the sum required to remedy the breach was the entire amount.

 

Mr Justice Mann agreed with the Respondent and the District Judge, holding that:

“If by the time the default notice is served circumstances have arisen which entitle the lender to recover not merely sums which might be regarded as arrears, by which I assume is meant accumulated minimum payments, but also the whole of the sum, then they are entitled to claim that sum, and the sum to require to remedy the breach for non-payment of that sum is the payment of the whole sum due. The bank is not confined, at that stage, to claiming merely the amount of arrears if it has an accrued contractual right to have the whole of the sum.”

 

Do judgments like these not mean that a lot of what you guys do on here (and for which I and many others are VERY grateful) somewhat redundant. What is happening to judges just accepting "well, the terms must have been there if you signed it" - 

 

Feeling quite nervous now.

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nothing you can do can protect against the very rare judge lottery syndrome.


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I've been reading up on cases, especially the HSBC vs. Carey.

Am I missing something? 

 

It appears to be the conclusion that the decisions in this case meant that regardless of what date credit agreements were entered into, a claimant no longer needs to produce a signed copy - or even original copy. 

 

It appears that a reconstituted copy of agreement is acceptable by a court and any judge that seems to be swaying towards using it as a reason to find against a claimant could easily be reminded or prompted by their solicitor. 

How do I defend my case to be any different? 

 

It will clearly be a case of :

 

It looks like you probably had a credit card.

They've produced a copy of original agreement and added your name and address - so that's good to go.

They've got a statement showing a balance outstanding.

Therefore, game up - why are you even bothering to defend?

 

I am working on my "Formal defence" 

 

Can I just ask for some "bullet points"

 

So far - my main arguments will be that the requested "credit agreement" is not a credit agreement - it is a barely legible application form - which does not bear any account numbers which correspond with the statements produced by the claimant nor match the agreement number included in the original claim (POC). 

 

Secondly, as helpfully highlighted by DX, their WS is relying on a screenshot of "the claimant's predecessors system screen" to show that a default notice was issued on 08/06/2010; clearly there is no copy of said Default notice.

 

Other items I have up my sleeve - should I include? - are the discrepancy in the amounts owing between the Assignment notices - Lloyds stating a figure in excess of £6k (dated 29/6/19) and a letter from Hoist informing me of this assignment but stating an outstanding amount of £4.5k (the amount of the claim). 

 

Clearly, the lack of reference numbers - i.e. their claim does not match the 16 digit credit card number shown on the numerous statements they have included in their WS. And do not match a number shown on the blurry application form.

 

Also, the application form is dated 1998, the first statement they provide is 2010 - can I use this gap/lack of evidence in my favour?

 

I notice on my "illegible" application form there was a reference to "credit card payments insurance" (I assume this is PPI) - during my research, I'm sure I read that any t&c provided should also include this - I notice their seven added pages make no reference to PPI - which even if I didn't take it out would surely have been needed to be included?

 

So - just to summarise - is it the "poor quality credit agreement"; the fact that they haven't even declared that they are producing reconstituted copies of t&c and the lack of default notice having been issued - well lack of copy?

 

On the flip side - where do I stand in terms of the payments I was making - allegedly to this account - via Robinson Way? Is that a case of acting dumb/naive?

 

Thanks very much everyone.

 

Barafear.

 

 

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carey is not applicable

and even if it was....

your agreement is pre apr 2007 

 

forget doing their job for them.

 

 


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It's been a while since I had my head in this subject area, but Carey v HSBC was based on determining what the creditor could do to fulfill their obligations when issued with a s.77/78 request by the debtor. It determined that a reconstituted agreement would satisfy the request, so long as it was a true copy. It does not mean the agreement is enforceable if put before the courts. The debtor could, if provided with a recon, decide to accept it and carry on as normal, or dispute it (and potentially withhold payments until the dispute is resolved - if ever).

 

You are in the position of disputing the recon as being properly executed (amongst other things), which is now at the stage of being put before the court to resolve. Your protection is s.127(3) of the CCA 1974 (repealed in April 2006), which states:

 

s.127 (3)The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

The above is what makes a recon unenforceable in your case - but, you need to make a positive assertion to that effect.

 

Whilst DX says Carey is not applicable, I think it's relevant.

It explains the role of a recon in law, and it also explains what a properly executed credit agreement looks like, to the extent that could be declared enforceable by an order of the court.

 

It also confirms that the creditor can continue to attempt collection of the debt, but they have no means of recourse through the courts.

 

I would certainly be quoting Carey in support of an assertion that the claimant's recon is unenforceable, and s.127(3) prevents the court from making an enforcement order where s.61(1) was not complied with - as appears to be the case. 

 

You will need to spell it out for the court within your statement though.

If the claimant is relying on their recon as evidence of their compliance of s.61(1)a then they fail comprehensively due to... (list the points) ...look up what the required prescribed terms are and list them as not being present (the text cannot be read, so they cannot be said to exist on the agreement), and also that all the terms are not contained within the one document (Carey case goes into this in some detail).

 

You can also throw in your other points relating to the balance and reference numbers, default notice, etc.

 

Pull their case apart with as many arguments as you can.

Explain why certain things are needed for the claim to succeed and how the claimant's case does not stack up on those points.

Force the claimant to defeat your arguments with appropriate proof/evidence.

Cast doubt in every direction you can, but properly support your arguments.

 

Hope this helps.

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