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    • Hi all,   I had an Lloyds bank overdraft in 2019 with the overdraft amount being £1350 maxed out by December 2019. I had left the account alone for two/three months as the overdraft fees were basically ruining me(Adding to the £1350 overdraft), i then received a letter from Lloyds asking me to phone them regarding this debt (This was January 2020). I had phoned Lloyds and we went through an expenditure on the phone and the outcome was i was to make payment of £30 towards the debt for 6 months and then after the 6 months is up they would get in touch with me to discuss further options. (There was mention in January that after the 6 months there was a possibility of a loan to pay of the remaining balance and then you make payments against the loan for however many years/months you choose.) It is worth noting that whilst i was making these payments they seized all interest on my account.    I have made every payment since January and have gradually managed to reduce my overdraft down to £1200. My problem is that the bank have phoned as it now at that stage for re-discussion, they have asked me to go through another expenditure and i panicked and over estimated things to make it look like i had less income; not loads but i was in a deficit of -£47. Due to this they said they could not allow me to take out a loan as it would only mean i was borrowing more to pay of debt which they would not allow. It then got passed over to another team and he said that i only had two options. Take a one month break with all interest etc stopped and this will allow me to seek financial advice elsewhere, or they said they would default the payment and i can then pay the minimum i can afford but the default would stay on my credit file for 6 years. He mentioned that they wouldn't take any money of me to help clear the debt as i had a deficit of -£47 and that shows i financially cannot afford to do that option. I have looked at the effects a default can make to your credit file and it impacts it tremendously.   Lloyds asked me how i cover my expenses every month and i mentioned that my Grandparents help me out sometimes with cash flow. So the gentleman at Lloyd's suggested going away and asking my grandparents if they could contribute money to me to help aid in my debt. so that he could go back to the original team(I think collections team) and say she now has this ____ He is due to phone me on Thursday (Tomorrow). I can afford to contribute probably £50-£80 a month but it would mean cutting down on fuel and some other expenses.   Its worth noting that i have a credit card with Nationwide maxed to £1000 too and this will soon be at the stage where they charge interest and i cannot afford to clear this either. Is this worth writing to them about?   Is there anyone that can advise me on what to do to help me pay as little as i can and avoid the default PLEASE, any help is really REALLY appreciated.   Thank you all in advance.
    • In terms of whether or not this is a private sale, clearly it will be for a judge to decide. It seems to me that we have somebody here who bred a litter of puppies and has sold several of them or all of them at probably around £1200 each. I think that is very different from selling your own private second-hand car to get what you can for it in order, for instance, to buy another one. Anyway it's for the judge to decide. In terms of whether or not the seller is aware of the defects – if they are a private seller – all it really means is that they are not subject to sale of goods legislation so that a purchaser in a private sale does not have specific protections. After that you have to fall back onto the common law of contract and once again I think that the liabilities are reasonably strict and I still think that even in a private sale if you bought something with defects which was represented to you as being without defects then you would probably have a good case. In this case, the dog has been accompanied by a health certificate and I think that is as good as any kind of representation dog is without defects. I think we are coming to an altogether more interesting issue. Apparently the dental defect with this puppy is observable and could have been detected by any reasonably careful examination carried out by a reasonable professional. But apparently also there is the possibility that there may be a more complicated problem which could be addressed by work costing up to £2000. What I'd like to know is whether this more complicated problem is as a result of the failure to spot the initial problem. Even if the initial problem had been spotted, with this still be a possibility that this more complicated work would be necessary? I suppose what I'm getting to his that at what point does one decide that a defect is an unacceptable defect or simply a risk that comes with purchasing all animals and therefore could still be considered as "satisfactory" because it would meet the reasonable expectations of any reasonable pet owner. To put it bluntly: are we saying here that if you buy an animal is less than genetically perfect, that you are purchasing defective goods and you are entitled to a refund? Does this mean that all animal traders are obliged to ensure that all the animals they sell are genetically perfect? This is dangerous territory: eugenics.  
    • a dn can be issued even on one default payment.
    • I think I still remain to be convinced that a court would not find the seller's offer to take the puppy back and give the OP a full refund both reasonable and acceptable.   Ignoring that this is the sale of a puppy, isn't this more akin to the private sale of a second-hand car?   I don't really know what the phrase:  "I recently bought a puppy from a home breeder. They have never breed dogs before and aren't a licensed business" means.  Is this a business to consumer sale, or is it simply the opportunistic private sale of puppies from a domestic litter?  I think the OP needs to establish this because it's not clear to me - yet.   AIUI, if I as a private individual privately sold, say,  a car with umpteen non-apparent faults or defects with it, but I was honestly unaware of them and could not be expected to be aware of them, then I'm not liable for any breach of contract when those faults and defects manifest themselves to the buyer a week later.  Isn't that what worried private sellers of cars are told here when aggrieved purchasers threaten to sue them?  It's not immediately obvious to me why this is necessarily any different - unless this is clearly a business to consumer sale.   The OP also says:  "Our puppy was sold as having passed a full health check from Vets4Pets", and so far as I can see this isn't disputed.  Unless that health check revealed the dental problem the OP is now complaining about, but the OP never was shown it (seems unlikely that the seller would mention it but not make the results available), then I think the seller may well be entitled to rely on it.  What more could they do to ascertain the health of the puppy?   I think this is not necessarily a clear-cut claim, and from the way the OP describes the breeder I think the question whether this is a consumer sale or a private sale may not have a black or white answer.     1.  The OP mentions following advice to buy puppies bred from a "home pet" (or similar such wording).  Not clear if this was the case here, but if it was, doesn't this suggest a private rather than consumer or trade sale?   2.  The OP also suggests that the health of the puppy was misrepresented, but is this necessarily correct?  They say the puppy was advertised as having had a "full health check", but that's not the same as saying the puppy was actually healthy.  And if it was a private sale, is the seller required to declare health problems they are aware of if they aren't specifically asked?
    • Ok,    I thought it may of helped as their DN stated 2 installments in arrears when it was issued on 10/2/17, but it would infact only have been 1 installment overdue 17/01/17.   I will keep to what I already know and stop over thinking further issues. 😁    
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Neeta

Idem PAP LOC now claimform - 1995 MBNA Card debt

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Thanks Andy, apart from that do you think the rest is ok.

Would you feel reasonably comfortable sending that as it is (without point 6) ?

 

Couple of other things...

 

They do have a point in that we had continued to (stupidly I get that) pay for years and could that go against us?

Or is our argument that they can't prove there is an agreement between us and them our strongest point here?

 

Also is the fact that there were 2 accounts with MBNA a fact we can use as a point of our confusion

- ie How can they prove that this application form relates to one or the other when there are no account details?

 

Just looking through the paperwork they have sent as part of their witness statement, there is a covering letter from MBNA to IDEM with the account number as reference in response to a request for the CCA under Section 78 of the Consumer Credit Act 1974.

 

I guess this links the 'agreement' (application form) to that particular account. 

Although the point still remains that the application form has no reference numbers on it and the Conditions of Use are generic.

 

Should I take out the references to 2 accounts (which were both with MBNA) or re-word ?

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I wouldn't muddy the waters with the second MBNA Agreement...adds nothing to your defence ...keep to the particulars of claim add nothing.

Its irrelevant whether payments have been previously made and do not support any question of whether the agreement is enforceable ...thats in the past...this is now and have they got all the valid paperwork to support their claim.

 

Im going to rejig your statement as it does not flow correctly....

 

Headers and footers as per guidance...

1.      I make this Witness Statement in support of my defence in this claim.

 

2.  On or around 14/11/19, I received a claim form from the County Court Business Centre, Northampton, for the amount of £5700.36.

The claimant contends that the claim is for the sum of £5700.36 in respect of monies owing under an alleged agreement with the account no. ******* pursuant to The Consumer Credit Act 1974 (CCA).

 

3.  Contained within the claimants particulars the claimant pleads that the defendant has failed to make contractual payments under the terms of the agreement and that a default notice has been served upon the defendant pursuant to S.87(1) CCA.

 

4.  I understand that the claimant is an Assignee, a buyer of defunct or bad debts which are bought on mass portfolios at a much reduced cost to the amount claimed and which the original creditors have already written off as a capital loss and claimed against taxable income.

 

5.  As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party.

 

History

 

6.  In September 2018 I had reason to check my online credit records and noted a default on my account which I was unaware of. As guided by the credit report I contacted IDEM at the time and requested information regarding these defaults.

 

7.  I did not agree with the reasons I was given for the defaults being on my account so I sought advice and as a result in January 2019 I sent IDEM Capital Securities Limited a Credit Card Agreement Request pursuant to Sections 77 – 79 of the Consumer Credit Act.

 

8.  I received a letter dated 10th January returning my £1.00 postal order and stating I would receive a response within 12 days. Attachments xx

 

9.  I received a further letter dated 19th March from IDEM stating they had now found the CCA and enclosed a copy of an application form with generic terms and conditions that they state was for the amount and account on which this claim is based. (Exhibit 1a)

 

10. The application form and terms and conditions I received are attached.

 

As per Section 61 (1) of the Consumer Credit Act (1)A regulated agreement is not properly executed unless:-

 

(a)A document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor and by or on behalf of the creditor or owner,

The application form does not contain a reference or account number and the terms and conditions are generic in format, contain no identifying references and may or may not apply to the account. 

 

11. With regards to their various responses to the requests detailed above the claimant has produced what they describe ‘Copy’ of the default notice.They provided a version of a default notice on IDEM letter headed paper and stamped ‘COPY’ their argument that this was an administration error and accidentally printed on IDEM headed paper does not hold weight where additional documents originally sent by Moorgate were sent on Moorgate headed paper.

 

12.I argue that this is not in fact a COPY of an original default notice, that they state was issued during May 2014, but that this is a fabricated version of a default notice created by IDEM. Either way the default notice was not issued by the original creditor (MBNA)

 

13.  It is therefore contended that the original creditor failed to serve a valid Default Notice pursuant to section 87(1) Service of a notice on the debtor or in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor of a regulated agreement.

 

Conclusion

 

14.  The Claimants pleaded case is that the Defendant entered into an agreement with MBNA. I have in fact had a few different agreements with them in the past and it would appear that the claimant is mixing two different agreements and using incorrect amounts to support its claim.

 

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

Therefore the claimant is put to strict proof to disclose a true executed legible agreement on which its claim is based and relies upon.

 

16.  Until such time the claimant can comply and disclose a true executed copy of the agreement they refer to within the particulars of this claim they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974.

 

17.  Therefore, for the above reasons the claim bought by the claimant is without merit and an abuse of the court process.

It would be far gracious and forthright for the claimant to admit that they do not have possession any valid paperwork and this is an attempt to convince the court that the claimant can disclose the legal valid documents on which its claim relies on.

 

SOT

 

Signed date.

 

 

 

 

 

 

 

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Thank you so much Andy. I'll get that printed and the copies done today and posted.

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:yo:


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Sorry - one last question before I go to the post office, do I need to copy and send all the associated documents since it went to small claims track? i.e. previous defences etc? The Claimant has included those in their pack but I'm not sure if I need to do the same?

 

Or just stick with attaching the

1) first reply from claimant,

2)reply including application form,

3&4)fake default notice with the true copy from Moorgate as  evidence?

 

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Any document that you have referred to in the statement and wish to rely on as evidence must be attached and marked on the statement correspondingly ...(Exhibit 1...Exhibit 1a.....Exhibit 1b ....etc...see point 9 above in the statement.


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I feel like such a t1t! I was just going to head out to the Post Office, checked the document sent by the court for the address to send to and then noticed that : the court considering that the case is appropriate to be determined on paper pursuant to CPR 27.10.

 

Goes on to say - confirm that he/she agrees to the court determining the case on the papers file and served.

The case shall be considered by the court on the papers without the attendance of the parties on a date time detailed. (17th July)

Later...

Unless both parties confirm agreement to the case being determined on the papers the claim will be removed from the list and adjourned to a later date.

 

Should I send the statement but state that I (hubby) wish to attend in person? Or just send a letter at this stage saying I wish to attend in person?

 

So sorry to be a pain I feel like a total tool now, I received the letter, saw the date and clearly got confused by the notes talking about choice to attend.... :(

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you want the opportunity to cross examine them in person

 

dx

 

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please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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That does not make sense Neeta...does it not state.....?

 

" Unless both parties confirm agreement to the case not  being determined on the papers the claim will be removed from the list and adjourned to a later date. " 


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It definitely says what I put Andy,  I posted it earlier in this thread but attaching it again here.

sct 1.pdf

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It does.....but it also states that within 14 days of the date of the order you should inform the court if you agree it should be determined on papers only...that being 15th June ?


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Totally confused now.  Have I missed all the deadlines ?  I did ask when I got it, as it said 14 days whether I should reply by 14th. 
 

Given the current circumstances am I left with no choice but to send the statement and have it determined via the paperwork only?  If so I need to get it in the post. 

Please don’t think I’m taking this lightly, and I’m not making excuses but the same as many others the past months have been extremely stressful, my hubby has been taking care of his parents and I’m trying to manage multiple things including this while working full time and overtime. I read up on things when I have time but that’s a very limited amount of time. 


 

 

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you have until 3rd july to file your stuff to the court and the claimants solicitor (if they have one)

in a sep letter state you do not agree to a paper only hearing

 

follow each part of 1. on the order.

 

andy ....should he put in a costs list too??

 

thats my take..

 

i can see them discontinuing and you getting costs here?

as £335 is a steep fee they'll never get back and your costs will be cheaper??

 

dx

 


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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You did indeed and we advised to wait for the hearing......but we expected you to respond to the order and inform them you didnt agree with papers only by the 15th June.

 

You could always attach a letter to your statement stating that you don not agree to a papers only hearing...they may let it through with covid etc...

 

Not sure what you mean by requesting Costs DX ?  Why ?


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i was commenting on the courts order whereby it says if the claimant fails to pay the £335 fee by 10th july, .....

unless the court orders otherwise, you will also be liable for the costs which the defendant has incurred...

 

dx


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Unless the court orders otherwise......given that the court will strike it out and it wasn't discontinued by the claimant...I doubt any costs would be awarded....and Discontinuance costs do not apply in SCT.


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

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Thank you both, much appreciated.

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