1st credit and Lloyds TSB Platinum credit card

[hunterandthehunted]

is this ok for the case summary which has got to be presented by the 12th of this month for the application hearing. i have got to

resent a summary of issues as well which i will compile over the weekend

 

CASE SUMMARY

 

1/ On the 16TH March 2009 I wrote to Lloyds TSB requesting a true copy of the Credit Agreement pursuant to section 78(1) of the Consumer Credit Act 1974.

 

2/ Lloyds TSB replied to my request on the 19th August 2009 supplying an Application Form on what appears to be microfiche.

 

3/ On the 17 May 2009 I sent Lloyds TSB a Subject Access Request, under the Data Protection Act 1998, for a list of transactions and charges. On the 29 June 2009 I received statements for the period covering July 2003 to July 2004.

 

4/ On the 19 July 2009 I sent Lloyds TSB a second Subject Access Request pointing out that statements were incomplete. I received a second set of statements exactly the same as the previous set.

 

5/ On the 13 August 2009 a third Subject Access Request was sent to Lloyds TSB asking for specific statements dated for the period June 2002 to July 2003. I received a third set of statements on the 15 September 2009 dated from September 2003 to October 2004.

 

6/ On the 31 July 2009 I received a Claim Form from Lloyds TSB for a debt totalling £9314.29. In the Particulars of Claim, it is referred to as a Lloyds Asset card and also refers to clause 7, 8 and 9 of the agreement. However the document provided by the Claimant, does not include clauses 7, 8 and 9 and also refers to a Lloyds TSB platinum card.

 

7/ On the claim form the Particulars of Claim refers to a Default Notice which was allegedly issued in September 2006. The claimant has admitted on there filing of standard disclosure that the original application form/agreement was copied onto microfiche and subsequently destroyed. The claimant has also admitted in an application to set aside that they do not keep copies of Default Notices and therefore cannot back up there claim that a default notice was ever served.

 

 

8/ On the claim form according to the particulars of claim the defendant has defaulted in his payment and is in breach of the payment clause of the agreement. It is denied that the defendant neither defaulted nor is not in any breach of any agreement.

22. A default notice is a required by section 87(1) of the Act before a creditor can become entitled to take any action in respect of a regulated credit agreement.

 

 

27. On the 27th October 2009 district judge xxxxxxx in the xxxxxx County Court ordered that the claim be allocated to fast track and the parties give standard disclosure to all parties by serving copies with a disclosure statement by 4pm by the 13th November 2009 and in particular the claimant shall disclose.

 

a) copies of the credit agreement and any documents referred to within it.

b) default notice

c) statements dated from June 2002 to November 2006

 

 

 

[lilly white]

yes

[lilly white]

h we stand our ground

[hunterandthehunted]

h we stand our ground

 

thanks lilly

 

lilly will the case summary in post 310 count for a summary of issues as well

 

i need to send a draft order for directiond sought as well

[lilly white]

i need to send a draft order for directiond sought as well

 

set out like this

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order file and serve the following:

 

 

 

1) The executed Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the Claimant seeks to rely upon.

 

2) Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

 

3) Copies of any statement or other document relied upon including proof of the amount of the debt and how it was accrued.

 

6) If the Claimant fails to comply with this order, or any specific direction/disclosure, the claim will be struck out pursuant to CPR 3.4.2 ©

 

The Defendant shall within 14 days thereafter file and serve the following:

7) An amended defence sufficiently particularised in response to the documents supplied by the claimant.

 

case summary

 

as per witness statment

[hunterandthehunted]

ok all done, thanks lilly,

i added in the directions and was very specific about the years missing statements. i also sent **** a copy of the directions and case summary

along with my phone number as they have to organise the telephone hearing.

 

some pointers on how to present my issues would be helpful and just to let you know, the trial is set for 1.2.10

Edited January 11, 2010 by hunterandthehunted

[lilly white]

ok good

 

our case is built around the fact that we apply for a credit card re the application.

 

the account was closed

 

lloyds issued another card without an agreednment.so we are saying

 

I would further highlight that Lloyds TSB subscribes to the Banking Code, as a requirements f the code, they are required to lend responsibly and they clearly have failed in their duty under the code.

 

It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement to cover the outstanding statments.

[hunterandthehunted]

ok good

 

our case is built around the fact that we apply for a credit card re the application.

 

the account was closed

 

lloyds issued another card without an agreednment.so we are saying

 

I would further highlight that Lloyds TSB subscribes to the Banking Code, as a requirements f the code, they are required to lend responsibly and they clearly have failed in their duty under the code.

 

It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement to cover the outstanding statments.

 

yep that makes sense, what about the default notice as this is what the hearing is

mainly for. the claimant argues that they dont need it. just some pointers on how to

argue in the correct manner would be nice

[lilly white]

DEFAULT NOTICE

 

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

 

 

 

 

 

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

 

 

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid.

I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach

. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

 

 

 

 

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice,

I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

 

 

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255).

but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

 

So where is it simple question

[hunterandthehunted]

thanks lilly

[hunterandthehunted]

i will update after the hearing is tomorrow

[cymruambyth]

Good luck.

[vjohn82]

All the best

[hunterandthehunted]

thanks ,

Edited January 15, 2010 by hunterandthehunted

[citizenB]

Didnt realise it was today. Good luck

[hunterandthehunted]

the hearing has just finished and i have to say that i have gained some confidence.

 

i was nervous and sumbled on what i was trying to say and i could'nt find the relevant paperwork at the right time.

the judge was reasonable and resolution was we go to trial as things stand.

 

the judge did not rule that the claimant did not have to provide a default notice (which is what the claimant wanted) but he also pointed out that if the default notice did not exist, it could not be provided.

 

the judge also asked me about my further directions sought, namely the statements that have not been provided.

i told him that i had applied via SAR 3 times and also via a CPR 31.14 request and i also pointed out that it was an order of the court for the claiment to disclose.

 

the claiment butted in and explained that they only have to prove that the debt exists.

the judge said if the statements dont exist they cannot be provided and it would have to be argued out at trial.

 

every time i pointed out the relevent sections of the act relating to the CCA act he quickly explained to me that i dont need to point out the law to him but i think he was impressed that i had submitted the consumer credit (enforcement, default and termination notices ) regulations 1983 as he refered to them a couple of times when the claimant was harping on about default notices and also mentioned that i had submitted them.

 

the bottom line is, i think that the judge has sat on the fence and allowed us to do battle at the trial on 1.2.10 as things stand.

 

the judge asked if the claimant if he would like to add anything and he responded by saying that i had not signed the witness statement.

the judge said the courts copy is signed so not a problem.

 

would the defendant like to add anything?.

yes it is averred that the claimant is placing the defendant at a significant disadvantage in these proceedings and it is argued that the claimant has not proved sufficiently that the defendant has a case to answer.

the claimant has also missed all deadlines of filing of documants by order of the court.

the judge said that he has noted my comments.

 

now what i need is some legislation to prove that the bank has to produce those statements.

the cca is dated june 2002 and i want statements going back to that date.

 

p.s. is it to late to get a solicitor as i think i have a chance of winning and dont want to blow it.

Edited January 15, 2010 by hunterandthehunted

[citizenB]

Excellent, you now have a little court experience as well.

 

Naughty, naughty opposition for butting in like that.

 

TBH, I dont know whether it is too late for a solicitor or not. I will flag your post up for the site team see if we can get some advice.

[hunterandthehunted]

Excellent, you now have a little court experience as well.

 

Naughty, naughty opposition for butting in like that.

 

TBH, I dont know whether it is too late for a solicitor or not. I will flag your post up for the site team see if we can get some advice.

 

thanks citizen,

is there some legislation somewhere that states that the bank have to provide all statements and documents from the day it was opened. the claimant has said that they were destroyed, although they have not said this in any SAR or CPR 31.14 request, they just ignored them.

Edited January 15, 2010 by hunterandthehunted

[citizenB]

thanks citizen,

is there some legislation somewhere that states that the bank have to provide all statements and documents from the day it was opened.

 

The only thing I know of is the Money laundering / tax laws that state key documents need to be kept for so many years 5 for tax and 6 for ML I think AFTER and business relationship has ended. One assumes that a credit/running account means that they need to keep these documents for a lot longer. All the information you require is in the quote below.

 

 

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007 and The Civil Evidence Act 1995.

Document Retention

 

According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

I would suggest that where a loan has been taken out to repay an earlier agreement, at the very least, a copy of the original agreement should be kept - although this is something that a court may need to rule on.

 

Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

http://www.consumeractiongroup.co.uk/forum/legal-issues/72876-mercers-barclaycard-12.html#post1755248

[citizenB]

Another thought springs to mind. If the earliest statement you have is not the FIRST one, then it will have a b/f balance on it. How can you be sure that the balance stated is correct without the others to prove it

[hunterandthehunted]

Another thought springs to mind. If the earliest statement you have is not the FIRST one, then it will have a b/f balance on it. How can you be sure that the balance stated is correct without the others to prove it

 

we have done this one before citizen,

from the first statement lloyds provided (july 03) the balance was zero

[citizenB]

we have done this one before citizen,

from the first statement lloyds provided (july 03) the balance was zero

 

Yes, of course we did. But wasnt there some question about this being from 2002 ?

[hunterandthehunted]

Yes, of course we did. But wasnt there some question about this being from 2002 ?

 

not sure i understand.

yes the account opened in 2002 and closed in 2003. i rang them up and asked if i open up an account again and they obliged. the start date being

july 03. they have provided a cca for the former.

 

on the first statement provided in july 03 it states:-

 

"balance from previous statement" £0.00

[citizenB]

not sure i understand.

yes the account opened in 2002 and closed in 2003. i rang them up and asked if i open up an account again and they obliged. the start date being

july 03. they have provided a cca for the former.

 

on the first statement provided in july 03 it states:-

 

"balance from previous statement" £0.00

 

Aha, ok. I think I will need to go back and read the thread.

 

So, by providing a statement that suggests there was at some point a previous balance they are then able to use the agreement for an earlier date. Rather than providing one from 2003 which is when you believed you had a New agreement. I think I am with the plot now.

 

IMHO, you need for them to provide at least the statement before the one they have provided you with. This would prove that you cancelled the account.. yes ?

[lilly white]

well h not bad not bad at all.

 

we stand our ground when does it go full trial if it does.

 

lilly

 

ps well done