?/Hillesden claimform - old LLoyd OD debt

[hmmh1978]

Marloes, do you not admit to having opened an account with Lloyds? That is the banality of the holding defence. It is not a "defence in law" as there are some things which you cannot deny.

 

The holding defence is contrary to CPR 16.5 which is why I mentioned CPR 16 in the first place.

 

However I wish you luck with this and hope whatever happens, you come out of this unscathed.

 

Good luck.

[marloes]

As I will state in my defence I neither admit or deny the allegation of opening said account, that is entirely in line with the CPR. The law in small claims is clear - the burden of proof lies with the claimant. Are you suggesting that anyone on here admits liability for a debt that the claimant can in no way prove?

[hmmh1978]

As I will state in my defence I neither admit or deny the allegation of opening said account, that is entirely in line with the CPR. The law in small claims is clear - the burden of proof lies with the claimant. Are you suggesting that anyone on here admits liability for a debt that the claimant can in no way prove?

 

You may do what you want.

 

However I have to correct you for the record and suggest you read the whole of the CPR before you say something is in line with the CPR as a CPR rule is not an island.

 

First of all, you have to read just the first rule to see the overriding objective:

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01

 

... and as part of that, to keep the points of contention down and to keep expense/time wasted to a minimum, admission to what ought to be admitted is not only good practice but is supposed to be a rule.

 

Also, read CPR part 16.5(4):

 

(4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

 

So it is already implied that the claimant will have to prove their case with regards to money owed as part of that rule. No one admits liability by admitting to opening an account. It is obvious you opened an account and had use of it.

 

You are supposed to admit those facts for which there is no point in denying. By denying the obvious, you are not doing yourself any favours and leave yourself open to a Part 18 request by the claimant if they are on the ball and for which there is no hiding from. This Part 18 request if refused, can be enforced by an order of the court with you stumping the costs for this.

 

Tactically, there is more to a "Holding Defence" than meets the eye.

 

As I said, good luck and I hope it works out for you and I only meant to correct a wrong which I perceived before it can happen.

Edited May 27, 2012 by hmmh1978

[marloes]

Anyone got any advice / info on the following.

 

Defense submitted 27/28th May this year,

Hillesden then sent some statements re this account in response to my defence but none of the other documents eg assignment notice etc.

 

nothing happened until 2 days ago I received court letter stating Hillesden have applied to have my defence stuck out.

Is my defence likely to be stuck out if they issued the claim with no supporting docs, failed to meet my CPR requests and then left the matter stayed for two months?

[citizenB]

Can you be a bit more specific - have they applied for summary judgment !!

[marloes]

Hi again.

Haven't updated for a while but here goes...

 

The claimants did nothing for two months after I submitted my defence.

I then received a letter from my local court informing me of an application notice to strike out my defence on the grounds that it was not likely to succeed.

They ticked the box for no hearing but the judge has issued a 20min hearing at the end of this month.

 

The only docs I have received from the claimants are incomplete statements after my CPR requests were ignored and my defense submitted.

They have still not provided any facility letters, terms, annual statements, default, termination etc.

 

what are my options?

Can I apply for anything or should I just attend the hearing and defend myself.

Am I even allowed to speak at the hearing or will the judge just be concentrating on the merits of striking out.

In fact what happens at a strike out hearing?

If anyone can inform me I'll be most grateful.

Thanking you.

Marloes

[Ford]

nothing for 2 months after defence? presume then it was stayed?

if so, seems they are applying to lift stay and strike out? seems they are using cpr 3.4 etc. also see practice direction 3a. etc

yes, you can (should) attend and defend yourself and speak.

[marloes]

I don't know if the claim was stayed.

They are stating that my defence has no chance of success

- they didn't comply with my CPR requests and only sent statements after my defence had been submitted.

 

Some one told me I should amend my defence since the DCA sent the statements.

They have sent nothing else.

 

I don't know what to do and only have a couple of weeks till the hearing.

I read about Robcags success with Irwin Mitchell as they couldn't provide a facility letter.

How are overdrafts enforceable at court?

I know there are new EU 2010 rules on overdrafts but do they apply retrospectively?

[citizenB]

Looks like they are applying for a Summary Judgment.

 

You have the right to submit a Witness statement in rebuttal, but there is a time limit. It should say on the form what the time limit is for you to do this.. I think it might be 7 working days.

 

Have they provided a witness statement of their own, you need to go through each point and respond to it.

[marloes]

The letter I received is a ' Notice of hearing of Application' (N244A). It states:

 

'The hearing of the claimant's application to strike the Defence will take place on the xxxx of November'

 

On the copy of the application under the question- 'What evidence will you be relying on, in support of your application?' the DCA have ticked next to 'the evidence set out in the box below'

 

The following is their 'evidence'

 

The defendant states in her defence that she is unsure what the proceedings relate to as she has not received any supporting documents to the claim. (No docs sent with P.O.C or after I sent a request under the CPR)

 

This claim relates to a current account and overdraft facility xxxxxxxx provided by xxxxx bank on xxxxx 2003. Hillsdoom purchased the account on xxx 2011. Exhibited hereto marked xxx and xxx are copies of the Account Sale agreement and bank statements.

 

Following the issue of the claim the defendant filed a request for disclosure of the documents the claim relies on. This has been done on xxxx 2012 in a letter xxxx. The claimant has not received a response. (They sent statements not in my request under CPR but two months after I had submitted my defence)

 

Prior to the change in the Consumer Credit Regs in May 2010, an overdraft would not have required a signed agreement. Further, the defendant would not have received a default notice in the prescribed form as an overdraft is not subject to repayment by way of agreed instalments; the full balance becomes due upon the demand of the lender.

 

In consideration of the above, we submit that the defendant does not raise a valid defence to the claim and request that the defence is stuck out and the claimant be able to enter judgement for the full sum claimed.'

 

I don't know if I should amend my defence. I know that I would have to pay their costs if I do.

 

Advice appreciated - I haven't got long until the hearing. Eeeek

[Ford]

 

Prior to the change in the Consumer Credit Regs in May 2010, an overdraft

would not have required a signed agreement

 

that bit is correct (provided they have claimed exemption), but an o/d facility letter should be required instead.

not sure about a d/n, some do send one. a d/n is re a 'breach' of an agreement ie a default in the agreement not just instalments. what do the terms say re overdrafts? did they call it in/end re a breach ie 'by reason of any breach by the debtor or hirer of a regulated agreement'?

if you do want to try and settle/come to an arrangement prior, could do so. a consent order for eg may be required.

Edited November 5, 2012 by Ford

[marloes]

Thanks Ford.

 

Agree no signed agreement needed re OD'S but they have not disclosed/ sent any facility/opening letter. Will check re default notice.

 

what do the terms say re overdrafts? did they call it in/end re a breach ie 'by reason of any breach by the debtor or hirer of a regulated agreement'?

 

Can you clarify this? Do you mean any terms the bank may have sent me, the DCA's terms or terms in the legislation?

 

Someone has advised me to submit an amended defence. I'm now thinking of admitting taking out the current account/od but stating that I believe the account is unenforceable. I found a defence Andy wrote for a similar case stating the following

 

DEFENCE

 

1 The Defendant admits having had a Current Account with Overdraft facility with xxxx and which was regulated by The Consumer Credit Act 1974 (The Act).

Agreements covered by a s74(3) determination, and satisfying the relevant conditions, are exempt from most Part V rules including s61(1) on execution.

 

No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which xxxx and/or the Claimant may have complied therewith and the extent to which the Defendant may not have complied therewith. Further and alternatively, it is denied that any agreement was properly executed and/or is now enforceable in whole or in part.

 

2.A request for information concerning the Claimants Claim was made by CPR request dated xxxxxx to date the Claimant as failed to fully comply with this request and await any Termination Notice and statements in support of their claim.

 

I'm thinking this would also be applicable as my amended defence although varied to suit my case. I've also never received a termination notice - neither did I receive annual statements which I believe are required by law. Lloyds whacked on over £750 of charges despite my not going above the authorised od limit.

 

What's your opinion??

[Ford]

Can you clarify this? Do you mean any terms the bank may have sent me, the DCA's

terms or terms in the legislation?

 

s87 consumer credit act

(1) Service of a notice on the debtor or hirer 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 or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

 

an o/d is subject to the ccact as running credit. seems to depend on whether there was any 'breach' of banks current a/c and o/d terms, and whether o/d ended/called in re a breach? their terms will no doubt try to get around this.

 

you mention earlier that their particulars of claim say agreement was defaulted? therefore shouldn't there be a d/n?

 

re amending a defence; would normally require permission either from claimant or court. poss costs consequences involved?

Edited November 6, 2012 by Ford

[Andyorch]

Think carefully before the submission of an amended defence marloes its a step backward and a sign of weakness.You really only need submit a good WS with substance at this stage to thwart their application of SJ.

 

Their application evidence looks goods at first glance but then their are failings also on further reading...

 

I will get back to you later marloes with some pointers re the WS.

 

Regards

 

Andy

[marloes]

Just been though my docs again and can find no default notice from Lloyds.

I stopped payment mid 2006 and the last time LLoyds wrote to me was 2009.

Nothing happened until 2011

 

I received a letter stating the debt had been assigned to Hillsdoom (does an assignment have to be in a prescribed form?)

I've two assignment letters,

one in July 2011 and then they sent another 'reissued for completeness' in August 2011.

Is that normal??

 

although I receive no default or termination from Lloyds,

Hillsdoom sent me a 'notice of default sums' on the day they issued their claim and then another one after that.

 

Also before action they sent me a threatening letter stating

' As you have failed to maintain acceptable payments...we have made enquires with the Land registry and have received notification you are a home owner.

Is now our intention to commence legal proceedings against you.

 

Once a County Court Judgement has been obtained, a further application will be made to secure this debt against your financial interest by way of a charging order'

[Ford]

looks like then they may have sent required notice of assignment?

they sent 'notice of default sums' (not a proper d/n) which indicates an agreement default ie poss need for a default notice?

have you done a subject access request on this?

anyway, see what andy comes back with.

[marloes]

Not sure if these assignments letters are in the prescribed form. If anyone can point me to the required form of assignment letters it would be helpful. Read a post here on CAG where someone said that the law of property act applies to assignment of debt. Haven't done a SAR - is it too late and how would it help?

[Ford]

don't think there is a prescribed form as such, so long as there is sufficient prior notification of assignment as the property act requires.

can still do a sar, though they might refuse given there is current litigation but that can be challenged. it could've helped re creditors records/actions showing eg what has been sent, assignment, def notice, demands, also re transactions, charges, any ppi, etc.

see what andy comes back with.

Edited November 5, 2012 by Ford

[Andyorch]

Hi

 

Ok there is no Default Notice for an Overdraft its called a Notice served under Sections 76(1) and 98 (1) of the CCA1974.Its a recall/termination notice and should allow 14 days to propose payment arrangements otherwise the overdraft arrangement will be terminated on that date & recalled on demand...by use of a court order if necessary.

 

Regards

 

Andy

[Ford]

s76(1) only applies to fixed term agreements ie a loan for eg and not an o/d (running credit). and s98(1) applies to 'non default cases', also re fixed term only?

Edited November 5, 2012 by Ford

[Andyorch]

I can see you have not grasped the mechanics Ford of how an O/D facility works from your previous posts. An O/D is fixed term arrangement subject to review at the banks discretion.Its not running credit.

You cant default on an Overdraft there is no CCA agreement to default on ...you service it with your deposit.If you fail or deposits are not satisfactory or exceed the agreed limit...they recall demand and terminate.

There is no breach because there is no agreement...its a facility provided by the Bank at their discretion and can be recalled for any reason at anytime.

 

Regards

 

Andy

[Ford]

chill. blimey you are sensitive.

re 'running credit', see for eg consumer credit act eg;

 

'Facts

 

. Under an oral agreement made on 10th January, X (an individual) has an overdraft on his current account at the Y Bank with a credit limit of £100. On 15th February, when his overdraft standards at £90, X draws a cheque for £25. It is the first time that X has exceeded his credit limit, and on 16th February the bank honours the cheque.

 

Analysis

 

. The agreement of 10th January is a consumer credit agreement for runningaccount credit. The agreement of 15th–16th February varies the earlier agreement by adding a term allowing the credit limit to be exceeded merely temporarily. By section 82(2) the later agreement is deemed to revoke the earlier agreement and reproduce the combined effect of the two agreements. By section 82(4), Part V of this Act (except section 56) does not apply to the later agreement. By section 18(5), a term allowing a merely temporary excess over the credit limit is not to be treated as a separate agreement, or as providing fixed-sum credit. The whole of the £115 owed to the Bank by X on 16th February is therefore running -account credit'

 

Edited November 6, 2012 by Ford

[Andyorch]

Im simply defining that there is no DN you keep referring to a default Notice thats all.

[Ford]

was posing the question whether a dn would be required! in a recent thread natwest said re an o/d that they would send a def notice if goes to collections!

and, if it is running credit then s76, 98 would not apply!

Edited November 6, 2012 by Ford

[Andyorch]

Thats for the benefit of the debtor Ford...far easier and less complicated to explain with more desirable results than to inform them they will send a Demand/Termination Notice..or to give it its legal title

" Notice served under Sections 76(1) and 98 (1) of the CCA1974."

 

Regards

 

Andy