?/Hillesden claimform - old LLoyd OD debt

[Andyorch]

Agreed like arguing the virtues of an overdraft and its requirements instead of preparing a WS with substance to oppose their application but its a trap that most litigant in person fall into.Look its not disputed that you held a current account with O/D facility

You have to convey that the amount claimed is wrong and mitigate the value.Question the legality of assignment by all means question the fact that there must be a letter of Facility along with a Notice served to terminate said O/D.

 

Have you been served a copy of their WS in support of the Application for SJ or is it just stated within the application (apologies if I have already asked this)?

[marloes]

The DCA have included no witness statement, have stated they wanted the application dealt with without a hearing but the judge has given one anyway. Their evidence is a couple of paragraphs in the box on the form which state the following: ' An overdraft doesn't require an agreement', there was no need for a default and that as they have supplied statements they have complied with disclosure I requested. They then state I have no valid defence, my defence should be struck out and judgement for full sum allowed.

[Andyorch]

Excellent shows their experience requesting a SJ without Hearing:roll: Marloes if you can be around tomorrow and I will assist with your WS......In need of my beauty sleep now.

 

Regards

 

Andy

[marloes]

Ok, appreciate your help. Sleep well.

[Andyorch]

Just having having a bite to eat first..if you wish to start a draft...... bullet point your main concerns and basis of defence Marloes

[Ford]

marloes

like you, didn't get any prior notices re calling o/d in, just a demand for full payment! as mentioned, don't think any are technically required. had a look at their terms, not much there of any help. old terms mentioned something re 2 mths, but new ones don't mention that. am challenging things re fairness, bcobs for eg. is not at your stage though.

at least you now know things re an o/d 'agreement' . know what you meant though, they mentioned an agreement and default in claim which is why you asked them about it.

Edited November 14, 2012 by Ford

[Ford]

ps, an interesting read http://www.consumeractiongroup.co.uk...-With-Costs***

[marloes]

Hi Ford. That thread re Irwin/Natwest shows that ODs do need an agreement - Judge thought so too. I've found nothing in the CCA 1974 that says OD'S are exempt from default/ have checked regulations and there are no exemptions for running account credit which is legal speak for od's.

 

Re WS - have never written one before but my main points are statements only are not enough as they don't show the terms and conditions, the charges and why/how they're payable. The account has to be terminated etc.

[marloes]

Can anyone tell me the legal position when the original lender failed to comply with the CCA eg default and termination etc and then sells the debt on to a DCA. Does it mean that the DCA has bought an account that should never have been sold.

[Andyorch]

No......they can assign any time they feel like.

[Ford]

Hi Ford. That thread re Irwin/Natwest shows that ODs do need an agreement - Judge thought so too. I've found nothing in the CCA 1974 that says OD'S are exempt from default/ have checked regulations and there are no exemptions for running account credit which is legal speak for od's.

....

 

as i see it, robcag put forward in WS at SJ hearing that claimant needs to show compliance with the determination to avoid the need for an agreement re part V, and if no compliance then would require part V agreement and all that goes with it. ie would be a 'triable issue' to determine whether compliance or not, which J agreed. claimant later then discontinued, for whatever reason (prob couldn't show the required compliance. apart from the 'it was standard practice to send them', which J didn't accept re SJ). depends on the J on the day though.

perhaps give him a shout for input?

 

re loyds' o/d terms see para 10 of their current terms (says normally 30 days notice re o/d change). but, what were the terms at time of calling in? maybe not much, but maybe something else that could be mentioned in favour?

 

just for reference re above post, bcobs mentions that 30 days notice required re closing an account. but was it in force at the time. just a small general point in discussion

 

anyway, how did the ws go?

[marloes]

Thanks for replies Ford and Andy.

 

Well have submitted WS so now will have to see what judge says. Ford - agree with you on them needing to either show compliance with determination in order to have exemption from Part V. They state they don't need any form of agreement.

 

I'm still reading/learning about default situation. I can find no exemption for overdrafts in the CCA re defaults. My account was closed and they also (in my opinion) vindictively closed another current account at the same time which wasn't overdrawn. Didn't know my rights back then.

 

Also interestingly they claimed shortly afterwards that my mortgage was £800 in arrears when a few months earlier they had allowed me to change the length of the mortgage but on the condition that I was up to date. When I queried this they stated that it was C&G's mistake (they'de merged) although I've never had my mortgage with C&G. Anyway, the supposed arrears were paid but when I asked for statements of arrears I was sent from dept to dept who couldn't/ wouldn't supply statements. This is still not resolved and I'm slowly going back over 17 years of statements to try and find out where supposed arrears occurred. Don't trust LloydsTSB at all.

 

Hope u can hold off your creditors for OD as long as poss. Mine was only 2 months from being statute barred.

 

BTW are there any threads on here of people who've been to SJ hearings so I can read what to expect.

[Ford]

..... Ford - agree with you on them needing to either show compliance with determination in order to have exemption from Part V. They state they don't need any form of agreement.

 

...

 

as said, it seemed that thats what robcag argued at SJ (supported by claimants own ws) and the J there agreed that it would be a matter for trial etc so SJ was refused. if there is exemption, then the part v requirements for an agreement would not apply re the o/d. but, an 'o/d facility letter' should then be required. as per that oft determination. he also threw in default etc notices etc for good measure. in robs case, they later discontinued. but it seems to have resurfaced via a dca?

as you say, up to j. if j considers that there are triable matters/reasonable grounds/real prospects/other 'compelling reasons' in defence then SJ/strike out should be refused. would then proceed as normal. if sj/strike out refused, get your costs.

Edited November 18, 2012 by Ford

[marloes]

Thanks Ford.

Didn't know I could get costs if they dismiss SJ.

How does that work??

 

if Andy or anyone else around with experience of SJ hearings then I would be grateful for an idea of what happens, what questions the judge is likely to ask ?

 

what happens if other side doesn't turn up?

Edited November 18, 2012 by marloes
Spelling error

[Ford]

Thanks Ford. Didn't know I could get costs if they dismiss SJ. How does that work?? ...?

 

it's their application, so if it fails you get your costs re that. you then ask the J for your costs (J should address the matter anyway). prepare a reasonable schedule of costs re the app'n/hearing just in case. note the litigant in person rates.

note it works the other way as well, so if they do get sj/strike then they will prob ask for their costs.

Edited November 18, 2012 by Ford

[marloes]

Ok - do I need to hand my costs to the judge on the day or can I send it in afterwards?

 

Forgot to ask - what happens if claimant doesn't turn up for SJ hearing?

[Ford]

can do on the day, j will then decide. otherwise perhaps for costs re costs to be determined/agreed between parties if awarded subject to, otherwise if no agreement then an application?

 

ps, if they don't turn up, still will prob be heard in their absence (unless they've asked for adjournment), then maybe their application will be more likely refused unless overwhelming otherwise. they asked for without hearing but ct said no will be a hearing. if they don't turn up, could remind j that they couldn't be bothered to turn up. again, depends on j on the day. no guarantees.

Edited November 19, 2012 by Ford

[marloes]

Thanks again Ford. Will look into how to prepare cost schedule.

[Ford]

http://www.consumeractiongroup.co.uk/forum/showthread.php?326875-***Change-to-Litigant-in-Person-Rates*** Edited November 19, 2012 by Ford

[marloes]

In court tomorrow so will post what happens..

[Ford]

good luck tomorrow. re prep, focus on your ws and the legal issues first. on the day if their application fails just ask j for your costs if j doesn't address it, which if awarded amount can be dealt with later if not on the day.

Edited November 21, 2012 by Ford

[Ford]

marloes

how did this go? presume it went against? ie J on the day didn't accept what robcag succeeded on? or is it no news = good news?

[pinny24x7]

Hi Marloes

 

Any updates on this? In a similar situation myself.