Bank lost default notice CPR 31.14

[mar1kos]

My bank is taking me to court unsecured loan.

i am preparing my defence however under CPR31.14 the bank is claiming that they dont have a copy of the default notice.it is submitted that under CCA 1974 does not require the claimant to keep a copy.Postage alone constitutes service, by reason of section 7 of the interpretation act 1978.There is no record of the Default Notice being returned.

Any help or suggestion will be appreciated.

Edited June 5, 2012 by mar1kos

[Guest]

in general. creds rarely do keep copies of correspondence sent, rather just a note on their system showing what has been issued/sent. unless shown otherwise, an affidavit by them saying that one was issued and posted would, together with their erecords, prob satisfy a j. and if j is cred friendly, unless shown otherwise it would prob be deemed to have been compliant. on balance.

any further background info/thread on this? is this loyds? their common response.

have you done a sar?

Edited June 5, 2012 by Ford

[mar1kos]

Thanks for your reply

I have not done sar yet it is Lloyds

I requested for the letters in the Particular of Claim Using CPR 31.14 I did not get nothing back except credit agreement which is OK

No default notice and no letter before action mentioned in the POC received

.

How am I supposed to know that the default notice sent is valid as far as cca 1974

[Guest]

loyds' e records would show whether a dn was issued or not. a sar would usually furnish copies of their e records system, if they send all data.

as said, they'll prob do a statement saying that one was issued/posted and rely on their e record (if one was issued) and postal rules re service which say if deemed posted and not returned then deemed delivered. they would prob also turn up with e record, and a generic compliant template dn saying this is what would've been sent. unless proof to contrary their friendly j would prob accept, on balance. but, then again he/she might not. j lottery as they say.

yes, argue that didn't receive. and, if they don't have an e record and 'template' then things could be more difficult for them to prove.

no lba/pre action compliance prob wouldn't on its own defeat their claim, but it should be mentioned. and it should go against them to some degree.

Edited June 6, 2012 by Ford

[postggj]

how does the op know if the default notice was compliant as to the default and terminations regulations

 

before a creditor can instigate court action they must send the op a default and termination notice

 

remember under the anti money laundering regs the creditor has to keep these records for a minimum period of six years

 

i myself would use this in a defence stating something like

 

the defendant denies the account was defaulted and terminated as to the default and termination regulations and i put the claimant to strict proof such notices were isuued

 

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&sqi=2&ved=0CFUQFjAA&url=http%3A%2F%2Fwww.legislation.gov.uk%2Fuksi%2F1983%2F1561%2Fcontents%2Fmade&ei=po3OT42WO8zAswao9d3qCg&usg=AFQjCNHS0MWKMu25j9Pv0wMnbLAoP75WOQ

[Guest]

how does the op know if the default notice was compliant as to the default and terminations regulations

 

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read my posts carefully. in the absence of an actual copy of what (if anything) was sent, q is what the j accepts on balance re the evidence before the court.

 

yes, put them to proof. and their 'proof' would be pretty much what i posted. they then discharge their burden. then up to the defendant to show otherwise. all decided on balance. not as simple as you may think.

Edited June 6, 2012 by Ford

[mar1kos]

Thanks so much for your help..I will do that ...put them to strict proof .

I also have another point to raise in my defence I need advice urgently.

Regular statements under section 77A ..I wrote to bank 15 months ago requesting the first yearly statement I never got a reply nor the statement.

For the year 2 I got the statement as required.

Are they still in breach of section 77A ..?

[Guest]

marlkos

post up fuller details for more specific help perhaps?

could still do a sar? would cpr 18 be of any use?

if their e records don't show a dn being issued, then they prob wouldn't have sent one. its all computerised.

Edited June 6, 2012 by Ford

[mar1kos]

SAR request done but defence will be submitted by 11th june 2012.

[Guest]

re dsar, it would be the diary list (cdr dept) that shows whats been done on an account with category, dates/times, letters/ references, calls, description/activity, creator etc. and, there should be an entry with description 'default notice', if applicable.

Edited June 7, 2012 by Ford

[Guest]

for info, note that they may refuse/redact a dsar given that litigation has started.

Edited June 28, 2012 by Ford