Lloyds/SCM claimform - credit card debt *SETTLED BY TOMLIN + PPI RECLAIM**

[lindyhop]

Hi Ford

 

i really do appreciate your taking the time to get back to me on this.

 

update.

 

i have obtained a copy of their witness statements which states that 'the claimant does not have to produce the original documents, which are no longer available' the copies held on the claimants computer systems and exhibited here are admissible by virtue of section 8(1) and 9(1) of the Civil Evidence Act 1995. The claimant now certifies for the purposes of section 9(2) of the CEA 1995 that the recon copy is a true copy which forms part of ........' attached also is a signed certificate

 

however there are errors in the recon!

my case is pre 2007!

 

additionally there have been several change of account number - no new t&C's or even notification of change notified to me the defendant.

 

further in their witness statement (which i think they must use for all their cases) is the statement

 

the claimant is not rquired to provide a copy of the actual signed agreement by virture of Carey & other v HSBC bank PLC. His Honor Jude Waksman QCs verdict on various issues arising out of s78 (and by anology s77) of the CCA 1974 stated:

 

there was no need to keep the orignal signed agreement: lenders can satisfy s78 (and it follows s77) by providing a recon version of the excuted agreement.

 

is this section of their witness statement correct? i thought that Waksman was used to showed that an original signed agreement was needed to enforce!!! have i got this completely wrong? or got my understanding mixed up?

 

at least now im clearer about my redress to the points they are relying on, but am desperate for advice as i am doubting my understanding of the research ive been doing.

 

HELP!!!

[lindyhop]

Hi Ford

 

i really do appreciate your taking the time to get back to me on this.

 

update.

 

i have obtained a copy of their witness statements which states that 'the claimant does not have to produce the original documents, which are no longer available' the copies held on the claimants computer systems and exhibited here are admissible by virtue of section 8(1) and 9(1) of the Civil Evidence Act 1995. The claimant now certifies for the purposes of section 9(2) of the CEA 1995 that the recon copy is a true copy which forms part of ........' attached also is a signed certificate

 

however there are errors in the recon!

my case is pre 2007!

 

additionally there have been several change of account number - no new t&C's or even notification of change notified to me the defendant.

 

further in their witness statement (which i think they must use for all their cases) is the statement

 

the claimant is not rquired to provide a copy of the actual signed agreement by virture of Carey & other v HSBC bank PLC. His Honor Jude Waksman QCs verdict on various issues arising out of s78 (and by anology s77) of the CCA 1974 stated:

 

there was no need to keep the orignal signed agreement: lenders can satisfy s78 (and it follows s77) by providing a recon version of the excuted agreement.

 

is this section of their witness statement correct? i thought that Waksman was used to showed that an original signed agreement was needed to enforce!!! have i got this completely wrong? or got my understanding mixed up?

 

at least now im clearer about my redress to the points they are relying on, but am desperate for advice as i am doubting my understanding of the research ive been doing.

 

HELP!!!

[Ford]

the Mould has posted authoritative info re matters prior to 07. ie if they are relying on that 'agreement', they would need to show that there was a signed doc that contained all of the prescribed terms. the Wilson case is the then House of Lords, which supercedes any lower court unless distinguished on the facts.

imo, the carey case related to a cca request under s77/78 only in that a recon (ie no original) would satisfy such a cca request. thats all. they cherry pick. you cherry pick as well. have a read of the case what was said in that case and use anything in your favour.

plus, any cca request response must be proven accurate (subsequent Kotecha v Phoenix court of appeal case confirms this)

also, if an account has been closed prior and subsequently 'upgraded' or changed there may be a requirement for a new agreement under the agreement regs. there was a recent case on that re a store card that confirmed that. check with citizenb i think on that.

but, beware, that it all depends on the judge on the day and what the j accepts.

Edited May 16, 2013 by Ford

[lindyhop]

Hi again Ford

 

i note the points you make, and will also ask for input from Mould and CitizenB.

 

to take a step back for just a second.

 

SJH = once a judgement has been made at the close of this hearing, there is not another hearing/trial to attend unless an appeal is submitted(?)

 

Strict Proof = the fact that on the POC defence i put the claimant to strict proof by production of an original agreement is meaningless(?) as this has been ignored (partly because they no longer have an original agreement) so their 'strict proof' is the recon (which through sloppy admin has errors that they may or may not be aware of)

 

change of account numbers= brought to my attention by their witness statement. card would appear to have morped from basic/silver to gold. they state that amendment of account numbers and transfer of balances took place, and that this was covered by the sending of a new card with the new number. but surely with an upgrade to a gold account i should have been offered a new agreement to sign or not??? i would agree with the point you made on this, and hope that CitizenB will be able to provide some guidance.

 

the claimant also states that under CPR 24.5(1) should i rely on written evidence at the hearing i must file written evidence and serve copies at least 7 days prior to the hearing.

 

my only query. the faulty recon is their evidence, i just want to challenge it. do i do this under 'written evidence' and can i keep the specifics out til i get to the hearing and challenge them on the faults in front of the judge.

 

i will now go away and read up on the Wilson case, and hope that Mould and CitizenB pick up on this post in the meantime - or do i need to contact them seperately?

 

Ford, you can have no idea how grateful i am for your input.

[Ford]

googly the civil procedure rules, have a look at part 24. that will help explain things.

if the J finds for the claimant they will get judgment and a ccj, and maybe their costs for the hearing. if the j finds that there is a 'real prospect' then the application would be dismissed and the claim would continue (unless J then strikes out their claim (prob unlikely)) as normal with any directions, plus you should get your costs for the hearing.

yes, 'written evidence' relied on should be exchanged. q is what is 'written evidence'?

you'll need to elaborate on your initial defence, as per any of the applicable issues posted and anything else, and show that there is 'real prospect'. hopefully, the J will take into account further arguments. a statement may be a good idea.

also, as mould asked, did you get a default notice if applicable, and if so, was it compliant in its form?

alternatively, if want to try and settle prior, then enter into negotiations with claimant.

yes, give mould, citb, or andyorch etc a kind pm nudge to ask them to look in.

Edited May 16, 2013 by Ford

[lindyhop]

Ford, will do as advised.

 

DN, im certain i did not receive one, but cant prove it so cannot challenge any errors that may have been contained in it. strict proof for copy but LTSB advised they do not keep copies!! how convenient for them.

 

My Thanks again

[Ford]

their logs should show whether one was sent or not. if they produce their logs showing that, and without anything to the contrary, then it will prob be readily accepted by the j one was sent and was on balance compliant. but still, ask them to show that one was sent and was compliant. for the J to decide.

they don't keep copies. its all automated, but things in/out should be logged. have you previously done a sar on this?

[citizenB]

lindyhop, have they given any indication as to what date they sent the Default Notice and what remedy date they provided.

 

LTSB were taken to task by a Senior Judge on the Isle of Wight regarding Default Notices. They apparently didn't amend their "template" and until 2011.. all their DNs

 

District Judge Grand (Isle of Wight)

 

Lloyds TSB did not amend their template in Oct 2008 when the amendments were made to the 1974 Act and the Default Regulations.

 

So from 2008 until 2011, Lloyds TSB credit card default notices have omitted the information required by Schedule 2 Para 10a of the Default Regs.

 

District Judge Grand ruled that this was enough to defeat Lloyds TSB claim as he relied on Harrison v Link Financial Para 75 as the authority for a bad notice not allowing any enforcement.

 

 

So if they have provided any information regarding the DN, then perhaps you can knock them back.

 

Agreement - their recon might satisfy the s78 request - but might well be unenforceable in a court.

 

When is the SJ hearing ? If you do not want to post that on the thread.. send me a private message with the date !!

[lowry123]

I had a similar mine was pre 2007 did the CCA and all the other stuff has guided by great support from this site also letters written for me....LLoyds TSB did not respond to letters etc. Ended up with a CCJ good luck be strong it aint easy to fight

[lindyhop]

Hi CitizenB

 

i will check the details on the memoline sent to me by LTSB for DN and check to see if it mentions any remedy dates, however i think it may have already been vetted by their solicitors:( as their solicitors were the ones to send me a recon of the DN they supposedly use these days. the SARs did not produce any sort of DN at all, recon or otherwise - their excuse being that they do not keep them because they produce soooooo many! i will also read up on Default regs - i missed that one.

 

they also talk about a termination notice on their POC, once again although requested a copy of this has not been produced.

 

strange thing. on their witness statement they mention that i put them to strict proof for the DN, but totally omit that i also put them to strict proof under CPR for the copy of the pre 2007 CCA.

 

Thanks Citizen

[lindyhop]

Hi Iowry123

 

im so sorry to hear that your own case didnt work out. were there errors in your recon 'true copy' and the DJ still awarded the CCJ? are you bothering to appeal?

 

Regards

[Ford]

as said, they do not keep copies re dn. q is whether you have a non compliant copy which can be used to show non compliance cf their logs. otherwise, not much chance there. unless that case proves weighty?

what were the particulars of claim? whats their statement? difficult to opine without sight! compliance with a 31.14 request for docs mentioned is not a strict requirement. up to them. (but they should respond). and then for the j to rule on if no compliance.

as lowry confirms, despite what 'should' be, it all rests on what the solicitor j decides on the day on the evidence before it. some j's might be in favour, whilst others may not be, unfortunately.

Edited May 19, 2013 by Ford

[lindyhop]

Hi Ford

 

is there anyway i can find out beforehand how many CCJ cases were awarded and by which judge at my local county court?

[Ford]

prob not. what i meant was that it depends on the evidence, and then for the j to decide on balance on what evidence there is. could go either way.

[theoldrouge]

Hi Iowry123

 

im so sorry to hear that your own case didnt work out. were there errors in your recon 'true copy' and the DJ still awarded the CCJ? are you bothering to appeal?

 

Regards

Hi lindyhop, im no legal expert, but my understanding in simple laymans terms is Lloyds have certified their recon to be a true copy of the agreement you signed, so to win a s78 argument you need to prove that there was a substanial difference in the agreement you signed eg the interest rate quoted was not the int rate initially charged, the terms and conditions produced were not the original ones, you will need to show a substanial difference between what they have certified as true and the actual original terms, hope this may help -tor

[Ford]

yes, if the cca request is not accurate it would need to be shown as such (kotecha phoenix case). but, there maybe more than just the cca request in issue here

[lindyhop]

Hi

 

yes the recon has 2 main errors, the statetd credit limit and the fact that there is no APR included as part of the true copy for the credit limit as stated.

 

they state that the original is no longer available.

Citizen B

they have not sent memoline details covering the period covering any DN issue dates and termination dates etc. i had already written to request this missing information from my SARS, but they are giving me the run around. i want to write again making a further request for the memoline information covering the missing period(s), but not sure if i have a right to do this, and if so what time limit to give them as already the 40 days are long past!!!

 

any advice anyone on how to progress this. i need to check DN dates as they have recorded them on their memoline.

 

thanks

[citizenB]

Unless they have that memoline, then I would have thought they were in trouble. They will need to prove that one was sent and that it was in accordance with the regulations. It is a statutory document and MUST be correct.

[Ford]

as mentioned prior, if they have the logs without anything to the contrary?

citb, don't think its recorded on the 'memoline'. its under their debt manager diary/logs stuff, which usually is supplied re a sar

Edited May 20, 2013 by Ford

[lindyhop]

Hi

 

 

Hi

do i have the right at this stage to demand that they follow through with my SARs request and supply me with the memoline for the period i want. they have supplied part of the memoline - i dont understand why they didnt supply all of it back to the start of their action at least?

 

and i would like a copy of the original memoline, not the 'typed up' heavily edited version they have tried to fob me off with following my second request for this information.

 

CitizenB

i will try to PM you again

[Ford]

as said, their memoline doesn't record all things in/out. it is their debt manager 'fair isaac' account diary/log records you want which show things in/out including dn's (although not the form. they don't keep copies).

Edited May 20, 2013 by Ford

[lindyhop]

Hi Ford

but the memolines (the proper ones) ive had sent to me record 'everything' including the debt management stuff. its just in my case, the memoline details stop short of the start of the action their taking.

[lindyhop]

Hi again Ford

 

Thank you for your patience. i will request their 'Isaac' i will however NOT do this if in my doing so, it will cause a problem for you.

 

Regards

[Ford]

Hi again Ford

 

Thank you for your patience. i will request their 'Isaac' i will however NOT do this if in my doing so, it will cause a problem for you.

 

Regards

 

what do you mean 'cause a problem for me'?

[Ford]

lindyhop

i don't know what you mean. i've posted to assist as poss. seems you know re isaac etc. i'll leave you to it. good luck.