Flower v. Yorkshire Bank

[f1owers]

Looking through statements, insurance was terminated in July 2005 (presume this is card protection/cover).

 

Only have statements going back to May 2004.

 

What about totalling up late fees etc?

 

x

[f1owers]

Have added up late fees (£198 and insurance premiums (£815.59). Total £1015.59 - as previously stated - can only go back to 2004. Forms shows I ticked self employed - but I also ticked for protections - not knowing any better.

 

x

[f1owers]

CPR request being posted today.

[42man]

Did you see this - http://www.bitterwallet.com/customers-debt-wiped-after-mbna-ppi-cock-up/19100

[f1owers]

Just read it and it makes for interesting reading. Would need to get hold of all my statements going back to 1997 as only have back to 2004ish. Will definitely give this consideration in terms of counterclaim.

 

Does the letter look ok to go??

[f1owers]

Nothing heard yet. Letter sent recorded delivery on 06.04.11 first class. Is it working days I need to go by??

 

Anyone had any thoughts about the account number being different on the claim form to the cca I have in my possession??

 

TIA.

 

x

[Ford]

Nothing heard yet. Letter sent recorded delivery on 06.04.11 first class. Is it working days I need to go by??

 

Anyone had any thoughts about the account number being different on the claim form to the cca I have in my possession??

 

TIA.

 

x

 

re cpr letter? - to be 'reasonable', give them at least 7 working days?

was the card upgraged/changed at any point without the 'original' actually being closed and a completely new agreement opened? if so, prob won't make much difference.

the application form you posted (difficult to read) doesn't itself appear to contain all of the prescribed terms? it refers to their 'leaflet/tariff' that should be read in 'conjunction'? was there any more to it?

imo

[f1owers]

No the card was never changed or upgraded.

 

xx

[Ford]

ok, so was the account on the application form you posted up ended and satisfied, and then a new cr card opened? or, is the acc no on the claim form for a different 'card'? or, have they made a mistake re the a/c number? do you recognise the ac no. on the claim form? or,.....?

imo

[f1owers]

The account number on all my statements matches the card. Card has never changed or swapped. Account number of claim form matches the card and statements....... but not my application??

 

xx

[Ford]

ok. it may be then that the no. on the app'n form refers to something else? or, maybe they just changed the acc no at some point?

imo

[f1owers]

Still nothing back from YB. Their 7 days is up tomorrow (not working days though if that makes a difference?)

 

Acknowledgement of Service was filed online on 04.04.11 - do I have 28 days from then to file a Defence or 28 days from date of issue (30.03.11)?

 

Also, if I am going to look at reclaiming all the PPI charges/late fees - as I only have statements going back to 2004ish - how do I go about getting the numerous years prior to that?? The SAR only provided back to 2004??

 

Anybody help??

 

TIA

 

x

[Ford]

Still nothing back from YB. Their 7 days is up tomorrow (not working days though if that makes a difference?) not really. (i only suggested 'business' days as an option re 'reasonableness')

 

Acknowledgement of Service was filed online on 04.04.11 - do I have 28 days from then to file a Defence or 28 days from date of issue (30.03.11)? 33 days from the date of issue. if in doubt, could call the court to confirm your deadline?

 

.....................

 

Anybody help??

 

TIA

 

x

 

imo

Edited April 13, 2011 by Ford

[f1owers]

Still nothing heard......

 

Really need to start thinking about putting a Defence together.

 

x

[Ford]

ok,

so your def deadline is around 6/7 may? did you confirm your deadline with the court?

you could do a short 7 day reminder re your 31.14 request and also asking again for a defence deadline extension under CPR 15.5? that would take you to around the 26th (bear in mind the bank hols), and then plus up to 28 days (from the original deadline) for the defence if they agree an extension under 15.5? if no reply could then apply for strike out (will be a fee unless exempt). the court may just order them to comply within x days, and if non compliance then it will be struck out. or they may just strike it upon your application?

or, could do an app'n to strike now as you suggested in your cpr 31.14 letter? again, the court may just do an order (or any order as they see fit) for them to comply etc.

or, could just do a 'holding' defence in time?

or....?

imo

Edited April 18, 2011 by Ford
typo

[f1owers]

Still nothing. Is issuing an application to strike out at the same time as filing a Defence a possibility?

 

This is my draft Defence so far - need to work on the Counterclaim now but with incomplete statements cannot work out figures for ppi payments.

 

Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.

 

On 03.06.10 the Defendant made a request under Section 78(1) of the Consumer Credit Act 1974 for a copy of the alleged executed agreement. The Defendant failed to respond to such request. As a consequence of the Claimant failing to reply, the Defendant advised the Claimant by letter dated 01.09.10 that they were in default of the Defendant’s request and that the account was therefore in dispute. It is the Defendant’s understanding whilst the account was in dispute, pursuant to the Consumer Credit Act 1974 the Defendant was under no obligation to make payments to the Claimant and further, that the Claimant was not entitled to charge any interest on the account; make any further charges to the account or to register any information on the account with any credit reference agency. Notwithstanding the Defendant advising the Claimant of the position, the Claimant continued to ignore correspondence from the Defendant. Further, the Claimant also continued to charge interest to the account, and registered information with credit reference agencies. The Consumer Credit Act 1974 S78(6) states that if a credit fails to comply with a request made under Section 78(1) then “he is not entitled, while the default continues, to enforce the agreement.”

 

Despite this, a Default Notice was subsequently received by the Defendant. The Defendant immediately wrote to the Claimant and the Claimant’s solicitors, advising that the account was in dispute and that as a consequence, the default should not have been issued. The Claimant has since written to the Defendant on a number of occasions to advise that her complaint was being looked at - at this time, the Defendant has received no formal decision on her complaint from the Claimant. In the interim, the solicitors acting for the Claimant, apparently unaware of the Defendant’s letter, have continued to pursue matters.

 

Upon receipt of proceedings, the Defendant wrote to the Claimant’s representatives and made a request under CPR31. Again the Claimant had chosen to ignore the Defendant’s request.

In view of the Claimant’s continuing refusal to comply with the Defendant’s request under Section 78(1) of the Consumer Credit Act 1974 for a copy of the alleged executed agreement it is the Defendant’s contention that the Claimant does not have a copy of the alleged agreement or in the alternative that any copy agreement held by the Claimant is unenforceable by the court as it fails to comply with section 127 Consumer Credit Act in that it fails to contain prescribed terms. As the Claimant has now issued proceedings against the Defendant and has continued to ignore the Defendant’s request – the Defendant reserves the right to raise the Claimant’s conduct as an issue.

 

COUNTERCLAIM

Any thoughts??

 

TIA.

[f1owers]

Have now finalised my draft Defence. Please could someone advise in relation to the Counterclaim bit at the bottom.

 

Please please please help!

 

Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.

On 03.06.10 the Defendant made a request under Section 78(1) of the Consumer Credit Act 1974 for a copy of the alleged executed agreement. The Defendant failed to respond to such request. As a consequence of the Claimant failing to reply, the Defendant advised the Claimant by letter dated 01.09.10 that they were in default of the Defendant’s request and that the account was therefore in dispute. It is the Defendant’s understanding whilst the account was in dispute, pursuant to the Consumer Credit Act 1974 the Defendant was under no obligation to make payments to the Claimant and further, that the Claimant was not entitled to charge any interest on the account; make any further charges to the account or to register any information on the account with any credit reference agency. Notwithstanding the Defendant advising the Claimant of the position, the Claimant continued to ignore correspondence from the Defendant. Further, the Claimant also continued to charge interest to the account, and registered information with credit reference agencies. The Consumer Credit Act 1974 S78(6) states that if a credit fails to comply with a request made under Section 78(1) then “he is not entitled, while the default continues, to enforce the agreement.”

Despite this, a Default Notice was subsequently received by the Defendant. The Defendant immediately wrote to the Claimant and the Claimant’s solicitors, advising that the account was in dispute and that as a consequence, the default should not have been issued. The Claimant has since written to the Defendant on a number of occasions to advise that her complaint was being looked at - at this time, the Defendant has received no formal decision on her complaint from the Claimant. In the interim, the solicitors acting for the Claimant, apparently unaware of the Defendant’s letter, have continued to pursue matters.

Upon receipt of proceedings, the Defendant wrote to the Claimant’s representatives and made a request under CPR31. Again the Claimant had chosen to ignore the Defendant’s request.

In view of the Claimant’s continuing refusal to comply with the Defendant’s request under Section 78(1) of the Consumer Credit Act 1974 for a copy of the alleged executed agreement it is the Defendant’s contention that the Claimant does not have a copy of the alleged agreement or in the alternative that any copy agreement held by the Claimant is unenforceable by the court as it fails to comply with section 127 Consumer Credit Act in that it fails to contain prescribed terms. As the Claimant has now issued proceedings against the Defendant and has continued to ignore the Defendant’s request – the Defendant reserves the right to raise the Claimant’s conduct as an issue.

COUNTERCLAIM

The Defendant is unable to plead a counterclaim at this time due to the Claimant’s ongoing refusal to provide requested information to the Defendant. The Defendant will seek leave to amend this Defence and Counterclaim once further information requested from the Defendant becomes available.

[Ford]

unfortunately, re non compliance with a s77/78 request, it has been held that they can continue 'enforcement' activities up to court. (bear in mind also that a 'reconstitution' may satisfy a s77/78/79 request)

see for eg http://www.oft.gov.uk/about-the-oft/legal-powers/legal/cca/unenforceable-credit-agreements

your posted defence may need to be revised. have you decided then not to firstly act on their CPR non compliance and just do a 'defence' in time?

imo

Edited April 22, 2011 by Ford
typo

[f1owers]

tbh, I really cannot decide what to do - issue an application for strike out for non compliance or to file a defence. which do you think is the best way forward?

[disgruntled2007]

Whilst I am no expert, and assuming you have proof of delivery of your CPR request to the claimant, I would go for an immediate strike out because they have failed to supply you with any documentation, thus preventing you formulating your defence.

[f1owers]

Ok - strike out it is then. Is there are precedent application anywhere? Can a strike out application be made online?

 

TIA

[disgruntled2007]

I may have jumped the gun a little, but, as I said, I'm no expert.

 

It appears you may need to apply for an order for disclosure first.......

[f1owers]

Have been reading other threads and am a bit concerned about the whole filing a defence thing now. Am currently thinking of submitting my defence below on the basis I can always amend later (?) and then move on to an application for disclosure of documents. Any idea how I can get hold of all my statements so I can get figures together for a counterclaim?

 

Could someone please read this through and give me some idea of whether or not it is ok? thanks.

 

Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.

On 03.06.10 the Defendant made a request under Section 78(1) of the Consumer Credit Act 1974 for a copy of the alleged executed agreement. The Defendant failed to respond to such request. As a consequence of the Claimant failing to reply, the Defendant advised the Claimant by letter dated 01.09.10 that they were in default of the Defendant’s request and that the account was therefore in dispute. It is the Defendant’s understanding whilst the account was in dispute, pursuant to the Consumer Credit Act 1974 the Defendant was under no obligation to make payments to the Claimant and further, that the Claimant was not entitled to charge any interest on the account; make any further charges to the account or to register any information on the account with any credit reference agency. Notwithstanding the Defendant advising the Claimant of the position, the Claimant continued to ignore correspondence from the Defendant. Further, the Claimant also continued to charge interest to the account, and registered information with credit reference agencies. The Consumer Credit Act 1974 S78(6) states that if a credit fails to comply with a request made under Section 78(1) then “he is not entitled, while the default continues, to enforce the agreement.”

Despite this, a Default Notice was subsequently received by the Defendant. The Defendant immediately wrote to the Claimant and the Claimant’s solicitors, advising that the account was in dispute and that as a consequence, the default should not have been issued. The Claimant has since written to the Defendant on a number of occasions to advise that her complaint was being looked at - at this time, the Defendant has received no formal decision on her complaint from the Claimant. In the interim, the solicitors acting for the Claimant, apparently unaware of the Defendant’s letter, have continued to pursue matters.

Upon the issue of proceedings, the Defendant wrote to the Claimant on 05.04.10, such letter being sent by recorded delivery, and made request under CPR31.14 for the disclosure and production of the documentation referred to in the Particulars of Claim. The Claimant has ignored its CPR duties and again has not responded to the Defendant.

In view of the Claimant’s continuing refusal to comply with the Defendant’s request under Section 78(1) of the Consumer Credit Act 1974 for a copy of the alleged executed agreement, and the Claimant’s refusal to comply with its CPR duties, it is the Defendant’s contention that the Claimant does not have a copy of the alleged agreement or in the alternative that any copy agreement held by the Claimant is unenforceable by the court as it fails to comply with section 127 Consumer Credit Act.

Despite the Defendant’s best efforts to obtain information, the Claimant and has continued to ignore the Defendant’s requests – as a consequence the Defendant reserves the right to raise the Claimant’s conduct as an issue. The Defendant therefore believes that the Claimant has issued proceedings without legal basis and that in the circumstances, the Claimant’s actions are vexatious and wholly unreasonable.

COUNTERCLAIM

The Defendant is unable to plead a counterclaim at this time due to the Claimant’s ongoing refusal to provide requested information to the Defendant. The Defendant believes that there is a strong case for a counterclaim in respect of mi-sold insurance and/or charges on the Defendant’s account. The Defendant will seek leave to amend this Defence and Counterclaim once further information requested from the Defendant becomes available.

[bustthematrix]

Flower

What track has this claim being allocated to? It's probably not small claims is it? Unless you've already done so, I would very strongly suggest you have a good read of the threads below as they deal with your issues head on.

 

You should probably read this one first:

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrassed-Defences-and-the-problems-with-them.&highlight=

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED&highlight=

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here&highlight=

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?295908-some-very-important-information-from-a-place-where-no-one-can-see-%28moved%29&highlight=

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?173201-why-you-shouldnt-use-section-77-78-CCA-1974-if-you-want-the-signed-agreement&highlight=

 

If your case is not Small claims and the claimant is in breach of your CPR requests, your strategy could actually be more simple.

 

PLEASE do not be put off by the number of pages in these threads, there're always a lot of "filler posts" in the larger threads so you can just skip those! You're your own best helper so please put in the effort. Also, even if you don't find the answers you need, it is my experience that when I understand more about a subject, I can ask for input more meaningfully.

 

HTH

[f1owers]

Am reading through the threads now

 

At the moment the matter has now been allocated to a track but would assume because of the amount it will not be small track.

 

Have made my requedst under 31.14 which has been refused...... the thread I am current reading says that now I should make application compelling disclosure?

 

Can this be done online?