Flower v. Yorkshire Bank

[Ford]

flowers

your def deadline is looming! is it this coming monday? bear in mind that this friday is a public hol. it seems that it is looking like that a 'holding' defence may be appropriate? unless you can get anything else done by monday?

a defence can be done online.

imo

Edited April 27, 2011 by Ford

[f1owers]

Allocation Questionnaire received today.

 

This is a copy of the Defence I filed.

 

Except where otherwise mentioned in this defence, the Defendant

neither admits nor denies any allegation made in the Claimant's

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 the account being in dispute, 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 the

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,

specifically the agreement referred to in the Particulars of Claim

and the Default Notice. The Claimant has chosen to ignore its CPR

duties and again has not responded to the Defendant. The

Defendant will be issuing an application for disclosure of such

shortly.

 

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.

 

 

Any thoughts or advice please???? I had hoped that they would received my Defence and then the matter be stayed. Planning on issuing my application for disclosure on Monday.

 

 

TIA

[f1owers]

Finally I have received documentation from the other side!! Have also received an Allocation Questionnaire to be completed.

 

So to begin with they have sent through an application form - shown below (front page and back page)

 

http://i1203.photobucket.com/albums/bb386/flowerff1/newapp1front0001-1.jpg

 

http://i1203.photobucket.com/albums/bb386/flowerff1/YBnewappback0001.jpg

 

This application is very different from the one originally sent to me under my SAR request - of which I only have the below scan - the back of this document is blank.

 

http://i1203.photobucket.com/albums/bb386/flowerff1/ybcca1.jpg

 

The new application for is blank apart from some initial personal details being completed - although it may pertain to look like my handwriting - it isn't!! For one thing I did know my own postcode! The rest of the new application form is blank, as you can see, including the signature bit on the back page.

 

This new application is therefore not a true copy of the one I signed. You can see that both the front and back of the new application form received contains no prescribed terms. There also appear to be gum marks top and bottom for where it would have been glued together to be posted although in its current form I cannot see where the address would have been. On the back of the new application form there are direct debit conditions - would these count as precribed terms???

 

I have raised previously on this thread that the agreement number on my application form does not match the agreement number under which proceedings have been commenced. The card was never changed from visa to mastercard or anything like that.

 

Along with the new application form, they have also sent the following document (front and back shown below)

 

http://i1203.photobucket.com/albums/bb386/flowerff1/sepaccformfront0001.jpg

 

http://i1203.photobucket.com/albums/bb386/flowerff1/sepappformback0001.jpg

 

This document appears to be a three folded leaflet. The conditions of use say that rates are correct as at 01.01.97 (my application is dated May 07) and the conditions on the front page do flow onto the back page - cannot understand why the address is in the middle of the front page though - could that new agreement have been attached to the botton of that form and then the whole thing folded up.

 

They have also sent through a further document headed Copy of Your Agreement Conditions of Use - this is a front to back printed document which is clearly a leaflet - the APRs do not match those shown on the new app form received.

 

Has anyone any thoughts on the documentation now received and how I should progress now.

 

Please help!

 

Flower

[Ford]

[f1owers]

Thanks for the bump Ford - was just coming on to bump myself!

 

Would really apprecitate people's views on this!!

 

x

[Ford]

one point. you mentioned before being self employed and ticking the ppi box. most ppi policies do not cover self employment so there is a poss claim there for missold ppi even though you ticked the box.

imo

[f1owers]

PPI was cancelled in 2005 - over 6 years ago. May write to them separately about that issue.

 

Any thoughts on the position with these agreements??

[Ford]

PPI was cancelled in 2005 - over 6 years ago. May write to them separately about that issue.

 

Any thoughts on the position with these agreements??

 

oh ok

 

re agreement - it looks like maybe they have gone for a 'reconstruction' and included the 'leaflet' that is referred to on the application form re your 31.14 request. taken together, that may satisfy a cca request. but, that may not satisfy s127 cca. but, as you say, there is the issue of the previously disclosed signed app form with a different a/c number! in the claim they refer to a 'revolving' agreement. afaik, s127 requires a signed document that contains all of the prescribed terms?

imo

[f1owers]

BUMP!

 

Please help!

 

x

[ims21]

Hi f1lowers

 

Was just browsing the forums and came upon this thread.

 

I can't answer the queries about the agreements I'm afraid but with regard to your ppi I can help you with that. If you want to proceed with a claim for ppi just start a thread in the ppi forum as you will get some good help and advice there.

 

This post also bumps for you

 

Good luck

 

ims

[f1owers]

Hi

 

Still hoping someone can help and advise me on my agreements.

 

xx

[Ford]

what is the return date for your allocation q?

[f1owers]

20th June

 

Any idea why I am not getting any help or advice???

 

x

[f1owers]

Pressed enter too early then.

 

My current thoughts are if they want to rely on the new application form, their reconstitued one, there is no APR stated thus making it unforceable??

 

As far as my original copy of the application - there is nothing on the back of it and really it is anyone's guess as to what was there.

 

As they have served this reconstitued agreement - do they now have to rely on that one??

[Ford]

"Any idea why I am not getting any help or advice???"

 

 

 

i've posted some

 

could click on the triangle and ask for further assistance?

[f1owers]

And your help is very much appreciated!

 

The triangle that says "report post"?

[Ford]

Pressed enter too early then.

 

My current thoughts are if they want to rely on the new application form, their reconstitued one, there is no APR stated thus making it unforceable??

 

As far as my original copy of the application - there is nothing on the back of it and really it is anyone's guess as to what was there.

 

As they have served this reconstitued agreement - do they now have to rely on that one??

 

that's it. what are they relying on? s127 could be important re a defence. they'll prob try and rely on the signed form plus the 'reconstruction' to satisfy s127, if the signed form doesn't contain all of the prescribed terms, and that the number has simply been 'changed'.

imo

[Ford]

......

 

The triangle that says "report post"?

 

yes.

and/or could pm someone?

Edited June 12, 2011 by Ford
typo

[citizenB]

Flower, not sure what advice you want.

 

What is the situation to date.. can you please post up a summary of what has happened to date.

 

When do you need to have a defence in by ?

 

Have you received a Default Notice at any time ?

 

I see someone has pointed out there is insurance of some form on your card. Did you request this, was it of any value to you? Ie did you have pre existing medical condition, were you self employed at any time ?

 

Just seen that you have probably already entered a defence and are now at allocation stage. Have you completed the Allocation questionaire or is it that you are requiring help with.

 

What defence have you entered ?

[f1owers]

Hi and many thanks for taking the time to reply and look at my thread.

 

Defence was submitted - at post 42. I need to file my AQ by the end of this week.

 

The ppi aspect I dont wish to worry about at the moment - it was cancelled years back and I did not include it as a counterclaim. The AQ seems pretty straightforward to complete.

 

Summary: CCA made and ignored. A/c put into dispute by myself. Dispute ignored and Default received (may have been defective on dates but in light of recent case law - not enough to predjudice my position as proceedings issued well afterwards). Written request made for disclosure following issue of proceedings. Ignored. Defence filed. AQ received together with a new version of a CCA (not the same as one I previously obtained via SAR) along with terms and conditions (all posted above), Default Notice, and correspondence between me and Sutcliffes.

 

The help I am hoping for is advice as to the application forms - the one I originally received under a SAR request, and the new version I received with the AQ on Friday. Are either of them complient enough to be enforceable? Should I be entering into more correspondence with Sutcliffe's advising that I believe their two applications to be defective?? Basically - have I got a hope here??

 

Thanks

x

[paulwlton]

I'm not convinced any prescribed terms were on the back of the application form but I thought that was the case with MBA until I got my hands on an original.

 

It all hinges on whether the prescribed terms were on the back of the form. If you are contesting the veracity of the agreement and positively assert

that nothing was on the back and that the prescribed terms were contained in a separate document headed Yorkshire Bank condition of use then according to HH Judge Wacksman the court would probably need to view the original.

 

Has the agreement been assigned are there any other issues?

 

Paul

[f1owers]

Hi Paul and thanks for replying to me.

 

What happened with yours in the end as your agreement is identical to the one I have - from SAR request (the one with a different account number to the proceedings).

 

This new agreement that they have signed is different to the other one. I cannot see prescribed terms - overleaf there is are "direct debit conditions" which state a minumum payment option...... however, there is no mention of an APR this making it unenforceable?? If they are forced to rely on this agreement as being the one they have disclosed in these proceedings - are they in trouble?

 

You know the score with the original agreement - what was on the back is a mystery!

 

Do you think I should be entering into correspondence with Sutcliffes explaining that I think both agreements are funamentally flawed; that their conduct has been unreasonable in that they ignored all requests for documentation and only provided same at the AQ stage; and maybe invite them to withdraw?

 

I don't understand your question over assignment.....???? Sorry!

 

So many questions....... am really grateful for anyone casting their eyes over this and helping me!

 

x

[paulwlton]

Hi Paul and thanks for replying to me.

 

What happened with yours in the end as your agreement is identical to the one I have - from SAR request (the one with a different account number to the proceedings).

 

This new agreement that they have signed is different to the other one. I cannot see prescribed terms - overleaf there is are "direct debit conditions" which state a minumum payment option...... however, there is no mention of an APR this making it unenforceable?? If they are forced to rely on this agreement as being the one they have disclosed in these proceedings - are they in trouble?

 

You know the score with the original agreement - what was on the back is a mystery!

 

Do you think I should be entering into correspondence with Sutcliffes explaining that I think both agreements are funamentally flawed; that their conduct has been unreasonable in that they ignored all requests for documentation and only provided same at the AQ stage; and maybe invite them to withdraw?

 

I don't understand your question over assignment.....???? Sorry!

 

So many questions....... am really grateful for anyone casting their eyes over this and helping me!

 

x

 

My case went to trial. The Judge ruled on balance that the terms and conditions would have been sent with the application form. The DJ criticized the fact that a challenge had been put forward and went down the moral road of " you used the money pay it back" However, I challenged a Barclaycard application prior to this which went to trial... the DJ dismissed the claim.

 

It's what's known on CAG as the Judge lottery.

[f1owers]

Bit worrying to hear that you lost! Did you not appeal it? Just so I can brace myself for what may be in the pipeline - once judgment was entered for YB how reasonable were they on terms of repayment??

 

x

[Ford]

if your defence rests on enforceabilty of the alleged agreement only, then s127 may be appropriate. what they have provided may satisfy a cca request if all that they have sent in reconstruction includes an accurate copy of the prescribed terms at the time of the agreement (Kotecha case), and current terms. otherwise, only s127 may remain (and maybe the possibility of the different number?). and, they may prob say that what they have provided would satisfy this. although s127 requires a signed document that contains all of the prescribed terms. as paul says, it could rest on the 'lottery'.

this is a previous HC quote from PT2537 re s127 http://www.consumeractiongroup.co.uk/forum/showthread.php?288586-Court-hearing-looming...will-my-defence-stack-up

'The consequence of a ruling such as this is to provide(MY CLIENT) with a windfall and I am conscious of the unfairness in one sense that that may lead to. I was taken in the course of argument to the speech of Lord Nicholls in the case of Wilson and Others v The Secretary of State for Trade and Industry [2003] UKHL, 40. At paragraphs 71 and 72 he recognises that the consequences of the provisions of section 127(3) can indeed lead to drastic, even harsh, consequences for a lender who loses all his rights under the agreement. It is an unattractive feature sometimes, for it involves punishing the blameless pour encourager les autres. But Lord Nicholls’ view was that Parliament had singled out some obligations as having such importance that non-compliance would lead automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances, and that those obligations were specified in sections 127(3) and (4). Parliament, he said, had chosen deliberately to exclude consideration of what is just and equitable in the particular case. Lord Scott echoed what he said at paragraph 164 of his speech.'

 

whether this would still stand?

 

as you say, you could write to them pointing things out (including s127) and invite them to discontinue?

 

what about the default notice? was that compliant? (Harrison case)

 

what about assignment?

 

would a CPR 18 be helpful?

 

imo

Edited June 14, 2011 by Ford
typo