alanfromderby v Robinson Way / HFC Bank

[alanfromderby]

This is an on-going saga that started out as a failed CCA request dispute 18 months ago, but now finally makes its debut on the PPI forum.

Briefly, during May 2006, a CCA request was sent to Robinson Way in relation to two loans. This was defaulted on, and I received a letter from RW (via Horwich Farrelly) saying that the accounts were “on hold” pending the supply of the agreements.

The next thing I heard was in July this year (some 14 months later) when a letter arrived from the Land Registry to say that an interim charge had been lodged against our house. This was in relation to one of the agreements, which had previously been the subject of a CCJ when it was owned by HFC Bank.

Despite my best efforts the charge was confirmed, and I am now in dispute with RW about the actual amount owed.

They say £8.8k, I have evidence to say that it is nearer £6.5k. RW have said that they have no intention whatsoever of discussing the issue, or entering into any negotiations. The loan also included PPI, but I was never in a position to put this to the court, and it is far too late to seek a set-aside.

Anyway, to cut a long story short, RW have now issued proceedings on the second loan for £3.9k (including costs and interest), which I have defended on the basis of unlawful charges, failure to supply documents under a CCA request, and failure to comply with pre-action protocols.

The reason that this is in the PPI forum, is that a counterclaim has now been filed against RW for £9.8k and a discharge of any monies proved to be owed in RW’s claim. The claim is based on fraudulent misrepresentations made in selling both loans, and both PPI policies, by HFC Bank Ltd. It is made against RW under section 189 of the CCA.

The PPI was missold because I had only been in permanent employment for five months. I am claiming that the loans were also missold as they were purely to pay off two old agreements. The new agreements meant an increase of £4.5k in the amount owed, and a four-fold increase in monthly payments.

This was at a time when we were under severe pressure – caused in a large part by HFC – indeed, the Customer Account Manager selling the loans was also responsible for chasing up outstanding payments on our old agreements. Add to this the staff incentives, sales targets, bonus schemes etc., and suddenly you have a massive conflict of interest.

As the agreements date back to 1998 I am fully expecting a limitation argument, but am happy that I have all the legislation and caselaw to defeat that. It also means that this could be a gem of a test case if RW decide to let it go to court – and indeed if HFC allow them to take it to court.

If the accounts stay with Robinson Way, they may feel bullish enough to take it to court. However, I am aware of a clause in the sale agreement that allows HFC to buy the accounts back in circumstances which are "likely to lead to adverse publicity for the Seller".

Let it be clearly understood by anyone that may be lurking - if this gets to court I promise that HFC will get plenty of adverse publicity.

There are a few loose ends to deal with, and I have to wait for the case to be moved away from the Northampton Bulk Centre, but watch this space in the New Year as I have some nice little surprises up my sleeves for both RW and HFC.

[tonycee]

Originally Posted by alanfromderby

As the agreements date back to 1998 I am fully expecting a limitation argument, but am happy that I have all the legislation and caselaw to defeat that. It also means that this could be a gem of a test case if RW decide to let it go to court – and indeed if HFC allow them to take it to court.

I cant see HFC letting this get to court. Your posts are getting better and more knowledgeable by the day. With the massive explosion about to take place, the last thing they will want is the publicity, especially from you.
( with all due respect )

Good Luck in the mean time.

[alanfromderby]

If the claim was against HFC, then I would fully expect them to settle. However, Robinson Way are a totally different matter, and display a very arrogant attitude when people challenge them. They also seem to have no regard for the FSA Handbook, and I will be amazed if they avoid regulatory action for much longer. (Of course that is just my personal opinion based on my dealings with them)

When I raised the dispute with them over PPI etc,. I received a reply from their complaints and compliance manger which said that they had noted my comments with interest, but that it had "no basis in law". If I am not mistaken that is a misrepresentation in itself taking into account Pankhania v Hackney (2002) - in writing too.

The account sale agreement says that RW and HFC have a duty to keep each other informed about legal action relating to the accounts. However, the same agreement says that HFC has refunded all amounts due on terminated PPI policies - so I think we can take that with a pinch of salt!

It is likely though, that HFC will become involved at some point, and as you say they may want to put a stop to the claim. As I said, I would like to be able to push this to a test case, and I intend to make it as difficult as possible for them to try and wriggle out.

To that end, I have today filed a Part 36 offer to settle for the cancellation of the full amount that RW claim is owed. Of course, this would include the cancellation of the charging order.

This would be a reasonable settlement as, if my defence and counterclaim are successful, I estimate that they will owe me about £1900.

You may think that this goes totally against my intention to force the claim to court. However, I am certain that Horwich Farrelly will turn the offer down out of hand, in the arrogant belief that I have got "no basis in law" for my defence or counterclaim.

Of course, once they turn down, or fail to agree, a Part 36 offer, they are then opening themselves up to my full costs. Take this alongside the fact that they failed to adhere to any pre-action protocols, and this starts to make any late settlement both very expensive, and also very embarrassing for them.

As I said above, I have some nice surprises for them in the New Year - and this is only just a taster of what I intend to be Robinson Way's worst nightmare.

[alanfromderby]

Finally, the Robinson Way claim has moved out of Northampton, and things should start to move forward. Hopefully my counterclaim will be finally served by the court in the next couple of weeks.

I have given RW until 5th January to accept my offer for settlement - after which time it will be formally withdrawn. As both RW and HFC have to comply with my DSAR's by that date also, it could mean the claim is joined by actions for non-compliance.

We will see....they are both now half-way through the forty day compliance period, but with Christmas and New Year coming into play they have got to pull their finger out if they are going to fully comply. They have also had it spelt out to them, that anything short of full and complete compliance will not be good enough.

Timing is crucial with all this, as I am hoping that RW don't resell the agreements back to HFC before the wotsit hits the fan. Hopefully their greed and arrogance (personal opinion) will stop them from doing that - although I expect the fun to really start when my application to strike out their claim, due to being in default of a CCA request, lands on someones desk - that is, assuming the person at the desk it lands on doesn't just dismiss it as having "no basis in law" (Hi Hayley)!!

[alanfromderby]

Things are moving on nicely. So far no response from Robinson Way to anything that I have filed. RW and HFC both have two weeks left in which to comply with my DSAR, and my application to strike out RW's claim against me has been listed for 11th January.

If RW don't come up with an agreement, all the supporting paperwork, and a properly particularised claim, then their case will be struck out leaving my counterclaim to continue on its own. Having said that, I feel I have enough of an argument to get the claim thrown out anyway, since they were in default when the claim was issued.

Of course, even if they do produce all that, and the judge allows them to continue, I have done some calculations which suggest that they actually owe me around £500 when the charges, PPI and interest are taken into account - so any attempt to keep the case alive is totally pointless, but no doubt they will want to play their silly games.

They have until 29th December to decide whether to accept my generous (but humiliating) settlement offer, after which I will be turning the heat up considerably on my counterclaim.

[Curlyben]

RW&c and HFC, now where have I read that combo before, hmmmmmmmm.

[alanfromderby]

RW have until Thursday to respond to my Part 18 (or Part 27(2)(3)) relating to their claim. So either it is in the post and on its way, or they have failed to meet another deadline. Included in that request was another attempt to obtain a copy of the agreement and supporting documents.

Technically, if they don't comply with the Part 18 request by Thursday, I can ask the court for an order. However, I am inclined to just leave it and see if they do anything between now and the January 11th hearing.

Another failure to respond to a request for information should provide more weight to my claim for costs, and if they do throw a spanner in the works before the hearing I can still apply for the order later if needed.

[Conniff]

And not forgetting to keep this in mind Alan:

• The fact that innocent party is given opportunity to discover truth does not prevent the statement being misrepresentation. There is no duty on a party to check truth of representation – Redgrave v. Hurd (1881)

[alanfromderby]

I really would like the opportunity to get Robinson Way into court on this - although if it goes that far they will probably have to join HFC to the claim.

As far as misrepresentation is concerned, I am mainly using Derry v Peek (1889), which says that a misrepresentation made by someone who does not care whether it is right or wrong is fraudulent. With the Pankhania case (mentioned above) and the case you have quoted, I really believe that I have them cornered.

I am particularly concentrating on conflicts of interest in the selling process of the PPI, and also the agreements themselves. Numerous authoritative bodies and agencies have produced documents warning against potential conflicts of interest, and how companies selling financial products should avoid staff incentives and bonus schemes that are directly linked to sales.

In some ways the involvement of Robinson Way is a distraction, but in others it is very useful. Without a shadow of doubt, HFC would have been ready to properly discuss a settlement, and would certainly not have wanted this to go to court.

Robinson Way, on the other hand, have not responded to any of my requests to provide documents, or enter into any discussions toward a settlement. Indeed, they seem to be sitting back oblivious to the consequences.

Having said that, several deadlines expire over the next few days after which time I will have a better idea of how they are intending to play it...or not.

[Conniff]

Indeed, they seem to be sitting back oblivious to the consequences.

Mmm - I don't believe that for one moment. We have seen on so many DCA letters "Do not ignore this debt, it will not go away".
I believe they are going against their own words in the hope that no response will mean you are stumped, can't figure out what to do next and you will go away.

I honestly think they are as stupid as they make themselves out to be.

[alanfromderby]

Well....first deadline now passed.

Not only were they in breach of a CCA request when they issued their claim against us, they were also asked on my "holding" defence to provide the documents within 14 days, and to meet pre-action protocols - which they also ignored. They have now failed to respond to my Part 18 Request asking for the same documents and supporting evidence.

The next deadline is Saturday - after which time my offer of settlement expires.

[sillygirl1]

Subscribing to this as I have a 'false representation' issue I can use to get a supposed defecit cleared....

Why not write on their letters the lovely useless phrase "VALID EVEN IF NOT READ BY YOU"

Almost as good as their silly "THIS DEBT WILL NOT GO AWAY" phrase, debts DO go away, especially if they are paid and their records aren't properly updated - as was the case with one of mine recently.

[alanfromderby]

My New Year gift for Robinson Way is now in the post and on its way to Derby County Court - the first of several documents that I expect to be serving over the next few days.

This one is my application to set aside the original CCJ that was entered in 2001 - and resulted in a legal charge being placed on our property.