Thread: HFC -no CCA -court action- help required!

Hi all
have an HFC credit card dating from late 90`s, and have asked for CCA to be provided( using template letters from this site).

Eventually a photocopy of an application form showed up(maybe a month later?), along with a "this is a legal agreementand this is all we have to give you" covering letter.

This was from early 2009, since when I have been in court twice to defend a claim from HFC for the full amount owing plus costs etc.

On the first occasion persuer immediately asked for " an adjournment of a month to allow further background checks" or such similar phrase,
whilst on the second occasion solicitor acting for HFC came out with all guns blazing asking for decree to find in favour of HFC iplus costs etc.

The documents that were displayed in court were some recent statements along with original application form as sent to me.

I have defended action on following basis;
S78 not complied with, nor is S61of 1974 act.

They countered by saying they have complied, and that as I do not dispute the debt then payment should follow.

I have tried to argue that a debt MAY exist, but without proper terms being included in agreement, and without showing I am a party to same,
then no calculation of any alleged debt can take place, and therefore no payment can logically be made.

This is a summary case, being dealt with in the sherriff court.

In light of a case failing on similar terms in Manchester in last couple of weeks, what does anyone suggest from here?

I have a "proof" hearing early next month in same court
- can anyone suggest best possible course of action,
and also if possible can someone give me a rundown on protocols etc for a proof?

Thanks in advance!!

Hi Ida
thanks for info - i`m going to use this letter( suitably modified) for incidental application;INCIDENTAL APPLICATION

Sheriff Court:

Summary Cause Summons Number:

Date of Next Hearing:

(Their name) Pursuer against (your name) Defender
(address) (address)

The defender requests the court to postpone the hearing fixed for xxxx 2009 and that the case is temporarily sisted.

The defender also seeks an order for the recovery of documents from the pursuer in relation to the claim made against the defender. These documents are vital to the defender in order to compile a full defence. The documents requested to be recovered are listed below:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
2. All records the pursuers hold on the defender relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by the pursuers, or by any previous creditor
b. Where there has been any event in the defenders account history over this period which has required manual intervention by any person, the defender requires disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.
c. True copies of any notice of assignment and/or default notice or enforcement notice that the pursuersor the original creditor sent the defender, with a copy of any proof of postage that the pursuers hold.
d.Documents relating to any payment protection insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
g. A genuine copy of any notice of fair use of the defenders data as required by the Data Protection Act 1998
h. A list of third party agencies to whom the pursuers have disclosed the defenders personal data and a summary of the nature of the information the pursuers have disclosed.
i. Copies of statements for the entire duration of the credit agreement.

3. Any other documents the pursuers seek to rely on in court.


Signed:
Defender:
Dated:
I presume that this will postpone next court action?(at least until there are some new productions?)
With reference to what has happened so far, i used template letters to ask for original credit agreement ref S78.
None was forthcoming, but an application form from 1996 along with some recent statements was returned.
Following this I had the usual barrage of letters/calls, but nothing of consequence until a Summary Court Summons, which cetre around the followingclaim:
" The persuers supplied finance to the defender under a credit card agrement a/c no xxxxx. The defender has breached the conditions of the agreement by allowing arrears to accrue. A Notice of Default was served on the defender in terms of Section 87(1) of the Consumer Credit Act 1974 on 20 April 2009. The Defender has failed to comply with the terms of said notice. The Defender`s account was therefore terminated.As at 21April 2009 there was a balance due for payment by the Defender to the Persuers in the sum of £XXXX. The said sum is due for payment. In terms of said agreement interest is due at the rate of 19.90% from 21 April 2009.

The Defender has been called upon to make payment. he refuses or delays to do so. This action is accordingly necessary."

This action has been brought by Patten and Prentice solicitors on behalf of HFC Bank.
My written defence to this was as follows;
" Persuer has not carried out hi obligations under S77/78 of Consumer Credit Act 1974, "to provide a true signed copy of the original credit agrement".
Requests have been made in Dec 08 and Feb 09 for information, sent by recorded delivery. No information has been sent.


When this was first called in Sherriff Court , I appeared as requested, and immediately the Persuer`s solicitor asked for time to investigate further.
This was duly granted, and a date was set for one calendar month later.
At next appearance, the local solicitor acting for P & P went on with great gusto, saying how HFC had sent a copy of agreement( in court productions) and immediately asked for decree in favour of her client, along with costs and interest.
At this point I retorted that no agreement had been forthcoming, merely an application form and that this was clearly not enforceable under S78 of act.
The solicitor then stated that her clients had complied with my request.
At this point a date was set for a proof ( early February) and this is the point we are at now.
I must admit that a lot of the court procedures are new to me, but I am fully aware that this appears to be a game of brinksmanship!
Your help is hugely appreciated!!

INCIDENTAL APPLICATION

Sheriff Court:

Summary Cause Summons Number:

Date of Next Hearing:

(Their name) Pursuer against (your name) Defender
(address) (address)

The defender requests the court to postpone the hearing fixed for xxxx 2009 and that the case is temporarily sisted.

The defender also seeks an order for the recovery of documents from the pursuer in relation to the claim made against the defender. These documents are vital to the defender in order to compile a full defence. The documents requested to be recovered are listed below:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
2. All records the pursuers hold on the defender relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by the pursuers, or by any previous creditor
b. Where there has been any event in the defenders account history over this period which has required manual intervention by any person, the defender requires disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.
c. True copies of any notice of assignment and/or default notice or enforcement notice that the pursuersor the original creditor sent the defender, with a copy of any proof of postage that the pursuers hold.
d.Documents relating to any payment protection insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
g. A genuine copy of any notice of fair use of the defenders data as required by the Data Protection Act 1998
h. A list of third party agencies to whom the pursuers have disclosed the defenders personal data and a summary of the nature of the information the pursuers have disclosed.
i. Copies of statements for the entire duration of the credit agreement.

3. Any other documents the pursuers seek to rely on in court.


Signed:
Defender:
Dated: I presume this will delay proceedings until IINCIDENTAL APPLICATION

Sheriff Court:

Summary Cause Summons Number:

Date of Next Hearing:

(Their name) Pursuer against (your name) Defender
(address) (address)

The defender requests the court to postpone the hearing fixed for xxxx 2009 and that the case is temporarily sisted.

The defender also seeks an order for the recovery of documents from the pursuer in relation to the claim made against the defender. These documents are vital to the defender in order to compile a full defence. The documents requested to be recovered are listed below:

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
2. All records the pursuers hold on the defender relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by the pursuers, or by any previous creditor
b. Where there has been any event in the defenders account history over this period which has required manual intervention by any person, the defender requires disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.
c. True copies of any notice of assignment and/or default notice or enforcement notice that the pursuersor the original creditor sent the defender, with a copy of any proof of postage that the pursuers hold.
d.Documents relating to any payment protection insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
g. A genuine copy of any notice of fair use of the defenders data as required by the Data Protection Act 1998
h. A list of third party agencies to whom the pursuers have disclosed the defenders personal data and a summary of the nature of the information the pursuers have disclosed.
i. Copies of statements for the entire duration of the credit agreement.

3. Any other documents the pursuers seek to rely on in court.


Signed:
Defender:
Dated:

sorry Ida, the letter appeared her twice-oops

will do- will get scaner up and running ASAP
thankd for your help so far!

Hi all
have served an incidental application( to sist the case, and also to divulge all documentation/records held) at the sherriff court, and have received confirmation that a "diet of hearing" will take place early in February. The letter also goes on to state that I need to have this served on the persuer by a sherriff officer. All this seems pretty straightforward- can anyone suggest any pitfalls or time sensitive issues?
Thanks in advance!

any thoughts anyone?

Hi Ida
yes there was PPI, but haven`t been looked at things from that angle- took out card in 1999, but was self employed 2000 to 2004- what`s your thoughts?

Hi all sorry for delay in reply- been really busy elsewhere!
Will look at PPI issue seperately( good call Ida), but back in court this week after my incidental application was served on persuer- now have papers from sherriff`s officers as to gameplan for hearing this week;
"1. To discharge the Proof Hearing.......and to assign a fresh Diet of Proof"; and
2.To ordain the Defender to lead at Proof"
Could do with a bit of advice if possible-clearly the first part is self explanatory, but the second part sounds like they are trying to put the ball in my court to prove an agreement doesn`t exist?

Can anyone tell me the correct legal term for "don`t think so matey-the ball`s back in your court""?, and also the protocol on the day?
Thanks in advance!

Hi Winnifred

SFU and Ida have covered most of the points that I would have raised. I also had battle with HFC with a Small Claims action in my local Sheriff court. I won on the basis that the original card was taken out with John Lewis Financial Services Limited and not HFC Bank so the incorrect legal entity had brought the action. They withdrew and I asked, and received costs.

As you know, a Summary Cause action is similar to a small claims process so not as much process and procedure as an Ordinary Cause where costs can also be much higher.

I think you have taken the correct approach but need to provide the Sheriff with the correct legal precedents and consumer credit law, very few of them are up to speed with the legislation.

I would state, up-front that under the CCA 1974 that an application form does not constitute an executed agreement UNLESS it contains all the Prescribed terms and define what these are. Here is part of a defence that you may want to consider using:-

The purported credit agreement supplied by the Pursuer is not a valid executed credit agreement within the definition contained within the Consumer Credit Act 1974 and it is submitted that the document supplied to the Defender fails entirely to comply with Consumer Credit legislation as stated below.

The documentation supplied by the Pursuer is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts:-

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under Section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The prescribed terms for a Running credit account as set out below:

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

It is explained that the document supplied by the Pursuer does not confirm to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the agreement. These terms must be contained within the Agreement to be compliant with Section 60(1) of the Consumer Credit Act 1974. The Court of Appeal case law, Wilson and another v Hurstanger Ltd [2007] is applicable as are other case laws.

The courts powers of enforcement where agreements are improperly executed by way of Section 65 of the Consumer Credit Act 1974 are themselves subject to certain qualifying factors. Under Section 127(3) of the Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where Section 65(1) has not been complied with. Section 127(3) The Court shall not make an enforcement order under Section 65(1) if Section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

The Sheriff will need to be given actual copies of the relevant parts of the CCA, SI and any other case precedents that are references or you wish to use as part of your defence.

This is winnable.

Good luck

Monty

Winnifred, that, as usual is excellent advice that Monty has given. The important thing about it, besides content is that it puts in a way that Sheriffs are going to recognise and understand. Much of this is about using the right words in the right way.
The only thing I would further emphasise from Monty's post is the meaning of the word "contains" (contained) in s61. The other side will suggest that its ok if the prescribed terms are contained somewhere in not obviously connected T&Cs - somewhere in the bundle of documents, and that perhaps they are referred to in the signature document. As I pointed out in my earlier post, that is not enough, because it is not what the Act requires. The Act requires more than this. Study what is said in the link in my original post - LJ Tuckey says " Prescribed terms must be contained in the signature document and cannot be shown anywhere else" - they must be in the sig document and not in some set of T&Cs that are only a part of the document bundle. The other side will assert that an application form without a prescribed term but with a separate set of T&Cs that does include them is ok. You need to tell them - and the Sheriff - that it is NOT OK because then the prescribed terms would only be embodied and not contained.

Hi all
great work-will read and digest this properly over the next day or so,andwill also read the threads referred to.
Just to give you an update, was in court today - hearing was due to an incidental application brought by persuer( to discharge proof for next week and set new date) and also to ordain me to lead at proof.
Now this is where it becomes/interesting/murky/etc- the incidental application I had raised asking for production of documents was apparently received by sols acing for HFC after they had made incidental application for today`s hearing!
I`m guessing that they are playing a weel rehearsed game of brinksmanship, and hoping(assuming) I will buckle first-thoughts?
Sherriff was very straightforward and agreed to new proof date, but now I must lead proof- I think this might be good and bad on equal levels, and am mulling this over in my mind.
I`m curious as to whether this will make it all the way to proof stage, but if so, am determined to continue with it all the way( although the court appearances are a bit nervewracking, the whole process is quite enjoyable in a masochistic sort of way!)
Next stage is to email solicitors asking them/their clients to produce required docs in order to form a defence, failing which I presume that a further inidental application to produce same would be order of the day?
BTW, sherriff said to email sols, so will go down that route 1st.
Thanks all for your help so far!!

SFU/Monty/Ida
just re-reading SFU`s post from last night, and just to keep you informed HFC have only ever sent some recent statements and a photocopy of original application( single sided, no prescribed terms) and some statements for latter half of 2008.They haven`t sent any terms and conditions from any period, so have in no way discharged liabilityunder S78 request, even on the basis that some of the CC firms have been arguing they have( reconstituted agreement and terms and conditions which would have applied at the time)
Just thought I`d let you know about that before it slipped my mind!

hi winnifred. I am glad you are so determined but at the same time so sanguine about what is happening. One thing I am curious about is why you should be in the position of lead? I did a wee bit of checking up here (Auchie's Summary Procedures in Sheriff Court) and it is said there that this CAN be in recognition of where the "initial onus of proof lies". I dont know if this is their strategy (and Auchie does add that reversal of order should be taken as "an indication of where the eventual onus of proof lies"). What reasons did the other side put forward? Did the Sheriff give any reasons for acceding to their request?
Re what they have sent - you say they have produced a photocopy of the "original application form". Is this signed by you? Better if not, but probably it has?
If it were me, I would prerpare another IA, stating very clearly in what ways and to what extent the documents that have been provided to you are not compliant with the CCA (eg there is not a sign of a T&C far less a prescribed term) and that unless they can produce compliant documents (and I mean in terms of s61, and the 1983 regs) or will admit that they CANNOT produce these documents (you have already seen their best hit) that you cannot produce a defence. This is a variant on the "embarassed defence" that is referred to elsewhere on this site for use in England. I think you are right that they are checking out your nerve, and this will show them that it is holding up very well thanks very much.
If this produces "something better" then we will just to have deal with this, but if it doesnt then either

1. they will withdraw:OR
2. you will need to proceed to court on the basis of the argument that Monty has sketched out above. The main danger that you cant deal with is that they present the "she got the money" and the sheriff buys it argument even though they are in breach of the Act. That is why you need to keep the case very focused on their compliance with the CCA and the consequences of this for them. This would certainly be the case in presenting your own argument, but also in questioning them about their case when they have to present. For instance, they might argue that "she wouldnt have got the money without going through this process". But that is not evidence, its an assertion. I would a have a look at the Mitchell case (http://www.consumeractiongroup.co.uk...t-2264418.html) - I know its England, but it trades on very similar issues (failure of the lender to come up with T&Cs), and I think you could learn something from it.

But essentially my view would be to bang in another IA and make them work. The alternative is that they spring this on you at the proof. Doing this AFTER an IA would be very difficult (or even just embarassing) for them, I think.
As Monty says - this is winnable, so go for it.