car2403 -v- HFC Bank (Default removal)

[car2403]

2 x accounts with HFC Bank

Both sent to DCA's (Wescot and Restons Solicitors)

I've just sent 2 x CCA requests to each DCA for the accounts and I'm sending a DPA SAR to HFC to see if I can claim some illegal account charges back as well

[gettough]

Hi, I am new to all this, please can you tel what a CCA is?

 

Ta

[rory32]

A CCA request is a request under The Consumer Credit Act for a true copy of the agreement that should have been signed when the majority of debts were taken out. If a creditor can not supply this then the debt is unenforceable even in a court of law. Again if the copy of the agreement that they supply does not contain all the prescribed terms required by the Act the agreement is unenforceable.

 

If you have a look at some of the stickies in the General Debt and Debt Collection forums along with some of the threads there you will find out more about this.

[gettough]

Thank you, i have looked for my agreement but not able to find it. Will write and ask for a copy

[car2403]

Nothing from either of the DCA's yet, but I have received a "request for more information" from HFC regarding the SAR - it's a stalling tactic, as they want account numbers and previous addresses that they've already been given and a photocopy of my Driving License.

 

I've sent off what they want, but their 40-day timeframes started when they received my request and payment so we'll have to see what happens.

[car2403]

Nothing from the CCA, 12+ days in now - I've paid this month's payment, next one is due 25th September which is the 12 days + 30 day period so I'm still waiting to see what happens with this one...

[car2403]

Reply from Reston's with a CCA agreement;

 

 

It seems to be missing the "Statements of customer’s protection and remedies" bit? Have a look at page 16 of the OFT's publication on Cancellable agreements; (Right to cancellation)

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf

 

"Statements about the main rights of customers provided by the Act must be included in the agreement in the form set out in Appendix 1"

 

and

 

"Alternatively these statements can be shown elsewhere (for example, on the reverse of the agreement) as long as a reference to them is included with the financial and related particulars."

 

It isn't... They could apply to the Court for an enforcement order; (page 35 in the OFT link, above)

 

"A cancellable credit agreement.... will be improperly executed unless all the requirements as to form and content of the document embodying it, copies of the document to be given to the customer and (where appropriate) notices of

cancellation rights are strictly complied with. A trader can, however, apply to the court for an order that an improperly executed agreement can be enforced. The court must dismiss the application if the trader has failed to provide the copies and

details of the customer’s cancellation rights which the Act requires. In other cases the court will dismiss an application only if it considers that to do so would be just, having

regard to the extent to which the customer (or anyone else) has been prejudiced by the breach (or breaches) of the requirements and the extent to which the trader was to blame for the breach. In granting an enforcement order, the court can also suspend the

operation of any term of the agreement and/or reduce or discharge any sum payable by the customer under the agreement"

 

And a copy of the Default Notice - the default notice isn't a "signed true and certified copy of the original default notice", as it has my current address and I didn't live here when it was issued. The notice is dated 9 August 2005, but allows me until 26 July 2005 to remedy the breach - this clearly isn't right...

 

They have also asked me to increase my payments and given until 13/09 to complete an Income and Expense form, or they will "immediately issue legal proceedings" for full recovery.

 

I think my response will be;

• Querying the validity of the agreement because of the missing terms.
  
• They've taken longer than the prescribed statutory period to send me this information, therefore have been in default.
  
• The entire basis of the account balance is - at least partially - to be made up of default charges, which I'm about to query with HFC and that an account in dispute shouldn't be pursued anyway until the dispute is resolved.
  
• I'll offer to increase my payments to full payments on the account as I'm interested in reducing the balance despite these issues, if they will agree to remove the Default from my credit file. If they don't remove it, I have no incentive to pay more money.

Any other thoughts?

[car2403]

Need some urgent help on this agreement (posted above) as I've just received a claim form from Reston's Solicitors, with HFC as the claimant, claiming the full balance of the defaulted agreement plus £831.24 in costs and £771.00 for "Post Refil Cr" - not even sure what that is for?

 

Is this their response to me asking for a copy of the agreement? If so, why are they pursing a debt I'm disputing? (I've sent a Data Protection Act S.A.R - (Subject Access Request) to HFC Bank) I'm also continuing to pay the agreed monthly amount, albeit a reduced figure? What are they hoping to achieve by taking me to Court here?

 

By the way - they (the other DCA) are still in default of their obligation to provide a CCA agreement and have until 30/09 before they've committed a Criminal offence on that one. This might be why they want to enforce this agreement, so I'm interested to see if they can given my view on it?

 

Just thinking, I remember signing this on their trade premises - so it isn't cancellable... it's non-cancellable. The OFT's file on this is here;

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft019.pdf

 

So, this one seems to be missing;

 

- Details of any default charges which the customer or a relative of his is required to

pay if he breaches the agreement.

- Statements of certain protection and remedies provided for the customer by the

Act

[car2403]

I've sent a Surlybonds letter under s.10/s.12 Data Protection Act for the defaults - I have an acknowledgement letter I've prepared also - I've noticed that I sent them a dispute letter on 1 September, so I've included something about that;

 

Dear Sir/Madam,

 

HFC Bank PLC –v– car2403, in the Northampton County Court

Claim No: XX

Your reference: XX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose, under the Civil Procedure Rules, the information and documents detailed below.

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

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 you hold on me 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 your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require 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 HFC Bank.

c. Details of logic involved in any automated decisions you made about me or my accounts HFC Bank.

d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

f. 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.

g. 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.

h. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

i. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

j. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

Part of this information was requested directly from the Claimant on 24 August 2007, in the form of a Data Protection Act Subject Access Request.

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

I am also enclosing a copy of a letter sent to you on 1 September 2007, outlining the fact that this account is in dispute and my reasons for believing this. The fact this letter has been sent to you prior to the issuing of this claim, and the fact that you have chosen to start legal proceedings against me while I dispute this balance, leads me to believe that you have abused the legal process. I will be making submissions regarding this to the Court, at the correct time in the proceedings.

Yours faithfully,

 

I think the Judge may side with me on this and refuse to allow them to Claim fees for issuing the claim if I lay it on thick?

 

If I can't get any further advice on this thread I may have to go to Citizen's Advice in the next few days as I don't have much experience in dealing with these types of claims...

[car2403]

I've been looking through the paperwork I have so far and Reston's response to the fact they haven't supplied statements is;

 

As this is a personal loan account, no statements are available. We have however sent a statement showing payments made since the account was referred to us in August 2005

 

Excuse me? You don't have statements showing my payments, or the charges you've applied to the account? Tut, tut... Aren't statements meant to be provided under s.77A CCA 1974/s.6 CCA 1996? I think so!:

 

6 Statements to be provided in relation to fixed-sum credit agreements

After section 77 of the 1974 Act insert—

“77A Statements to be provided in relation to fixed-sum credit agreements

 

(1) The creditor under a regulated agreement for fixed-sum credit—

(a) shall, within the period of one year beginning with the day after the day on which the agreement is made, give the debtor a statement under this section; and

(b) after the giving of that statement, shall give the debtor further statements under this section at intervals of not more than one year.

 

And, interestingly...

 

(6) Where this subsection applies in relation to a failure to give a statement under this section to the debtor—

(a) the creditor shall not be entitled to enforce the agreement during the period of non-compliance;

(b) the debtor shall have no liability to pay any sum of interest to the extent calculated by reference to the period of non-compliance or to any part of it; and

© the debtor shall have no liability to pay any default sum which (apart from this paragraph)—

(i) would have become payable during the period of non-compliance; or

(ii) would have become payable after the end of that period in connection with a breach of the agreement which occurs during that period (whether or not the breach continues after the end of that period).

 

They also shouldn't be taking legal action on this account, as I wrote to them on 1st September to tell them I'd sent a S.A.R - (Subject Access Request) to HFC and will be disputing the balance accordingly;

 

The OFT Collection Guidelines (http://www.oft.gov.uk/shared_oft/bus...dit/oft664.pdf)

s2.8

 

i. failing to investigate and/or provide details as appropriate, when a debt is

queried or disputed, possibly resulting in debtors being wrongly pursued

 

AND

 

k. not ceasing collection activity whilst investigating a reasonably queried or

disputed debt.

Under the Banking Code s13.6 (http://www.bankingcode.org.uk/pdfdoc...ING%20CODE.pdf)

 

We may give information to credit reference agencies

about the personal debts you owe us if:

• you have fallen behind with your payments;

• the amount owed is not in dispute; and

• you have not made proposals we are satisfied with

for repaying your debt, following our formal demand.

[Goldlady]

I am unsure about the validity of the agreement - it looks very oldy worldy - but if you look at my thread you will see my proposed defence against GE Money - hope it helps - and hope one of our resident experts pops in soon to have a look;)

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/115750-goldladys-oh-cohens-cl.html

[car2403]

I've prepared 2 defences - one short, for the initial defence I intend to send when I file a defence and a longer one with more detail;

 

Removed as it has been replaced later in the thread

 

Removed as it has been replaced later in the thread

 

 

Any comments/help/assistance appreciated? Planning on seeing CAB about it this week if not...

 

I also need to reword this a little, as the claim is for £4,992 plus costs minus something I don't understand and totals £5,032. When I've checked my credit file, the original Default balance was £4,817 - last updated 4 September 2007 @ £3,859! Where has the £1,133 came from and where are my payments I've made since Default, Mr HFC?

[Goldlady]

It all looks fine to me, but I am not an expert :o. Hopefully one of them will find you soon. If not it might be worth sending a PM to one of more of the 'superbeings'.

[conar686]

Have you received any formal court documents from either the DCA or Restons or is it a letter from Restons stating they intend to commence a claim in the courts if you don't pay.

 

If the former then the defences above look OK (again not an expert PM Rory, Laiste or Tom Term) if the latter then do nothing until you get responses from Surleys letter.

[car2403]

Hi Conar, thanks for paying a long awaited visit...

 

I've received a Court Claim form from Northampton and have until 22/10 to enter my Defence having already Acknowledged Service.

 

I've sent a PM to those 3 users too.

[Laiste]

Hi Car2403,

 

Okay, first of all take a deep breath, I can tell the Court claim has rattled you and I can understand why! Yes, they've issued it because you sent a CCA request, and it is standard behaviour from HFC and their solicitors I'm

afraid!

 

Secondly if you have calculated when the Defence has to be filed by, ensure you have included 5 days for service in addition to the standard 28 days. Regarding the Defence, you have until the 22nd Oct (?) to file it, so you need to stop panicking about submitting it! It can be filed online up until 4pm on the 22nd(?), so there is no need to rush, nothing is achieved by submitting it at the earliest possible opportunity! It is also most unwise to file it early and then discover that you should have included/not included certain information. I always recommend that the full time available is taken to allow sufficient time to cover all that is relevant and to edit out bits that aren't.

 

I'm sorry to be the bearer of bad news and no doubt you have taken a lot of time drafting both the abridged and long Defence, but neither is appropriate, I'm afraid. Have a look at some of the Defences I've drafted for ideas as to how it should read. If you don't get the Defence right, Restons will file an application for Summary Judgment as soon as they receive it. I'm not trying to worry or scare you, I just know how the sols that work on behalf of HFC operate. So it's best to get it right first time to avoid having to file an Amended Defence and attend a Summary Judgment Hearing!

 

If you want my honest opinion, you are wasting your time going to CAB, they will not be able to guide you in respect of the Defence or the case generally. You will get better advice here! If your thread is not receiving much attention, ask one of the Mods to put it where it will be seen by more people. Most people seem to visit the debt forums, so that might be the best place for it, if it's not already there that is! LOL:rolleyes:

 

I hope this information has been of some help.

 

Regards,

 

Laiste.

[Laiste]

Hi Car,

 

It's me again!

 

I'm not surprised that you haven't had many replies on your thread, it's very much out of the way here! I would PM a Mod and ask for it to be moved asap. Caro is very helpful. I would also ask for the Default Removal part of the title to be removed, as it might mislead people as to what your thread is about, and of course it's about a Court claim now.

 

Regards,

 

Laiste.

[car2403]

Thanks for the honest feedback, Laiste - I'd copied/pasted much of the Defence from some other threads, so not much time wasted

 

I've PM'd that mod to have the thread moved/title updated.

[caro]

I've moved the thread, but presumably you still want the default removed so I don't see any need to change the title.

[livelylad]

Thread moved to the DCA forum.

[car2403]

Thanks Mods!

 

Thread now in the right place... Woo hoo!

 

Can an expert offer some advice, as I seem to be barking up the wrong tree in my thinking? I'm seriously considering accepting Judgment and asking for time to pay rather than defending this...

[Laiste]

Thanks Mods!

 

Thread now in the right place... Woo hoo!

 

Can an expert offer some advice, as I seem to be barking up the wrong tree in my thinking? I'm seriously considering accepting Judgment and asking for time to pay rather than defending this...

 

 

I am baffled by your comment that you are considering accepting Judgment, rather than defending this claim...??? Don't you think it's a little soon to be despairing? You sent me a PM this morning and I responded this morning. So you are not still waiting for someone to get back to you! You have (if your calculations are correct) 3 weeks before your defence has to be submitted, so I don't understand what the problem is suddenly? Whilst I have said the two defences you have drafted are not suitable, there are ones that I have written that you can adapt and people like Rory and Tomterm are extremely helpful with drafting defences also!

 

You are going to have to exercise some patience here, you won't be left to deal with it on your own, but those of us who write or assist with defences are very busy, which you have to appreciate.

 

I am quite concerned by this latest message that you have posted and I just want to be absolutely clear with you that defending a Court claim is by no means an easy option. I'm not saying this with the intention of trying to persuade you to throw in the towel, (that's never something I would suggest) but if you are getting jittery and restless because you haven't had any responses since this morning, then going through the process of a Court claim will drive you mad! Nothing happens quickly once litigation is underway, so you either have to accept that things will move slowly and will not be resolved immediately or give up. If you're debt is over £5000, then you're looking at 6 months before the matter is concluded, assuming nothing happens during proceedings to prolong the case.

 

I think you should take a deep breath and relax and simply view this a project you are undertaking, and that you are going to learn a great deal on this journey. Accept the fact that this matter has to be dealt with and that the best way of dealing with it is to defend and see the case through. Don't make a decision in haste, that you will spend the next 6 years regretting!

 

Regards,

 

Laiste.

[gizmo111]

Could you post the POC from Restons here so we can see what it is you are actually defending.

 

Thanks

[car2403]

It's not despair Laiste, but I have to say I do feel some pangs of desperation - the fact I'm getting some help in the right direction now is making me feel better, so thanks for that already.

 

Here's the POC;

 

The Claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about 26/03/2003 in the sum of £5053.73

 

Particulars: a/c number [a/c number is here]

Date Item value

07/09/2005 Default Balance 4992.49

07/09/2005 Collection Charge 832.24

30/08/2007 Post Refrl Cr -771.00

 

Total - 5053.73

 

They are already in breach of the Data Protection Act S.A.R - (Subject Access Request) sent 11/08. I sent a Surleybonds letter, with s.10/s.12 Data Protection Act notice on 24/09 (I've also sent this letter to the 2 Credit Reference Agencies that they have the Default registered with) and a request for more information on this claim 25/09

 

"Post Refrl Cr -771.00" seems to be the payments I've sent since HFC passed to Restons - this is the only statement they have sent though.

[conar686]

Hi Conar, thanks for paying a long awaited visit...

 

I've received a Court Claim form from Northampton and have until 22/10 to enter my Defence having already Acknowledged Service.

 

I've sent a PM to those 3 users too.

 

Now that Laiste has popped in you need to heed the advice given as 'irrascible' doesn't cut it if you don't.

 

Good luck