HFC-No Agreement? - Amended defence help please **WON**

[robcag]

Hi All

 

Could some of the experts please comment on my predicament?

 

I've just received a partial response to my CPR request using one of the fine letters (from Tomterm I think) from this site. What is being claimed by Restons to be an agreement is attached below.

 

Although the copy contained my signature, as it stands (a single sided document) it strikes me as an unenforcable application form, but also in the envelope was a copy of another document entitled "General Information about your GM Card".

 

Whilst fold marks can clearly be seen on the copy of the Application Form (A4 folded into 3 sections), no such fold marks can be seen on the other copy document which to me indicates that this is not a photocopy of the reverse of the actual Application, although the reverse could well have been the same as that supplied. It is not clear at this stage whether the copy of the Application is a photocopy of the existing original or has been produced from a digitally archived image.

 

The Application form does not contain any prescribed or required terms on the signed sheet, but who knows if the original still exists which may have something on the reverse.

 

Probably irrelevant, but I also notice that at the bottom left of the document it clearly states "This application is valid until 31/3/94" yet I signed and submitted it on 23/9/94.

 

I will upload the second document and further details of the case in further posts below.

 

 

Thanks

 

Rob

 

Edit: Typos

Edited June 13, 2008 by robcag
Replaced CAG .pdf link with image hosted at PhotoBucket

[robcag]

Here is the second document which consists of 3 columns on an A4 sheet. Approximately 1.5 columns are relevant to the Credit Agreement itself, whilst the remainder refers to a Vauxhall rebate points program.

 

I have zoomed the relevant 1.5 columns and attached them below so as to make them more legible.

 

Rob

General-Info_Zoom1.pdf

General-Info_Zoom2.pdf

General-Info_Zoom3.pdf

[robcag]

Due to a lack of documentary information, I originally entered a short "holding" defence to the claim, but I probably now need to enter an amended defence as I have now received some response to my CPR request.

 

I am not sure how I go about applying to amend my defence, but when I enter my defence I am thinking of a double-barrelled attack, i.e. (basically):

1. No executed CCA

2. Inaccurate default notice (due to unlawful penalty charges)

 

And possibly a counterclaim to be added.

 

What do people think?

 

I will try and give some more details tomorrow.

 

Thanks in advance for any responses,

 

Rob

[PriorityOne]

Well the first one is an Application Form, with no terms & conditions or APR.... and although the second one has details of terms & conditions, it's on a separate piece of paper and not part of a properly executed Agreement anyway.

 

Will have a look at the others....

[robcag]

I should probably add that on 28/11/2007 the case was stayed until 28/12/2007, so I will probably need to do something fairly quickly after Christmas.

 

Rob

[PriorityOne]

Documents are complete tosh, IMO....

[robcag]

Well the first one is an Application Form, with no terms & conditions or APR.... and although the second one has details of terms & conditions, it's on a separate piece of paper and not part of a properly executed Agreement anyway.

 

Will have a look at the others....

Hi PriorityOne, thanks for looking!

 

The 3 PDF images are of the first relevant 1.5 columns of 3 on an A4 sheet, so are all part of the same conditions .

 

thanks

Rob

[robcag]

Documents are complete tosh, IMO....

Thanks for that opinion P1

 

I have to go out in a couple of minutes but I'll try and get back on this later or tomorrow morning.

 

I will then try and explain more about the case. It seems like Restons have sprung this on me right at the Christmas break (after delaying for weeks) to try and give me as little time as possible.

 

Rob

[pt2537]

What wonderfully useless document theyve supplied you, no prescribed terms within the application form and a set of terms and conditions which has the prescribed terms ..............................................................................

 

UNFORTUNATELY, that wont wash for the Consumer Credit Act and in particular si 1983/1553 which requires the prescribed terms to be within the agreement NOT in a seperate document

 

whats to say that those T&Cs arent from this year?

 

they are pi$$ing in the wind im afraid

[pt2537]

the case of Wilson and another v Hurstanger Ltd also confirmed that the prescribed terms must be within the agreement document

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the

agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and

backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be

orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and

the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

[robcag]

Hi Paul

 

What wonderfully useless document theyve supplied you, no prescribed terms within the application form and a set of terms and conditions which has the prescribed terms ..............................................................................

 

UNFORTUNATELY, that wont wash for the Consumer Credit Act and in particular si 1983/1553 which requires the prescribed terms to be within the agreement NOT in a seperate document

 

whats to say that those T&Cs arent from this year?

Sorry, I forgot to mention there is a short line at the bottom right-hand corner of the page which says "Rules valid from 19th January 1994."

 

they are pi$$ing in the wind im afraid

 

Hopefully the document in their possession is not the physical original with terms on the reverse, but a stored scanned image. That's the only thing that concerns me about the document at the moment. However Restons have included a covering letter which states the following:

 

We refer to the Order dated 28 November 2007 which has stayed the proceedings until 28 December 2007 to enable the parties to attempt settlement.

 

With this in mind we enclose the following documents on which we intend to rely:

 

1. Credit Agreement dated 23 September 1994. We can see that is not true unless they have a double-sided original.

 

2. General information about your GM Card. Would that seem to discount that document being the reverse of the Application/Agreement?

 

3. Statements of account... blahblah.....which demonstate how the default balance of £xxxxx.xx has been calculated. Which includes several penalty charges (I've found £123.00 so far).

 

4. Default notice dated 04 February 2007. This default amount also contains the above penalty charges.

 

On the basis of the enclosed documents you may wish to consider withdrawing your Defence in attempt to avoid further costs of the proceedings, failing which we will apply to the Court for Summary Judgement proceedings once the Stay has expired. I can see they are just trying to frighten me off with that statement which isn't going to happen.

 

However, I do have concerns with the time-scale involved. I received a "Standard order for stay for settlement with consent of all the parties" (I actually answered "No" in the AQ to the question about wanting a stay for attempted settlement) which stayed the case until 28 Dec 2007 as I said above, but which also states that one of certain other steps must be taken on or before 11 January 2008.

 

Do I need to be concerned about this at the moment, ie can Restons "jump the gun" as it were and apply for Summary Judgement from 28 December and thereby block me from applying to amend my defence?

 

I can scan any of the documents and post them here if required.

 

Thanks

 

Rob

 

Edit: Typo

[pt2537]

Any chance you could scan the default notice they sent? it would be helpful to see if its valid

 

remove all personal details first,

 

they can apply for summary judgment that is quite correct, weather they get it is a different matter,

[pt2537]

Rob

 

something else which stands out, there are two creases through the agreement shown on the photo copy, now if those creases dont appear in the T&Cs its a sure fire bet they arent from the same document

 

can you scan in the full T&Cs as well if poss

 

cheers

[robcag]

Any chance you could scan the default notice they sent? it would be helpful to see if its valid

 

remove all personal details first,

 

I've attached it below for you, it covers 2 pages.

 

they can apply for summary judgment that is quite correct, weather they get it is a different matter,

What can I do / need to do to prevent this? This is what I am most concerned about ATM.

 

Rob

 

something else which stands out, there are two creases through the agreement shown on the photo copy, now if those creases dont appear in the T&Cs its a sure fire bet they arent from the same document

I noticed that also Paul, the T&Cs document does not have them.

 

can you scan in the full T&Cs as well if poss

I'll upload the full page, be warned the text is very small! It should be legible though because of the PDF format.

 

Full T&Cs:

 

Copy default:

 

 

 

 

Sorry I'm so slow with the replies, but my PC is old and tired I think! Also having problems uploading/attaching the files for some reason.

Rob

Edited March 10, 2009 by robcag
Replaced CAG .pdf link with image hosted at PhotoBucket

[robcag]

I'm really sorry about this Paul, but the other PDF won't attach for some reason. It's about 2.5MB but I don't think that exceeds the filesize allowed for PDFs.

 

I'll keep trying!

 

Rob

[robcag]

Hi Paul, sorry to be a pain and keep bothering you,

 

I can't get the T&Cs file to attach (possibly due to its 2.5MB size).

 

I have uploaded it to some webspace of mine, would it be OK if I PM'd you the link so you can download the file?

 

Thanks

Rob

[robcag]

OK, I've re-scanned/PDF'd the document at a lower resolution, and managed to attach it.

 

Or if you'd prefer the higher resolution original I can PM you the link mentioned above.

 

Rob

General-Info_COMPLETE_200dpi.pdf

[pt2537]

Hey rob, ive just popped back home and had a brief look,

 

the first thing that stands out

 

the default oes not give you fourteen days from date of service to remedy the default, it cannot as you must remedy the default by the 14/02/2007 which means you have 13 days from the date of service as per the date on the letter the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) sets this out

[robcag]

Hey rob, ive just popped back home and had a brief look,

 

the first thing that stands out

 

the default oes not give you fourteen days from date of service to remedy the default, it cannot as you must remedy the default by the 14/02/2007 which means you have 13 days from the date of service as per the date on the letter the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) sets this out

Well spotted Paul , I had counted the date of issue as 1 of the days and assumed that made 14 days!

 

Rob

[pt2537]

 

Action intended to be taken by creditor or owner

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or

(d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take

by reason of the breach by the debtor or hirer of the agreement--

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the

agreement as specified in the notice,

at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as

required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice,

on or after which he intends to take any action indicated in this paragraph.

 

 

 

 

verbatim from the Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561) so there we have it

 

GAME OVER

 

the default fails to comply and is invalid

[robcag]

verbatim from the Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561) so there we have it

 

GAME OVER

 

the default fails to comply and is invalid

Thanks Paul, excellent news!

 

What do you suggest I do now to either move things on or block Restons threat (if they carry it out) to apply for Summary Judgement, bearing in mind that I only entered a very simple "holding" defence as I was not in possesion of any of the documents which Restons have now sent me.

 

My defence was as follows:

1. This Defence is filed and served without prejudice to the right of the Defendant to apply for summary judgment in respect of and/or to strike out the Particulars of Claim.

 

2. The Defendant does not recall ever receiving or signing an agreement under the Consumer Credit Act 1974 regarding the alleged debt.

 

3. Under the Consumer Credit Act 1974 (Sections 77 to 79) the Defendant is entitled to receive a copy of their signed credit agreement on request.

 

4. The Defendant wrote to the Claimant on3rd October 2007 enclosing a statutory £1 fee to request a signed copy of the agreement, under section 77 to 79 of the Consumer Credit Act 1974.

 

5. The Defendant is now waiting for this request to be fulfilled. In the event that the Claimant fails to do so within 14 days of the service of the Defence then the Defendant will apply to the Court for an Order striking out the Particulars of Claim.

 

6. The Defendant reserves the right to plead further to the Particulars of Claim once and if the Claimant produces the original agreement. In the meantime, it is denied that the Claimant is entitled to the relief claimed or any relief whether as pleaded or at all.

 

I believe I now need to enter an Amended Defence? Please clue me up on how I go about this!

 

Thanks

Rob

[pt2537]

Hello Rob,

 

im kinda busy today but i will help where i can, ive got another defence to get finished this evening,

 

did you have anything in mind for your defence?

 

if you want to post a draft i will happily go over it for you and suggest amendments should they be needed,

 

the issues surrounding the invalidity of the default i have taken from the judgment in Woodchester Lease Management Services Ltd v Swain

and Co - [2001] GCCR 2255

 

i have all the relevent case law and regulations so if you pm me an email address i will send them to you

 

regards

paul

[pt2537]

also to amend your defence you need to use a N244 form i do believe

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_0400.pdf

[robcag]

Hello Rob,

 

im kinda busy today but i will help where i can, ive got another defence to get finished this evening,

Hi Paul, sorry to keep intruding on your time and to upset your concentration on your other work, but I appreciate any help you are able to give.

 

did you have anything in mind for your defence?

As I see it at the moment there are three possible basic prongs to the attack (attack being the best form of defence ).

 

1. Invalid Default notice due to insufficient time (less than 14 days) being given to remedy.

 

2. Invalid Default notice due to default sum including unlawful penalty charges.

 

3. No executed agreement produced, only an application form.

 

Presumably it would be best to use all three of these so as to be going to court "fully-loaded" so to speak.

 

ALSO,

I would like to consider the possibility of entering a counter-claim to claim compensation from the claimant for processing my data without my permission, which might then put me in the position of being able to donate a sizeable percentage of any resulting sum to this site! (Or would I be trying to run before I can walk, and should I leave this part out and maybe make a separate court action at a later date?)

 

if you want to post a draft i will happily go over it for you and suggest amendments should they be needed,

I will try and construct something from other defences I have read on this site, but I fear reading other defences and doing my own is a different kettle of fish!

 

the issues surrounding the invalidity of the default i have taken from the judgment in Woodchester Lease Management Services Ltd v Swain

and Co - [2001] GCCR 2255

 

i have all the relevent case law and regulations so if you pm me an email address i will send them to you

 

regards

paul

 

Perhaps you could advise me (aside from the actual defence) what is the procedure for actually submitting an amended defence?

 

Do I write to the court (manager) and advise him/her that I wish to amend my defence in the light of certain documents now being forthcoming from the claimant?

OR,

Do I actually make some sort of application to the court to submit an amended defence?

OR,

Do I make some sort of application to the court and actually include the amended defence?

 

Sorry for all the questions, but I don't know anything about this procedure.

 

Thanks again

Rob

[robcag]

PS

What is the minimum I need to do at this stage to buy some more time and counter Restons possibly applying for Default Judgement?

 

Would it help if I posted the Order issued by the court on 28 Nov 2007 with its specifications?

 

Rob