Fluffystuff's OH v HFC

[Fluffystuff]

Hi all, here we go again!

 

Brief history:

In response to CCA request, received blank copy of application form and various generic T&C's. Account placed in dispute.

In response to CPR (Pt 31.16) eventually received a 'Without Prejudice' letter "enclosing a copy of your legal agreement." This "legal agreement" is an application form, headed as such and completely devoid of any prescribed terms.

 

 

 

RESTONS

Received from the above, letter demanding payment of the whole balance plus capitalised interest "failing which a summons will be issued".

 

Yeah right, bring it on, as our case is exactly the same as 'SB100's (and others like him) who has just *WON*.

 

 

Would very much however, like to send them something along the lines of - Look you cretins, how many more cases are you going to attempt to bring to court, knowing full well you cannot win, abandoning the day before hearing and then having to pay out on cost orders??!!

 

But, if this course of action results in us making some money out of them, why not.

Edited February 2, 2010 by Fluffystuff
Prying eyes.

[pedross]

Hi Fluffy

 

Can you post up the agreement & DN for comments (blank out personal info & No.s).

 

The DN probably states that if you do not etc... 'We will terminate on the date stated' Also did you keep the envelope for the DN to prove how it was posted e.g. 1st class, 2nd class, UK mail etc.

 

Reston's WILL issue proceedings and you will need to put the same effort in that SB did and you will need lots of help along the way. This is not a walk in the park as I am sure that SB would agree. Its easy to look at the ones that have won and think that its a formality to get Restons to withdraw the day before the hearing, but that is not the case every time.

 

They only withdraw if your case is very strong.

 

I hope you understand that I am not trying to dampen your hopes, I am just trying to point out that you need to get lots of help to have a good chance of winning. You will get that here and by sticking together we will be as strong as they are.

 

Pedross

[Fluffystuff]

Hi Pedross, thanks for your input.

 

I am not able to scan at present but I can assure you that the application form is just that. It's a one sided document containing only OH's personal details, absolutely no prescribed terms or t&c's.

The D/N is also definately defective. Envelope securely filed.

My assertions are based on information gleaned from this site over many months, in relation to my experiences with other creditors.

 

I did not mean to give the impression that this would be "a walk in the park", just trying to retain my humour in what has been and will be a stressful time and I am extremely grateful for the posters on this site that help me along the way.

[Fluffystuff]

Couple of questions if I may?

 

What is the significance, if any, of them stating they had sent the "legal agreement "(i.e. application form) in response to my CPR 31.16 request, without prejudice?

 

Should we have received a termination notice?

 

What would be the situation if one was not able to acknowlege service of court docs within the requisite time due to being away on hols for example?

 

Thanks in advance.

[pedross]

Without seeing a copy of the agreement I expect that at the top and in the signature box it says 'Credit agreement regulated by the Consumer Credit Act 1974' which they would claim, together with the T & C would form the agreement. Why they sent it 'without prejudice' is hard to say on the information provided. You call it an 'application form' which is fair comment but provided that it complies fully with the legislation the court could accept that it is an agreement.

 

I expect that the DN contains a sentence saying that the account will be terminated on the date stated, therefore there is no need for a seperate termination notice as you have been notified of the termination already.

 

When you say the DN is defective what postage did they use.

 

Restons will claim all sorts of things and the only way is to have a valid answer to all of their claims.

 

Pedross

[Fluffystuff]

Pedross,

 

The document I have is headed "Priority Application Form" and they have stamped it with an application number. There is a signature box at the bottom with "Credit Agreement regulated by the Consumer Credit Act 1974" so that would be why they think it is an agreement. But, as I have said before, it is missing all prescribed terms and there are no t&c's. Clearly this does not comply with legislation.

 

They have very kindly also supplied a generic blank "Credit Card Agreement" so I could see what one would look like. Suffice to say, it is nothing like our application form!

 

(For your reference,our docs are exactly the same as those in post#53 here:

:http://www.consumeractiongroup.co.uk/forum/legal-issues/199150-sb100-hfc-default-compliant.html )

 

The D/N was posted second class, and also contains the orange bar codes that may suggest that it was not even necessarily posted on the date of issue.

It does contain the sentance concerning termination as you stated above so can we assume that they have done so? In which case, I should be sending my acceptance of that termination as I have done on my other threads?

Edited January 30, 2010 by Fluffystuff
Add reference.

[pedross]

Hi Fluffy

 

I understand what you are saying about the apllication form but it could still be classed as an agreement if it contained the prescribed terms. Restons will provide a witness statement stating that they were overleaf or attached. Don't get me wrong I believe that you can put a counter argument in against that.

 

I know the case of SB100 well.

 

Based on what you are saying about the DN it will put you in a very strong position as it did with SB. I am not a big fan of just accepting the termination as it lets the creditors know that you are up to something.

 

You could write to Restons and say that you have recieved the letter asking for the full balance and you realise that the account is terminated, which you accept, but what you do not accept is that they have provided you with an agreement enforceable by a court. Could they please explain why they believe an application form, not containing any prescribed terms, is the basis of proceedings. Its a play on words but will notify the acceptance.

 

That will buy you some time and allow you to get advice on the next move.

 

Pedross

[Fluffystuff]

Pedross, I understand your comments and they are appreciated. I think I need to get the wording of my response to Restons absolutely correct so any help with the construction of such letter would further be appreciated.

In addition, if we are soon to be in receipt of court papers (jumping ahead a little I know) are you able to answer my last question in post#4 above?

[vint1954]

Hi fluffystuff,

 

Is this the first contact from Restons?

 

I think you need to add the word unlawful, when you mention termination.

 

An application for can become an agreement, but it needs to be laid out to enable that to happen. It must prominently say "This is a credit agreement.........................." at the head of the form.

 

It is my view that it would also need a place somewhere on the form where the creditor could sign. If it did not contain that provission, then the form was never intended to become an agreement.

 

All of the above are fairly weak argumets when it comes to court. However, missing prescribed terms means that the court is precluded from entering a judgement. If they turn up in court with a photocopy of the application and separate prescribed terms, then you can force them to produce a whitness to confirm that the back contained these terms when the document was scanned or copied.

 

By far the best defence is the DN if faulty as you suggest, backed up by the agreement.

[pedross]

Your address

 

 

Restons

Address

Postcode

 

 

Date

 

 

Dear Sirs

 

Ref No: XXXXXXXXXXX

 

I am in receipt of your letter dated xx/xx/xxxx in which you have notifed me that the account is terminated and you request the full balance outstanding.

 

I understand that the account is terminated and I accept that, but what I do not understand and accept is that you have provided me with an agreement enforceable by a court.

 

Could you please explain why you believe that an application form, not containing any prescribed terms, is the basis of proceedings. I am under the impression that for a solicitor to threaten court proceedings, when there is no prospect of the process reaching court, is against the rules.

 

I have also read various information from recent court cases and from an Office of Fair Trading press release, which appears to me, to state that when an agreement is unenforceable, I should be told so.

 

Therefore, I would request that you reply to this letter, as the legal representative of HFC Bank and confirm if the agreement is actually unenforceable. If on the other hand you wish to state that it is enforceable, I would be obliged if you could state your exact reasons for that opinion. It goes without saying that for your reply to have any credabilty, it should not be marked 'without prejudice'.

 

I look forward to your reply in due course.

 

Yours faithfully

 

Fluffystuff

 

Fluffystuff

[pedross]

Hi FS

 

Well thats the letter I would send. You need to spell check it as I forgot to.

 

Vint is right and the DN is your best defence but you need as many as possible. You need to keep the DN to yourself until they issue proceedings because that will prevent them trying to do dodgy things in the meantime.

 

With regards to the holiday the answer is I am not sure. You would have 14 days from receipt to file an acknowledgement anyway so it depends how long you are going for.

 

Pedross

[Fluffystuff]

Hello Vint, thanks for stopping by.

Yes, this is the first contact from Restons.

 

Hi Pedross,

Thankyou so much for the letter. While you were busy beavering away on my behalf, I have concocted this.

 

 

 

What do you think, I fear I am giving too much away about the D/N, perhaps yours is better?

 

It appears that as HFC sent the application form 'without prejudice' that I cannot produce this in court? But, as you say, the D/N is more important.

 

I understood that if they serve papers , it is deemed as served 5 days after the date on the summons, then I have a further 14 days to acknowlege service. Have I got that wrong?

Edited February 2, 2010 by Fluffystuff
Prying eyes.

[pedross]

What do you think, I fear I am giving too much away about the D/N, perhaps yours is better?

I think my letter would do a job and the reply would make interesting reading. It asks for specific answers so they will either ignore the questions or waffle, whichever way you can point out that they are not answering your questions. On the other hand they might just go away.

It appears that as HFC sent the application form 'without prejudice' that I cannot produce this in court? But, as you say, the D/N is more important.

The application form will be produced anyway if it goes to court.

I understood that if Restons serve papers , it is deemed as served 5 days after the date on the summons, then I have a further 14 days to acknowlege service. Have I got that wrong?

You are correct.

[Fluffystuff]

I understood that if xxxx serve papers , it is deemed as served 5 days after the date on the summons, then I have a further 14 days to acknowlege service. Have I got that wrong?

 

 

 

Just had a look on the Courts website - appears my thinking is correct so providing they don't issue before xxxx, we should just about be ok. That based on the assumption that it is a simple procedure and that we will be able to file on-line and that our flight is not delayed. (Touch wood!)

Edited February 2, 2010 by Fluffystuff

[Fluffystuff]

Whoops, crossed posts Pedross!

[vint1954]

Hello Vint, thanks for stopping by.

Yes, this is the first contact from Restons.

 

Hi Pedross,

Thankyou so much for the letter. While you were busy beavering away on my behalf, I have concocted this.

 

 

I am somewhat bemused by the content of your letterDated xx January 2010, the content of which is noted.

No debt to your client is acknowledged.

On 7th August 2009, I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. Your client has failed to fully comply within the statutory time limit, supplying only a blank copy of a generic application form and unrelated terms and conditions, failing to supply the correct documents as laid down by the act.

Additionally, following a further request by myself, made under Civil Procedure Rules (Part 31.16), (You) your client has again failed to supply the doumentation required.

This account was placed in dispute on the …………..2009 with ( Original creditor) and it should not be necessary to have to remind you, as solicitors, that the provisions of s.78(6) now apply.

 

Your client has subsequently unlawfully terminated the agreement , which I accept.

 

Notwithstanding the above unlawful rescission, the absence of a properly executed agreement , clearly demonstrates that your client has no reasonable prospect of succeeding should this matter proceed to trial.

Should you attempt litigation, it will be vigorously defended and I reserve the right to produce this letter and to bring the conduct of you and your client to the Court's attention, when the issue of costs is being considered.

I trust this outlines the situation and that you will take note of my comments.

 

---------------------------------------------------------------------

 

What do you think, I fear I am giving too much away about the D/N, perhaps yours is better?

 

It appears that as HFC sent the application form 'without prejudice' that I cannot produce this in court? But, as you say, the D/N is more important.

 

I understood that if Restons serve papers , it is deemed as served 5 days after the date on the summons, then I have a further 14 days to acknowlege service. Have I got that wrong?

Just altered slightly.

[Fluffystuff]

My most grateful thanks to you both ,especially on a Sunday. I can see the merits of both letters so decisions, decisions.

[vint1954]

My most grateful thanks to you both ,especially on a Sunday. I can see the merits of both letters so decisions, decisions.

You need to make the descission Fluffystuff, so that you are comfortable with it.

[Fluffystuff]

I know Vint. Probably best to sleep on it.

 

Now I'm off to prepare the roast - enjoy yours if you haven't already!

[Fluffystuff]

Update:

 

Sent letter to Restons which they have returned as they could not be sure if it had come from OH due to lack of signature! That was three weeks ago.

[Fluffystuff]

Hi all,

 

Guess the inevitable has happened, summons received from Northampton today.

 

Dated 26/03/10 , will acknowledge on-line today, to defend all and will send CPR 31.14 to Restons. No documents sent with claim.

Can you please confirm that a defence will need to be filed by 28th April at the latest??

 

...................................................................................................

 

POC

The claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about ../../19..

in the sum of £..../.. inclusive of interest to the date of this summons at 19.8% per annum from../../10 to 25/03/10.

PARTICULARS a/c no:-

DATE ITEM VALUE

../../10 Default Balance

Post Refrl Cr NIL

25/03/10 Interest

TOTAL £..../...

Together with:-

interest pursuant to contract at the rate of 282.28 pence per day to the date of Judgement or sooner payment.

......................................................................................................

 

 

Site team - perhaps this thread should now be moved to the legal forum, thankyou.

[Fluffystuff]

Is this ok?..............................

 

Re: .v. Claim No.[

I have today received the Claim Form in this case issued by you out of the Northampton County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim.

1.The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2.The default notice.

 

3.The termination notice.

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully

Edited March 30, 2010 by Fluffystuff

[Fluffystuff]

Just a quickie!

 

As we have already disclosed to Restons what documents we have, should we just 'invite' them to discontinue or just send CPR letter to see what they produce??

Guesing that they are obliged to produce documents that form their claim.

Lastly, sorry if it's a silly question, should CPR letter be signed?

 

Thanks in advance.

Edited March 30, 2010 by Fluffystuff

[vint1954]

Hi all,

 

Guess the inevitable has happened, summons received from Northampton today.

 

Dated 26/03/10 , will acknowledge on-line today, to defend all and will send CPR 31.14 to Restons. No documents sent with claim.

Can you please confirm that a defence will need to be filed by 28th April at the latest??

 

...................................................................................................

 

POC

 

The claimant claims payment of the overdue balance due from the Defendant under a contract dated on or about ../../19..

in the sum of £..../.. inclusive of interest to the date of this summons at 19.8% per annum from../../10 to 25/03/10.

 

PARTICULARS a/c no:-

 

DATE ITEM VALUE

../../10 Default Balance

Post Refrl Cr NIL

 

 

25/03/10 Interest

 

TOTAL £..../...

 

Together with:-

interest pursuant to contract at the rate of 282.28 pence per day to the date of Judgement or sooner payment.

 

......................................................................................................

Hi Fluffystuff.

 

It is 5 days from issue for service, then + 28 days for defence. If you issue defence online, it needs to be under 8000 charecters.

 

Site team - perhaps this thread should now be moved to the legal forum, thankyou.

Vint

[vint1954]

Is this ok?..............................

 

Re: .v. Claim No.[

I have today received the Claim Form in this case issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim.

 

1.The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2.The default notice.

 

3.The termination notice.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

 

I would head it CPR 31.14 Request in big bold letters