Hi Whatamess. I read your appeal on another thread and have just read the whole of this thread too. I am in almost an identical situation except my claim by HFC is in excess of £10k and I have already had my first summary Judgment hearing - adjourned for further hearing on 3 December. I am a very inexperienced cagger in terms of offering advice and I see you have Andy, Cerebusa, Supersnooper on board for real advice. I can only offer limited support.

The first thing i would say is to you was first said by Notasniceasjoe in his own thread and that is that you have one great advantage over anyone else -

I'll admit that before the SJ hearing I was rather wary of the mechanics of the process, because it is complicated and there are masses of things that I'm sure experienced Caggers take for granted, but which are daunting to a newbie.

 

That hearing made me realise something very important indeed. Nobody knows more about your own case than you do. It is the one single advantage that is yours alone. Most of the rest of the process is stacked against you.

 

You might be lacking the legal knowledge to start off with and you might not immediately be able to recognise the validity of the arguments, but you can, and must, educate yourself on that. The resources are there to do that - right here - and if you don't panic, keep everything organised, take advice, work to understand that advice and to make informed decisions then you must improve your chances.

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The next thing is that if you want to successfully defend (or show you have a realistic chance of defending in the case of SJ), then you must read and read again anything that is pertinent until it sinks in and you really understand your own argument. For instance, it is all well and good simply copying another person's Witness Statement or Defence, but if you don't understand it, don't know what it means when it refers to S61 of CCA1974 or any other point you make, then you won't be able to answer questions on the hearing day.

 

It is almost certain that the claimant's sol will try from the start to use the Carey case as justification for using the reconstructed agreement.In my opinion you must read and understand the whole Carey case. You can then actually use it yourself to defend with or show that you could defend successfully at trial.

Basically, Carey was the claimant and the bank was defending, so as in all cases, the onus of proof/evidence is always on the claimant rather than defendant. Your first point is that you differ from Carey in that you are defending, not claiming.

Secondly, that case was about a S78 CCA request. The sol will try to make this the main topic. BUT, Judge Waksman ruled that a S78 request is for INFORMATION purposes only. Although you may think they have not complied with your own S78 request, don't get sidetracked into this being the main issue - I allowed myself to get sidetracked and conside myself lucky that I live to fight another day and I won't make the same mistake again!

I know someone better able to offer advice will correct me if I am wrong or I make a typo, but I believe you will be defending on the basis that either you didn't sign or if you did, that it is nevertheless an improperly executed agreement under S61 CCA 1974. S61 is a requirement rather than mere information and therefore the onus of proof should be on the claimant and a reconstruction just won't do.

 

A further point that helped me was that the information on the reconstruction did not match up to reality and it really is worth checking with a fine toothcombe. Your statements will show the exact interest rate charged at the start of the agreement. They will also show variations to your terms and conditions from time to time. By carfully, checking terms you may be able to show that terms supplied could not be the original terms and are from a different period in time. Also, check the interest rate carefully. My statements showed an initial rate of something like 4.9% and an APR too. The reconstruct showed interest APR as correct but actual interest rate as 4.85%. I successfully argued, using Carey, that APR was merely a mathamatical construct and the interest had to be exactly correct, however little out it was. As I asked the judge, "Sir, if you had signed an agreement at 4.85% and were then charged 4.9% would you accept it or would you complain? Noone would accept this, therefore it cannot have been part of the original agreement"

 

As to Witness Statements, read what the CPR actually state it should include: http://www.justice.gov.uk/civil/procrules_fin/menus/rules.htm

I think you want section 22? Anyway, reading some of the other CPR will be useful to you.

My own WS was very meandering but you are welcome to read it and I can give links to other WS too so you can get a feel of a WS, BUT it must be personal to you.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?242373-MBNA-Restons-for-Diddydicky-case&p=2976581&viewfull=1#post2976581

http://www.consumeractiongroup.co.uk/forum/showthread.php?248610-Help-needed-Court-Claim-HFC-Restons&p=3094337&viewfull=1#post3094337

http://www.consumeractiongroup.co.uk/forum/showthread.php?262016-Help-me-please-Short-crt-date-HFC-Restons-summons-for-10k&p=3158669&viewfull=1#post3158669

 

Also, a link to the Carey judgment should be useful. (I assume you are familiar with the CCA and the Regulations doc too): http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

You send it to Court and to Restons. My own WS only got to court 6 days before (delivered by hand) and 5 days before to Restons. nothing was said about it. I did date it as 9 days before though.

Hi Manchestman

Thank you so much for taking the time to write all that you have it certainly gives me a kick to make sure i dont crumble and get my WS done asap as Andy suggested.

If you dont mind I would like to give you a little bit more information about this debt,

I took this loan out around 1995, (that long ago)

in 2001 after i got into financial difficulty and they decided that they would stop the interest

and by the looks of things they acually gave me a brand new loan for the amount was outstanding

and without interest and a lower payment,

I know 110% I did not sign an agreement for this,

infact I have been paying this loan for so long I have no idea what interest I was even paying in the first 6 years of having this loan,

for all i know i could have paid this loan back 3 times in that 6 years and also i have no idea if PPI was added.

I have totally no idea and memory of this loan all i know is that i have been paying it for 15 years

and decided enough was enough i wanted so information about it,

when I ask hfc for my cca they came up with statments of what i have paid and thats all.

Im not sure if this helps in anyway but will this go for me in court if i mention all of this? as far as reston is concerned I have had this loan since 2001 on intrest free and nothing has been mentioned why its interest free or about the original loan in 1995.

Not sure if I made it clear, but I am defending on the basis that yes, I applied for a CC, yes, they lent me the money, yes, I admit I owe the money and yes Sir, I am an honourable man and have every intention of paying the debt back. However, Sir, with respect, I did not sign what the claimant states I did, and I do not believe the claimant should have brought this claim as it does not have, and there never was, a properly executed agreement and the debt cannot be legally enforced. (Then refer to appropiate sections of CCA)

Ok i understand, shall I put the details of the loan going back to 1995 in my WS or just concentrate on 2001?

I took this loan out around 1995, (that long ago)in 2001 after i got into financial difficulty and they decided that they would stop the interest and by the looks of things they acually gave me a brand new loan for the amount was outstanding and without interest and a lower payment, I know 110% I did not sign an agreement for this, infact I have been paying this loan for so long I have no idea what interest I was even paying in the first 6 years of having this loan, for all i know i could have paid this loan back 3 times in that 6 years and also i have no idea if PPI was added. I have totally no idea and memory of this loan all i know is that i have been paying it for 15 years and decided enough was enough i wanted so information about it, when I ask hfc for my cca they came up with statments of what i have paid and thats all.

 

Im not sure if this helps in anyway but will this go for me in court if i mention all of this? as far as reston is concerned I have had this loan since 2001 on intrest free and nothing has been mentioned why its interest free or about the original loan in 1995.

This is where I get stumped and where you need help from someone more experienced. Yours is obviously a complex matter and it sounds as if HFC have no paperwork from either loan. I'm not sure how you would proceed when you have been given an unasked for loan to pay off another loan? Doesn't sound ethical when you say it like that! I think the claim is only concerned with new loan. I suppose you just need to get all this into your WS. I'm not advocating lying, but you may want to search your memory for a more positive assertion that you didn't sign anything at all or that if you did sign for something, it did not have the prescribed terms on it, nor were they ever given to you and that you put them to strict proof.

I've got to repeat, I am not experienced and any comments I make should be carefully researched and checked out. I am not gung ho and I try to deal with realities rather than telling you what your rights are, and what a great case you have. I do think the first loan has importance to the facts surrounding this case, but unfortunately, I can't back that up and you need someone else to help with factual side, like Andy or GH. For now, I would definately get it ALL written into your first draft WS. Easier to delete afterwards!

There is a nice thread somewhere about your day in court and what to expect. I can't quite recall where it is, but it's short and informative and makes you feel better. Restons costs will probably be about £1300 so far.

For my day in court, I made a conscious decision how to dress etc. The first priority is to know your own case, and relevant points of case law, inside out. To be well prepared, with separate folders, coloured tabs, indexes, anything that helps YOU to find info quick. I did not have a hair cut, nor did I dress upp too much. I avoided wearing my suit and instead wore my suit trousers, smart shoes, shirt and tie, but casual striped jumper and anorak. i did not want to appear swarmy or know-it-all, but I did't want to be scruffy either. I avoided using my lovely briefcase for the same reasons, and instead put all my organised files into my 'Tesco' canvas shopping bag. Some may say all of this makes no difference, but I believe these conscious decisions helped me to feel in control of myself.

Some great information on this thread folks - thanks! 8)

I totally take everyones advice in my stride and am truely great for any advice given and appriciate your not an expert.

If im honest I think im well out of my depth and im not sure i can go through with this, like you i dont need to get in anymore debt then im already in and if Restons bill is around that mark (and not taking you litrally on that) then i dont think i can take this any further, do you have any idea what the consiquenses are if i decide not to go to court? Will i just be liable for the debt and the costs for Restons? Are there any other costs involoved? as much as i dont want to give into them as they have made my life hell for the past 18months im not sure i am up to it, I have 2 young children and work full time and just do not have the fight in me.

If you haven't got the fight or time for the fight, then noone will blame you for doing what is best for YOU. You should go to court though, as you will already be charged for Restons preparation for the hearing anyway and if you don't go, judgment will simply go against you and Restons will ask for a 'forthwith' judgment, giving you an immediate CCJ and a very short time to repay. Then you have to make a court application to alter the terms of the judgment in order to pay by affordable installments.

If you want inspiration on a similar case, DONT try and read it all (56 pages and growing) but DO look at the start and then some of the most recent posts and dip in and out at other places on Dizzy's thread here: http://www.consumeractiongroup.co.uk/forum/showthread.php?259523-MBNA-county-court-Summons-quot-Help-Please-quot-**WON**

Dizzy was absolutely petrified of court and knew nothing (I am sure she will forgive me for saying this). She had her day in court, found it was an eye opening experience and not as she had imagined. Because of her day in court, she is in a better bargaining position now.

I actually believe from what you have said, you stand a good chance of this being dismissed at this stage as long as you dont get carried away trying to read too many threads, and just make yourself familiar with the CCA and Carey. But, whatever, your decision, we all admire you for getting this far. Well done, Whatamess

I also don't see how you can be much worse off by attending court as you would be by not attending at this stage. However, you could write to Restons with your suggestions as to total owed and ways of paying etc and try to negotiate a settlement now. (Dizzy has been doing this recently) If they fail, make the judge aware of your attempts.

Thank you, I just feel myself getting so stressed out about it and i know it is because i have no time to even think about my WS let along write it, I do not have the time to hand it into the court even if i get it done by friday, i need more time i was thinking about maybe calling up the court and asking for more time what do you think? I know i wouldnt give up so easily if i had more time i have come this far.

Thanks for the links

Hi Whatames

Some good supportive guidance there from Manc if you take a look at the thread he as linked Dizzy, I prepared her WS and she ws successful in avoiding SJ.Take a look at the form and content and use this as your base.You cant delay the SJ hearing its happening with or without you.But if you dont attend this will help the claimant in their case and it will be a forgone conclusion and they will have their CCJ.

If you attend you can argue and have your say.

Andy

Hi I have had time to think and you are both completly right I have no choice but to attend so if i am i may as well do this right.

MANC thank you for the link on Dizzy im am slowly but surely getting through it and learning from it which has prompeted me to go through all my letters which i have recieved from HFC over the past 18 months, I found the default letter they sent which i didnt remember getting but it is there, the one thing i found wrong which may or maynot have any relevance is the date on the copy they have attched on the way of Service is dated 30th Oct 2009 and have said they want full payment by the 22nd Nov 2009 but the original one which i found is dated 31st Oct its only 1 day out but does this prove that this is not the original defult letter can i use this in court?

Tomorrow i will start my WS and base this on all of there Evidence plus i will go back to the begining with this when i first took out the loan in 1995 i dont see i have anything to loose by doing this, I also have a letter from Benifical who were the bank i first too the loan out with before hfc took it over, which tells me they made a door step call to discuss my account (it is the same account number as HFC) this was in March this year do you think i can use this as im confused with why they came to my door and not HFC seems this account is all over the place.

Do i need to attach all copies of letters sent and recieved from HFC with my WS? I need to try and do all this tomorrow so that it gets to them before the weekend.

Just want to apologies for the comment i made earlier regarding the lack of support, I was in a bit of a state today and was totally stressing about this and when i was not getting any replies i panicked, but thanks to the Support today i feel much more possitve about this.

Thanks

I am sure appologies are not needed,most people on cag have been in the same position,

unless you are experianced, then most people will panic,

Glad that you are contiuing to fight.

All the best

Leakie

What day does your WS need to submitted to court?

This might help with how to put everything together for your WS. My WS + docs were something like this:

1st sheet = Claim: 0X222222

In the 'ANYWHERE' Court

BETWEEN

HFC Bank Ltd

Claimant

and

Mrs Whatamess (Full name)

Defendant

Cover Sheet

Mrs Whatamess

Defendant

99 My fave Street

Itchington

RG3 6NM

Date: 16/11/2010

2nd sheet = same as 1st, but change 'Cover Sheet' to 'Witness Statement'

Then insert your WS. Number each paragraph and leave space between each paragraph. Advice is to also add your exhibit number in the margin, every time you mention it within your WS. I did'nt do this because I forgot because I was also in such a rush to get finished. Your WS must end with a date and a statement of truth eg:

"Statement of Truth

I believe the facts stated in this Witness Statement are true

Mrs Whatamess (Full name)

Signature."

3rd Sheet = same as first sheet, but instead of 'Cover Sheet' insert 'Exhibit 1'.

My first exhibit was a photocopy of the illegible front cover of my application form from 1999 and accompanying letter, sent to me after a S78 request in 2007, which made up Exhibit 1, p1, p2 & p3. I then had another 3 exhibits before I put the rest of my correspondence together under my Exhibit 5.

Do the same for any other exhibits you want to include until you come to your letters/correspondence. Lump all these together under whatever exhibit number you are upto. Put them in date order and number them beginning with letter1, letter 2 and so on. If you have time, you might want to insert an index, but that's down to you. Then the whole lot needs putting together, I used treasury ties for the Court copy - those things that go through the holes on the left of pages. Restons simply got the printed papers in an envelope! But as long as you have a hole punch, you could even just tie them together. I also paginated the whole lot, whether that is necessary I am not so sure, but I found it made it easier in my own case.

You need to make 4 copies. 1st for court, 2nd for Restons, 3rd for yourself. 4th is spare incase you arrive at court and the judge says "I can't see my copy, can I use yours?"

Your default notice might be interesting. The 30 October was a Friday and 31 was a Saturday. I wonder why the reconstruct is wrong? I really don't want to send you off on a wild goose chase at this stage and so close, but out of interest, have you checked they did give you the correct minimum time in which to rectify the default? What date does your default Notice say you must rectify by?

Hi Manc

My court date is next friday 26th so I would say i need to do my WS today to make sure its on the courts door step by Friday, Saturday at the latest I will need to send special delivery just to give me more time as I will not be able to hand it to them physically.

Im a little suspicious of the default notice, I also dug out an arrers notice which is also dated the 30th Oct. The default notice states that i need to pay in full by 22nd Nov there is no postage stamp on the envelope looks like they have given me plenty of notice, I dont mind doing some work on this if it proves to help me in court.

Thanks for all the links I will start on my WS today and post it up for you and Andy to read when i am done. I have decided to say that i Agree that I entered into a contract with Benificial in 1995 but I deny entering into anything with HFC do you think this is the right thing to do?

Thanks

I'm not sure what andy will say, but i would say just tell the truth in your WS, but keep it relevant and factual. Try not to put in your opinions.

As to the default notice, personally, I would not chase that one now either, but do put a copy in your exhibits. You might save for in court, the fact that if they can get a default notice date wrong, then surely they can also get other things wrong too!

In your WS, I would state what you have said on here, that you were given a loan by Beneficial in 1995, got in trouble but still made payments because you are honourable. Mention unannounced door step callers frightening and pressurising you so that when HFC took over Beneficial and persuaded you to take out another loan to pay off the first one in 2001, you accepted. If it was all done without you ever signing an agreement because payment details didnt change etc, then state so, that it was all done 'inhouse' so to speak. If you felt trapped, say so. If you did sign something, but it was nothing like what they have reconstructed, and certainly did not have the presribed terms on it, then state that.

If you usually keep all your paperwork, then state that too and that you know if you had signed what they claim you would certainly have kept your copy. If you have every intention of honouring your debts, then say so.

I do hope my advice is correct, good luck in completing your ws and getting your exhibits copied and bundled together. Make sure you have plenty of paper and ink!

Hi, I am doing my WS while we speak, I will put in the part about Benificial and the truth is I didnt know anything about HFC taking it over, I recieved a payment book in the post and that was that and i carried on payments, I was in my early 20 back then and had no interest in asking questions about it, if it was now the situation would have been different.

Do you think them getting my WS on Saturday is too late? Im hoping to get this finished today but difficult with trying to work at the same time

So, as far as you are concerned, did you or didnt you get a new loan in 2001? Just because HFC now say a new loan was started in 2001 doesnt mean that it necessarily was so. If all that happened was you were simply sent a new paying in book and the balance stayed the same, then in my opinion that is not a new agreement, and will help you. But only you know what, if anything, changed in 2001 besides the owner.

I think many of us wish we could go back in time and do things differently, knowing what we now know! I have to be careful in apportioning blame and accept my responsibilities as I have had the money, but looking back and knowing what I earned, I find it incredibly immoral that firstly, CCs were literally being thrown at me left, right and centre, and then, all of them multiplied the upper limits many, many times over during the first couple of years. You'de think they didn't know what credit checks were in the olden days, wouldn't you? lol

If you can get WS finished and to a post office by about 5pm Thursday, you could send by 1st recorded or even special and it should be there Friday. If you cant post till Friday, it wont arrive till Monday (no one there on Sat), which is quite late and shouldn't happen, but if there really is no alternative, still post it off, whatever day, and hope it is accepted. Just keep today's date on everything.

Actually, if you cant post Thursday and its going to be late, you may as well utilise Friday evening and Sat morning and just ensure you get it in post by whatever Sat dinner time deadline is. Is there no way anyone could drive round for you on the Friday, before 4pm and hand deliver it?

As far as i am concerned I did not have any sort of converstation or letters to say that I was getting a new loan from HFC, this just happened without my knowledge. They have failed to even mention benificial the only corresponance i have ever had from benificial is door step calls.

I too wish i could turn back the time but we do what we do because we have to, i have learnt a valuable lession when it comes to credit and have not had none for the past 2 years and my life have turned around.

I will get this done today, and have it posted up before 5pm for you to take alook at, im sure it will need changing in some areas as i am no good with stuff like this and my grammer is poor, that will give me tomorrow morning to make any changes and i am off tomorrow afternoon so can run it to the post office before 5pm, I am unable to print anything from home so all will need to be done before 12 tomorrow.

Hi, I am doing my WS while we speak, I will put in the part about Benificial and the truth is I didnt know anything about HFC taking it over, I recieved a payment book in the post and that was that and i carried on payments, I was in my early 20 back then and had no interest in asking questions about it, if it was now the situation would have been different.

It sounds to me, very much as if you took out the loan in 1995 and probably received some kind of notice from HFC that they were taking over and that everything else would remain as before. If that is the case, then you are on solid ground and in court, you should be able to argue that yes, you admit having a loan and owing them money, but that it is an unenforcable debt and they are wasting court's time in trying to gain enforcement without the correct paper work - but more of that later, once you've got the WS sorted. If you can, put any document you have that shows you were paying this loan before 2001, (an old bank statement, old letter or anything that shows it merely existed before 2001) into your exhibits bunch.

It's a shame you haven't done a SAR yet, and it is too late now to get a SAR to help for the Summary Judgment hearing, because statements and paperwork from SAR would have helped you check out the facts for what happened in 2001.

I have nothing from benificial apart from the door step notices from them, but these do have the same account number on as HFC so that proves they have something to do with the loan?

I moved in 2001 so i probably had a clear out so wont have any bank statments relating to benificial.

Thanks

Ok i have just come to a standstill, I do not have all the documents and letters from HFC to proceed today, I need to have a search at home tonight for them which leaves me no option for the WS to be late. I thought i had everything together if i cant find them im stuffed arnt I? How am i supposed to relate to letters received if i cant prove that HFC wrote them.. now im stressed again I thought i could get this done today.