Well done CB thats the link. Paragraphs 173 - 181 are relevant. 181 explains that it is sufficient to simply refer to the general terms but not the Prescribed Terms. It makes it clear how the prescribed terms should be 'contained' by being attached or overleaf and a statement on the form would incorportae those terms by a similar reference. The failure of a large corporation the size of HFC to to make reference to terms that were indeed overleaf seems unbelievable unless of course they were not, in which case the absence of a reference would be logical. Luckily for the claimant the only evidence that can determine the facts has been deliberately destroyed even though it is such an important document. There you go Pipster, use all the information to defend the agreement and add it into CB's excellent post and you are almost there with the defence. Do you have the DN envelope? Pedross

Hi Pipster You need to concentrate on points 1 & 2 The judge will not be interested in the POC being vague in my opinion, but you can point out the collection charge is not allowed under OFT rules I believe, you need to find that information. 4. is the same as 2 5. if you want to mention the charges briefly you should include it in the DN argument but the case will not be decided on them, it will be decided on 1 & 2. 1. The judge has mentioned the manchester cases (MC) so you need to refer to them in your favour, be familiar with the transcript and take copies with you. I forget the numbers of the paragraphs I have in mind but I will try and find them for you. The main argument is that the prescribed terms must be contained in the agreement. Restons will argue that they were on the back but the original has been destroyed. In the MC it was said in regards to S78 requests that sometimes the originals may have been destroyed in a fire or some other situation. In your case, although it is an important legal document, the lender has deliberately destroyed it and is expecting the court to waive any rights to request production of the original. In which case one would expect them to make sure that they retained copies that proved without reasonable doubt that they were part of the same document. There is nothing in the 2 copies you have been provided to prove that they are part of the same document and I would put Restons to strict proof that the T & C were a copy from your file and not just a copy of a file copy. In the MC cases it was clearly stated that when the T & C were provided at the same time as the application form and it stated on the application form T & C attached or overleaf it would be classed as 'contained'. Your application form makes no mention of where you can find the terms and therefore using the MC they would not be contained. If they were in fact overleaf as Restons would have the court believe why does it simply not say overleaf. HFC deliberately destroyed the only actual evidence which would prove it was not there. So your defence needs to say that you deny the terms were overleaf and make all the above points to support that. 2. The DN is a day short 1st class and you need to use your original argument. Do you have the envelope by the way, as I have never read that HFC use 1st class. I know I have waffled but you need to cut out all the waffle from your original defence. You know what the claim is about and so does the court so the POC points etc is no use. You need to win it with the DN which you should do. Your backup is the agreement. Pedross

Hope you are feeling better Bebell, I will help you with the complaint, it will take me a few days but I will post letters up for you. Pedross

Good try Angel, But money laundering is a bit of a long shot and would not be worth pursuing. Your point regarding the accounting issue is relevant in my opinion because her negligence in providing adequate accounting records for the court shows her disregard for the proceedings. This gives DD the opportunity to prove that her details of the true events are based on actual provable facts rather than the story of the events that her opponent would have the court believe. I think the best new point for the Barristers opinion is my theory on the IOU (I would think my idea was good ) which I posted several pages back and I still believe that the IOU's are not a strong legal point for the claimant. Pedross

WOW, you are certainly fired up, You can discredit the first statement. She admits the £500 invoice it does not matter if they paid or not. They might have paid if you had been asked to help collect the debt, because you were influential in obtaining the business. She has failed to keep adequate accounts. She refuses to provide reliable evidence in the form of bank statements. You worked for 50% more clients in the short time that you were involved than she has declared in evidence. One client cannot be De Minimus if it represents 50%. Finally, the bit I am uncertain about, if I understood it correctly, she made some payments directly to your suppliers. She did not give you the money she paid a debt on your behalf. You gave her an IOU against money you did not directly receive. What would have happened if there was a dispute regarding the goods or services supplied, who was entitled to a refund you or her. Perhaps your Barrister has an opinion on the legality of third party payments. You are doing well. Pedross

I think it is another example of reporting information in a biased way. MoneySavingExpert.com has adverts and links on the site to the very people we are fighting against. I would expect them to act like anybody else who gets a good income from the banks, not bite the hand that feeds it. The report is basically correct of course, but the lender only ever had to produce the correct information to satisfy S77/78. They still need an agreement to go to court. In addition a reporter can word things any way they want. If the debt is unenforceable in a court of law but it is not written off that would be a good result for most people. If you cannot pay it, the threat of legal proceedings and all the nasty things they say they will do to you is the worst part. Thank goodness for CAG and honest unbiased opinions. Pedross

In theory you are correct bed, But the company would be liable for debts and you would not want to close a company you have just started to avoid a Yell.com debt. But where is the OP anyway?

My comments were not a personal attack on your opinion Buzby, I was trying to help the original poster who appears to have vanished. My understanding of the matter is that Seren put a free ad on Yell.com which is an online directory. It appears that it was a sprat to catch a mackerel and the next thing they knew someone from Yell.com was on the phone for 40 minutes talking them into upgrading the online advert for an extra £75 a month. I did not see any mention of a paper based advert or directory so if I have missed something I may be on the wrong track. Yell.com is an online directory so the idea and main selling point is that you can obtain business by advertising on it. Why then when they have your phone number, website probably and email address do they telephone you to sell you a more expensive advert. If Yell.com works so well, why do they not send you an email explaining the benefits of a better advert. Because it does not work in the way that they would have you believe, so they use high pressure telephone sales tactics to get the sale. I do agree that lying is a risky tactic. Thats why I invited Seren to post what they were told to get the sale so we could consider the situation. If I was the suspicious type I would think you worked for Yell. Pedross Without Prejudice:)

In view of the post above by Buzby I will comment further on the dubious selling tactics of online directories. I do not believe that Yell has a cut off. They can put you on it and take you off again with very little effort. So I stick to my original opinion. Phone & email straight away and say that you booked it under duress, which it appears to me you were and you wish to cancel.Then do as I said before. If they still say you cannot cancel, then post on here exactly what they told you on the telephone that you would get when you were on there. I will then examine what they have told you and suggest what you do next. Pedross

She has now emailed me a copy of the contract in which states i have to enter my password (which was agreed on the phone) and email it back to them thus making a contract with them. If you have not done this you do not have a contract with them. Talk to them on the phone straight away and say that having had time to think about it you cannot possibly afford it and do not wish to contiinue with the contract. Do not take no for an answer and make it clear you have no intention of paying whatever they say. If they push the issue ask to talk to a senior manager so that you can make a complaint about the selling tactics they are using. Next...this is just the start...you have started a new company and you will get calls from dozens of online directories, phone companies, utility companies and anything else you might need. If you spend 40 minutes talking to each one you will spend all night on here and get no work done. Get rid of them, say you have no time to talk. So you don't want to save money? ...No I don't I want to earn money and I can't do that by taking unsolicited phone calls. Register for the telephone preference service to avoid as many as possible. Thats about it really:) Pedross

Very well put DD. A good argument and I would like to make it clear that I had no intention of encouraging anyone to argue a case on underlining alone. But I do believe it is an issue for consideration to add to other creditor errors to prove negligence. In fact the whole paragraph has been missing from some DN's and no one has picked it up. However, you said it yourself, Judges can only make decisions based on what is put before them. Its a bit like the 'Credit Limit' or 'Approved Limit' argument. Some argue that it means the same thing and some claim unenforceabilty as its not as stated in the regulations. Thanks for the debate, I don't want to continue it though, as you are quite correct it is not a strong point and I would be in danger of misleading newcomers if I do. Pedross

Good man DD. I would not dream of encouraging someone to fight a case on an issue which could be classed as De Minimus, which is why I kept stating that I could be clutching at straws. However, I am not convinced. Personally, I would include it if it was supported by other arguments until someone proves me wrong. A day short, no underlining, wrong amount stated etc. If the statements are in the regulations and a child could copy them I do not see how a variation can be De Minimus. 2 or 3 errors would need a good argument. I can just imagine the conversation in the office when they typed up the amendments...Do you want me to underline it Sir, as you have...It makes no difference everyone will ignore it anyway? Thanks for the debate DD ..I rest my case. Pedross

Hang on DD If it is a day short the judge is wrong ... agree or not? I asked on another thread about thoughts regarding the whole statement a week or two ago and you said it is very often missing. I have now decided that if it is missing it must make the default notice defective...agree or not? How do you feel about the statements that should be in capitals.. are they ok in lower case....yes or no? I know you feel as passionate as I do about DN's so why should we start to give in to wrong decisions. Final question...should the DN be in the way prescribed by the regulations or can the creditors just do as they choose and ignore the regulations? I did say I might be clutching at straws but if it adds to the defence I don't see why we should disregard a statement which is not in the following form. How about if we rearrange the words is that ok? I know this is a long shot but one day someone is going to make a stand and these large companies will be forced to do what the act originally intended. Get it precisely right or suffer the consquences. Pedross

Are you sure DD I might be clutching at straws but paragraph 10A (final paragraph) which came into effect on 1/10/08 is quite specific. A statement in the following form: This notice should include......... My point is that in the regulations it is underlined and I assume for a reason. For example, the previous 2 paragraphs in the default notice are in capitals as prescribed by the regulations. If they were not I think we would question them. I might be completely off track but I have looked for explanations why this prescribed statement should or should not be underlined and as I cannot find an answer I presume it should be as stated in the regulations. If I am wrong and someone can prove me wrong then at least we know where we stand. Any takers? Pedross

This is the letter that you have been waiting for as it clearly states that the agreement is terminated. Therefore if the DN is invalid, they cannot issue another one under normal circumstances. The fact that you have the letters is proof that you have the information but because they went to the wrong address you did not recieve the DN within the correct timescale allowed. I would ignore the request for the card they may try and use it against you. Just send them a letter saying that although they insist on writing to the wrong address you are eventually getting the letters and you are happy to accept that the agreement is terminated. In view of the fact that they do not have a copy of the original agreement anyway, will they now send you one final letter, to comply with the recent draft OFT guidelines and confirm that the agreement is in fact unenforceable. I am in a bit of a rush but I think thats about it. Pedross

I am still watching the thread Bebell However, the route that I think will also get you results is not as urgent as the one that you are working with BRW on. Therefore, I am waiting for you to get the urgent stuff out of the way so that I don't confuse the issue. Pedross

Hi CB I expect you are right, that s a good idea, but we are probably best to save all these up to show a catologue of errors all together. More importantly, you have reminded me about the previous letter, which we may now want them to have. Hi FL Can you email me the letter in CB's post please, to make sure I am looking at the right letter. I will then do you the next letter to send to HFC which will get them scratching their heads again. Pedross

Hi BRW Keep up the good work I also believe that you are on the right track as usual. You are also correct in thinking that they have done this before, many times by the look of it. The reason that I am taking a different route is that it does not rely on the court but on presssure from the FLA, FOS and even OFT at some stage. I believe that this alone could get the money back, but add your arguments to it as well and it will be undisputable. I can't rep you for that good post it says I must spread some around first. Pedross

Hi Series3 I know the feeling its awful, however, its probably best to keep the papers out of it to begin with and try and get the £5,500 back first. They will not want this in the papers for reasons I have not posted yet and the threat is worse than doing it. I must say, if I am correct, this story is worth a tidy sum. Thanks for confirming I had the right Creation I had my doubts for a minute. It appears that they use several variations on the name. Pedross

Stop Press, I think I have the wrong Creation. Back to the drawing board while I check it out. Same principal but I might have to rethink it. Latest News Update I know, I am on a forum having a conversation with myself. Anyway I have rechecked and I have the right Creation and also a sample copy of a recent agreement. I think I am onto something here. Pedross

Hi Bebell Creation Financial Services are now called Laser UK They are currently members of the Finance & Leasing Association who have a lending code which they agreed to comply with and this is part of it: If you have an interest-option loan agreement, we will: ● write to you before the interest-option period ends to remind you about the options open to you (reminder); ● make it clear in the loan agreement, and when writing to you (in the reminder), the date by which you must make a payment to avoid interest and the date from which interest will be paid if you do not make the final payment within the interest-option period; ● allow you a short ‘grace period’ at the end of the interest-option period to make the final payment if you can show you have made a reasonable effort to pay on time; ● tell you clearly at the beginning of your agreement, and in the reminder, if we have any restrictions on how you can make the final payment; and ● allow you to make the final payment in the way you prefer, depending on any restrictions (see above). Lending Code 2006 31 What I do not know at the moment is if they were members when you made your payment. In addition I do not know what happens if the payment does arrive one day late. I would think that it should be deducted from the account as a lump sum payment, not held on one side to be treated as installments. I just cannot imagine that this can be allowed by the agreement because if it is it must be an 'Unfair Business Term' which is another issue. I believe that now you have paid the next step is to write to the FLA and complain. Also write to the Financial Ombudsman Service and complain about the mis-selling of the PPI if you believe that it was mis-sold. To do that you need to make sure that you do not get over excited and start firing off letters which backfire on you, so we need to know what is going on before you do things. The best thing to do is to post up a copy of the agreement if you still have it (minus personal details, account no’s etc). Also confirm how you know the money reached them one day late and what proof you have. Finally, did you get a letter to remind you to pay by a certain date. In view of the fact that you have lost in court, have a judgement which you have paid and do not wish to appeal this will be an interesting way to fight the matter, maybe get some money back and get peace of mind. I will try and help you, but you will have to bear with me, as you will need some really good letters if you are going to throw the book at them, which at the moment looks the case to me. Pedross

Ok Bebell Now I understand and it changes things. I must admit I am not an expert on the legalities of this type of credit agreement and how strict the deadlines are for making payment. I do know that if it was me in that position I would have defended the case differently, but that is past now. In my opinion Creation have not acted correctly or at the very least fairly, in refusing to accept the payment one day late. I need to think about this and I am snowed under at work at the moment. I will get back to you on this but I am sure that there will be other comments in the meantime, as you have some knowledgeable posters linked to the thread. I think you have some serious complaints here and compensation to go with it, but it all depends on the way these agreements work legally, so don't get too excited until we can clarify it. At the very least I do not see why you cannot claim the PPI back from Creation, but I would think you can do much more. Pedross

Hi Bebell I must be really confused, so please bear with me. If you paid in full for the suite then in my books that would mean you have paid in full for the suite. So what did they take you to court for, if you did not owe any money? Are you saying that you paid Land of Leather for the suite and because you were 1 day late the finance kicked in and Creation also paid Land of Leather and then requested the monthly payments from you. I am sure there must be a logical answer, but I am failing to understand it at the moment. Pedross

I know you want to put this behind you and I do not want to cause you stress by suggesting this. However, in the above post you said that you paid the full amount after 12 months, did I mis-understand that. Secondly, presuming you had not paid in full before you will have done now so why not look into claiming back all the PPI which may have been mis-sold. That could get you a whole lot of compensation as well in view of what has happened. Its not like fighting them in court. You either win or you don't win, but at least you don't lose. Pedross

You have posted very little information so it is difficult to give opinions but I will try. If your friend is facing a charging order on friday I would imagine that the case has already been to court and a judgement issued previously. I would also imagine that they have been ordered to pay the debt and have failed to do so. It would therefore not be a good idea to try and dispute the debt at this stage as it should have been done prior to the original hearing. If this is anywhere near the facts then the best option would be for them to go to court with an income and expenditure statement and make an offer to pay reasonable monthly payments which are affordable. They should request that they are given chance to make these payments and explain to the court that this resulted from an unsecured debt which was never intended to be secured on property. They should also explain that they now have reason to believe that there may have been reasons to defend the original case but they did not have the knowledge to do so at the time and realise it is not the time and place to do so now. However, to grant a charging order to such a large institution against the family home, at a time when the government are looking into restricting such orders, will cause stress and uncertainty to the family and an order to make monthly payments would appear to be a much fairer solution. As it is friday it would make more sense to look for supporting information on the points I have mentioned and the prevention of charging orders rather than the validity of the agreement which will probably not concern the court. Just my opinion and if the facts are not like that I have just wasted my time. Never mind. Pedross