Results from the redetermination hearing today with myself v John Lewis/Restons solicitors. Before that though-late yesterday I received a mail from Restons demanding £400 for their 'costs'. I'm assuming they left it so late that I wouldn't be able to put it to the courts today. Anywhoo... My wishlist for today; To have the £1600 'collection charge' applied by Restons removed as I beleived it was not legal, To have the demanded (and judgement) payment of £250 reduced to my original offer of less than half of that accepted, To have post judgement interest (not on their original Particulars of Claim) removed, To have A Final Charging Order on my property either not applied or applied in such a way that it would not adversely effect my ability to sell my home (I'm in negative equity) and would not allow John Lewis to demand a sale of my home, To have the last sneaky bill from Restons (only received yesterday) judged upon. The result; The collection charge was deemed 'not reasonable or legal' and was removed-RESULT! The monthly payment was deemed 'not reasonable' and was set at what I'm happily paying already-RESULT! Post judgement interest was deemed 'not applicable' as it was not on their particulars of claim-RESULT! The Charging Order was granted but on terms which I'm happy with-RESULT! The sneaky last minute Restons bill was listened to and deemed 'unreasonable and of dubious merit' and the judge ruled that I was not liable for it-RESULT! All in all it boils down to one result-I have taken on John Lewis and Restons with honesty, common sense, some very good advice from this forum and a lot of homework...and WON! It is possible! I am sooo pleased I found this forum (esp supasnooper) as it encouraged me to fight back. It seems now that after nearly a year of pursuing me relentlessly, Restons are out of pocket, John Lewis are out of pocket and neither of them are any further forward than they were on day one when I made a reasonable offer to clear my debt which they rejected, dragged me through the courts and the stress only to have their case judged as 'unreasonable' and my original offer deemed as 'fair and appropriate'. Oh how I'd love to be a fly on a few walls this afternoon. John Lewis?-please people stay well clear of their finance. Restons?-just incompetent.

Just a quick question to throw out to anyone. Im due back in court in february to face Restons/HFC again. The date was moved to allow me to file a witness statement and for Restons/HFC to respond and also for the SAR and CCA's to come back. i have issues with the responses from both. Will the judge allow me toaddress these issues or am I just gonna be expected to sit there and say nothing. If I can respond to both the SAR responses and their witnes stements I beleive I can make my case against them even stronger as i now have copy of the original agreement an am hoping that I can challenge their replies and responses.

Also I'm wondering if I'm reading this correctly but my document which came back from HFC (found a sheet hidden away amongst the others) has the APR's on the reverse of the agreement-would this really mean the whole agreement is unenforceable-do they all really need to be on the same side of the paper as the signature?

Also I'm wondering if I'm reading this correctly but my document which came back from HFC has the APR's on the reverse of the agreement-would this really mean the whole agreement is unenforceable-do they all really need to be on the same side of the paper as the signature?

Also wondering about Restons reply to my SAR which I sent to them on 2nd November (they would have received it the next day) but which they didnt respond to until 21st December. On their response to my witness statement they state that my SAR was undated but the fools have sent a copy of it back to me and the court with my handwritten date clearly visible on it. Surely that time period for response was too long? If so, can I do anything about that?

I'm hoping they see it that way-the Payplan financial breakdown makes it fairly obvious that I'm paying all my disposable income to service the debts. Payplan told me what I was allowed as household expenses, mortgage, secured loans, food allowance etc and the rest goes to service debt; which I'm happy with as it gets them down gets me back to where I need to be in a few years time. My SAR came back from John Lewis/HFC. It doesn't mention any collection charge etc but the agreement refers terms and conditions back to the 'enclosed booklet' which I probably had in 2004 when I took the agreement out but which I haven't kept and which has probably changed since then so I've no idea what it originally allowed for. Dunno if that document specified things which they can claim against me now but they haven't provided me with a copy of it as it was a generic terms and conditions leaflet. Fingers crossed the common sense of it stands out. Just seems funny how Restons have said they won't proceed with either the collection charge or interest charges after judgement IF I withdraw my case. Trouble is I don't want an open ended charging order on my property as I don't trust them not to try to force a sale in the future which they hinted at. I'm following supasnooper's advice to the letter here (as it's all I really have to help me) and up to now he's been right every step of the way. Shame John Lewis didn't include the original terms and conditions leaflet though.

A Small Victory? Latest from Restons-received today. 1st page; "We refer to the above matter and enclose by way of service Witness Statement signed pursuant to the recent Order. You will note the Bank is prepared to 'waive' the collection without prejudice to its contractual rights. Please confirm you will withdraw your application. Yours faithfully etc". The first three points of their witness statement are confirmation of names and adresses etc. "4. Upon referral of this account by the bank my firm sent a letter to the Defendant dated **July 2009 explaining inter alia that we had been instructed by the Bank to seek recovery of the outstanding balance and requested a realistic proposal. A financial statement was received from the Debt Management Company representing the Defendant on the **August 2009 which offered an instalment payment. By letter dated **August 2009 the offer was rejected.The assertation by the Defendant that my firm was aware of both the involvement of the Debt Management Company and were already in receipt of his finanacial details by the time we first communicated with him is incorrect". My first Payplan payment went to Restons early July (18 days before they first contacted me)complete with a financial statement which I'm seeking that Payplan confirm again. The plan put forward by Payplan was a 'realistic proposal'. "5...Whether voluntarily or through a Court Order it is often the case that customers repay their liability (once the judgement has been obtained) by modest instalments over a substatial period of time. On this account the Claimant does not seek to charge post-Judgement contractual interest. However, as a concession, the Claimant is prepared to waive its entitlement to the collection charge and will ask the Court to reduce the amount of the Judgement and hence the Charging Order". I was offerring to pay my liability by a larger instalment than all other creditors before judgement had been obtained. NO POST CONTRACTUAL INTEREST! (It wasn't on their POC anyway). They'll only waive the collection fee if I accept a Charging Order and I still dont want that. "7. Reference is also made in the Witness Statement to the current available equity in the property. In my submission that is not a material consideration for a Charging Order application. The bank merely seeks security for the debt. It does not seek to enforce the Charging Order by way of an Order of sale. Available equity in the property will fluctuate over time." How can equity in the property NOT be a consideration on a Charging Order? No equity=No security? Order of Sale...next paragraph. "8. The Bank has no present intention to enforce liability while payments are made which are reasonable and proportionate in view of the Defendant's prevailing financial circumstances. I do not accept the criticism made by the Defendant of this firm's collection activity". No present intention-so if they get the Charging Order they may try to force a sale in the future? My payment plan is reasonable and proportionate in view of my circumstances. The collection charge goes against OFT guidlines-it's their criticism-not mine. Sorry if I've gone on a bit but minor successes (with conditions); No collection charge No post Judgement interest charges BUT ONLY if I agree to the Charging Order and I've yet got no idea what they think is a 'Reasonable and proportionate payment' as my Payplan figure was rejected. The no present intention line worries me with the Charging Order, which is why I'm trying to avoid it.

supasnooper I would never even have looked at that without your advice. And...on my witness statement I've stated that i believe the collection charge goes against the OFTI guidlines on debt collection-as does Restons asking for a higher payment when they know I cant afford it (as they have my financial statement) as does their demand for full payment within 10 days back in July/August. I downloaded the PDF of the whole OFTI guidlines and included the relevant sections in my statement with the parts highlighted. I really would have been lost without this forum and especially your advice and guidance-I thank you for myself and my family.

"The Particulars of Claim (state); The Claimant claims payment of the overdue balance from the Defendant under a contract dated on or about 2*/1*/200* in the sum of 1****.** inclusive of interest to the date of this summons at 1*.*% per annum from 2*/**/0* to 0*/0*/09. DATE ITEM VALUE 2*/0*/2009 Default Balance 9***.** 2*/0*/2009 Collection Charge 1***.** Post Rfrl Cr NIL 0*/0*/2009 Interest 6*.** Total; 1****.** Together with; Interest pursuant to contract at the rate of 6**.** pence per day to the date of Judgement or sooner payment." That's all it says in the box on the original claim form. Is that any use in establishing whether they can claim the interest after Judgement in February.

Just received the reply to the CCA and Subject Access Request from Restons today (that I posted to them on 2.11.09 -next day delivery which ARE dated). Quote; "Thankyou for your (undated) Subject Access Request. We are only obliged to send the data of which we are data controller which would not include data or copy documentation which we do not hold. We would therefore respond as follows, 1. Original signed, executed credit agreement, Terms and conditions etc We do not have. 2. Account history event etc We do not have. 3. Copy notice of Assignment, default Notices etc We do not have. 4. Documents relating to insurance We do not have 5. Details of any collection charge Please see attached statement; A collection charge of 16.3% is applied to the account by the creditor. The creditors entitlement to do so is set out in the cards terms and conditions. The charge is designed to go towards covering administration and collections costs including receiving and processing instalments over the next (approximately) 7 years in this matter. If you are in a position to settle the account early you may ask the bank to review this charge. By virtue of the Consumer Credit Act 2006 a creditor in thistype of case is now entitled to seek contractual interest on the Judgement debt until payment in full on any outstanding (reducing) balance. This could be applied in place of a collection charge by a creditor. 6.Specific details of fees and charges levied by any other agency HM court fee for summons £190 Court fee for charging order application £100 Land registry fee on registration of interim charging order £50 Land registry fee for office copy entries £4x2=£8 7. Genuine copy of any notice of fair use Inappropriate in these circumstances 8.A list of third party agencies to whome ersonal data has been disclosed HM Court services HM Land Registry Kearns & Company Solicitors-agents instructed to attend hearing. 9. Copies of statements for the entire duration We do not have 10. Termination notices We do not have. We have also attached copies of documentation stored on our system together with a note of a telephone conversation on 31/07.09. This shows that there was a telephone call made to the mobile telephone number we held and a message was left for a return call. A telephone call was made to the home telephone on record where we spoke to an unknown female who advised that you would return at 2.30. This lady asked whether we had received a fax from Payplan to which we replied that we had not. yours faithfully etc." end quote Looks like they're saying they'll give up on the collection charge but apply interest instead-t**ts!. It also seems they have very few documents relating to me and the person who was at the court for the hearing was from another solicitors who'm they'd appointed as their agents. Hoping to get more details from the same request I made to John Lewis themselves. And the 'unknown' lady they spoke to on the phone? My wife who clearly identified herself to them. Is this the sort of standard response people get and any ideas people how the courts treat these kind of things would be appreciated to give me some (if any) weapons to fight back a bit at least.

I did apply for the set aside which he did until February when he also considers the final charging order-he ruled on nothing but chose to adjourn it all to allow me to put in the witness statement. When I said that I'd sent restons a CCA he asked them what they had done with it or whether they'd received it (i know they did) and the solicitor said he had no knowledge of it. He then said that if they had it-they should act on it or it may have consequences for them. I told him i'd sent it to them as they are my only point of contact and are the representatives of my creditor-he seemed happy with that and said that he was giving them until December 11th to prepare their paperwork and defence. I'm assuming from that that he thinks they should be responsible for the response. I've sent a SAR to John Lewis and they requested ID, which I sent, before they agreed to provide the requested info. Fingers crossed I've covered all bases but he did only give me 6 days (including the weekend) to have all paperwork in the hands of the solicitors and the courts or it cannot be used. Bit of a rush but made it ...just!

Update! Went to court (not as scary as I thought). When in there it became obvious that Restons wanted a final charging order and that was that. I had prepared a statement but the judge would not let me read out anything at all as Restons claimed they had not got a copy of it. The judge was about to make his ruling when I told him that I'd applied for a copy of the credit agreement and SAR earlier. He then said that that changed things somewhat. He asked my reasons why I was disputing some of the proceedings. I replied that I believed the Restons collection charge was against the OFTI guidlines on debt collecting. He voiced his opinion that he thought it may not be commercially viable to pursue the collection charge (nearly £1600) to Restons. They said they may be prepared to forgoe the charge if they can secure a charging order. He then gave me 6 days to prepare a witness statement and get it to both Restons and the court (which I did). My case is now adjourned until Feb 4th 2010. Up to now I have received no reply from Restons to my CCA request (received by special delivery 1st November). Not even an acknowledgement. All copies of postage etc are included in my witness statement. I do have a question if anyone is able to answer-on the CCA it says that if the creditor cannot comply with it then the provisions of s77 apply though I cant seem to find out what this in fact means? And-I've had my house valued by aa 'agreeable' agent who has given me a written valuation BELOW what my secured debt is in an attempt to fight off the charging order. I've asked for an attachment of earnings not to be granted as it puts a storecard debt before my mortgage, utilities payments etc which goes against all government debt advice and I've therefore asked for the court to allow me to continue with my payment plane which clears my debts in 6 years as other creditors think this is reasonable. Back to the fight in February then! The judge was very helpful if a little exasperated at my lack of legal knowledge but at least he agreed to an adjournment.

Well the application for the set aside has gone in-I'll ring on Monday to see if it's gone before the judge to see what happens. Bit miffed that Payplan didn't let me know I could challenge it as their legal dept had all of the paperwork- lots of time lost- but they've been good with everything else so musnt grumble. Nervous now about the next steps and facing Restons sharks.

supasnooper I wouldnt even be trying this if it weren't for this forum and your advice. Whichever way it goes I am sincerely grateful to you for your patience and help:)

Ok then-I've read all I can and tried to take as much out of them as I can but I'm going to have to get something done about it so my paperwork's complete and i'll be dropping it in to the court tomorrow morning (with my £75 fee-ouch!). Thank you all so much for your help-it's a shame that we have to deal with people like this, especially with the current economic climate adding more to our numbers daily. You have all been a lifeline and a glimmer of hope. If nothing comes of it I guess i'm back to where I am today. Wish me luck.

how about adding? The defendant took no action in defending or disputing the court process upon advice from the debt management organisation dealing with creditors upon his behalf and submitted all court documents to them for their consideration, however, upon receiving guidance on his case believes that there is a good prospect of success in defending the action for the following reasons

robcag It sounds like the same with me-I asked repeatedly if I could do anything to fight it and Payplan said no-just let it run its course. If I'd known about this then I would have done all of this so much sooner. Wonder if its worth adding it on?

and box 10; The defendant respectfully asks that the court set aside judgement entered by default on XXXXX in the Northampton County Court. The defendant being a layman and litigant in person and without the knowledge or assistance of legal advice while under a Debt management plan has only recently became aware of his legal right to ask for the judgement to be set aside, being ignorant of court procedure. The defendant upon receiving guidance on his case believes that there is a good prospect of success in defending the action for the following reasons The amount being claimed under the judgement includes capitalised interest and a collection charge being levied by the claimant which was neither stated in an original Consumer Credit Agreement and which contravenes the guidelines laid down by the Office of Fair Trading in the document Debt Collection Guidance-Final guidance on Unfair Business Practices (OFT66), namely; Charging for debt collection 2.9 Charges should not be levied unfairly. 2.10 Examples of unfair practices are as follows: a. claiming collection costs from a debtor in the absence of express contractual or other legal provision. b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision. c. not giving an indication in credit agreements of the amount of any charges payable on default. d. applying unreasonable charges, for example, charges not based on actual and necessary costs. e. applying charges which are disproportionate to the main debt. Physical/pyschological harassment 2.6 f. pressurising debtors to pay in full, in unreasonably large, instalments or to increase payments when they are unable to do so. Other debtors, of whom the claimant is aware, would be unduly prejudiced. I have been in a debt management plan since June 2009 with an industry recognised organisation which has been making regular monthly equitable payments to the claimant since that time with no payments being missed. This plan would be unduly prejudiced by a final charging order. The action being taken takes no account of instalment payments being made to the claimant however the original Default Notice states proceedings will only be instituted if ‘the whole or any part of such sum is not then received’. Other creditors are happy with payments being made under my debt management plan and have frozen interest on accounts. This will not be the case if a subsequent rise in one creditor’s payment is undertaken. My payments under my debt management plan are sufficient to clear the original debt, without a collection charge and interest, within a period of 6 years which I believe is not unreasonable.

Ok then, box3; An order that the Judgement for Claimant (a copy of which is attached) made in the Northampton Bulk Court be set aside as default judgement was entered by request of the claimant notwithstanding that the claimant entered an amount claimed as a defaulted payment which included a collection fee with interest which was not part of the original Consumer Credit Agreement, was disproportionate to the original balance and was contrary to the Office of Fair Trading Guidlines for Debt Collection. The defendant wishes to apologise to the courts for submitting this form at this date however the defendant is a litigant in person and as such was unaware of his legal rights in challenging the claimant. The defendant requests that the court set aside the default judgement as the defendant has a real prospect of defending this action.

they cant even get the spelling of my bloody christian name right!

dont know quite how to word either an apology to the courts for not taking action further but I was advised by Payplan that I need take no action with these proceedings when I have asked as time has gone by and have only found this was all possible when I found this website and forum.

For box 10 I was thinking; I object to the order being made final and believe it is unreasonable for the following reasons; The debt is solely in my name but the property is owned under joint names. The amount being claimed under the charging order includes capitalised interest and a collection charge being levied by the claimant which was neither stated in an original Consumer Credit Agreement and which contravenes the guidelines laid down by the Office of Fair Trading in the document Debt Collection Guidance-Final guidance on Unfair Business Practices (OFT66), namely; Charging for debt collection 2.9 Charges should not be levied unfairly. 2.10 Examples of unfair practices are as follows: a. claiming collection costs from a debtor in the absence of express contractual or other legal provision. b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision. c. not giving an indication in credit agreements of the amount of any charges payable on default. d. applying unreasonable charges, for example, charges not based on actual and necessary costs. e. applying charges which are disproportionate to the main debt. Physical/pyschological harassment 2.6 f. pressurising debtors to pay in full, in unreasonably large, instalments or to increase payments when they are unable to do so. Other debtors, of whom the claimant is aware, would be unduly prejudiced. I have been in a debt management plan since June 2009 with an industry recognised organisation which has been making equitable payments to the claimant since that time. This plan would be unduly prejudiced by a final charging order. The action being taken takes no account of instalment payments being made to the claimant however the original Default Notice states proceedings will only be instituted if ‘the whole or any part of such sum is not then received’. Other creditors are happy with payments being made under my debt management plan and have frozen interest on accounts. This will not be the case if a charging order is made final. If the charging order was made final and led to the sale of my home my family would suffer hardship for the following reasons; a. I have dependant children living with me at the address. b. The property is in joint names and would therefore render the joint owner and those children homeless. c. My contract of employment considers that I am a mobile grade. If, because of this order being made final, I am unable to obtain a mortgage or rent a property in the future, then I am unable to comply with my contract of employment, which would render me unemployed, causing further hardship to myself and my family. There is insufficient equity in the property for a final charging order to benefit the claimant.

Should I add that; the defendant requests that the court set aside the default judgement as the defendant has a real prospect of defending this action.

Supasnooper Ok Ive had a read through though the details of the case are obviously different to mine. From what I can gather for the N244 form and what I think I need to fill in boxes 3 and 10 are the important ones so for box 3 I was thinking; The defendant request that the court set aside the default judgement made at the request of the claimant as the judgement covers monetary sums ( a collection charge plus interest) which was not covered by the original Consumer Credit Agreement and which contravenes Office Of Fair Trading Guidlines for Debt Collection.

ok then I understand that I must apply to have the set aside. I have downloaded the N244 application notice. Im afraid I'm asking for more help though as I have no idea how to fill in in. I'm so sorry people for keep asking for help here.