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

[robcag]

Well, it means that i don't understand why they are selling a debt under serious dispute, when they will only get a few pennies in the pound for it, and they have already forked out more money than they will get in court fees.

 

Especially since it won't prevent them being a part to the legal action.

Hi Tom

 

Thanks for the explanation, I can't understand it either, but then I'm not as well versed in the finer points of the law and procedures etc. as you and Paul et al are!

 

I think they're on their back foot, hopefully breathing their last dying gasps! (Probably wishful thinking again )

 

Cheers

Rob

[robcag]

The plot thickens eh, Rob? This seems like very strange behaviour. I will be interested to see what the court says.

 

There's a certain saying about bottoms and elbows that comes to mind

Thanks for your observations and comments Hopeful

 

With a bit of luck I'll find out a bit more tomorrow to update the thread with.

 

Cheers

Rob

[goorooji]

Very interesting reading...

 

will keep an eye out, as i am just starting out my battle with Restons/HFC.

 

Still awaiting CCA to CPR request, deadline wed 9th...

 

Good luck... G

[robcag]

Unfortunately I do not yet have any more useful information from the court to update this thread with.

 

When I phoned the court office earlier, after being put on hold for several minutes while the lady tried to find out what was going on, I was told that the girl who had made the last entry on the computer regarding the issue with Restons was away, and as she only works there part-time she would not be back at the office until Friday.

 

For some reason she hadn't put any info on the computer file even though she had apparently updated it , and they couldn't tell me anything, even though the person who I was talking to went and fetched the "folder" to have a look.

 

It didn't really help to be told that the person who had done the update was "generally very good at keeping things updated" .

 

I now have to wait until Friday for the girl in question to phone me.

 

Rob

[Hopeful1]

Good grief! As if the situation is difficult enough without all this malarkey.

 

I'll look out for your post on Friday.

[car2403]

You could ring and ask to speak to the Court Manager - that's just daft having to wait until Friday.

 

Ring Restons - if you get someone else, they may help.

[robcag]

You could ring and ask to speak to the Court Manager - that's just daft having to wait until Friday.

 

Ring Restons - if you get someone else, they may help.

Hi Chris

 

I agree with what you say about having to wait until Friday. I might try both your suggestions tomorrow.

 

Cheers

Rob

[hellhasnofury]

Hello Robocag,

 

Restons have done the very same thing to me, told me that they would be dropping proceedings as the debt had been sold, then a week later received a letter telling me to disregard the last message, it fact it had not been sold and that they were still instructed by hfc to pursue me:o but that it might be sold in the future. :grin: Bring it on I say. Now they want an adjournment because their witness cannot make the date.

 

They really do like to play mind games don't they, roll on the court day:grin:

 

If they carry on with these stupid games, there might be a little surprise for them:wink:

[robcag]

Hello Robocag,

 

Restons have done the very same thing to me, told me that they would be dropping proceedings as the debt had been sold, then a week later received a letter telling me to disregard the last message, it fact it had not been sold and that they were still instructed by hfc to pursue me:o but that it might be sold in the future. .......

 

Hi HHNF

 

Thanks for the info, I wouldn't be at all surprised if that is what is happening to me also

 

I phoned the court again a few minutes ago and spoke to a dept manager (apparently the court manager is not in today).

 

Long story short, no-one can find a "hard copy" (fax, letter or anything) of the "plaintiffs representation update" (I think she called it) submitted by Restons which they have a reference to on the computer file for the claim, but not in the paper file itself.

 

She could not find out if there was such a hard copy or whether Restons simply made a phone call to the court.

 

I left it with she was going to phone Restons when we finished our call, and ask them to send a hard copy.

 

I haven't phoned Restons yet today, but I probably will do so in a few minutes after the court dept. manager has had time to get through to them and make her request.

 

I wonder if I should mention to Restons that I know of another case in which they have said the same thing (selling the debt) and then backtracked.

 

Cheers

Rob

[robcag]

You could ring and ask to speak to the Court Manager - that's just daft having to wait until Friday.

 

Ring Restons - if you get someone else, they may help.

 

Well I rang Restons only to be passed to what sounded like the same person I spoke to before, which was confirmed when he said "we had this conversation the other day". This time I asked his name which was given as "Mr. Wild", presumably J. T. Wild, Litigation Manager.

 

As before, getting anything useful out of him was like sucking on a stone, although he did say again something vague about the debt being sold to a third party, but this time he also mentioned that Restons were no longer going to be dealing with it.

 

I think we'll have to wait and see whether there is any truth in that, especially in light of what HHNF has said above.

 

I did manage to say to him that I had contact with someone else who was told something similar by Restons, which turned out to be false as some time after Restons had turned it around and said to disregard what they had said, to which his reply was that he could not comment on other cases, only this one.

 

I think they have their backs to the wall.

 

The longer this mystery goes on, and the more I think about it, the more appealing the idea of an application for a strike-out gets.

 

Cheers

Rob

[pt2537]

Well, an application may be the way to go,

 

of course, it may be worth also considering a claim for a declaration under section 142? to get the matter put to bed, of course, its your call either way, you could even consider it AFAIK by way of a counter claim

 

but it does sound rather bizzare as the things are panning out thats for sure

[robcag]

Hi Paul

 

Well, an application may be the way to go, perhaps after I find out from the court what this update is that Restons have submitted is all about that is what I should do.

 

of course, it may be worth also considering a claim for a declaration under section 142? Would that be a declaration that the alleged agreement is irredeemably flawed and unenforceable? to get the matter put to bed, of course, its your call either way, you could even consider it AFAIK by way of a counter claim

 

but it does sound rather bizzare as the things are panning out thats for sure yes, very strange

 

I wouldn't mind betting that Restons have realised they can't win as it's not another of their favourite type case where the victim rolls over and gives in, and having taken HFC for a ride and stringing them along all this time on the pretext of winning, they now want shot of the case.

 

Whatever it turns out to be, it's probably the Restons tail wagging the HFC dog.

 

Cheers

Rob

[car2403]

A s.142 declaration by the Court would determine the debt as unenforceable.

 

I'm not sure you can counterclaim for the debt, as it will still "exist" it just can't be enforced against you Rob? (I may not understand Paul's post, above, so probably should have clarified before advising)

[pt2537]

A s.142 declaration by the Court would determine the debt as unenforceable.

 

I'm not sure you can counterclaim for the debt, as it will still "exist" it just can't be enforced against you Rob? (I may not understand Paul's post, above, so probably should have clarified before advising)

 

Sorry, speaking out loud without really clarifying what im saying,

 

ill take my foot out of my mouth now.

 

what i was saying or meaning anyway was the possibility to mounting a CC not only for a declaration but also for things like any charges added to the account along with any damages etc

 

thats what i was thinking

[robcag]

Hi Paul and Chris

 

Sorry I'm a bit slow getting back to the thread (been helping a friend with some house renovations/alterations and was a bit knackered!).

 

Anyway, a short while ago (earlier today) the court phoned me as promised a few days ago.

 

The lady who had access to the letter from Restons read it out to me, so here's a bit of what I managed to catch;

1. Restons are not able to submit a witness statement as the debt has been sold to a third party and Restons will no longer be representing this case.

 

2. The third party (identity unknown at this stage) is expected to submit an application to have the Claimant details changed to their name (I'm not sure if that would be to include them alongside HFC).

The lady at the court office seemed to think that the third party was unlikely to have time to submit their application for a change of claimant details before the deadline for me to submit my Pre-trial checklist which is 4:00pm on 18th April 2008.

 

I wouldn't mind a small bet that Restons rear their ugly heads again though as it all seems a bit suspicious.

 

I think I probably need to do something pro-active at this stage (i.e. apply for strike out, costs etc. or counter-claim as you have mentioned Paul).

 

Cheers

Rob

[car2403]

I'd just let time run out on them, personally.

 

If they substantially change the claim at all, the whole process will be undermined.

[robcag]

Hi Chris

 

I'd just let time run out on them, personally. If that would mean them having their claim struck out then that would be the preferred route, but I've got a feeling the judge would just give them more time from reading other threads on here (yours included ).

 

If they substantially change the claim at all, the whole process will be undermined. Do you mean the whole process of what has happened so far, or just what I might submit in the form of a C/c or strike-out application? .

 

Cheers

Rob

[FANTASY CHARGES]

Also, don't forget that if they don't notify you properly (ie by personal service or recorded delivery) of the sale under The Law of Property Act 1925 then it isn't effective. That is, HFC would still actually own the debt.

 

BUT SECTION 196 of the law of propery act me thinks says :--

 

but ..... have found this ...

 

Law of Property Act 1925 (-)

 

 

 

Notices

Regulations concerning notices

196.--

• (1) Any notice required or authorised to be served or given by this Act shall be in writing.
  (2) Any notice required or authorisd by this Act to be served on a lessee or mortgagor
  (3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

so does this at a stroke mean that any claim by the "potential assignee"---- "must be struck out " by the court due to an ineffectual assignment having taken place .....

 

because the claim was issued before the legal (absolute) assignment was completed [the assignment hasn't been completed]---- and in law the owner of the alleged debt is still the "potential assignor" as opposed to the "potential assignee"

 

 

and the creditor accordingly must send notification by recorded delivery etc to "perfect" the assignment ?

 

 

so can we conclude a simple letter is "no good " for assignment

[FANTASY CHARGES]

Hi Paul (and everyone else following this)

 

Well still nothing received today from Restons by way of a witness statement.

 

I telephoned the court yesterday to enquire and they hadn't received anything either, and it was suggested to me that I might wish to write to the court so that the Judge is made aware of this at the next hearing. I will therefore do that later today.

 

I'm also re-considering the possibility of making an application to the court for a strike-out, especially in the light of the statement by 'Manoj D of HFC Bank Ltd' in his Disclosure by list that:“All originals of documents as listed above are copies, as contained within the original file opened at the Claimants premises at HFC Bank Limited”

 

The above statement suggests to me that the Claimant would be unable to produce any original documents if required to do so under CPR practice direction 32 (to counter the arguments already submitted in the defence regarding the unenforceable Application form and invalid Default Notice), and therefore their claim has no reasonable prospect of winning, and for them to continue in the light of this is an abuse of process, and as per para 25 of my amended defence;"the claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the claimant's behaviour is entirely vexatious and wholly unreasonable."

 

What do you think?

 

Cheers

Rob

 

rob

 

me thinks you should read the pre-printed words to the left of the words inserted by restons which are "All originals of documents as listed above are copies, as contained within the original file opened at the Claimants premises at HFC Bank Limited”

 

because where it says "List and number here, the documents you once had in yourcontrol but which you no longer have. For each document listed,say when it was last in your control and where it is now." they have entered the red text they are admitting they do not have the originals by file you are supposed to be "conned" into thinking they mean paper file when they mean electronic file as in a scaned image etc ....... you have to read things carefully

sorry see you have covered this point in and around post 123 :

[robcag]

Hi FC

 

Thanks for the input and the PM.

 

ATM I'm just filling in my Pre-trial checklist which has to be in to the court by 4:00pm today. (I have to hurry though as the court is in another town).

 

Still nothing received from HFC/Restons/anyone regarding Witness Statement or state of play of transfer/sale of alleged debt.

 

I am now in the process of preparing an application (N244) and draft order for directions to submit with the pre-trial checklist in which I am going to ask for the court to order that the claimant submit a Witness Statement within 7 days of receipt of the order, failing which the case be struck out without further order.

 

If this fails to get results, then I will probably make a further application for the court to rule that the alleged Credit Agreement is unenforceable, the Claimant having also stated that they do not have any originals, and that there is no reasonable prospect of the claim succeeding.

 

Or should I include the second suggestion on this application / draft order?

 

Cheers

Rob

[pt2537]

Hi Rob,

 

maybe this could be useful then http://www.consumeractiongroup.co.uk/forum/legal-issues/134001-suggested-letter-where-claimant.html

 

obviously amended to suit,

 

send to the court along with your checklist

[robcag]

Hi Paul

 

I haven't wanted to bother you over the past few days because of your assignment - which I hope is going well

 

Also, sorry to hear you have some personal problems, I wish you well with those.

 

I will grab part of that letter and put it in my own covering letter.

 

Cheers

Rob

[car2403]

Rob, probably too late now, but you could apply to have the statement ordered or the case struck out or, in the alternative, that the agreement is declared unenforceable under s.142 CCA 1974 - having to make 2 applications means 2 application fees (£40/£75, depending on if you want a hearing or not) which seems a bit daft?

[Vulture_Bank]

Hi Paul (and everyone else following this)

 

Well the performing duo are continuing with their repertoire of tricks! I received a letter from Restons this morning, 30/1/08, 2 days after the deadline stated by the court of 4:00pm 28/1/08, postmarked 29/1/08.

 

I'll save the best bit for last , but in the envelope was a covering letter from Restons, dated 28/1/08, obviously backdated (IMHO) because of the fact that it was stapled to a photocopy of a faxed (possibly already photocopied) copy of an N265 standard disclosure form, the stapling having been done horizontally at the top left hand corner possibly in a feeble attempt to hide the fax date. The faxed document had been sent to Restons by "HFC Bank Outsourcing", having been filled in by an "Operations Manager" employed by HFC Bank.

 

The documents he listed were broadly similar to those referred to by Restons in their covering letter for documents sent to me just before Christmas, but more accurately dated than Restons managed to do.

 

However, HFC have listed a fifth item, namely;

5. CACS print (Computer Assisted Collections System). That will probably be as it says on the tin (a load of cack), but I wonder if I should ask to inspect it? I'm wondering in what way it differs from from the computer printouts of the monthly statements I was sent. YOU COULD NOT BE MORE WRONG ABOUT POINT 5. IT IS AN INVAUABLE TIN-OPENER

 

Further down the form under the section for documents numbered and listed but which they object to me inspecting, is stated:

 

"All correspondance passing between the Claimant and the claimants solicitors and its agents and Counsel and all notes of telephone conversations made between the Claimant and its solicitors and all memoranda, Briefs, Instructions to Counsel, Counsel's Advice, draft Statement of Case and draft Witness Statements." 'Draft Statement of Case' puzzles me as I haven't received anything other than the POC (which were vague and insufficiently particularised).

 

Anyway, here's the juicy bit :

Under the section for listing documents which they once had but no longer have, the following statement has been made;

 

I have had the documents numbered and listed below, but they are no longer in my control.

All originals of documents as listed above are copies, as contained within the original file opened at the Claimants premises at HFC Bank Limited.

 

After you stop laughing Paul , what are the implications of this? OK, well I think I know the implications, , but what are the possibilities for me to applying to the courts for a strike-out or other action bearing in mind that HFC are as good as admitting they don't have any original agreement, let alone an original application?

 

Cheers

Rob

 

On top of that the debt has already been sold and needs to be bought back .... it's all in the way "they work "

[tomterm8]

BUT SECTION 196 of the law of propery act me thinks says :--

 

but ..... have found this ...

 

Law of Property Act 1925 (-)

 

 

 

Notices

Regulations concerning notices

196.--

• (1) Any notice required or authorised to be served or given by this Act shall be in writing.
  (2) Any notice required or authorisd by this Act to be served on a lessee or mortgagor
  (3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

so does this at a stroke mean that any claim by the "potential assignee"---- "must be struck out " by the court due to an ineffectual assignment having taken place .....

 

because the claim was issued before the legal (absolute) assignment was completed [the assignment hasn't been completed]---- and in law the owner of the alleged debt is still the "potential assignor" as opposed to the "potential assignee"

 

 

and the creditor accordingly must send notification by recorded delivery etc to "perfect" the assignment ?

 

 

so can we conclude a simple letter is "no good " for assignment

 

If you recieved the notice of assignment, it is good... if you didn't, it is not properly served.