HUMBLEMAN vs HFC-WEIGHTMANS COURT ACTION

[vjohn82]

I have submitted my WS and the trial is in July.

 

Good luck with that then mate... be good to hear how it turns out

[geoffmr1]

Hi Humbleman,

 

Glad to see things are still moving along. No doubt you'll have Andrew Cox the solicitor from Weightmans on the phone a couple of weeks before the trial trying to agree a settlement. I seriously doubt this will get to Court as they don't have any chance of winning. They had a slightly better case against me than they do you & they didn't want that going to court.

 

Anyway I hope it all works out for you. I'll keep looking in to until I see your winning statement!!

[humbleman]

Hi Humbleman,

 

Glad to see things are still moving along. No doubt you'll have Andrew Cox the solicitor from Weightmans on the phone a couple of weeks before the trial trying to agree a settlement. I seriously doubt this will get to Court as they don't have any chance of winning. They had a slightly better case against me than they do you & they didn't want that going to court.

 

Anyway I hope it all works out for you. I'll keep looking in to until I see your winning statement!!

 

The problem I have is the Numpty J at the direction hearing was not concerned whether they had the original application form, neither were they concerned that it was not legible and the most funny bit was when I mentioned to him about the Notice of Assignment not complying with the LPA 1925, his answer was that the law in question is only applicable to properties.

[geoffmr1]

The problem I have is the Numpty J at the direction hearing was not concerned whether they had the original application form, neither were they concerned that it was not legible and the most funny bit was when I mentioned to him about the Notice of Assignment not complying with the LPA 1925, his answer was that the law in question is only applicable to properties.

 

Thats not good. I was advised a lot of these county court judges really just don't know these consumer laws as most of them come from different backgrounds.

 

I know you will anyway but just make sure you take the copies of the relevant laws with you. The judge cannot ignore the law that way, if he does you'd have a good case to make an official complaint against him. You could also appeal, although I accept thats another long drawn out & somewhat more expensive option to do.

[vjohn82]

Don't forget the law is the law regardless of what a DJ says... take along any case law you can... always refer to it as it should spell out for the judge what the LoPA1925 means...

 

...appeals are a pain... but they end up with generally a better decision making process than the DJ's can come up with

[humbleman]

Its such a shame, that we the consumers have taken the trouble to educate ourselves about the consumer law and Judge's are still ignorant about it.

[car2403]

These Judges are legally trained, but they can't know all the law inside out and they certainly won't build a case for you if you don't know what you're talking about.

 

If you don't know what you're doing, you should take legal representation/advice.

 

A Judge can only decide on the arguments put in front of him.

 

Most Civil cases are dealt with by DJ's, so lets not generalise on the whole too much.

 

Agreed you can get numpty's, but that's the World over - not just Judges!

[humbleman]

These Judges are legally trained, but they can't know all the law inside out and they certainly won't build a case for you if you don't know what you're talking about.

 

 

If I want a plasterer I ring a plasterer.

 

If I want a car mechanic, I go to a garage.

 

In the same way by now the courts should have the acumen of having certain judges to deal with consumer contract cases.

[car2403]

If I want a plasterer I ring a plasterer.

 

If I want a car mechanic, I go to a garage.

 

In the same way by now the courts should have the acumen of having certain judges to deal with consumer contract cases.

 

Hmm...

 

Interesting analogy.

 

Though, I wouldn't want a P&D to come and do my plastering, nor would I want a mechanic to manufacture my car from scratch - yet we expect Judges to P&D, plaster, manufacture and mechanic all at the same time, to the same level.

 

The more interesting question we should be asking ourselves, directing this energy to rather than quizing Judges, is why would an officer of the Court, which is what these Solicitors/Barristers which represent the other side are, mislead the Court as to the right application of the Law? This is by far the more serious allegation, IMHO, than querying the understanding of the Judge. I mean, where a Judge misapplies the Law, and the Sol/Bar doesn't correct him, even know they "should know" what is being said is wrong, would lead to disciplinary action against them for sure.

[foolishgirl]

 

The more interesting question we should be asking ourselves, directing this energy to rather than quizing Judges, is why would an officer of the Court, which is what these Solicitors/Barristers which represent the other side are, mislead the Court as to the right application of the Law?

 

That's why it's called an adversarial system - all's fair in love & war!

[car2403]

That's why it's called an adversarial system - all's fair in love & war!

 

Yup, get the French system over here, where the Judge can actually "think" for himself, I say! Gotta love the French.

 

Anyhoo, my point, rather, was that where this happens we should kick up a fuss in the aftermath...

[foolishgirl]

all's fair in love & war!

 

Yup, get the French system over here,

 

OH, I thought this was the French system of doing things - or maybe that's the English system in respect of the French?

 

Agree with you on reporting the 'mistakes' of judgement though car, even if it sometimes seems as though you're banging your head on an impenetrable wall. Eventually with enough knocking the dam breaks - witness bank charges, & recent OFT pursual of DCAs etc.

[humbleman]

FOR some reason my trial was postoponed a couple of months ago and was relisted for a direction hearing again a fews days back.

 

 

WHAT A JUDGE, AS we entered his room he straight away asked me have I now got the agreement that HFC has sent him, I said yes I have got the application form, he then fired at me and siad so what is the problem now do you accept the debt. I told him the issue is not that of whether I accept the debt or not the issue is that of them complying with my original request of supplying me the relevent document. he then said DON'T WASTE MY TIME THIS IS THE AGREEMENT AND I AM HAPPY THAT IT COMPLIES WITH EVERYTHING.

ME: yes sir but what about the terms and conditions

JUDGE: they have also supplied them

 

 

ME: where

 

 

JUDGE: passes me acouple of pages.

 

 

ME: but they are from another company

 

 

JUDGE: I dont see what your are getting at.

BELOW IS MY WITNESS STATEMENT I WAS GOING TO USE AND I HAVE HIGLIGHTED HIS COMMENTS IN RED

Between:

Phoenix Recoveries (UK) Ltd S.A.R.L. (Claimant)

-And-

(Defendant)

_________________________

WITNESS STATEMENT

Of

 

_________________________

 

 

1.I, being the Defendant, am a litigant in person in this case.

2.I make this Witness Statement in support of my Defence against the Claimants claim against me.

3.I make this Witness Statement from information and facts within my own knowledge and which I believe to be true.

4.It is accepted that I had the use of a credit token supplied by Beneficial Bank Limited, but would put the claimant to strict proof as to their claim and the amount that was assigned to them. I would also stress that I have made request under Civil Procedures Rules for statement from the inception to to-date but the claimant has failed to do so in part.

5.In addition to this statement and to avoid repeating I shall be relying on my original defence to present my case.

Before I go into details of the case I would bring to the courts attention one very important piece of information that has come to light following the claimants disclosure of documents namely EXHIBIT ‘1’ which is a screenshot from claimants internal communication, which reads as follows:

“Complaint-Customer require clear legal – disputing default. INVESTIGATION - Archieve have advised that they cannot get a copy as unreadable. Spoke to Lorraine in legal she advised that if we cannot get a copy then the debt would be unenforceable”

I would therefore say that the claimants claim be disallowed on the above basis and that their own legal team as advised them likewise.

 

DOESN’T MATTER ABOUT WHAT THEY THINK. WE THE JUDGES WILL DECIDE ON THAT

6.I would further claim that the claim should be dismissed since the particular of claims are incorrect as follows:

In the claim form signed by XXXXXXX, he signed the statement of truth saying that the claim is for breach of agreement between myself and HFC Bank Limited, This is wrong since there was never an agreement between myself and HFC Bank Limited. I would like the court to look at the reply to defence by the claimant, dt. XXXX8 where the claimant confirmed that the agreement was transferred to them from Beneficial Bank Limited. I would say that this is a clear case for purgery.

THEY WILL FILE A FURTHER WS TO RECTIFY THAT

7.In brief, in 2006/7 whilst effecting change of direct debit in favour of the Claimant the claimant began charging fees which were not in line with my understanding of the regime of fees. I questioned this with HFC Bank and was told that this is in line with my agreement, to clarify matters I made a request to the claimant to forward me a copy of the credit agreement and the terms and conditions.

8.I was sent a illegible copy of an application form headed Beneficial Bank without any terms and conditions, I would like to bring to the courts attention that the CCA 1974 is very clear on the matter of the form of agreement and its legibility, I would like to point the court to an extract from CCA1974:

2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

DOESNT MATTER SINCE YOUR SIGNATURE APPEAR ON THE FORM,

9.I would further point out that the CCA 1974 clearly states that any prescribed terms are within the four corners of the agreement and not elsewhere, and I would like to refer the court to a exert from the following case:

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

I would further bring to courts attention that in the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

DOESNT MATTER SINCE THEY HAVE NOW SUPPLIED YOU T & C EVEN THOUGH THEY ARE FROM HFC AND NOT BENEFICIAL

 

10.The claimant purports that there is an agreement between myself and the Beneficial Bank Limited but to date they have not fulfilled my request for any such copy of the same. It should also be noted that in the welcome letter dt. 30 July 1998 from Beneficial Bank Ltd. it says that ‘ following your successful application’ therefore any agreement that the claimant is relying upon would be post that date. The claimant is relying on an application which is duly stamped 24th July 1998. I would like to produce this letter by way of EXHIBIT ‘2’. I stress that an application form is not the same thing as an agreement, otherwise people might find that they have claims brought against them where their applications have been turned down and years later creditors might sell them to Debt collecting agencies as a bad debt.

WASN’T RELEVANT

11.A this stage I would like to point to the court that at the allocation hearing the Judge questioned why the claimant had missed out the exhibits (namely T & C’s) in their defence and the claimant representative replied it might be a mistake and they were asked to serve the defence again. The claimant has not been very forthcoming with information. When I received the defence with the terms and conditions I noticed that the address on the T&C’s was that of the claimant and not from Beneficial Bank Limited at 1700 Solihull Parkway Birmingham.It should be noted that the letter when opening the account is from Beneficial Bank and not as per t & C’s supplied with HFC Bank Plc t/as Beneficial 120 Edmund Street Birmingham B3 2QZ it is quite clear that the claimant has fabricated this document and possibly purgered themselves, by signing the statement of truth to the effect that this document forms part of the agreement.

In the reply to defence dt. XXXX8 the claimant in ph. XX states that the agreement is a 2 page document and now in the witness statement of XXXXXX director for the now claimant has submitted a 3 page document purporting that this is the correct version.

ARE YOU TRYING TO USE A PROCEDURAL ERROR TO CONTEST THE CLAIM

12.I also contend that the claimants claim is based upon an agreement which does not exist and therefore it has no claim against me in this matter since the only document they are relying upon is unenforceable as admitted by themselves in their inter memo.

13. I would also point out that I have served the claimant notice to produce originals of the agreement and any Notice of assignment they wish to rely upon at the hearing, in the reply to defence dt. XXXX the claimant states in ph. XX that the claimant does not keep original documents because it has high volumes of credit agreements fall foul of their legal obligations as a financial institution since they have certain obligations to maintain records according to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

As a credit agreement is active until the agreement is terminated, I would contend that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

Finally, key documents/application forms/agreements etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

I KNOW OF SEVERAL INSTANCES WHERE COUNTY COURT JUDGES HAVE RELIED UPON A CERTIFIED COPY AND IT WILL BE UPTO THE JUDGE TO DECIDE ON THE DAY WHETHER AN ORIGINAL IS NECESSARY.

 

14.I would sum up to say that original claimant’s claim is flawed starting from incorrect particulars of claim to their witness statement and including their own admission of unenforceable agreement in the disclosure of their internal memo, as well as no effectual Notice of Assignments, and for this reasons it should be dismissed and that the claimant should ensure that they delete any record against me at any and all credit reference agencies.

NOA CAN BE SENT BY THEIR SOLICITORS AND DOESN'T NECESSARILY HAVE TO COME FROM THE ASSIGNOR

 

Statement of Truth:

[Spamalot]

Please tell me you asked for leave to appeal!!

 

That is outrageous... unbelievable..

[joemay]

Did you ask for appeal?

[humbleman]

It was a direction hearing, but the Judge proceeded as though it was a trial, but ultimately he agreed to give directions and will be listed for a hearing in the New year

[Spamalot]

Just hope you don't get that judge at your trial... what directions did he give in the end?

[angry cat]

Outrageous!!!

 

Judge must have been in a bad mood, after a heavy weekend!?

[humbleman]

Just hope you don't get that judge at your trial... what directions did he give in the end?

 

He did say he will not be at the trial, since he is already retired and is filling in.

 

The directions was that I am contesting the agreement and its terms, the claimant is given 4 weeks to file amended statement.

[supasnooper]

He did say he will not be at the trial, since he is already retired and is filling in.

 

Thank goodness.............

[Spamalot]

He did say he will not be at the trial, since he is already retired and is filling in. Thank heavens for that...

 

Hopefully the next DJ will be more conversant with the CCA 1974 and LPA 1925..

 

Good Luck.

[mandyjayne]

Ooo..im scared now:eek: im there on Thursday!!!! OUCH

[humbleman]

just remembered on the question of SAR

 

Judge: did you pay off the balance to Beneficial

 

Me: I have paid substantial amounts to them, but haven't got all the record's and that is why I asked the claimant to provide me all info. for me to work out exactly how much.

 

Judge: don't you keep the statement when you receive them.

 

Me: Not always.

 

Judge: They are only obliged to send you a statement of account.

 

Me: They are supposed to send me everything they hold on my alleged account.

 

Judge: in that case only as far as 6 years.

 

Me: from day 1

[robcag]

He did say he will not be at the trial, since he is already retired and is filling in.

 

 

Probably been edited!

 

Cheers

Rob

Edited January 4, 2010 by slick132
disrespectful comments

[debbbbsy]

He did say he will not be at the trial, since he is already retired and is filling in.

 

So basically they have resurrected this judge. There is nothing to stop you from contacting the court & making a complaint.

 

I had a similar experience in June, my judge... she was on such a power trip.My blood was boiling. When I contacted the courts a week later, to address some of the points she had made, the clerk informed me she was nolonger an acting judge.Seems I wasn't the only one who thought she was wrong, even the clerk agreed.

 

Put in the complaint. Edited

 

Debs

Edited January 4, 2010 by slick132
disrespectful comments edited