HFO Services Limited and barclaycard debt

[UK26]

[update]

my opening speach

Agenda

The defendants opening speech

• In a statement of case signed by Mr Robert Johnson on 7th October 2007 mentions on paragraph 3 that on 10th May 2006 Barclaycard closed the defendants account.
  

Paragraph 4 states on 11th May 2006 Barclaycard sent a default notice to the defendant. (the Following Day)

DEFAULT AND TERMINATION OF THE ACCOUNT

Under Section 87(Subsection 1) CCA 1974, “Need for default notice” states as follows:-

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

 

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

Section 88 of the act “Contents and effect of default notice”

(1) The default notice must be in the prescribed form and specify—

 

(a) the nature of the alleged breach;

(b) If the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be

paid.

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under

subsection (1)) before those seven days have elapsed.

• Paragraph 5, states that on 19th March 2006 Barclaycard served the defendant with a Notice of Assignment. Attached to the Claimants statement of case as exhibit 1
  

• The address on this exhibit is “***************************
  

The defendant sent both the court and the claimant copies of the defendant’s tenancy agreement, which clearly shows the agreement, did not commence until 30th April 2006. Signed by the Landlord

• I draw the courts attention to the defendants statement of case dated 16/04/08 Page 7 “titled Concerns”, Section a – I Quote
  

The Defendant believes Exhibits 1, 2, 3 provided by the claimant to be vexatious based on the dates and addressees of these exhibits as the defendant did not live at the address stated during this period. I attach Exhibit B12 a copy of the defendant’s tenancy agreement signed by the landlord confirming the commencement date and the date of which this tenancy was signed.

• The defendant alleges theses documents where never sent to the defendant and that Barclaycard did not send any notice to the defendant whatsoever.
  

• Notwithstanding the facts stated within the claimants statement of case dated 7th October 2007 - Paragraph 5
  

The courts attention is now drawn to the witness statement from the claimant signed by Ms Diana Nelson dated 03/10/2008

I refer the court to Paragraph 5 of this witness statement whereby the claimant now contend that they them self’s provided the notice of assignment on behalf of Barclaycard.

• Having spoken to Barclaycard they confirmed they do not hold an address of ******************* on there systems.
  

• Andrew White Senior Trading Standards Officer at Peterborough City Council was given details of suspected fraud in respect of the notice of assignments and MR White has confirmed he is now investigating this with the claimant as a suspected criminal offence. However has yet to receive a satisfactory reply and so has now issued a second letter requesting they provide a more suitable response to Mr Whites questions.
  

• The Law of Property Act 1925 Section 136 States
  

136.

Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

• Now considering what been said within Section 136 of The Law of Property Act 1925. Its clear it is not allowed by law that the assignor can’t give the assignee permission to send a Barclaycard Goodbye Letter (Notice of Assignment) on there behalf.
  

• 
  

THE DEFENDANTS REQUEST FOR A COURT ORDER

In view of the arguments, the Defendant respectfully seeks that the court;

a. Determines the rights of the parties to the alleged Consumer Credit Agreement and seeks a declaration from the Court under S.142 that the debt is unenforceable and that any application for an Enforcement Order under s.65 CCA 1974 will not be entertained, either now, or at any future time.

 

b. Awards damages to the Defendant under S.13 of the Data Protection Act 1998, an amount decided by the court, due to the Claimants failure to Default and Terminate the Defendants account in the lawfully prescribed manner;

c. Issues an Order pursuant to the Courts powers contained within s.10, s.14(1)and s.14(3) of the Data Protection Act 1998 that Claimant immediately ceases and desists any processing of the Defendants personal data and requires that the Claimant further removes all data from credit reference agencies and notify any third party the Claimant has disclosed such data with, to destroy that data which has been shared.

• 
  

[DonkeyB]

Jeez, UK26, the suspense is doing me in. Hope it's all going well.

[Rhia]

Waiting by the computer later today.I think the hearing's at 2pm. Very best of luck to you.

[humbleman]

they probably settle before the hearing

[broken arrow]

Will they even turn up?

[UK26]

[broken arrow]

Dont like the look of that.

[UK26]

[update]

 

The judge totally ignored the following

No Default Notice

No Credit Agreement

Invalid notice of assignment

He awarded Judgement for HFO

I have asked permission for appeal on the bases the judge has not followed and applied the correct law.

He Said, I have 21 days to appeal and this case would then be listed with the Circuit Judge.

[broken arrow]

No just how you feel, very shocked!

[UK26]

Judgement was given on the bases of Post number 1 of this Thread

 

where i confirmed the money was owed

[broken arrow]

Was it the same judge as the last hearing?

[broken arrow]

But not to HFO

 

Judgement was given on the bases of Post number 1 of this Thread

 

where i confirmed the money was owed

[UK26]

yeap same judge

[broken arrow]

Did they produce a copy of your first post, noticed it has been edited.

Another judge taking the moral high ground!

 

If you do appeal x20 should be able to help you out.

[UK26]

never done an appeal before, so will need help with this. what form number do i need to download?

[pt2537]

Shocking, still , if you appeal at least if you get the result on appeal i would hope that the judge wont make the same mistake again

[broken arrow]

I think it is n164 as it is under £5000

[UK26]

Ok ive downloaded this

 

not sure whats best put in here, ive got an idea but want to make sure its 100% correct.

 

Please state in numbered paragraphs, why you say that the Judge who made the order you are appealing against was wrong.

[broken arrow]

UK, PM x20, you have 21 days so no need to rush, need to get it right.

 

Broken arrow

[broken arrow]

surfaceagent x20, he has had some good input to my appeal.

[broken arrow]

Any chance of site team moving this thread to the legal issues?

[UK26]

how is your appeal going Broken Arrow?

[broken arrow]

I have not heard anything as yet.

 

how is your appeal going Broken Arrow?

[Rhia]

Who is the Circuit Judge for your area UK26?

 

Also looking at your summing up speech (bit late now I know) you said they sent NOA in May and I think you mean March as the tenancy agreement started in April.

 

I have looked at post no 1 in this thread but can't see where exactly you admitted you owed the outstanding debt. Where have I missed this?

 

I take it you have to go before the circuit judge for permission to appeal? If he or she agrees then it will go to the higher courts. If you get the go ahead they will give you a lot of support as a LIP and assign you a lawyer or barrister I beleive.

Edited November 27, 2008 by Rhia
Add info

[car2403]

The appeal is a paper appeal, whereby the CJ will review the case for appealing and then decide to grant leave for appeal. If he doesn't grant leave, he may decide to hold a hearing to discuss it, but that will be after the "paper" stage has happened.