geoffmr1 V HFC/ Weightmans

[robcag]

Pt2537,

 

Thanks for that, but I feel I may have found this forum just a little too late.

 

I can still send that letter but by them having 14 days to respond would mean I had gone over my alloted time to file a defence to the court.

 

Hi Geoff

 

I'm pretty sure I've read in another thread a while back that you don't have to give them 14 days to respond (particularly as they should already have these documents in their possession as they are taking legal action), and you could adjust the time allowed down to say, 7 days (or possibly "forthwith"?).

 

Perhaps one of the experts would like to confirm this?

 

Rob

[robcag]

It looks like the penny may have dropped and Weightmans are beginning to realise that they're on to a loser!

 

The decision is yours, but I know what I'd be doing

 

Good luck

Rob

[robcag]

.... Their are a few of us Robocag, Car and I think bug.....

Hi hellhasnofury

 

I kind of like that mis-spelling of my username, far more imaginitive than the one I came up with

 

Cheers

Rob

[robcag]

Just a little update:

 

I have received a 'Notice Of Assignment' from Weightmans today.

 

Apparently Phoenix Recoveries (UK) Limited s.a.r.l have acquired my account off of HFC Bank Limited. The assignment date is 20th May 2008.

 

Weightmans have apparently been instructed to act on behalf of Phoenix.

 

......

 

Phoenix is probably something to do with Weightmans.

 

......

 

Hi Geoff

 

I experienced a similar thing regarding an HSBC credit card account last November (although the account hadn't reached the litigation stage).

 

In the same envelope I received a convoluted 'NoA' on HSBC headed paper purporting to be from HSBC, and an equally convoluted 'NoA' from Fredrickson International Ltd. (I have kept the envelope and it has a return address which belongs to Fred).

 

Both letters alleged that the effective owners of the (alleged) debt were now Phoenix Recoveries (UK) Limited S.a.r.l so I think Phoenix are probably nothing to do with Weightmans, but more likely something to do with HSBC/HFC (or possibly completely independant?).

 

Needless to say I hit Fredricksons with a CCA request and I've heard nothing since.

 

Cheers

Rob

[robcag]

Hi Geoff

 

I'm probably telling you stuff you already know here but...

 

Take along all your paperwork, filed in some sort of quick-to-find system just in case you need to refer to something - I went out and bought one of those concertina-type files which consists of several pockets so you can seperate the various stages of the case so far.

 

Obviously you will be taking a copy of your Defence which Paul provided at post #36, and I would advise you to re-read it a time or two and try and 'learn' the relevant parts and then listen out for anything the Judge says which the Defence will help you with if s/he asks any questions (awkward or otherwise). It might be helpful if you use a highlight marker so you can find any particular points quickly.

 

Try and listen carefully to the Judge and the enemy for anything you disagree with or don't understand - I found the Judge I had a few weeks ago was very helpful and explained several things to me (even though some of it wasn't really neccessary).

 

Don't forget a few sheets of paper (not for the toilet ) and a pen so that you can jot down any points which you don't agree with or understand so you don't forget anything when it comes to your turn to speak. I had several opportunities to speak at my hearing not just the once I was expecting.

 

Don't be afraid to argue any points which you don't agree with - obviously if you can understand the point you are arguing it will go down better with the Judge.

 

Hopefully you will get a good Judge who will put you at ease!

 

Good luck

Rob

[robcag]

Hi Geoff

 

Sorry to hear about your experience at the hearing. I think I'd have raised my hand and made it obvious that I wanted to say something, but that's me, and I wasn't there so I don't know what was happening or if that would have been awkward.

 

I wouldn't worry too much by the half day time allocated for your trial hearing. My original trial time had been set at an estimated time of 4 hours when I received my Notice of Allocation to fast track which I thought was a bit long for what seemed to me to be the fairly cut and dried arguments which I (courtesy of pt2537) had put forward as my amended defence. However, at the application hearing called by Restons/HFC, the Judge allocated a full day for the trial.

 

As that hearing was my first time in court, from what I had experienced I imagined that instead of the opposing barrister waffling (squirming) on for an hour or two as I had just seen, the trial itself would just be an extended waffling period.

 

As long as you stick to your arguments at the trial, the law is the law, and unless there is a serious error of judgement by the Judge, you should win.

 

Having said all that, as you know, my case never reached the trial stage. Neither did those of HHNF or Bug. All these cases were won without going to trial, so there's every chance you will succeed under similar circumstances, it's just that HFC and their cohorts will bluff it out 'til the end.

 

Keep at 'em, and play their silly games, and keep your confidence in CAG.

 

Cheers

Rob

[robcag]

It didn't come across like he was trying to scare me off. Infact he made it very plain that if Weightmans/Phoenix/HFC don't produce a CCA their case will be kicked out. The trouble is that won't happen because they insist the Application form they sent me is a CCA. I think he was merely trying to point out that you need to be very informed with regards the consumer law you are very well informed already by following the advice given by Paul and others if you want to stand any chance of winning, maybe he was trying to hint I need professional help.

 

I'm still waiting to see the other exhibit which Weightmans claim is the original agreement judging by others experience with HFC, that is very unlikely to happen, until I get to see that I don't really know where I stand or how prepared I'll be to negotiate.

 

Apart from that its just a waiting game. All the paperwork that needs to be provided does worry me as I've never been good with that stuff & apparently I have to provide Weightmans with all the case law examples I intend to use in court that is not a problem..

 

Geoff, I've looked back through part of your thread, but without me trawling right through it, did you ever receive a Default Notice, and if so, did you post it on the thread?

 

As you probably already know, HFC often fail to get this aspect right. The original would probably be preferrable to any 'copy' that you may have been sent, because HFC have a naughty habit of changing the dates on copies.

 

PS sorry Paul, you're a quicker typist than me!

 

Cheers

Rob

Edited June 25, 2008 by robcag
added PS

[robcag]

Hi Geoff

 

I only received a partial response to my CPR request from HFC/Restons, but there was a copy default notice included. I honestly could not recall whether I had received an original or not. However, just a couple of months or so ago I actually came across the original whilst I was searching for anything I could find which would be relevant for another HFC claim which I had already been given a CCJ on (purely because I hadn't found CAG at that time).

 

In my case the copy was the same as the original, but this has not been so in several other cases, where HFC have got the dates wrong on the original (therefore invalidating them, which has now been shown to blow their case out of the water), but have then produced 'valid' copies (with changed dates).

 

I'm not doubting you when you say you haven't received a DN, it's just a pity you didn't get one of their famous invalid ones, as that would have helped your case no end!

 

Cheers

Rob

[robcag]

Hi mberman

 

As Hopeful1 has already said, you would be best starting your own thread, but .....

 

Hi,

 

Just to add weight to this I have had copies of default notice sent to me and they have changed the date that it was sent so that it looks like they have allowed 14 days to respond to the default notice! This has happened to several other CAGgers and would appear to be dubious behaviour at least But on the origional it is dated a day later which only gives me 13 days! Keep that original very safe as I'm sure you could rely on it rather than the copy (surley they are commiting FRAUD by changing the date so that it complies!) At the very least, if this needs to be brought to the Judges attention (should it come to court) then I think the Judge would probably be very interested!

 

They are a bunch of sh*ts agreed as they are trying anything to get out of this they have made an application to the court because we failed to comply to a court order regarding disclosure docs etc... par for the course with HFC, the cheeky barstewards are nearly always late themselves, that's when they bother to comply We admit that they were slightly late plus they also did not comply as we did not receive their list on time either!

 

It seems that everything we send without special delivery gets ignored or turns up late!

 

Anyway I am trying to piece the list of events and write to the court to explain that yes I did not comply but also they did not either! And to see if they will cancel the hearing that has been issued for their application.

 

Sorry for going on I think I need to set up a thread for this as my Court case is loomming. yes, that would be best. You or someone else might like to post a link here when you've started your thread.

 

Regards

 

Cheers

Rob

[robcag]

Just received a letter confirming the trial is for half a day on Dec 18th. What a s*** time to get, a week before Christmas when you're supposed to be happy & spending time with the family & instead I'll have to deal with a court case instead!! There's every chance the case will not even reach the trial stage if recent HFC cases are anything to go by.

 

The hearing fee is to be paid by the 18th July 2008?? I don't know anything about a hearing fee!! I'm pretty sure this is a fee payable by the claimant, and shows they haven't paid it yet. You could try ringing the court on or after the 18th to check if this has been paid (I think they need to pay it to be allowed to continue, so that will be an indicator if they don't pay it )

 

Each party shall give by the 25th July 2008 standard disclosure to every other party by list. What does that mean?? It looks like you have been given similar (though not quite the same) directions from the court as I was given. To help you to understand how to follow these directions you may like to follow my thread which deals with this from post #91 onwards (I had to ask similar questions to what you're now asking); http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-5.html#post1332838

 

Any requests for inspection or copies of disclosed documents should be made within 7 days after service of the list, and copies provided within 7 days thereafter. Again I realise this relates to the point above but I still don't understand what I'm supposed to be doing.

 

Each party shall serve on every other party the witness statements of the oral evidence which the party serving the statements intends to rely on in relation to any issues of fact to be decided at trial, those statements and any notices of intention to rely on hearsay evidence to be exchanged by 5th September 2008. Not a clue on this point either.

 

The parties shall file pre trial checklists by the 3rd October 2008 (claimants to pay the £100 listing fee by the 3rd October 2008 ).

 

Anyone have any advice regarding this?? What do I need to supply to Weightmans & the Court??

 

HTH

 

Cheers

Rob

Edited July 4, 2008 by robcag
typo

[robcag]

Hi Robcag, thanks for the information.

 

I've just had a very brief look through & will look again later. The pdf file that Paul has given you a link for is no longer working though. Just checked the link Paul gave in post #92, and as you say it is no longer working, so I've found the new document link on HM Court Service site and edited it into post #93. Here it is for your convenience; http://www.hmcourts-service.gov.uk/courtfinder/forms/ex305.pdf

 

I never sent a CPR request so obviously I cannot be relying on anything there, but that aside I'm not sure how I actually set the whole thing out. I saw the one you had done which I can follow a bit but a lot of what you intended to rely on is irrelevant to myself. Geoff, my post above was in reply to your questions about the directions you have been given by the court and which it seemed you were asking about. As I said above, your directions were very similar to mine, and if you read from the part of my thread which I quoted (post #91) onwards, you will see I asked the questions you want answering at all the various stages, and you will see the helpful replies I got, and even some examples of how I responded at each stage.

 

Cheers

Rob

[robcag]

geoffmr1

 

agreement dated " 11th April 1194"

 

Humbleman,

 

:D:D Classic HFC, well spotted! Probably got that wrong in their haste to get the other dates right to allow 14 clear days for remedy in the (probably forged) 'copy' DN, which brings me to the point which I've never really quite understood. When is the 14 days actually supposed to start? The day after the DN was issued, or the day you receive it? Obviously in the case of both my HFC DNs the period of 14 days included the date the DN was issued so clearly was not correct.

 

 

Geoff,

 

Further to Humblemans observation above, I'm not sure whether this little bit will be of any significance, but on page 2 near the top it says "HFC will:" whereas on both my HFC DNs it says "HFC Bank Ltd will:". My point being do they have to put the full name of the bank/company or is the 'abbreviated' HFC OK? Maybe an expert opinion is called for on that seemingly minor point, but which could turn out to be significant.

 

Cheers

Rob

Edited July 11, 2008 by robcag
typo

[robcag]

..... I reckon a judge would overlook it as a minor error & not significant!!

 

Possibly Geoff, but I think expert opinion may be called for on that point. Don't forget it was something which could be construed by some to be a minor error (the matter of being at least 1 day short in the time allowed to remedy the default) which made HFC/Restons realise they could not succeed as matters stood, and which eventually forced them to lose by discontinuing their case.

 

Good luck

Rob

[robcag]

The dates on the DN certainly cut it fine. At the earliest you would have received it on the 24th leaving only 13 days. Hi H1, that was something I mentioned above (post #190 I think). Not doubting your calculations, but I've never quite understood something about this. My problem is how is the date of service of the DN calculated? Is it the day after posting, or 2 days? Then do you count the day of service in the 14 days (I think not)?

In the case of my DN it was more cut and dried as the dates given were the 1st and the 14th so that clearly didn't give 14 clear days.

 

 

 

 

We know that HFC reconstruct Default Notices when they are needed - I can say that because I have a bunch of letters from them (as do others) stating their practise of reconstructing these documents, as they don't hold the originals. Agreed, and when they do produce copy DNs they sometimes forge them insofar as they change the dates (usually just 1) so that they then appear to allow the correct amount of time, probably because they now realise that quite a lot of the DNs they have sent out previously are invalid. That has been shown to be the case in several other threads, which is why I had hoped that Geoff may had been previously issued a DN which he had lost or forgotten about as I mentioned further up the thread.

 

TBH, the issues with the Default Notices will slip in to irrelevance if the agreement itself is enforceable (not forgetting that my case was allegedly discontinued on the issue of the invalid DN alone - it never got as far as arguing the validity of the 'agreement', although that would have been shown to be unenforceable) - have we seen the agreement and decided it's enforceable, here, yet? I have been subbed to the thread, but haven't really kept up with it. If we have seen it, which post # is it on?

 

I know this sounds very difficult, but a Court would enforce an agreement that is enforceable regardless of the issues with the Default Notice - all they probably would do, if they were so minded, would be to stay the proceedings until a correctly constructed Default Notice was reissued, then come back to the Court to enforce it once it's expired. which is what HFC/Restons hoped they could do in my case, but that realisation occurred to them too late in the day, because the Judge decided that she wanted to keep the trial within the original trial window which had already been set, and was inflexible on that. If HFC/Restons were to go ahead and re-issue a DN, then that would result in some of the other stages of the proceedings also having to be repeated and this would not be possible in the time left before the trial window.

 

Now, we could be playing with fire here, but I (and I know others) am of the opinion that the CCA indicates (albeit implicitly, as the words aren't there, but the meaning is) that an agreement cannot be capable of being Defaulted/Terminated more than once. A Default Notice is final and can't be reissued, IMHO. This is a grey legal argument, however - much better to have an unenforceable agreement, IMO. I agree with that point Chris (which you brought up in my thread ), and argued the fact in court (although the Judge did not comment on it) that once an agreement has been terminated, it cannot be terminated again.

 

 

Cheers

Rob

[robcag]

Hi Geoff

 

I remember your application / 'agreement' was exactly the same as mine, and HFC/Restons discontinued their claim (because they 'could not succeed as matters stood'), allegedly because of the invalid default notice, but I think there was probably more to it than that.

 

Things will probably get 'interesting' as time goes on, hopefully they will also chicken out at the eleventh hour with your case.

 

So if my experience is anything to go by, it might be worthwhile to make sure that any applications you need to make to the court include a claim / draft order for costs.

 

Cheers

Rob

[robcag]

Is there any template at all for how a disclosure by list should be set out you could use my list as a template. I actually modified a list which Paul was kind enough to send me. I found that easier than using the official form (N265) as I need to have it with Weightmans & the court by Friday 25th July '08??

 

Also what sort of things must I include?? I've read through Robcag's thread & his list seemed pretty big. Like you, I wasn't sure what to include, so included everything I could think of, just in case! You might like to take a look at CPR Part 31 which is referred to on the N265 (Rule 31.6)

 

Final question for now, but how many case law examples should I include?? Purely a guess, but all cases referred to in your defence?

 

Cheers

Rob

[robcag]

Can I just send the Court & Weightmans a disclosure by list the same as in Robcag's thread or do I have to complete the court form N265??

 

Geoff, see post #199 http://www.consumeractiongroup.co.uk/forum/legal-issues/133700-geoffmr1-hfc-weightmans-10.html#post1615582

 

Cheers

Rob

[robcag]

Hi Geoff

 

It might be good to include the CCA 2006 in your list as well as the CCA 1974 to cover the part about (copied from my defence) "schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect".

Also, personal preference maybe, but IMHO your finished document would probably look better if the alignment of the main part of your list was to the left rather than centred, and there seems to be a lot of unneccessary underlining.

Cheers

Rob

[robcag]

Geoff, regarding what I said about including CCA 2006, see post #108 here http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/124572-hfc-no-agreement-amended-6.html#post1348616

 

Cheers

Rob

[robcag]

 

.... I'll put the CCA 2006 in.

 

Don't forget the further info referred to in my post #208

 

Cheers

Rob

[robcag]

 

 

Robcag, thanks for the help, hopefully this is now ok??

Just passing on the advice I was given when it was my turn to ask

 

One other thing though, if my experience with Restons is anything to go by, you won't receive a disclosure list from Weightmans on time. They're probably waiting to see yours first, so I'd post it by SD at the latest available time you can to meet the deadline set by the court directions.

 

I received a last minute letter from HFC which I was able to add to my list, even though I'd printed it all out and was about to go to the PO!

 

Cheers

Rob

 

[robcag]

Robcag,

 

The directions say the disclosure must be with each party by 25th July 2008. I take it that includes the 25th or should I send it off to get there for the 24th??

 

 

Presumably that's 4:00pm on the 25th?

 

I'd leave it til the last minute Geoff, i.e. post it SD on the 24th (normal SD guarantees delivery by 1:00pm, don't use the 9:00am service )

 

Just make sure you haven't got any appointments with runaway buses on the 24th.

 

If you live near the court you can hand in their copy personally any time up until 4:00pm on the 25th when the office closes its doors.

 

Cheers

Rob

[robcag]

 

Should I put Orakpo v Manson & Dimond v Lovell in my disclosure list under case laws??

 

Why not?

 

Cheers

Rob

[robcag]

Hi Geoff

 

As I sometimes state when I'm replying to threads, I'm no expert, which is why when I did my disclosure list I may have gone over the top a bit by including everything which I thought may have been used in court.

 

I can't see how including anything which you may have referred to in your defence will cause any harm, so IMHO it's better to include something than not.

 

Cheers

Rob

[robcag]

Hi Geoff

 

Sorry about the delay in replying but I've been out all afternoon.

 

As I said, I'm no expert, but I can't see anything to panic about with your list, it looks OK to me.

 

Hopefully you won't actually get to the final trial stage and none of that stuff will be needed, but I guess the more stuff you include on your list, the more there is for the opposition to think about.

 

Cheers

Rob