geoffmr1 V HFC/ Weightmans

[elliesnan]

subscribing

[geoffmr1]

Whilst today did annoy me the fact remains that I'm very confident for the actual outcome.

 

Weightmans don't have any agreement because it's clear that they didn't execute agreements properly back in those days, their case rests on an Application Form & that doesn't stand up. Like many on this site there is no denying I used the credit card but I ran my account well for many years. I will still pay back any amount owing for goods or services used, however I'm no longer prepared to pay interest on an agreement that never exsisted. I have maintained monthly payments to them through my DMP so they can't even say I borrowed the money so should repay it because I am!!

[geoffmr1]

Hi all,

 

Does anybody know if the following statement is factually correct. I'm asking as I may include it in my witness statement, however, I've tried finding the relevant laws & sections to no avail. I also thought companies only had an obligation to keep original records for 6 years. Guidance would be appreciated.

 

I have yet to view the original credit agreement or any other original documents that the claimant seeks to rely upon, I am aware that the civil procedure rules makes provision for the original documentation to be made available under practice direction 32. It is clear to me that since it is disputed that the documents which the Claimant seeks to rely upon as the alleged "Credit Agreement" the only way to establish truly if they are indeed part of the same document is to produce the original document before the court. In addition, I am aware that there are many regulations and statutory acts which place a duty upon the Claimant to retain original documentation inter alia- the Money Laundering Regulations, the Companies Act 1985 sections 221 and 222 etc. so it stands to reason that they should be able to bring before the court a copy of the original document

[citizenB]

geoff, I dont know whether the information below will be of any help. I took the text from one of Pt2537's defences and for the life of me cant find it for reference. There is also a link at the bottom regarding Documents in Civil Evidence that might be of some help.

 

 

“Document Retention

 

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 loan agreement is active until the agreement is terminated, I would suggest 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 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. “

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162535-documents-court-civil-evidence.html

[geoffmr1]

Thanks Citizen B, thats a great help. I had found the CPR practice direction 32 but didn't want to include anything I couldn't prove in Court otherwise you end up looking silly.

[geoffmr1]

Well thats my witness statement all finished & sent to Weightmans & the Court.

 

Now I'll need to start preparing all the papers for the actual day which is only a few weeks away. In a way I'm quite looking forward to it.

[citizenB]

Well thats my witness statement all finished & sent to Weightmans & the Court.

 

Now I'll need to start preparing all the papers for the actual day which is only a few weeks away. In a way I'm quite looking forward to it.

 

:D

[geoffmr1]

A little update, I've just had a phonecall from Andrew Cox at Weightmans (he did tell me who he was but I wasn't really listening, I think he's the actual solicitor for them who'll be attending on the day).

 

Anyway he started off by telling me how inconvenient & costly going to trial is & that they'd prefer to settle if possible, I told him it wasn't as they won't give up on the charging order. He then went on to tell me how wrong I was about the consumer law & that infact they don't have to provide the original document just a copy, also that the T&C's don't have to be the originals just ones that are similar. Of course he was duty bound (yeah right!!!!) to tell me how many people he had gone up against in Court on the same grounds as me only to find they was wrong about the law.

 

If they are so sure they're right then why do they keep bothering with attempts to settle!!

[geoffmr1]

One other issue was that I pointed out to him that my house is now in negative equity, they actually knew this already. To this point he asked if he could see a copy of my mortgage statement to show his client & then maybe they'd be more prepared to settle without a charge, however I'm unsure if they can use this statement for some other reason (not that I have any idea what) so I'm inclined to ignore that request.

[steven4064]

Be clear - what he says is true with regard to a request under ss77/78 of the CCA 1974. It is definitely not true in court. paragraph 7.3 of practice direction 16 of the Civil Procedure Rules says

7.3 Where a claim is based upon a written agreement:

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing

What part of 'originals should be available' does ho not understand? Ask him.

[geoffmr1]

To be honest I've got to the point where I don't even want to settle regardless of the outcome in Court. Maybe I will end up losing & having the debt nearly doubled due to their costs. However, the facts remain that there are so many things wrong with their argument, they don't have the original agreement & have already admitted that in the 'reply to defence', the T&C's they have provided to myself & the Court are clearly more up to date than ones from 1994, the Application Form does state that I should only sign if I want to be bound by the Consumer Credit Act 1974, however there is no reference to any T&C's, nothing about reading over the page, nothing about T&C's being included & there is a box on the form which says 'You have a short time to cancel this agreement after signing, where & how you can do this will be sent to you by post from the creditor', however their T&C's tell you how to do this so it's clear they are separate documents.

 

The copy Default Notice they sent has an agreement date of April yet I signed the application form in March & they didn't sign the form until may so the default notice is clearly dated wrong & the amount on there clearly includes charges which they know are illegal & have since refunded.

 

I feel I'm at the point where I really have more to gain than lose by going to Court.

[steven4064]

I feel I'm at the point where I really have more to gain than lose by going to Court.

Sounds like you may be right

[hellhasnofury]

A little update, I've just had a phonecall from Andrew Cox at Weightmans (he did tell me who he was but I wasn't really listening, I think he's the actual solicitor for them who'll be attending on the day).

 

Anyway he started off by telling me how inconvenient & costly going to trial is & that they'd prefer to settle if possible, I told him it wasn't as they won't give up on the charging order. He then went on to tell me how wrong I was about the consumer law & that infact they don't have to provide the original document just a copy, also that the T&C's don't have to be the originals just ones that are similar. Of course he was duty bound (yeah right!!!!) to tell me how many people he had gone up against in Court on the same grounds as me only to find they was wrong about the law.

 

If they are so sure they're right then why do they keep bothering with attempts to settle!!

 

Hello Geoff,

 

I would feel quietly confident that he took the trouble to phone you in a attempt to intimidate you prior to the proceedings. If they are so confident why ring you at all:rolleyes:. This is their normal behaviour displayed just before you go into the court room:-x to dent holes in your confidence.

 

These are the mind games that they play. You didn't perchance record this conversation. I would be further inclined to write to him, outlining the discussion and quoting his statements regarding the ca and the t&C's, and tell him after his previous telephone call of intimidation, not to ring you any more to further intimidate you prior to the hearing. and send a letter to the court as well for their reference.

 

Maybe send a letter of complaint to the Solicitors Regulation Authority regarding his behaviour:D

 

Keep you chin up, and stay confident:D

[geoffmr1]

Thanks hellhasnofury.

 

The more I think about it the less I understand that guys argument. Putting aside the laws which state an original document should be available, his argument just doesn't stand up. Even if the court is ok with a copy of the original document the fact is by their own admission they only have half the original document & it doesn't have any of the prescribed terms on it, therefore on what basis are they continuing to court??

 

I can only assume they are banking on the judge being a bit thick.

[citizenB]

One other issue was that I pointed out to him that my house is now in negative equity, they actually knew this already. To this point he asked if he could see a copy of my mortgage statement to show his client & then maybe they'd be more prepared to settle without a charge, however I'm unsure if they can use this statement for some other reason (not that I have any idea what) so I'm inclined to ignore that request.

 

Sounds like they are getting a bit worried. I wouldnt let them have sight of your mortgage statement, unless a court orders you to.

[hellhasnofury]

Thanks hellhasnofury.

 

The more I think about it the less I understand that guys argument. Putting aside the laws which state an original document should be available, his argument just doesn't stand up. Even if the court is ok with a copy of the original document the fact is by their own admission they only have half the original document & it doesn't have any of the prescribed terms on it, therefore on what basis are they continuing to court??

 

I can only assume they are banking on the judge being a bit thick.

 

 

 

Hello Geoff,

 

Please remember that this matter re court "is not over, till its over":D

 

The day before I was due in court, hfc's solicitors email me to tell me that the alleged debt had been sold to a ???third party ???dca and that neither hfc or their Sols(restons) would be attending, but they did mention that the dca may turn up.

 

So I went to court and sat alone with the judge and nobody else turned up. The court had received a letter the day before stating that the debt has been sold to a dca.

 

The Judge gave 4weeks leave for an application from the dca to rescurect the case and they didn't he then allowed me costs for the day.

 

To this day I have heard nothing from hfc or the alledged 3rd party.

 

So be mindful that you may not even get your day in court as there can be a bit more twists and turns in this matter.

 

I agree with CB under no circumstances tell them anything relating to you mortgage or anything whatsoever. I would refuse to speak to them on the phone and please do consider reporting this intimidation by the other side to the court.

 

Remember they have issued proceedings against you, thinking that you would be a push over, well you have shown them that you are not:D. They are now trying to undermine your confidence and intimidate you, by ringing you up and stating untruths. Why do you think that they did not write to you and say these things, because that would leave a paper trail:wink:

 

They have paid the court fee and it is then up to both parties to present their arguements to the judge. The judge who is legally informative and must make a decision as to who is right and who is wrong. He must follow and adhere to the relevant legislation, don't forget if he/she does not, you have the right of appeal.

 

Keep strong and confident:-D

[geoffmr1]

Hi all,

 

I'm trying to get all the paperwork ready for the trial next week & I'm aware I need 3 copies of everything, I'd like to complete that by the weekend so I can spend next week re-reading through everything so I'm completely ready on the day.

 

Anyway I'd appreciate some guidance. I have links to all the case law that was in my defence but I'm unsure what exactly it is I need to print off & take. Somebody said I just need to take the summary but I don't really understand what part that is. If I use the example below:-

 

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

I'm sure the judge isn't going to sit there & read through several pages, so what part would be the relevant bit I need to take??

[citizenB]

just giving your thread a gentle nudge

[steven4064]

Relevant bit from Wilson & Another v Hurstanger

33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1

[geoffmr1]

Thanks for that Steven.

 

Do I need to print off the whole thing & just highlight the relevant part or should I just print off the single page with that section on?

 

I apologise for the constant questions but as I've never been to court before I really don't know what the Judge would want/need to see & of course I don't want to get it wrong on the day.

 

How many case law examples should I actually take & reasonable expect the Judge to read?? I think I have between 5-7.

[car2403]

You should take case summaries, with any specific paragraphs in addition that you are seeking to rely on.

 

The Judge will read your submissions before you go in to the hearing, probably. If he wants to read the cases, he'll do it then, which is why it's important you provide correct reference details for any authorities.

 

You should take as many authorities that you are relying on in your statements.

[geoffmr1]

Hi Car,

 

I don't really understand what you mean by case summaries??

 

Some case law examples were mentioned in my defence, I've also listed them in my disclosure list as something I'd be relying upon & I also referred to the defence in my witness statement for examples.

[car2403]

The question is whether the other side agrees with your intrepretations of the precedent held in the cases - you probably won't know that at this stage, so you are better off taking everything you have on each case, in case the Judge wants to delve deeper.

 

Remember that the other side will be trying to distinguish your case from those facts in the caselaw you're quoting, which will mean the precedent may not apply, in which case you need to be able to argue the reasons why the facts (and therefore the law) are relevant to your case. If taking everything with you makes that easier, it has to be a bonus.

 

Just make sure you have the legal references to each case, so the Court can look them up if need be on the day, as a minimum.

[geoffmr1]

Must admit, this is beginning to sound very complicated again.

[geoffmr1]

Just for clarity in my own mind, the Dimond v Lovell example of case law I have is 26 pages long. I assume I print the whole document & just highlight the relevant part/parts so the judge can easily understand what I'm referring to?