zhanzhibar vs HFC-weightman court action **WON**

[zhanzhibar]

Evening all,

 

I thought I start a new thread in here.

 

Juz went through my post for the last few weeks when I saw a letter from the court asking me to complete the allocation questionnaire. This letter was dated on 7th March & I have to submit it on or before 25th...

 

I went into panic mode now coz

a) I don't know what I should do with this AQ

b) not sure yet whether post office open on Monday & I have time to submit this AQ on time ..arghh!

c) don't know why the court is in Liverpool when I lived in Coventry & it state in the letter that the claim has been trf to the court covering trhe area where the defendant lives or carries on business..

 

Can anybody help me in completing this AQ as I have not got a clue & I have only 4 days to complete this now....Pls....

 

For info my battle with Weightmann started last July.. http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115296-hfc-amex-they-didnt.html

 

 

Would appreciate if somebody could help pls..

[zhanzhibar]

Just to add I did receive a copy of my marbles application form from Weightmann on the 10th March ( after 8 mths of asking!!) but it is quite blurry. Will try to scan & put it here.

Having glance the sections in the form, what other information shall I provide ?

[zhanzhibar]

Hi again

 

I attached is the copy of my CCA form (It's an application form actually) sent to me by Weightmann on the 10th March with their cover letter.

It is a blurry copy as I said earlier (even I can't read the 2nd page).

 

 

Edited June 14, 2008 by zhanzhibar

[PriorityOne]

Hi Zhan....

 

As it's urgent, you need to PM Paul (pt2537) on this one. He's already subscribed to your original thread, but may not pick it up in time because he's very busy.

[zhanzhibar]

Can anyone tell me whether this is a valid CCA?

 

Summary of my case with HFC-Weightmann:

26/07/07 - Sent a letter to Weightmann asking why they suddenlhy increased my debt by £600. No reply

02/07/07 - Sent a CCA request to Weightmann. It received but no reply.

31/12/07 - Particulars of Claim arrived at my door

03/01/08 - Sent a letter requesting information within 14 days. No reply

28/01/08 - A letter from them saying that the matter is now trf to Commercial Dispute Resolution

30/01/08 - I sent a defense letter to court ( with the help from a lot of people in here esp Paul! thanks)

31/01/08 - Acknowledgement letter from court

07/03/08 - Letter from courtasking AQ to be completed ( WHICH I DIDN'T OPEN TILL TODAY....DUHHH!)

10/03/08 - Letter from Weightmann as above (I did open this one on the day it arrived!!)

[robcag]

Hi zhanzhibar

 

It may help you to know the Post Office will be open on Saturday (22nd) and as long as you post the letter before 12:00 (noon) and send it Special Delivery it will be guaranteed to get there next working day before 1:00pm (ie on the 25th).

 

Rob

[zhanzhibar]

Can somebody tell me what is the difference between AQ form N149 & N150?

I was asked to complete N149 but i read afew threads here & they were asked to complete N150.

[zhanzhibar]

Thanks Rob. Means that I have less than 48 hrs to do this AQ ...arghhh..

[robcag]

Thanks Rob. Means that I have less than 48 hrs to do this AQ ...arghhh..

No probs.... just make sure that if you do post it on Saturday that you definitely get it over the counter and paid for and dealt with before noon as in my experience that is a strict deadline.

 

I sent one a few weeks ago and the printed till receipt was timed at literally 2 minutes past 12, and the letter took an extra working day to get to its destination!

 

Good luck

Rob

[pt2537]

Hi Zhan

 

What AQ is it that you have?

 

Is it N149 or N150

[zhanzhibar]

Phew ...Thanks Paul. It is the N149.

[zhanzhibar]

What's the difference?

[pt2537]

Ok Zhan,

 

that document is not enforceable in my opinion, it fails to contain the prescribed terms as required by schedule 6 of the Agreements regulations

 

the second thing that jumps out at me is the fact its not clearly easily legible and that makes it non compliant with the Consumer Credit Copy Docs Regs as a side issue

 

now turning our attention to the Terms and conditions, well they are not much help, how do we know they are even related to the application form? how do we know they are the T&Cs that came from the time that the agreement was signed?

 

the biggest problem however, is that you need to put your arguement forward in court as if you dont im sure the solicitor from HFC will be able to convince the judge that the agreement complies

 

regards

paul

[pt2537]

Ok

the difference is the N149 is commonly used for small claims track cases

 

the N150 is more for the Fast and multi track cases

[pt2537]

Ok are you ok with filling in the main form itsself, and is it the section G other info thats causing you trouble

[zhanzhibar]

Hi Paul

 

In N149:

 

Sect A: Settlement

Unless somebody told me o/wise I was planning to tick NO.

Sect B: Location of Hearing

Can I ask that this be changed to Coventry rather than Liverpool as that is not my local court and a bit far to go? What do you think?

Sect C: Track - Do you agree that the samll claims track is the most suitable track for this claim?

Unless somebody told me o/wise I was planning to tick YES

Sect D: Witness

zero(?)

Sect E: Experts

Do you want permission to use expert? tick NO(?)

Sect F: Hearing dates

Supposed better tick NO

Sect G: Other Info

This is where i need help to support my defense.

Sect H: Fee

What fee is this?

 

Sect I :Signature

[pt2537]

Hi Paul

 

In N149:

 

Sect A: Settlement

Unless somebody told me o/wise I was planning to tick NO.FINE

Sect B: Location of Hearing

Can I ask that this be changed to Coventry rather than Liverpool as that is not my local court and a bit far to go? What do you think? YES AS A LITIGANT IN PERSON YOU ARE ENTITLED TO ASK AND HAVE IT TRANSFERED TO YOUR LOCAL COURT

Sect C: Track - Do you agree that the samll claims track is the most suitable track for this claim?

Unless somebody told me o/wise I was planning to tick YES ABSOLUTLEY

Sect D: Witness

zero(?) YES ZERO

Sect E: Experts

Do you want permission to use expert? tick NO(?) CORRECT

Sect F: Hearing dates

Supposed better tick NO UP TO YOU

Sect G: Other Info

This is where i need help to support my defense.AH SEE BELOW

Sect H: Fee

What fee is this? NO APPLICABLE AS YOU ARE THE DEFENDANT

 

Sect I :Signature

 

 

Ok well i dont know what your defence was, so its a wee bit difficult for me to know what directions we should be going with, have you posted a copy of your defence on here at all as it would help to see what you submitted and where we are now

[zhanzhibar]

Okay I will do it now.I will put it here in 2 ticks

[pt2537]

 

In the ************* County Court

Claim number **********

 

 

 

 

Between

 

************* - Claimant

 

and

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended
  
  
• Copies of any statement or other document relied upon

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

 

 

 

ok firstly, these directions i use where they have been asked to disclose documents using a CPR request and have failed, obviously without the credit agreement you cannot defend an action based upon a credit agreement

 

so if you asked them to provide the credit agreement at the start of the action and they failed then chances are you couldnt possibly have filed a full defence

 

so if this is the case i would print out these directions amending them to suit your case

[zhanzhibar]

In the Northampton County Court

Claim Number: 7XQ96739

 

Between

HFC Bank Limited - Claimant

And

XXXXXXXX - Defendant

 

Defence

1. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.
   
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -
   
3. The Claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard the Defendant wishes to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the Claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the Claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the Claimant’s claim.

b) A copy of the purported written agreement that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, due to the Claimant failure to sufficiently particularize the claim and file any documents which form the basis of this action, the Defendant can neither admit nor deny liability for the debt and accordingly place the Claimant to strict proof thereof.

 

5. In respect of that which is denied, on 02/07/2007 the Defendant requested that the Claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the Claimant must comply with such request in 12 working days of receipt of such request. (Exhibit A – letter to Weightmanns LLP requesting the credit agreement, Exhibit B and C – Proof of delivery)

 

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

 

s78 (6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

 

 

7. It is drawn to the courts attention that the Claimant has failed to comply with the Defendant’s request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the Claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the Defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 the Defendant denies that the Defendant is liable to the Claimant and put the Claimant to strict proof that such enforceable agreement between parties exists

 

9. Further to the case, in an attempt to ascertain what grounds the Claimant is bringing this action and to allow the Defendant to prepare her defence the Defendant requested on 03/01/2008 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the Claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by the Defendant and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the Claimant a legitimate right of action. (Exhibit D – Letter to Weightmanns requesting information)

 

10. To date the Claimant has failed to comply with the Defendant’s request under the CPR and the Defendant has not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested. (Exhibit E – Letter from Weightmanns )

 

11. The courts attention is drawn to the fact the Claimant has failed to comply with CPR part 16 and Practice Direction 16 in-so- far as they have failed to attach the written agreement they are basing this action on to the particulars of claim as required by the civil procedure rules. Therefore the Defendant believes that the Defendant is entitled to ask the Claimant to supply the Defendant with the requested documents

 

12. The courts attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules the Defendant have not yet had the opportunity to assess if the documentation the Claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

13. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

14.The Defendant refers to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 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.”

15. Not withstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit Act 1974 has been attached to the particulars of claim

 

16. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

17. Not withstanding point 15, the Defendant put the Claimant to strict proof that any default notice sent to me was valid. The Defendant note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

18. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give the Defendant a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

19. Without Disclosure of the relevant requested documentation, the Defendant is unable to asses if the Defendant is indeed liable to the Claimant, nor is the Defendant able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

20. In view of the matters pleaded above, the Defendant respectfully request that the court gives consideration to whether the Claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

 

21. Alternatively if the court decides not to strike out the Claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

 

22. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines the Defendant believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

 

23. The Defendant respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents

 

 

 

 

Statement of Truth

 

 

The Defendant, Zhanzhibar, believes the above statement to be true and factual

 

 

Signed …………………

 

 

Date 30/01/08

[pt2537]

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N149 Allocation Questionnaire

 

Section G - other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the 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.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

 

then print this out

[pt2537]

now on the AQ itself in box G

 

Please find the following attached to this allocation questionnaire;

 

1) Section G / H ** - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008.

 

ok there we go , since they have provided an illegible agreement, we want to ask them for a clearly easily legible document and they must supply it.

 

if the judge agrees then he will order they comply, and if they dont it may be the case that their claim is struck out

 

but you will have to wait and see

 

looking over your defence its clear that they failed to supply the info at the start of the case so i would hope the judge will realise the issues and order accordingly

[zhanzhibar]

now turning our attention to the Terms and conditions, well they are not much help, how do we know they are even related to the application form? how do we know they are the T&Cs that came from the time that the agreement was signed?

 

the biggest problem however, is that you need to put your arguement forward in court as if you dont im sure the solicitor from HFC will be able to convince the judge that the agreement complies]

 

Hi Paul

How do i defend this?

 

Have I got this right. although they sent me the so-called CCA according to them in fact it is not an enforceable one because:

a)it fails to contain the prescribed terms as required by schedule 6 of the Agreements regulations

b) not legible as you said

 

and therefore in the draft order for direction I am asking them to send me the correct CCA (if they got it that is, right?)

 

Sorry sound a bit stupid but I was just trying to understand.

 

Zhan

[pt2537]

 

Hi Paul

How do i defend this?

 

Have I got this right. although they sent me the so-called CCA according to them in fact it is not an enforceable one because:

a)it fails to contain the prescribed terms as required by schedule 6 of the Agreements regulations

b) not legible as you said

 

and therefore in the draft order for direction I am asking them to send me the correct CCA (if they got it that is, right?)

 

Sorry sound a bit stupid but I was just trying to understand.

 

Zhan

 

Zhan, let me try to answer with excerpts from the legislation

 

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 .

 

 

Now while the Regs there only relate to copy docs served under a provision of the Act, they are a good place to start

 

section 61(1)

©

the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

 

 

 

this is a good place to also look at the legibility of the document, as it sets out that the agreement must be easily legible when presented to the debtor to sign

 

 

 

but moving on to the more important stuff

 

 

[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"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."

 

 

 

now thats the killer:D

 

 

the prescribed terms must be within the single document, not is a seperate document titled Terms and Conditions

 

so in the draft order it asks them to supply a fully compliant document and if they supply what they have already sent then we can pull it apart in an amended defence

[zhanzhibar]

Ok. I understand now.