HFO claimform - old Morgan Stanley Card Debt **WON**

[broken arrow]

I have today received an interim charging order N86 and an application for full charging order, hearing in August.

 

The information on the application is wrong as they have put down the wrong court where the judgement was given.

 

When they go for the full charging order, how do I defend this and can I contest the validatity of the credfit agreement again and their rights to the debt.

 

I am at present waiting to here from the appeals court regarding my second appeal.

[broken arrow]

Having filed my appeal bundle on time with the court of apppeal I also includes a letter requesting they insert any documents I did not have, such as the transcript from my last hearing (still awaiting).

 

I have today received a letter giving me until the 21st to have these documents inserted in my bundle or the appeal court will dismiss my apppeal and I pay costs.

 

The court is unwilling to insert these documents for me as I have to do this personally, this is impossible as I live 200 miles away from the appeal court and will be unable to get time off work.

 

This gives me the only option but to give up on my appeal, I will be sending a letter by the 21st.

 

As a litigant in person throughout this ordeal I believe I have had little help from the courts unlike the claimant.

 

My efforts now are focused on my final charging order hearing next month.

 

So HFO well done on obtaining monies under false pretences ( no default notice unenforcable CCA,) I hope you can sleep at night.

 

 

I will try and fight for my family home which I have worker hard for.

 

To all the people on this forum who have helped, I thank you, I just wished things would have worked out better.

 

 

 

Thanks again

 

brokenarrow.

[I've got no money]

Have you thought about phoning the Citizens Advice Bureau at the Royal Courts of Justice and asking if they will do it for you.

 

As far as the transcript is concerned - you need to write to the CA and ask them to extend time - you just tell them that you haven't got the documents yet

[WelshMam2009]

The court is unwilling to insert these documents for me as I have to do this personally, this is impossible as I live 200 miles away from the appeal court and will be unable to get time off work.

 

This gives me the only option but to give up on my appeal

 

Hey, don't get disheartened Broken Arrow by some white collar Job Worths!! Sometimes it's the minutia, such as this, which can be the straw that broke the camel's back so to speak.

 

You have climbed a mountain...don't let a little mole hill trip you up!!

 

Why not investigate the options that IGNM has suggested?

 

Alternatively, the site team may be able to suggest a trustworthy Cagger who lives near by who may be willing and able to assist.

 

Best of luck with this and the the charging order hearing.

 

PS I'm sure Esther Rantzen used to give out "awards" to such people on her show That's Life!!

[mike1962]

Since HFO Services - or rather their principal HFO Capital Ltd - are a debt purchase company who deal in assigned debts, you should put them to proof in court of the assignment. See Law of Property Act 1925 s 136, and Chitty's text on contract law concerning assignment, both legal and equitable.

[pt2537]

Since HFO Services - or rather their principal HFO Capital Ltd - are a debt purchase company who deal in assigned debts, you should put them to proof in court of the assignment. See Law of Property Act 1925 s 136, and Chitty's text on contract law concerning assignment, both legal and equitable.

there is also case law which states you have an entitlement to sight of the assignment.

 

Sadly, Chitty on Contract is very expensive and most of our members will not have access to it,

[mike1962]

Can you tell me what that case law is?

 

I know Chitty's expensive, but your local university library might have a copy.

[Docman]

Can you tell me what that case law is?

 

I know Chitty's expensive, but your local university library might have a copy.

 

Mike

I think the two cases you need to look at are Harrison v Burke and also Van Lynn v Pelias.

It has been held that failure of a notice of assignment to be accurate because the date of the assignment was wrongly stated invalidates the notice and, therefore, the legal right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison & Co Ltd v Burke and another [1956] 2 All ER 169].

HFO may mislead in trying to argue Van Lynn, which is the case that allows access to the Deed of Assignment. The relevant words of Denning MR extracted from the case are as follows

“The relevant section is s 136(1) of the Law of Property Act, 1925, which provides:

"Any absolute assignment by writing under the hand of the assignor ... of any debt or other legal thing in action, of which express notice in writing has been given to the debtor ... is effectual in law ... to pass and transfer from the date of such notice--(a) the legal right to such debt or thing in action; (b) all legal and other remedies for the same; and © the power to give a good discharge for the same without the concurrence of the assignor: ... "

What is a sufficient notice of assignment? There are only two or three cases on the subject. There is Stanley v English Fibres Industries, Ltd which was accepted and applied by this court in W F Harrison & Co Ltd v Burke. Those cases show that, if a notice of assignment purports to identify the assignment by giving the date of the assignment--and that date is a wrong date--then the notice is bad. The short ground of those decisions was that the notice with a wrong date was a notice of a non-existing document. Assuming those cases to be correct, they leave open the question whether it is necessary to give the date of the assignment. Test it this way: Suppose the mistaken sentence were omitted in this letter so that it ran: "We have been instructed by our above named clients to apply to you for the payment of a sum of £5,296 19 5 outstanding to them following the assignment of the debt to them by the National Provincial Bank Limited." Would that be a good notice, even though it gives no date for the assignment? I think it would. I think the correct interpretation of this statute was given by Atkin J in Denney, Gasquet, and Metcalfe v Conklin. It is quite plain from his judgment that no formal requirements are required for a notice of assignment. It is sufficient if it brings ([1913] 3 KB at p 180):

"to the notice of the debtor with reasonable certainty the fact that the deed does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor."

It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in the future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge. But the notice itself is good, even though it gives no date.

Van Lynn Developments Ltd v. Pelias Construction Co Ltd [1968] 3 All ER 824

You should read both cases in detail and see if the test set out by Atkin J in the Denny case applies. Was there ‘reasonable certainty’ that the assignment took place?

[mike1962]

A notice of assignment need not be in any particular form.If it states no date (and probably if it states no amount) then it will be a good notice if it sufficiently describes the debt. But if it specifies the date, then it must be strictly accurate. (I think that's either in Chitty or in Treitel).

[broken arrow]

Well they got their final charging order.

 

They have now sent a letter threatening their next action which will be attachment of earnings or order to sell my property.

 

Debt @ 6k and interest @12%

 

Any ideas were to go.

[Rhia]

Have you seen this BA? Post 85!

http://www.consumeractiongroup.co.uk/forum/legal-issues/185557-mbna-restons-defence-ccj-5.html#post2411322

[broken arrow]

The court of appeal have dismissed my appeal application as I could not supply all the documents they requested for my bundle.

 

I now have a query going back to the original hearing last year.

HFO said in the WS and and at the hearing that they had applied to ammend the POC, whether they did or not I do not know.

 

Having been on HMCS website it clearly states that once the claim has been issued the POC can not be changed without re-serving the claim, this was never done. would this warrant me applying for a set aside on the original order.

[broken arrow]

From HMCS website-

Once the claim has been issued the court cannot change any of the details submitted without an application and request to re-serve the claim. You must complete an application notice (N244) detailing the changes you would like to make and send this to the court along with an N1 completed with the correct claim details. The court will then amend the details, re-seal the claim form and return it to you to re-serve on the defendant. You must keep a copy of the sealed N1. It is then your responsibility to re-serve the claim form. You must then send the court a completed certificate of service (N215) along with the copy of the N1 so the court knows the date when the defendant’s response is due. Once the claim has been issued the court cannot change any of the details submitted without an application and request to re-serve the claim. You must complete an application notice (N244) detailing the changes you would like to make and send this to the court along with an N1 completed with the correct claim details. The court will then amend the details, re-seal the claim form and return it to you to re-serve on the defendant. You must keep a copy of the sealed N1. It is then your responsibility to re-serve the claim form. You must then send the court a completed certificate of service (N215) along with the copy of the N1 so the court knows the date when the defendant’s response is due.

[broken arrow]

[http://i344.photobucket.com/albums/p350/brokenarrow_08/hfo2-1.jpg

 

Point 6, If they never did apply looks like they have told some untruths.

[Rhia]

Glory I've no idea BA. You need a procedural expert but I am wondering if this is grounds for a set aside as I now if you amend a POC you have to get court's permission and the defendant too.

[DonkeyB]

BA, many of us have a supposed assignment from HFO Capital that transfers all debts bought in the Caymans directly to HFO Services (it's an ongoing thing, 'inchoate', for all future purchases). So how come they say HFO Capital is the only legal claimant when they say - in other people's witness statements - that they assign it all to HFO Services? I think it's time to pull apart their systems.

 

Did you ever ask for a copy of the sale agreement relating particularly to YOUR alleged debt? They do exist according to HFO - I have one, even though their witness statement also relied on the 'ongoing' arrangement.

 

New evidence of fibs in witness statements may be another way to go.

 

Donkey

[Rhia]

I agree with DonkeyB re getting a copy of the assignment or sales agreement. I would do this in all cases as it can throw up some unexpected information to strengthen your case.

 

I am sure with this Cayman Islands connection there is some dubious practice you can shed daylight on which will help you.

[broken arrow]

If I can go for a set aside I will try and get a copy of the deed of assignment.

 

I will phone the court on Monday to find out if they ever did re apply to change the POC, if they did not then they have been untruthful and if they did apply which I doubt, procedure was not followed.

 

2 questions can Capital legally be the claimant in the UK.

and if not do they have to assign to Services.

[Rhia]

Now not an expert on this but I believe as long as they have a UK office for service of docs then it is quite legit. The dodgy aspect is are they using Cayman Islands to avoid tax? The answer will probably be highly likely.

 

I think the problem arises when anyone tries to take them to court and to claim back their charges etc. Last time I checked there were a number of ccjs against HFO for non payment of judgements. If you can find out if this is still the case you can refer them to the OFT for fitness to hold a consumer cedit licence. They need stopping but you need to stop them on your own case first.

 

Apart from the legal avenue you could ask HM Customs and Excise to investigate.

[broken arrow]

I have phoned the courts this morning and it looks like they did not apply to amend in writing before the hearing as stated in their WS.

 

What happened at the hearing the Judge allowed them there and then to substitute services for capital as the claimant.

 

This goes against what I have read on the HMCS website as is my previous post or can the Judge just do what he wants.

 

and if they did not apply in writing then they did tell an untruth.

Edited November 30, 2009 by broken arrow

[broken arrow]

I do not know what my chances are but I am going to try and set aside on the grounds that court proceedings did not follow court rules.

[DonkeyB]

Is it not worth trying to gather a bit more evidence first BA? I'm thinking specifically some further digging into who the account was really sold to...

[broken arrow]

Is it not worth trying to gather a bit more evidence first BA? I'm thinking specifically some further digging into who the account was really sold to...

 

As there is no proceedings at the moment I would have to do SAR to get copy of sales agreement and deed of assignment, I would guess even then they would not let me see the deed of assignment unless I made an order through court.

 

Looking at other statements on the POC, it said that I had received notice of assignment from Morgan Stanley when I had not, another untruth, the date on the NOA was post the claim application and as we know it was not from Morgan Stanley it was from SW19.

 

On this NOA it states that HFO services are servicing the account on behalf of HFO capital.

[DonkeyB]

In your appeal, what were the documents you were unable to supply?

[broken arrow]

In your appeal, what were the documents you were unable to supply?

 

A copy of a previous order and transcript from my first appeal, the main problem was the cost of the transcript and I had to go to London, which for me is 250 miles away to add these docs to my bundle.

 

For me there was enough evidence or lack of from them anyhow.