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

[broken arrow]

Amendments to statements of case

17.1

 

1)A party may amend his statement of case at any time before it has been served on any other party.

 

2)If his statement of case has been served, a party may amend it only-

a) with the written consent of all the other parties;

b)or with the permission of the court.

 

3)If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.Part 22 requires amendments to a statement

 

 

Procedure for adding and substituting parties

 

19.4

1)The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.

 

2)An application for permission under paragraph (1) may be made by an existing party; or

a person who wishes to become a party.

 

3)An application for an order under rule 19.2(4) (substitution of a new party where existing party’s interest or liability has passed)

may be made without notice; and

must be supported by evidence.

 

4)Nobody may be added or substituted as a claimant unless he has given his consent in writing; and that consent has been filed with the court.

 

4a)The Commissioners for HM Revenue and Customs may be added as a party to proceedings only if they consent in writing

 

5)An order for the removal, addition or substitution of a party must be served on all parties to the proceedings; and

any other person affected by the order.

 

6) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about

a)filing and serving the claim form on any new defendant

serving relevant documents on the new party; and

c)the management of the proceedings

Edited November 30, 2009 by broken arrow

[DonkeyB]

BA, some clarification please! Who got the judgment? Was it HFO Capital or HFO Services?

 

If it was Capital, as you are aware I think we now have excellent grounds for appeal with fresh evidence. We now have proof that ALL accounts acquired by HFOC are assigned to HFO Services, so there is no way HFOC could bring this claim.

[hungrybear]

subbing to help any way I can on HFO

 

Like Donkey says if HFOC were the claimant then it really is game on

[broken arrow]

BA, some clarification please! Who got the judgment? Was it HFO Capital or HFO Services?

 

If it was Capital, as you are aware I think we now have excellent grounds for appeal with fresh evidence. We now have proof that ALL accounts acquired by HFOC are assigned to HFO Services, so there is no way HFOC could bring this claim.

 

On the day the Judge allowed them to change from Capital to Services, the original POC stated both.

I still have no proof yet as to whether they did apply to change before hearing, if they did not they told a porky.

 

What I did not get was a NOA from HFOC to HFOS, only Morgan Stanley to HFOC.

 

I am first going to try and set aside on a number of points.

[broken arrow]

Just to Clarify on the N1 in the claimant section it was HFOS and in POC it had HFOC as asignee.

Edited December 2, 2009 by broken arrow

[DonkeyB]

BA, new thread started here - please sign up so people come and look!

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/236290-have-you-been-taken.html#post2619677

[DonkeyB]

What I did not get was a NOA from HFOC to HFOS, only Morgan Stanley to HFOC.

 

That in itself is highly significant.

 

I'm going to go back to page one, as I've learned an awful lot since then...

[vjohn82]

On the day the Judge allowed them to change from Capital to Services, the original POC stated both.

I still have no proof yet as to whether they did apply to change before hearing, if they did not they told a porky.

 

What I did not get was a NOA from HFOC to HFOS, only Morgan Stanley to HFOC.

 

I am first going to try and set aside on a number of points.

 

I now understand it like this...

 

1) HFOC purchased the debt from Morgan Stanley

 

2) Morgan Stanley relinquished their rights as a creditor

 

3) HFOC are a Cayman based company who are now the legal "assignee"

 

4) HFOC are NOT a creditor under s.189 of the CCA because they are not a registered UK company

 

5) Any assignment of a consumer credit account to HFOS is invalid as HFOC do not have a consumer credit licence

 

6) Therefore any assignment to HFOS would also be invalid

 

Am I wrong on these points? I think it's as simple as it gets really.

 

In effect... every debt purchased by HFOC is an Xmas turkey.

[hungrybear]

I now understand it like this...

 

1) HFOC purchased the debt from Morgan Stanley

 

2) Morgan Stanley relinquished their rights as a creditor

 

3) HFOC are a Cayman based company who are now the legal "assignee"

 

4) HFOC are NOT a creditor under s.189 of the CCA because they are not a registered UK company

 

5) Any assignment of a consumer credit account to HFOS is invalid as HFOC do not have a consumer credit licence

 

6) Therefore any assignment to HFOS would also be invalid

 

Am I wrong on these points? I think it's as simple as it gets really.

 

In effect... every debt purchased by HFOC is an Xmas turkey.

 

in 4) Yep, they cannot be a creditor as defined in 189(1) within part II of the Act and according to 189(2) they cannot sign CCA documents.

 

and 5a) HFOC may not operate in the uk and/or obtain a CCL without registering at companies house under the companies act 2006. It is explicit on this point that offshore finance and credit companies may not operate in England without registering and filing returns/accounts.

 

6) The contract (CCA agreement) would be rescinded under English Law at the point of sale to HFOC

 

Think that pretty much covers it. They are trying to keep their assets offshore and their collection activities only in the UK. Unfortunately offshore assets are..., well offshore

[broken arrow]

Cheers guys,

 

Thankyou for your input, please keep it coming.

[vjohn82]

Cheers guys,

 

Thankyou for your input, please keep it coming.

 

Can you just give me a brief overview of the current status of this and a rough outline of what has happened so far in numbered bullet points? I'm under a deadline myself for stuff and I just haven't got the time to read through everything right now.

 

If that sounds too much like arseache... you can tell me... I have thick skin

 

But I feel the recent issues that have come to light open up a new angle for this and I feel a HUGE investigation coming on from the FSA/OFT

Edited December 2, 2009 by vjohn82
added "OFT"

[Rhia]

This is terrific. I have long wondered about this scenario. Am hanging on to every word. Have encountered this before as (some) MBNA and Cabot accounts were assigned by MBNA via Dublin to Cabot Financial (Euope) Ltd but Cabot (UK) Ltd administered the account.

 

I have seen the sales document and it is assigned offshore and I know of 3/4 court cases which Cabot dropped when the sales doc (or deed of assignment) appeared on the scene. Unfortunately (for this reason) none of these actually went to court so the issues were never examined.

 

BA your Judge needed a good shake!

Edited December 2, 2009 by Rhia

[hungrybear]

This is terrific. I have long wondered about this scenario. Am hanging on to every word. Have encountered this before as (some) MBNA and Cabot accounts were assigned by MBNA via Dublin to Cabot Financial (Euope) Ltd but Cabot (UK) Ltd administered the account.

 

I have seen the sales document and it is assigned offshore and I know of 3/4 court cases which Cabot dropped when the sales doc (or deed of assignment) appeared on the scene. Unfortunately (for this reason) none of these actually went to court so the issues were never examined.

 

BA your Judge needed a good shake!

 

 

take a look at Companies Act 2006 c46 part 34 s1050. Part 34 is all about offshore companies and what they cannot do in the UK. s1050 specifically prohibits acting in credit and finance in endland and wales without registration at companies house. And of course without this they cannot get a CCL either

[vjohn82]

take a look at Companies Act 2006 c46 part 34 s1050. Part 34 is all about offshore companies and what they cannot do in the UK. s1050 specifically prohibits acting in credit and finance in endland and wales without registration at companies house. And of course without this they cannot get a CCL either

 

You sure HB? I thought you mentioned another section earlier on regarding this?

[hungrybear]

You sure HB? I thought you mentioned another section earlier on regarding this?

 

 

Here's a link to the statute:

 

Companies Act 2006 (c. 46)

 

I may have quoted 1045/6 before in some contexts.

 

1050 is specific to credit and financial and 1050(6) says that you have to unless you prove otherwise.

 

as with all statute, it's good for insomnia

[DonkeyB]

HFO Capital in Ireland and Cayman have CC licences in the UK.

[hungrybear]

HFO Capital in Ireland and Cayman have CC licences in the UK.

 

 

Agreed and all three come up as current on the database.

 

but how come the dublin one says its for a 'Body Corporate (incorporated inside UK)'

 

and for cayman islands, how do does the CCL registration sit with this - their CCL pre dates this:

 

Companies Act 2006

1050 Accounts and reports: credit or financial institutions

 

(1) This section applies to a credit or financial institution—

(a) that is incorporated or otherwise formed outside the United Kingdom and Gibraltar,

(b) whose head office is outside the United Kingdom and Gibraltar, and

© that has a branch in the United Kingdom.

(2) In subsection (1) “branch” means a place of business that forms a legally dependent part of the institution and conducts directly all or some of the operations inherent in its business.

(3) The Secretary of State may make provision by regulations requiring an institution to which this section applies—

(a) to prepare the like accounts and directors' report, and

(b) to cause to be prepared such an auditor’s report,

as would be required if the institution were a company formed and registered under this Act.

(4) The regulations may for this purpose apply, with or without modifications, all or any of the provisions of—

 

• Part 15 (accounts and reports), and
  
• Part 16 (audit).
  

(5) The Secretary of State may make provision by regulations requiring an institution to which this section applies to deliver to the registrar copies of—

(a) accounts and reports prepared in accordance with the regulations, or

(b) accounts and reports that it is required to prepare and have audited under the law of the country in which the institution has its head office.

(6) Regulations under this section are subject to negative resolution procedure.

[DonkeyB]

Exactly hungrybear. This is what needs unravelling!

 

Unfortunately my expertise is in another part of the Companies Act, though I think I need to do a bit of reading...

[hungrybear]

Exactly hungrybear. This is what needs unravelling!

 

Unfortunately my expertise is in another part of the Companies Act, though I think I need to do a bit of reading...

 

 

the link's in #363 above

[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.

 

Have written to court to to double check there was no application to change POC/claimant and to get copy of application if they did apply.

[hungrybear]

BA if you look at 4 in cpr 19.4:

 

Procedure for adding and substituting parties

 

19.4

 

(1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.

 

(2) An application for permission under paragraph (1) may be made by –

(a) an existing party; or

 

(b) a person who wishes to become a party.

 

 

(3) An application for an order under rule 19.2(4) (substitution of a new party where existing party’s interest or liability has passed) –

(a) may be made without notice; and

 

(b) must be supported by evidence.

 

 

(4) Nobody may be added or substituted as a claimant unless –

(a) he has given his consent in writing; and

 

(b) that consent has been filed with the court.

 

 

(4A) The Commissioners for HM Revenue and Customs may be added as a party to proceedings only if they consent in writing.

 

(5) An order for the removal, addition or substitution of a party must be served on –

(a) all parties to the proceedings; and

 

(b) any other person affected by the order.

 

 

(6) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about –

(a) filing and serving the claim form on any new defendant;

 

(b) serving relevant documents on the new party; and

 

© the management of the proceedings.

 

 

 

 

So it cannot be done on a whim?

[broken arrow]

Amendments to statements of case

17.1

 

1)A party may amend his statement of case at any time before it has been served on any other party.

 

2)If his statement of case has been served, a party may amend it only-

a) with the written consent of all the other parties;

b)or with the permission of the court.

 

3)If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4

same applies for changing POC

[broken arrow]

I will now see what comes back from court before applying to set aside, the clerk I spoke to on phone could not find anything to say that they had applied. I have written my letter to the court manager so should get a better answer, as I have stated before if they did apply it still did not comply with court procedures and if they did not apply even better.

[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.

[Rhia]

Keep going BA you'll get a result on this I know it. If you can prove all this what happens next? Do you complain to the MoJ or just apply for a set aside (and then complain about the judge).