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

[DonkeyB]

Great. Trust you're fully prepared - get posting if you need more support!

[broken arrow]

His Honour Judge xxxxx sitting at The court house xxxxxxx,considered the papers in the case and

 

ORDERED that:

 

1. The application for permission to appeal and extension of time in which to do so shall be listed for hearing during the window from xxxxx to xxxxx inclusive with a time estimate of thirty minutes before a circuit Judge.notice of the hearing shall not be given to the respondent who need not attend.

 

2. The hearing will take place at xxxxxxx County Court on a date notified later.The hearing may be moved to a different court or judge, in which case you will be notified.

 

3. In respect of the hearing of the application for permission to appeal, the appellant shall file and serve a skeleton argument by xxxxxx.

[DonkeyB]

Good luck BA - keep us posted. Have you checked over your paperwork with someone like PT yet?

[fedup21]

Good luck BA, wishing you well, keep strong & stay positive!

[I've got no money]

Ah - the light dawns - I've just twigged that your hearing was in front of a DJ.

 

Have you filed your skeleton - can I have a look?

[Richard Spud]

Sorry Patrick I only just saw your question. Proof of delivery would be either recorded deivery, special delivery or an affidavit swearing personal delivery. The word "cogent" means strong evidence of actual service of the NOA upon a defendant. Proof of posting is insufficient evidence it could be argued.

 

HTH

 

Richard.

[Richard Spud]

EXCELLENT WORK BY THE OFT AGAINST A DCA

See the latest action published on 21st April 2009 and valuable OFT opinions to cite to other DCAs and the County Courts.

http://www.oft.gov.uk:80/news/press/2009/44-09

“Under the Limitation Act 1980, which applies to England and Wales, a debt is considered to be statute barred when no payments have been made against it or where it has not been acknowledged for six years. A statute barred debt cannot be legally recovered. Whilst the OFT accepts that the debt still exists, the OFT considers that it can be unfair to pursue the debt in the circumstances set out in our Debt Collection Guidance”

Quote from the OFT MACKENZIE HALL PDF document:

“REQUIREMENTS IMPOSED BY THE OFT REQUIREMENTS RELATING TO:

MACKENZIE HALL LIMITED

A debt is considered as in dispute where:

A request under section 77 or 78 of the Consumer Credit Act 1974 has not been complied with, and this prevents the agreement being enforced without the permission of the court”

I suggest that the above reference to ss.77 and 78 of the CCA 1974 is a very strong endorsement of the rights of consumers to be provided with true copies of Regulated agreements.

HTH

Regards – Richard.

[broken arrow]

I have tried to keep the appeal as simplified as possible,the basis of the appeal being unenfocable CCA, no default notice ever received and untrue statements in the claimants witness statement.

[I've got no money]

What happened with the Assignments and the NoA's

 

Did they argue Rankine

[broken arrow]

They did not have to argue anything the Judge was totally on their side!

[broken arrow]

I was unaware on the day that they could use CPR 3.3, I was hoping at best to get their claim struck out at worst to get disclosure of documents.

 

I have never received a default notice.

[I've got no money]

So you turned up applying to strike them out and the DJ struck you out - that really is outrageous

[broken arrow]

So you turned up applying to strike them out and the DJ struck you out - that really is outrageous

 

A shock!

[I've got no money]

If the issue arises over whether you are entitled to assignment in addition to CPR 31.14 - have a look at what Lord Denning says in

 

Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824

 

Did they ever amend to claim that the contract had been assigned from HFO Cap to HFO Ser because if they didn't then there is no cause of action.

[broken arrow]

At the hearing I raised the issue over the 2 NOA,s I had received, different dates, both dated after claim was made, Judge said well you have got them now.

[I've got no money]

The whole point is that the NOA is an essential pre - requisite before the claim can be begun - if it hasn't been served before the procs are commenced then there is no cause of action...

 

What happened about the actual assignments...

[broken arrow]

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

Section 3 ,of witness statement, I was never given notice of sale by Morgan Stanley,Morgan Stanley never sent me NOA, I have 2 fake ones from HFO

 

Section 4, I do not think it is reasonable when you have no legal right.

Exhibit 1 I believe are not even the Terms to my card.they only go to condition 10, on the application form it states about data protection as condition 16.

 

All the prescribed terms, I do not think so it states a credit limit of £2000 my limit was a lot higher.

 

Section5, Delay in obtaining evidence, I applied after them with SAR and got fairly quickly.

 

Previous post

[I've got no money]

So they did amend

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So they did amend

They only said they did.

[broken arrow]

The Judge on the day picked a few holes in their witness statement not compying with CPR, but only penalised them by reducing my costs!

[I've got no money]

Well if they were not given permission to amend - then as a matter of law - as it appears they accepted - there was no cause of action as HFO Services did not on the face of the pleadings have a cause of action.

[paulwlton]

 

A step in the right direction. However, the "true copy" may be satisfied with a "recreation" from the DCA's own records which would allow for enforcement. Untill the OFT come clean on what constitutes a "true copy" it will be easy for DCAs to carry on circumventing their obligations.

 

PW

[patrickq1]

been in an out of hospital for a major operation, glad a did not say take you're time richard lol be in my box by then ..lol

patrickq1

 

[Richard Spud]

I agree, however many cases appear to be when different T&Cs are provided and represented to be current at the point of execution, ipso facto not a true copy!

 

Richard.

[I've got no money]

1. The Actual assignment must be in writing and signed by the Original Creditor

 

- there is a question that I keep meaning to research - I'm pretty sure that there is a Court of Appeal case on point IS does that mean that where the OC is a Company that the Company Seal must be attached to the Assignment and that the assignment need s to be signed by a Director and Company Secretary

 

2. The Act does not say that the NoA must be signed by the original creditor or indeed by anyone. There is some case law which is open to interpretation - arguably it doesn't

 

3. Don't forget that at common law (Court of Appeal Obiter in Van Lyn Developments) you are entitled to inspect the actual assignment to satisfy yourself it is valid.

 

4. Proof of delivery would include recorded delivery, certificate of service and of course an admission that you had received it.

 

5. Don't forget that if there is a notice that it must be legal...

 

6. There must be an assignment before there is a notice. A notice does not, in itself, create an assignment.