HFC court action

[skiton]

Hi All I like some advice please.

 

I am a self employed craftsman and late last year work dried up for a while and I missed a few payments on a personel loan to HFC. In March of this year I received a court order which I filled in made an offer of payment of £32 a month, previously I was pay £87.

On the 17th March I received a reply from the court accepting my offer and outlining the day and date on which payments should begin. I contacted the solicitor to make the first payment and obtained payment details from them to allow me to make further payments online. I have now made 2 payemts.

 

On the 15th May I received another letter from my local county court for a Notice of Hearing of Application which is set for 1st July 2008 at my local county court. Attached was a copy of the solicitors letter to the court which is below.

 

Dear Sir

 

We write further to the N30 dated 17th March 2008.

 

The defendant replied to the claim form offering £32 per month. This was rejected based on the poor payment history, large negative disposible income and time taken for repayment.

 

As the defendant has a negative disposable income of -£418 how is the defendant able to fulfil the awarded judgement of £32 per month.

 

Due to the large negative disposable income the claimant should have the option to enforce the judgement by methods available.

 

We would respectfullly request the court to reconsider its original determination and transfer this case to the defendants home court for redetermination.

 

Yours faithfully

 

Reston's solicitors

 

The solicitors letter is dated the 19th March 2008, but hand written in the top left hand corner is " missing 26-3-08"

I dont think £32 is unreasonable, at the time it was all I could afford, some months I could pay more depending on the type of work I get some months I can get quite a lot of work and some month not very much.

 

Any adivce on this matter would be grateful.

 

Thanks

 

Skiton

[popeye1]

Bump

[42man]

If they want to go for a redetermination it MAY be possible for you to fight and dispute this debt !!! Have you requested a copy of your Consumer Credit Agreement ? Are there any excess charges on the account that you could claim back ?

 

What you could do is see if they have a legal right to collect this debt in the first place....(and bear in mind that a debt can be potentially disputed at any stage)

 

As this is subject to Civil Proceedings then you could try sending the solicitors this by recorded delivery.....

 

I am hoping that someone with more knowledge than me can comment...

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[sequenci]

Hello, welcome to the forums. Can I ask, are you in morgaged property? if you are do you have equity?

 

Thanks.

[skiton]

Thank you 42man & sequenci

 

First of all thank for the advice and the letter. Answer to your question sequenci is yes I do have a mortgage and at the moment no or very little equity.

 

42man thanks, I think there are several charges on the account from previous missed payments. Although I made the payments in the same month they have charged me £15 for each occasion I missed the due date even though I may have made the payment over the phone a few days after the due date. And interest and fees have been added.

Although I have admitted the claim on the original court order can I still claim the charges back. The claim was for £2280.

 

How do I check if they have a legal right to collect this debt?

 

Thank you

 

Skiton

[42man]

Send the above letter to them (SEND IT BY RECORDED DELIVERY)......if they don't have a copy of your Consumer Credit Agreement then the debt is unenforceable, although at your stage I'm not sure if you can bring this issue up (if it was me in your position then I would definately try....!!) This is why it is relevant....

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/133653-consumer-credit-agreements-letter.html?highlight=gareth

Edited May 31, 2008 by 42man

[42man]

The gist of where I am coming from is this...

 

You could dispute the debt on these proviso's

 

1 - They don't have a copy (let alone one that contains all the prescribed terms) of your Consumer Credit Agreement

2 - They have to have provided you with default notices, and a letter before action, (cases can be thrown out without providing these)

3 - you could also dispute it due to excessive charges and loan protection + 8% compounded interest that may have been added to the account....

 

I would spend as much time as you can reading through these forums....!!

[42man]

Here are some bits of the Consumer Credit Act 1974 that may be of interest to you... You would be surprised by how many do not have the Consumer Credit Agreements and how most are unenforceable i.e. do not contain specific prescribed terms....

 

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

They need to keep documents such as a copy of the agreement for 6 years after the closure of the account to comply with money laundering legislation.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

Consumer Credit (Prescribed Periods for Giving Information) Regulations

1983 (SI 1983/1569)

2 Prescribed period

The period of 12 working days is hereby prescribed for the purposes of each provision of the Act specified in Column 1

of the Schedule to these Regulations relating to the duty indicated in Column 2 in relation to regulated agreements

 

 

SCHEDULE

SECTIONS OF THE ACT IN RESPECT OF WHICH A PERIOD OF 12 WORKING DAYS IS PRESCRIBED RELATING TO DUTIES IN

RELATION TO REGULATED AGREEMENTS

Regulation 2

Section of the

Act

Duty

(1) (2)

77(1) Duty to give information to debtor under fixed-sum credit agreement.

78(1) Duty to give information to debtor under running-account credit agreement.

79(1) Duty to give information to hirer under consumer hire agreement.

and section 78 for running credit

 

 

78.

Duty to give information to debtor under running-account credit agreement.

— (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a)

the state of the account, and

 

(b)

the amount, if any currently payable under the agreement by the debtor to the creditor, and

 

©

the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a)

an agreement under which no sum is, or will or may become, payable by the debtor, or

 

(b)

a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

 

 

(4) Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)

showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b)

where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

 

(5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

 

(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.

 

 

 

[skiton]

Thank you 42man

 

I will read through the forums before sending the above letter off.

 

Just as an add note, I found the original agreement, it was taken out in 2005 with month payments starting in Nov 2005, up until August 2007 (which is when I started experiencing financial difficulties) I had made regular payments and maybe only missed about 2. The original amount was for £1987 and they say I still owe £2280.

 

Skiton

[skiton]

42man, just read through your notes above and one thing that stands out for me is Statements, I have never recieved a statement from ever even though at one point when I was arguing about the charges I requested last year that they send me one and it never arrived.

 

The agreement I have does contain the following:

 

Amount of credit.

Total amount payable.

Number of installments.

APR.

Monthly payments.

 

In the leaflet that I received when I took out the loan, it states that a charge of £15 will be charged for an unpaid direct debit, at the time I only had my business details with me and gave these in order to set up the DD. After the first DD payment I cancelled the DD and continued with payments by phone from my personal account. This was due to the irregular method I get paid and to avoid extra bank charges from my bank, but HFC continued to charge me £15.

 

Skiton

Edited May 31, 2008 by skiton

[42man]

You say the agreement YOU have, did you ever sign it and send it back ??? or was it signed in a branch...??

[skiton]

It was signed on the day of purchase. The loan was for goods from curry's and the agreement was signed in the shop and on behalf of HFC by curry's.

[skiton]

Update 4/6/08

 

Sent the letter above (42man 30th May) to the solicitors, and received a reply back today saying:

 

Dear Sir

 

Thank you for your letter of 2nd June 2008.

 

Judgment has already been granted against you by the court and therefore your request is inappropriate.

 

Yours faithfully

 

AN Other Solicitor.

 

Any comments would be greatful, thanks

[42man]

hmmm....as mentioned in my first post, I said you MAY be able to dispute it...I was certainly under the impression that a debt could be disputed at any stage.....I need to ask somebody to take a look Skiton....

[42man]

I'm not so sure about what the solicitors say !!! They may be saying this to put you off...

 

Have a read here, this Cagger is getting a dispute in at Charging stage !!!!

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/147184-please-check-need-submit.html

 

I would dispute the debt at the hearing !!! and tell the judge you have asked for a Civil PRocedure Rules request and have been denied it !!!!

[42man]

You can dispute a debt at any stage !!! especially now you know your rights...

[skiton]

Some advise please.

 

Not looking forward to court hearing on 1st July, but what should I expect and what am I in for.

 

Thanks

 

Skiton

[skiton]

hmmm....as mentioned in my first post, I said you MAY be able to dispute it...I was certainly under the impression that a debt could be disputed at any stage.....I need to ask somebody to take a look Skiton....

 

 

Can any one expand on the above.

 

Thanks

 

Skiton

[skiton]

Can any one expand on the above.

 

Thanks

 

Skiton

 

Has anyone any more info about disputing a debt at any stage.

 

Thanks

[42man]

In my opinion, I think you should mention to the judge that you have NEVER been sent any statements for the duration of the contract, you believe that there are some excessive charges that have been added to the account, and that it is not uncommon that some debts are made up entirely of charges....

 

If it was me in your position....I would ask the judge for a full disclosure of ALL documents. Specifically request defaults, notices of assignment, consumer credit agreements and statements for the duration of the contract. So you can ascertain the excessive charges and to determine whether or not the debt is enforceable (you can only try !!) and say that you think it is a reasonable request now you are aware of your rights.

 

The £32 you are offering is very reasonable under the circumstances. Your statement of a minus figure makes it difficult for them to understand how you can afford it.

 

In the court room (more like an office with a table and chairs) there will be the judge, the opposing solicitor and you....and it is more like a formal discussion...

[skiton]

Update 1/7/08

 

Just returned from the county court. Restons or rep never bothered to show so judge ordered a continuation of CCJ at £32 a month.

 

Skiton

[skiton]

Hi all, some advice please.

 

Just recieved another "Notice of Hearing Application" for redetermination for the same debt from the same solicitors this time they claim I have a negative disposable income of £1,738.

 

As mentioned in earlier posts I went to court 1st July for redetermination but solicitor never turned up so judge ordered a continuation of the £32 a month. I have a copy of the Judgement for Claimant (after redetermination) dated 1st July 2008

 

I spoke to Restons today and they say they sent a defence to the court but it got lost or the court did not process it in time which allows them to file again. Court hearing is for 7th October.

 

Thanks

 

Skiton

[skiton]

Hi. Anyone any comments to my last post. Thanks

[popeye1]

Bump

[skiton]

any advice please. Thanks