Being taken to Court by HFO Services -Please help Advice needed **WON**

[I've got no money]

Defence - I'm losing my marbles - can you post a copy of the claim form - remove your name and anything that would identify you - court number, their reference etc and then we can help you with the defence.

[Rosie_123]

Thanks so much. I am at work now, but when I get home I can scan the Claim Form and upload it. Should I blank out the amounts too, or just name/address details and Claim Number and password? Sorry to be stupid.

[I've got no money]

It won't do any harm to blank the amounts out as well - we know already that its' under £5k

[Rosie_123]

Hi. OK - please see attached a copy of the Claim Form. I hope it is readable.

 

Btw - if it is any help to you, these clowns have already been offered a pro-rata payment from PayPlan and they are taking the money, but still taking me to Court because they say they want more than PayPlan say I can afford, whilst all my other creditors are accepting theirs quite happily

 

Also - I read somewhere else on this Forum, that you can submit your Defence online. Is that correct?

 

Thanks for your help.

 

Btw - in case you can't read it, this is the actual wording under the Particulars of Claim:-

 

"The Claimant HFO Capital Limited is a debt purchase company.

The claim is for monies due under a regulated interest-bearing credit agreement. The assignee HFO Capital Limited purchased the defendants account and all rights and obligations attaching thereto from the original Lender, on 25/09/07.

The original Lender was CitiCard.

A letter of assignment has been provided to the defendant previously. The claimant also claims interest thereon pursuant to S.69 of the County Court Act 1984 at the rate of 8% up to the date of of judgement or earlier payment in full at the rate of 0.55% per day.

Contractual interest was accruing on this debt prior to issue and will continue to accrue at the rate of 12% after judgement."

 

Btw - I never received the letter of assignment they said they sent.

Edited June 18, 2008 by Rosie_123

[42man]

Rosie, you can submit your defence on line, but it is limted in size.....If you have received NOTHING back from the solicitors then send them this (but do READ it through and try and understand wha is being said) this is a standard type of defence when nothing has been provided in response to the CPR...

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

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 I wish 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 contract referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported contract 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) No account number is contained within the particulars to enable me to identify the account on which this claim is brought

 

d) 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, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

The build up to this action

 

5. In the build up to this action, I had raised a formal dispute with XXXXXXX. on the xx/xx/2007 I wrote to XXXXXX requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974 . This request was received on the xx/xx/2007. (A copy of the correspondence is attached to this defence marked CP)

 

6. On xx/xx/2008 the claimant supplied a copy of an application form, annexed to this defence marked exhibit CP2, which was of extremely poor quality and contained none of the terms required by the Consumer Credit Agreements Regulations 1983. Accordingly I wrote to the claimant setting out the issues

 

7. Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules Pre Action Protocols Para 4.3, as no letter before action was received

 

The Request for Disclosure

 

8. Further to the case, on xx/xx/2007 I requested 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 myself 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.

 

9. To Date the claimant has failed to comply with my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person ( a copy of the request is attached to this Defence marked CP)

 

 

The importance of a copy of the credit agreement and its production before the court

 

 

10. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

 

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

11. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the consumer credit Act is clearly enacted to protect consumers such as myself and therefore the claimants failures to supply the information and their behavior in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence

 

 

 

12. The credit agreement supplied is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the consequences of such failings mean that the agreement is rendered unenforceable by section 127(3) of the Consumer Credit Act 1974

 

13. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

14. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

15. 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

 

16. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. They cannot be found in a secondary document as according to section 61(1) (a)(b) &©, the agreement must at the time it is laid before the debtor contain all the terms of agreement

 

17. Furthermore, section 2 of the Consumer Credit Agreement Regulations 1983 clearly states

2 Form and content of regulated consumer credit agreement

s

 

[(1) Subject to paragraphs (2) and (9) below, documents embodying regulated consumer credit agreements (other than modifying agreements) shall contain the information set out in Column 2 of Schedule 1 to these Regulations in so far as it relates to the type of agreement referred to in Column 1.

18. Furthermore I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[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."

19. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

20. Notwithstanding point 15, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

The Courts Power of Enforcement

 

21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

22. Further more 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

 

23. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act.i refer to the judgment of Lord Nicholls of Birkenhead below....

 

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

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 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

 

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

24. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

25. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

26. I also refer to the website of Francis Bennion, the drafts person of the Consumer Credit Act 1974 and note in particular a PDF document that the honourable Mr Bennion has posted (located here http://www.francisbennion.com/pdfs/f...974-s127-3.pdf ) which states

 

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

 

167 Justice of the Peace (2003) 773.

27. The defendant will further refer to the cases of Dimond v Lovell - [2001] GCCR 2751 and London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956,as these cases which were dealt with by the Court of Appeal and House of Lords respectively deal with Consumer credit Agreements and the fact that where agreements do not comply with the Act they are not enforceable by the courts

 

28. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

29. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement supplied by the claimant (marked Exhibit CP xxx) unenforceable.

 

 

The Need for a Default notice

 

30. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

 

31. It is neither admitted or 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

 

32. Notwithstanding point 31, I put the claimant to strict proof that any default notice sent to me was valid. I 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)

 

33. 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 me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

34. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

35. If the court considers it in appropriate to use its case management powers, it is requested that the court order the claimant to produce a compliant credit agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998

 

36. 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 I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

37. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

[42man]

Might be good to slip this in too...

 

34. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order

[DonkeyB]

I'm gobsmacked that HFO has once again taken someone to court and made the statement in its POC that 'A letter of assignment has been provided to the defendant previously'. Glad you're smart to their tactics, Rosie.

 

Is there anyone on this forum who's actually received this (usually 're-created') document BEFORE the claim is issued? I was eventually sent a copy of the 'assignment' from the OC over a year after they claimed they first sent it, but unusually the original creditor (Barclaycard) had put the wrong account number on it... in exactly the same way as HFO got the account number wrong. Coincidence, that, eh?

 

Keep everything Rosie, especially the envelopes they send stuff in.

[I've got no money]

Don't forget that the court doesn't read the claim/defences in addition to what 42man has said you need to make an application - you can do it on the same N244 as the one that you're gonna send in next week for an order that they comply with your CPR request that the court strikes out the claim, on the grounds that 42man suggests - don't forget also claim costs.

 

I'm sort of busy tonight - I'll draft an N244 up for you Sunday if that helps

[patrickq1]

dont worry rosie by the looks of the advice you are getting now you wont see turnbull or hfo oh by the way which hfo division is prosecuting you as this is also important one of the companies is not registered in the uk ,,,so check that one out or go through my files on here and you will find out which one it is ok good luck your doing fine

patrickq1

USEFUL LINKS;

Beginners Guide to CAG

Can't find what you're looking for?

Intro to Consumer Credit Litigation

Is My Agreement Enforceable

Default (Surleybonds) Template Letter

Digital Signature Guide

Overdrafts and the CCA

 

YOUR HELP NEEDED... Assist those with "0" replies!

[nicklea]

Btw - I never received the letter of assignment they said they sent.

 

It is also important to make reference to this in the defence as well.

 

42man really knows what he's doing (although he does keep saying that he's no expert - but you can tell that's not true by the number of people that have clicked his scales) and the defence he gave you was spot on.

 

However, if I may add one extra little bit to it regarding the notice of assignment:-

 

Assignment of the Alleged Debt

 

1) I submit that any alleged assignment of this debt to the Claimant, xxxx, is ineffective and so the Claimant has no standing before the court.

 

2) The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

Section 196(4) prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

3) For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Claimant has no right of action.

 

4) Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) ). I further deny that any document given under the hand of the Assignor, xxxxxxx, was sufficiently served on me.

[Rosie_123]

Wow guys - you have all been so helpful.

 

Patrick - in answer to your question - the Particulars of Claim say HFO Capital Limited.

 

42Man - I noticed in the standard defence that you posted, there was a clause (Number 6 in the build up to the case) that said the Claimant had provided me with a copy of an application form. But fact is they have never supplied me with anything. Should I just strike out this paragraph completely and change the numbering? Or replace it with a paragraph saying they have never sent me anything?

 

I've Got No Money - Sunday will be fine. But one last thing. Is there a standard letter template anywhere here for me to send to Turnbulls giving them the 7 days to respond? I believe I have to send that off to them on Friday?

 

Btw - one thing I haven't mentioned before here which may - or may not- be relevant. HFO started hassling me at the end of last year, shortly after I received one of their First Logistics cards and was stupid enough to reply to it. Well - about a week before the Court Claim arrived, I received another one with my HFO Reference Number on it. This time I threw it straight into the bin (I realise now I probably should have kept it and I'm sorry for that) - but if they are already taking money from PayPlan for this debt - why did they send that card out to try and "trace" me again? I just don't understand.

 

Thanks for listening guys. I don't know what I would have done without you, and once all this is over with, I would love to do something to help you out to help others.

Edited June 18, 2008 by Rosie_123

[42man]

Yes apologies Rosie.....it will need editing, the defence was done by PT originally, and it may contain other aspects that aren't relevant..

[patrickq1]

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—make sure you do ephasise in your cpr that the assignment was sent to you REGISTERED POST PROOF FROM OC and not HFO ,

i will post on here some data concerning HFO some of the information goes back to 1993 they are not a company that should even have a trading licence imo and are under investigation by various goverment agancies thats all i can say

patrickq1

[I've got no money]

I think that there is a little confusion over S136 of the Law of Property Act 1925 what it means is that for an assignment to be valid notice of the assignmentmust be given...etc

 

In all of the cases I have come across on the forum no creditor has ever sent a copy of the actual assignment - the issue is whether the notice was given.

 

Don't forget that sending a notice of an assignment does not create an assignment. There must also be an original assignment in existence - all the notice does is make the pre-existing assignment effective.

 

It is therefore crucial in every case to request a copy of the original assignment document.

 

Hope that clarifies things a bit

[Rosie_123]

Hi again. Sorry to be a pain. is there anywhere a standard letter that I should sent to the Solicitors tomorrow giving them the extra 7 days to reply to the CPR letter? Or should I just make one up? I don't want to sound too rude or abrupt by doing this. I would rather have a standard format to follow if possible. Thanks.

[I've got no money]

Is something like this OK - you need to put your own name/address on the top and also the solicitors address and send it by recorded delivery or fax

 

 

Your ref:

Date:

Dear Sirs,

Re: insert case heading and case number

I refer to the above and to my unanswered letter of the (date), please find copy attached.

I note with grave concern that you have failed to respond to my letter. You will of course appreciate that it is incumbent upon you, pursuant to the Civil Procedure Rules to provide the information requested. I would add that your failure to respond has made it impossible for me to file a properly pleaded defence.

In the circumstances I must therefore require a full response to my letter by no later than 4pm on the (insert date). If I do not receive a full response by that time I shall be forced to apply to the court for an Order compelling a response. I should advise that if such an application proves necessary that I shall also apply for an Order for my costs in any event.

I await your most urgent response.

Yours faithfully,

[Rosie_123]

Thanks. Funnily enough I had just written one myself, and it turned out almost exactly the same So I guess I must be doing something right.

 

I will post it recorded delivery tomorrow.

 

Is something like this OK - you need to put your own name/address on the top and also the solicitors address and send it by recorded delivery or fax

 

 

Your ref:

Date:

 

Dear Sirs,

 

Re: insert case heading and case number

I refer to the above and to my unanswered letter of the (date), please find copy attached.

 

I note with grave concern that you have failed to respond to my letter. You will of course appreciate that it is incumbent upon you, pursuant to the Civil Procedure Rules to provide the information requested. I would add that your failure to respond has made it impossible for me to file a properly pleaded defence.

 

In the circumstances I must therefore require a full response to my letter by no later than 4pm on the (insert date). If I do not receive a full response by that time I shall be forced to apply to the court for an Order compelling a response. I should advise that if such an application proves necessary that I shall also apply for an Order for my costs in any event.

 

I await your most urgent response.

 

Yours faithfully,

[I've got no money]

Hi Guys, As Promised I've drafted up an N244 - I was shocked to discover that they've changed the form. There used to be a page for evidence now that's been reduced to about 20 lines - the rest has to go on a separate sheet

 

What I don't know is how I attach it to a posting.

 

I've got the actual form in Acrobat, so Rosie (hopefully) should be able to edit it and the extra evidence in a word document.

[car2403]

Hi Guys, As Promised I've drafted up an N244 - I was shocked to discover that they've changed the form. There used to be a page for evidence now that's been reduced to about 20 lines - the rest has to go on a separate sheet

 

What I don't know is how I attach it to a posting.

 

I've got the actual form in Acrobat, so Rosie (hopefully) should be able to edit it and the extra evidence in a word document.

 

Easiest way is to save it as an image and upload to something like photobucket

[Rosie_123]

Hi Guys, As Promised I've drafted up an N244 - I was shocked to discover that they've changed the form. There used to be a page for evidence now that's been reduced to about 20 lines - the rest has to go on a separate sheet

 

What I don't know is how I attach it to a posting.

 

I've got the actual form in Acrobat, so Rosie (hopefully) should be able to edit it and the extra evidence in a word document.

 

Thanks. Acrobat isn't always the easiest to edit for me - but I will certainly try:) I believe I have to send it off on Friday. My second letter to Turnbulls was sent recorded delivery yesterday, so they should receive it tomorrow.

 

And - yes - like car says - easiest way would be to upload it as an image.

[I've got no money]

pge1N244CAG001.jpg - Image - Photobucket - Video and Image Hosting

and

pge2N244CAG001.jpg - Image - Photobucket - Video and Image Hosting

 

I'm having really serious problems with my ISP today - my internet connection keeps crashing. There are two more pages - the first one is the guidance on issuing an N244 - its' on the Court service website.

The second I'm going to copy and paste onto a posting - it means that you can copy it and use it rather than retype it.

 

Have a read through then let me have any questions and I'll explain why I've done what I've done

[I've got no money]

IN THE NORTHAMPTON COUNTY COURT CLAIM NO:

BETWEEN

H F O SERVICES LTD

CLAIMANT

V

DEFENDANT

DEFENDANTS EVIDENCE IN SUPPORT OF THE APPLICATION MADE THE 2008

Continued from paragraph 10 of the N244 Application Notice

5. The Claim form is issued by HFO Services Limited. HFO Services Limited is a company registered in the United Kingdom. The Particulars of claim then assert that the claimant is HFO Capital Limited, which is a company registered in Gran Cayman. The Particulars of claim do not therefore disclose any cause of action as between HFO Services Limited and me. HFO Capital and HFO Services are two separate legal entities. The Claim should therefore be struck out.

6. The Claim form is poorly drafted and does not provide sufficient information for me to firstly determine whether the monies claimed are lawfully owing and secondly to draft a properly pleaded defence. On receipt of these proceedings I therefore filed an Acknowledgment of Service with the court and wrote pursuant to part 18 of the Civil procedure Rules, on the (date of CPR Letter), to the Claimants’ Solicitors. I attach a copy of that letter to this application. I have not received a reply to that letter. I therefore wrote, on the (insert date) a further letter to the Claimants’ Solicitor seeking a reply. I attach a copy of that letter to this application. I have not received a reply to the letter. Both letters were sent by recorded delivery. I attach copies of online delivery receipts provided by Royal Mail confirming delivery. The information requested in that letter is essential to enable me to properly participate in these proceedings.

7. In the Particulars of Claim the claimant refers to an Assignment and asserts that I have been provided with a Notice of such Assignment. This is not true. I have never received such a notice.

8. I do not know whether there has actually been an Assignment at all. I therefore ask that the Court Order the Claimant to disclose copies of any original assignments upon which it seeks to rely.

9. I am a litigant in person the failure by the claimant to properly plead the claim and the failure to respond to my correspondence has caused me to expend substantial time on this claim. I accordingly seek an order that the claimant pay my costs in any event.

 

 

Any gaps on the forms need completing, likewise if I've put in brackets put date, name of court etc that all needs filling in as does the case name etc

[I've got no money]

Uhh - Don't ask me why its' put all the stuff in about font...it wasn't supposed to

[Rosie_123]

Hi- and thanks so much. I have copy/pasted the last part (points 5 to 9) into a Word Document, -can't seem to do it with the other two though - so I'll have to wait until I get into work and try and print something off-don't know if it will work.

 

So - can I just ask you to reitereate something? When I send this N244 into Northampton on Friday - do I send my Defence (which was printed here earlier) to them at the same time, or separately?

 

Anyway - thanks a lot for all your help. I won't be around tomorrow - a couple of very good friends of mine got together and bought me a ticket for the first day at Wimbledon for a Birthday present so I am taking a very rare day off work and trying to forget all about HFO for a day. But I will be back here first thing on Tuesday.

 

Thanks so much again.

[broken arrow]

Hi rosie when does your defence need to be in by .

You could file on line if the defence is not too many lines(I sent mine that way).

Don,t forget there is a fee for the N244 £75.( my cheque cleared on Friday).

 

All the best

Broken arrow

PS hope you have a good day at Wimbledon SW19 recognise the postcode!