HFC/Restons/Charging order/Phoenix

[OnMyWayOut]

Similar situation to you Rob here as well.

 

OMWO

[interweb]

Hi

 

HFC have responded to my SAR request. HOWEVER there are no copies or details regarding their correspondence with a DCA, Solicitors and a company who has written to me claiming they now own the debt.

 

What can I do about it? Any ideas??

 

Thanks

 

Interweb

[fedup74]

This seems to be the bog standard reply from HFC after requesting SAR. They took us to court, got a CCJ and charging order on the same day. I received our SAR info complete waste of time- no credit agreement (I know they reconstructed the agreement to take to court- it is written down on SAR !!) No default notice, no letters just a load of computer jargon and telephone conversations. I would write back and tell them they have not supplied all data requested. If they don't respond in 2 weeks you will be informing the Information Commisioner. Think we're just going to go for set aside but I will be sending a strong worded letter too Good luck

[interweb]

Hi fedup74

 

Thank you for your reply.

 

Yes, they managed to get a charging order on my house early in the year . I'm now going through all the steps of seeing what I can do to try and get it removed etc......not an east task, so I'm led to believe!

 

Thnks

 

Interweb

[fedup74]

Apparently not but something has to be done the people on here will be able to help (I hope!!) and if we can get money together to go for set aside you are more than welcome to take any advice that is offered. Will keep an eye on your thread to see how you get on. Good luck:)

[42man]

Interesting....that means they haven't complied with your SAR in full as they HAVE to supply a notice of assignment when they sell the debt on....!!

[42man]

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

[42man]

Law Of Property - s136 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-

(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:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925

[42man]

It might be a good idea to write to them and get them to confirm that what they have provided is absolutely everything....

[interweb]

Hi

 

RobCag and OnMyWayOut how have you got on with set asides?

 

In Dec 2008 I sent a cheque (very modest amount!) and a letter to HFC saying that this was an offer of final payment for this account and if they cashed the cheque it would signify acceptance of the offer.

 

The cheque was cashed and a few weeks later Marlin/Phoenix wrote to me stating their Clients did not accept the offer.

 

Later Mortimor got assinged and wrote to me asking me to pay. I wrote back and said there was no debt as a final payment had been made to HFC.

 

They said the account had been assigned way before my final payment had been sent. I replied back stating:-

 

1) I had never received an assignment notice as per Property Act 1925 etc.

2) I had SARd HFC and no information about Marlin/Phoenix was ever provided although statements and other information had.

3) I been making regular payments to HFC right up to my final payment letter and at no time did HFC return the payments or inform me they were being passed on.

4) My final payment to HFC was accepted.

5) So there is no debt and Marlin/Phoenix were never legally assinged if indeed they ever were.

 

I have not heard back from Mortimors, its been over 2 months.

 

In the meatime there was a court document indicating that Marlin/Phoenix were the new owners of the judgment etc. I wrote to the court stating that I challenged this and in my opinion the final payment has been made.. I got no reply so 6 weeks later sent a recorded delivery letter. The court replied that if I wish to court to adudicate I need to fill in the forms etc. etc.

 

So I'm not quite sure the best way to play this????? Perhaps start by saying that Marlin/Phoenix have no right because the assignment was not properly carried out and then try to bring in the final payment acceptance???

 

By the way I have a copy of the credit agreement/application form, which contains no prescribed terms. So maybe try to play the no valid agreement???

 

Any advice appreciated.

 

Thanks

 

IW

[OnMyWayOut]

Hi IW - not managed to do anything for a while, I've got a lot on. I have recently SAR'd the bank who have provided one side of an application form and a made up DN. Got to find the time to work my way through the process and make sure I've got a good case for the set-aside application.

 

OMWO

[interweb]

Hi

 

I had a CCJ steam rollered against me nearly 3 years ago but have since learnt that I was given defective Default Notices and PPI was wrongly being charged. Is it too late to try and overturn the judgement?

 

Regards

 

Interweb

[spamheed]

did they get the CCJ by default?

did you respond to their claim in any way?

[interweb]

It was by default. At the time I was at a low ebb and did not know how to defend myself etc.

 

Regards

 

interweb

[sequenci]

Hi there.

 

A set aside application is supposed to be made 'promptly', this usually means within weeks rather than months or years.

 

I'm not sure how successful you'll be if you made an application after 3 years.

 

Have a read of this here case:

 

http://www.bailii.org/ew/cases/EWCA/Civ/2000/379.html

[debbbbsy]

You would have to prove to the Judge that you have a strong and valid defence to the original CCJ. And explain why it has taken so long, perhaps they concealed "Vital Facts", or you have prrof they lied to you.

 

Only then, could you refer to :-

 

CPR 3.9 & 3.10

Allow the courts to 'overlook' errors of procedure as long as there is a good explanation for the error and there is merit in the underlying argument asked to be heard.

 

Start by sending a SAR to all parties involved.

 

Debs

[dadofholly]

You would have to prove to the Judge that you have a strong and valid defence to the original CCJ. And explain why it has taken so long, perhaps they concealed "Vital Facts", or you have prrof they lied to you.

 

Only then, could you refer to :-

 

CPR 3.9 & 3.10

Allow the courts to 'overlook' errors of procedure as long as there is a good explanation for the error and there is merit in the underlying argument asked to be heard.

 

Start by sending a SAR to all parties involved.

 

Debs

 

Hi similar position with me.

 

I have discovered that PPI was not removed from the amount claimed, despite me having evidence that the OC agreed to remove the PPI and it's interest, as it was missold. But they still added it to the claim without my knowledge.

 

Would this give me grounds for challenging the CCJ. I am at a stage i would like to begin clearing this debt if we can come to agreement, but obviously i only want to pay the correct amount.

[interweb]

Hi

 

An interim charging order was placed on my property in 2008 for a cc debt. 2008 is a bit of a blur as I had 10 collection agencies chasing me at the time etc. I don't believe the charging order was ever made final and indeed I recently got information from Land registry that is still showing it as 'interim'.

 

Shortly after the interim charging order was obtained the debt was sold on and payments are being made to the new owner. However the interim charging order is still in the name of the original creditor.

 

An 'interim' charging order is only supposed to be 'interim', ie for a month or two to stop sale before a court order can be made. Since this interim order is now over 5 years old what do I need to do to get it taken off the Land Registry details?

 

There is another 'interim' order entered in 2011 for a different cc debt. There was going to be a final hearing but my solicitor requested postponement as an appeal was going to be lodged against the original CCJ. In the event the appeal was never lodged. I'm not sure what happened after that as Solicitor was a bit dopey and all court papers went to him. Payments are being made towards this debt BUT no CCJ is showing on my credit report and I still have the interim charging order in place. Again what do I need to do to remove this interim order. And would i be opening a can of worms in attempting to do so??

 

Thanks in advance for any advice.

 

Interweb

[interweb]

Hi

 

In spring 2008 I received a CCJ for an HFC cc debt.

 

This was later sold on to Marlins

and over the last 2 years my DMC has been making payments.

 

Recently however, Marlins have stated they want to add interest

even though previous correspondence stated that no interest was payable.

 

This has caused me to look art the whole thing again.

I've noticed that around 2003 I was paying PPI (a company called UNAT).

If I was misold this PPI is it possible for me to go back to court to have judgement overturned at this late stage?

 

Any advice on how to handle the Marlin interest or the setaside would be appreciated.

 

Thanks

 

Interweb

[sequenci]

Hello there.

 

One of the important tests for a court when considering a set aside is whether or not an application is made promptly - and there is plenty of caselaw to suggest that promptness means a number of days or weeks. A set aside after 5 years is unlikely to succeed.

 

What type of interest are they looking to add? If it's 'statutory' interest they are unable to do so as the law does not allow it.

 

There is nothing stopping you from reclaiming the mis-sold PPI.

[interweb]

Hi

 

Thanks for your reply.

 

Yes, I believe it is statutory interest.

 

Regards

 

interweb

[sequenci]

It's not allowed as a credit card is regulated by the consumer credit act 1974.

 

The County Courts (Interest on Judgment Debts) Order 1991 prohibits post-judgment statutory interest on regulated debts:

 

Section 3a is your friend:

 

The general rule

 

2. (1) Subject to the following provisions of this Order, every judgmentdebt under a relevant judgment shall, to the extent that it remainsunsatisfied, carry interest under this Order from the date on which therelevant judgment was given.

(2) In the case of a judgment or order for the payment of a judgmentdebt, other than costs, the amount of which has to be determined at alater date, the judgment debt shall carry interest from that later date.

(3) Interest shall not be payable under this Order where the relevantjudgment—

(a)is given in proceedings to recover money due under an agreementregulated by the Consumer Credit Act 1974(1); .

(b)grants— .

(i)the landlord of a dwelling house, or .

(ii)the mortgagee under a mortgage of land which consists of or includesa dwelling house, .

a suspended order for possession.

(4) Where the relevant judgment makes financial provision for thespouse or a child, interest shall only be payable on an order for thepayment of not less than £ 5,000 as a lump sum(whetheror not the sum is payable by instalments).

For the purposes of this paragraph, no regard shall be had to any interest payable under section 23(6) of the Matrimonial Causes Act 1973

[dx100uk]

were marlins the claimant that got the CCJ?

 

HFC/Marlins don't usually mix.

 

dx

[dx100uk]

and I really do hope you DMP is with a free and not a fee paying company?

 

dx