HFC Loan Court Claim-Advise needed

[SupermanX]

Hi

 

I've attached credit agreements and default notice I've received from Reston's relating to this claim. Please advise what I need to do next

 

Thanks

Super:wink:

HFC Docs.pdf

[SupermanX]

bump

[SupermanX]

bump, can someone plz look into this

 

Tks

[AndyOrch]

Hi Super

 

The enclosed CCA is unforcable due to the fact that the T&C are not within the signitory box and are not refered to in any part of the application ie see over leaf or asee attached therfore the T&C supplied are irrevelent.

The Default notice is complient and does allow the required time to rectify the breach, layout conforms also.

 

 

I trust the above is of help

 

 

Regards

 

Andy

[SupermanX]

Hi Andy

 

Can you please clarify :"CCA is unforcable due to the fact that the T&C are not within the signitory box and are not refered to in any part of the application ie see over leaf or asee attached therfore the T&C supplied are irrevelent"

 

I'm not familiar with this argument, how does it make it unenforcable?

 

Thanks

Super

[AndyOrch]

Hi Super

 

The T&Cs must either be within the signitory page or refered to ie see overleaf/attached or on the reverse of the signed page and indexed or numbered and refered to. If not then your signiture means nothing you are signing somthing that has no Terms & Conditions and therefore bound to nothing.

 

I trust the above clarifies

 

Regards

 

Andy

Edited October 29, 2008 by Andyorch

[SupermanX]

Thanks

 

What is the margin of error on the APR the credit agreement? the agreement HFC sent has 6.30% my calculation shows 6.12% for the amount of monthly payment they have on the schedule

 

Super

[SupermanX]

Hi

 

I've received a letter from HFC's solicitors stating that they have made an application to the court for a hearing date for Summary Judgment? can they do this without goig to trial?

 

Tks

Super:wink:

[AndyOrch]

Hi again Super

 

They can apply and you can also oppose.Keep a check on the status of the claim with your CC and request, which you should recieve anyway, any copies of Application Notice and if any Witness statements if attached.

 

 

Andy

[SupermanX]

Thanks

 

I spoke to the court they told me that they have sent an application for a summary judgement but so far they cannot locate the paperwork so nothing will happen

[SupermanX]

Hi *** Urgent Help Needed***

 

I've received an application for a summary judgement, I've til the 25/12 to reply to the application. I'm not sure what needs to be done

 

Can someone plz help.

 

I've attached the docs received

 

Please note the following points with regards to the case:

 

-The APR i've calculated is slightly different to the credit agreement

-It fails to contain the prescribed terms as required by schedule 6 of the Agreements regulations.

-The terms and conditions are not much help, how do we know they are even related to the agreement? How do we know they are the terms and conditions that came from the time that the agreement was signed?

 

- No Credit agreement was sent before the claim was issued

 

- Terms and conditions are not within the signatory page or referred to.

 

- The particulars of claim are not compliant with part 16 and practice direction 16 in particular paragraph 7.3 PART 16 - STATEMENTS OF CASE & PRACTICE DIRECTION – STATEMENTS OF CASE - This practice direction supplements CPR Part 16.

 

- The document alleged to be a credit agreement is not compliant with the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in particular it fails to include the prescribed terms within the document but in a separate document marked terms and conditions.

 

- There is a collection charge added to the claim, this is an unfair charge.

 

- The documents are not clearly easily legible and that makes it non compliant with the Consumer Credit Copy Docs Regulations as a side issue

Super:wink:

HFC Summary Judge.pdf

[car2403]

SupermanX,

 

This is standard process for Restons/HFC, I'm afraid. Why have you left it so late to respond to this hearing?

 

Can you repost the agreement up with the financial information showing, or post up the figures from the agreement itself, please? That way I can check the APR. Note that the APR isn't a prescribed term on a fixed term loan, but if it is inaccurate as you say it could be useful later on. (You'll see why when we get there)

 

Which prescribed terms are missing?

 

The T&C's - they aren't posted on the thread, are they?

 

A copy of the credit agreement should have been attached to the POC when the claim was issued. The issue you have here is that they have now supplied that to you and the Court, in the application documentation, so that won't hold weight with the Court now.

 

You can argue that the T&C's don't form part of the same document, but what if the original turns up at the hearing and it's clear they are? This should form part of your argument, but don't rely on it on it's own, IMHO.

 

The collection charge can be challenged - as can the other charges applied to the account throughout it's life. You can also challenge the Default Notice on this same basis.

 

I can read the documents, so I'm not sure what you're referring to there?

 

Have a read of this, as it follows roughly the same process; (I sued HFC and they defended/counterclaimed, but you can see the process for dealing with an application for summary Judgment throughout the thread)

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

There are a few options to replying to this;

 

You can reply to the application and challenge it.

 

Or

 

You can apply for summary judgment against them.

 

I applied for SJ against them, which put me in a better position when agreeing to withdraw both SJ applications, IMHO.

 

Don't worry, though, I can help you with both of these - I just need to know how you want to progress, really...

 

P.S. Have you SAR'd HFC Bank yet? Now may be the time to do that.

[atwozee]

Sorry – I don’t like the look of this one – the copy of the agreement you have posted up looks to be enforceable (assuming that yours is the signature)

For this type of agreement a court can enforce if the creditor can produce a document with the debtors signature on it and containing the following prescribed terms:

Amount of credit

Repayments

Both of these terms appear on the agreement which is also signed.

The judge might order the production of the original but if they have it you could be in trouble. A photocopy is only hearsay evidence but if they can convince a judge that it’s acceptable then it’s game over.

[car2403]

I wouldn't give up, just yet. I had a similar experience with my claim and it all turned out right in the end. Admittedley, they shot themselves in the foot by "producing" various "copies" of Default Notices throughout the proceedings, but even if that hadn't happened, there was still the DPA issues to consider.

 

There has been many successes on the forums in this situation, but there is always a chance you can lose - I'm sure Restons would be open to a negotiation on a full and final settlement, or even that with an agreement to make monthly repayments you can afford, if you didn't want to continue.

[atwozee]

I’m all for a fight but superman needs to understand that barring any other issues the agreement looks enforceable so would the original defence hold up? And what would the costs bill likely to be?

[car2403]

I’m all for a fight but superman needs to understand that barring any other issues the agreement looks enforceable so would the original defence hold up?

No, as that defence is based on no enforceable agreement coming forward, which has changed.

And what would the costs bill likely to be?

 

If the other claims I've seen are anything to go by, around £3-4k.

[SupermanX]

Hi car2043 and Atwozee

 

Thanks for your replies. I didn't act earlier on the SJ as this was posted to me on the 18th. I was out of the country until the 21st

 

The figures are as follows:

 

Amount of credit: 10,250

Interest(total charge for credit): 1673.80

Total Amount Payable: 11,923.80

APR:6.3%

60 Monthly repayements of 198.73

 

I can also email you the agreement if you need it.

 

The T&C's are on a different page to the agreement where the signature is, how do we know it is part of the agreement?

 

I have not SARed HFC yet, shall i do it first in the morning?

 

From the 2 strategies you pointed out I would prefer to apply for SJ against them rather than challenge, can you kindly help me out with this

 

Many Tks

Super

[car2403]

The interest rate is actually 6.295% - but that's within the tolerance (+1/-0.1%) allowed by the regulations.

 

The prescribed terms are contained within the signature document. Yes there is an argument that the terms don't form part of the same document, so fall foul of s.60/s.61/s.127(1), but the Court would allow enforcement by order unless you can show you've been prejudiced by that construction. I can't see how you can show that, IMHO.

 

The best bet is to challenge the Default Notice as containing charges - the issue you have, with having an enforceable agreement, is that they may click on to what you are doing, refund the charges to the account, then reissue a Default Notice without the charges on it. The Court won't be happy about that, but it wouldn't be able to stop enforcement of the debt as a result, as that would restrict the liberty of the bank to seek enforcement which would be unequitable, IMHO.

 

I hate to say this, as it doesn't sit easy with me, but sometimes you have to admit defeat and act accordingly, but your best bet may be to agree some settlement terms based on a reasonably affordable monthly repayment and sign a consent order staying the proceedings on the basis that you make those repayments. You could include removal of the collection charge and default charges applied to reduce the balance, (and the amount of time it will take to pay this off) as part of the negotiation. I can't see how else you can successfully defend this going forward, otherwise. Better to agree settlement now, while you can reasonably avoid the costs of the claim, I say.

[SupermanX]

Thanks for your reply.

 

I will call their solicitors tomorrow to see what settlements they could potentially agree. what shall do with the SJ application? I only have 2 to act, or shall i run it and negociate settlement?

 

Super

[car2403]

I'd call them to offer to discuss negotiation settlement if they agree to vacate the hearing for SJ on the basis that you don't want to waste the Court's time further and you feel you need time to agree a settlement suitable for both sides.

 

What is important at this stage is that anything is conducted in writing - marked "without prejudice, save as to costs". I wouldn't call them, but can you email/fax them instead? If you have to call, ensure you get the name of the person you are talking to and send a letter/email/fax to them to confirm the conversation details that took place.

 

They will want to avoid the expense of attending the hearing as well, as that will be a wasted cost to them.

 

If they do get unreasonable, tell them that you are prepared to go to Court to effect the settlement, but that will be on the Courts terms, should they not accept your proposals. So long as your proposal to them is reasonable now, the Court probably won't grant them more at a later date, in which case you can refer to the "without prejudice save as to costs" letter that you send to avoid having to pay costs of the case from this point forward.

[SupermanX]

Hi

Thanks for your reply.

What final settlement to feel is a reasonable final settlement, 30 to 40%?

or what monthly figure?

 

Super

[car2403]

That's a tough one, really. You'd have to think about how much you can afford to repay, be that upfront capital or a monthly repayment, and begin bargaining with them.

 

I think the more pressing and urgent need is to begin the negotiations and to get this hearing vacated.

 

Don't be surprised, though, if they won't negotiate - actually, they are in a very good position and probably could get a CCJ for the whole amount if they so wish. Of course, doing so (after you've sent your without prejudice offer to them) could jeopardise their claim for costs if the CCJ is awarded, so this is the bit you can use to banter with. As I've said before, claims for costs of £3-4K aren't unheard of, but they are slightly unrealistic and generally don't get awarded in full - if you work on £1-£1.5k off the balance, that should be a decent start I would have thought.

 

By the way, this isn't a loss - you need to play your cards right to avoid a CCJ that will be recorded against you for 6 years and come out of this with a decent monthly repayment that is reasonably affordable to you, meaning they can't pursue you further. (Unless you default on that agreement, that is)

[pt2537]

the questions which we must ask ourselves are

 

1] was the default notice served upon you defective

 

2] if it was defective, did the lender go ahead and terminate the agreement?

 

if we can answer yes to these questions then they(the lender) are denied any benefits which would be conferred upon them by complying with s87 & 88 CCA 1974

 

There is a very helpful thread by surfaceagentx20 on this matter. it is excellent and i can say with some certainty that it is accurate as i have been stood in the exact same situation x20 describes with my client and the outcome was in our favour;)

[Von Greenbach]

the questions which we must ask ourselves are

 

1] was the default notice served upon you defective

 

2] if it was defective, did the lender go ahead and terminate the agreement?

 

if we can answer yes to these questions then they(the lender) are denied any benefits which would be conferred upon them by complying with s87 & 88 CCA 1974

 

Sorry to jump in but Paul would you take a glance at my thread here and post 16, I've attempted to create a defence although I'm not inteligent enough to fully understand what I'm doing, would you comment on it if you have time please?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/174146-court-case-re-co.html

[caro]

the questions which we must ask ourselves are

 

1] was the default notice served upon you defective

 

2] if it was defective, did the lender go ahead and terminate the agreement?

 

if we can answer yes to these questions then they(the lender) are denied any benefits which would be conferred upon them by complying with s87 & 88 CCA 1974

 

There is a very helpful thread by surfaceagentx20 on this matter. it is excellent and i can say with some certainty that it is accurate as i have been stood in the exact same situation x20 describes with my client and the outcome was in our favour;)

 

Can you link us to the thread to have a read please PT.