Lowell/HFO claimform - old barclaycard debt **WON***

[mike1962]

No, you're wrong about assignments. HFOS are the agents of HFOC, so they don't need a deed of assignment between themselves. But as soon as you can put them to proof about the date of assignment (neither admit nor deny), then you can trap them with their inconsistent documents. If the dates don't match they should lose.

[mike1962]

Actually, amending a claim probably won't work - at least it better not. See the Civil Procedure Green Book. CPR 17.3[0] has a commentary that says an amendment to the statement of case is to be disallowed if the amended version is inconsistent with the original. They've verified the original with a statement of truth, which means they'll be caught in contempt of court.

[I've got no money]

No, you're wrong about assignments. HFOS are the agents of HFOC, so they don't need a deed of assignment between themselves. But as soon as you can put them to proof about the date of assignment (neither admit nor deny), then you can trap them with their inconsistent documents. If the dates don't match they should lose.

 

I'm not wrong - I think you will find that an agent cannot bring proceedings on behalf of a principal. HFO do this every time their pleadings say that HFO Services are agents but when you challenge them they will tell you that HFO Capital Limited has assigned to HFO services limited.

 

In my case, as I'm moderately experienced, I pleaded the defence on the basis that there was no cause of action. That is there was no contractual relationship between me and HFO Services Limited. Eventually they amended their claim to show that the agreement was assigned to HFO Capital limited who in turn assigned it to HFO Services Limited

 

I know because I've litigated against them and had them struck out for non compliance with CPR 31.14

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/147745-turnbull-rutherford.html

Edited April 19, 2009 by I've got no money

[I've got no money]

Actually, amending a claim probably won't work - at least it better not. See the Civil Procedure Green Book. CPR 17.3[0] has a commentary that says an amendment to the statement of case is to be disallowed if the amended version is inconsistent with the original. They've verified the original with a statement of truth, which means they'll be caught in contempt of court.

 

I think if you look at CPR Pt 19 - you'll find that they can add or substitute parties

 

I think that you'll also find in practice that the courts are very liberal in allowing amendment of claims particularly those issued through Northampton. I think its' because there is a recognition that due to the restriction on the number of characters that it can be difficult to properly plead a claim

[mike1962]

They can add or substitute a party, because that's a specific exception which is allowed by the rules. It's the content of the statement of case and the primary facts they can't amend so easily. See Practice Direction supplementary to CPR Part 16, paragraph 9.2.

 

"A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case."

[I've got no money]

They can add or substitute a party, because that's a specific exception which is allowed by the rules. It's the content of the statement of case and the primary facts they can't amend so easily. See Practice Direction supplementary to CPR Part 16, paragraph 9.2.

 

"A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case."

 

In terms of adding/substituting parties - if you were to have any hope of a strike out it would be on the basis that the claim does not disclose a cause of action because the claimant does not on the face of the claim have any contractual connection with the defendant - at the point you made the application even these cowboys would seek to amend the parties and your strike out would get nowhere

 

Without wanting to disagree I know what the rules and practice direction say I also know what happens in practice - which is the courts are very flexible in allowing amendments of the claim form. If they apply to amend you may find they get permission. OK you can appeal against the grant of permission but it aint worth the hassle

 

Perhaps if you apply to strike out and see what happens - If it were me I would save my court fee for using on my applications for 31.14 orders where I know that eventually I'll get them struck out

[mike1962]

If they apply to amend they'd have to submit an application notice. That means they'd have to give reasons. They'd have to be damn good reasons as well, and better than the ones you'd put forward in rebuttal. And if your house is on the line, you'd better believe that appealing is worth the hassle. Telling the truth in court is as important as judicial independence and impartiality. Sacrifice it and you radically subvert the administration of justice.

[I've got no money]

If they apply to amend they'd have to submit an application notice. That means they'd have to give reasons. They'd have to be damn good reasons as well, and better than the ones you'd put forward in rebuttal. And if your house is on the line, you'd better believe that appealing is worth the hassle. Telling the truth in court is as important as judicial independence and impartiality. Sacrifice it and you radically subvert the administration of justice.

 

No they would not always have to apply on an N244 for permission to amend - If you apply to strike out the court can grant permission at the hearing. In fact that often happens where a claimant applies to strike out a defence the court will give permission for the defence to be amended without an N244 being filed. In some cases where a request for further particulars of the defence is made and the court orders a reply often, I know cos its' happened to me, the court will allow effectively an amended claim and at the same time give permission to the defendant to file an amended defence.

 

With the greatest of respect LIP's have a really difficult time in the courts making fruitless applications doesn't help - the most important thing is to win and to win as quickly as possible not to become embroiled in technical appeals which merely increase costs and wastes everybody's time.

[mike1962]

Does this apply to amended statements of case that are inconsistent with the original? If you're caught making one of those you can get hammered for contempt of court.

[I've got no money]

Does this apply to amended statements of case that are inconsistent with the original? If you're caught making one of those you can get hammered for contempt of court.

 

Have you tried taking contempt proceedings against anybody for making a false statement of truth - the court don't want to know - I've tried and got nowhere. I had a colleague who very recently tried and didn't get very far.

 

The starting point is you need permission from either the DPP or the court. So you have to apply for permission - the first problem is that a solr will say oops - the declaration should have read "the claimant believes" - I was acting on instructions - the court can't access the solrs file so it can't check - permission refused...

 

Even If you got permission you would then have to apply to commit for contempt - a full hearing in open court in front of the designated civil judge where the other side would have leading counsel and you would have to prove on the criminal standard that they lied to the court. You'd find that it was an unequal contest - your chances of success would be minimal

 

The other thing is what good does contempt proceedings do you - you can challenge the validity of the evidence within the case - you highlight inconsistencies to the court and persuade the judge that the evidence is unreliable without going through the stress and hassle of commital proceedings.

 

If you were incredibly lucky and you had truly compelling evidence you're more likely to persuade the SRA to discipline a solr than you are the court.

[I've got no money]

Pank, exactly the same happened to me. HFO Services Ltd issued proceedings on 13 March 2009 through the Northampton County Court Bulk Centre, giving 12 March 2009 as the account purchase date. You've almost certainly got a Notice of Assignment and Default Notice stating another purchase date. What you need to do is to get an N244 and apply for the Claim to be struck out under Civil Procedure Rule 3.4(2)(a) [no real prospects of success] or Rule 3.4(2)(b)[abuse of the process of the court]. Reasons: (1) original lender not identified; (2) timeline too short for their story to be credible; (3) assignment date different from date given in pre-litigation exchanges.

 

Very probably the whole batch of claims issued on 13 March 2009 have the same egregious purchase date error.

 

Which means that HFO Services Ltd are facing the biggest disaster since the Death Star met the planet Aleeraan.

 

If you try to strike out on the above grounds:-

 

1. They will amend to include the original lender

2. For what is a standard pro forma claim it is not inconceivable that they could issue in the time frame...so you wouldn't get home on that ground

3. Assignment dates different in pre litigation exchanges - they'll say that the date on the prelitigation exchanges was incorrect or they'll just ask to amend

 

Incidentally if they claim that they purchased the debt on the 13th and issued on the 14th - that would put them in breach of the requirements for a LBA - you could argue that if they win that they should not recover their costs

 

Incidentally it never ceases to amaze me how many crap cases HFO/Turnbull Rutherford bring - the cases on here almost always always get struck out - usually for non compliance with CPR 31. Yet they keep doing the same thing over and over again. In my case I got three costs orders against them - that they paid...

 

I really don't understand them

Edited April 19, 2009 by I've got no money

[mike1962]

It's not a matter of bringing contempt proceedings. If the court allowed the substitution of an inconsistent alternative case it would be committing a serious procedural irregularity which could be reversed on appeal.

[I've got no money]

We are going round in circles - If you want to waste your time lodging appeals against interlocutory orders carry on...I've given my view whether you accept it or not is up to you.

 

Getting back to the case on this particular thread although I haven't seen the pleadings or the correspondence what I suspect has happened is that HFO capital claim that they were assigned the debt. HFO Services then wrote saying that they were agents and that you should pay them. THe next thing was that there was a summons with HFO Services as claimant.

 

The way that HFO Capital Ltd - which is a company registered in a non convention country - seems to work is that it buys the debt then just before proceedings are issued assigns the debt to HFO Services Ltd which is a UK registered company which then issues the proceedings using incredibly poorly drafted pleadings which don't directly refer to a second assignment.

 

I really need to see the claim and the defence - you need to make a Part 31.14 request and I suspect that the defence may need amending to deal with the fact that there is no cause of action. As to what you actually do about the fact that the claim does not disclose a cause of action is up to you. You could aplply to strike out However in my case I took the view that it was tactically better to make a request for further information - under Part 18 - than to apply for a strike out. Mainly because I knew that all that would happen was that on a strike out they would simply amend the claim and I thought that tactically it was better to have a poorly pleaded claim. As it was I obtained an order that they reply to my request and their response was to file essentially an amended claim which the District Judge accepted and gave me permission to file an amended defence.

 

Technically I could have appllied to set that order aside BUT at the end of the day they would have got permission to amend in any event. So what was the point.

 

Can you post the claim form please - I need to see the whole of the front of the form - take off the claim number and anything that might identify you but leave on anything that refers to HFO Capital Limited or HFO Services Limited. Can you also post the wording of your defence.

 

I'm away now until Weds night and I'll have a look then

[DonkeyB]

When cornered, HFO Services come up with a generic assignment document from HFO Capital to HFO Services, dated 2006 I think, and referring to all future debts assigned being reassigned to HFOS. As HFOC don't seem to assign all the debts they acquire to HFOS (they sometimes claim as HFOC), I wonder if this document could be described as faulty? Would be glad to post it up if you feel it's any use. Think you'll also find it on UK26's HFO thread.

 

In my case, after producing this generic document at the early stage, they then concocted an assignment document which specifically referred to my alleged debt - which is a bit dodgy given that such alleged debts are sold on in bulk with no identification of individuals in the main assignment. They discontinued but it would have been interesting to see what a judge made of their dodgy documents (and there were loads, with inconsistent dates and documents changing their wording, date and format from one month to the next).

 

The sad truth is that the courts let companies like HFO and their in-house solicitors, Turnbull Rutherford, get away with 'administrative murder'. They make up documents after the event and swear blind they were 'previously sent'. It's easy to pull their case apart forensically, but I still think you're better off pulling apart the T&Cs that they always fail to produce properly, on the basis that the lack of proper T&Cs prejudices you. You need something a judge can't dismiss as an 'admin error'.

[I've got no money]

When cornered, HFO Services come up with a generic assignment document from HFO Capital to HFO Services, dated 2006 I think, and referring to all future debts assigned being reassigned to HFOS. As HFOC don't seem to assign all the debts they acquire to HFOS (they sometimes claim as HFOC), I wonder if this document could be described as faulty? Would be glad to post it up if you feel it's any use. Think you'll also find it on UK26's HFO thread.

 

In my case, after producing this generic document at the early stage, they then concocted an assignment document which specifically referred to my alleged debt - which is a bit dodgy given that such alleged debts are sold on in bulk with no identification of individuals in the main assignment. They discontinued but it would have been interesting to see what a judge made of their dodgy documents (and there were loads, with inconsistent dates and documents changing their wording, date and format from one month to the next).

 

The sad truth is that the courts let companies like HFO and their in-house solicitors, Turnbull Rutherford, get away with 'administrative murder'. They make up documents after the event and swear blind they were 'previously sent'. It's easy to pull their case apart forensically, but I still think you're better off pulling apart the T&Cs that they always fail to produce properly, on the basis that the lack of proper T&Cs prejudices you. You need something a judge can't dismiss as an 'admin error'.

 

The thing they won't usually disclose is the assignment from the original creditor to HFO Capital limited.

 

I agree with your comment on terms and conditions - interestingly I got an order on a 31.14 request for production of both the original assignment and the original t & c - they were struck out for non compliance with the order.

 

In terms of the pleadings - once disclosed the assignments need to be analysed and the pleadings need to reflect the defects in the assignments. In respect of the current claim they need to go down the CPR 31.14 route to get the documents - or get them struck out for not providing them.

 

Just out of interest is there anybody on CAG who has lost, after a trial, to either HFO Capital or HFO Services

[DonkeyB]

I thinks there are a couple - UK26 and Broken Arrow got very unsympathetic judges. Read and weep:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/130275-hfo-services-limited.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/144119-hfo-court-claim.html

[DonkeyB]

(Maybe I didn't need the'unsym-' bit )

[mike1962]

HFO's statement of case is exactly the same in my case as in Pank's, which he's posted here as a PDF. HFO Capital were assigned the debt on 12 March 2009 from the original lender, and HFO Services are suing as their agent. There's no mention of an assignment to HFOS, and if their papers disprove their pleadings as to the first assignment, then any talk of a second one is irrelevant.

[DonkeyB]

I think what's happened here, as mentioned earlier, is that HFO have made a mistake regarding the correct date of assignment on a whole batch of claims. I strongly expect they will simply claim it as an admin error and ask to amend the PoCs in every case where a defence is lodged. If they get permission and change it, it's back to square one.

 

I think what needs to be pushed is the issue of getting the proper T&Cs - I don't think I've seen a case where anything accurate, contemporary to the alleged 'agreement' (ie. application form), has been produced. So it's back to CPR31 then... and trying to force their hand.

[mike1962]

They'd have a job! Alasdair Turnbull is the Director of HFOS as well as its solicitor, so he's held to a higher standard in negligence than ordinary members of the public. 'Administrative error' is a lame excuse. See the solicitor's caution under (I think) Practice Direction 22, and CPR 32.14 concerning contempt of court. He really has to take responsibility for his so-called 'administrative errors'. Don't forget, if the defendant isn't careful the claimant can get judgement in miscarriage of justice on a false pleading. Also, PD 9 to CPR 16 states quite categorically that a statement of case mustn't be inconsistent with an earlier one.

[DonkeyB]

That makes Turnbull Rutherford's excuses about 'on instruction from our client' rather a load of donkey doo, doesn't it? Can't really blame the client when you are the client!

 

Re statements of case changing from one month or hearing to the next, does that apply to conflicting witness statements too? Interesting this, but we need to get back on to sorting the case for the OP.

[mike1962]

It sure does, DonkeyB! If he's dumped a whole lot of vexatious claims in the system, the Law Society still retain the penalty of crucifixion for this sort of conduct. Producing the body or the living person of the slave named Spartacus won't wash either!

[DonkeyB]

Starting to wish they hadn't discontinued with me, Mike... on that basis they would've gotten crucified - would've been fun! The sad truth is they don't expect people to be savvy, and rely on default judgements or people caving in. That's where CAG comes in - looking forward to Pank's progress with interest.

 

Anyway, in the modern age of blame, isn't the new cry 'He's Spartacus!'

[Pank]

Right guys, have not been on my thread for awile and have come back to find that averyone has gone through the thread and have has huge legal arguments in my absence.................. Most of in I must admit is way above my head.

 

Asw always I am most greatfull for any help and suggestions for me to avoid court as I am ****ting bricks as it where, or anything that will get it thrown out.

 

I am posting all the documents as requested again and look forward to any ideas.

 

Story so far.

All I have received from Thurnbull in the way of documents are; Copy of an uneligable application form. (they have sent this several times but in variously bad states none of the eligable), copy of some T&C's not realating to the account, but they want me to think they are... not signed or dated also unreadable.

Copies of statements, incomlplete set and some of the statements have different details not relating to me.

 

Claimform received 14 March. Acknowledgement of Service filed asap. Defence filed and acknowledged by the court on the 03 April.

 

08 April received a letter from Thurnbull, thanking me for the receipt of my deffence, wanting to resolve the dispute, (attached again). If they did not hear from me one week before the deadline they would file their AQ with the court.

 

Sent a fax to Thurnbull on the 15 April, as suggested in my thread that documents sent are not the original and not legiable and therefore fail to meet the requirements of of the copies of doc's regulations.

Also informed them that I will only correspond in writing due to the pending court case and my dissability.

 

Any suggestions as to further action would be appreciated. Thank you all for your help.

If you need to see my defence I would be happy to send it via PM

 

Thank you.

CC Claim Form.pdf

Thurnbull,defence,receipt.pdf

[mike1962]

Remember, you must file a fully particularised and pleaded defence that complies with CPR 16.5.

 

They have to prove four things.

 

The name of the original lender and the identity of the account. As soon as they do that you can admit those two.

 

The assignment date. This is where you state that you neither admit nor deny, but require the claimant to prove. If the assignment date on the pleadings doesn't match the date on the notice, you've got them.

 

The next thing they have to prove is the terms and conditions of the original lender. Put them to proof on this one as well if they haven't produced the T&Cs. If they produce them, and the doc is satisfactory after careful examination, you can admit. But as soon as they see they have to prove the assignment, they probably won't.