Court date on 6th Jan - Application for summary judgement

[walshy76]

Hi, I have not got a clue about all the in's & out's of legal issues. So I have just registered on this site & read up as much as I can. My questions are:- I have received a letter from the court dated 19th Dec that only arrived friday saying I have a hearing booked in for 6th jan @ 10am. I rang the court to say I can prove by the post mark that I have only received it today but they said it was set & nothing can be done to change it.

 

I basically had a sofa on finance with HFC, I fell behind with payments a few months back & they wouldnt accept a negoiated payment from me whilst I have been off work sick. I requested a copy of my CCA when I had my first lot of court paperwork & I said on the paperwork I disputed the amounts owed.

 

The CCA doesnt look like a proper CCA - but I am not 100% confident so need so help. Read what other people have got on theirs & I am now confussed if what I have is or not one.

 

I have attached a copy - can anyone please help me?

HFC Agreement - blanked out details0001.pdf

[jonni2bad]

There should be a section in the original papers sent by the court called the "Particulars of Claim" - what did it state?

 

Did you respond to the court with a defence?

 

What timescales were given in the original paperwork?

[rory32]

Could you try posting the copy of the agreement again please. I'm afraid it's upside down in the link you have posted.

[jonni2bad]

I have also asked some "experts" to review the file attached - although it's quite hard to read most of it.

 

Is that just as the copy you were sent, or has it suffered a little on your scanner?

[jonni2bad]

Could you try posting the copy of the agreement again please. I'm afraid it's upside down in the link you have posted.

 

Spun for you!

 

[ATTACH]5266[/ATTACH]

[walshy76]

Hi, thanks for helping me & replying.

 

Received first court paperwork stating Restons were acting on behalf of HFC bank stating in a letter - A claim has been issued agaisnt the defendant in the sum of £1600.03 together with a claim fee of £75 & costs of £80. The sum claimed is the balance due & owing to the claimant under a fixed sum loan agreement.

Following the issue of a default notice & subseequent termination of the agreement proceedings were issued for an outstanding default balance of £1371.42 together with a collection charge of £228.61 the claimants entitlement to which is defined in the terms & conditons of the agreement.

 

A defence has been filed by the defendant whereby the defendant has disputed the full amount claimed. The defence filed dated the 3/11/08 neither provides a cause of action of defence nor contains a signed statement of truth. We have sent the defendant a copy of the signed legal agreement 12/11/08. In these circumstances Restons do not beleive the defendant has any realistic prospect of successfully defending the claim and the applicant knows of no other reason why the disposal of the claim should await trial.

 

I will add at this point before I knew of this site I was blindly filling out the forms on 20 minutes of advise from a telephone legal aid helpline. They granted legal aid but siad due to the amount of debt it wasnt a case they could represent me at or do paperwork for me.

 

The paperwork stating the allocation of questionaire needed to be returned by the 29th Decemeber 08 but didnt arrive until 2/1/09.

 

All this is confusing - I dont understand the legal jargon being used! Any help will be gratefully received.

[walshy76]

I have also asked some "experts" to review the file attached - although it's quite hard to read most of it.

 

Is that just as the copy you were sent, or has it suffered a little on your scanner?

 

 

Hi, no this is has it has arrived to me - i actually have got it looking better on the scanner has I have managed to clean it up a bit! I have blown it up to 300% trying to read it.

 

 

Many thanks for your help - gratefully appreciated

[jonni2bad]

Is the above from the original court claim Particulars of claim, or just the latest letter (which appears to be an application to the court detailing why you should have to attend a hearing)?

 

Also, what precisely did you enter as a defence?

[rory32]

What was the defence that you filed?

[walshy76]

I filled that I was disputing the full amount owed & I believed the agreement was not correct.

 

Also I have noticed I have been charged for insurance which on the form the box states please tick & sign if you want this & I never but still got charged for it.

[jonni2bad]

Walshy - it is important that we know the precise wording used in all event - just stating that you entered some information is not enough -please type out the precise wording used in the original Particulars of Claim against you, and your Defence.

[walshy76]

Walshy - it is important that we know the precise wording used in all event - just stating that you entered some information is not enough -please type out the precise wording used in the original Particulars of Claim against you, and your Defence.

 

 

Ok, I will be more precise, sorry if I haven't been. I am dyslexic & struggling with reading all the forms / paperwork.

 

Particulars of claim agaisnt me states - An order for summary judgement agaisnt the defendant under part 24 of the civil procedures rules. The defendant does not have a realistic prospect of successfully defending the claim.

 

(Attached was a letter which I typed out above)

 

My Defence - I am disputing the full amount owed and I believe the fixed sum credit agreement sent to me is incorrect.

 

I hope I have anwsered your questions, apologies if I am a bit slow on all of this.

[jonni2bad]

Not a problem - we just need to know the very fine details.

 

The part above that you have refered to as the Particulars of Claim (PoC) are from the latest documents - this is an application that the Claimant has made against you but is not the original claim form. We also need to know the wording on the original claim form which will look like this...

 

[ATTACH]5268[/ATTACH]

[jonni2bad]

or this, if you can't open the pdf file...

 

[walshy76]

or this, if you can't open the pdf file...

 

Ah right, yes I have it here in from of me

[walshy76]

Particulars Of claim

- the claimant claims payment of the overdue balance due from the defendant under a contract dated on or about 19/09/06 in the sum of £1600.03 Particulare ac no **********

16/10/2008 default balance 1371.42

16/10/2008 collection charge 228.61

post refrl cr NIL

Total 1600.03

[walshy76]

Based on the information supplied & the agreement I have posted up does anyone know if this is enforceable? I need to type up my letter & understand everything ready for court on Tuesday morning. Thanks

[Ragtaggeorge]

Wait for the site team to get back to you later today but in my amateur opinion it looks superficially enforceable.

The only exception may be legibility the copy they sent you should be identical to the document they show at court. I could not read yours even when blown up. If the site team do not get back to you in time go with this defence. Show the judge the copy they sent you and demand to see the original document. If the original is illegible it is unenforceable, quote the passage below at the judge. Also if your document is different from the copy sent to you point out this made your defence impossible as you did not have access to the documents that should be 'true' copies as specified in the 1983 regulations. http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1409&d=1193876017 ' 61.--(1) A regulated agreement is not properly executed unless-- (a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and (b) the document embodies all the terms of the agreement, other than implied terms, and © the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.' http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html Bon chance

Edited January 5, 2009 by Ragtaggeorge
Freudian slip

[walshy76]

Thanks - I will do some reading on these links. Can anyone advise if it should have on the document cooling off period details, and it refers to turn over & read clause 3.5 & 3.6 these arn't supplied - does that mean anything?

[42man]

Walshy one of the team has said this.... hopefully this might be of some help to you...

 

It says the cheque (loan presumably) is 1483 payable in 24 monthly repayments of £82.63 which gives £1983.12, the figure on the lower table (except the 12p is missing).

 

However, this figure includes £288 in insurance according to the table which leaves £210 unaccounted for. the agreement says it's an interest free loan.

 

The insurance payments are included in the repayment figure.

 

Now, this is a cash loan agreement - a fixed sum, unrestricted use, debtor-creditor agreement to be precise.

 

The insurance part is a a fixed sum, restricted use, debtor-creditor-supplier agreement.

 

Therefore, under s18 of the CCA 1974, these should be treated as 2 seperate agreements. That means that the prescribed terms at least should be stated seperately. As the monthly payment is lumped together, this requirement is not met and both agreements (loan and insurance) are not enforceable.

 

Then there is the other fact that the insurance is added but the signature box for it is not signed.

[Ragtaggeorge]

You are spolit for choice now. Use all of it even my inadequate contribution. Judges fancy different things depending on the weather ;¬)

Let us know how you get on.

[walshy76]

Walshy one of the team has said this.... hopefully this might be of some help to you...

 

It says the cheque (loan presumably) is 1483 payable in 24 monthly repayments of £82.63 which gives £1983.12, the figure on the lower table (except the 12p is missing).

 

However, this figure includes £288 in insurance according to the table which leaves £210 unaccounted for. the agreement says it's an interest free loan.

 

The insurance payments are included in the repayment figure.

 

Now, this is a cash loan agreement - a fixed sum, unrestricted use, debtor-creditor agreement to be precise.

 

The insurance part is a a fixed sum, restricted use, debtor-creditor-supplier agreement.

 

Therefore, under s18 of the CCA 1974, these should be treated as 2 seperate agreements. That means that the prescribed terms at least should be stated seperately. As the monthly payment is lumped together, this requirement is not met and both agreements (loan and insurance) are not enforceable.

 

Then there is the other fact that the insurance is added but the signature box for it is not signed.

 

Hi, I am confused now! I have double checked the paperwork & it doesnt class it as insurance but a 5 year leather care the insurance bit above this was for anti stain which I didnt need as that was for fabric & my sofa was leather. That signature box was for anti stain not for leathercare.

[ukaviator]

You should take some notes to jog your memory Walshy. As 42man has said this is not enforcable.

 

This type of agreement falls within s18, it means that as defined in s18 (2) CCA that the document is to be treated as 2 separate agreements and each agreement must have its own prescribed terms for each part.

 

Each piece of credit must have its own term stating the amount of credit, repayments and all other statutory info, in addition the PPI policy would need to have a term stating the Cash Price of the policy, due to it being a restricted use debtor creditor supplier agreement.

 

If the agreement fails to correctly set matters out in accordance with s18 then the lender risks falling foul of the form and content requirements of section 60 CCA and could be improperly executed, as set out within section 61(1) (a) CCA 1974, this is then unenforceable.

 

You have two agreements within one document, so there must be a set of prescribed terms for each piece of credit. It is permissible to add the prescribed terms together and then state them as total amounts, but they must be also stated in their separate parts. It would need two signature boxes after 31st May 2005 also, one for PPI and one for the loan.

 

The monthly repayments for the main loan and PPI should be shown separately not lumped together. Hope this helps. . .

[walshy76]

UPDATE:- Went to court this morning. No where as near scary as we thought it would be. The judge said that he would be re-scheduling as proceedures were not adhered to & the courts didnt allow us the 14 days from receiving the paperwork to having the court date. Also, he said there were several technicalities that he told the solictor to go away & find more info about & in the meantime advised me to get myself a solictor for the next hearing which will be for 1hr 15 mins. Thanks for all advice so far, hopefully this will be resolved shortly.

[42man]

Walshy....will you be hiring a solicitor ? If so make sure he/she knows the CCA74...