Holmwoods/Lovetts Solicitor Claim

[gforce2k]

Hi all,

urgent advice needed regarding a claim from Holmwoods Termtime Collections and how to defend against it.

 

HTC answered our CCA request early March with a signed application form with none of the prescribed terms, however they insist that their agreement falls outside normal regs as it's always 4 payments and not more than a year. However although they paid each term's school fees upfront we were paying £840 monthly to them, i.e. 12 payments so does this mean they are supposed to be regulated and have prescribed terms in any CCA?

 

Please, any help welcome as have very limited time to submit defence.

If it helps I will scan the agreement and post it.

 

Thanks,

gforce2k

[davey77]

Sorry can't help specifically but bumping your thread... yes scan the agreement and post it up if you can.

[millstone]

I've got similar issues with holmwoods termtime, and would be interested to hear how you get on.

 

 

 

Found this on the oft website about which agreements are exempt form CCA:

 

 

 

There are a number of exemptions from the 1974 Act. These are principally set out in section 16 and the Consumer Credit (Exempt Agreements) Order 1989 as amended.

In particular, there are exemptions for:

 

• first charge mortgages regulated by the Financial Services Authority
  
• some second charge mortgages, depending upon the nature of the agreement and the identity of the lender
  
• agreements for goods or services where the consumer has to repay the credit within one year in four payments or less
  
• charge cards and similar agreements where the consumer has to repay the outstanding balance in full at the end of each period
  
• credit union agreements where the APR does not exceed 26.9 per cent
  
• credit agreements offered to a limited group of borrowers where the APR does not exceed a specified 'low cost' rate (set by reference to average base rates)
  
• certain agreements relating to overseas finance.
  

[gforce2k]

HTC settle each term's bill direct with the school for the 3 terms.

We've been paying on a monthly basis approx £840 per month, so surely that falls within the bounds of the '74 Act.

Although that's technically 4 payments per term it is a rolling agreement across the year so 12 payments per year.

 

Each new term's bill is slightly different with mid-term additions for outings etc. but no new contract is signed.

 

I have attached the original agreement (which has little to do with the arrangement to pay on a monthly basis) but it seems to be only thumbnail size although scanned as A4.

 

Interested in any thoughts you may have.

Regards

gf2k

[42man]

What are the POC's ? (Particulars Of The Claim) ??

[gforce2k]

Hi 42man,

POC's are:

"The claimant claims 990.28 for money lent by the claimant to the defendant for payment of school fees and the service charges thereon.

The Claimant's claim includes 150.00 for costs due under the agreement. The Claimant also claims interest pursuant to contract or under S69 County Courts Act 1984 from the due date of each unpaid instalment to the date hereof at 4.00% being 11.66 and further interest until payment or Judgement at a daily rate of 0.09. The Consumer Credit Act does not apply as the agreement is an exempt agreement by vi0rtue of Section 16 (5)(a) of the Act."

HTC did not provide any supporting documentation.

 

Not sure what to mention in defence but first thoughts are:

*I can't see how they came to £150. The application leaflet terms mention a £12.50 charges for each non-direct debit payment and £20 for each dishonoured DD. We paid by DD all the way until november last year so no way they could calc 12 mths worth? (£150), equally can't see how the £20 could apply either.

* The same terms mention 3% interest not 4%.

 

In fact the only perceived continuation of the agreement is a letter after each term's bill with the wording:

 

"We are pleased to confirm that we have been advised you wish to enter into a further agreement for your Fees and confirm that the Fees will be paid in full on behalf of ..... School.

The fees are payable over 4 instalment(s) and your Direct Debit amount will be £840.28 with effect from 1st September 2008 or 10 days from the date of this letter which ever date is the later. Subsequent payments will be collected on or shortly aftyer the 1st of each month finishing in December 2008. If this date falls on a weekend of Bank Holiday, the collection will be made on the next working day.

A charge of £20.00 will be made in respect of any dishonoured Direct Debit.

Should you have any questions regarding the Direct Debit for your Fees, please do not hesitate to contact.....bla bla."

 

The only thing ever signed was the original application form which I'm trying to post.

 

Your views welcome.

cheers

gf2k

[gforce2k]

Update:

 

Bad news I'm afraid, I had a judgement against me on 28th April from HTC holmwoods termtime collections.

 

As mentioned they insisted their contract did not fall under CCA rules and no-one on CAG seemed to have experience on the issue so was struggling to come up with a defence. (eventually I missed the deadline to file defence)

 

really annoying as this is the ONLY credit agreement that seems to (they say) fall outside the CCA rules. Must say I'm kicking myself that I didn't at least put in a rudimentary defence, I'm sure there must be some loophole.

Anyone out there had any luck at all with them?

millstone how did you get on?

 

this is going to be my first and only ccj ( i hope) so if there's any remaining avenue for me to appeal (or even defend) I really would like to hear it. Judgment is for around £1200 which I haven't been able to pay within the 28days to get it removed so ANY remaining advice on defence/appeal welcome!

 

Deadline is fast approaching: 28/04/09+28 days is 26th May? and payment has to be 4 days before deadline (end of this week?) so I need to do something pronto or risk enforcement.

To change to installments should I request to vary the order or do I just call them directly to make arrangements? if so how do i request variance?

 

Many thanks,

gf2k

[gforce2k]

hi, please anyone if you can help...

 

in short situation is as follows:

claim served in april

missed defence deadline so unable to file online

judgment made 28th april c£1200

I should have the funds to pay it all off in the next 10 days or possibly less.

 

Either way this will be after the payment deadline leaving me with a CCJ for 6 years (not my favourite option).

So it's either somehow delay/put on hold the payment deadline/ccj registration so that I have a chance to clear it before a new deadline or I have to agree an arrangement which still means a CCJ for 6yrs!

 

I REALLY want to avoid a CCJ being reg'd for 6 yrs so is which method should I use to delay even for a couple of weeks.

 

Should I file an N245 form for a suspension or is variance better? Either would suit I suppose if they both mean delaying the ccj becoming permanent record for 6 years.

 

Or can I set aside the judgment somehow?

 

The court advised that I speak with HTC to try to set up a mutually agreeable arrangement and have the judgment stayed (right term) so I'll try that tomorrow.

 

Are firms like HTC expected to be flexible even after obtaining judgment or do they usually dig in once they have it?

 

Sorry for all the questions but as is typical in these things time is running out fast and I don;t want to get caught with my trousers down again like with the late defence.

 

cheers,

 

gf2k

[r&b]

The court advised that I speak with HTC to try to set up a mutually agreeable arrangement and have the judgment stayed (right term) so I'll try that tomorrow.

 

hi sorry ur not getting much help here. i cant give u any concrete advice im afraid but if u follow the courts advice and say to HTC that u will settle in full by a certian date IF u can avoid the registration of the judgment,otherwise u will be pursuing a redetermination hearing for a small monthly payment perhaps? it wud not make much sense for them to ignore this as they will be getting their money in the shortest possible timeframe, which is after all what they re after.

not much use i know but perhaps someone might chance by who knows more on this matter.

gd luck.

[davey77]

gforce... when it's urgent (especially Court stuff) click on the red triangle for help at the bottom of the posts.

[steven4064]

You could go for a set-aside but you would need a good reason - "I forgot" wouldn't do, for example.

 

What is the reason you didn't get the defence in in time? How compelling is your defence?

 

Otherwise, what r&b said.

[42man]

And this is how you get the process going - Removal of CCJ's - Step by step guide to the process

[gforce2k]

Thanks for the advice everyone,

 

I spoke to HTC but they told me to speak to Lovetts.

lovetts guy was very unhelpful said send in offer by 5pm but there's no way to avoid the ccj being registered unless paid within 30 days.

I told him the court had said if i agree a payment with the claimant and both parties write in then the ccj won't be registered, but lovetts guy said they must think I meant if I make a full payment before deadline. He said any arrangement beyond 30 days means ccj for 6yrs.

I tried your suggestion r&b but he just repeated i need to pay by deadline.

 

so as far as I can make out my options are now...

 

1) To stop CCJ being registered:

-pay by middle next week (unlikely)

or

-set aside using N244 (I would love to do this but the only reason i can think of is that I never received a default notice (htc have always insisted the agreement is not regulated (4 payments) does that mean DN not required? rules seem to indicate ANY loan or credit agreement so should apply shouldn't it?). Also, is it also possible to request to be set aside because I thought my defence had been succesfully logged in the online system but it didn't? If so how would you word the N244?)

Once I put the form in for the judgment to be set aside does this automatically stop registration of the ccj whilst being decided?

 

2) To get more time before CCJ is registered

-redetermination (i understand it pushes the case back into claim and delays registration?? how long is the ccj delayed? do i send in a form or a letter to the court? can i still do this after 14 days from judgment?)

 

3)CCJ registered but more time to pay:

-use N245 to vary the order to instalments instead

 

ANY action that delays the CCJ for a couple of weeks or more to give me the time I need to get payment together is worth considering. It doesn't really matter whether the action is successful or not, as long as it doesn't make the situation worse and provides a delay I'd like to hear about it.

Equally anything that allows me the opportunity to put in even a punt defence is worth it.

 

cheers,

a very grateful gf2k

[steven4064]

Why do htc insist the agreement isn't reglulated?

 

Can you have another go at posting the 'agreement' so we can seee it. THe best route is via photobucket.

[r&b]

im not sure but this may be of use:

 

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

 

in particular this section:

 

WARNING

If the judgment is set aside then all enforcement action will then stop. Enforcement action will not stop automatically just because you have put in the application. It is important that you ask for any enforcement action to be stopped or 'stayed' until your application is heard. You should include this request on the N244 application form when you apply for the judgment to be set aside.

 

seems to me if u actually make application to set aside, as it says, u can also ask for a stay on the N244, im assuming that means no registration until the set aside is heard. with the backlog in most courts it may give u enough time to sort urself out.

anyone else think thats rite?

[gforce2k]

thanks for getting back to me guys, excellent advice, i've followed up on both.

 

N244 seems best way to go at the moment but I want to get general opinion on the cca/ application before faxing & posting the completed N244.

 

The original HTC application was in a 2 part leaflet with a perforation down the middle.

Page 1 - General Info/Direct Debit Guarantee & Terms on back

Page 2 - Application form with Signature box & Picture on back

 

i've photobucketed the relevant docs:

This is the Application form they sent me in response to the CCA:

http://i609.photobucket.com/albums/tt176/gforce2k/CCASigned-HTC-Received20090306.jpg

Here are the terms from the other page of the application leaflet:

http://i609.photobucket.com/albums/tt176/gforce2k/CCASigned-HTC-200903062-1.jpg

 

see what you think...if I'm going to go forward with the setting aside I need as much reason as possible. if it's deemed their agreement IS regulated then perhaps I can use their statement that it's NOT as a reason to SA as well as the lack of DN? perhaps I can get an opportunity to stuff them with a defence based upon lack of prescribed terms etc.? My first posts on this thread go into more detail on the whole regulated/unregulated question and what could go into a defence.

 

I'm also scanning the letter they sent as well which first mentions their view that the agreement is not regulated. (reiterated in the PoS)

should be posted in the next 5-10mins once I've blacked out the personal bits.

 

cheers

gf2k

[gforce2k]

Hi,

Here's the CCA Request response letter from HTC:

http://i609.photobucket.com/albums/tt176/gforce2k/CCAReqResponse-HTC090226.jpg

 

Anyone know if they're right? Is this an unregulated agreement?

(see prev posting for link to agreement)

Does the DN rule apply to re & unreg agreements? If so i'll give that as a reason for setting aside on the n244.

 

As I mention in my first postings on this thread we paid 3 terms worth over 12 months without any new agreements for each new term just the one signed doc. Surely that deems it a continuous and therefore regulated agreement as it is more than 4 months of payments?

 

Any ideas anyone?

 

Cheers,

gf2k

[steven4064]

I don't think it is regulated. However, the default charges are unlawful so, if they have charged you any ofthoe, you can claim the amount of the claim is wrong or countercalim for the charges

[gforce2k]

hi,

the court isn't open today so perhaps someone can give me some last minute pointers filling in the N244 before I fax/post today?

As mentioned I want to delay the registration of the judgment or if not possible change the order to instalments.

 

my understanding is that filing the N244 will stop the registration and delay until a hearing with even flimsy reasons? or can it be refuse it out of hand?

 

after looking at various postings this is all i can think of to argue for set aside (need help with final wording for any you guys think would apply?):

 

 

N244

3. What order are you asking the court to make and why?

 

1) lack of DN (can still i use this even if deemed unregulated agreement?)

2) thought my defence filed ok online but turns out not, did have tech difficulties with browser so perhaps I can have another opportunity? (to give me an opportunity to defend-will they accept this or say i should have filed by post?)

3) the agreement IS actually regulated because we made continuous variable payments with no new agreement signed for each term's fees. 4)prescribeded terms missing

5)£150 costs don't relate to agreement and are incorrect, need clarification (also illegal as no DN?)?

*)Also need to ask for any enforcement action to be stopped or 'stayed' until your application is heard. (again any wording would be helpful)

 

I know some of the above are a bit of a reach but all I need is one that will get me the hearing. Any advice as to which you think may work will be greatly appreciated. This is my last day to get this in and I'm still sweating the details. Can't afford to get it wrong!

 

We're ina position now where we don;t have regular money coming in until an employment contract starts in september. can i also ask for a stay for 3-6 months? would this also be on the N244 or N245?

 

cheers,

 

gf2k

[r&b]

N244

3. What order are you asking the court to make and why?

 

1) lack of DN (can still i use this even if deemed unregulated agreement?)

2) thought my defence filed ok online but turns out not, did have tech difficulties with browser so perhaps I can have another opportunity? (to give me an opportunity to defend-will they accept this or say i should have filed by post?)

3) the agreement IS actually regulated because we made continuous variable payments with no new agreement signed for each term's fees. 4)prescribeded terms missing

5)£150 costs don't relate to agreement and are incorrect, need clarification (also illegal as no DN?)?

*)Also need to ask for any enforcement action to be stopped or 'stayed' until your application is heard. (again any wording would be helpful)

 

We're ina position now where we don;t have regular money coming in until an employment contract starts in september. can i also ask for a stay for 3-6 months? would this also be on the N244 or N245?

 

i dont know if im much help here in all honesty but ive dun a couple of these for my set asides on regulated agreements so ill tell u wot i think.

 

section 3. is asking what order u are asking the court to make and why? so u need to put in that u are a Litigant In Person seeking to have the judgment set aside on the grounds of:

XYZ

you would also ask here for the stay i would imagine tho 3-6 mths is pushing ur luck a bit as its down to the court process to determine that: "until your application is heard", so i wudnt mention a timeframe.

 

section 10. is where u put ur evidence to back up ur reasons in 3.

 

this is what i put in one of mine, might give u a basis to work from.

http://i615.photobucket.com/albums/tt231/robntanya/RBSMINTN244.jpg

http://i615.photobucket.com/albums/tt231/robntanya/RBSMINTN2442.jpg

http://i615.photobucket.com/albums/tt231/robntanya/RBSMINTN2443.jpg

 

there is also the point that any ccj that shows on ur credit file will show as settled if u pay it which of course is not ideal but must be looked at differently from an outstanding. just looking at the alternatives.

 

hope thats of some help.

[gforce2k]

thanks r&b,

 

just spoken to National Debt Line.

Apparently they generally poopoo the idea of set asides unless rock solid as costs can really mount up. They also said just because a stay in enforcement is requested there is no guarantee it will be awarded, at the courts discretion so potentially enforcement will happen while they're making their minds up.

Did your set aside get approved to go to hearing btw?

 

They believe the agreement is unregulated and therefore the DN argument is invalid.

I would have to show proof of not being able to process my defence online which is pretty much impossible so not much point.

***If anyone knows if anyone has had some luck with this let me know plz!!***

 

considering the above it looks like i'm going to have to take the hit on this one and go after a variation. I can't pay it all within the month and i don;t want bailiff's or charging orders.

 

The NDL rep advised me to speak to the court in the morning to find out if the claimant has already asked for enforcement (i.e. bailiff's warrant or charging order) and then put a request for variance in with a request for the bailiff's warrant to be stayed until the hearing.

 

However she did also said that as far as other forms of enforcement are concerned getting the N245 in first can be critical as you cannot request charging orders etc. to be stayed ONLY bailiff's warrants.

 

So next question is shouldn't I put the N245 in tonight by fax (the court haven't been open today so if a charging order application is in the post then I should beat it in?).

 

In which case is it ok to ask for ANY bailiff's warrant to be stayed on the N245 or do I have HAVE to establish there is one first and include the warrant number for the 'stay' to be considered/valid?

 

Cheers,

 

gf2k

[r&b]

sorry gf2k this is a tad beyond me as ive said b4. i was just trying to give u some options to explore.

if ur stuck, hit the red triangle in the bottom left of the post and ask a site team member who may be able to help further as they are more experienced.

really sorry i cant offer more...

just a thought could u try to ring them again and see if there is any way of holding off by gteeing them smth? stab in the dark there

[gforce2k]

Hi,

Any site team/legal gurus able to advise?

 

N244 set aside - can i base SA upon tech failure in online defence filing? any precedent/examples? (as unregulated agreement this is possibly my only option left)

I know v unlikely to work but does delay registration?

 

N245 variation - should i do this now or only if SA not allowed?

 

cheers,

 

gf2k

[caro]

..

Edited May 27, 2009 by caro
rubbish

[r&b]

just came across this on the linked page can this help..ideas anyone?

 

(5) The debtor may apply for an order that the money, if payable in one sum, be paid at a later date than that by which it is due or by instalments or, if the money is already payable by instalments, that it be paid by smaller instalments, and any such application shall be in the appropriate form stating the proposed terms, the grounds on which it is made and including a signed statement of the debtor’s means.

 

CCR ORDER 22 - JUDGMENTS AND ORDERS - Ministry of Justice