Me vs marlin in court next monday HELP

[Spamalot]

oh dear....HFC got it wrong again:( dodgy default notice= unlawful termination of agreement....bad news for them....EXCELLENT news for you!!

[I've got no money]

the statements are from feb 06 - may 08 the charges are - default fee £40, late charge assessment £25, overlimit chg assessment £25,

the default notice (dated 17/10/07)

1. provision of agreement breached:

(a) payment of the minimum monthly repayments on the payment dates.

2.nature of breach:

(a) you have failed to pay the minimum monthly repayments totalling £4580.74

3. Action required to remedy

payment of the minimum monthly payments, namely £4580.74 referred to in 2(a) by 05th november 2007

 

Ok lets take it stage by stage - as a starting point - for a DN to be valid it must comply with the rules:-

 

Service you must have 14 days after the date of service. If the DN is sent by first class post service is deemed to take place two days after posting so that would be 19th - so 14 days from the 20th. If sent second class its' 4 days after posting so it would be the 21st for service with 14 days from the 22nd. If they sent it first class post it complies with the rules if they sent it 2nd class it doesn't - there needs to be evidence from HFC when and how it was posted.

 

The contents of the DN - I would argue that the DN is invalid as firstly it asks for payment of the minimum monthly amount when actually it wants repayment of the whole balance and secondly the sum claimed is wrong as it includes unlawful account charges. Look at post 30 - I've explained how I think you deal with the DN sums being wrong

Edited May 10, 2009 by I've got no money

[Spamalot]

It seems your case mirrors mine in many ways...sadly for me my CCJ was given before I discovered CAG and am now fighting to get it overturned.

It also seems that HFC sold phoenix a lot of unenforceable cases which is why they are trying the route of CCJ to CO asap to get the debts secured.

Your default notice is not valid due to incorrect amounts stated regardless of whether it includes the charges or not so therefore Marlin terminated the agreement unlawfully and have no right to take court action.

 

The NOA at this stage appears to be invalid too due to discrepancies in the dates .

As far as the CA is concerned I'll leave that in IGNM capable hands cos I haven't seen hide nor hair of mine and since my 'agreement' dates back to 1999 I doubt I will!!.

 

Looks to me you've got a good defence.

[I've got no money]

So in terms of the case generally I really do need to see your defence as I think that it's going to need amending.

 

In terms of tomorrow I think that you need to argue that:-

1. The need for the actual original agreement - there is not a signed agreement that complies with the Consumer Credit Act and it is irredeemably unenforceable

2. The amount claimed is wrong as it contains money pursuant to unfair contract terms and/or penalty clauses which are not binding on a consumer

3. In consequence the DN is invalid and the whole claim falls

4. The NoA - I'm a bit confused are you saying that you got the first letter which said the date of the assignment was may but that they say they sent you a letter saying it was July - because if you are then tell the court that and you'll find that the NoA is invalid as it has the wrong date on it. If they say that they sent you another letter out that letter must either have been sent registered post or hand delivered by them if it wsasn't unless you have acknowledged receipt they cannot prove service and the whole proceedings faiil.

 

Can I suggest that you read my skeleton - I've already given you the link to it and that you then re-read all of this thread and ask us if you want anything clarifying.

 

I should add that there may be other things wrong with the agreement, notices etc but without seeing them its' a bit difficult

 

Is that OK

[rochdalecowboy]

So in terms of the case generally I really do need to see your defence as I think that it's going to need amending.

 

In terms of tomorrow I think that you need to argue that:-

1. The need for the actual original agreement - there is not a signed agreement that complies with the Consumer Credit Act and it is irredeemably unenforceable

2. The amount claimed is wrong as it contains money pursuant to unfair contract terms and/or penalty clauses which are not binding on a consumer

3. In consequence the DN is invalid and the whole claim falls

4. The NoA - I'm a bit confused are you saying that you got the first letter which said the date of the assignment was may but that they say they sent you a letter saying it was July - because if you are then tell the court that and you'll find that the NoA is invalid as it has the wrong date on it. If they say that they sent you another letter out that letter must either have been sent registered post or hand delivered by them if it wsasn't unless you have acknowledged receipt they cannot prove service and the whole proceedings faiil.

 

Can I suggest that you read my skeleton - I've already given you the link to it and that you then re-read all of this thread and ask us if you want anything clarifying.

 

I should add that there may be other things wrong with the agreement, notices etc but without seeing them its' a bit difficult

 

Is that OK

 

 

ive just noticed that the last statement that shows any charges is march 2006

[rochdalecowboy]

Ok lets take it stage by stage - as a starting point - for a DN to be valid it must comply with the rules:-

 

Service you must have 14 days after the date of service. If the DN is sent by first class post service is deemed to take place two days after posting so that would be 19th - so 14 days from the 20th. If sent second class its' 4 days after posting so it would be the 21st for service with 14 days from the 22nd. If they sent it first class post it complies with the rules if they sent it 2nd class it doesn't - there needs to be evidence from HFC when and how it was posted.

 

The contents of the DN - I would argue that the DN is invalid as firstly it asks for payment of the minimum monthly amount when actually it wants repayment of the whole balance and secondly the sum claimed is wrong as it includes unlawful account charges. Look at post 30 - I've explained how I think you deal with the DN sums being wrong

 

 

14 days from 22nd oct would be 5th nov so they are ok with that aren't they

[Craftygirl42]

No advice to add, but wishing you good luck tomorrow

[I've got no money]

Only if they sent the DN by first class post - we don't know when it was sent - Marlin can't tell you because they don't act for HFC - if it was sent 2nd class it would be the 6th of November which is too late

[Spamalot]

Are you relying on your own statements or ones that you have got from a SAR response?

[rochdalecowboy]

Only if they sent the DN by first class post - we don't know when it was sent - Marlin can't tell you because they don't act for HFC - if it was sent 2nd class it would be the 6th of November which is too late

 

 

2nd class 14 days from 22nd (31 days in oct) would surely be the 5th nov wouldn't it

[I've got no money]

ive just noticed that the last statement that shows any charges is march 2006

 

The OFT started an investigation in 2005 - they published a report in April 2006.

 

They (HFC) clearly knew that the charges were unlawful so they stopped adding them. What they should have done is refunded the earlier charges.

 

The issue is that the law says that an unfair term is not binding against the consumer. This is an application to strike out - the court can't, at this stage get into a determination of whether or not it actually is an unfair term - its' enough for yoy to cast doubt on it.

 

If you go to the OFT website and search credit card charges you'll find there are several documents - the one you want is 40 pages long and was produced in April 2006 - print it out and take it with you to court

[rochdalecowboy]

Are you relying on your own statements or ones that you have got from a SAR response?

 

 

I put in a defence i got from this site many months ago, before the 1st case, i turned up for court (naievely) not realising the need to also do a witness statement, i just told the judge i wanted to rely on my defence and that as they were taking me to court it was up to them to prove that i owed them the money. The judge was ok with that , when the case was adjourned he just asked marlin to get the original agreement and for them to produce a new witness statement, he didn't ask me for one.

[Spamalot]

The OFT started an investigation in 2005 - they published a report in April 2006.

 

They (HFC) clearly knew that the charges were unlawful so they stopped adding them. What they should have done is refunded the earlier charges.

 

The issue is that the law says that an unfair term is not binding against the consumer. This is an application to strike out - the court can't, at this stage get into a determination of whether or not it actually is an unfair term - its' enough for yoy to cast doubt on it.

 

If you go to the OFT website and search credit card charges you'll find there are several documents - the one you want is 40 pages long and was produced in April 2006 - print it out and take it with you to court

 

The reason I asked whether you are relying onyour own statements or SAR printout is because HFC continued to add charges to my account up until March '07.

[Spamalot]

I put in a defence i got from this site many months ago, before the 1st case, i turned up for court (naievely) not realising the need to also do a witness statement, i just told the judge i wanted to rely on my defence and that as they were taking me to court it was up to them to prove that i owed them the money. The judge was ok with that , when the case was adjourned he just asked marlin to get the original agreement and for them to produce a new witness statement, he didn't ask me for one.

 

Yeah sorry, I wasn't clear in my request:-) I meant Marbles monthly statements....they stopped sending me mine about 6 months before they sold the debt and that is part of my defence....i.e I have no idea how much I allegedly owe...didn't know if you were in the same boat there too.

[I've got no money]

rochdalecowboy can you just check something for me - do the terms and conditions that they've supplied have default charges on - if so are they the same amounts as you were charged

[rochdalecowboy]

rochdalecowboy can you just check something for me - do the terms and conditions that they've supplied have default charges on - if so are they the same amounts as you were charged

 

 

no mention of any amount for charges

[I've got no money]

Then either there is no contractual basis for the charges OR as is much more likely the document they've supplied is the up to date terms and conditions and so it CANNOT have been on the back of the document you signed

[Spamalot]

Hi Cowboy,

Please also check your POC.

Marlin/Phoenix have a habit of also trying to claim interest after judgement. They are not entitled to do this either as if the agreement ever turns up it would have been a regulated credit agreement. They may not have tried this one on you as your alleged debt is below £5000, but do check as they do go for every trick in the book.

[rochdalecowboy]

Just back from court the judge has given them judgement, the judge was different to the last hearing and he was a complete ****, i got the feeling he was against me from the moment i entered the room, he didn't see it as a problem that they didn't have the original agreement and thought that there explanation was ok that they just didn't have it, he dismissed my claims re the default notice, and just kept going on about using "probabilities".

Gutted but would like to thank all of you who took the trouble to help me i appreciate it so much

[supasnooper]

I'm sorry to read this but it's unfortunate that you got a judge who got out of bed on the wrong side.

[I've got no money]

I think that you need to seriously consider an appeal

[DonkeyB]

'Probablilities' don't come into it. Documents, proof and law do. Appeal.

[I've got no money]

'Probablilities' don't come into it. Documents, proof and law do. Appeal.

 

I'm with DonkeyB - the form you need is an N161

[B3rty]

Rochdalecowboy

 

Really sorry to hear your news the judge is wrong and you can appeal...BTW did you present the facts using s.127(3) with the relevant case law, Bennion ect?

[rochdalecowboy]

the judge didnt seem interested in the law, he basically took the opinion that i used the credit card so ive got to pay it