SB100 v HFC - is this default compliant? Court/Restons ***WON***

[SB100]

Yep, I accepted the unlawful repudiation when they defaulted it- its never been acknowledged though.

 

The CRA's have reported the account as terminated for some time now, and, as we all know, they can't issue a DN on the account as it no longer exists.

 

I doubt I can get a letter to them before the hearing now though, I'm not prepared to fax or email as I'll give them avenues to pressure me though. At the moment they can only get to me by letter.

[diddydicky]

Yep, I accepted the unlawful repudiation when they defaulted it- its never been acknowledged though.

 

The CRA's have reported the account as terminated for some time now, and, as we all know, they can't issue a DN on the account as it no longer exists.

 

I doubt I can get a letter to them before the hearing now though, I'm not prepared to fax or email as I'll give them avenues to pressure me though. At the moment they can only get to me by letter.

 

i often fax letters to restons and the like, then immediately turn the auto fax receive off

 

The last line of my letters state

 

I am unable to receive incoming faxes!

[SB100]

I'd have to do it from work and my boss wouldn't be pleased if they decided to reply.

 

I could send it from Spar, but wouldn't want them replying to that number and everyone knowing my business!

[diddydicky]

I'd have to do it from work and my boss wouldn't be pleased if they decided to reply.

 

I could send it from Spar, but wouldn't want them replying to that number and everyone knowing my business!

 

shops fax machines are not turned to auto answering- you have to ask them to turn it on to receive a fax

 

tell them in the letter that you have no fax facilities and have used a shop fax and therefore they must not respond by fax!

 

 

if they did they would commit an (serious) offence under the data protection act

 

you could give them a telephone number to contact you on

 

if you want them to withdraw you need to give them the means to do so

 

start off any incoming telephone conversation with

 

please confirm this converstion is without prejudice

[SB100]

First draft..

 

/deleted/

Edited January 27, 2010 by SB100

[Pipster2797]

I would be careful giving out your e-mail addy as they can use it to serve docs at the last minute. I'm sure someone advised me against it in the past.

[SB100]

Fair point, I'll go and get a 99p tesco sim card. Thanks

[robcag]

Hi SB

 

Sorry, but I've not kept up with your thread lately due to not reading/posting on CAG recently because I've been kind of snowed under with my own problems, two of which have now turned into court claims, but I'm here because you PM'd me about your 'interesting' development (the letter).

 

Guess what just popped though my letterbox...

 

 

It is HFC, yes. Feb 1994. Following yours too... think I just had a bit of a result...

 

That letter seems to me like typical Restons waffle. "The money has been borrowed, the money has been spent, and now the money must be paid back ... " were the words used by Restons barrister against me at an Application hearing (called due to a defective DN, as reported in my thread), which turned out to be nothing but hot air as the Judge certainly didn't agree.

 

I suspect it's probably a last ditch attempt to try and squeeze at least something out of you before they finally capitulate (i.e. discontinue at the last minute).

 

As you said in your PM (that I might find the letter interesting), the letter is kind of reminiscent of the one I received in which they (HFC allegedly , but more likely Restons, as they're the tail wagging the HFC dog) admitted the DN was defective and they couldn't win as matters stood.

 

As you know, they were hoping to re-issue a valid DN and start again with me. I'm not 100% sure that I convinced the Judge that the agreement had been terminated and therefore could not be defaulted as it no longer existed, but I had a damned good try. That was in the days before the excellent ammunition provided by x20 etc. so I don't see any reason why you can't give a bl00dy good argument in court if necessary. Personally, as I said above, I think there's an excellent chance of a discontinuation.

 

My financial circumstances are different to yours in that I wouldn't be in a position to be able to offer 5% to 10% as a settlement, so I'd have no option but to just go through with the process which has been mapped out, i.e. court on Friday. Besides, you're in a winning position so why offer anything, your decision obviously though.

 

I would be careful giving out your e-mail addy as they can use it to serve docs at the last minute. I'm sure someone advised me against it in the past.

 

I think that may have been me Pipster, I certainly wouldn't give them easy access to myself, which the slimeballs would only use to their advantage.

 

Good luck for Friday SB, hopefully it won't get as far as having to argue your case!

 

Cheers

Rob

Edited January 27, 2010 by robcag
Change order of a couple of paragraphs

[robcag]

PS

 

Just me being me I guess, but I'd be inclined to ignore the letter!

 

Cheers

Rob

[pedross]

I think you have got them SB

 

This is all bluff in my opinion and I don't think they have any intention of sitting in the court. They are hoping that you are panicking at this late hour because you have not heard from them and you think they are up to something.

 

18.30 is a funny time for a letter to pop through the door.

 

They are probably hoping you will phone and reach an agreement and that will give them chance to bully you into agreeing more than you would do given chance to think about it. Thats why its late arriving.

 

They know full well that the agreement is terminated and they always say that they can issue another DN knowing full well that they cannot. They have done it to so many people its wearing a bit thin.

 

I agree do not fax them and definately do not give them an email address. Why not send them a letter 1st class post tomorrow with a simple statement that you thank them for the letter recieved at 6.30 pm om 27 Jan. However, you are dissappointed with the contents as both Restons and yourself are fully aware that they cannot serve another valid DN at this stage due to the fact that the agreement has already been terminated. There is therefore no point in taking the contents of the letter seriously.

 

If it did go into court (unlikely) and they said they had sent you a letter to try and settle you could honestly say you sent a reply by return post but had not heard from them since.

 

Get some more opinions this is just what I would do. But I think you could be wasting £300 + a costs or wasted costs order but you must do what you feel comfortable with.

 

Pedross

Edited January 27, 2010 by pedross

[SB100]

I'm undecided, so I'll sleep on it. Thanks for the contributions

[gill5blue]

Hi SB

I have just come accross your thread, good luck for the 29th January, mine is for the 2nd Feb, my thread is 'claim from MBNA', I recieved a similar letter last week, I decided to just ignore it, I got this far, may as well go to court, if the judge decides I have to pay, so be it. If the judge decides I don't, yipee, another success for CAG, I will have experienced 'court' and Restons and MBNA may stop pestering other unfortunate souls who only have an application form.

GILL5BLUE

[SB100]

Good on ya, Gill, I'll let you know how I get on...

[diddydicky]

as you are receiving other and different advice that you asked me for by pm i thought i should post up my pm reply to you on the forum so that others can dispute /challenge it

 

 

You can of course, as has been suggested stick two fingers up and offer nothing - your decision of course but as 10% of the debt does not amount to a great deal- based on what you told me 5% is worth - this is my advice

 

IMO there have not been ENOUGH clear cut decisions on defective DN's to get "too" cocky about one's chances of success.

 

you also need to remember that their offer was without prejudice save as to costs which means that IF you lose - then that letter will be put before the judge and could bite you

 

In your case there are clearly several ways to "skin a donkey"

 

your choice

 

 

Thank you for your letter of XXXXXXXXXX

 

I do not share your assessment of the situation.

 

Having already accepted your unlawful repudiation of the agreement some time ago, at which point the agreement was terminated I would suggest that your client cannot now, or ever serve a valid Default Notice, Post Termination.

 

Further these are points of law which your client, as a major finance institution is expected to be aware of and I would suggest that your client would do well to heed the words of the judge in BOS v Robert Mitchell in respect of such an institution continuing in similar circumstances.

 

In response to your offer to resolve the matter, and without admitting any liability to your client I would be prepared to dispose of the nuisance value of your clients claim with an offer of 10% of the amount claimed by your client in full and final settlement of all matters between us and with costs to date borne by each party to the proceedings, this being equivalent to an amount that I would otherwise use for legal representation.

 

Please do not take this offer as a sign of weakness or resolve on my part.

 

Kindly note that due to the lateness of your offer I am obliged to use a newsagents fax machine therefore please do not attempt to reply per fax

 

You may contact me on the number above on the strict understanding that any telephone conversation will be strictly without prejudice.

 

Yours sincerely

 

 

XXXX

Edited January 27, 2010 by diddydicky

[citizenB]

Hi SB, in response to your pm.

 

Sadly this is a decision only you can make and I am afraid I am sitting on the fence here.

 

This trick has been used by many solicitors and in particular Restons. They know damn fool well they CANNOT issue a second DN.. the account is terminated and by all accounts you accepted this.

 

However, if you dont feel confident enough to go through with this, then perhaps diddydicky has a good point.

 

They certainly have not left much time for you to contact them unless you phone or fax..!!

[summerbreeze]

Hi SB maybe this site can help you

 

Faxtastic - Fax-to-Email, Email-to-Fax, Fax-to-mail, Mail-to-fax, Mail2Fax, Fax2Mail, UK Fax Mail Integration

 

you can send a fax from your computer I believe

 

SB

[supasnooper]

I take the view of what robcag has written.

 

If Restons were so sure of their case, they'd be itching to get to court to batter you for the full amount plus costs. They'd also ask the Judge for a forthwith judgment so if you couldn't pay, they would proceed for a Charging Order.

 

 

This hasn't happened !!!!

 

Why ? Because they know they are stuffed.

 

They have also failed to comply with the Judges latest orders....not very clever really....which would be my first point to the Judge at your hearing.

 

I'd ask that you re-read the three threads (fairby's, robcag's and my own) that have gone the distance featuring Restons and their late submissions to defendants.....it is designed to spook you into submission.

 

I know it can't be easy for you to decide what to do as you are the one facing this; we can only offer advice from our experience.

 

I wish you well on whichever path you choose.

 

My tuppence worth.

[cymruambyth]

Good luck if you do go to court today.

[emandcole]

Have been following this keenly and hope all the advice and opinion has been helpful to you. Clearly the situation is far from straight forward although you have a very powerful argument against the claimant, which should with a decent judge get you the result you're after.

 

Agree that Restons are trying it on, they know they cannot issue another default and are trying a last ditch attempt to test your resolve. Annoyingly they have sent such rubbish out in the letter hiding behind without prejudice which sucks as would have been good to show it to the judge and query restons understanding of the default regulations.

 

I think what will be essential is forcing the point home that the default notice is a legal document and has to be correct in order for you to provide remedy. If the creditor cannot conduct such a simple process you should not have to suffer as a result of their incompetence.

 

Some advice from Surfaceagent below will be of great help I'm sure.

 

------------------------------------------------------------------------------

 

The DN is defective for failing to conform to the prescribed terms, or gives misleading information or at worse is plain nonsense so that the debtor does not know precisely what he has to do in order to comply with it and is consequently disadvantaged. Should the law disregard the fact that the creditor put the debtor at a disadvantage and thereby at risk the creditor might lawfully terminate the agreement?

 

'This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step". [per Kennedy LJ in Woodchester v Swayne [1998]]

 

Moving on, if the debtor receives a notice from the creditor in which the creditor expressly states the contract is terminated, what is the debtor supposed to think? Would the law regard him as likely to think the creditor had terminated the contract or would the law regard him as thinking it had not terminated because strictly speaking, the creditor had served a default notice which was not in accordance with prescribed terms?

 

Or where perhaps the creditor did not expresly terminate but sent the bully boys over to demand the keys to the car. What was the debtor to think then? Would the debtor think the creditor had terminated?

 

It seems to me on the basis of the passages below, the courts will be ready to hold a creditor to his words and actions.

 

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".

[per Lord Wilberforce in Gallie v Lee (1971)]

 

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'

[per Scott LJ in Norwich & Peterborough Building Society v Steed (1992)]

 

In short, the creditor is bound by his deed. All that is required is for the debtor to accept the creditor's termination. He can write saying 'thank you I accept you termination' or he can conduct himself in a way in keeping with that termination. Not paying the instalments would be in keeping with an acceptance of the termination.

 

[4] The fiction of the Second DN and the Enduring Obligation

The service of any second default notice, at a time when the contract is terminated, owing to the wording of the DN in its prescribed form, would perpetuate the fiction that the contract endured. The same can be said owing to the provisions of section 89 of the Act.

 

The form of words in the DN incorporate text in order to meet the intention of section 89 of the Act which provides:

 

'If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as not having occurred.'

 

In other words, in serving the second DN, the creditor would be suggesting:

 

[a] an obligation had persisted post termination by which the debtor was bound to make instalment payments (ie post-termination 'arrears'), and

that if payment of those 'arrears' was made, an obligation to make future instalment payments would endure.

 

The obligations at [a] and are obligations enduring during the currency of the agreement. Besides maintaining the fiction of the enduring agremeent as I say, it seems to me any second DN would be bound to be defective for over-stating the sums due. The creditor can not state as an amount due for 'arrears' of instalments that which he said in consequence of his termination was no longer due and payable by instalments. If the creditor sought to use a form of DN which made sense by getting round the fact the agreement had been terminated, the DN would not be in prescribed form.

 

The only way in which a second DN would be of value to the creditor would be where the contract had been re-instated. If the debtor has accepted the termination, re-instatement requires the consent of the debtor.

 

The net result is the agreement is terminated for all time. The creditor's remedy is now limited by section 87(1). All that is left for the creditor to recover is the sum truly in arrear at the date of the default notice.

----------------------------------------------------------------

 

All the best with this

[SB100]

Curiously I've had nothing from Restons to say they're resisting my Strike Out application...

[citizenB]

Curiously I've had nothing from Restons to say they're resisting my Strike Out application...

 

[emandcole]

Can't think why that would be

[pedross]

Why don'y you phone the court and point out that you have a hearing tomorrow but you believe that the claimant may have decided to discontinue due to the without prejudice letter you have received. Can they confirm.

 

Bit of a gamble but Reston's will probably not expect you to do that and they may have already thrown in the towel rather than risk annoying the court by doing it on the day.

 

Pedross

[diddydicky]

would be on dodgy ground there since he would not be able to reveal to the court what the letter contained.

 

if it is a tactic designed to unnerve him he has , if he did not respond- just got to carry on regardless and show that it has not unnerved him

 

they may well send a locum to court to discontinue on the court steps having first been instructed to test out his resolve with a pre trial "chat"

 

my advice to him would be to offer to listen to anything they might have to say but otherwise say nothing

[robcag]

Hi SB

 

Any further info/news?

 

Hope you have something good to tell us!

 

Cheers

Rob