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


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Just spotted the collection charge (I'll bet it's around 16%), Restons are naughty and insist in sticking it on every POC even though they are NOT allowed to.

 

You must contest this is as well.

 

Collection charges are not allowed under OFT guidelines - http://oft.gov.uk/shared_oft/reports...dit/oft298.pdf

 

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Yep, you're quite right- about 16%.

 

I'm guessing that this is just a shot in the dark in the hope that I don't repsond or fight it, as there seem to be so many things wrong.

 

No CCA (just an application form with no prescribed terms), incorrectly worded default with not enough time to respond, then very vague particulars of a claim relating to a contract 'dated on or about...'.

 

Surely if I'd signed the contract and they had it then they'd know the date? I suspect that they know what date I 'allegedly' applied and thats all.

 

How on earth can they hope to get away with this- charges and all- when they must know its not allowed???

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How on earth can they hope to get away with this- charges and all- when they must know its not allowed???

 

Because if you dont defend then they will just click the button for judgement by default and thats it, As I understand it they then just need to advise the court how they want paying and judgement will be delivered to your door.

 

For every one person who does find this site, just imagine the number that dont and will either panic and admit the claim or just dont bother to respond.

 

S.

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Just noticed the amount on the DN is less than that stated on the summons (without the collection charge) by about £150. I assume this is relevant too?

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You are given upto 33 days from the date of the N1 claim form before a defence needs to be submitted, so it may be worth marking the 33rd day off on a calendar ( my calcs make it Wed 24th June ).

 

I would advise waiting to see if Restons comply with your CPR 31 request before submitting a defence.

 

No harm in you having a look round some of the threads to see how defences are constructed whilst you are waiting.

 

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Thanks for that.

 

Spent yesterday trawling through the various threads kindly indicated on here.

 

I'm away from next wednesday until the monday after so need to get my house in order.

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Hi, and thanks for all the help so far. Head is buzzing with all the information I'm trying to absorb.

 

Defence needs to be in by the 24th, but I'm panicing as I'm away from Wednesday this week 'til Monday next week, which literally gives me Monday afternoon and Tuesday til about 4pm to prepare my defence if I leave it until next week.

 

Can anyone help me before I go away? If something happened while I'm away and I couldn't get my defence done in time It'd be a nightmare.

 

Haven't had anything from the CPR yet, their seven days is up any time now.

 

Thanks.

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Hi, and thanks for all the help so far. Head is buzzing with all the information I'm trying to absorb.

 

Defence needs to be in by the 24th, but I'm panicing as I'm away from Wednesday this week 'til Monday next week, which literally gives me Monday afternoon and Tuesday til about 4pm to prepare my defence if I leave it until next week.

 

Can anyone help me before I go away? If something happened while I'm away and I couldn't get my defence done in time It'd be a nightmare.

 

Haven't had anything from the CPR yet, their seven days is up any time now.

 

Thanks.

 

the problem is you cant put a holding defence in until you know the other side havent complied which will be a couple of days before the deadline. (Did you send by recorded delivery, did you check its been received, image of signature avail?)

 

The flip side to that is you cant really put any other defence in as you dont have the documents the other side are relying on.

 

So Whilst its a bit worrying leaving it till next week, I dont think you have a choice.

 

Just my opinion and you have a lot of good advisers on this thread so they may give better advice.

 

S.

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I don't have the receipt with me, but I'm fairly sure it went (by special delivery) on Tuesday, so would have been with them on Wednesday. I'll check that though. Like you say, I suppose my defence depends on if / what they send. Is the application form they sent with my SAR relevant at this point, or would it have needed to be included with their claim?

 

Thanks for your help.

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Hello SB100!

 

Not much to add that others have not already covered, but the Default Notice is defective, as they have not allowed for slow postage via UKMail, that's taken as being the same as 2nd Class, so +4 Working Days from date of Posting.

 

If the Envelope has any Orange Barcodes that might show that they posted it later than it was dated, then +4 Working Days starts from when they posted it, not from when they dated it. So, it could be even worse for them!

 

However, +4 Working Days from the date of the DN is fine, as that still takes you well past the 2nd May Deadline, so they are stuffed.

 

Zhanzhibar has just had a Judge look at this, and they concluded that a DN was defective if 14 clear days had not been allowed...note as mentioned above, 14 clear days means 14 whole days or 14 calendar days, it's not 14 Working Days (sadly), but you are OK in any event.

 

One other issue, they have messed up on the Prescribed emphasis issue when it comes to underlined words needing to be given greater emphasis over words next to them that are not underlined, same as that MBNA DN we looked at earlier, i.e.:

 

YIPPEE THEY HAVE GONE AND DONE IT LIKE THIS

 

WHEN IT SHOULD BE LIKE THIS

 

OR THIS WOULD BE OK TOO

 

JUST TO RAM HOME THE POINT THIS BY COMPARISON WOULD BE JUST AS POOP AS THE WAY THEY DID IT

 

The key being the bits underlined must be given greater emphasis, so all bold and all upper-case with some underlined is no good, as the underlined words are not being given any greater emphasis apart from being underlined.

 

Hope this helps.

 

Cheers,

BRW

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It certainly does. Now to see if those 'in the know' can help me with my defence. I'm guessing that this would be two pronged, in that they haven't supplied any supporting documents for their claim, and that the DN is no good anyway.

 

Thanks again everyone :)

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Hello SB100!

 

...and that the DN is no good anyway.

 

That should be the killer blow for them, but as always, load up with as much additional ammunition as you can on any other issue that you can use against them.

 

But make sure the key point, the lack of a s87 Default Notice is not swamped by smaller points that, by themselves, won't win it alone.

 

IOW, hit them in the throat with the defective DN then, when they are laid out on the deck gasping for breath, kick them with all the other points you can use.

 

Getting the balance and delivery right is what a Barrister is trained to do. The danger being a Litigant in Person is timing and delivery, and being taken seriously if faced with a biased blinkered bigot of a Judge.

 

Cheers,

BRW

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Ok heres a very rough embarrassed defence (think it came from Pt2537 originally?), others can add to it.

 

S.

 

1. I, ********** of ************** make this statement as my defence to the claim brought by **************

 

2. The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

3. No documents supporting the claims in the particulars have been offered and despite a request to the claimant for further information via CPR 31.14 dated xx/xx/xxxx sent by recorded delivery none has been forthcoming and as a result I cannot plead in defence to the claim

 

4. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

 

5. Further to that above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

 

Statement of truth bit here

 

 

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Do I include anything about the collection charge and interest sought at this point? I take it I leave comments about the defective default until a full defence?

 

Thanks :)

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Do I include anything about the collection charge and interest sought at this point? I take it I leave comments about the defective default until a full defence?

 

Thanks :)

 

You could but as your pleading that you dont have information sufficient to actually make a defence due to their non-compliance I would wait to include it in the actual defence.

 

Also if the claimant applies for a summary judgment due to your weak defence you can put it in the witness statement response to strengthen why your defence needs to be heard and not be put aside.

 

When it gets to AQ stage you'll need to ask for disclosure or the judge may order it on him/herself.

 

Just my opinion.

 

S.

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I think the advice and input the shadow has given is pretty sound (very sound, actually :))

 

Cheers, only what I've picked up from the site team on this site :-D

 

 

Cool, thanks for your help everyone. Assume I just hand write it on the defense page? Have tried to login to do it online but I'm not having much luck :(

 

Yep you can write it in the defense box just dont forget to sign the statement of truth bit

 

S.

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