Halifax vs Mikeeb / help with defense, please

[MIKEEB]

I have just received this morning a letter from the solicitors in response to my CPR 34.14 request. I have received a Redacted copy of Assignment of Debt, although i asked for a copy of the notice of assignment. They have sent me 4 pages of the document which is 24 pages long. This document was created on the 26th June 2008 and funnily they claim they sent me a notice on the 28th June??

 

One large question i have is this is a Assignment of Debt between Bank of Scotland and Cabot. I have never used BOS and the loan agreement in the POC is between myself and Halifax. I understand that Halifax & BoS joined together to create HBOS but i have never had any dealings with BOS. If a large corporation is to trade under different names and guises, then surely the customer should be informed at some point and there should be some information relating to the partnership or business practices. If this is not the case then surely any high street bank or lender can invent a claim and then argue they are a part of xxxx or xxxx and bring an action against anyone!!!

 

Is this something i could argue with

[car2403]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/190222-notice-assignment-default-notices.html

 

[MIKEEB]

Hi all,

 

I have drafted a defense and wondered if anybody can have a look at it to give me any advice or tell me if there are any glaring errors etc...

 

 

I would appreciate any help or advice, i am going to check with the court tommorrow but think it has to be in Friday

 

Cheers

Edited October 12, 2009 by MIKEEB
remove personal details

[MIKEEB]

bump

[car2403]

Haven't had time to look in now, Mikeeb, but I'm seeing if someone is available. Have you had permission to amend your defence and when is this needed by, exactly?

[MIKEEB]

yes the DJ ordered ordered that the claiment file a fully pleaded claim and the defendant to file a fully pleaded defense 4wks thereafter. I received the POC on 14th Sept - so therefore have to have it in for Monday.

 

Any help would be appreciated or if you can ask anyone else in your black book..

[car2403]

on me own, then?

 

I'll get a look tonight, all being well.

[steven4064]

Hi all,

 

I have drafted a defense and wondered if anybody can have a look at it to give me any advice or tell me if there are any glaring errors etc...

 

 

I would appreciate any help or advice, i am going to check with the court tommorrow but think it has to be in Friday

 

Cheers

It is a multiple agreement but they have given the TCC, etc seperately. THey haven't broken down the monthly payment into the two bits but they have give information that means it can easily be calculted. THe APR is correct too. I think it is definitely enforceable by a court even if strictly not properly executed

[car2403]

I have sent a CPR 18, which i got no reply. Should i now send a CPR 34.14 to ask for the default notice etc

 

Yes.

 

What's happened with this?

 

Also correct me if i'm wrong but I can't see any notice of cancellation rights prescribed by Consumer Credit (Cancellation Notices And Copies Of Documents) Regulations 1983 ??? Is it a cancellable agreement ??

 

This question hasn't been answered yet.

 

IMHO, this defence isn't a defence. You've stated that the prescribed terms aren't on the agreement, when they clearly are - and are on the signature page. I think you're getting confused between prescribed terms and terms; this agreement contains the prescribed terms on the signature page, and other terms on the remainder of the agreement. This is why it is enforceable.

 

The figures all seem to work out.

 

It is a multiple agreement, due to the PPI, but is a good one, as again it's set out correctly. (Thanks Steven)

 

The only remaining issues, then, are Default/Termination and Notice of Assignment ones.

 

IMHO, you can almost forget about the Default/Termination issues, because the agreement is enforceable - if you bring these issues to light, the Court will likely allow another (compliant) Notice to be issued. If it was irredeemably unenforceable, that would be a different story.

 

The question is, should you pursue the Assignment issues? Probably, but I can't see how you can avoid liability, here - perhaps not to the Claimant, but to the OP, should you raise these issues.

 

Probably not what you're wanting to here, but I'm trying to save you from getting your hopes up unnecessarily.

[MIKEEB]

Hi Car2403,

 

Thanks for your reply, you are right to highlight certain points as not to get my hopes up, im fully expecting to get trounced in court, but it is worth trying to put up some sort of fight instead of rolling over to the likes of Cabot

 

Nothing was heard back from the cpr18 but they did respond to the 34.14 and sent me a deed of assignment from Bank of Scotland, although we all know that they are a part of Halifax, i have never had dealings with BOS? Should they have highlighted this in any paperwork or regulated agreements.

 

I am new to all this consumer credit issues but have gained my knowledge all from this fantastic site, although my knowledge is increasing slowly i may use it and interpret it incorectly.

 

Please forgive me as I am not a legal expert, but what i have gleaned from this forum is why I am a little confused. My agreement is a cancellable one, and this is not highlighted anywhere on either document supplied in POC. So therefore it does not contain all the prescribed terms does it not.. therefore it is inproperly executed and not enforceable

 

As this great site has sparked an appetite for knowlege i have been reading all i can, i have just read "Essential Business Law - consumer credit" by Paul Dobson and this is an interesting paragraph

 

" Effect of non-compliance with the requirements

The onus of seeing that the formalities are complied with is placed firmly on the creditor or owner. If in any respect they are not complied with, the customer will not be any way penalised, but the creditor or owner will not be able to enforce the agreement without going to court and asking for an enforcement order. In the case of certain major infringements the court must refuse any such order (e.g where the customer did not sign the agreement or in the case of a cancellable agreement was not informed of his cancellation rights either in the agreement or in a separate notice)"

 

Just another quick question, you have looked at the figures and they work out. Could you explain why the calculations below taken from the CCA

 

Just as a quick example on the CCA it has a line saying

The cash price of the insurance premium is £1310.44

 

Insurance Premium Tax at a rate of 5% is included in the non-life elements of the insurance premium

 

Total charge for credit on cash loan £1444.28

 

I may be rubbish at maths but 5% of £1310.44 is £65.52 and therefore the total would be £1375.96 and NOT £1444.28????????

 

 

I guess that i had better draught another (shorter) defense any ideas...

 

Thanks anyway for you help:sad:

[car2403]

Ok, I want to take this one step at a time. Mainly, not to confuse you further, but also not to confuse me/anyone else reading this further to

 

To that end, what is happening with the claim? You've entered a (poo ) defense, but what's happened since? You need to amend, but have you sought permission, or had any other directions on the claim, yet?

 

Cancellable agreement - this is the part to focus on, IMHO. The other issues are all white noise. Without an enforceable agreement, the rest is history and doesn't need to be (fully!) considered. Yes, include those arguments, but ultimately, it's the enforceability or otherwise of the agreement that the Judge should focus on first, above and beyond everything else, which comes after any enforceability issues. Makes sense? Good, I hope so

 

Ok, so this is the bit of the CCA that deals with cancellable agreements; (readacted to the relevant parts and emphasis added here for effect)

 

67. A regulated agreement may be cancelled by the debtor or hirer in accordance with this Part if the antecedent negotiations included oral representations made when in the presence of the debtor or hirer by an individual acting as, or on behalf of, the negotiator, unless—

(a) ...

(b) the unexecuted agreement is signed by the debtor or hirer at premises at

which any of the following is carrying on any business (whether on a

permanent or temporary basis)—

(i) the creditor or owner;

(ii) any party to a linked transaction (other than the debtor or hirer or a

relative of his);

(iii) the negotiator in any antecedent negotiations

 

So, what makes you think it's cancellable? The agreement doesn't state it is, but did; a) you sign it on their business premises and b) were oral representations made about the loan?

 

We are talking about the legal basis on which this agreement is made, not the factual basis. I've confused you, there, I know, so read this post by Freakyleaky;

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/166060-zhanzhibar-link-financial-3.html#post1951165

 

As your creditor seems to have signed this before you, this looks good, see here for why;

 

Does it matter when the creditor signs an agreement and do they have to send a copy to the debtor? - The Consumer Forums

 

Come back when you can answer these questions and understand what I've posted so far. Sorry, I realise this is a steep learning curve for you, but we all have to go through this if we want to stand up for ourselves.

[MIKEEB]

OK, the story so far. An agent from the Halifax rang me to see if i needed/wanted a personal loan. I obviously said yes but said I didnt think i could get one due to having an impaired credit file so didnt want to waste her time. She said she would see what she could do, if it goes well i will get a form to my house by courier then all i had to do was sign and hand back to courier. A few days later a courier arrived with a package and i just signed some forms on the doorstep and he took it away with him. This is highlighted in the bottom right hand corner of the form that this agreement was to be delivered by courier!!!!

 

This is why i think that it is a cancellable agreement - i dont think i even got a 2nd copy of the executed agreement with a Halifax signature on it.

[car2403]

It's not cancellable if you signed it at home

[MIKEEB]

oh dear!!

 

You are right about trying not to confuse me, I dont want to go on and on but surely the home is a place away from business premises?

 

I am totally confused now, thanks for the links but that has given me more points to think about. What was the outcome for Moorhouse Services V Kabir, where can i find out some more info on this.

 

Many thanks

[MIKEEB]

Sorry but im not "feeling the love", these one line responses are not really helping me, when i read other threads it feels like all the caggers are joining in for a discussion to help and find a way around problems - oh well looks like im on my own.....

 

I think ive got my head round it a bit - so what you are telling me is that by virtue of s67 my agreement is non-cancellable. Therefore the financial geniuses at HBOS, responsible for the largest financial loss in British corporate history, have found a way around the Consumer Credit Act 1974 and 2006. And do not havet to adhere to regulations enforced by the Financial Services Authority and the Office of Fair trading!!!!!

 

I do not and will not accept this and as im a very stubborn git im off to find a way around this.................

[car2403]

Love/one line responses? I count one? Not sure what you mean, there, then?

 

Anyhoo, I think I've confused you after you've confused me, so let's try this again

 

To be cancellable, under s.67, you would have had to have discussions about the loan when the Bank was "in your presence" in the form of negotiations. I suspect discussing this by phone might not be "in your presence", but as you signed the agreement off their business premises, that would suffice. The point being that you didn't negotiate - they offered a loan, sent you the agreement, you signed it. If you did negotiate any of it, you would need evidence to suggest so, in which case it is cancellable.

 

I suspect, as it doesn't contain a notice of cancellation rights, that it is non-cancellable. Having said that, they are known to have missed these notices in the agreements before.

 

Either way, a Court will decide if it is/isn't cancellable - IMHO, it's risky continuing on that basis, as this isn't clear and could go either way.

 

If there's "another way", I'm yet to find it

[MIKEEB]

I really find it hard to belive that the consumer is not protected by either the CCA 1974 or Distance Selling Regulations 1998 and is not provided with an option to cancel when entering a regulated agreement.

 

I dont know if this is any good or relevant, but as you are an expert i thought it might be of interest to you.......

 

http://http://www.gov.ns.ca/legislature/legc/statutes/consumpr.htm

 

but according to the Consumer Protection Act 1975...

 

Required Contents of Contract

25d(1)d A contract shall set out the conditions upon which the contract maybe renewed, cancelled or rescinded

 

Any claim against the contrary to this Act will invoke s28 and void the contract

 

You probably are aware of this, but hey it might be of interest to someone!!!

[MIKEEB]

Has anyone got any advice on how to fill in, or what to put in a N268 Notice to prove

 

I have a court date of 19th Feb

 

cheers

[MIKEEB]

Bump

[MIKEEB]

bump, bump, bump

[citizenB]

Okey dokey, have read your thread now I am not too sure about notices to prove will go and have a look and see what information I can find. Give me a couple of hours to do some research.

 

What document(s) are you wanting them to "prove"

[citizenB]

The following is a quote from surfaceagentx20

http://www.consumeractiongroup.co.uk/forum/show-post/post-2329489.html

 

 

I know precious little about your case and the background leading up to the hearing for which the witness statement was produced but nevertheless and as a general rule, a document having been exhibited to a witness statement constitutes the disclosure of it and will in my opinion, be treated as having been disclosed for the purpose of CPR 31. CPR 32.19 deals with the issue of challenging the authenticity of documents in the following way:

 

32.19

 

(1) A party shall be deemed to admit the authenticity of a document disclosed to him under Part 31 (disclosure and inspection of documents) unless he serves notice that he wishes the document to be proved at trial.

 

(2) A notice to prove a document must be served –

 

(a) by the latest date for serving witness statements; or

 

(b) within 7 days of disclosure of the document, whichever is later.

 

The notice to prove is N268.

 

 

Just posting information and am sending out SOS's for advice on completing.

[MIKEEB]

Thanks citizenB,

 

The reason i ask is that obviously the claiment has photocopied the credit agreement and included in POC. When i asked for the deed of assignment they sent me a redacted copy of an agreement between BOS and Cabot, although the agreement was with the Halifax!! anyhoo, in the DOA it stated that cabot were the official data controller and all information about the client will be transmitted digitally. Therefore i suspect that they do not hold an original copy? So i want to submit a N268 when file my witness statement (i already have a N268 from the court)

 

I remember seeing a post from somebody that says that very rarely will a court enforce an order if the original cant be supplied. Thats what im hoping for anyway

 

Once again thanks for your help.

[citizenB]

Right, well I have put out a couple of SOS, it might be a while before you get a response.. but I will check back later on today.

[nick20045]

Subbing.