HFC/Marbles taking me to court in November.**DISCONTINUED**

[1littleduck]

Hi all,

With responce to drewsters post at the start of the thread, I have the same problem with HFC, but they have got their solicitors onto me and are now taking me to court..

They supplied me with the same application form, but i think this was applied for on-line, not to sure..they also sent me the last 6 statements and that was all.

I have not had a default letter from them, so i delieve they are in breach of some rule for that as well.

I have found a very nice person who is going to help me with my defence letter so it may help to keep an eye on my thread for this.

The HFC are not at all helpful, and are very quick to suggest that they put a charge on your house for the money, and this seems their intent in court.

I will let you know what the outcome of the court case is, so this should help.

[1littleduck]

i have posted up a scan of my document if this helps, they will be the same..

[1littleduck]

Hi all... The hfc are taling me to court in November, I have posted all the correspondance up from start to finish.. should I get some outside help with this one..

I know that one of the letters from them told me I had no rights to ask for a copy of my agreement, and they have not put on the letter p&confidential, so I can use this to show the court how unhelpful they have been.

http://i534.photobucket.com/albums/ee344/gangsta_caz/H4.jpg[/url]

The above link is the application form/cca they have. the rest are the letters they have sent me.. I would not talk to them on the phone, because they were very rude.

 

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[PGH7447]

Nice application form:) - totally useless

 

You were already paying a reasonable sum - so taking you to court is really pretty pointless

 

and what is the collection charge they have applied to the POC?

 

I take it the reference to the consumer site is where you requested a cpr for all details etc, they really have not done themselves any favours, I hope you have included this in your defence.

[ODC]

Irrespective of where you obtained details for the CPR request they are LEGALLY obliged to comply with them.

 

You have a very simple defence in S127 of the CCA 1974 plus the fact that the arrogant barstewards did not comply with your lawful CCA request

[1littleduck]

The application form is the 3rd they have sent me, and the same has just arrived from the courts with all of the statements since the account was opened.

The letter was a direct result of asking for my cca, but fortunatly I can use this in court.. their mistake.

I did try and make payments, but as you can see, they were not interested... is this agreement legal.... have they got a case?

What worries me, is that they will try for a charging order on my house..

[ODC]

I am concerned about their reply to your CPR request. It shows an amazing arrogance. As for the 'agreement' they have sent you it does not appear to have all the proscribed terms on it and as such would not be enforceable through the courts.

 

Im not sure as to the best advice to give you about responding to their reply about the CPR request so I have asked for one of the MODS to have a look.

[car2403]

Gotta love the approach. Deny everything. It's the MO, I'm afraid.

 

You have 2 options with regards your request - ask the Court to order their compliance with your CPR request, or wait for Directions from the Court that will mean they need to disclose.

 

Don't forget you could apply for Summary Judgment, as they can't enforce an unenforceable agreement.

 

I suspect, Restons, when they read this (as we know they do) will apply for SJ against you, then discontinue when they fail in that process. So, you might want to be proactive, here...

[1littleduck]

Thanks everyone..... the court hearing is 24th November, I guess I have to attend this, so just to be clear of what I have to do...

 

Should I write to the courts now and ask them to make sure that HFC produce the origional copy of the signed agreement, and point out to the court what they said when I requested it, then tell them that their application form is not sufficient as a credit agreement in it's self.

What is a summary judgement please?

 

I will continue to put up all documents, as this may help others in the same possition...

Thanks again.

[citizenB]

Nice application form:) - totally useless

 

You were already paying a reasonable sum - so taking you to court is really pretty pointless

 

and what is the collection charge they have applied to the POC?

 

I take it the reference to the consumer site is where you requested a cpr for all details etc, they really have not done themselves any favours, I hope you have included this in your defence.

 

Gotta love the approach. Deny everything. It's the MO, I'm afraid.

 

You have 2 options with regards your request - ask the Court to order their compliance with your CPR request, or wait for Directions from the Court that will mean they need to disclose.

 

Don't forget you could apply for Summary Judgment, as they can't enforce an unenforceable agreement.

 

I suspect, Restons, when they read this (as we know they do) will apply for SJ against you, then discontinue when they fail in that process. So, you might want to be proactive, here...

 

Are they allowed to add collection charges to the claim ?

 

Car, the hearing on 24th November is a Summary Judgement hearing.

[citizenB]

littleduck, the DN listed above in the images, is this a copy from Restons or the original from your own paperwork ?

[lickthewallfatboy]

the bit about a CPR request having been lifted from a website

 

yeah-that's illegal,or didn't you know?

[gazab41]

I find it incredulous that they are going this route personnelly i had an agrement with hfc back in 2004 to pay £12.50 pm on a debt of aprox£1147 this being paid back on the nail by standing order orig credit limit £800 obviously unfair charges added to cause increase Marbles credit cards taken over in jan 09 by avimore part of BOS have had it unofficially confirmed by call centre staff that there were problems with a number of agreements i.e extra charges added even on payment plans was the intrest stop on yours. Since take over the new company only have 6 months of records on file and as mine for whatever reason incresed i contacted FOS last month and i was very supprised when i had phone call asking for payment explained the FOS had been contacted was told by collections no action on my account indefinatly on hold until some info forthcoming and this new company have not even got CCA they have to contact beneficial/hfc for these also they are getting good at loosing payments have you always paid £58 because you are almost paying 1/2 contractual amount if you could pay 1/2 contractual rate i am sure they would bog off have you got unfair outstanding charges on your account and also the aplication is not a valid CCA agrement seems to lack some terms and also its an application if it was application with terms they might if lucky get away with it best of luck

[1littleduck]

Hi again.. Citizen B.. the above links are from all the paperwork that hfc have sent me since I offered to pay half the amount.. I was up to date before this. The DN is a copy of the origional they say.. I never received an origional from them.. I was using GP as a debt management company but got rid of them because they were charging me £100 per month, and I simply could not afford all this.

The hfc along with n/w were the only 2 companies that origionally refussed my payment offer. N/W have been struck out of court, so I never had to attend, but the hfc are going for blood.

Do I have to go to the hearing..? If not, could I send in a good letter to the judge and explain things to them to take into consideration?

I will check the statements for all charges they have applied, as they kindly sent me them 3times now.. they also sent them to the court, who sent them also to me... is this normal?

[car2403]

Car, the hearing on 24th November is a Summary Judgement hearing.

 

Haven't read the thread, but I thought Restons applied for SJ?

 

I'm suggesting the OP applies for it against Restons, as an appropriate response.

 

Unless I missed something. (Sow'ry )

[citizenB]

Haven't read the thread, but I thought Restons applied for SJ?

 

I'm suggesting the OP applies for it against Restons, as an appropriate response.

 

Unless I missed something. (Sow'ry )

 

 

Nope, it was me not reading your post correctly... specsavers, here I come

[pedross]

I cannot find the defence for this but regarding the point about attending court it is essential that you attend. It is important that you have a good defence ready and you understand all of the points of your defence.

 

In the letter dated 12 May Restons make it clear that they will rely on the terms and conditions provided which are not the original t & c so they obviously do not have the original ones on your file. The application form is therefore unenforceable.

 

The DN does not allow the 14 days as it is 2 days short if posted 1st class and 4 days short if posted 2nd class which is the accepted method if Restons cannot prove otherwise. Therefore they should be put to strict proof of posting method.

 

My understanding is that collection costs of £911 in the claim form cannot be justified and are not allowed and I would be interested in opinions on this.

 

The payments you offered are more than fair and in line with your arrangements with other creditors. Therefore Restons were wrong in taking court action to gain an unfair advantage over those other creditors by the inevitable application for a charging order. You should ask the court to refuse such an order as it dissadvantages other creditors who are dealing with the matter in a more ethical and sensible manner.

 

However, because Restons have taken this course of action you have looked into the situation in more depth and have discovered that the agreement is unenforceable even by a court as per the reasons above.

 

Pedross

[1littleduck]

Hi.. I have given the links below to all the letters I have done to Restons, and the defence letter to the court, along with the 3 sections required on the a/c from the courts. I hope this helps...

Do you really think that this is unenforcable.. if so, I can go to court, and tell them what pedross has written and hope for the best!

 

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a/q responce

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http://i534.photobucket.com/albums/ee344/gangsta_caz/SecI.jpg

[pedross]

This is better now there is more information and I am sure you will get plenty of help and ideas.

 

The document secF is a Draft order for directions. Have you been supplied with all those documents and if so when.

 

Your defence looks fairly good and covers some of the points that I have mentioned, but you need to add the defective DN and case law to support it. The claimant would need to produce the DN and proof of posting and although the DN has obviously been supplied I have not seen proof of posting.

 

Pedross

[1littleduck]

ok... I received the application form, a full set of statements up until 14th August 2008 and a copy of the DN.

I cannot recall receiving a DN from them back in July 2008 as they state, but G/P were sorting out my accounts by then.

I have listed the last 6 statements, you can see that in April, although I was late, the account was up to date, then it was passed to G/P, late charges and interest were added on each month until June, where the interest was stopped. They then passed it to Restons.... nit giving us a chance to sort things out. G/P made 2 payments in August but we know that this was not acceptable by then hence the letter from Restons.

 

I notice that the DN was dated 4th July, this would have put the account 2 months in arrears..I thought the account DN is usually served after 3 months arrears?

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The August statement is the last statement I have received from HFC.

[citizenB]

DN dated 4th July 2008 (which was a Friday)

 

If it were posted 1st class RM, then the earliest it could have been received by you would have been Tuesday, 8th July. Of course if had been posted 2nd class then that would make it Thursday, 10th July.

 

Either way you have been denied the full clear 14 days to remedy : and have been left with just.... 12 with 1st class and 10 with 2nd.

 

The defence below shows the need for a valid default notice and contains all the information you need in that respect. HTH

 

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

Edited September 6, 2009 by citizenB
rubbish at math.. corrected now :)

[pedross]

Hi LD

 

From all of the information posted up you have a very strong case. I know for a fact from what I have read that Marbles have already lost an almost identical case.

 

The DN is defective and does not allow enough days. Although in the letter dated 12 May Restons claim that the default balance is £5k + that statement is misleading. The defaulted amount is £220 and you have already paid £116 so the most they can hope to get out of the case is £104. However, to do that they must first convince the court that the agreement is enforceable.

 

The fact that you have admitted the debt may give them some confidence but Restons would be taking a massive gamble to go into court on that alone knowing that even if they prove the debt the most they can get is £104.

 

The hearing is a long way off and you have plenty of time to decide how to deal with it and you will get plenty of help and support before then.

 

Pedross

[citizenB]

Hi LD

 

From all of the information posted up you have a very strong case. I know for a fact from what I have read that Marbles have already lost an almost identical case.

 

The DN is defective and does not allow enough days. Although in the letter dated 12 May Restons claim that the default balance is £5k + that statement is misleading. The defaulted amount is £220 and you have already paid £116 so the most they can hope to get out of the case is £104. However, to do that they must first convince the court that the agreement is enforceable.

 

The fact that you have admitted the debt may give them some confidence but Restons would be taking a massive gamble to go into court on that alone knowing that even if they prove the debt the most they can get is £104.

 

The hearing is a long way off and you have plenty of time to decide how to deal with it and you will get plenty of help and support before then.

 

Pedross

 

Could that "error" be defended in that littleduck had been misled into believing there was a vailid contract ?

[citizenB]

Hi.. I have given the links below to all the letters I have done to Restons, and the defence letter to the court, along with the 3 sections required on the a/c from the courts. I hope this helps...

Do you really think that this is unenforcable.. if so, I can go to court, and tell them what pedross has written and hope for the best!

 

http://i534.photobucket.com/albums/ee344/gangsta_caz/9SEP081.jpg

http://i534.photobucket.com/albums/ee344/gangsta_caz/9sep08.jpg

 

LITTLEDUCK'S DEFENCE - LINK BELOW

 

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a/q responce

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http://i534.photobucket.com/albums/ee344/gangsta_caz/SecF.jpg

http://i534.photobucket.com/albums/ee344/gangsta_caz/SecI.jpg

 

 

Pedross, I have identified Littleduck's defence above .

[pedross]

Could that "error" be defended in that littleduck had been misled into believing there was a vailid contract ?

 

The defence has obviouly been prepared by someone with knowledge so it is probably not a problem. I just pointed out that Restons may play on it.

 

However, LD's defence is that it makes no differnece if there is a debt or not as it is not relevent to the case. The case is that there is not an enforceable agreement.

 

Therefore, you are correct in my opinion, in saying that LD thought there was a debt but subsequently discovered that it was in fact a 'gift' (case law somewhere).

 

Debt or no debt the DN makes it unenforceable. These are just my opinions there is plenty of time for other posters to contribute.

 

Pedross