HFC/Restons Re-Determination Hearing.

[tynebridge]

I have a redetermination date set for attendance at court on November 19th. My situation with Restons and HFC at present is this;

 

I entered into a DMP with Payplan in June and have sent payment on a monthly basis to Restons of £112 beginning in July. From September the offer was increased to £137 as my original debt of £9579 was increased by Restons 'collection charge' of £1596 to £11175.

 

I have received a Interim Charging Order against my property for £11536

 

I have received a Notice of an Application to register a restriction against the land-on my property.

 

I am due in court on November 19th and, whilst I do not dispute the debt I am unhappy with Restons collection charge, interest being added ad hoc, a charge being on my property and a CCJ being against my name (maybe can't avoid that).

 

No payments have been missed by Payplan to Restons and I have never refused to contribute to service my debt. I will be taking a breakdown of my DMP from Payplan with me.

 

Is there anything else i can do to help my situation, plead my case with the judge or have collection charges and interest reduced or even dropped.

Many thanks in advance

[supasnooper]

Hi there,

 

Welcome to CAG.

 

Unfortunately now judgment has been entered, your only hope of getting Restons 16% collection charge wiped out is to apply to set aside the CCJ ..... Restons shouldn't be allowed to do this but they do and get away with it.

 

If you wish to set aside the CCJ the read the links below -

 

 

 

A Guide To Setting Aside CCJ's You Never Received

CCJ removal inc. step by step guide

Applying for a Set-aside

Setting aside the original CCJ of your CCA

 

 

If you wish to oppose the Charging Order, have a look at the links below and what grounds you may oppose them -

 

Insolvency Helpline

National Debtline

and this gem of a post ( Courtesy of FunkyFox ) -

 

FunkyFox post

 

 

Hope they help.

 

Any questions - just ask.

[tynebridge]

thanks supasnooper, today I've;

Woke up worrying at 5am! then

 

Sent a SAR and CCA request to Restons (copied to the court)

 

Sent objection letters to the interim charging order becoming final from myself and the joint owner to the Court detailing my objections, Payplan DMP etc (copied to Restons)

 

Requested restons agreement to having the case set aside (copied to the court)-post only 'cos theyre tw**s!

 

Detailed to the courts why I think the Restons Collection Fee [problem] is unreasonable (OFT guidlines etc)

 

Sitting with fingers crossed now and wondering how to fill in the N244 form and basically worrying about taking this all on and preparing a defence etc.

 

[supasnooper]

I see you have moved very quick here.

 

The Subject Access Request should go to HFC as they'll have all the account documentation including the agreement, default notice etc.

 

 

It will be interesting to see what Restons do provide if you have sent them a SAR.

Do not expect Restons to provide the agreement though, as the CCJ has subsumed the original agreement in importance.

 

What reasons do you have for setting aside the CCJ - papers not served to you, not aware of your legal rights at the time ?

 

Did you pass all the Court paperwork to Payplan ?

 

Did you admit to the debt ?

[robcag]

Hi snoops

 

 

It will be interesting to see what Restons do provide if you have sent them a SAR.

Do not expect Restons to provide the agreement though, as the CCJ has subsumed the original agreement in importance.

 

 

It can sometimes be interesting, as you say, to see what turns up from SAR'ing someone other than the OC.

 

In my case I SAR'd and CCA'd HFC (post judgment I should add) and turned up nothing more than some statements, even though I had specifically asked for far more in the SAR (especially hoping for the agreement). However, I CCA'd Phoenix after the post-judgment debt had allegedly been assigned to them, and lo and behold, what turns up but an unenforceable application form (illegible and no prescribed terms even vaguely visible).

 

By rights, HFC should have provided that document under the SAR even though it was post-judgment.

 

Cheers

Rob

[tynebridge]

snoopI will send a SAR to HFC also, thanks.I'm asking for it to be set aside as I did not know my rights until I googled Restons and found you all-joy!Im trying to highlight the Restons HFC [problem] by sending this;

 

Dear Sir/Madam Could you please use your publication to highlight a situation being exploited by some very unscrupulous parties? In the current economic climate there are many people (myself included) who have found themselves in financial difficulties often through circumstances out of their control. This situation can lead (in many thousands of cases) to people having to rearrange their finances to accommodate new circumstances. A lifeline to these people are debt management organisations. These organisations (often government and credit industry sponsored) work out a sensible debt management plan using peoples new budgets and disposable incomes. They then deal with creditors, such as credit card companies, store cards etc and come up with an equitable form of reduced payments to pay back the debts over longer terms. The people enrolling in these plans are legally bound to commit to these new payments and in most cases the creditors freeze interest and are happy with the arrangements. There is however one organisation which has turned the unfortunate circumstances of an increasing number of people into a cynical money making operation preying on people who are genuinely worried for their own and their family’s survival. This organisation provides finance to support store cards and credit cards of other organisations that are seemingly unconnected with them. They are HFC Bank. HFC bank provides the credit facility for such organisations as John Lewis Plc and Marbles credit cards amongst others, though their involvement is not apparent unless the fine print is read on agreements customers enter into to. I am happy to give you details of my own ongoing case to demonstrate the behaviour of these organisations despite putting their best, understanding face to the public. In my own case I found that I was unable to meet the minimum payment on my John Lewis account through a loss in income. As soon as I was aware of this situation I contacted John Lewis and explained my situation; they were understanding and suggested I make a token payment of £50 whilst I sorted out my finances. I did this and then (at my employers suggestion) contacted Payplan (debt management organisation) who worked through my new budget and came up with a payment plan to help me through my reduced income. They contacted all creditors to put forward the plan-they all accepted, freezing interest on balances and being extremely helpful. All except John Lewis Plc. Their procedure is thus;Send out Default NoticeInstruct solicitors (Restons of Warrington) to recover debt in fullIf full settlement cannot be made then apply using Restons for County Court Judgement.Instruct Restons to take debtor to court and place Charge on property belonging to debtor.Restons add a charge of 16% of the debtors balance as a collection fee plus interest to the final figure being sought and pursue court action. I am presently at the stage (along with hundreds of others) of being taken to court by Restons on behalf of HFC and thereby John Lewis in order to place a charge on my home as well as raise the Payplan offer amount to double what Payplan consider to be reasonable. The Restons ‘collection fee’ has no basis in law and is contrary to the guidelines set down by the Office of Fair Trading (they have been known to drop the fee when legally challenged). The situation now is that people in distress as it is are now using consumer action groups to gain information to pursue these court cases without recourse to expensive legal advice on their own. It is quite easy to google ‘restons’ and find hundreds upon hundreds of people nationwide suffering from the sharp practices of this group of companies happy to exploit people who are suffering from the downturn in our economy. A search will easily confirm the stories behind the devastation caused by reading the forum of the consumer action group who are largely groups of people trying desperately to help themselves and fight these extremely shady trading practices. I myself am due in court to try to overturn a charge being placed on my family home on November 19th and am happy to supply the shocking details of my own fight against this legal situation. In summary I did as we have all been told should we suffer financial losses. I informed the company, I never refused any payment on the account, I enlisted the help of an industry recognised organisation to help me and I am committed to continuing to pay my debt until it is cleared. Yet I find myself the subject of;A County Court Judgement which affects myself and my family for 6 years.My home being placed under a Charging Order which may require me to sell my home and unable to abtain a mortagage or rent another property leaving my family homeless. A court case against me for trying to renegotiate a sensible committed payment plan. Please make people aware of what can ensue from them taking what is considered to be a sensible course of action where John Lewis Plc, HFC Bank or Restons solicitors are involved. It is nationwide and huge in numbers.ThankyouM

 

to every media outlet in the UK, wether it be Watchdog or the newspapers.Ive left it anonymous and figure Ive nothing to lose but might at least highlight the issue. Cheers

[robcag]

Nice move tynebridge! I wish you well with that letter.

 

Cheers

Rob

[tynebridge]

snoop

 

Forgot to answer a couple of your questions; sorry!

 

Payplan have copies of every court document I have received.

 

I am not disputing the original debt, what I am disputing is the Restons 'collection charge' which effectively becomes part of the charge on my property. I believe it is not reasonable, goes against the OFT guidlines and does not reflect reasonable costs incurred.

 

I will be disputing the Restons claim that I have missed a payment on my Payplan payments and have the obvious proof for that-it seems to be a reason why proceedings were initialised. Restons are also demanding a £100 per month increase in my payment to over £250.

 

I am also hoping to have the charging order cancelled if at all possible as it has serious consequences for my payment plan by unfairly prejudicing my other creditors who have behaved in a very helpful manner.

 

I dispute the charging order also on the grounds that it may impact on my employment in that I am a mobile grade employee. Any restriction on me being able to either, sell my property to move or in my inability to obtain a mortgage or rental agreement elsewhere invalidates my contract of employment and could lead to unemployment with the obvious consequences.

 

Though I doubt wether the HFC/Restons/John Lewis triumverate will lose sleep over that!

 

Thanks again to all for help and advice. I'm still at that nervous stage after posting everything off (including the SAR to HFC).:-|

Edited November 3, 2009 by tynebridge
additional information

[yourturntopay]

I was in court with restons today and although a CCJ was granted (was a given tbh) I did get the colelction charge removed and they were denied permission to apply for a Charging Order. A payment order was given with a strict advisement that any CO applications would be refused.

[tynebridge]

yourturn topay:

 

congratulations on 2 out of 3. I'd be happy with the same. Is there anything you could advise me to do or say which would help me get the same result?

cheers

[yourturntopay]

The collection charge was instantly out of the window - they didn't even try arguing that one. I did put in my witness statement that the collection charge is a disportionate penality and that there was no provision for it in the agreemenet that i signed. they never had a leg to stand on, and they realised that, so that was very easy to get dismissed.

 

My argument against the Charging Order was that because my property is in negative equity a CO would be of little benefit to the claimants.

 

I also stated that the property was in joint names, but the debt was mine alone

 

It is the family home and we have dependant children.

 

I also argued that we had maintained the payments suggested by payplan and had not defaulted on those payments and that we shoudl be given the chance to continue this without incurring additional costs that a Charging Order application would create, and possible interest that might be added.

 

The judge said that if i would agree to payments that would clear the debt within 8 years then he would refuse an application for a Charging Order. This meant increasing my payments by £60 a month, which we were able to do (payplan will just have to re assess the payments to the other creditors!)

 

The sols for restons did try very hard to get a charging order but the judge came down on my side (and congratulated me on a well prepared argument against the charging order)

 

he also confirmed that all further interest and charges were frozen.

[tynebridge]

So from what I can gather; my argument against the Charging Order is similar to yourselves except that my property is not in negative equity-but-the equity just about covers the amount claimed. However my job is very specialised and Im a mobile grade. When our company moves peopl it normally buys the house off us using a GSP (guaranteed sale price) which is often less than what we owe so maybe an argument there. Plus, being a mobile grade, the CCJ or Charging Order will affect my ability to abtain another mortgage or rent so Im breaking the terms of my contract of employment which could lead to unemployment if I couldnt move.

So-questions-

do i need to apply to have the case set aside to wipe out the collection fee or can I do that at the Charging Order redetermination hearing on the 19th?

can I apply to have the charging order refused on the 19th or does that also need to be done once the case is set aside?

is there any way to have the CCJ on my name taken away or is it too late for that?

Should I state that my payment offer from payplan will eliminate the original debt within 6 years as it is-as long as the collection fee and interest from that is taken off?

How important is it that I apply to have the case set aside and can i do that before Restons/HFC return the CCA and SAR paperwork?

 

Many thanks all-yourturntopay-youre giving me hope I didnt have before, thankyou so much.

[tynebridge]

And...sorry.

Anybody willing to advise on what i need to do and fill in to have the case set aside. Sorry if i appear a bit dim but this is all so alien to me.

Im not used to dealing with this kind of Restons/HFC slime!

[yourturntopay]

I'm really not sure about the set aside stuff as I have never doen this or had any experience in it.

 

Have you had the house valued to ensure you are not in neg equity - as this was the swaying factor for the Charging Order not being allowed in my case.

 

How long was the term of the loan - as if it is only a couple of years over the orginial term then you could argue that a Charging Order would be unfair as you would clear the debt in a reasonable time.

 

You could also offer the option of a deduction from your wages as an alternative - that way they would have the security of knowign payments are comign from your income source.

 

The main argument restons hired hand put across for a Charging order is that i could sell my house and then refuse to pay the debt or disappear, if you can conteract that argument with an alternative solution then you might be able to avoid a Charging Order

[supasnooper]

-questions-

do i need to apply to have the case set aside to wipe out the collection fee or can I do that at the Charging Order redetermination hearing on the 19th?

The collection fee has already added to amount of the debt and cannot be rebated.

 

can I apply to have the charging order refused on the 19th or does that also need to be done once the case is set aside?

is there any way to have the CCJ on my name taken away or is it too late for that?

 

If you apply for a set aside of the CCJ then the Interim Charging Order falls away. The set aside would need to be applied for ASAP.

 

Should I state that my payment offer from payplan will eliminate the original debt within 6 years as it is-as long as the collection fee and interest from that is taken off?

 

The court will have no intention or desire to remove the collection charge or any interest added to the debt.

 

How important is it that I apply to have the case set aside and can i do that before Restons/HFC return the CCA and SAR paperwork?

 

You need to get the application in ASAP. Normally the time allowed for a set aside application is 28 days from judgment. You may get a bit of leniency as you are a Litigant In Person.

 

 

From what you've posted, having a CCJ will seriously hamper your career, so I think your options are limited. You'll need to make a decision soon as time is against you.

 

Restons collection charge will only disappear if the CCJ is set aside.

[tynebridge]

ok then I understand that I must apply to have the set aside.

I have downloaded the N244 application notice. Im afraid I'm asking for more help though as I have no idea how to fill in in.

I'm so sorry people for keep asking for help here.

[supasnooper]

Have a read through this link -

 

Setting aside the original CCJ of your CCA

[tynebridge]

Supasnooper

Ok Ive had a read through though the details of the case are obviously different to mine. From what I can gather for the N244 form and what I think I need to fill in boxes 3 and 10 are the important ones so for box 3 I was thinking;

The defendant request that the court set aside the default judgement made at the request of the claimant as the judgement covers monetary sums ( a collection charge plus interest) which was not covered by the original Consumer Credit Agreement and which contravenes Office Of Fair Trading Guidlines for Debt Collection.

[tynebridge]

Should I add that;

the defendant requests that the court set aside the default judgement as the defendant has a real prospect of defending this action.

[tynebridge]

For box 10 I was thinking;

I object to the order being made final and believe it is unreasonable for the following reasons;

• The debt is solely in my name but the property is owned under joint names.
  
• The amount being claimed under the charging order includes capitalised interest and a collection charge being levied by the claimant which was neither stated in an original Consumer Credit Agreement and which contravenes the guidelines laid down by the Office of Fair Trading in the document Debt Collection Guidance-Final guidance on Unfair Business Practices (OFT66), namely;
  

Charging for debt collection

2.9 Charges should not be levied unfairly.

2.10 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express

contractual or other legal provision.

b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision.

c. not giving an indication in credit agreements of the amount of any

charges payable on default.

d. applying unreasonable charges, for example, charges not based on

actual and necessary costs.

e. applying charges which are disproportionate to the main debt.

Physical/pyschological harassment

2.6

f. pressurising debtors to pay in full, in unreasonably large,

instalments or to increase payments when they are unable to do so.

• Other debtors, of whom the claimant is aware, would be unduly prejudiced.
  
• I have been in a debt management plan since June 2009 with an industry recognised organisation which has been making equitable payments to the claimant since that time. This plan would be unduly prejudiced by a final charging order.
  
• The action being taken takes no account of instalment payments being made to the claimant however the original Default Notice states proceedings will only be instituted if ‘the whole or any part of such sum is not then received’.
  
• Other creditors are happy with payments being made under my debt management plan and have frozen interest on accounts. This will not be the case if a charging order is made final.
  
• If the charging order was made final and led to the sale of my home my family would suffer hardship for the following reasons;
  

a. I have dependant children living with me at the address.

b. The property is in joint names and would therefore render the joint

owner and those children homeless.

c. My contract of employment considers that I am a mobile grade. If,

because of this order being made final, I am unable to obtain a

mortgage or rent a property in the future, then I am unable to comply with my contract of employment, which would render me unemployed, causing further hardship to myself and my family.

There is insufficient equity in the property for a final charging order to benefit the claimant.

[tynebridge]

dont know quite how to word either an apology to the courts for not taking action further but I was advised by Payplan that I need take no action with these proceedings when I have asked as time has gone by and have only found this was all possible when I found this website and forum.

[tynebridge]

they cant even get the spelling of my bloody christian name right!

[tynebridge]

Ok then, box3;

 

An order that the Judgement for Claimant (a copy of which is attached) made in the Northampton Bulk Court be set aside as default judgement was entered by request of the claimant notwithstanding that the claimant entered an amount claimed as a defaulted payment which included a collection fee with interest which was not part of the original Consumer Credit Agreement, was disproportionate to the original balance and was contrary to the Office of Fair Trading Guidlines for Debt Collection. The defendant wishes to apologise to the courts for submitting this form at this date however the defendant is a litigant in person and as such was unaware of his legal rights in challenging the claimant. The defendant requests that the court set aside the default judgement as the defendant has a real prospect of defending this action.

[robcag]

Hi tb

 

Fellow CAGger Spamalot had a CCJ and CO issued against her, which if I recall correctly had been dealt with by her DMC (also Payplan I think) filling the claim form in and 'admitting' her claim for her (very nice of them ).

 

She eventually went on to get the CCJ set aside (and the CO therefore removed), and ISTR that part of her argument for this was the fact that Payplan had admitted the claim on her behalf without her full knowledge and understanding of the implications of them doing so.

 

Although her case is no doubt different to yours in some aspects, there may be some useful stuff for you in her thread;

http://www.consumeractiongroup.co.uk/forum/legal-issues/192275-ccj-interest-debt.html

 

Cheers

Rob

[tynebridge]

and box 10;

 

The defendant respectfully asks that the court set aside judgement entered by default on XXXXX in the Northampton County Court.

The defendant being a layman and litigant in person and without the knowledge or assistance of legal advice while under a Debt management plan has only recently became aware of his legal right to ask for the judgement to be set aside, being ignorant of court procedure. The defendant upon receiving guidance on his case believes that there is a good prospect of success in defending the action for the following reasons

• The amount being claimed under the judgement includes capitalised interest and a collection charge being levied by the claimant which was neither stated in an original Consumer Credit Agreement and which contravenes the guidelines laid down by the Office of Fair Trading in the document Debt Collection Guidance-Final guidance on Unfair Business Practices (OFT66), namely;
  

Charging for debt collection

2.9 Charges should not be levied unfairly.

2.10 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express

contractual or other legal provision.

b. misleading debtors into believing they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision.

c. not giving an indication in credit agreements of the amount of any

charges payable on default.

d. applying unreasonable charges, for example, charges not based on

actual and necessary costs.

e. applying charges which are disproportionate to the main debt.

Physical/pyschological harassment

2.6

f. pressurising debtors to pay in full, in unreasonably large,

instalments or to increase payments when they are unable to do so.

• Other debtors, of whom the claimant is aware, would be unduly prejudiced.
  
• I have been in a debt management plan since June 2009 with an industry recognised organisation which has been making regular monthly equitable payments to the claimant since that time with no payments being missed. This plan would be unduly prejudiced by a final charging order.
  
• The action being taken takes no account of instalment payments being made to the claimant however the original Default Notice states proceedings will only be instituted if ‘the whole or any part of such sum is not then received’.
  
• Other creditors are happy with payments being made under my debt management plan and have frozen interest on accounts. This will not be the case if a subsequent rise in one creditor’s payment is undertaken.
  
• My payments under my debt management plan are sufficient to clear the original debt, without a collection charge and interest, within a period of 6 years which I believe is not unreasonable.