HFC/Restons Re-Determination Hearing.

[tynebridge]

robcag

 

It sounds like the same with me-I asked repeatedly if I could do anything to fight it and Payplan said no-just let it run its course.

If I'd known about this then I would have done all of this so much sooner.

Wonder if its worth adding it on?

[robcag]

ISTR Spamalot was advised to use that argument as the main thrust of her application, but I can't remember how far into the thread that was.

 

May be worth you reading a few pages of the thread.

 

Cheers

Rob

[tynebridge]

how about adding?

The defendant took no action in defending or disputing the court process upon advice from the debt management organisation dealing with creditors upon his behalf and submitted all court documents to them for their consideration, however, upon receiving guidance on his case believes that there is a good prospect of success in defending the action for the following reasons

[supasnooper]

have a look at spams thread from post #69 for ideas.

[tynebridge]

Ok then-I've read all I can and tried to take as much out of them as I can but I'm going to have to get something done about it so my paperwork's complete and i'll be dropping it in to the court tomorrow morning (with my £75 fee-ouch!).

Thank you all so much for your help-it's a shame that we have to deal with people like this, especially with the current economic climate adding more to our numbers daily. You have all been a lifeline and a glimmer of hope. If nothing comes of it I guess i'm back to where I am today.

Wish me luck.

[Taz11]

subbing

[supasnooper]

The £75.00 is painful but it could be the best £75.00 spent if you get the set aside granted.

[tynebridge]

supasnooper

I wouldnt even be trying this if it weren't for this forum and your advice. Whichever way it goes I am sincerely grateful to you for your patience and help:)

[tynebridge]

Well the application for the set aside has gone in-I'll ring on Monday to see if it's gone before the judge to see what happens. Bit miffed that Payplan didn't let me know I could challenge it as their legal dept had all of the paperwork- lots of time lost- but they've been good with everything else so musnt grumble. Nervous now about the next steps and facing Restons sharks.

[yourturntopay]

Payplan will only ever agree to a CCJ and ask for payment order. They don't opose court action or even check the figures.

 

Never let payplan deal with court stuff - they would agree to anything!!

 

I refused to allow payplan to deal with mine as I noticed restons hadn't deducted any payments I had made to HFC off the balance since the default notice was sent.

[tynebridge]

Update!

Went to court (not as scary as I thought). When in there it became obvious that Restons wanted a final charging order and that was that. I had prepared a statement but the judge would not let me read out anything at all as Restons claimed they had not got a copy of it. The judge was about to make his ruling when I told him that I'd applied for a copy of the credit agreement and SAR earlier. He then said that that changed things somewhat. He asked my reasons why I was disputing some of the proceedings. I replied that I believed the Restons collection charge was against the OFTI guidlines on debt collecting. He voiced his opinion that he thought it may not be commercially viable to pursue the collection charge (nearly £1600) to Restons. They said they may be prepared to forgoe the charge if they can secure a charging order. He then gave me 6 days to prepare a witness statement and get it to both Restons and the court (which I did). My case is now adjourned until Feb 4th 2010. Up to now I have received no reply from Restons to my CCA request (received by special delivery 1st November). Not even an acknowledgement. All copies of postage etc are included in my witness statement. I do have a question if anyone is able to answer-on the CCA it says that if the creditor cannot comply with it then the provisions of s77 apply though I cant seem to find out what this in fact means?

And-I've had my house valued by aa 'agreeable' agent who has given me a written valuation BELOW what my secured debt is in an attempt to fight off the charging order. I've asked for an attachment of earnings not to be granted as it puts a storecard debt before my mortgage, utilities payments etc which goes against all government debt advice and I've therefore asked for the court to allow me to continue with my payment plane which clears my debts in 6 years as other creditors think this is reasonable. Back to the fight in February then! The judge was very helpful if a little exasperated at my lack of legal knowledge but at least he agreed to an adjournment.

[supasnooper]

Did you apply for a set aside ?

 

This should have been heard before the Charging Order hearing.

 

You should get the CCA request off to HFC....Restons will not supply it.

[tynebridge]

I did apply for the set aside which he did until February when he also considers the final charging order-he ruled on nothing but chose to adjourn it all to allow me to put in the witness statement. When I said that I'd sent restons a CCA he asked them what they had done with it or whether they'd received it (i know they did) and the solicitor said he had no knowledge of it. He then said that if they had it-they should act on it or it may have consequences for them. I told him i'd sent it to them as they are my only point of contact and are the representatives of my creditor-he seemed happy with that and said that he was giving them until December 11th to prepare their paperwork and defence. I'm assuming from that that he thinks they should be responsible for the response. I've sent a SAR to John Lewis and they requested ID, which I sent, before they agreed to provide the requested info.

Fingers crossed I've covered all bases but he did only give me 6 days (including the weekend) to have all paperwork in the hands of the solicitors and the courts or it cannot be used. Bit of a rush but made it ...just!

[tynebridge]

Just received the reply to the CCA and Subject Access Request from Restons today (that I posted to them on 2.11.09 -next day delivery which ARE dated).

 

Quote;

"Thankyou for your (undated) Subject Access Request.

We are only obliged to send the data of which we are data controller which would not include data or copy documentation which we do not hold.

 

We would therefore respond as follows,

1. Original signed, executed credit agreement, Terms and conditions etc

We do not have.

2. Account history event etc

We do not have.

3. Copy notice of Assignment, default Notices etc

We do not have.

4. Documents relating to insurance

We do not have

5. Details of any collection charge

Please see attached statement;

A collection charge of 16.3% is applied to the account by the creditor. The creditors entitlement to do so is set out in the cards terms and conditions. The charge is designed to go towards covering administration and collections costs including receiving and processing instalments over the next (approximately) 7 years in this matter. If you are in a position to settle the account early you may ask the bank to review this charge. By virtue of the Consumer Credit Act 2006 a creditor in thistype of case is now entitled to seek contractual interest on the Judgement debt until payment in full on any outstanding (reducing) balance. This could be applied in place of a collection charge by a creditor.

6.Specific details of fees and charges levied by any other agency

HM court fee for summons £190

Court fee for charging order application £100

Land registry fee on registration of interim charging order £50

Land registry fee for office copy entries £4x2=£8

7. Genuine copy of any notice of fair use

Inappropriate in these circumstances

8.A list of third party agencies to whome ersonal data has been disclosed

HM Court services

HM Land Registry

Kearns & Company Solicitors-agents instructed to attend hearing.

9. Copies of statements for the entire duration

We do not have

10. Termination notices

We do not have.

 

We have also attached copies of documentation stored on our system together with a note of a telephone conversation on 31/07.09. This shows that there was a telephone call made to the mobile telephone number we held and a message was left for a return call. A telephone call was made to the home telephone on record where we spoke to an unknown female who advised that you would return at 2.30. This lady asked whether we had received a fax from Payplan to which we replied that we had not.

 

yours faithfully etc." end quote

 

Looks like they're saying they'll give up on the collection charge but apply interest instead-t**ts!.

It also seems they have very few documents relating to me and the person who was at the court for the hearing was from another solicitors who'm they'd appointed as their agents.

Hoping to get more details from the same request I made to John Lewis themselves.

And the 'unknown' lady they spoke to on the phone? My wife who clearly identified herself to them.

 

Is this the sort of standard response people get and any ideas people how the courts treat these kind of things would be appreciated to give me some (if any) weapons to fight back a bit at least.

Edited December 8, 2009 by tynebridge
more infor added

[supasnooper]

Restons do appear to have fully complied with your Subject Access Request to them.

 

If the Particulars of Claim state that they wish to claim interest after Judgment and it is stated in the credit card T&C's, then they are allowed to apply the interest.

If it is not on the POC then they can't.

 

Your Subject Access Request to John Lewis should reveal more.

[tynebridge]

"The Particulars of Claim (state);

The Claimant claims payment of the overdue balance from the Defendant under a contract dated on or about 2*/1*/200* in the sum of 1****.** inclusive of interest to the date of this summons at 1*.*% per annum from 2*/**/0* to 0*/0*/09.

DATE ITEM VALUE

2*/0*/2009 Default Balance 9***.**

2*/0*/2009 Collection Charge 1***.**

Post Rfrl Cr NIL

 

0*/0*/2009 Interest 6*.**

Total; 1****.**

 

Together with;

Interest pursuant to contract

at the rate of 6**.** pence per day

to the date of Judgement or sooner payment."

 

 

That's all it says in the box on the original claim form.

Is that any use in establishing whether they can claim the interest after Judgement in February.

Edited December 11, 2009 by supasnooper
Removed identifying amounts and dates

[supasnooper]

To answer the point on interest being added after Judgment, they cannot claim interest after Judgment as it is not stated in the Particulars of Claim.

They are only allowed to claim interest up to the date of Judgment.

 

And as a reminder - tell Restons to remove their collection charge as it is not allowed under Office of Fair Trading debt collection guidelines.

[tynebridge]

supasnooper

I would never even have looked at that without your advice.

And...on my witness statement I've stated that i believe the collection charge goes against the OFTI guidlines on debt collection-as does Restons asking for a higher payment when they know I cant afford it (as they have my financial statement) as does their demand for full payment within 10 days back in July/August. I downloaded the PDF of the whole OFTI guidlines and included the relevant sections in my statement with the parts highlighted.

 

I really would have been lost without this forum and especially your advice and guidance-I thank you for myself and my family.

[supasnooper]

And...on my witness statement I've stated that i believe the collection charge goes against the OFTI guidlines on debt collection-as does Restons asking for a higher payment when they know I cant afford it (as they have my financial statement) as does their demand for full payment within 10 days back in July/August. I downloaded the PDF of the whole OFTI guidlines and included the relevant sections in my statement with the parts highlighted.

 

 

 

Good work

[tynebridge]

A Small Victory?

 

Latest from Restons-received today.

1st page;

 

"We refer to the above matter and enclose by way of service Witness Statement signed pursuant to the recent Order.

You will note the Bank is prepared to 'waive' the collection without prejudice to its contractual rights.

Please confirm you will withdraw your application.

Yours faithfully etc".

 

The first three points of their witness statement are confirmation of names and adresses etc.

 

"4. Upon referral of this account by the bank my firm sent a letter to the Defendant dated **July 2009 explaining inter alia that we had been instructed by the Bank to seek recovery of the outstanding balance and requested a realistic proposal. A financial statement was received from the Debt Management Company representing the Defendant on the **August 2009 which offered an instalment payment. By letter dated **August 2009 the offer was rejected.The assertation by the Defendant that my firm was aware of both the involvement of the Debt Management Company and were already in receipt of his finanacial details by the time we first communicated with him is incorrect".

My first Payplan payment went to Restons early July (18 days before they first contacted me)complete with a financial statement which I'm seeking that Payplan confirm again. The plan put forward by Payplan was a 'realistic proposal'.

 

"5...Whether voluntarily or through a Court Order it is often the case that customers repay their liability (once the judgement has been obtained) by modest instalments over a substatial period of time. On this account the Claimant does not seek to charge post-Judgement contractual interest. However, as a concession, the Claimant is prepared to waive its entitlement to the collection charge and will ask the Court to reduce the amount of the Judgement and hence the Charging Order".

I was offerring to pay my liability by a larger instalment than all other creditors before judgement had been obtained. NO POST CONTRACTUAL INTEREST! (It wasn't on their POC anyway). They'll only waive the collection fee if I accept a Charging Order and I still dont want that.

 

"7. Reference is also made in the Witness Statement to the current available equity in the property. In my submission that is not a material consideration for a Charging Order application. The bank merely seeks security for the debt. It does not seek to enforce the Charging Order by way of an Order of sale. Available equity in the property will fluctuate over time."

How can equity in the property NOT be a consideration on a Charging Order? No equity=No security? Order of Sale...next paragraph.

 

"8. The Bank has no present intention to enforce liability while payments are made which are reasonable and proportionate in view of the Defendant's prevailing financial circumstances. I do not accept the criticism made by the Defendant of this firm's collection activity".

No present intention-so if they get the Charging Order they may try to force a sale in the future? My payment plan is reasonable and proportionate in view of my circumstances. The collection charge goes against OFT guidlines-it's their criticism-not mine.

 

Sorry if I've gone on a bit but minor successes (with conditions);

No collection charge

No post Judgement interest charges

BUT ONLY if I agree to the Charging Order and I've yet got no idea what they think is a 'Reasonable and proportionate payment' as my Payplan figure was rejected. The no present intention line worries me with the Charging Order, which is why I'm trying to avoid it.

Edited December 18, 2009 by tynebridge

[supasnooper]

Good to see you've pushed Restons back a bit.

 

It is not for Restons to decide anything.....the Judge does that job.

[The GodMother]

if you can prove that you only can afford that then the courts cant really ask you to pay more.

[tynebridge]

I'm hoping they see it that way-the Payplan financial breakdown makes it fairly obvious that I'm paying all my disposable income to service the debts. Payplan told me what I was allowed as household expenses, mortgage, secured loans, food allowance etc and the rest goes to service debt; which I'm happy with as it gets them down gets me back to where I need to be in a few years time.

 

My SAR came back from John Lewis/HFC. It doesn't mention any collection charge etc but the agreement refers terms and conditions back to the 'enclosed booklet' which I probably had in 2004 when I took the agreement out but which I haven't kept and which has probably changed since then so I've no idea what it originally allowed for.

Dunno if that document specified things which they can claim against me now but they haven't provided me with a copy of it as it was a generic terms and conditions leaflet.

 

Fingers crossed the common sense of it stands out. Just seems funny how Restons have said they won't proceed with either the collection charge or interest charges after judgement IF I withdraw my case. Trouble is I don't want an open ended charging order on my property as I don't trust them not to try to force a sale in the future which they hinted at. I'm following supasnooper's advice to the letter here (as it's all I really have to help me) and up to now he's been right every step of the way.

 

Shame John Lewis didn't include the original terms and conditions leaflet though.

[supasnooper]

Nice to see John Lewis\HFC have sent some goodies back.

 

I do like the sound of the agreement though. If it refers to an enclosed booklet and they haven't attched attached it then tough; it is not enforceable.

 

have a look at the link below as to why -

 

4 CORNERS OF THE AGREEMENT - Order of prescribed terms

 

I'd also advise you to have a look at these links which may help you understand the enforceabilty of the paperwork (courtesy of 42man & steven4064) -

 

 

Is My Agreement Enforceable - Useful

 

 

Consumer Credit Agreements

 

BTW, I would advise you read Spamalots thread again as there is a lot of good info there as well.

 

 

Finally, I do hope you and your family have a Merry Xmas and a Happy New Year.

[tynebridge]

Also wondering about Restons reply to my SAR which I sent to them on 2nd November (they would have received it the next day) but which they didnt respond to until 21st December. On their response to my witness statement they state that my SAR was undated but the fools have sent a copy of it back to me and the court with my handwritten date clearly visible on it. Surely that time period for response was too long?

If so, can I do anything about that?