Help needed with Appeal V Barclays

[clivey888]

nope no dates what soever

[clivey888]

Donkey, What is the rules with an amended defence with regards to timeframe , As the case is on monday morning and i only rec there default notice with terms this morning can i hand in an amended defence monday first thing ?

[clivey888]

Sorry another question is while your here,

 

What is case with hfo capital based in ireland etc or should i forget that now?

 

Should i just concentrate on these facts:

 

1) NOA has incorrect account number on.

2) The agreement is unenforceable as certain condtions not meet.

3) The default notice is not from barclays but from mercers

4) Dates on default are faulty

5) It does not meet the prescribed form of s.88

 

Also didn't see earlier but there was another page with the terms today stating (BARCLAYARD T/C AUGUST TO DECEMBER 1999) so yes was dated but by them.

Edited June 4, 2010 by clivey888
another question

[DonkeyB]

Looking back (and still going through) your defence should have been in two weeks ago! Aargh!

[clivey888]

Donkey, just seen the defence vjohn did for me , as I only rec some info today I should be able to amend that defence surly.

[DonkeyB]

Yes - need to email this afternoon to TR and the court. I'm worried about its lateness, but you can still rely on your previous defence. Did you send in VJ's defence at any time?

[clivey888]

The defence was sent back in march

[DonkeyB]

So what will be missing is the amended bit? Away for an hour, then let's see what we can do. Need to answer the issues raised in their WS - may have to just hand it to them on Monday, before the hearing, as they've only just sent you more stuff, and ask if the judge will allow it. If he says no, then he should not allow their T&Cs to stand.

[clivey888]

Yeah just the amended bit missing, another in my favour is that I sent a letter to the courts Stating info requested not been forth coming and the copy of faxes they sent to me today were dated end of march so they've been sitting on them for two mths then pass onto me last minute.

[DonkeyB]

When were the T&Cs sent, and how were they sent to you, ie. can you prove when they sent them?

[clivey888]

They sent them on the may 28th earliest as that's the date on the front letter on the docs i rec today, I will try to find the envelope in case sent later, They were sent normal royal mail post.

Edited June 4, 2010 by clivey888
edited date

[clivey888]

Donkey i need serious help here buddy, court case tomorrow at 10:30 and am confused as to what to do next as there are loads of unanswered questions!

[clivey888]

ok right now i am in the process of listing all charges and ppi which is included in the sum they are claiming in a spread sheet for the judge, I am also doing a a letter to the judge stating reasons for debt problems and are ins and outgoings for damage limitation if the likely scenario that we lose this case, I would appreciate anyhelp from anybody with a revsised defence to hand due to last minute docs being rec friday.

 

Totally under the cosh at this mo and pressure mounting by the minute but i will do the best i can and hope the judge has pity on our peasant souls!

[broken arrow]

Clivey, can you point me in the right direction where VJ,s original defence is ?

[clivey888]

just about to fetch it

Edited June 6, 2010 by clivey888
?

[clivey888]

Here it is:

 

1.I, [insert name and address], am the Defendant in this action and make the following Witness Statement in defence to the claim made by HFO Services Ltd as per the court order dated 11th February 2010.

 

2.Except where otherwise mentioned in this statement, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and at all times put the Claimant to strict proof thereof.

 

Claim Form

 

3.The Claimant on the Claim Form is HFO Capital Limited and has utilised a UK address. This is disingenuous because there are no firms registered on Companies House under the name HFO Capital Limited in the UK.

 

4.Furthermore the Claimant in the proceedings has changed to HFO Services Limited seemingly in contravention of CPR 19.4 where permission from the courts has not been granted. Certainly no notification has been sent to me and the court concerned is unaware of any application by the Claimant.

 

5.The Claimant is therefore put to strict proof of any application and any supporting reasons for it. It is argued that I have been placed at a considerable disadvantage by the Claimant as my defence has been served on the assumption of the previous Claimant being the only party eligible to bring proceedings.

 

6.It is further argued that the court has not had the opportunity to make a consequential order under CPR 19.4 (6) and that any change of Claimant without an application is an abuse of process placing me, as a Litigant in Person, at a disadvantage.

 

Enforcement Issues

 

7.The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit agreement and the Default notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements below.

 

Credit Agreement

 

8.The Credit Agreement disclosed by the Claimant is the document that is alleged to be the original executed agreement eligible for enforcement. However the document clearly states that it is an “application” for credit.

 

9.It is therefore admitted that, in the sense that I applied for and was given a credit card by Barclaycard and that there was an informal agreement between the myself and Barclaycard. I do not admit that such agreement was reduced to writing. The precise terms and date of any such agreement are not admitted and the Claimant has not disclosed such a document.

 

10.Notwithstanding, if, which is not admitted, there is a written agreement in existence, it is admitted that such an agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act).

 

11.Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

 

12.Under section 61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under section 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

 

13.The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

 

14.Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order [Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)]

 

Courts Power to enforce

 

15.In Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 Lord Justice Tuckey ruled that:

 

16.“33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement.”

17.

The discretionary power under section 65 (1) to order enforcement of an agreement which does not comply may be exercised on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2)).

 

18.Further, section 62(1) of the Act requires that if an unexecuted agreement is presented for signature, but upon signing by the debtor the document does not become an executed agreement, then a copy of it, and of any other document referred to in it, must be there and then delivered to the debtor. It is asserted that no such copy was presented or sent.

 

19.Section 62(3) provides that a regulated agreement is not properly executed if the requirements of section 62 are not observed. Further and in the alternative, a copy of the documentation signed by myself was not provided to me at the point of signature and that, which is not admitted, if this document was the agreement it was therefore improperly executed.

 

20.I did not, until after the issue of these proceedings, receive a copy of the Application Form. I recall receiving a credit card following on from the completion of the Application Form but do not recall being provided with, at that juncture, any documentation containing any alleged terms and conditions nor was a copy of the signed document provided. The Claimant is put to strict proof that such terms and conditions were so supplied and that the document meets the provisions of the Act.

 

21.It is averred that the Claimant is fully aware that an Application Form, which is the document they have presented for enforcement, is not a valid executed agreement under section 59 of the Consumer Credit Act 1974 as it has been pointed out to them in other litigation proceedings they have been involved in.

 

22.Section 59 states that:

 

59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

23.It is averred that I am not bound by any application form and that the Claimant’s attempt to enforce this debt when the Act states that there is no bind between me and the original creditor is unwarranted.

 

Default Notice

 

24.In order for the original creditor to terminate a credit agreement and sell the account to an external debt collection within the provisions of section 136 of the Law of Property Act 1925 the creditor must serve a Default Notice under section 87 of the Consumer Credit Act 1974.

 

25.The Default Notice must meet the requirements of section 88 of the Act and must be in the prescribed form. The prescribed format for a default notice 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).

 

26.The Claimant has not provided the Default Notice from the original creditor which is the instrument by which the original creditor is able to terminate any alleged agreement in force.

 

27.The Claimant has instead provided a Default Notice of their creation dated 21/10/09 yet claim the account was sold on 26/11/07. Clearly the ability for the Claimant to issue their own Default Notice nearly two years after the original termination of an alleged credit agreement is disingenuous and I allege this has been provided by the Claimant to mask the failings by the original creditor to terminate the account lawfully.

 

28.It is argued that the Claimant in these proceedings has no standing as the account was terminated unlawfully by the original creditor and no sale to the Claimant should have occurred.

 

Notice of Assignment

 

29.The assignment document was not created by Barclaycard despite the appearances to the contrary. I therefore put the Claimant to strict proof of the origin of the document.

 

30.The reason for doing this is because the Claimant on the Claim Form is HFO Capital Limited but as mentioned above in points 3 - 6 the current Claimant is HFO Services Limited.

 

31.This begs the question why the Claimant has not provided to the court a Notice of Assignment from HFO Capital Limited to HFO Services Limited?

 

32.If the Claimant is indeed HFO Services Limited, why has Turnbull Rutherford Solicitors disclosed a document pointing a course of assignment in a different direction? The issue is not de minimus as there appears to be significant confusion as to who owns the debt and who has the right to take action.

 

33.The Claimant failed to provide any reasons via telephone on the 24th March 2010 to explain this discrepancy and I believe the court is best placed to ask these questions.

 

34.It is also a point of fact that the account number specified on the Notice of Assignment is incorrect and bears no resemblance to any account number held by the original creditor.

 

35.It is a further point of fact that the balance that has been assigned is subject to assessment for penalty charges and the Claimant has thus far been able to prove how the balance has been accrued. If the Claimant is unsure about the balance they are claiming how can the court make a judgement for any sum?

 

36.It is respectfully requested that if the Claimant is unable to resolve these issues to the satisfaction of the court, or has committed any procedural errors both in statute and consumer law that the I am allowed to submit an amended defence to any further submissions, document or verbal, by the Claimant.

 

37.The reason I would ask for this permission is because I am made aware of 3 other cases where the Claimant has attempted to confuse the course of justice and commit similar acts of abusing the court processes by blurring the lines of assignment to the extent that severe procedural errors have been found and ruled upon.

 

38.It is further submitted that when these issues were highlighted to the Claimant they discontinued proceedings and were subject to costs being awarded against them for their behaviour.

 

39.I contend that the same is occurring in this claim and I respectfully request the court to consider this when assessing the merits of the Claimant’s case as the Claimant relies upon irregular and unlawful documentation in the pursuit of this claim which appears to be an abuse of process at best and not in adherence to Consumer Protection laws.

 

40.I respectfully request an order that the Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed and that the Claimant pays my costs.

 

 

Statement of Truth

[broken arrow]

More questions-

is there a response from the other side.

is Mrs Clivey, fully understanding to the content of the defence.

[clivey888]

points i need help with is that they have provided a default notice now with no heading on it which was obviously sent by mercers acting as agents for barclays, The default notice is dated 19th Feb and states rectify by 5th mar 2007 (Do the dates comply as not sure how to work that out?)

[clivey888]

More questions-

is there a response from the other side.

is Mrs Clivey, fully understanding to the content of the defence.

 

To a certain extent yes, But i have listed so far all bullet points for her to follow and help her in front of judge.

 

Sorry what do you mean response from otherside? in regards to?

Edited June 6, 2010 by clivey888
further question

[broken arrow]

Sorry what do you mean response from otherside? in regards to

 

Their witness statement.

[clivey888]

Again sorry, With regs to the default notices, If HFO issued there own default notice after the origonal from mercers does the HFO one take presedence now as this one i was told only allows 11 days of service

[clivey888]

only response i have is a fax copy of suppose terms already scanned on last page and a fax from barclays trying to claim both account numbers are for the same account even though the account number on the NOA has never been mentioned or on any documentation we have ever rec.

[clivey888]

Their witness statement can be found on post 211 onwards scanned

 

page 11

Edited June 6, 2010 by clivey888
page

[broken arrow]

So there is no witness statement, so what evidence are they relying on ?

[broken arrow]

Their witness statement can be found on post 211 onwards scanned

 

page 11

 

 

cheers, will have a look

 

The answer to default notice is in your defence

 

26.The Claimant has not provided the Default Notice from the original creditor which is the instrument by which the original creditor is able to terminate any alleged agreement in force.

 

27.The Claimant has instead provided a Default Notice of their creation dated 21/10/09 yet claim the account was sold on 26/11/07. Clearly the ability for the Claimant to issue their own Default Notice nearly two years after the original termination of an alleged credit agreement is disingenuous and I allege this has been provided by the Claimant to mask the failings by the original creditor to terminate the account lawfully.

 

28.It is argued that the Claimant in these proceedings has no standing as the account was terminated unlawfully by the original creditor and no sale to the Claimant should have occurred.

 

If they are issuing a new default notice, how can they the account has already been terminated.