HFC summary cause action court claim -no CCA - help required!

[winnifred1]

Hi all

not long home from work and have just played about with scanned images/putting them into a word doc- only to find that personal information is showing through permanent marker pen- will amend and upload tomorrow:)

[dx100uk]

scan it as a picture

then use paint prog to blockout pers info.

 

convert it to pdf by using one of the many websites then attach it to a msg here

 

dx

[winnifred1]

eventually managed it- use to colour in over the edges when i was a kid- nothing changed!!!!

 

grrrrrrrrrrrrr- getting grumpy now-trying to upload docs but getting nowhere fast:(

 

hopefully this is it now!!!!!!

New Folder.zip

 

Hi all

spoke to court this am re incidental application which is to try and establish the following:

(court date is late next week)

1. To ordain the defender to lodge a supplementary statement of defence within fourteen days,and

2. To ordain defender to lead at proof.

 

Whilst point 1 above is clarly a case of show us what you`ve got before the proof, what seems really strange is that point 2 had already been agreed by sherriff in favour of the persuers` earlier request of same??!!

Any thought anyone?

Is it a case of HFC`s sols trying to bombard me with info/court visits/procedure etc in the hope that it will grind me down?

I`m trying to be detatched and get my head round it all, but not coming to any conclusions- I think that HFC are trying to play heavy handed with procedure in the lack of a watertight case on their part, but I would welcome some balanced opinions from those with more experience (SFU,Ida,Monty et al??)

As usual I`ll sleep on it and see what my brain has worked out by the morning!!;-)

Edited April 6, 2010 by winnifred1

[seriously fed up]

The first thing that occurs - and maybe this question has been asked before and answered (if so, sorry) - but other than the Sheriff says so, why is it that you are being obliged to lead. This puts you potentially at something of a disadvantage - almost like being the pursuer. Put at its worst - and I hope I am not being alarmist here - they are putting you in a position of having to show that there wasnt a compliant agreement, rather than them having to prove that there was. I might be inclined to put another IA, requesting that this be reversed (though it might be too late).

Will they try to spook you? Does the sun rise in the east? As someone said to me on another thread, its "in the nature of the beast".

To be honest, I have had no dealings at all with HFC - thank goodness - but somewhere on the site there is someone (might be a site team member) who includes in his sig when posting "I hate HFC". I am going to pm Ida to try to find out who this is and ask them to drop by and give you some advice about typical HFC tactics.

But it would be a help if you can dig out the court order ordaining you to lead and see if there is a justification there that you might be able to challenge. If you are right and they are just playing the heavy, getting this reversed might be enough to persuade them to go away.

[dx100uk]

hehe

it could even be a few posts up on the left:D

 

dx

[seriously fed up]

or even immediately above this one perhaps?

Any comments on the thread?

[dx100uk]

no court stuff is whoosh........ as far as i'm concerned.

 

dx

[IdaInFife]

SFU it's DX that has that in his sig lol

 

DX i think what they are looking for is some info on HFC and how they deal with things

[dx100uk]

as said i have no pers exp and my court knowledge is zero, and i can't ever bluff my way into half understanding it all.

 

however, as can be seen i have a work collegue [pete 2002_2004] whom is going thru the same as you?

 

i have helped there, though much of the case is undocumented on cag.

 

as i have pointed to already, it threw the whole case into disarray when the ppi question was brought into play, the judge immediately ordered hfc to comply with his SAR request [they were refusing as he would not sign the request] and the hearing has been rescheduled to inc the reclaim [working on that now].

what this mean legally i don't know.

 

but overall, by always nosing in on HFC or reston threads, my overall view is one that they are very hot till they actually get to court, then it seems to fall apart for HFC.

 

thats the best i can do.

 

dx

Edited April 9, 2010 by dx100uk

[IdaInFife]

thanks

[seriously fed up]

yes many thanks dx - that's as much as any of us can do

[winnifred1]

Hi all

does anyone know of any case law/precedents to " encourage" the sherrif that the persuer should lead at proof?

[seriously fed up]

you dont actually need precedent for this - its normal procedure. The argument for it is that if the pursuer (the person seeking the order) cannot make a convincing case on its own (ie before hearing the other side's case), then there is not much point on going on.

This is why I am concerned about them putting you as the defender on first - reversing normal procedure. First of all by stating your case first you are a target for them. Secondly you do this to some extent in ignorance of what their case will be. Lastly because symbolically at least, it could put at least some of the burden of proof on to you.

So, what we need to find out is the justification for reversing the normal procedure. Was it not stated in the communication you received from the court advising you that you would be leading at proof? Or were you just told this? If the former, what was the justification? Were you advised that HFC were putting this motion to the court, and were you there when this was determined? If not, why not? One reason might be that you werent told.

I really do think we need to find out why the case is being dealt with in this way, and why that decision was taken.

[winnifred1]

SFU- in your last post you asked about whether an IE for me to lead at proof had previously been made- it had, early in February, and was granted ( mainly) because I was ill prepared to argue the case against.

Seems very strange that they have again asked for same at this coming hearing?

I have not had a direct communication re this from court, only that persuer had asked for this ( along with their IE sent end of Jan for Feb court appearance) and sherriff agreed to their request. Does this now have to be formally communicated from the court?

I was there at the hearing, but had mistakenly thought that my IA served on persuer to sist case/produce docs would "put it all on hold" and any reference to proof would be dealt with at a later date- bad preparation on my part.

In reality, it`s been dealt with in this way( so far), because they have been boxing clever, and know how to use the system fully to their advantage.

I`m fully aware I need to be better "prepared for battle"- thanks for everyone`s help so far.

[seriously fed up]

OK - I had assumed that this had been granted. If not then you need to go to court prepared to resist this. Remember they are the pursuers - the normal procedure should be that they go first at all stages including proor, and I have expressed my concerns about this already. I really have no idea what their argument for putting you in first will be. My best guess is that it will be that you really dont have a case - but they will need to demonstrate this - the burden of proof will be on them. But it would be wise to get your case into the very order that you can, just in case the Sheriff wants an assurance that you do have a viable case - probably a summary would be adequate. But I would go better prepared than that, just in case they are aiming to go for final judgement.

Friday isnt it? Aim for Wednesday/ Thursday to get this done.

[winnifred1]

That was the strange thing- their wishes for me to lead at proof were granted, so that`s why I`m so confused that they are asking for it again?

Will be busy over next couple of days preparing for court on Thurs- back online tomorrow night- thanks again for all help so far!

[seriously fed up]

Were I you I would contact the Sheriff Clerk's office and find out what is going on? Two possibilities, i think. The first is that they asked and a decision was delayed till a subsequent hearing, which is why they will be putting in for it again. The second is - I just dont know. But its important that you find out before Thursday (sorry, thought it was Friday).

[winnifred1]

Alright- just got a bit of clarity on this-because The previous incidental application had asked to ordain defender to lead at proof, this is effectively a continuation of same IE, so although this court date is to ensure I lodge defence docs with court and persuers within 14 days,because it relates to previous application by persuer they have to include reference to the main point of the previous IE to which this is related( hope this makes sense!) .

So effectively this is only a court date to remind me to produce docs ,but I do not have the option to challenge the decision to make me lead at proof, unfortunately.

Next thing for me to do then is to trot along to court on Thursday, and following that I will start compiling my defence;

This will be based on a large chunk of what has previously been posted( thanks SFU!)

along with relevant parts of 1974 CCA.

I will also scour the site for other relevant case law.

I presume their main case law will be based around the manchester case-any thoughts?

Edited April 13, 2010 by winnifred1

[seriously fed up]

Any decision by a court should be capapble of being appealed - perhaps to the same sheriff, perhaps to the sheriff principal? Is that an option that could be explored?

But, either way, I would definitely want to know how this happened and what their case was, in order to get some kind of idea of what they are up to.

On the other hand - to be a bit cheerier - I suppose if you have a good case it shouldnt make that much odds whether you go first, and make them realise that their case is hopeless; or second and blow them out the water.

But Thursday doesnt require you to have a defence in place? You are QUITE sure about that, because the consequences of being wrong could be pretty awful! If you have time after this to put your defence together then great. I dont know I would bother all that much with Manchester though. I have had a wee look through your thread from the beginning - what a saga - and it seems to me

 

1. I think they have now produced a document with terms and conditions and not just an application form. You seemed fairly doomy about this back at the end of February, but they sent you an application form earlier on and the T&Cs came later? Its hard even from a scan - to be clear about this, but how likely does it look to you that these two documents really belong together. Remember these t&cs need to have "been there" when you signed the application - they couldnt, for instance, send them along later (eg with the card). The onus of proof to show that you would have had these documents at the time of signing ad that they were all part of the same document is what they have to prove. Have a look at this one - its MBNA, but it covers this sort of ground - http://www.consumeractiongroup.co.uk/forum/mbna-successes/238861-mbna-court-action.html
   
2. I wouldnt worry overly much about Manchester as s78 compliance isnt that much of an issue imo. S78 is simply about informing you what sort of agreement is in place between you. Judicial enforcement - which is where you are at in a court - concerns s61 - nothing to do with 78. Concentrate on s61 (see my posts 15 and 25 - they start to sketch this out) Also download a copy of the Consumer Credit Act 1974 - just do a google search
   
3. Have a think about the questions 1-7 I posted on the 4th.
   

[winnifred1]

Hi SFU(& others)- in court this am to continue with IE regarding me to lead at proff and provosion of docs;

 

Grumpy but witty sherriff asked about background to case(in brief) and my defence in particular, to which I restated non conformance with S61 & 78 of act- HFC have only produced app form etc etc, and sherriff also asked whether I had received and repaid money to/from HFC, to which I replied I had, but had not paid since Dec 08 when originl S78 request was sent.

Other side( with a certain degree of mock incredulity I might add) asked for a hearing in two weeks " to allow me to contact HFC`s solicitors to make it clear exactly what docs I require"- as they are playng the game of "we have supplied what you asked for(no you haven`t) so what is your problem?"- not in so many words, but that was the gist of it.

So court again in two weeks, and will prepare for this as if it is proof( which is due 2nd week May)-feeling pretty positive in that they are obviously using all the techniques and opportunities at their disposal in order to put me on the back foot- my thoughtsare that the more they do that, the weaker their case must be?

Thanks for everyone`s help so far

[seriously fed up]

That sounds as if it went off ok (btw you probably did ok with the Sheriff - most of them are grumpy - wit is a bonus).

I would want to keep them (and the sheriff) away from the "was money borrowed, but not been paid back" moral line (sheriff is going in that direction from what you have said).

That they want you to clarify the documents you want for your defence I think gives you a good chance. As I am sure is clear now you are looking for a document that "contains" (important word) your signature and the three prescribed terms, and embodies the other terms and conditions. Without this they are in breach of s61 (and in particular 1a) and thus can only enforce by order of a court (s65) HOWEVER, by virtue of s127(3) a "court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)". This lays down your line that this isnt about "was money lent", but is about whether there is an enforceable agreement.

The main thing that MIGHT go wrong is that they do a "cut and shut" job - take the application form they have already sent and attach it to a set of t&cs that might or might not have been around when you signed up, but probably werent - ie they make it up. But lets not worry about that for now - lets see what you can smoke out before the next hearing.

[winnifred1]

Hi all- time for an update since my last post;

Was sent some paperwork bt sols acting for other side, and in it was a case Napier v HFC Bank March 2010- they were planning to use this as a precedent.

In this case the persuer tried to argue a fairly narrow legal point re exclusion of credit limit from prescribed terms, but this was disallowed at trial(please read the whole case for more info- that is the short version!)

Anyway, to cut to the chase, I felt that as all the prescribed terms were included on the reverse of the app form lodged at court that my defence of it being an app form as opposed to a properly formulated agreement would not stand up in court.

The road to making this decision was muddied by the persuer lodging, in correct time , the original document at court- the problem was it was misfiled, so that when I went to check docs at court house it appeared as if originals weren`t there, that prescribed terms were on a separate doc to the app form, and that I had a good case. Now possibly if my case had come to a head before the Napier v HFC case I would have stood a fighting chance of having it thrown out, but as there was a precedent in place I felt that discretion was the better part of valour , and came to an agreement re time to pay.

What it did allow me to do was to see the whole court/persuer thing close up, and also get an idea on the amount of posturing/ scaremongering that can take place to try to scare those not used to the court system.

It bought me a load of time when I was not in a position to make any repayments, and taught me loads about the enforcability(or otherwise) of other "agreements".I suppose it`s important to look at the bigger picture- of all the credit card "agreements" i have/had in place, only one (this one)carried through with any legal proceedings, and as far as I can ascertain, none of the others have any documentation which will stand up in court.

Thaks to Ida, Rory SFU and others who put in so much time to help-I haven`t been back on the site for a wee while as I needed to clear it from my mind for a while!!

Thanks again guys!

[winnifred1]

Hi all

have an HFC credit card dating from late 90`s, and have asked for CCA to be provided( using template letters from this site).

 

Eventually a photocopy of an application form showed up(maybe a month later?), along with a "this is a legal agreementand this is all we have to give you" covering letter.

 

This was from early 2009, since when I have been in court twice to defend a claim from HFC for the full amount owing plus costs etc.

 

On the first occasion persuer immediately asked for " an adjournment of a month to allow further background checks" or such similar phrase,

whilst on the second occasion solicitor acting for HFC came out with all guns blazing asking for decree to find in favour of HFC iplus costs etc.

 

The documents that were displayed in court were some recent statements along with original application form as sent to me.

 

I have defended action on following basis;

S78 not complied with, nor is S61of 1974 act.

 

They countered by saying they have complied, and that as I do not dispute the debt then payment should follow.

 

I have tried to argue that a debt MAY exist, but without proper terms being included in agreement, and without showing I am a party to same,

then no calculation of any alleged debt can take place, and therefore no payment can logically be made.

 

This is a summary case, being dealt with in the sherriff court.

 

In light of a case failing on similar terms in Manchester in last couple of weeks, what does anyone suggest from here?

 

I have a "proof" hearing early next month in same court

- can anyone suggest best possible course of action,

and also if possible can someone give me a rundown on protocols etc for a proof?

 

Thanks in advance!!