Fluffystuff's OH v HFC

[Fluffystuff]

My God - if that happens we might as well all lie down and give up.

 

Well, to coin a phrase, "it ain't over 'til the fat lady sings" so lets hope it's the 'right fat lady' singing at the Court of Appeal.

[Josie8]

Thankyou for that information Josie.

 

Assume we can request a stay actually at the SJ hearing on Wednesday?

 

 

Fax a request to Restons tomorrow to agree an adjournment pending the appeal as they are seeking to rely on it . Send copy to court.

 

When they refuse attend and ask for adjournment.

[Fluffystuff]

Josie, to say you're a little star is an under statement and that little word 'thankyou' is said from the heart.

[Fluffystuff]

http://www.supremecourt.gov.uk/docs/...7_Judgment.pdf

 

For those of you defending wholly unenforceable agreements it might be worth printing out the judgment to get the Judge's attention.

 

I know it is something we already knew but it could save you time and waffle. Let the Barrister they send argue against a recent Supreme Court Judgment! LOL

 

See at 12:

 

12. The Act and the Regulations distinguish between ‘prescribed terms’ and

‘required terms’. In the case of an agreement predating 6 April 2007 such as the

agreement which is the subject of this appeal, by section 127(3) of the Act a failure

properly to include a prescribed term in the agreement renders the agreement

wholly unenforceable, whereas a failure properly to include a required term merely

means that the agreement is enforceable only by court order under section 65(1) of

the Act.

 

 

With thanks to Ruprecht for bringing this to our attention.

Think I might have a copy of this at the back of my bundle?!

[humbleman]

http://www.supremecourt.gov.uk/docs/...7_Judgment.pdf

 

For those of you defending wholly unenforceable agreements it might be worth printing out the judgment to get the Judge's attention.

 

I know it is something we already knew but it could save you time and waffle. Let the Barrister they send argue against a recent Supreme Court Judgment! LOL

 

See at 12:

 

12. The Act and the Regulations distinguish between ‘prescribed terms’ and

‘required terms’. In the case of an agreement predating 6 April 2007 such as the

agreement which is the subject of this appeal, by section 127(3) of the Act a failure

properly to include a prescribed term in the agreement renders the agreement

wholly unenforceable, whereas a failure properly to include a required term merely

means that the agreement is enforceable only by court order under section 65(1) of

the Act.

 

 

With thanks to Ruprecht for bringing this to our attention.

Think I might have a copy of this at the back of my bundle?!

 

The problem has been that the Judge's are allowing random bits of paper attached to anything with your signature and accept that as an agreement. It has always been clear that any agreement regulated by CCA 1974 should have all the prescribed terms within the four corners of the signature, but the judge's seem to have rewritten this part of the Act.

[Fluffystuff]

The problem has been that the Judge's are allowing random bits of paper attached to anything with your signature and accept that as an agreement. It has always been clear that any agreement regulated by CCA 1974 should have all the prescribed terms within the four corners of the signature, but the judge's seem to have rewritten this part of the Act.

 

I know humbleman, but I guess "every little helps" as they say.

[Fluffystuff]

Well, no response to my request for an adjournment but...............

 

Guess what's just come through the fax machine - a WS from an HFC employee - allegedly.(An External Agents Audit and Process Manager!)

 

More 3rd party heresay then - in the words of bankerrhymeswith : "Would a External blah de blah, be involved with licking stamps to send out application forms and would they get involved with opening envelopes when they came back?!" Was he even there in 1994?

 

So, first question is, can they use it tomorrow - they obviously decided that Miss Tipping's sworn statement wasn't good enough!?

 

This 'latest' WS confirms they "cannot produce the original or actual copy of the agreement" but "is able to provide a reconstituted 'copy' (within the meaning of the Act)" and "It is denied that the Bank is now under an obligation to do so. The Bank relies on Reg3 of the CCA (Cancellation Notices etc) Regulations 1983 which inter alia provides that any copy document can omit various information including signature boxes and dates. I am satisfied that this is an accurate reconstruction of the agreement which the Defendant signed"

 

"The bank has inserted the name and address of the Defendant"

 

"The document exhibited.......has been obtained from other credit agreements for the same GM credit facility signed by customers at roughly the same time. I can therefore confirm that the t&c's which applied to the Defendant's card are the t&c's at exhibitxxxx".

 

He then goes on about what the account set up procedure was, how OH would have completed an application form and signed the agreement.

 

and last but not least -

 

"I confirm to the Court that I have specifically checked with the Bank's systems and can confirm this Default Notice was sent to the Defendant by way of first class post"

 

(So why have I got an envelope with a big black S in the corner then? Copy sent recorded del. to Restons yesterday.)

 

 

I note no mention of the Amex case , assume we still go for adjournment?

 

All and any comments most welcome.

[Josie8]

Yes still go for adjournment.

 

Throws a bit of doubt on the evidence contained in the new witness statement doesn't it you having the ticking envelope.....................

[diddydicky]

The document exhibited.......has been obtained from other credit agreements for the same GM credit facility signed by customers at roughly the same time.

 

 

the creditor would have had several similar types of agreement at the time- the production of a reconstruction of an agreement which was not the one signed by the debtor cannot be a true and honest copy- it is merely something that the creditor states MIGHT HAVE looked like the original agreement

[diddydicky]

i would also ask the court for an adjournement so that this witness can be called to court to be examined as to his evidence

 

how long has he worked for the claimant

 

was he in the department at the time

 

did HE/SHE personally deal with the agreements.storage etc

 

did he/she deal with the retreival

 

the company policies and proceedures at the time

 

audit trails etc etc

[Josie8]

i would also ask the court for an adjournement so that this witness can be called to court to be examined as to his evidence

 

how long has he worked for the claimant

 

was he in the department at the time

 

did HE/SHE personally deal with the agreements.storage etc

 

did he/she deal with the retreival

 

the company policies and proceedures at the time

 

audit trails etc etc

 

 

 

Yes tell the court they have tried to ambush you with late service of this witness statement - should have been served no sooner than 3 days before the hearing. If a djournment granted ask for your costs

[Fluffystuff]

Throws a bit of doubt on the evidence contained in the new witness statement doesn't it you having the ticking envelope.....................

 

But he's so convinced it's 1st class, I even went to double check my 'big S'

 

Josie, just to confirm, adjournment just because Restons confirmed elsewhere that they intend to rely on Amex case or to include the late submission of new WS and for that witness to be called as DD suggests?

 

DD - Thanks as always for your submissions.

[Fluffystuff]

Yes tell the court they have tried to ambush you with late service of this witness statement - should have been served no sooner than 3 days before the hearing. If a djournment granted ask for your costs

 

 

Assume you mean no later than ?

 

Thanks again for all your help.

Edited July 13, 2010 by Fluffystuff

[Fluffystuff]

Sorry Josie,

 

Final question - Do we ask for adjournment as soon as we arrive or only when we go through to the judge?

 

Excuse my ignorance!

[Sagittarius]

You say to the judge at the start something like "Sir, before my friend opens I have an application to make".

 

You then request an adjournment for the reasons previously stated

Edited July 13, 2010 by Sagittarius

[Sagittarius]

The claimant will almost certainly be coming down the Carey and McGuffick Route regarding the unexecuted application form. If they do, you need to head them off robustly.

 

The first thing is to differentiate them from your case.

 

McGuffick

 

McGuffick differs because it is was a case of temporary or redeemable unenforceability, concerned only with section 77 of the Act. (see para 19 of McGuffick Judgment)

 

Your case however, concerns PERMANENT or IRREDEEMABLE UNENFORCEABILITY under s127(3) of the ACT and is therefore different. Following your CPR 31.15 request the claimant has stated it does not have the alleged original agreement.

 

Carey

 

Carey differs because it primarily deals with non compliance with copy agreement requests under s78 of the Act (see para 1 Carey Judgment).

 

In Carey the fact was the absence of an original executed agreement was not a bar to compliance with s78.(see para 119 Carey Judgment).

 

In Carey, the judge confirmed that the burden of proof is upon the Claimant. This was confirmed at para 196 Carey Judgment), where the burden of proof in relation to an Improperly Executed Agreement (IEA) was upon the Debtor Claimant Mr Adris, and not upon the Defendant Bank.

 

This differs from your case, because you are the Defendant, so the burden of proof is upon the creditor Claimant to provide proof of the alleged executed agreement containing prescribed terms. You have put them to strict proof.

 

Positive Assertion - it may be a good idea to assert something like this:

 

The Defendant admits that in or about [Date] entered into an agreement with [Claimant] and which was an agreement regulated by The Consumer Credit Act 1974 (The Act).

 

The Defendant has no recollection of and makes no admissions regarding the precise purpose of the agreement or of its terms, conditions and other provisions or what would constitute a breach thereof. The Defendant denies that the agreement was a properly executed agreement and denies committing a breach thereof.

 

 

Summary Judgment Criteria

 

It is respectfully submitted that this case is unsuitable for Summary Judgment.

 

The test under CPR 24.2 is whether the prospect of success if realistic rather than fanciful; the court should consider the evidence which can reasonably be expected to be available at trial - or the lack of it: Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA 550;

 

The duty of a judge hearing such an application is to access the prospects of success for the relevant party, the criterion being not one of probability but the absence of reality : as per LORD HOBHOUSE OF WOODBOROUGH in Three Rivers District Council v England (No 3) [2001] UKHL 16,

 

In particular, Hearsay Evidence is decided on a 'Balance of Probability' test. This makes the case unsuitable for determination at Summary Judgment, which should not be a 'mini trial' in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way - as per LORD HOPE OF CRAIGHEAD in sections 93 and 96 of Three Rivers District Council v England (No 3) [2001] UKHL 16.

Edited July 13, 2010 by Sagittarius

[pedross]

Hi Fluffy

 

Only just spotted your situation and had a quick read.

 

In my opinion the point regarding the amex situation and the statement that the 14 days were not relevant is not the same situation as your case.

 

I have not seen the DN but HFC DN's normally state that if you do not comply by the date stated the agreement will be terminated. Therefore, if yours states that, HFC have taken action before the 14 days have elapsed, they have terminated the agreement. Once this happened it would be reasonable for you to believe that it was now impossible to rectify the situation within the terms of the DN no matter how long it was before legal action commenced.

 

The CCA clearly states that HFC, in making this mistake do not have the benefit of claiming sums not yet due at that time. The agreement is terminated so when Restons say that they can just issue a new DN that is wrong because there is now no agreement to default on.

 

So the amex case has been appealed so if that argument is to be accepted then it would only be fair to wait for the result of the appeal, however, your case is different as HFC did take action unlike amex who did not.

 

I have had a quick read through so I hope I am not off track.

 

Pedross

[humbleman]

i would also ask the court for an adjournement so that this witness can be called to court to be examined as to his evidence

 

how long has he worked for the claimant

 

was he in the department at the time

 

did HE/SHE personally deal with the agreements.storage etc

 

did he/she deal with the retreival

 

the company policies and proceedures at the time

 

audit trails etc etc

 

Ditto

[humbleman]

Fluffy

 

Can you remind me the month and year of this agreement.

[Fluffystuff]

Sagittarius - thankyou so much for your concise response. You have been extremely helpful.

 

Pedross - thanks for stopping by again. You are correct concerning the wording on the D/N, hadn't thought of it like that.

 

Humbleman - August '94 - any particular reason?

[Sagittarius]

Good luck tomorrow. Don't forget to slot in the Summary Judgment case law. If the Counsel or lawyer from the other side attempt to engage you in discussion outside the Courtroom, either say this conversation is 'without prejudice' ...or I'm sorry this is now a matter for the Court to decide.

Edited July 13, 2010 by Sagittarius

[Fluffystuff]

Good luck tomorrow. Don't forget to slot in the Summary Judgment case law.

 

All done!

 

 

 

Again, huge thanks to all that have helped me thus far. What would I have done without you?!

[LB145]

Good Luck for tomorrow - will be thinking of you! I will also catch up with your thread as my inbox has been flashing all night

[Fluffystuff]

Good Luck for tomorrow - will be thinking of you! I will also catch up with your thread as my inbox has been flashing all night

 

Thankyou LB and very best wishes to you too. I hope that you (and others) will benefit from the wonderful help afforded to me here.

 

 

Night, night all. x

[axxsabian]

Hi there, I've been following your thread and i'd just like to say " good look tomorrow