Fluffystuff's OH v HFC

[Sagittarius]

Also regarding the Default Notice, keep it simple and focused on the fact that the Act states the Default Notice must be in the prescribed form e.g.

 

"It is respectfully submitted that :

 

If an Act states that something MUST happen, in this case s88 of the Act states that a Default Notice MUST be in the prescribed form, then bearing in mind that is an Act of Parliament, not rules of Court which can be abridged or varied, a Court cannot dismiss the will of Parliament as 'de-minimus'."

[diddydicky]

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

 

notwithstanding which, the cca did not endow the debtor with the benefit of foresight - the debtor- upon receiving notice that if he does not comply with the DN within the specified time- is not to know that it might then be several weeks months or years until the creditor eventually terminated

 

he is unsophisticated and entitled to take the creditor at his word

 

it is therefore reasonable that the debtor- unable or unwilling (for some reason) to even make the monthly payments- is hardly likely to be in a position to make payment of all the outstanding payments being demanded in the DN and if he therefore "throws in the towel" and says to himself "there is no way i can get this money in 14/13/12 whatever days- therefore i wont even bother - that too would be a not unreasonable response to the demand in the DN

 

The fact that the creditor then took several weeks/months/years to actually carry out the action which the DN stated he would take after the specified date- is of no use whatsoever to the debtor.

[diddydicky]

so, the judge in amex v brandon has this to say:-

 

quote "American Express is a very large and respectable operation, almost all of whose business must be regulated by the Act. It would be absurd to suppose that it was not aware of the need to comply with a well known requirement..

 

why then, given that it would be absurd that the creditor was not well aware of the regulations- did the creditor not simply give the debtor 21 or 28 days in which to comply?

 

the creditor spent several months sending threatening letters and instructing debt collectors

 

the creditor- then by his own admission did not terminate for several months after the Expiry of the DN

 

so why did the fully knowledgable creditor only give 13 days (or whatever) after the date of service- for the debtor to comply?

 

i suggest- because in fact it is NOT absurd to suppose that the creditor does not have or use the full knowledge of the legal requirements, and/or that the creditor is cavalier in his approach to the legislation , or in the alternative- is deliberately seeking to "push the boundaries"- by first gaining acceptance from the courts that 13 days should be acceptable time for remedy- whereafter which without doubt a creditor will then send a "12" day DN and then apply to the court to regard one day short of 13 as de minimus and so forth- so frustrating and defeating the will of parliament

 

The act is an act for the protection of consumers- not for the assistance of cavalier, incompetent or defiant bankers.

 

( i would then use the not inconsiderable arguments found in Wilson as to the fact that individual debtors may be seen to have been unduly enriched but that this is a necessity for the overall protection of consumers

[humbleman]

 

Humbleman - August '94 - any particular reason?

 

Not sure if this has been mentioned before, HFC was merged/taken over in late 1998 by HSBC and they are still passing off HSBC terms as HFC.

[citizenB]

I agree with your comments diddydicky.. before long, we will be back to pre 19 December 2006 when only 7 days were allowed for remedy

 

Wishing you well for today, fluffystuff

[Fluffystuff]

SJ APPLICATION DISMISSED.

 

CASE STAYED PENDING OUTCOME OF AMEX CASE (Though DJ didn't see it's relevance & sols for claimant said didn't think claimant was intending to rely on it any longer!!!)

 

 

Will elaborate later, it wasn't all 'plain sailing'. Beware DJ's patrol these forums too.!!!!

 

 

Well done everyone BIG kisses to all concerned.

 

First battle won, now on with the war!

[NewToTheFight]

Well done you

[Fluffystuff]

Not sure if this has been mentioned before, HFC was merged/taken over in late 1998 by HSBC and they are still passing off HSBC terms as HFC.

 

 

Thankyou humbleman.

 

I am not able to scan but the t&c's I have are exactly those that robcag and SB100 have displayed on their HFC threads. If you have reason to believe these may belong to HSBC, then that would be VERY good news!

[Fluffystuff]

Well done you

 

Thankyou. Wishing you success in your case.

[Sagittarius]

Congratulations fluffy !

 

Don't forget to tell us what happened in more detail, once you've had time to unwind.

[Fluffystuff]

Oh Sagittarius, what can I say!! - I used your summaries of the Carey & McGuffick cases to great effect. The judge was speachless - you could almost see the the thought baloon above his head saying - Whoah, she's just contradicted me, hhmmnn me thinks this woman might just know what she's talking about!!!!!

 

As I said, will elaborate later. Special thanks.

[pedross]

Well done fluffy

 

Pedross

[emandcole]

Sweet. Look forward to the detail

[wycombe]

Well done Fluffy - Great news:-)

[citizenB]

This is good news, looking forward to the full report

[Fluffystuff]

--------------------------------------------------------

 

 

I will stop now, you get the gist of the matter! HFC are still sticking to the old t&c's would have been on the back, customer would have signed yaddah, yaddah. Oh and of course the d/n did not come in the envelope exhibited!!

 

DJ has basically said prove it but has also warned us that he is worried for us in terms of costs implications should we procede and not win.

 

 

Guess we'll just stick to the relevant points of law as we have done so far and pray that the Brandon appeal gets the result it justly deserves.

 

 

Huge thanks again to all concerned- you know who you are and please stick with us to continue the fight. x

 

 

(Please be aware that I will probably delete this a bit later - you never know who just might be looking in! Wouldn't want to upset anyone would we! Hope it made you smile. )

Edited July 14, 2010 by Fluffystuff
Anonimity(sp). Mine or the DJ's. !!??

[wycombe]

Excellent stuff Fluffy - a most enjoyable read. Should bring a lot of smiles to cagers faces!

[Fluffystuff]

Oh, just one comment DJ made in relation to Amex v Brandon.

 

" Why does he (assume HHJ whatsisname) think that these companies go to all the trouble of issueing d/n's if in actual fact they don't really have to get it right or at least not stick to the rules?"

 

 

[pedross]

What an interesting post and how well did you do.

 

It certainly made me smile. From opportunist to expert during the hearing is no mean feat. I hope you have helped that particular judge realise that LIP's should not be criticised for making an effort to understand the correct legal position of their own case.

 

Pedross

[indebtandharrased]

Well done Fluffy.

 

I have contributed little or nothing to your thread, but I have learned a whole lot from it - mainly about being prepared and having courage!

 

My first 'test' in front of the DJ is not far away (following your warning, I won't give the date in case I am being 'watched'!)

 

However, my case, as yours, is based entirely on points of law, facts and the defficiences (HUGE!) in the Claimant's claim, witness statement and evidence, not on any 'wriggle' factors - so I hope I can get that across as well as you did today.

 

Once again - well done.

Edited July 14, 2010 by indebtandharrased

[Fluffystuff]

I'm by no means an expert Pedross - I think the accolade should go to "Bachs Rescue Remedy"!!!

 

Mamma always told me, "you're not just a pretty face."

 

Now I really must stop before I start congratulating my self!!!

 

There's still a war to be won and I'll be calling on you all once again!

[Fluffystuff]

IDAH - If I can do it then so can you. Good luck!

[Chipmeister]

FS - well done, big congrats! I hope I can be as brave and quote as well as you have. You bring hope to all!

[humbleman]

 

Things didn't get off to a very good start. Before we had even sat down, DJ announced that he wanted to make comment as he had concerns.

It went something like this -

 

"I must make you aware Mr & Mrs .... that the courts are becoming increasingly irritated by this sort of case brought about by certain people wishing to evade responsibility for debt. They search the internet for clever ideas and these sites convince them on how to avoid their debt. Not that I am suggesting this case applies to you!

In my opinion, the only good arguement in this situation would be a case of mistaken identity!

 

Extremely worrying, when judge's start off like this, instead of sticking to the law and facts of the matter.

 

In any case very well done Fluffy.

[Fluffystuff]

Extremely worrying, when judge's start off like this, instead of sticking to the law and facts of the matter.

 

As you know well humbleman.

 

Stick with your case, I see you have some 'special support' now.

 

Wishing all the very best. x