Please help, claim form received on behalf of HFC

[avarils]

Hi, Please can someone help with any advice on this matter.

 

I received a claim on (issue date 19th April 10).

I have acknowledged the service online but need to put a defence together ASAP.

I've been reading through lots of threads to find one that is similar but I’m struggling.

 

It is for a loan taken out with HFC in 2003.

The loan amount was 7k of which 3.2 k was interest.

I was to pay back around 115 per month for 60 months.

 

I did do this for a year until I got into some difficulties.

I spoke to HFC and they agreed to reduce my monthly payment to 60 per month.

 

I continued to pay this new amount for five years then wanted to pay the remaining amount off and asked for a settlement figure. The settlement figure was for around 3k. More than I was expecting. It seems that they added additional interest on when they agreed to reduce my monthly payment to £60?

 

I sent them a SAR (I had discovered this site by then).

They eventually provided me with lots of their internal print outs but no credit agreement.

 

When I queried this with them, they sent me a hand written agreement reflecting the 60 per month payment obviously not signed by myself.

When I queried this they then send me a copy of the original agreement but not signed by myself.

 

In the accompanying letter, they state:

 

We conducted an extensive search, which failed to locate your original agreement, and provided all the information available at that time. Our internal archive department has now located a copy of your original agreement, which we enclose.

 

I wrote to them in November stating the account was in dispute and requested a copy of the credit agreement. I stated the request I was making was not pursuant to section 78 of the Consumer Credit Act.

I heard nothing more from them apart from the occasional statement.

 

I have now received a claim form from Northampton Count Court.

 

the POC are:

 

Breach of agreement pursuant to the Consumer Credit Act 1974.

(1) The defendant entered into a written agreement with the claimant. The agreement is regulated by the consumer credit act.

 

(2) The defendant is indebted to the claimant in the sum of 2979.95 and in respect of the said agreement under account number *********** and maintained by the defendant at the claimant's branch and the sum of 2979.95 in respect of costs under the said agreement.

 

(3) In breach of the said agreement, the defendant failed to make payment in accordance with the agreed payment terms and the claimant issued a default notice upon the defendant and pursuant to section 87 (i) of the consumer credit act 1974.

 

(4) By letter to the defendant, the claimant demanded repayment of the said sum, but the defendant has failed to repay the said sum.

 

(5) In the premises, the defendant is indebted to the sum of £5959.90.

 

(6) The claimant therefore claims the balance due under the agreement.

 

The amount claimed is 2979.95 plus 75 court fee plus 80 solicitors costs

 

I did not receive a default notice.

Apart from signing the paperwork, I never visited their branch again; in fact it closed down in 2005.

 

Any help would be very much appreciated, I'm really not sure where to go from here as i have only a few days left to file the defence.

 

I've read a few more threads and i'm so confused.

should I be filing a defence or should I be writing to the solicitors asking for the documents they intend to rely on?

 

write to the solicitors for the documents, surely they wont get back to me in time for me to file my defence?

 

Is there a particular form I need to fill in to let the court know what's going on?

 

Thanks

Edited April 29, 2018 by dx100uk
merge /format

[The Mould]

Hello there avarils, (You are not supposed to put your name Ryan),

 

You need to send a CPR 31.14 &18 to the claimant or whoever is named on the claim form, i.e. Claimant's solicitors, and request the documents that their claim is to rely on, they then have seven (7) days to comply with your request.

 

When do you need to file/submit your defence by?

 

Did you get a default notice in your Subject Access Request File?

 

Who are their solicitors, or is it their legal department?

 

What about that hand written agreement, can you post it up so we can look at it and that credit agreement,(The one with no signature on it)?

 

OK then avarils, come back and up date, when you can.

 

Kind Regards

 

The Mould

[avarils]

Thanks The Mould,

 

The date of service on the claim was 19th April, so I believe I have 28 days plus five to file my defence which takes it to the 22nd May.

 

I did not get a default notice in the SAR, but I believe I asked for the SAR before they defaulted me, according to the credit reference agency.

 

The solicitors are Weightmans LLP.

 

I'll get a copy of the hand written agreement posted up asap.

 

With regards to CPR 31.14 & 18, where do I get a copy of this type of letter from? I want to send it out today. Also what happens if they don't reply in time?

 

Thanks

[maroondevo52]

Hi, avarils.

 

This thread should help...................

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/255329-cpr-18-cpr-31-a.html

[dx100uk]

got PPI on it?

 

dx

[avarils]

No PPI, but i'm pretty certain they don't have a signed copy of the agreement.

 

When I send the CPR 31.14 Request, do I have to sign it or can I just write my name?

 

Also should I send a copy to the court or should I just wait for the response then either file a defence or an order for it to be struck out (depending on what I get back from the solicitors)?

[The Mould]

Hello there avarils,

 

Send the CPR request, then wait for their response, I am unable to concentrate on your thread at the present time, however, there are many very good Caggers on this forum/site, the earlier postings tell you that good friend, I will come back to your thread some time next week.

 

Don't panic about this court action, get those doc's, and then we will see what your defence is to this claim.

 

Kind Regards

 

The Mould

[wish me well]

Hi there,

 

You dont have to signed or write your name as long as it is typed at the bottom so just print it off and send it.

 

Hope that helps alittle

 

kindest wishes, WMW:)

[avarils]

Thanks everyone.

 

I got a letter back from the solicitors saying that they were writing to HFC and should receive a reply by Friday this week. They have also extended the deadline for me to file my defence to the 31st May.

 

It will be interesting to see what they come back with as I'm sure they dont have an executable credit agreement as I'm sure I've paid them all I owe already.

[wish me well]

Who has extended your deadline for submitting defence?

 

Only the court can do this, just make sure with the court, they maybe trying to win by getting a default judgement.

 

If they are trying to pull a fast one, keep that letter safe and use it in your defence. Show the judge just how low these ******s go!!

 

Kindest wishes

 

WMW

[staytet]

hi

i beat the mighty weightmans "lol" ;)18 months ago when they bottled it 2 days before trial, they could not produce the original agreement before the court and they failed to let me inspect the agreement under CPR 31.15 , it will be a long battle and they will try every tactic so keep your wits about you.

[wish me well]

Do you have an embarrassed defence ready?

 

I think this is what you are going to need to do, and make sure that you stick to the COURTS deadlines, not some nasty solicitors madeup version.

 

Ok I think I may have got that message across

[The Mould]

Thanks everyone.

 

I got a letter back from the solicitors saying that they were writing to HFC and should receive a reply by Friday this week. They have also extended the deadline for me to file my defence to the 31st May.

 

It will be interesting to see what they come back with as I'm sure they dont have an executable credit agreement as I'm sure I've paid them all I owe already.

 

 

Hello there avarils,

 

This is important, who extended that deadline?

 

Come back when you pick this message up, asap.

 

Kind Regards

 

The Mould

[avarils]

Hi,

 

It is Weightmans that have extended the deadline in the letter I received from them acknowledging my CPR request.

 

I can send a copy of this letter to the court or should I just stick with the court deadline of 22nd May?

Thanks

[wish me well]

MOST DEFINATELY DO NOT UNDER ANY CIRCUMSTANCES TRUST THIS SET OF XXXXXX

 

They are trying to get a default judgement against you, they CANNOT allow extra time for you to file a defence, this is the job of the courts ONLY.

 

Right, embarrassed defence it is, they will not supply what is requested so you will have to ask the courts to make them comply with the CPR.

 

Please, please stick to your deadline set by the courts or you will lose by default.

 

Ok, this letter will be good to use in a defence aswell, this proves just how low they will go to prevent the defendant filing a defence. Keep it safe!!

 

I hope this has helped, if you need any help with the defence, just shout.

 

Kindest wishes

 

Wish Me Well

[wish me well]

Ok, this is an embarrassed defence that is short enough to enter online.

 

Please please print it off, go through it all and change what is needed to fit your own circumstances.

 

I hate these **** who lie and cheat!!

 

Ok, I have amended a few things, read it, understand it, correct any thing thats needed to be, add your details.

 

1. I xxxxxxx(your name) of xxxx(your address) am the defendant in this action and make the following statement as my defence to the claim made by xxxxxx(who ever the claimant is).

 

2. Except where explicitly stated below the Defendant neither admits nor denies any of the assertions or claims made by the Claimant.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia:-

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

4.1 The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the

claimant calculated any outstanding sums due or any other matters necessary to substantiate the claimant's claim.

 

4.2 A copy of the purported written agreement and the terms and conditions applicable to the original agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

4.3 A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

4.4 A Default Notice served under section 87(1) of the CCA, on the alleged account has not been served attached to the claim form.

 

a) I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendments and amendments regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

 

b) The defendant asserts that by commencing with legal action and making a demand for the main/full balance to the account/agreement in the statement of claim in this action, the claimant has terminated the account/agreement without first issuing/serving a valid default notice pursuant to legislation contained in s87/s88 of the Consumer Credit Act 1974, the defendant accepts the termination of the account/agreement by the claimant, and the defendant argues that by the claimant’s own actions has precluded himself from any of the benefits that would have of been available to the claimant under s87/s88 of The Consumer Credit Act 1974, therefore the claimant's only entitlement is for any arrears that the claimant can prove were owed/due payments before termination.

 

c) Furthermore, the defendant asserts that failure of a default notice to be accurate not only invalidates the default notice (Case law ruling - Woodchester Lease Management Services Ltd v Swain and Co [2001] - GCCR 2255) but also prevents the court from enforcing any alleged debt, but would give the defendant, in this action, cause for a counter claim against the claimant for damages as per the ruling in Kpohraror v Woolwich Building Society [1996] 4 ALL ER 119.

d) I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer.

 

e) Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

F) An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on xxxxxx(enter the date on the court summons). Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

6. The claimant did not send a letter before action as required under the Pre-Action Protocols.

 

7. The defendant requested information referred in the claim under CPR 31.14 and 18 from the claimant by Royal Mail Special Delivery. The request was received by the claimant on thexxxxxxxxxx(enter the date they received it), compliance with the requests has now expired. The claimant responded with a letter stating that they had contacted HFC to obtain the documents and the defendants deadline to defend had been extended to 31st May 2010. The defendant was of the belief that only the court could extend deadlines for filing a defence and wishes to make the court aware that the claimant is trying to frustrate proceedings and denying the defendant an opportunity to file a defence and counter claim

 

7.1 The defendant asserts that the conduct and attitude of the claimant is vexatious and is purposely intended to frustrate proceedings by attempting to mislead the defendant and deny the defendant a fair opportunity to file this defence to the court and within the time scale permitted to do this.

 

8. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

9. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The claimant is put to strict proof as to how the sums claimed have been calculated, whether the amount claimed contains unlawful default and interest charges and as to how it is asserted that the sums claimed are contractually owing."

 

 

Conclusion

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

I respectfully request that the court consider striking out the claim under CPR 3.4.2© because, in light of the failure to respond to the CPR 31.14 and 18 request, the Claimant is unable to substantiate their claim with documentary evidence.

 

 

If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

As laid out in section 4 the defendant requires that the claimant provide the requested information, proofs and authenticity. The defendant requests that the court order that the claimant supply the information requested under CPR 31.14. and 18

 

Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, it is submitted that the Claimant's behaviour is entirely vexatious and wholly unreasonable and that this claim has no basis in law.

 

I respectfully request the courts permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim.

 

Ok if you need any help just post or pm.

 

Kindest wishes

 

Wish Me Well

[The Mould]

Good going WMW, superb assistance, I hope avarils picks this message up soon, what on earth are those solicitors like, this is a dirty trick to play on some one who doesn't have the full legal knowledge. ( Don't take that the wrong way avarils, I do not mean any offence on you.)

 

WMW I will catch up with you later on old boy.

 

Kind Regards

 

The Mould

[avarils]

That's brilliant, thank you so much.

I have read and understood and especially like 7.1

 

The letter from Weightmans states: 'We expect to have the documents in our possession no later than Friday 14th May at which point we will forward them to you immediately'.

 

'We can also confirm that we would be happy to wait until 31st May for you to serve your defence, and can confirm that no further action will be taken until this point'.

 

I've read: http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Should I be looking to make an application if they do not comply within seven days of my CPR request or should I stick with the embarrassed defence do you think?

[wish me well]

I would personally just wait a few more days until time is up for them then submit the embarrassed defence online.

 

You could if you want send a second letter, the same letter you sent first time but make sure you put in that letter it is your SECOND attempt to get them to comply. That way you will look like you really tried to sort this out before getting in front of the judge.

 

I am so glad that I could help. I have had so much from a few caggers and I know how much it means

 

Kindest wishes

 

WMW

ps If you need anything just shout

 

That's brilliant, thank you so much.

I have read and understood and especially like 7.1

 

The letter from Weightmans states: 'We expect to have the documents in our possession no later than Friday 14th May at which point we will forward them to you immediately'.

 

'We can also confirm that we would be happy to wait until 31st May for you to serve your defence, and can confirm that no further action will be taken until this point'.

 

I've read: http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Should I be looking to make an application if they do not comply within seven days of my CPR request or should I stick with the embarrassed defence do you think?

 

To make an application to court would cost you £75 so no I wouldnt bother but that of course my dear is up to you.

 

Not sure whether I put that the defence I posted for you does fit online so that saves on your costs aswell

 

I know its a self help forum but jeeeese we've all been here and should know how hard it is. I am glad I could do this for you!!

 

kindest wishes

 

WMW

[The Mould]

Avarils,

 

Those solicitors, that is a conduct of deceit, this conduct of them is very serious indeed, there are regulations and rules that solicitors are bound by.

 

I think someone needs to let these particular solicitors know that the game is up.

 

Kind Regards

 

The Mould

[The Mould]

Thanks everyone.

 

I got a letter back from the solicitors saying that they were writing to HFC and should receive a reply by Friday this week. They have also extended the deadline for me to file my defence to the 31st May.

 

It will be interesting to see what they come back with as I'm sure they dont have an executable credit agreement as I'm sure I've paid them all I owe already.

 

Hello avarils,

 

Have the claimant's sent a notice to the court informing of this 'Agreement' to extend the time scale for you to respond?

 

Kind Regards

 

The Mould

[avarils]

Hi,

 

I've checked with the court just now and they have not received anything from the solicitors informing them or asking them for an extension to the date I need to put a defence in. That's really bad behaviour on the solictors part.

[wish me well]

What did I say love, they are lower than low!

 

You see some poor folk dont know about this site and would trust what the solicitor has stated.

 

Dont worry, we wont let those ******s get away with anything like that.

 

If there is anything else you query then post it up and someone on CAG will answer for you.

 

Kindest wishes

 

WMW

By the way, keep that letter super safe, use it against the disgusting so and so's, unfortunately I dont know where to report them too but I am sure if no one comes back with an answer for this I will find out for you:)

[The Mould]

Hi,

 

I've checked with the court just now and they have not received anything from the solicitors informing them or asking them for an extension to the date I need to put a defence in. That's really bad behaviour on the solictors part.

 

Hello avarils,

 

Why don't you contact those solicitors and ask them what are they playing at, have a look at SRA rules and then quote the relevant rule to the solicitor, if they continue with this conduct, then report them to SRA and the Law Society.

 

You need to act, and fast.

 

Kind Regards

 

The Mould

[avarils]

Hello,

 

I have received a letter from the sols with some dcuments attached.

These include a bad copy of a signed credit agreement with a signature on it, terms and conditions, a default notice (which I have never seen before) and a statement of account.

Pretty surprised that they have sent me a signed copy of the credit agreement as I have asked them for this on two occasions previously and was not sent it when I did a SAR.

 

I have spoken to the court and they have said they are happy to extend the deadline for me filing defence if I fax them the letter from the sols stating they are happy for it to be extended.

I spoke to the sols and they said that they sent a copy to the court to ensure the dadline was extended although the court are denying they received it.

 

Any ideas where I should go from here?