Please help, claim form received on behalf of HFC

[freethemice]

Hope the solicitors come back with the right answer.

 

If not I would proceed with cpr31.15 to inspect the documents they have named in their particulars of claim.

It does seem that some very blue peter activity has been going on with these agreements and creditors are very reluctant to let you view these things.

IF they don't they its a disclosure order from court with a strike out if they do not comply.

 

Solicitors Regulation Authority - Solicitors' Code of Conduct 2007

 

This should also be useful in how they deal with you in these proceedings.

[avarils]

Okay, spoken to the sols, they called me back this time.

 

I've been told that the only authority they have at the moment is to offer me a 25% discount on the amount due.

 

I explained all of the above and she stated that the only other thing they could do is forward a copy of my defence once it has been submitted, to HFC and see what they come back with. She wasn't budging on this.

 

Looks like I better put a defence (and counter claim?) together for submitting on Friday.

 

I need a beer.

[The Mould]

Don't worry avarils,

 

Is Friday the day that you need to have it delivered to the court?

 

Your defence is indisputable, you know what to say.

 

Those terms and conditions, were they sent separate to your agreement?

 

Avarils, did you state to them that this action cannot be brought on the foundation of an invalid default notice and that the court will not allow their claim to proceed because of this fact, state to them that the court will not appreciate having its time wasted.

 

State to the solicitors that if they are acting in order to protect their client, then they should advise their client to discontinue because your defence is indisputable and your counterclaim is worth more that the £330.27 that you are only liable for.

 

Give it another go avarils and see if you can make them see some sense.

 

Avarils,

 

State to the solicitors, no court in this England will allow any creditor who does not comply with legislation to use that legislation in order to gain favour for their claim.

 

HFC's personnel have made these mistakes with the credit agreement and the invalid default notice, HFC should learn from these serious mistakes and ensure that their personnel have the required qualifications and skill to perform their duties in such manner that is fully compliant to the letter of the law.

 

State to the solicitors that they have a duty of care to their client, their client will not be permitted to use the statute CCA 1974 against you in court because their client couldn't be bothered to comply with the said statute.

 

The default notice is invalid because of the figures stated on it and the issuing of it after they had already defaulted you.

 

State to the solicitors to look up WOODCHESTER LEASE MANAGEMENT SERVICES LTD V SWAIN & Co in relation to invalid default notices.

 

Kind Regards

 

The Mould

[avarils]

Yes, the terms and conditions were seperate.

 

On phone to the sols as I type this...

 

So, the lady i've been speaking to is a 'case handler' and not a solicitor.

 

Solicitors do not speak directly to clients.(!)

 

I explained the general content of your two posts above The Mould but she said that just because I put a defence in does not mean it will go to trial, HFC may decide to settle/withdraw or continue with the case.

 

She was not interested in any of the details. I could have told her I was not the defendant and she wouldn't have been interested.

 

'We need a copy of your defence to send to our clients'.

 

I'm thinking I compose an email now which I send to them stating the above and telling them they are wasting everybodys' time. At least if it goes before a judge it will show I tried to avoid all this.

[The Mould]

Avarils,

 

Who is this robot, does she work for the solicitors or have you been speaking to a legal dept at HFC?

 

Did she ever imply that she was a legal rep?

 

Send them that email, but make sure that it goes to the solicitors and not HFC.

 

Kind Regards

 

The Mould

 

PS. If she was a solicitor she would understand what you are explaining to her.

Edited May 26, 2010 by The Mould
Spelling mistake

[avarils]

She works for weightmans but is not a solicitor. She is a claim handler only. I could tell that everything I was telling her was not being processed correctly by her brain.

 

I will send her an email and also send the same email to the general weightmans email address.

[avarils]

Copy of letter sent to Weightmans:

 

 

Dear .......

 

Further to our conversation yesterday, Weightmans have brought this action on behalf of HFC and it is it is up to you to prove this claim.

 

The default notice I have received as part of the CPR 31.14 Request is invalid as the amount of arrears stated on the default notice is incorrect and does not correspond with the copy of the credit agreement I received from yourselves as part of the same CPR 31.14 Request.

You have both of these documents in your possession and can quite easily check to see if this is the case.

 

You don't have the agreement that this claim has been issued for.

 

This action cannot be brought on the foundation of an invalid default notice and the court will not allow your claim to proceed because of this fact.

 

I also have in my possession two other versions of a credit agreement for this account as provided to me by HFC, one of which is hand written on a template letter. Neither of which are signed by the customer.

 

The default letter is dated 2nd December 2009 although a default has been registered on my Equifax credit file on 28th November 2009. How could I possibly have remedied the situation if the default letter was sent after the default had been registered?

 

Having checked the terms and conditions I have been sent by Weightmans I do not see any clause where HFC are permitted to contact and update my credit file with credit reference agencies regarding the account.

 

If I submit my defence I will claim rescission of contract as a result of the breach by HFC and I will be counter claiming the amount of 1000 pounds for unlawful processing of my data and registering adverse data on my credit file, plus reasonable costs.

 

If you are acting in order to protect your client, then you should advise your client to discontinue because my defence is indisputable and they may also be liable to pay my counterclaim.

 

Please contact me before 14:00 on Friday 28th May 2010 so that we can bring a speedy resolution to this case and prevent any more of the court's time being wasted.

 

Regards

[wish me well]

Just make it clear that you chose to accept the rescission of contract, you dont want them to think its still a "live" agreement and issue a compliant default notice

 

WMW

[avarils]

Should I send another email to them now?

[avarils]

Is it good enough if I now send this copying in the first email I sent them?

 

Dear .....,

 

Further to my email below, please note that I accept the rescission of contract as a result of the breach by HFC.

 

regards

[wish me well]

Yes that will be fine,

 

state something like due to your clients breach of contract please be advised as the non breaching party I chose to accept rescission of contract

 

Just take another look at how Mouldy put it the other day and fire that off, it'll be fine

 

WMW

[avarils]

Done, thanks WMW

[wish me well]

Done, thanks WMW

 

You are very welcome

[The Mould]

Avarils,

 

What's happening on your case?

 

Come back, Roger.

 

Kind Regards

 

The Mould

[avarils]

Hello!

I've just written the defence which has to be in today. It's a first draft so please be kind!

 

1. I xxxxxxx of xxxx am the defendant in this action and make the following statement as my defence to the claim made by HFC Bank Limited.

 

2. I did not receive the default notice which is mentioned in the particulars of claim.

 

3. I requested from Weightmans solicitors the documents which they intent to rely on in bringing about this claim and was provided with a poor copy of a credit agreement and terms and condition, a poor copy of a default notice and also statements of account.

 

4. The default notice I have now been given a copy of is dated 2nd December 2009 however my Equifax credit report states that a default was registered with them on the 30th November 2009.

 

5. The figures on the default notice do not correspond to the credit agreement. The default notice states that I have failed to pay the combined monthly instalments of capital and interest totalling £165.00.

The credit agreement however states monthly payments of £110.09.

 

6. 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) Regulations 2004 (SI 2004/3237).

 

7. 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.

 

8. 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.

 

9. 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.

 

10. 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.

 

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

 

12. On checking the terms and conditions of the credit agreement that Weightmans have provided me, there is no such clause that allows HFC to update credit reference agencies with any details regarding this account. HFC have however been providing regular updates including a default which has been on my credit file since 30th November 2009.

 

 

 

What do you think?

Edited May 28, 2010 by avarils
bad grammar

[wish me well]

Hi avarils, that looks like you have covered everything.

 

I am not sure whether you should ask the court to allow you permission to submit a more suitable response should the claimant produce further documents??

 

I will try and find out for you. KWS, WMW:)

 

Also you could add something like this:

 

the defendant respectfully request that the court consider Preference Set Off under CPR 16.6 as the counterclaim against the claimant is solely based around the particulars of the defendants defence.

 

You know for the damages due to the invalid default notice

 

KWS,WMW:)

[avarils]

Sols just called me.

 

They said they are happy for me to submit my defence on Tuesday 1st June as it will also give them time to get direction from HFC.

 

I have agreed as it means I have more time to submit my defence and they may just come back to me and say they are withdrawing.

 

I have asked for it in writing, by fax by 16:00.

I've called the court and they have said this is fine as long as I get it in writing first.

 

Hope this is okay?

[avarils]

How much should I counter claim for? I take it it's 1000?

 

Thanks

[The Mould]

How much should I counter claim for? I take it it's 1000?

 

Thanks

 

Hello there avarils,

 

Have a look also at unlawful data processing.

 

Did you get that response from the solicitors?

 

Kind Regards

 

The Mould

[avarils]

No response from the sols as yet.

 

My counter claim will be for unlawful data processing, should I be claiming for something else as well?

 

There are no conditions in the contract that allow them to send updates to the CRA's...

[The Mould]

No response from the sols as yet.

 

My counter claim will be for unlawful data processing, should I be claiming for something else as well?

 

There are no conditions in the contract that allow them to send updates to the CRA's...

 

Hello there avarils,

 

The default is defamatory, therefor, damage in itself, the processing of your personal data is unlawful.

 

So, the Data Protection Act and the Defamation Act apply.

 

Let's hope that you receive a bit of good news tommorrow from the solicitors.

 

Please up-date tommorrow avarils when you hear something from them.

 

Kind Regards

 

The Mould

[avarils]

Will do, thanks

 

I just called the solicitors.

HFC have not responded and the solicitors have advised me to continue with my defence.

 

I'm going to do my defence now and then write up the counterclaim.

 

Also you could add something like this:

 

the defendant respectfully request that the court consider Preference Set Off under CPR 16.6 as the counterclaim against the claimant is solely based around the particulars of the defendants defence.

 

You know for the damages due to the invalid default notice

 

KWS,WMW:)

 

Is this necessary? What does it mean?

 

Reading through a number of threads to see what a reasonable amount is to counter claim for defamatory and breach of the data protection act. I can't find anything relavant to this. Does anyone have any ideas?

 

thanks

[The Mould]

Hello there avarils,

 

Defamatory default- the kporohraro (Spelling is bad on that one) ruling for compensation.

 

As for unlawful data processing, leave it to the Court to decide the award.

 

Kind Regards

 

The Mould

[avarils]

Copy of counter claim:

 

My data has been unlawfully processed with credit reference agencies. The terms and conditions which are being relied upon by the claimant do not state that my data can be processed and sent to credit reference agencies. HFC Bank Limited have been processing my data including registering a default with both Equifax and Experian on 30th November 2009.

The default, that has been issued incorrectly is defamatory. The terms of the default notice are invalid. It states that I have failed to pay the combined monthly instalments of capital and interest totalling £165. The credit agreement being relied upon by the claimant states a monthly payment of £110.09.

In addition to this the default has been registered with both Equifax and Experian on the 30th November 2009 although the date on the default letter is 2md December 2009. HFC Bank limited have clearly not given me sufficient time to remedy the breach.

 

 

**********

 

I have to put amount down for the claim, I'm not sure but I was going to pay £80 which has a claim bracket of £1500.01 - £3000.00. Is this too much?

[The Mould]

No, that should cover you.

 

They have not made a decision to discontinue then, HFC?

 

Kind Regards

 

The Mould