HFC/Restons Claimform - Marbles now Beneficial Credit card - panicked and paid restons one figure - they want more !! _d judge ordered a STAY, now SJ

[caro]

Ok. I think I understand now. So basically you're getting ready to go to court. I'm surprised the court aren't dealing with both applications at the same time.

 

I've seen a brilliant post with advice that I think may help. Just hunting it down again as I rather stupidly don't seem to have bookmarked it.

[eastender100]

Thats great, I need as much help as I can. Thank you

[citizenB]

Sorry to be so vague but a bit paranoid about who looks on here!

 

OK,

like i said very complicated so I will try to be brief,

First HFC bank, sent me a offer as Full and Final settlement for my Credit card, I then got in touch with them, they put me onto Restons I spoke to a lady on phone from restons and she said she would "CONTACT HER CLIENT"

She then got back to me giving me the amount and said that it had to be paid by the end of the month. I accepted the amount as it was very resonable. I asked her if she would send me a email confirming this, whisch she then did.

Half a hour later she sent me another email saying her client has got it wrong they want another £2000.

I said how could your client get this wrong you have confirmed this in writing so this is what I will pay.

 

 

Hi, it is very difficult to assist if you dont give us as much detail as possible. I have summed up my observations below. Please confirm..

 

 

You have asked for a copy of your agreement twice but have been refused on the grounds that you did not sign the request.

 

 

Did you request the agreement via CCA1974 and enclose the statutory fee of £1.00 prior to the claim being issued...

 

Or did you request it from the solicitor via CPR31.14 .. AFTER the claim had been issued .

 

If the claim had already been issued then I can see no reason why a solicitor should refuse your request under CPR31.14.. Especially to give a disingenous response that they couldnt be certain you were who you say you were.

 

You have put in a defence.

 

You have also started a separate action to have the claim struck out .. on the grounds that they have refused to provide you with documents.

 

At the same time an application has been made by the claimant for Summary Judgement against you on the grounds that your defence has no merit.

 

Your solicitor prepared a defence for you, but you are representing yourself. I am surprised the claimant has applied for summary judgement knowing that the defence has been professionally prepared.

 

YOur application for strike out is being heard first. Can you let us know when the hearing for this is.

[eastender100]

The hearing for the strike out is on 20th August.

yes i applied for the cca1974 request with the £1

 

The solicitor said that they should send all the documents to me as they have the court. It was only last 2 weeks ago that I received there reply to my defence. (via court) they haven't sent me anything else exept a letter asking me to withdraw my defence or they will apply for a summery judgement against me , which they now have done.

 

I called the court today and they told me it was just the hearing which I applied for ( strike out) to be heard on 20th Aug. there hearing will be later.

[citizenB]

Caro, is this what you were looking for ?

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2171582.html

 

Quick Links for you:

 

The Consumer Credit Act 1974

 

The Consumer Credit Act 2006

 

On a very basic documentation level, one issue to be well prepared for is the question of your Defence Bundle.

 

The Empty Desk Trick

 

Some Courts and some Judges have an amazing ability to deny ever having received any documents before the Hearing.

 

So, expect the Judge to be sitting there with an evil smile and an empty desk, eyeing up your Court Bundle on the desk in front of you! So, make sure you take extra copies of all key documents, i.e. two extra Court Bundles.

 

It will be a PITA I know, but the ideal is to take three sets of everything, such as your Defence, plus anything else that you submitted to the Court and/or the opposition that was mentioned in your Defence and/or Disclosure by List.

 

Then, when the Judge and/or the enemy say, I do not have that, you will be ready to say, no problemo, open up your big bag and say, here's a second copy I prepared just in case the Court System had misplaced the copies I have already submitted.

 

IOW, whatever you want to have in front of you, make sure you have 2 extra copies of each item, so that you will not be left without the documents you need.

 

This appears to be a little trick that some Judges like to play, and will expect you to hand them your copy, either deliberately, or because they really are duffers who can't get themselves organised and/or have a useless Court system behind them who cannot get the documents you have already submitted to the Hearing.

 

In effect, this is a strategy to throw the Litigant in Person off balance. On the day it will look all tidy and genuine, but if you don't take copies, the net effect could be that you are sitting in front of an empty desk, having been deprived of your Court Bundle and needing to defend yourself just from memory.

 

Assuming that you can find the time and money to reel off 2 extra copies, then the next step is to make sure your own master copy is completely familiar to you. Practice what you may need to say, and try going to the document that you need in your Bundle to back that up. If it takes you 60 seconds when at home, it will feel like 60 minutes in Court...with a Judge tapping his/her finger on the bench and making huffing noises.

 

So, use Post-It Notes or Tabs, page numbers, anything to help you find what you need fast, so you can quote the part you need. Make sure the copies you make for the enemy have matching page numbers to your own Bundle, but there's no need to make their copies as easy to navigate as your own. Indeed, make theirs harder to navigate, perhaps by making the page numbers very small and feint (see below)...

 

IOW, if you think you will need to quote s127(3), have a Tab sticking out of your Bundle that says 127(3). So you can flick straight to it, and then tell Judge/Enemy that the document is on Bundle Page 156.

 

While they are flicking through to find Page 156, you'll have time to read what s127(3) says, so you are ready to read it out to the Court. Perhaps use a Yellow Highlighter to put a box around any key issues on the actual page so you won't need to waste time reading through a page of Text but can zoom straight to the Paragraph you need.

 

The point being, plan ahead to buy yourself as much time in Court as you can.

Make Notes and Plan your Responses

 

Next tip is when the enemy are droning on, make detailed notes of what they are saying, and put a big circle and number around anything they say that you do not agree with. Then, when they have finished speaking, if you did not understand anything, make them repeat it, and add extra notes.

 

Then, you should end up with some notes with big circles all numbered ready to trot out your counter arguments:

 

(1) The Agreement...I disagree that the Application Form they have produced represents an Agreement, because it is missing the Prescribed Terms, it's just an Application Form, the terms they say were on the back, are clearly not a copy of the back, and would not fit on the back Sir/Madam.

 

(2) Without the Prescribed Terms, the Court cannot enforce, see s61(1)(a), s65 and s127(3)...

 

...when Judge asks: "s127(3)?"

 

...you can whizz straight to that via your little tab, and say, that's on Page 156 Sir/Madam.

 

...when the Judge says: "but wasn't s127(3) repealed?"

 

...you can say no, if you look at the bottom of page 189 in relation to Schedule 3 of The Consumer Credit Act 2006, you will see that s127(3) still applies for Agreements made before 06/04/2007. The alleged Agreement is covered by The Consumer Credit Act 1974, so s127(3) remains in force.

 

If you see what I'm getting at?

 

The key is to have all the bumf you need, and have it so you can go straight to what you want.

 

What Did He Say...?

 

Don't let anything go over your head. If the enemy starts speaking in a language that only they and the Judge seem able to understand, then stop them, and say you do not know what is being said, could the enemy please slow down and explain things in layman's terms, please, as I am a Litigant in Person. Keep saying that if needed, to make sure Judge remembers that you are not a trained Barrister.

 

Keep making notes when not speaking yourself, and don't be shy about standing up for yourself and demanding a right to respond to any points that you disagree with. Your notes being to help you frame what you want to say when you get that chance.

 

If you get a decent and fair Judge, then the Hearing will be well conducted and all of the above will work in your favour.

 

If you get a biased and hostile Judge, then all of the above will help you to keep control and get your key points across, if only for the Tape and a future Appeal.

 

A Barrister will not be phased by any tricks, and it's likely that a biased Judge won't try so many on when faced with someone trained and experienced with how the Court System works.

 

However, there's no reason why you can't hack this as a Litigant in Person, but things can get tough if you lose the Judge Lottery and get a duffer Judge or a biased Judge. That's when preparation and planning may save the day.

 

I hope this helps.

 

Cheers,

BRW

[eastender100]

Thank you CB, I will get more copies of everything I have which should be no problem. I just hope I will be able to pull it off on the day, i'm already having a breakdown thinking about it. i thought they might have given up by now, i can't see how they can throw my defence out if all the facts are there. all they can produce is there first letter ( without predudice) what says about there offer?

[caro]

Caro, is this what you were looking for ?

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2171582.html

 

It is indeed. Thanks CB.

 

Thank you CB, I will get more copies of everything I have which should be no problem. I just hope I will be able to pull it off on the day, i'm already having a breakdown thinking about it. i thought they might have given up by now, i can't see how they can throw my defence out if all the facts are there. all they can produce is there first letter ( without predudice) what says about there offer?

 

There is no point in stressing about this. You haven't got time.

 

Make sure that you are thoroughly prepared, so you are more confident about going to court.

 

BRW's post is excellent, so go through it all and follow his advice. I know your hearing is about a strike out but the principle is the same so just keep going over everything to make sure that you're as ready as you can be.

[eastender100]

What do I do if they turn up with the credit agreement, I wont have time to get it checked?

[caro]

So you need to read up so you know what you're looking for. This would be a good start, and perhaps something you could take with you to check over.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html#post1747470

 

If it's sprung on you in court, then you could always ask for time to check it out.

 

If you think that you may need to amend your defence, then ask permission of the judge to do so.

 

Is there anything in their application which leads you to believe that they have the agreement?

[eastender100]

In there reply to my defence it says " It is noted that the Defendant does not deny either the existance of the credit sgreement nor the expenditure upon it"

 

I cannot deny the expenditure upon it because I already paid them several thousand pounds what was supposed to be the Full and final.

[caro]

In there reply to my defence it says " It is noted that the Defendant does not deny either the existance of the credit sgreement nor the expenditure upon it"

 

It is up to them to prove its existence. If they can't do that how can you admit or deny anything.

[eastender100]

They are saying that I have admitted to oweing the money because I have already paid some.

[caro]

I cannot deny the expenditure upon it because I already paid them several thousand pounds what was supposed to be the Full and final.

 

So you paid them this money in all good faith believing that would be the end of the matter. Whether or not they have the CCA is probably immaterial now IMO.

 

TBH it may come down to the way the judge views these things.

[eastender100]

I am having a look at the link you sent me they claim the agreement (Marbles Credit Card which changed to Beneficial Credit card) was taken out " on or around 2001"

The link should be very helpful

 

A big thank you for all your help, I will let you all know how it goes.

[caro]

Not sure that I sent the link but glad you've got something that helps.

 

The point is just be prepared. Try and have an answer for any point that they come up with and show them that you are confident in your arguments (even if you don't feel it inside;)). Don't let them intimidate you.

 

Hope it all goes well for you.

[eastender100]

Hi all, I have some news on the Credit Agreement Restons have sent me.

 

It was sent by the court to me today also with there Summery Judgement papers.

 

The credit agreement isnt my writing and there is no signature

or date or anything. It is very obvious they have filled in my details.

 

The problem is they have also sent my statements, does anyone know if this will affect things in court.

The card was taken out in2001.

 

If anyone have some advice as I am quite sure thats why they would provide it when I asked for it, because of no signature.

 

I received a copy of agreement from Restons ( through court) It has no signature, no date, and is filled in by them. They have admitted to court that they cannot find the original agreement, but have sent this instead in accordance with Regulation 3 of the consumer Credit Act. they have also sent credit card statements.

 

Is this still enforceable by the court as the card was taken out in2001.

 

Some advice needed as I am in court with them next week.

[rebel11]

Hi east

 

Due to recent court cases, creditors can send reconstructed agreements. But if the Credit Agreement has been 'varied', ie. the interest rate has increased then

they have to provide the original agreement as well as the original terms and conditions. They have to provide T's & C's for each variation. I'm no expert but I

believe it's unenforceable until they can provide a copy of the original agreement. Hopefully others will confirm. Don't take it as 100% until others confirm.

 

The ruling is lengthy, just google the case for summaries.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

 

http://www.moneysavingexpert.com/news/loans/2009/12/high-court-ends-debt-avoidance-loophole

 

Hopefully others will advise as well.

Edited August 10, 2010 by rebel11

[someone_else]

If they cannot provide the original agreement, then it shouldn't be enforceable by the court.

 

However Restons will be likely to twist the Carey case (linked in the above post) to claim they don't need the agreement, so you'll need to understand the Carey and be able to argue why the Carey case doesn't say what they want, there should also be plenty of threads and posts around with arguments against Carey.

 

If they don't have a signed agreement that more than likely explains why they wanted you to send them a signed letter. (Though if they don't have your signature on file then what would they be comparing your signature to?).

 

Have they sent you a Default Notice and are the statements complete?

 

Am I right in saying that they'd previously offered you a Full and Final settlement that you took them up on and they then changed their minds?

[eastender100]

Hi yes, I had a email confirming the that they would accept a full and final settlement, and then they changed there minds afterwards and said they have made a mistake and it wasn't enough.

[caro]

Did they change their minds before or after you made the payment?

[eastender100]

Hi Caro

 

It was before I made the payment

 

Hi

I have been sent a credit agreement with NO signitures, No dates, just my name and address on it. They say it is enforceable by the act 1983, They have also sent my card statements, does this mean this is enforceable?

 

Please help as I have a court date next week.

 

P.s The card was taken out in 2001/02

[Old Cogger]

Give more details i.e. cap one?

let those with knowledge on here see evidence also court details, who DCA is if that is who taking you to court? download what you have minus personal details etc..

[cerberusalert]

Moved to Legal Forum.

[eastender100]

HI, Its Restons,

 

They say it is inforcable under act 1983, they admit they haven't got the original, but I am concerned that they have included credit card statements.

[baileyboy]

They shouldn't get very far with an "agreement" that doesn't have your signature. A reconstituted copy only helps them with obeying a s77 / s78 request not enforcement in court.