Help me please? Short crt date, HFC/Restons **** Claim Struck Out ****

[manchestman]

.. which by 2009 became a 'Beneficial' response with blank beneficial app form and completely different opening balance. In all honesty, I have no idea what my opening balance was, but at least I'm not 'making it up as I go along'! ...

 

Edited June 11, 2010 by supasnooper
to reduce page width

[supasnooper]

You may wish to quote paragraph 64 of Carey v HSBC.

 

It is accepted that the Agreements Regulations govern the form and content of the executed agreement signed by the debtor made pursuant to s60, and that the Copies Regulations, made pursuant to s180, govern the form and content of copies to be provided under the Act. For the avoidance of doubt I consider that the reference in s180 (2) (a) to the "prescribed form" and "prescribed requirements" is a reference to the requirements imposed by the Copies Regulations, not the Agreements Regulations. The only prescription as to formmade in connection with s78 is the general requirement in Reg. 2 that the copy should be "easily legible

[manchestman]

Thanks SS, extract now banked.

 

Just had interesting telephone conversation with Restons, who have told me they viewed my CPR 31.15 request to inspect the agreement they mention in their poc as a request to simply have a copy of 'a copy' of the agreement sent to me for inspection, AND NOT THE ORIGINAL AGREEMENT. I said I would confirm that my letter always intended to inspect the original as I was having difficulty reading it. She then told me that their client often has microfiched agreements that are difficult to read and in that case a reconstituted agreement is always acceptable. She told me that they had written to their client, HFC, 3 days ago. I asked if a written response was going to be sent to me and she said not until their client replies - (even though this means they go beyond the 7 day time limit to comply).

I asked if a date for compliance could be given to me - not replied to.

 

LETTER EXTRACT TO RESTONS, SIGNED FOR ON 3 JUNE

 

Please treat this letter as my request made under CPR 31.15 to inspect the agreement you disclosed in your POC. Further, I request a verified and legible copy of the agreement mentioned in your Particulars of Claim.

 

1. the agreement. “... a contract dated on or about 13/11/1999 ...” You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

You should ensure compliance with your CPR 31 duties and ensure that the document I have requested is copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the original of the document I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party...

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request.

 

How long should I now give them? Do I still apply for a Strikeout or do they get away with a reconstituted copy and allowing me to inspect that at home instead?

 

Before I write back to confirm what my intentions were, (though I thought it was pretty clear myself) can anyone offer any view or advice on how to deal with these slippery people, please?

[supasnooper]

If you read pt's 31.15 thread ( http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html), the letter is composed to get the Claimant to disclose a copy of Original Agreement....not a reconstituted agreement.

 

Just follow the advice given in the above thread.

 

You may want to look at this thread as well -

 

** ORDER TO PRODUCE CCA CPR31.16 WIN ***

[manchestman]

Hi again SS and thanks for your advice. Haven't read all Pt's thread yet, but have read the first 36 pages and the CPR rules themselves. Your other link showed smt37 had success using CPR 31.16, again a rule allowing disclosure before proceedings start. To be honest, I can't see how this can help me as court proceedings are already underway. Sorry if I am I being dumb and missing something here?

[manchestman]

I'd be grateful for any opinions on my confirmation letter to Restons regarding inspection of the original agreement before I send it. For instance, is it damaging to me to reveal so soon the fact that If I was only sent a microfiche copy I would be demanding a documentary paper trail and questioning their witness as to how the microfiche version came about etc as per surfaceagentx20 here: http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html#post1708484

Dear Sir or Madam

 

I am writing with reference to the telephone conversations with your company representatives on 7th and 11th June 2010 and this letter should be read in conjunction with my previous CPR written request dated 1st June 2010.

 

I confirm that my CPR 18 request for further explanation and information is correct and stands as is.

 

I confirm that because my CPR 15.5 request for an extension to organise defence (pending CPR 18 and 31compliance) was not responded to before the actual deadline for submitting a defence of 9th June 2010, it is no longer required at this moment in time.

 

Although I had thought that my original CPR 31.15 request was clear, I confirm that my CPR 31.15 request is to inspect the original agreement, mentioned in your particulars, where ever it is stored, and to then be sent a copy of that original agreement (and not a copy of a microfiche copy of the original agreement). Otherwise, as I understand from similar cases, a copy of a microfiche version of the agreement might otherwise be sent to me. A microfiche version of the agreement is simply another copy of a document and is not in itself the original document. By requesting to inspect the original document itself I am trying to save your time and expense rather than instigating a demand for documentary evidence concerning the making of a microfiche version and how it came to be, as well as documentary evidence concerning whatever has become of the original agreement, later in the court case.

 

The rest of my request dated 1st June 2010 and received by you on 2nd June 2010 should now be read with particular attention to the full details of my CPR 31.15 request.

 

 

Yours faithfully

Edited June 13, 2010 by manchestman
wanted to add to proposed letter

[sillygirl1]

Contact the court and let them know that Restons are absuing the court process - do this in writing.

 

Copy in ALL letters from Restons to the court immediately, and state that they are trying to frustrate the proceedings by not providing you with the evidence you need to substantiate their claim.

 

Got to be worth trying.

[manchestman]

Contact the court and let them know that Restons are absuing the court process - do this in writing.

 

Copy in ALL letters from Restons to the court immediately, and state that they are trying to frustrate the proceedings by not providing you with the evidence you need to substantiate their claim.

 

Got to be worth trying.

 

I think you are right, however, so far I only have their verbal responses to my requests. I could listen to my telephone recordings and send in transcripts?

I just worry about complaining too soon, now that Restons have stated they 'misunderstood' my request. Although You and I think it's perfectly clear, I can see how a judge might respond to "Sir, despite the fact we are solicitors of many years standing, familiar with CPR and regularly undertake this type of work, when we read the request to inspect the 'original' document we naturally assumed this was a request to inspect a copy in the defendant's own home, instead". lol.

 

But really, as they have stated to me that they misunderstood the request, don't you think I have to give them the benefit of doubt, making my request absolutely and irrefutably clear by sending in a confirmation of my needs and starting the 7 days from new?

If non compliance then continues, I could complain and apply to have the claim dismissed, - but not before. Maybe I am wrong, and I definately want to be proactive as pt suggests, but if there is even a hint of my behaviour being unreasonable in the face of a 'misunderstanding' am I not likely to be the one admonished in court for abuse of process?

[sillygirl1]

No, complain to the court without waiting, it is NOT reasonable for them to suppose anything, it is clear in the CPR rules what their obligation to YOU is, they have abused this process and need to be told off.

 

They are trying to play games with you and get you to a stage where you won't want to stand in front of a judge and have your side heard, this is YOUR legal right, don't let them abuse you too.

[manchestman]

I'm sorry for questioning you, Sillygirl, and I am certainly glad to have you on my side. I see you are so obviously right. It's just so hard to know exactly what to do in legal terms, even when you know in your heart that you 100% correct. You read so many stories of judges who don't care and simply ignore 'unless' requests.

 

So should I simply do a normal letter, 'Dear Court Manager, as an LIP, I wish it to be known that ... (facts of the request and response) and I believe this is an attempt to disadvantage me and to abuse the court process' or do I submit an official N244 application at this stage and sort of do it officially, asking for an 'unless' order?

[supasnooper]

As a LIP, give your court a phone call tomorrow.

 

Some courts will accept a letter as you first propose; others like a completed N244.

[steve2577]

Hello

 

I am in a similar position regards HFC going to Court in afew weeks for my SJ hearing for SO.

 

Quick Question as I have same letter same POC same reply when I checked my POC amounts they dont add up in that the DN total has been increased by £12 on the POC amount claimed. Also the interest calculation added to the claim doesnt allow for the full 28 days after the date of service of the DN before any interest can be added. I know it might be something and nothing but I am trying to find out what implication/s a POC Claim has if it quotes incorrect figures.

[manchestman]

Hi Steve

I'm pretty sure that Restons send out the same POC to everybody, if they can. By having the same letter as me, which one did you mean? Do you mean this one?

'We cannot provide an improved copy ... due to the time ... since your account was opened. (1999 sic) Legally we are only obliged to retain this information for 6 years.' [/Quote]

Forgive me, but what is an 'S.O.'?

 

As regards your POC amount details being wrong, I don't know where you stand because they are such small amounts, maybe the judge will simply let them be corrected when you complain? Have you already tried to get an explanation of the amounts from Restons? although they still have not replied to me, I tried to get that information via a CPR part 18 request. I'm only thinking that if you don't do anything about it, the judge might simply say something like 'You silly man, why didn't you question this earlier?' Only my own opinion of course and I might be absolutely wrong.

 

The fact that the total has increased since the DN by £12 would be explained because there is a month between the date the DN was issued and the date they terminated and took out the claim, meaning another £12 charge to be added to the DN total. Does that make sense? For instance, if they didnt terminate for several months after a DN, then I would expect there to be several months charges to be added to the total you were told about in the DN.

 

As regards the interest, I wasn't aware that interest couldn't be added for 28 days after sending a DN. I know that interest cannot be added for 28 days when a charge is added to your account.

 

Do you have a thread that I can read, Steve? What is your basic defence, is it no executed agreement or faulty DN notice?

[steve2577]

Hi Steve

I'm pretty sure that Restons send out the same POC to everybody, if they can. By having the same letter as me, which one did you mean? Do you mean this one?

Forgive me, but what is an 'S.O.'?

 

As regards your POC amount details being wrong, I don't know where you stand because they are such small amounts, maybe the judge will simply let them be corrected when you complain? Have you already tried to get an explanation of the amounts from Restons? although they still have not replied to me, I tried to get that information via a CPR part 18 request. I'm only thinking that if you don't do anything about it, the judge might simply say something like 'You silly man, why didn't you question this earlier?' Only my own opinion of course and I might be absolutely wrong.

 

The fact that the total has increased since the DN by £12 would be explained because there is a month between the date the DN was issued and the date they terminated and took out the claim, meaning another £12 charge to be added to the DN total. Does that make sense? For instance, if they didnt terminate for several months after a DN, then I would expect there to be several months charges to be added to the total you were told about in the DN.

 

As regards the interest, I wasn't aware that interest couldn't be added for 28 days after sending a DN. I know that interest cannot be added for 28 days when a charge is added to your account.

 

Do you have a thread that I can read, Steve? What is your basic defence, is it no executed agreement or faulty DN notice?

 

HFC wrote to me and used without prejudice in the heading but in the letter they confirm the account was opened in 1999 but sent me a copy of an agreement that on closer inspection is a 2003 copy.

 

SO means Strike Out I have a faulty DN and incoreect agreements so this is my main argument, if the Judge dismisses this and it goes to a full hearing I will then bring in all the other issues of which incorrect POC could be one of them I have this as a reference to interest.

 

CPR 16.4 states

 

(4) The debtor or hirer shall have no liability to pay interest in connection

with the default sum to the extent that the interest is calculated by

reference to a period occurring before the 29th day after the day on

which the debtor or hirer is given the notice under this section.

 

I have some threads but not updated for months as I am getting some assistance privately. I struck first by issueing Restons with a Strike Out application for summary judgement so probably took them by surprise, they Restons sent a copy of an agreement but this is different to the original sent by HFC so basically the left hand doesnt know what the right hand is doing its my first court hearing and I am in a mess financially so if I eventually lose it doesnt really matter there is nothing to pay them.

 

Faulty DN is very strong followed by incorrect or faulty agreement I can PM you my initial defence I used for the MCOL claim and also my full defence I used in the AQ and also my Witness statement for the hearing if you like.

[manchestman]

Thanks for that information on interest.

 

You've got a pm, Steve.

 

I have still not heard anything from Restons about any of my cpr requests, particularly the 31.16 to inspect THEIR original agreement whereever they keep it. (Let's hope it isn't stored in Tasmania or Greenland!). I listened to advice here and though Restons were being particularly awkward by claiming they had misunderstood my request as one for a copy, I sent them another letter reitterating exactly what it was that I was after (on 10 June).

I did this so that no judge could accuse me of jumping the gun and not giving them sufficient notice etc. I then rang Northampton court on 21 June, explained all that had transpired between Restons and myself and asked for advice. Told me to write a letter to court explaing this and they would then forward my letter onto Restons! It's flamin' laughable really.

Well, I didn't follow that piece of court advice and instead applied for 'strike out unless they comply' and paid a £40 fee on 22 June.

I had meant to call today but forgot they close at 3.30 so will call tomorrow to see what the state of play is.

[steve2577]

Just to let you know where I am

 

Claim received by MCOL and I defended and asked for Strike Out

Claim passed to Local Court at this point N244 and again asked for Strike Out this has been referred for a hearinf in Chambers with myself the Judge and Restons end of July.

 

I submitted my first CPR 31.14 request and also notice of estoppel if they dont reply I have another letter ready to go in a few days to supliment this.

 

At this point xxiting myself but think I have all the facts and a full witness statement ready to go.

 

At the end of the day as per Carey v HSNC & Others stated in part 231

 

Third, it ignores the fact that if a proper case of IEA is mounted, disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not.

 

so basically if I dont get a Strike out then full hearing and the fact is can they produce the document the burden of proof is on the claimant?

[manchestman]

I received a 'General Directions Order' today, can someone please explain exactly what it means and what I do next? I take it, this is because of my application.

 

HFC, 1st claimant v me, 1st Defendant: Northampton County Court.

 

Before Deputy district Judge XXXXX sitting at Northampton (CCBC) County Court, on 17th July 2010

 

It is ordered that:

 

The application to strike out the claim must be heard on notice to the claimant.

 

The claim be transferred to the defendant's home court.

 

Note: A party affected by the Order may under Rule 23.10 apply to have it set aside, varied or stayed. Such a party must apply under Rule 23.10 within 7 days of service of this order.

[Notasniceasjoe]

Hi Manchestman

 

ISTR that you had an SJ hearing coming up some time soon but couldn't find any other details - how are you getting on?

[manchestman]

Hi Joe and thanks for popping by.

Basically, I had been given a hearing date of 3rd Sept for my app to strike out because of non compliance with my CPR 31.15 request to inspect the original agreement (All copies sent over the last three/four years are unreadable and did not include any terms conditions).

However, about 6 days before 3rd Sept, Restons (not the court) served me with notice that the SJ would also be heard on 3rd Sept at same time. I was in an immediate panic - still only had my embarrassed defence and no other prepared, was in excruciating pain for an abcess.

Got in touch with court and with Restons and asked for adjournment as I only had 4 working days to prepare defence and this was not justice. Miss Tipping herself actually phoned me up to sympathise with my dental problem and inpending operations. She sounded quite human.

Anyway, notice came through that both hearings were adjourned till 18th October. I am going to try and collate all my research and produce my defence/WS over the next week, though I am feeling thoroughly disheartened (I am a depressive anyway!), and wondering why bother with all the bad news of late, ie Brandon v Amex and Kneale v Barclays. Because of Kneale, I am not going to persue my cpr request at the hearing because I simply cannot afford any costs against me and although I was asking to inspect the agreement, Restons have suddenly produced a microfiche copy of the terms and sent it to me, even though I have been told they did not exist for three years. The copy I have been sent is clearly not from my agreement and doesnt even match, but we all now know that that doesnt matter as long as an employee swears that it is.

Well, I suppose that is it for now. Good luck to you in your continuing battle, Joe.

[Notasniceasjoe]

Thanks for the update Man - the only advice I'd be able to give at this stage is to allow yourself at least twice as long as you think it'll take to get your W/S into order, it takes a long time. Oh and give some thought to producng a skeleton argument, even if it's just for your own benefit, not least because it'll help to crystallise and put everything together to see where the most important bits are. Having just read Coventry Crusader's thread if there is ANY attempt to ambush you then don't fall for the obvious ploy of wanting to get it over with, ask for an adjournment to consider - not just a quick 15 minute read either!

[manchestman]

Joe, you were absolutely right about the length of time for my WS. Today is the last day for giving it to court in person as court date is 18th Oct. I am afraid I may get wrapped knuckles fro sending Restons and only giving them 6 rather than 7 days, but thats just too bad.

I am going to pop this down to the court house at about 3pm today so little chance of asking for revisions, unless by chance anyone notices any gaping errors in the next couiple of hours! lol

Anyway, here is my WS

 

Witness Statement

1. I make this statement in opposition to the Claimant’s application for summary judgment and the Claimant’s contention that I have no real prospect of successfully defending this claim.

 

2. Contrary to the provisions of the Consumer Credit Act 1974 (CCA), the claimant has continued in his failure to comply with my request for a true copy of the fully executed agreement, first requested on 19 February 2007. I believe and will show that while remaining in default, the claimant should not attempt to enforce the agreement and therefore this claim should never have been brought to the courts. Further, while the claimant remained or remains in default, the debtor is not liable to pay any interest calculated by reference to the period of non compliance or any default sum which would have become payable.

 

3. I shall also produce the claimant’s admission in 2007 that he does not have an executed agreement and therefore he cannot produce a true copy or true reconstruction.

 

4. I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated as the claimant was still in default of his obligations under the CCA. Without prejudice to this assertion, I shall also show that the Default notice the claimant sent is invalid. I assume and presume nothing and put the claimant to strict proof of claim as to the calculations of the claimed arrears amount and without prejudice to this, that I shall show that I was also not given enough time to comply with the Default Notice.

 

5. At trial I shall contend that under Section 87 of the CCA the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the agreement and make any demand for early payment. It is my case the default notice received did not comply in the respects referred to. Under Section 88 (1) of the Act, for a default notice to be compliant it must be in a prescribed form and specify the nature of the alleged breach; if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken and if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid. I will contend that the claimant’s sum is also inaccurate as it is calculated on a balance based on unauthorised direct debits, wrongful default sums and interest totalling in excess of £8,000.00.

 

6. Without prejudice to the above, the wrongful default sums included in the default notice amount of arrears are default charges levied on the account for alleged late payments or other minor breaches. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

7. In any event, if contrary to my contentions and expectations, the Claimant should prove at trial when the default notice was delivered. The Claimant will be unable to show by reference to that default notice that it subsequently became entitled to terminate the contract. If the termination followed on from the delivery of the default notice on 12 March 2010 and which gave me 14 days to rectify any default mentioned in it, the termination of the agreement prior to the expiration of the period given to me in the default notice was a termination which did not then entitle the Claimant to demand earlier repayment.

 

8. In the circumstances and in addition to my main contentions, I contend that until such time as the Claimant has established a legal entitlement to earlier payment and given disclosure of material which unequivocally justifies an entitlement to the sum of money claimed, it is impossible for the Claimant to show and for the court to determine at the hearing of an application for summary judgment, that I have no reasonable prospect of showing at trial that the sum of money claimed (whatever that sum may be) is not owing to the Claimant.

 

9. I do not deny applying for a credit card with the claimant, HFC. As far as I recall, the pre contractual application form was a foldable paper card with the claimant’s postal address on one part. The application form for a Freeserve/Wannado Marbles credit card was enclosed with a free ‘Freeserve’(soon to be ‘Wannado’) Internet Provider disc in a PC world shop. They were in a basket near to the exit door. There were no other leaflets, pamphlets or documents with this application form and I certainly do not see how the terms and conditions (HFC2, p2) the claimant suggests were on the reverse of the application form could have been there and I do not recall ever seeing any similar document when I signed the application form or when I received the credit card. The application format may or may not have been set out as the claimant contends (HFC1, p1) but I do remember it being a very short and simple form to read and fill in. Sometime later, the credit card arrived by post, attached to an A4 sheet of paper containing my internet ID number, the valid from date, card number and the credit limit.

 

10. I have never denied obtaining or utilising a credit card facility with the claimant. In fact, since 1999, I admit receiving £18, 896.90 from the claimant and also giving back £22,992.77 to the claimant. I understand that when any debt is legally unenforceable it still remains a debt and does not simply ‘disappear’. However, I now deny the contract still endures since on a day prior to the commencement of this case against me, the claimant terminated the contract.

 

11. I include a series of events to be read alongside my contention that the claimant is still in default of CCA and should not have brought this action. In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial and that the Claimant’s application for summary judgment against me should be dismissed.

 

Date: 9 October 2010

 

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

 

signature

 

 

Attachment: Exhibits

 

Background

1. Throughout all of my working life (some thirty years), and until very recently, I had always maintained an exemplary credit history, always made payments on time and never defaulted even when diagnosed with illnesses that prevented me from working. Indeed (and probably stupidly), after falling ill, I even remortgaged my terraced home in an effort to continue making full payments to all of my creditors (payments totalled more than £700 each month for credit cards).

 

2. Early in 2007, after undergoing an MRI scan, I was diagnosed with sciatica and in particular disc herniation causing nerve compression. After a colonoscopy I was also diagnosed with chronic Inflammation of the bowel and as a consequence it was discovered I carried the HLA B27 Gene and had Ankylosing spondylitis. I also suffer and suffered depression. The combination of illness and necessary medication ensured I was tired all the time, had induced memory loss and I found it hard to concentrate on any task for any length of time. My doctor told me it was no surprise as I was taking enough medication to knock an elephant out! I had been communicating with all of my creditors, while continuing to make full payments but it became increasingly more difficult to concentrate on and cope with continuous letter writing to resolve issues which is why there is close to a 2 year break between correspondences of 2007-9.

 

3. I could not sustain making full payments to all of my creditors while only receiving incapacity benefit and sought advice as to how I could and should change and prioritise payments from my disposable income to my unsecured creditors while still paying my mortgage and other essentials. In the first instance I was advised to carefully check my unsecured creditors’ original contract terms to ensure I had not made any overpayments, had been treated fairly, knew what my legal obligations and rights were, and to establish which of my unsecured creditors held legally enforceable agreements as these would be the creditors with which to negotiate and prioritise first. I have never been a ‘won’t pay’ and have not sought to avoid my responsibilities or act ‘speculatively’. Indeed, I believe I was acting fairly in wanting to pay those of my creditors who had acted responsively and within the law first.

Date: 9 October 2010

Statement of Truth

 

I believe the facts stated in this exhibit are true

 

 

signature

 

The Credit Agreement

1. More than three and a half years ago, on 19 February 2007 I made a request under s78 Consumer Credit Act, 1974 (‘The CCA’) to the claimant to provide me with a true copy of the original executed agreement for this account, and a statement of this account (GPC-0 1). Where the claimant has varied the terms of the original agreement he is also obliged to send a copy of the original terms and conditions as well as the current terms and conditions as amended. In addition the claimant Is obliged under the Cancellation Notices and Copies of Documents Regulations 1983 (3) to provide copies of documents that are “easily legible”

 

2. The claimant responded on 2 March 2007 with an almost completely illegible copy of what I presume is the front of the pre contractual application form (GPC-0 2), extremely similar to HFC1 p1, and a statement that the original credit limit was £9,000 (GPC-0 3). There were no terms and conditions included and the right hand side of the application form is missing as is text all the way down the page. By cross referencing with earlier monthly statements regularly sent by the claimant it is clear that the original credit limit is nowhere near the £9,000 stated and is probably closer to £2-3,000. The claimant asked me to write to him if I was not satisfied or had any further questions.

 

3. I wrote to the claimant on 1 and 16 March 2007 (GPC-0 4 and GPC-05), asking for confirmation that this statement and illegible partial application form copy was indeed a fully executed agreement as required in law. I drew to the claimant’s attention that I could not read it and that I was under the impression that a fully executed agreement had to contain several key terms such as the APR inter alia. I also wrote on numerous occasions over the next three years with the same points and the same repeated question, “is this illegible copy of my application form, with no terms and conditions included and certainly no key terms included, a fully executed agreement as required in law?” Since March 2007, I have received many various personal letter responses from the claimant but not one of them would answer this very simple but often repeated question and in fact, seemed to deliberately avoid it. I am afraid that just as the normal man in street would, I came to the conclusion that the claimant had not followed legal statute or OFT guidelines in his rush to provide me with a credit card and that there was no legally enforceable agreement in existence.

 

4. Further, on 21 March 2007, the claimant stated he was “unable to provide you with the original copy” and “therefore, we are unable to provide you with a more clear copy of your legal agreement.”

 

5. On 30 March 2007, the claimant wrote “We cannot provide an improved copy of the original application due to the time which has passed since your account was opened. Legally we are only obliged to retain this information for 6 years. ... in addition to your original application a number of other documents would have been issued to you, these included a system generated letter and welcome pack detailing all terms and conditions of the account. The letter in which your card was attached would have detailed APR and credit limit along with key sections of the terms and conditions. ... I have enclosed a copy of our most recent terms and conditions which would have been issued to you in August 2006, and an updated welcome booklet which will give you an idea to the type of details your welcome booklet would have enclosed.” A fully executed credit agreement under the CCA must have all the key terms on the same document as the signature. I do recall receiving some kind of welcome booklet and a system generated letter with a credit card attached but no terms and conditions and no details of my rights to cancel the agreement. Even though I do not believe it would comply with the CCA definition anyway, the similar booklet, the welcome booklet of 2006 (GPC-7) does not contain any of the key terms and merely gives instructions how to operate the card and an application form to apply for an additional credit card inter alia. The system generated letter with the card attached did not detail all the terms and conditions as the claimant stated. It failed to state nearly every one of the key terms. The only information it contained was the card’s valid from date, the card’s credit limit, the card’s number and any applicable variations in the card’s terms and conditions, but definitely not the key terms. I enclose my 2003 system generated letter that enclosed my card (GPC-06).

 

6. My next three letters between April and June went unanswered and I felt that I was certainly not being told the truth and maybe even being misled, and my several questions including the key question “is this illegible copy of my application form, with no terms and conditions included and certainly no key terms included, a fully executed agreement as required in law?” were still not going to be answered. Completely frustrated at the claimant’s lack of openness I declared that “I require you to temporarily, but immediately, cease collecting direct debits from my bank account and hereby revoke previous permission to take direct debits”. Rightly or wrongly, I also asked that all amounts taken from my bank account since the claimant had defaulted in his duty under the CCA were to be returned to me and that the claimant ceased adding interest to my account while it was in dispute as I had believed a creditor was not able to profit when he had committed an offence. These direct debit amounts were never returned to me. Despite my former request, direct debit payments totalling more than £3,000 were taken from my bank account before I realised what was happening and cancelled the direct debits with my own bank, Abbey in August 2009.

 

7. Despite having kept up with full payments, on 3 October 2008 the claimant informed me that my account would close on 27 November 2008, that my credit card would no longer be accepted and I would not be able to view or service my account online.

 

8. On 30 August and 2 October 2009, I wrote to the claimant again about his continuing failure to comply with the CCA and to ask again for the refund of all my unauthorised direct debits totalling more than £3,000 plus interest. The claimant’s responses to my requests were dated 11 September, 12 and 20 October 2009. Despite “a thorough investigation” there was no mention of my direct debits at all though a small payment was offered to me provided I signed a conditional form. I do not think I am allowed to give full details as the offer is marked “without prejudice”. I refused to take up the offer. I did not want a ‘gift’, but wanted my account and statements to be corrected and unauthorised payments to be returned.

 

9. As the claimant had still failed to send me the original terms and conditions or any part of the executed agreement that even held just the key terms I decided to try and start again with my request for a true copy of the original fully executed agreement under the CCA and hopefully a new approach to different staff might actually produce what was legally required and so I paid another fee to the claimant and made my new request. On 25 September 2010 the claimant sent several documents (GPC-8) and explained that they complied with the law, had enclosed “a blank copy of your original application form ... The agreement form contains the original terms and conditions that you accepted when you entered into the agreement”. The claimant also sent an up to date copy of the Beneficial Credit Card terms and conditions and a list of charges applicable to the account when it was opened. I disagreed that this document pack complied with my CCA request and feel that once again I was being deliberately misled. I have never applied for a Beneficial Credit Card and my freeserve/marbles account was closed on 27 November 2008. At least the statement appeared to be correct this time and stated that the account was opened on 13 November 1999 with a credit limit of £2,500. Unfortunately, the claimant had sent a blank application form that bore no resemblance in either form or content to the one I had originally filled in.

 

10. My pre contractual form for a freeserve/marbles credit card shows a heading “Marbles http://www.fscard.co.uk ... powered by Freeserve http://www.freeserve.com” and just below this “Your application number is ...” and “To apply on-line tap in the web address in your (unfortunately, the next word cannot be read)”. The blank form the claimant sent is one to apply for a Beneficial credit card that I don’t even know if it existed in 1999. I have certainly never applied for or held a Beneficial Credit Card. The blank form is headed “Application Form ... Beneficial” and just below this, “1. Sign the Credit Card Agreement Please ensure you have signed the Credit Card Agreement overleaf before sending us your application. Please send this back in the enclosed freepost envelope.” On the original application form there is provision to apply ‘on-line’. Even in sections that may possibly appear similar the text is clearly different in length and shape. There are additional sections on the blank form that are not on the original marbles application form such as applying for an ‘additional cardholder’ and ‘use of your information’. There is also a large piece of text at the very bottom giving trading details of ‘Beneficial’ and it’s address etc. There are no similar details on my original application form.

 

11. The ‘original’ terms and conditions carry the code 203a (02/02) which I interpreted as being from 2002? Whether or not they are from 2002 they bear no resemblance to terms that were applied to my account in 1999 and shortly afterwards. For instance, in the witness statement by Laura Tipping, it is claimed that the original interest rates included “Transactions and Balance Transfers is 0.485% per month, equivalent to an APR of 5.9%. Standard variable interest rate is 1.17% per month and the equivalent APRs are 16.7% for Cash Advances other than Balance of Transfers and 11.9% for Transactions and Balance Transfers after the expiry of the 6 month period ...” In the ‘original’ Beneficial terms it is stated “4. Charges (a) The interest rate for Balance Transfers is 0.242% per month, equivalent to an APR of 2.9%, fixed for a period of 6 months from the date of account opening. ... The standard variable interest rate is 1.240% per month, and the equivalent APRs are 18.0% for Cash Advances other than Balance Transfers, and 15.9% for Transactions and Balance Transfers after the expiry of the 6 month period ...”

 

12. The claimant also sent a list of ‘Beneficial’ charges that would have originally applied to my account. Unfortunately, they too are wrong. The list refers to Beneficial Credit Card holder’s Account Charges and states a charge of £25 per month for Late Payment and of £25 per month for Overlimit Charge. In June 2001 Freeserve/Marbles statement I was charged £20 for a Late Payment, and the September 2003 statement stated that fees for Overdue and Overlimit Payments would be increased from £20 to £25.

 

13. Unfortunately, the claimant’s next correspondence before Restons Solicitors Ltd (Restons) took over, was dated Friday, 5 March 2010 and was to issue a legal Default Notice to me. This was sent by second class post and received 5 working days later on 12 March 2010 and gave me 12 clear days in which to comply and pay arrears of £1,096.00 by 24 March 2010 or termination would take place on 25 March 2010. The amount is clearly a very long way from being correct and is more than de minimus. According to the claimant’s calculations it must include hundred’s of pounds of charges and does not take into account the return of unauthorised direct debits and associated interest. I contend that the Default notice has been rushed through before resolving the dispute and is invalid for the above reasons.

 

14. Termination happened on 25 March 2010 when Restons letter dated 25 March 2010 asked for a default balance of £10,010.54 plus continuing interest. The amount is clearly a very long way from being correct and is more than de minimus. According to the claimant’s calculations it must include many hundreds of pounds in charges and does not take into account the return of unauthorised direct debits and associated interest amounting to several thousands of pounds.

 

15. The claimant issued County Court proceedings against me on 7 May 2010 through the Northampton bulk processing centre. The Particulars of the Claim (POC) were very vague and no supporting documents followed.

 

16. Under CPR Part 18 and 31.15 I asked Restons, for the claimant, to expand and explain some of the abbreviated terms in the short POC and to allow me to inspect the original document that they would be relying on in court. I did not consider it unreasonable to actually inspect this supposed executed agreement as opposed to only requesting a copy, as after 3 years of failing to comply with the CCA and absolutely failing to send any terms and conditions that I am supposed to have agreed to when I applied for a credit card but sending other documents and implying they were the actual terms and conditions, I did not feel I could trust the claimant anymore. According to the CPR, the claimant was supposed to comply within 7 days. I believe I was patient. I wrote on 3 June 2010. I telephoned Restons offices on 7 and 11 June to enquire about progress. On 11 June, our third point of contact, Restons told me that they had understood my request to be for a copy of the agreement under CPR 31.14. On 12 June 2010 I wrote again and again, made absolutely clear that my request was to physically inspect the original agreement and was NOT being made under CPR 31.14 but under 31.15.

17. After several weeks of no communication from Restons and with no way of properly formulating a defence I made an application for the claimant’s claim to be struck out unless they complied with my CPR request. This was issued on 20 July 2010.

 

18. In a letter posted 23 July 2010, Restons wrote to explain the POC and “in response to your request made pursuant to CPR 31.14, please find enclosed a copy of your Credit Agreement for the above account, including the Terms and Conditions.” I was sent a copy of exhibit HFC1, pages 1 & 2 and it only serves to further explain why my request was to physically inspect the document. In her witness Statement, Miss Tipping admits it is difficult to read HFC1-p1. She fails to state that the right hand side of the application form, containing boxes and text, is absent. I challenge anyone, even with a magnifying glass, to read (not guess, but read) this side of the partial application form, never mind the rest of the document. I have tried lots of times over the last three years and have always found it impossible. It holds some kind of date marker at the very top of the page and marked “IMRM ASTON UNIT 10 OFFICE”. It contains a 16 figure hand written number which is probably a credit card number.

 

19. HFC1-p2 carries no markers and in three years of requests has never been previously supplied despite many, many requests. The whole page has a completely different feel and look to it than HFC1-p1. It has not deteriorated nearly as much and it is possible to read most of it with difficulty and a magnifying glass. In section 4. Charges, the various APRs are written as Miss Tipping states. However, when magnified many times, it can be seen that these figures, “0.485%, 5.9%, 1.5%, 1.17%, £2.00, 3%” and others are not original typed figures but appear to have been ‘hand written’ later. I would suggest that original figures have been erased or altered and new figures written in to try and match the typescript. The claimant does not try and pretend that this is a reconstruction but claims it is part of the original application form.

 

20. The card carrying system generated letter of 2003 carries new varied terms to be implemented. The first varied term is “3. Credit Limit Your credit Limit will be determined by us from time to time under the Agreement and notified to you.” Unfortunately, this term is already stated in HFC1 in both exact form and content. This set of terms, HFC1, cannot be original terms from 1999 as the claimant states and therefore cannot be trusted to be accurate in any place. I will let the court decide if this is fraudulent or not.

 

21. I believe the claimant has demonstrated he does not have a fully compliant executed agreement. Further, I believe the claimant does not know what the terms and conditions of any executed agreement would have been. I believe that any attempt at reconstruction of the agreement cannot succeed without the original documents.

 

Date: 9 October 2010

 

 

Statement of Truth

 

I believe the facts stated in this exhibit are true

 

 

signature

 

[Notasniceasjoe]

Manchestman

 

There's a lot there to read through - one thing to mention, though it's probably too late to rejig it now - my understanding of the format of a witness statement is that much of what you have included as exhibits at the end, goes in the body of the statement itself and the exhibits refers to documents presented in evidence, each of which is preceded by a cover sheet with the case details, as on the front of the statement, Exhibit XXX or whatever number, together with your name and the date..

 

Personally I wouldn't put the bits about the documents being potentially fraudulent. It's just likely to annoy the DJ -these are, after all, major financial institutions and would never stoop to such things. Best to just point out the differences and dicrepancies.

 

Best of luck with the proceedings - fingers crossed for you.

[manchestman]

Not too late... doing it now, thaNKS jOE

[Notasniceasjoe]

Just don;t miss the deadline - get the front page stamped by the court as evidence of filing and get it to the solicitors asap too.

[manchestman]

Thanks Joe, i did rejig it as you suggested to make a single WS. I had several exhibits and a whole bunch of correspondence that I listed as a single exhibit. I did take out the 'fraudulent' sentence too! It's just that I got so cross when I started to look at the most recent attempt to provide an executed agreement very closely and realised what they had done with tippex and a black biro. Knowing they simply get away with fraud just because they are a 'trusted financial concern' makes me sick and even though I know i am right in my case, I will still probably lose the SJ and the judge will probably allow their altered terms, even though out by three years as well!

I just made it to court in time to get it stamped and managed to post off to Restons. However, Once I had got home I realised that the big thick bundle of documents and cover sheets etc that I'd carefully taken to court did not include the actual bloody witness statement itself. A cruel lesson to teach me to be much more prepared and not leave till last minute.

I will take it to court as soon as it opens in the morning along with a grovelling letter and just throw myself upon the court's mercy. Nothing else I can do about it.

 

Joe, I so much appreciated your response this afternoon. It really helps keep your head up when you know someone else is reading what you write as well, so thanks again.

 

BTW, rather weirdly, I can't edit my earlier post with the witness statement in - I was going to replace it with the actual one that went out. Ah well ...