taken to court by HFC/restons... **case dismissed** now marking CRA file again

[AndyOrch]

Sign theirs with a unique signature ie different slant or line through anything apart from your normal.

 

Andy

[manchestman]

No problem Manc as long as its been picked up.

 

I know the OP is keen to get this printed off and meet the deadlines but i think that the Exhibits should be entered where referred to.This adds clout to any WS and changes it from a fanciful statement to a factual one.It would prob take 30 mins to add the references but I think It may make all the difference.

Absolutely agree with you.

 

Regards

 

Andy

 

I also have a letter from Benifical who were the bank i first too the loan out with before hfc took it over, which tells me they made a door step call to discuss my account (it is the same account number as HFC) this was in March this year do you think i can use this as im confused with why they came to my door and not HFC seems this account is all over the place.

Have been rereading the thread and noticed this re: doorstep call from Beneficial in March. As the call links the loan from 1995 to 2010 it might be worth slipping a line into your WS, something like the line in red below:

However, during 2000 and 2001 I received several unwarranted doorstep calls from the creditor or the creditor’s agent (asking for money?) which caused me to feel under pressure and stress. I even received a further doorstep call from Beneficial, the original creditor in 1995, as recently as March, 2010. In 2001, I received notification, together with a new paying in book from the claimant, HFC, that the loan had now been ( taken over/sold?) and that I should still continue to make my payments just as before. I did continue to make these payments until recently.[/Quote]

I'm round and about for a while if needed, but otherwise won't post here anymore till you get WS +Exhibits sent off.

[AndyOrch]

Thank you Manc for your assistance and input with this matter

 

(tipped your scales)

 

Regards

 

Andy

[manchestman]

Sign theirs with a unique signature ie different slant or line through anything apart from your normal.

 

Andy

 

Good point, and if any exhibits are your letters to them & have your signature, do the same or overpaint lightly with a crayon or write "copy" over the top of the signature, or anything similar. Don't trust Restons

[whatamess]

I dont either, thank thank thank you how do i tip scales

[Chipmeister]

There's a little star at the bottom of each post - just click on that and you can add to someone's reputation.

 

All the best, and well done with the WS!

CM:-D

[whatamess]

Thanks CM, all WS's binded and little coloured tabs and im ready to hit the post office is it wrong to feel a little bit excited

I wont be come next week.

 

Thanks again

[manchestman]

It's right and proper that you should feel a little excited and be proud of yourself too!

Each step in the court process is a real achievement.

Go and have a few hours off with your children and then we can start thinking about your argument in the courtroom (its not really a big courtroom, just a small room with a few chairs around the table).

I will post up Restons skeleton argument against me over the weekend so you can see what type of legal argument you will meet.

[whatamess]

Phew I can relax tonight and back to doing some work at work like i should be. Thanks again Manc for all your help will be back over the weekend to read your posts.

[manchestman]

here is Restons 8 page 'Skeleton Argument' used against me. They gave me a copy before the hearing and went through it with me, and then gave judge a copy once inside the court room. Hopefully, it will help give an idea of what to expect inside the court room and to help you develop your own argument, this time with case law. I didn't do one, but I know that if I had actually written my own 'Skeleton' it would have helped me a lot more. Oh well!

"]

 

 

[whatamess]

Hi there, thanks for this but if i do one of these is this not repeating what I have already written in my WS?

[manchestman]

Firstly, the whole post is just so you know what to expect, what the other side will want to argue and how. Secondly, your WS is (or should have been) a simple series of factual points from your own personal perspective - almost a 'story' of your dealings since opening the agreement. A Skeleton Defence is a shortened version of your full defense. Your defense is based on your WS but is a lot more, or a lot less than your WS. Your defence wont be concerned with some facts in your WS, because of irrelevance. But your defence will want to concentrate upon the one or two key points in your WS where you will want to build and support with legislative evidence. A skeleton is where you would put in your legal and case law pointers, as well as your informed opinions but is a short hand version of your full defence. As an LIP a skeleton is NOT necessary, and this is not a trial hearing, but in my opinion would still be of tremendous benefit to YOU, whether you decided to give copies out to oc and judge or just to keep it to yourself.

 

However, you might just want to focus on writing your own 'speech' if you like, that you will want to use in court. (The skeleton would be a shortened version of this)

[manchestman]

Apologies, Whatamess, i really don't mean to hijack, but I would like to appeal to Andy if you are following the thread, and ask for a little help on my own thread, please? http://www.consumeractiongroup.co.uk/forum/showthread.php?262016-Help-me-please-Short-crt-date-HFC-Restons-summons-for-10k&p=3204162&viewfull=1#post3204162

[AndyOrch]

Yes I have just seen your posting I will jump across shortly to your thread.

 

Regards

 

Andy

[manchestman]

Whatamess, if you want to forget about doing a 'skeleton', no worries.

However, Whenever you need help with how you will present and argue in court don't be afraid to ask. Are you ok with arguing against the sol's assertion that 'Carey' allows claimant to use a reconstruction of agreement?

 

To help you feel better and positive about your prospective court appearance, have a read of post 13, 14, and 15 by the excellent tomterm8 here: http://www.consumeractiongroup.co.uk/forum/showthread.php?108467-Basic-Introduction-to-Consumer-Credit-litigation&p=1048145&viewfull=1#post1048145

If you are really worried you could ask to take along someone for moral support with you.

[whatamess]

Hi MANC

 

I am just a little worried that i am going to go in there and not really no or understand what i am trying to say.

 

I am not ok with arguing against the sol's assertion that 'Carey' allows claimant to use a reconstruction of agreement, is this something you can help me with?

 

Thanks for the link i will have a read though this post now.

 

My thoughts have been that im going to loose this case and if that happens i have to just accept that i tried my best and I didnt throw in the towel at the first hurdle, alot of this has been out of principal i dont want a CCJ on my record and i can really do without extra fees on top of £500 they are trying to claim but what will be will be, there is nothing i can do about it.

Do i need to take with me a break down of expenditure? incase i do loose they will want to know what i can afford to pay?

 

Thanks

[manchestman]

Hi Whatamess, Please don't get too stressed. The 3 posts I last pointed you to will only take 2 mins to read.

Firstly, the law in the form of The Consumer and Credit Act 1974 (CCA 1974) is there to offer you protection. Have you printed out and read just the parts that apply in this case? I posted the link and various sections earlier. Then after becoming familar with S78 and S61 of CCA 1974, ask any questions it might raise in your mind.

Then, after reading CCa parts, although it is 56 pages long, do try and print out and read thoroughly the 'Carey' High Court judgment I also gave you a link to. It was a test case involving 10, I think, claimants against various banks and understanding the judgment will have enormous impact on whether you defend well or not, because Restons will use it to justify the reconstituted agreement as evidence in your case. If you understand Carey, and the parts of the CCA that apply, you will then be able to comfortably use parts of the judgment to argue that a reconstitution should not be allowed as evidence and that only the original will do. In which case, you win! Simple as. This will be the most important aspect of your defence and if you understand and argue your case, because you are in the right, then the claimant can go no further in trying to enforce the debt. I used a fleorescent marker and underlined anything I thought might be useful as I read Carey. Then I got some 'postits' and rewrote the point and attached it to my Carey copy.

You must be aware you will always have the debt, win or lose this case, but really, if you win, the claimant will not ever be able to successfully enforce the debt, so it will be up to you how much or how little you might want to pay, depending on your circs.

Re-read my post here, with links http://www.consumeractiongroup.co.uk/forum/showthread.php?273721-Help-being-taken-to-court&p=3198570&viewfull=1#post3198570

 

 

I have just been re-reading the whole thread and I also have some questions. Are the only docs Restons have submitted as evidence in support of their app a reconstituted default notice and a blank application form? What year is it from? Does it have t&C with it?

Or, have they also included copies of your statements, or any kind of statement of account?

I'm puzzled about this 2 loan business and what your response should be, which is why I am asking about anything else that supports their assertion (apart from a sentence in their WS) that loan was taken out in 2001.

For instance, does the blank app form state a nice round figure as the loan of 2001, or any other details that might help me understand how to respond.

What did you submit as exhibit that shows a link between 2 loans?

Do you feel confident in denying that you ever signed or even opened a loan account in 2001? Are you sure nothing that has been submitted so far can prove this denial wrong?

[manchestman]

Also, is the 26 Nov a trial date or a SJ hearing?

[whatamess]

What Restons attached as evidence was a reconstucted Credit agreement, with my name, address, loan amount how long for with attached T&C's as well with a statement from 2001 until 2009. I attached a black (completely blank) credit agreement which HFC sent to me when i asked for a true copy of my Credit agreement they also sent me a statement which is deferent to the one Restons has attached.

 

I have nothing concerning Benifical bank so couldnt attach anything but did write a section in my WS regarding taking out the original loan. I can be 100 % certain that i did not sign anything from HFC for this loan. Once they submitted there evidence can they bring more to the court?

They have not attached anything that shows me i agreed to this loan in 2001.

 

I thought Friday was trial but now your asking i cant be sure, i have all my paper work at home so wont be able to let you know til then, I hope it is because i dont think i can go back for a second time i want this over and done with.

[manchestman]

I'm sure you would know if this was a hearing for a summary judgment, so don't worry.

If you didnt go to court, what is the worst case scenario? HFC get a CCJ and an order for the full amount. You then apply to make smaller affordable payments.

If you do go to court, what is the worst case scenario? HFC get a CCJ and an order for the full amount. You then apply to make smaller affordable payments.

 

However, win at court and you never have to acknowledge them again if that is your choice.

 

It would really help if it is possible for me to see the two different statements, if you can upload them after covering personal details etc.

 

Right, In my opinion only, I would suggest that the claimant is wasting the court's time going on a fishing trip and is being merely speculative. Their countless thousands of similar claims with similar POC show this to be the case.

Onus of proof is on the claimant, not you.

Again, in my opinion only, you are basically defending with the following points.

A S78 CCa request has to be true and honest according to Carey. And a creditor must stand by his statement.

1. Your 2 statements show otherwise

2. The reconstitution sent in your first request is based on the existing balance when HFC took over in 2001, but you aver the agreement began in 1996(?)

 

HOWEVER, and a very strong however, DO NOT get sidetracked into arguments about S78 (When you read Carey, you will understand why)

 

Next point is quite simply you did not sign any such agreement in 2001, so prove that I did . You do not seem to have any evidence here to back this up (no receipts or anything?), but no worries because you have sworn to this in your WS and onus is on claimant to prove otherwise and that the agreement from 2001 does exist.

 

If it goes any further and judge decides that an agreement was taken out in 2001, then move to next point. S61 CCa states catagorically that your agreement, to be fully executed, must contain the terms prescribed in law. S127 states something like, if the agreement did not have the prescribed terms then the potential claimant cannot seek enforcement.

To grant the claimant a judgment in this case would be to enforce the debt. Hobsons Choice!

 

Claimant will argue that if you hadnt signed you wouldnt have been given money (but you say you already had the money?). He will argue that the reconstituted agreement should be allowed as evidence because of what Judge Waaksman said in Carey. You will say, but Waksman made it clear he was only dealing with S78 requests which are requests for information only. Specifically said he was not dealing with S61 which is a proof/evidence issue, so this reconstructed agreement can't be allowed. CPR states 'original docs should be brought to court' (The 'should is used in the normative sense).

 

That is your basic defence and I think if presented well, stands a good chance, but no more than that. If you don't read and understand and plan well over the next 4 days, you will lose.

 

I am reluctant to say too much more yet, until i know you fully understand the issues here. If you simply print this post off, thinking you will read it out in court, you will get trapped. I am willing you on, whata, but you have to read the important docs now and come back with any questions about them.

Edited November 22, 2010 by manchestman
missed words

[manchestman]

I'm sorry if I sounded a bit off in last post, I just read it back and it doesnt sound too good, didnt mean to offend you.

[whatamess]

I have never been able to upload anything on here. I am happy to scan and send to you to look at if you want?

 

I am convinced i am going to loose this, as i am never going to be able to remember everything i read in the next 4 days. I will read everything you have suggested as i have know choice but to go to court now and any information beyond what i already have in my brain is a bonus.

[manchestman]

I have never been able to upload anything on here. I am happy to scan and send to you to look at if you want?

 

I am convinced i am going to loose this, as i am never going to be able to remember everything i read in the next 4 days. I will read everything you have suggested as i have know choice but to go to court now and any information beyond what i already have in my brain is a bonus.

I know it's really difficult to feel otherwise, but we have all gone through exactly the same feelings. From about a week or so before my first hearing I was also convinced i wouldn't be able to speak in the court room, and even if I could, I wouldn't be able to get my point across and I was absolutely convinced it was a waste of time. Yet, in previous months, I had been more assured that I was in the right legally. I think it's just a natural process as we get closer to feel threatened and inferior compared to the massive legal machinery the claimant's can muster. I was terrified and only had a couple of hours sleep the night before. But, once the day came, I suddenly felt I had nothing to lose anyway and actually found both the claimant's sol and the judge very helpful and welcoming (even though I knew the sol had an ulterior motive).

The facts in your case are much, much, much stronger than in mine and I don't want to mislead you, but I am sure based on the facts you've told us about, you should walk it on Friday. You don't need to remember everything you read at all!. You just need to understand what you've read and what the Carey case is about through your own reading rather than just what people tell you. I can point you to the right places to mark for court if necessary, but you will probably find the judge is very familiar with Carey anyway, so he will know where you are coming from, having probably been presented with the same arguments several times already. To know the 3 or 4 sentences of the CCA that actually protect you is important, but even then, you don't have to remember them verbatum, you just need to know how to refer to them and when someone says "this concerns s78" you need to be able to prick up your ears and say to yourself, "hold on, that's not quite right, didnt I read somewhere in Carey that he wasnt concerned with S61?". Then when it's your turn to speak, you can quickly and quietly demolish the sol's very weak argument. You don't have to be clever or a good speaker. You can be extremely nervous, and the judge will you. You don't have to keep giving quotes, you just need to be able to say "Excuse me, sir, but I thought that ... " or "I was under the impression that ..." or "I'm sorry, Sir, but I thought I read somewhere in the Carey case that ..." etc.

I'm now much more confident about my own case, but the claimant does have a signed app whereas in your case they have nothing at all with your signature on. In my case, there is no argument about when the agreement started, but in yours, you are clearly making a positive assertion, that could be proved if necessary and given time (SAR to original creditor), that the other side is talking total crap and just trying it on, after taking over the initial loan. HFC have provided no proof whatsoever, apart from a heresay WS and a false statement of account that you can easily argue against.

 

To upload to the internet, you scan your doc and save it as a jpg in your own pc. Then you go to www.tinypic.com (you dont even have to register if you dont want). You click on 'browse', find your own doc on your pc, choose the right size, probably 'message board' or '15" monitor', then click 'upload'. It will ask you copy some letters as a security measure and bob's your uncle, it is uploaded! Then it will give you a link to the image. Copy and paste the link into a post here and then everyone will be able to see it on this thread. I prefer to register at tinypic, so it is easier to find any of your uploaded images and ammend or delete etc.

Otherwise, you have my email, just send them to me. Can I also see the actual court paper that gives Friday as the date of the hearing, please? Thanks.

[whatamess]

Hi Manc

 

You know what the people on this site amaze me including yourself that you have your own demons to deal with and your own Court case hanging over your head but you are still there to pick me and others up when we are crumbling, I can only thank you so much for doing this as when i feel down you manage to pick me up again and give me the push to carry on.

 

I will read through the Carey Case again and try and understand.

 

If you dont mind i will scan and send to your email address as i have tried tinypic and does not work im not sure if it is because i am doing this from work.

 

Thanks

[manchestman]

email is fine.