Received Court Papers From HFO. Is My Defence Okay?

[witpig]

I'm giving myself a headache trying to make it bigger! The claimant's name is HFO Capital Limited and their address is in Surrey. As soon as I hit 20 posts I shall attempt to use a photobucket link so that we can all see and marvel in it

[Guest]

witpig

 

if all else fails, just type up the PoC (minus any identifiables) for now?

[DonkeyB]

subbing

[witpig]

witpig

 

if all else fails, just type up the PoC (minus any identifiables) for now?

 

lol! Oh yeah, I hadn't thought of that... Ok here goes.

 

First, the claimant is listed as:

 

HFO Capital Limited

Roxburghe House

Lavendar Park Road

West Byfleet

Surrey

KT14 6YZ

 

The address for sending documents and payments to is:

 

Turnbull Rutherford

6th Floor Highland House

165 The Broadway

London

SW19 1NE

 

The defendant is obviously myself with my name and address all in order, then the POC is as follows (I will copy exactly so all spelling mistakes etc are theirs. sentences in brackets will be my comments):

 

The Claim is for monies due under an interest bearing Credit Agreement regulated by the Comsumer Credit Act 1974, which the defendant entered into with on . (they haven't included who it was with or when it was, just left it blank)

 

The Claimant purchased the account and all rights & obligations attaching thereto from the original lender on 4 December 2006. Notic of assignment has been provided to the defendant (actually no it hasn't.)

 

the Claimant claims 225 in this action being instalment arrears due from the defendant under the agreement. In order to avoid any further action, the defendant should contact the claimants solicitor immediately on ... quoting ... (they have included the details but I have omitted them).

 

Failure to respond will result in a County Court Judgment. On satisfaction of the claim and the costs there will be an unpaid balance to be paid by the defendant, this is currently accuring interest at the rate of 12% per annum.

 

That's pretty much it. As soon as I am able I will post up a scan of it.

[dadofholly]

Ok

 

Well there are some people who will go through this in more detail with you tomorrow - who know more about the HFO/Barclaycard arrangement.

 

But quick heads up - There is no HFO Capital registered in Surrey.

They say HFO Capital purchased the debt in Dec 2006. HFO Capital Dublin did not exist then, so they must mean HFO Capital Cayman. But HFO Cayman can not own the debt for reasons that will be pointed out to you by others soon.

 

So in short HFO Capital can not be the claimant.

 

The 12% per annum is tosh also. Unless it stated this in the original agreement, (which they probably wont have).

 

Will leave it for tonight - but come back tomorrow am sure there will be plenty of advice for you.

[witpig]

Great stuff! Thanks for the advice so far everyone, I'm going to go to bed.

[coledog]

Morning

 

It looks liike another 'split claim' as they are only going for a smalll amount, I presume the original amount was a lot more?

 

Link to thread on split claims, don't worry this is a ridiculous abuse of the court system.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?276741-Some-solicitors-using-Split-Claims-how-does-one-defend/page4

Edited December 9, 2010 by coledog

[coledog]

You must get this letter off to the Turnbulls send recorded today if possible. It gives them 7 days to produce the documents. Write again in 7 days to remind them. Don't sign with your normal signature. You must also ring the courts and get those dates as we may need to request an extension.

 

Edit the letter to suit.

 

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. 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 original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the Deed of Assignment

 

3 the Notice of Assignment

 

4 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are 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 originals of the documents 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.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

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. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

Edited December 9, 2010 by coledog

[coledog]

It is also worth sending a SAR request to Barclaycard although it takes up to 40 days. It may be possible to get this claim thrown out but if HFO come back at you you have the information to fight them off.

 

Subject access request letter attached to send with £10 postal order - send recorded delivery and sign over the dotted area at the bottom. They have 40 days to reply. They have 40 days to reply. Adapt the last paragraph to give any previous addresses that the OC may have and attach a copy of a utility bill or they will write back and ask for one.

Standard SAR.doc

[DonkeyB]

Will the idiots never learn? In fact, there are so many idiots in SW19 (corner of The Broadway and Southey Road, to be precise) that there’s dozens of idiot-free villages all over the south east.

 

Remember, every village should have its Bart123.

[witpig]

Thanks! Just got back from work, now have an hour before I go off to my second job for the night shift (isn't working just to pay the debt collectors great?)

 

Regarding the split claim, yes I did think it was suspicious that they were claiming for a small amount when the amount they claim I owe is roughly £1800. I shall read the link with interest. I shall get the letter out tomorrow (alas the post office is shut now).

 

I know I have a couple of questions I wanted to ask but they have plain flown out of my head right now. I shall write them down when they reappear (it was something I picked up on in one of DonkeyB and VJ's collaboration against HFO)

 

Cheers!

[witpig]

Okay, I'm just about to send off my CPR 31.14 but before I do I just need some clarification on whether I also need a CPR 18.

 

I understand that a CPR 31.14 is used whilst the claim is still trackless and can only be used to demand access to the documents explicitly mentioned in the POC. However, in my case the original signed CCA is not mentioned. They do mention that I entered into an agreement regulated by the Consumer Credit Act 1974, I know that to all intents and purposes any reasonable person would assume that would mean the CCA but just so as to leave no room for doubt should I also include a CPR 18 for the CCA in case they argue it isn't explicitly mentioned?

 

I (perhaps naively) assumed that my defence would be the fact that HFO are unable to produce an original signed document from 1998 when I originally took out the Barclaycard. Without it I believed the debt is not legally enforceable. Since I made a couple of small payments to HFO does my acknowledgement of the debt now remove my CCA defence?

Edited December 10, 2010 by witpig

[AndyOrch]

Okay, I'm just about to send off my CPR 31.14 but before I do I just need some clarification on whether I also need a CPR 18.

 

I understand that a CPR 31.14 is used whilst the claim is still trackless and can only be used to demand access to the documents explicitly mentioned in the POC. However, in my case the original signed CCA is not mentioned. They do mention that I entered into an agreement regulated by the Consumer Credit Act 1974, I know that to all intents and purposes any reasonable person would assume that would mean the CCA but just so as to leave no room for doubt should I also include a CPR 18 for the CCA in case they argue it isn't explicitly mentioned?

 

I (perhaps naively) assumed that my defence would be the fact that HFO are unable to produce an original signed document from 1998 when I originally took out the Barclaycard. Without it I believed the debt is not legally enforceable. Since I made a couple of small payments to HFO does my acknowledgement of the debt now remove my CCA defence?[/QUOTE]

 

Hence the reason that they have not referred to it within their P.o.C. CPR 18 will only allow access and pave the way at a later stage to disclose but is invariably ever complied with.

I would always advocate to anyone in receipt of a summons to send a sec 77/78 request if their is any doubt about the agreement.Not only does place the agreement in dispute but the Claimant must comply,

failure to furnish this would then be fundamental in anyones defence.

 

Regards

 

Andy

[dadofholly]

In addition to your CPR also send a request for the original credit agreement.

 

If they fail to supply one that in itself is a defence.

 

Here is the CCA request letter - amend it for yourself and send it recorded enclosing a £1 postal Order. Write on the back of the P.O. "for CCA Request Only"

 

And DONT sign the letter just print your name.

 

http://www.consumeractiongroup.co.uk/forum/content.php?414-CCA-request-letter.

 

Also dont forget to send the SAR to Barclaycard using the template link in Post 34 - supplied by Coledog.

[coledog]

Did you ring the court to check on the dates?

 

Send CCA request as suggested. With HFO, the credit agreement is not the full story, you have to challenge them on their actually right to own and enforce this agreement that is why the Notices of Assignment are so important and it is worth doing a SAR to Barclaycard to establish who they sold it to and also what agreements exist.

 

Some useful links below on using CPR. As I understand it CPR 18 is to request answers to specific questions but all explained here.

 

CPR and Embarrased Defence Links

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrased-Defences-and-the-problems-with-them.&highlight=

[coledog]

Witpig

 

Ensure that you edit the CPR letter to suit and still ask for the Credit Agreement - there is a paragraph to amend if you have already requested an agreement under CCA and this was not supplied.

 

I am sure that I do not have to remind you to keep copies and all proof of posting.

[FORMISTER]

For your information just to add to what CD said earlier about it's impossible for HFO (Caymen) to own the debt. The reason for this being is the existance of a document between HFO services and HFO Capital (caymen) called CP2. This document basically says that all accounts past, present and future bought by HFOC (caymen) are automatically reassigned straight to HFO Services, without exception. So it is impossible for HFOC to have owned this for more than a split second. This agreement runs from Jan 06 to jan 11.

 

This document CP2 has been used in court by HFOS themselves so it is in the public domain.

 

So if they are claiming it was sold to HFOC it could not be Dublin in that time period. If it was HFOC caymen then they owned it for a split second before assigning it to HFOS.

[dadofholly]

And dont forget - if the debt ir re-assigned to a new company - there should be a new assignment notice.

[witpig]

Great, lots more lovely info for me to get my teeth into! I originally sent the CCA request through recorded delivery when I received the threat of going to court. They have had far more than 12 + 2 days to comply as of now but the court papers arrived the day before the last compliance date was up.

 

I will send off my SAR to Barclays and haven't bothered with the CPR 18, have just used CPR 31.14. I am very interested in the deed of assignment. I'm thinking that seeing as the two companies (capital and services) are part of the same corporation wouldn't they just fake something up that says "Oh yeah but in this case HFO Capital gets to keep it!"

 

EDIT - forgot to mention I also pointed out they have not complied with the original CCA request and yeah I've been careful to keep all records. I haven't rung the court because I felt confident I knew the dates, but I've just realised my defence has to be in on January the 1st. Seeing as the time from now til then is littered with festive cheer bank holidays I shall have to ring to find out exactly when I have until

[coledog]

Good - the dates need to be confirmed by the court, you could have longer than you think. The CPR is key and in the end you can put in an 'embarassed defence'or similar as 5 other people have done this with split claims and had them stayed.

 

Remind them of the previous CCA request in your letter as it is all evidence to present to the court.

[witpig]

I'm feeling much better about all this already 8-)

[coledog]

Good!

[witpig]

Thanks for all the support, I suppose it's just a waiting and reading-up game now.

[coledog]

Get the dates confirmed. If no reply to the CPR request within 7 days, send a reminder and request more time.

[witpig]

I'm so angry with myself right now... I've just realised I sent the CCA request to HFO services instead of HFO capital. The letter is recorded as being sent to the correct address but the postal order was crossed to services. Does that invalidate the request? They haven't made any attempt to notify me of the error, would the CPR 31.14 demanding disclosure of the (very subtle and dubiously) mentioned agreement in the POC supercede the CCA request?