hfc bank Court Papers

[jamanji]

Just had court papers in from messenger at arms regarding a credit card from HFC Bank

Sent CCa request eirlier in the year and got a form in with my name and address Hand written on the top , up to date T & Cs and no sighiture of mine anywhere

I put the account in dispute

They admit in a letter they cant find my original agreement but say that a reconstituted copy is sufficient to proceed with court

They confirm the account was opened on november 1999 marbles card

Im in scotland and have received a Citation where a time to pay may be applied for and I have 21 days to reply or defend the action

Looking for a bit of sound advise, If i defend , On what basis do i defend as they have no signed agreement

Many Thanks

[coledog]

Send a PM to Idainfile and ask her to look at this - Scotland is complicated

[jamanji]

thank You , will do , has anyone got any other advise?

[IdaInFife]

Hiya Jamanji,

 

I am movving your thread to the Scotland forum for ease of help.

 

Can you post up or scan the POC's deleting any personal info?

 

What type of action is it? Small, summary cause or ordinary?

 

They need the original to go to court.

[jamanji]

Hi Inda,

Its for 7.5 k but no originals cca have been supplied and they admit they have not got them Its a form citation 05

 

Hope you can help

[IdaInFife]

can you post up what they have put in the particulars of claim please?

 

when did you last make a payment towards the debt?

 

have you recevied a default notice?

[jamanji]

Inda,

I can scan up the papers on monday when im back at my own computer, Do you know if this can proceed with no original CCa?

[jamanji]

Hiya Inda

Last paid on April 2010, they admited no cca available on July 2010 Default notice received on august 2010

 

Hope this helps as a start

 

Jamanji

[IdaInFife]

ok - it works like this - they can file court papers without the agreement and hope you don't defend but if you do defend you request a copy the agreement and they will need this to proceed - if you can scan up the Poc's on Monday and the default notice - i think you have a good case if they do not have the original agreement:

 

Do you have a law centre near you?

 

Were you paying any PPI on the card?

 

Once we have all the details up on Monday can call on the troops

 

In the meantime some weekend reading for you:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?195822-M-amp-S-amp-more-court-papers-received%28Scotland%29-**SUCCESS**&highlight=

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?180427-rrfcfan-in-court-with-WF-All-on-again&highlight=

[IdaInFife]

Alos in the meantime you need to send this to the sols and keep a copy for yourself:

 

In the XXXX Sheriff Court

Pursuer -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

 

Dear Sirs

 

REQUEST FOR INFORMATION

 

I have today received a court claim from your firm as referenced above. In order to file a defence and counter claim I require some further information from you. Given that this matter is now the subject of legal proceedings, I request you to provide me with the information and documents detailed below.

 

I request that the information should be furnished within fourteen days of the receipt of this letter. If you fail to comply, it may hamper proceedings and result in me filing an unnecessary defence or counter claim.

 

1. You are requested to supply me with a true copy of the executed credit agreements to which you refer to in your claim together with any terms and conditions that applied to these accounts at the time they were opened and at the time of alleged default. In this respect, your attention is drawn to the compliance of such documentation as prescribed under Section 78(1) of the Consumer Credit Act 1974 (herein referred to as “the Act”).

 

2. All records you hold on me relevant to this claim, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your firm.

 

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with name of bank/company.

 

c. True copies of the default notices.

 

d. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

e. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

f. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

g. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

h. Copies of statements for the entire duration of the credit agreements.

 

3. Any other documents you seek to rely on in court.

 

I must advise you that if the information is not forthcoming, it may delay or frustrate the equitable resolution of this matter and result in unnecessary cost for both parties.

 

In relation to the above, I draw to your attention to my previous correspondence with your Client and the numerous agencies that they have instructed in relation to this matter.

 

Your Client has not fulfilled their obligation under Section 78(1) of the Act. The documents previous provided to me under a Subject Access Request do not conform in form or content to Section 60(1) of the Act and as such are not enforceable under Section 127(3) of the Act.

 

I also refer you to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it must embody within the agreement, the prescribed terms laid out in the SI1983/1553.

 

Your attention is brought to the fact that I have requested such documentation from your Client and their agents in relation to this matter. Should your Client continue with this action this documentation will be brought to the attention of the Court and my previous attempts to avoid legal proceedings.

Edited January 24, 2011 by IdaInFife
updated 2b

[jamanji]

Thanks Inda,

No law centre but have my own family lawyer if required,

Will check the PPI on this card ,I did pay PPi on other cards and will start a claim against them soon,

Do i send that last letter to HFC bank solicitors?

 

I Will post the other Docs on Monday

 

shlanji Jamanji

[IdaInFife]

yes post it to the sols recorded or special delviery

[jamanji]

Thanks Inda,

Will do on Monday and will be back then

Cheers

[jamanji]

Hi Inda

I see in the letter section 2 (b) states american express europe , should this be changed ? sorry for being a bit thick

[IdaInFife]

yes sorry change it

[jamanji]

No problem, thats that changed and sent recorded today, Will post the other info later today

 

Many thanks again Ida

[jamanji]

cant seem to upload anything , will try again later

[IdaInFife]

trying uploading it to photobucket then to here

[seriously fed up]

It would seem to me that without a signed agreement that they dont have a hope.

I wont go into all the details of this, but lenders have been trading on the Carey decision which allowed lenders to send a reconstituted version of an agreement

(the sort of "here's some T&Cs with your name and address typed on it for you" crap that they have already sent you).

 

Lenders will tell you that as far as the courts are concerned this is satisfactory. And so it is - but only for a s78 request. That is ALL.

 

Sending out computer dumps of T&Cs with your name at the top doesnt make the account any more enrforceable that it was without this.

 

So, I would suggest advising them that while they might have satisfied your request for a copy of your agreement under that section,

what they have sent doesnt even begin to satisfy s61 1a of the Act which requires the prescribed terms to at least be in the same document

(I would argue on the same page) as your signature.

 

If they dont have this then the court is specifically prevented by s127 (3) from issuing an enforcement order.

 

My view is that this is a fishing expedition.

 

Most (90%?) of these cases are undefended and the court simply issues the order - they will be hoping you are one of the 90%.

 

Some other points for you to think about

 

 

in raising the action, they have averred (given an assurance) that the agreement exists.

Now they will be able to show lending, but can they show the agreement? Its perhaps a legal nicety, but still something to poke them with

1. I am indebted to means2anend for pointing this out in post 3388 (its a long thread) here
   

http://www.consumeractiongroup.co.uk/forum/showthread.php?240186-Dissecting-the-Manchester-Test-Case....&p=3269191&posted=1#post3269191,

that in s108 of his judgement in Carey that HHJ Waksman said

"'108.-Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form

as well as a statement of the terms as they are at the time of the request.'"

 

Thus, if HFC have sent back only one set of T&Cs they cant possibly have satisfied even s78, far less s61

- that alone should prevent them from bringing an action against you (though it probably wont).

 

Moreover, as m2ae points out, the burden of proof to show that they have copied the original agreement is on the lender

- that, for instance, its not some set of T&Cs they have just pulled out of a cupboard.

 

i would also suggest you have a read at

http://www.consumeractiongroup.co.uk/forum/showthread.php?269529-Creation-Financial-Services-and-Court-*WON*&highlight=afw

which covers very similar issues.

 

But Ida is quite right - we need your pocs otherwise we are shooting in the dark.

[jamanji]

Thank you SFU

I appreciate all the help i can get so thanks so much to Ida and yourself for to me valuable inmformation,

I am trying with no success to upload all the docs , i will need to get help with this from someone as im thick with computers as you can tell

The agreement i have is t&cs , a hand written name and address on it and nothing more

 

I will keep trying to upload the docs till i get it right

 

Many thanks jamanji

[jamanji]

AccForm1.pdf

[jamanji]

AccForm1.pdf

 

 

 

 

[jamanji]

AccForm1.pdf (217.1 KB)AccForm1.pdf

 

 

 

Hope this default notice can be made out

[IdaInFife]

Yes we can see them

 

still need the particulars of claim

[jamanji]

Hi There,

The case is an ordinary action and gives me to the 8thof feb to lodge my intend to defend, I have a time to pay direction or time order if i wish to apply for payments, There initial writ explains a notice of default was served in terms of section 87(1)of the Consumer credit act 1974 on august. It states i failed to comply and the account was terminated. It reads that as per terms of the said agreement intrest is due at the raTE OF 15.9% from August

 

Nothing about no valid CCa supplied Lol

 

I hope this helps with some advise so i can go farward with a defence

Please advise if i should download any more info

 

Many Thanks Jamanji