Robinson Way lifting a stay on a County Court claim made in July 2009 - Happy Christmas!!

[wobbly]

On the word doc on post 345 and 348

[Bev250264]

Thanks Wobbly. I've re-uploaded them. Should be ok now

[Bev250264]

 

Another thing I have noticed is that the loan had a PPI attached to it. If OH was self employed, then a PPI policy would have been pretty useless.. Are you going to attempt to reclaim that.. this will be made direct to HSBC as they were the seller of that product.

 

 

 

We're not sure on this one CitizenB. OH was a director of the company at the time we took out the loan so not sure whether we could have claimed or not. At the time, we were in such a mess that we completely forgot we even had PPI let alone whether or not we should put in a claim.

 

This has thrown up another question unrelated to this though:

 

We have PPI on several CCs. We are paying a reduced payment at the moment on them. At the time we took them out, I was long-term sick and OH was self-employed. Does that mean we should look into reclaiming PPI on them even though we're on a reduced payment plan?

[citizenB]

We're not sure on this one CitizenB. OH was a director of the company at the time we took out the loan so not sure whether we could have claimed or not. At the time, we were in such a mess that we completely forgot we even had PPI let alone whether or not we should put in a claim.

 

This has thrown up another question unrelated to this though:

 

We have PPI on several CCs. We are paying a reduced payment at the moment on them. At the time we took them out, I was long-term sick and OH was self-employed. Does that mean we should look into reclaiming PPI on them even though we're on a reduced payment plan?

 

I will have one of the PPI gurus look in on you - however, I would say yes.. start the reclaim process on all the credit cards.

 

There is some information in the following link with spread sheets.

http://www.consumeractiongroup.co.uk/forum/showthread.php?330996-Latest-Spreadsheets-PPI-Claims-and-Charges-Claims-Dec-2011

 

Do you have all your statements for these accounts? If not, you will have to send SAR to the original creditors. There is a draft SAR template in the CAG library for Credit Cards.

If the accounts were assigned to DCAs then any money refunded should be returned to you.

[ims21]

Hi

 

Responding to CitizenB's SOS.

 

CB's comments are bang on.

 

Even though your OH was a director of a company, which is generally regarded s being employed, it doesn't mean to say that the PPI on the loan was sold correctly. You may still have been mis-sold. Have a read here for some other mis-selling criteria, for example if it was s single premium added to the loan, was the true cost explained to you?

 

Have a read of No.1 in my signature about single premium PPI policies.

 

Also get the reclaims going for the credit card PPI

 

ims

[Bev250264]

Thanks ims I'll have a look through my paperwork and see what I've got.

[Bev250264]

Just thought you'd all like an update on the RW saga.

 

After a couple of adjournments, we finally attended court at the beginning of June.

 

During this time and due to my ill health and the other debts we have, OH and I decided to look into entering into an IVA.

 

Just before the hearing, their sol asked to see us and said that although RW, or more specifically their new solicitors DWF,

had received the IVA paperwork, as the debt was listed as belonging to HSBC and not them specifically,

they would not be voting and would be pushing for the judge to award them the Summary Judgment "and nothing less".

 

We went in front of the Judge and after much toing and froing, he decided in the end that he couldn't make a judgment as RW had still not supplied sufficient evidence.

 

When their sol said that she couldn't see what would be gained by setting another adjournment the Judge said

"you're quite right I'll refuse it then!" Her face was a picture!

 

the upshot is that a trial date was set for October but in the meantime we have tried to get an IVa in place for our other debts.

We had to include RW although it is down as being in dispute.

 

Trouble is, their (alleged) debt totals more than 75% and they've rejected our proposal.

 

They've also refused to send our IP proof of debt as they said they've already sent it to us - which they haven't.

 

Our creditors meeting was this morning and it has been adjourned for another two weeks and our IP has written to them again requesting proof of debt.

 

I was thinking maybe I should send them another SAR.

 

Any thoughts?

[citizenB]

Yes, a subject access request should resolve the problem for you - however, they have 40 calendar days to comply and if you only have an adjournment for 2 weeks that could be a problem.

 

As this is still subject to a claim then it might be worth you sending a CPR18 which they would have to respond to. within whatever time you give them.. ..

 

But how to word it so you get the information. That is the question ?

 

This is what a CPR18 looks like.. you can only ask for information.

 

Your Name

Your Address

IN THE XXXXXXXXX county court

CLAIM NO:

BETWEEN:

XXXXXXXXXX

Claimant

and

XXXXXXXXXXX

Defendant

PART 18 REQUEST FOR FURTHER INFORMATION

To: XXXXXXXXXX (claimant)

　

Please answer the following questions:

1. Upon what date was the last payment made on the account?

2. What was the source, method and amount of the payment?

3. Was a Default Notice issued pursuant to section 87 of the Consumer Credit Act 1974 (as amended) and if so:

a] Upon what date, for what amount and what was the date for remedy of the breach?

b] Was the issuance of the Default Notice noted in the communications log?

4. Does the amount claimed include charges, and if so what amount?

　

　

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST

WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

 

I will send out an S.O.S for you, see if anyone else has any ideas.

[vint1954]

Sorry, I resized it by mistake. This should be ok.

 

What on earth do they mean " the defendant is put to strict proof"

 

It is your defence, they have to prove the other way! It is not for you to prove.

 

Idiots! ( them that is)

[vint1954]

Just thought you'd all like an update on the RW saga.

 

After a couple of adjournments, we finally attended court at the beginning of June.

 

During this time and due to my ill health and the other debts we have, OH and I decided to look into entering into an IVA.

 

Just before the hearing, their sol asked to see us and said that although RW, or more specifically their new solicitors DWF,

had received the IVA paperwork, as the debt was listed as belonging to HSBC and not them specifically,

they would not be voting and would be pushing for the judge to award them the Summary Judgment "and nothing less".

 

We went in front of the Judge and after much toing and froing, he decided in the end that he couldn't make a judgment as RW had still not supplied sufficient evidence.

 

When their sol said that she couldn't see what would be gained by setting another adjournment the Judge said

"you're quite right I'll refuse it then!" Her face was a picture!

 

the upshot is that a trial date was set for October but in the meantime we have tried to get an IVa in place for our other debts.

We had to include RW although it is down as being in dispute.

 

Trouble is, their (alleged) debt totals more than 75% and they've rejected our proposal.

 

They've also refused to send our IP proof of debt as they said they've already sent it to us - which they haven't.

 

Our creditors meeting was this morning and it has been adjourned for another two weeks and our IP has written to them again requesting proof of debt.

 

I was thinking maybe I should send them another SAR.

 

Any thoughts?

 

Your IP should be dealing with that, if you have included this debt in the IVA.

[vint1954]

Bev,

 

Is the evidence that the court is waiting for, connected to your CPR request?

[Bev250264]

Your IP should be dealing with that, if you have included this debt in the IVA.

 

They are. Just was after a second opinion

[Bev250264]

No I don't think so. The Judge just said that he couldn't award a summary judgment based on the evidence they had put forward (it's all here as attachments somewhere).

 

This is the wording of the order:

 

IT IS ORDERED THAT

 

1. The application for summary judgment is refused

2. The case is allocated to the Fast Track

3. Standard disclosure by list by 7 August 2012

4. Inspection by 14 August 2012

5. Exchange of statementsof witneses of fact by 19 September 2012

6. Pre-trial checklists to be filed by 17 October 2012

 

It came with a Pre-trial checklist

[vint1954]

Your witness statement will be crucial.

 

Have they fully complied with any s 78 request?

 

Was this an application form?

 

Was the DN complient?

[Bev250264]

No, they haven't complied to any s78

There was never a default notice and no letter of assignment, although they provided a copy in their bundle which we'd never seen before. Their sol tried to say to the Judge that by virtue of the fact that there was a copy of it in their bundle, it should be "deemed as having been delivered". The Judge looked at her as though she was mad and told her not to be so ridiculous!! .

[vint1954]

Couple of points that may help your WS, if you have pleaded them:

 

In any event I can show the Court that on balance the documents relied upon by the Claimant do not satisfy the requirements of s78 and I will refer the Court to the case of Carey vs HSBC [2009] EWHC 3417 (QB) and also the Court of Appeal ruling in Devendra Kotecha vs Phoenix Recoveries [2011] EWCA Civ 105 which show that the documents the Claimant provided do not comply with s78 (1) and accordingly the Claimant is not entitled to judgment.

 

There are a number of reasons why the documents produced by the

Claimant do not appear to comply with section 78(1). It is established law that the Claimant need not produce the actual signed agreement to comply with section 78, however the Claimant must provide a complete copy of the original agreement (Para 7 Kotecha) including any terms and conditions incorporated into the document.

 

In reply to the Defendants section 78(1) request dated xxxxxxxxx the Claimant failed to respond in full. This response from the claimant, consisted of a one page application, devoid of any prescribed terms. The Claimant failed to produce a true copy of the original terms and conditions, a true copy of existing terms, or a true statement of account at this time, which he is required to do in response to a request made under s78 (1) of the Consumer Credit Act 1974. Indeed Carey vs HSBC held that the s78 request was for information purposes to tell the debtor the terms of his agreement as it currently stands as well as what the original terms were. Exhibit xxx Includes the documents supplied by the Claimant to my original s78 request

 

I additionally refer to the comments of DDJ Bradley in the case of HFO Capital Limited v Robinson, where it was confirmed that an s78 request must be responded to at one time, not piecemeal.

 

Accordingly, the claimant had failed to comply with s78(1), however proceeded to issue a Money Claim on xxxxxxxx through Northampton BCC.

 

It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974.

 

I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 Para 33.

 

“33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.”

 

I will additionally show that the terms relied upon were not provided at the time of execution of the agreement. If the Court finds the terms were not present then that would be a matter for the discretion of the court as to what remedy the Claimant and Defendant would be entitled to, therefore that on its own suggests that the matter should be dealt with at trial.

 

Referring back to the Court of Appeal ruling in the Kotecha case where Lloyd LJ stated:

 

In order to comply with the request the creditor must supply a copy of the whole of the agreement, not just part of it. Any terms and conditions

incorporated have to be supplied.

 

I invite the Court to take the view that the documents do not satisfy s78 as it stands and dismiss the Claimants claim with costs in favour of the Defendant.

[vint1954]

There is a defined requirement for a valid Default Notice to lawfully terminate an Account whilst in default. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

I refer the Court to the recent ruling of HHJ Chambers QC sitting as a Judge of the High Court in Keith Harrison vs Link Financial Limited EWHC 2011 B3 where at paragraph 75 when addressing a default notice he stated………

 

The notice of enforcement

 

75. The notice of enforcement was a statutory pre-condition of enforcement. It was a bad notice and enforcement CANNOT be attempted in dependence upon it. ……………………….

 

Accordingly the Claimant cannot enforce the agreement due to the fact a Default notice has not been served.

[vint1954]

The Brandon v Amex appeal, states that iregularities within the DN are NOT de-minimis

[Bev250264]

Thanks for that vint, that'd really helpful. I will take a look at it

 

B x

[Bev250264]

Latest update on IVA and RW: We had our creditors meeting last Tuesday and everyone agreed except - you've guessed it - RW! It turns out that what they have to produce to an IP to prove a debt regarding an IVA is far less than what they must produce to a court. Therefore, our IP had to accept their vote and as they are the majority creditor (based on their figures, not ours) they voted against and so the IVA failed.

 

The IP spoke to their sols today who agreed with her that they are being pig ignorant and that they should accept our offer rather than take it through the court but he had been instructed to refuse it.

 

So, we are back to the court route again. I think they will try to make us bankrupt. Anyway, can someone please explain Standard Disclosure by List to me as I have to do this by 7 August.

 

It's Ssooooo frustrating. We have never denied the debt - just the amount and exactly who it is we owe the money to. They're the ones making this far more difficult than they have to.

 

FOOTNOTE:

 

When we were at the SJ hearing, the judge called RW "spongers" and said they the DCA business was, in his opinion, immoral. They prey on the vulnerable and use the court service too freely. Pity all judges don't think along those lines

[Mike_hawk]

Bev

 

Standard dislosure by list - N265 is here http://hmctscourtfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=521

 

Form is fairly self explanatory, the idea is to disclose every document you intend to rely upon, everything relevant should be included but obviously the more damaging to the other side the better.

 

Cb's previous suggestion re; part 18 request is a sensible step... I'd be inclined to ask them questions which would expose the underlying elements of their current denials. May require a little thought in preparation.

 

Part 18 request should be added to your disclosure list, if there's anything the other side are not prepared to respond to [current bare denial aside] you will want to include in your w/s at exchange.

 

Should have pointed out, DN on original loan account [not the combined account they plead], assuming the term has now expired the DN would be immaterial as all sums would now fall due.

 

One question you could pose in your request; they state loan account 'closed' at 10th March 2004, they later state that account was not 'terminated' - ask them which [if any] primary terms and/or conditions post closure of account number xxxxx persisted and whether those terms were effective post amalgamation of accounts?

 

Secondary to the above, your next question would/could be - if the terms and conditions failed to persist post amalgamation what are the primary terms of the amalagamated account and is it your intention to disclose the amalgamated agreement containing those terms?

 

It's a bit of a leading question tbh, DWF have no doubt cottoned on to the error within the earlier w/s and are relying on semantics in retaining their clients position.

Edited July 16, 2012 by Mike_hawk

[Bev250264]

Thanks Mike

[Bev250264]

Latest update

 

Our IP spoke to DWF (RW's solicitors) on Friday. RW have point blank refused to enter into any IVA and so it has failed. DWF advised them to settle as it would be in everyone's best interest not to proceed to trial, but they won't (I wonder if RWF think they're on the backfoot?). So, we have to complete the standard disclosure by 7th August. I really don't know how much more of this we can take! OH feels like declaring himself bankrupt and be done with it but then we'd lose our house.

 

So now, I have to get all our other creditors back on side with a payment plan (totals abut 12k) and do this damned Standard Disclosure by List by 7th August. Do I just list all the docs I relied upon for the summary judgment or do I need to go deeper than that?

 

Sorry if I've asked this before but I really am losing the will to live!!!

[sillygirl1]

You wouldn't necessarily loose your house, have you got children living there?

 

I am not an expert on bankruptcy but really it would teach Robbers Way a severe lesson.

[Bev250264]

Our youngest son will be 16 on Tuesday so only for another year. Apparently once he's 17, he's no longer classed as a child (or so we are led to believe) Our IP advised against that route but to be honest we feel like doing just that - just to bring this whole nightmare to an end.