TBI Claimform - Old HFC Loan

[AndyOrch]

Just file your defence response...never give advance warning of your game plan.

[gust]

Thanks andy.

 

To add, this dca has over the course of dispute sent me three notices of default, last being 2011. There is nothing on my cra file. The original default for alleged debt was wiped out last year. So if they really issued me a notice of default and pressing this to the court then it really should be on my file still??

[AndyOrch]

If the original default has passed 6 years then it will not show...as for further DNs....confetti.

 

 

 

Regards

 

Andy

[gust]

Thanks andy. I am building my defence.

 

What is the best way to word this to a judge.

 

When in first contact i had no clue to my rights. Didnt know any consumer laws. Called them to be greeted with are you calling to pay in full? Panicking they would want approx 6k in one lump and being half scared to death they could kick down my door and take stuff i stupidly agreed to making payment. And one that at the time was leaving me short too. Then i discover cag and learn alot about the industry. If i knew this stuff then i wouldnt have panicked and bulldozed into paying something i wasnt sure about. It would have been stat b now if that was the case.

Edited February 1, 2013 by gust

[AndyOrch]

All defences are unique to the particular claim....only you know what you agree and disagree with and wish to challenge.Its does not have to be in legal speak as long as it contains substance and merit.You agree or disagree anything you don't refer to will be accepted as an admittance.

 

Take a look through some of the... threads most of the defences I have drafted or been adapted from my drafts. Start to draft something and we will guide you before you submit it.

 

Regards

 

Andy

[gust]

thanks

 

my CPR request has been sent back - I asked for original default notice - their reply was although we presume you may have been sent a default notice in 2006 if this is when you first defaulted on the terms of payment in relation to the agreement, we are not able to supply you with a copy because no such document has been supplied by the original creditor. I dont recall ever having one and the only default notices ive had was off TBI. should this be produced? and how important is this to me?

[gust]

ok here is the beginning of my defense

 

Defence

 

1 - TBI Finance Limited allege on 22nd November 2007 that I owe them £6011.58 and in total panic I wrongly accepted to pay them before checking the validity of their claim. From later checking I realised I owe HFC Bank no such figure. I will add I also had Westcott Credit services Limited hounding me for the same alleged debt but for different figures. C.A.B. Says that a creditor not telling you if the debt has been passed on to a debt collection agency counts as harassment. I was given no written notice from HFC that either Westcott Credit Services Limited or TBI Financial Limited had any assignment or authority to contact myself and also no notice of default either. I have attached SAR details from HFC to prove this and also a copy of my Experian credit file dated 7 Feb 2009 when I first discovered any default. It was under the name of TBI Finance Limited, again for an incorrect amount.

My finances all went bad when I had an operation in hospital and was unable to work for 6 weeks. In this period I was bedridden and to add to the problem my employer had underpaid me only giving me £151.37 for a whole month, of which I was not aware of during the time causing ALL my accounts to get in serious arrears. (see attached bank statements.) To make this worse also I wanted to claim P.P.I. It took about 2 months to process and they only partially cleared the arrears. (please see S.A.R. Notes attached) of which did not clear the arrears and left me still in difficulty. I also found out that on inception of agreement with HFC, the PPI was mi-sold to me as the salesman stressed to me I would fail the credit check due to “low credit score” and taking the PPI would greatly improve my chance if obtaining the loan. Being desperate for the loan money I stupidly accepted.

 

2 – Knowing nothing about consumer law I found advise and was advised to send TBI a formal request under S77/78 of the Consumer Credit Act 1974. I sent this by recorded mail to TBI on 21 Jan 2009. I would use the info from any TRUE COPY OF ANY ORIGINAL AGREEMENT for PPI figures to reclaim and also to check the validity of TBI's claim considering I had no prior notice from HFC Bank.

 

3 – TBI Acknowledge my request with a letter to me dated 23 Jan 2009.

 

4 – TBI go quiet as they are in default of my request and pass the 14+30 days to comply. At the time I did not know I had to write and put any alleged account into “dispute”. I wrongly thought it would be automatic since TBI would clearly know that not having any agreement is a very clear sign of Dispute.

 

5 – My next contact from TBI was a letter dated 20 OCT 2009 adding charges to alleged account and the next letter a YEAR later dated 25 OCT 2010 adding another charge.

 

6 – I finally receive a reply to my request I sent in Jan 2009 – this was dated 6th Dec 2010 so nearly TWO YEARS LATER. I notice they had some kind of photocopy of a hand written application form or agreement of which has failed my legal request. Firstly because it is not a true copy as I clearly remember that any agreement I would have signed was NOT handwritten and also that there is no date, signature or counter signature. It was apparent that because the alleged agreement they sent me was supposed to be from 20 may 2005, then S127(3) of the CCA1974 act applies and their lack of compliance of S127(3) would make any further enforcement unlawful. Later I am quoted by TBI's “in house solicitors” that a reconstituted unsigned agreement is acceptable as per Carey V HSBC in 2009. This would appear irrelevant considering the alleged agreement would have been signed before 7th April 2007 of which the newer laws of the CCA2006 came into force. As far as I am concerned only a TRUE copy of a SIGNED, EXCECUTED AGREEMENT would be compliant in this case so therefore I have not offered payment or acknowledged any debt to TBI since January 2009. I back this with McGinn V Grangewood Securities 2002 where the judge had this to say; It follows that in a case where there is no signed document signed by the debtor which contains all the prescribed terms of the agreement the court has no power to make an enforcement order.

 

7 – TBI have been searching my credit file with Experian and also Callcredit/Noddle without my permission and I want all entries removed. They also issued me THREE default notices dated 29th sept 2008, 17th Dec 2010 and finally 15th sept 2011. I would say these are completely meaningless and just threats to pressure me into paying something that I am not legally obliged to. (Experain Credit files attached for you to see this)

 

8 – Their failure to compliance meant;

They cannot demand further payment, or am I obliged to offer any payment to them. (they did demand further payment of which they should not)

Add further charges (They did this also)

Pass alleged account to third party. (The sent it to another debt collection agency namely, Debt Management Limited without ANY notice to myself to further demand payment) I was also offered a DISCOUNTED RATE to lure me into payment by them. (see letters from DML) I didn’t really know how to deal with this so I sent DML another request under CCA1974 to reinforce that TBI had already failed compliance and gave them another chance to comply under the ORIGINAL request dated 21 Jan 2009. They then pass it back to TBI and then I get David Jones solicitors aggressively stating they will press legal action and demanding payment. I then sent them 2 letters placing this “in dispute” of which they ignored. (see letters for and from David Jones Solicitors)

Register information with any credit reference agency. (They did and I want all reference to TBI removed from my Experian file and also Callcredit/Noddle file.

Issue default notices (They did this - 29th sept 2008, 17th Dec 2010, 15th Sept 2011, of which NONE appear on any credit file.

 

 

 

 

any pointers or amends you can advise me on so far? thanks

[AndyOrch]

The Particulars of Claim Gust ...which post are they in?

 

 

Andy

[gust]

The Particulars of Claim Gust ...which post are they in?

 

 

Andy

 

i will add poc later. Thanks

[AndyOrch]

Excellent we cant check a defence until we know what they are pleading.

[gust]

POC as follows

 

N1 form has incorrect address for me on it. it says prefered court is Reading County Court on the N1 too.

 

POC is typed out and stapled to N1 - but says in the northampton (CCMCC) County Court. why are there 2 courts here? anyways

 

POC -

 

1 By assignment dated the 22nd november 2007 made between HFC bank and the claimant, the said HFC bank sold and assigned all their rights, title and interest in and to each loan facility, hire purchase, leasing or any other agreement. The said agreement included the sale of a HFC bank personal loan agreement, regulated by the CCA1974 made between HFC and the defendant under agreement number XXXXXXX, a true copy of the said HFC loan agreement is attached to these particulars. Formal NOA of the said agreement was given by the claimant's by way of notice in writing 15th SEPT 2008.

 

2 the said agreement was for a loan made by the said hfc bank to the defendant dated 620th may 2005 (yes it reads this...) The defendant was to pay the balance outstanding by monthly instalments. The defendant commenced repayments but failed to maintain the payments, the last payment made was the sum of £70 on the 5th jan 2009. On the 15th SEPT 2012 the claimant served on the defendant a default notice requiring the defendant to pay the total amount that was then outstanding which amounted to the full outstanding balance of £5811.58 on or before 3rd OCT 2008.

 

3 since the default notice dated 15th SEPT 2012 the defendant has failed to comply with terms of the default notice and has failed to pay the total amount due as required.

 

4 the balance outstanding under the said agreement is £5811.58

 

and the claimant claims:-

 

(a) the said sum of £5811.58

 

(b) contractual interest on the amount of £5811.58, limited to 8% per annum from 4th october to the date hereof being 20th DEC 2012 amounting to £99.06 and thereafter at the said rate of 8% per annum until payment, currently equating to £1.27 per day.

 

© pursuant to the said agreement payment of all costs on an indemnity basis incurred by the claimants in enforcing the agreement subject to proceedings.

 

 

STATEMENT OF TRUTH

 

the claimant believes that the facts stated in these particulars of claim are true. I am duly authorised by the claimant to sign this statement.

 

arsecot lawyers

[AndyOrch]

Needs a bit of work that defence gust....lets take a look later today now.

 

 

Andy

[AndyOrch]

© pursuant to the said agreement payment of all costs on an indemnity basis incurred by the claimants in enforcing the agreement subject to proceedings.

 

 

If there is no explicit contractual term providing that costs should be paid on an indemnity basis, costs should be ordered on a standard basis rather than an indemnity basis.

 

In Helden v Strathmore Ltd [2011] EWCA Civ 542 In light of this ruling it is important to ensure that, where costs are intended to be paid on an indemnity basis, the contract / agreement contains a provision to this effect. Failure to include such a provision will result in the less favourable award of costs on the standard basis and a failure to recover anything close to what has been paid.

 

Regards

 

Andy

[gust]

thanks Andy - what does this mean in simpletons terms so i can get the gist of it?

 

I dont have much time left - worrying a bit now as want it right.

 

recap...

 

1 - no NOD off OC

2 - no "goodbye" letter of OC

3 - no termination notice

4 - is DCA NOA legit as of above?

5 - is NOA equitable or absolute if ok?

6 - failing CCA request - is it enforcable or not (concrete please!)

7 - adding charges

8 - initial dca claim on NOA for different amount

9 - passing to a 2nd DCA without notice

10 - 2nd DCA offering discount

11 - is david jones really a solicitor or just another trading name of the first DCA?

12 - POC only discussing last default but not previous 2 from the DCA - none show on CRA files.

 

I have 2 documents I need looking over - will PDF them in a sec - in my CPR31.14 i asked for irrifutable proof that any payment direct to 1st DCA - the meantioned 3 - but the only document they sent me was an excell type letter on DCA letterhead. payments would have been via ALLPAY - so is this enough or would they have to produce the allpay system reciept type sheet for them?

 

I asked for DOA details and of course they refused to send but sent me a "confirmation" between OC and DCA with 2 different dates on it? also stapled an "extract of schedule" with just my name and acc number then a statement at the bottom reading - I HEREBY CERTIFY THAT THIS IS AN EXTRACT FROM THE SCHEDULE ANNEXED TO THE DEED OF CONFIRMATION DATED XXXX signed and dated by solicitor.

 

 

then i need to work out counterclaim! my head is spinning.

 

cheers

[gust]

This is what i was sent - not really sure what it proves if anything?!

 

please enlighten me!

 

thanks

[AndyOrch]

The above is absolute gust..... so there is no mileage in challenging the assignment.My previous post refers to the T&Cs of the agreement re costs...if its not referred to in the T&Cs IE costs on an indemnity basis then it can not be requested by way of their P.o.C...so in simple terms if they do win they can only claims costs (Assuming this is Fast Track over 5K) on the standard or fixed basis or to be assessed if not agreed.

 

Regards

 

Andy

[gust]

so what is the best way for me to proceed then?

 

thanks

[gust]

Quick question. If this is absolute as from 2007 and the statement of acc that came with failed cca request is dated from inception to 2010, how can this be if o.c. Sold it in 2007? Surely statement should end 2007 then sold to dca?? Does this matter? Or not? Ta

[AndyOrch]

No the statements continue through assignment (not that they will send one)

[gust]

They did send one with reply to my cca request. I thought it was odd as the statement looked hfc-ish and continued to 2010 which is 3 years after noa from tbi? Just seemed odd to me

[dx100uk]

gust many many threads merged on the same debt

 

you have PPI on this why is this not being used as a counterclaim?

i believe this was a refinance too? so other PPI comes into it too.

 

here are all you docs in one place

 

did you ever do a spreadsheet?

 

have you the agreement and statements for the blanked out loan which was refinanced please?

 

a £3k loan that ended up costing you +£7.5k on the agreement wow they saw you coming!!

 

dx

[gust]

Thanks mate.

 

Been a bit pre occupied with other issues and this court def was a surprise since cca was non compliant.

 

I have about 9 days to file.

 

The sar i sent only covered newer loan as hfc said the old one was destroyed as older than 6 years.

 

So no details on that?

 

please dont remind me

 

I really really need help right now, I cant explain how messed up my head is as a member of family critical in hospital, on meds for anxiety, recovering from an operation myself and now this to deal with, with quite a tight deadline.

 

I'm not sure I have enough time to file defence and counterclaim - and thanks DX for pointing out i can use PPi in counterclaim - i didnt know i could do that. this court stuff is all new to me - feeling alot out of my depth right now!

 

I did fill in a spreadsheet but i think that was for CC not front loaded for something else - so now Id better TRY get my head around this too lol.

 

I have SAR for nwer acc but not older one. so will that confuse matters? (totally confused already)

 

I spoke to TS about the unsigned non executed agreement - explained it was pre CCA2006 - but the guy just wasnt getting what i was saying - he says a true copy isnt a signed copy?!! so I told him not to contact DCA for now... as its confusing me even more.

 

Thanks for merging my threads but the capquest/HFC is for credit card and not related to this

[dx100uk]

so you have the statements for this one though?

 

and record of all you payments and the dates?

 

dx

[gust]

Dx - yes i do and tonight i will sit down and work on figures. Will counterclaim be against tbi as new owners?

 

Andy - besides ppi how is my defense previously? What have i missed or done wrong please?

[gust]

ok i am filling in statint sheet for PPI -

 

there is 6 full payments of which the 32.34 would have come out of the 125.59 per month - but after that there is loads of random different payments of when i was in difficulty , some say 20 quid couple for over 100 some for 50, 75 etc! so how on earth do i work this out?

 

thanks