HFO CAPITAL/services/turnbull CCJ

[melmumof3]

mel

 

The account sale agreement that has been 'certified' by TR. Have you seen this before at any time ad importantly, was it before the 'default notice letter sent by HFO?

 

Doc

ive never seen this agreement before, and have only been sent it once, whereas ive got several copies of default notices, the app form etc.... i have looked through all paperwork ive got, and its been sent with the allocation questionaire for the change of HFO names.....

the default notice was sent march 09, and the sale agreement has been sent in june 09.

 

one thing else, when i spoke to M and S today, they said that the date of assignment is 30/6/08, but on the letters its 30/7/08...does it matter???

[Docman]

Hi mel,

 

Yes the different dates do matter a lot. IMO it makes the Notice of Assignment invalid. I'll finish off the draft defence and post up later for comment.

[melmumof3]

Hi mel,

 

Yes the different dates do matter a lot. IMO it makes the Notice of Assignment invalid. I'll finish off the draft defence and post up later for comment.

 

hi doc,

ive just rang M and S again, just to double double check the date, and they can confirm that it was definately sold on 30/6/08. Ive asked them to send me a letter to confirm this date, they are reluctantly going to but he said it may be a few weeks....

[Docman]

Hi mel,

 

What do you think of the following as an amended defence-

 

In the ANYTOWN County Court

Claim number xxxxxxxxx

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

xxxxxxxxxxxxx - Defendant

1. I xxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx am the defendant in this action and make the following statement as my amended defence to the claim made by xxxxxxxxxxxxx

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

“The assignee HFO capital ltd purchased the defendants account and all rights and obligations attaching thereto from the original lender on 26th march 2009. a letter of assignement has been provided previously.”

NOTICE OF ASSIGNMENT

3. The Defendant neither admits nor denies the Claimant’s statement that an account was purchased by the Claimant but puts the Claimant to strict proof thereof.

4. The Defendant denies that Notice of Assignment [Exhibit HFO/xx– insert the reference used by HFO if they have formally exhibited the NOA] was sent by Marks & Spencer puts the Claimant to strict proof thereof.

5. In respect of that which is denied, the Defendant asserts that in effecting statutory assignment from Marks & Spencer to the Claimant, explicit Notice of Assignment must be given by writing under the hand of the assignor as required by S 136(1) of the Law of Property Act 1925, [the LPA 1925].

6. By case law, the notice must bring with reasonable certainty the fact that a deed has assigned the debt. The Defendant now produces an extract from the Registrar of Companies which shows that there is no company called HFO Capital Limited registered in England & Wales but that there is a company registered as HFO Services Limited, the name of the original claimant. The Defendant asserts that as the claimant has shown by its on evidence that the claimant was not certain who was the assignee, the defendant cannot be expected to be ‘reasonable certain’ of the assignee as required by law. Van Lynn Developments Ltd v Pelias Construction Co Ltd - [1968] 3 All ER 824

7. Further, the date stated on the Notice of Assignment produced in evidence by the Claimant [Exhibit HFO/xxx] is 30 July 2008 whereas the date of the Assignment was 29 September 2006 according to the ‘Account Sale Agreement’ now produced in evidence by the Claimant [Exhibit HFO/xxx]. The Defendant asserts that by failure of a Notice of Assignment to be accurate, the legal right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169].

CONSUMER CREDIT AGREEMENT

the claim is for monies due under the consumer credit act 1974.

[One of two options here, depending on whether HFO have exhibited a CCA]

8. The Claimant has not exhibited any credit agreement and the Defendant puts the Claimant to strict proof that such a credit agreement exists.

OR

8. The Claimant stated in the original Particulars of Claim that the alleged Account is regulated by the Consumer Credit Act 1974. Any such regulated agreement must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

9. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These prescribed terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

10 The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299]. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order.[Wilson v First County Trust Ltd-[2003] All ER (D) 187 (Jul)]

11 Further, by s127 (3) of the Act 1974, where an agreement effected prior to 6 April 2007 does not contain the prescribed terms, and is not compliant with section 60(1) of the Act 1974, the agreement cannot be enforced by the Court.

12 Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 require that the lettering in every copy of an executed agreement be easily legible.

13 The Defendant denies that the ‘Agreement’ [Exhibit HFO/xx] produced by the Claimant is an agreement within the terms of the Act.

14 The document HFO/xx states clearly that it is an Application Form. The Defendant asserts that most of the document is not easily legible and does not appear to contain the prescribed terms. The Defendant notes that the Claimant has also produced a copy of a document described as “the most recent Terms and Conditions” as part of exhibit HFO/xx. The Claimant is put to strict proof that these Terms and Conditions are the ones that formed part of the Application Form and thus any valid agreement.

15 Further, S 62(1) of the Act requires that if an unexecuted agreement is presented for signature, but upon signing by the debtor the document does not become an executed agreement, then a copy of it, and of any other document referred to in it, must be there and then delivered to the debtor. Further, S 62(2) provides that if an unexecuted agreement is sent to a debtor for signature, a copy of it, and of any other document referred to in it, must be sent at the same time. The Defendant asserts that no such copy was presented or sent.

16 S 62(3) provides that a regulated agreement is not properly executed if the requirements of S 62 are not observed.

MONTHLY INSTALLMENTS

“under the agreement the said sum is to be repaid by the defendant by way of monthly instalments.”

17 This Particular is denied and the Claimant is put to strict proof that any such ‘monthly instalments’ are to be paid.

DEFAULT

the defendant has defaulted in his payment and is in breach of payment clause of the agreement.

 

18 This Particular is denied. A default notice is a required by S 87(1) of the Act before a creditor can become entitled to take any action in respect of a regulated credit agreement.

19 It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

20 Notwithstanding the point, the Defendant asserts that the document exhibited by the Claimant as a default notice [Exhibit HFO/xx] is invalid. By statute, to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

21 By S88 (1)© of the Act, the date before which any breach can be remedied or compensation paid, must be stated in the Default Notice. By S88 (2) of the Act, as amended by s14(1) of the Consumer Credit Act 2006 as from 1 October 2006, the specified date must not be less than 14 days after the date of service of the default notice. The 14 day period was also required by paragraph 3© of Schedule 2 of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

22 By case law, the 14 days in the section means 14 ‘clear days’, excluding the day on which the notice was served and the day on which the Claimant proposed to take the steps specified in the notice. The date given in [Exhibit HFO/xx] by which the default could be remedied was “within 7 days of this letter” which is less than the 14 days required. Accordingly the ‘default notice’ was invalid.

23 Failure of a default notice to be accurate not only invalidates the default notice [Woodchester Lease Management Services Ltd v Swain and Co – (2001) GCCR 2255] but is an unlawful rescission of contract which would prevent the court enforcing any alleged debt.

AND the Defendant

24 asserts that the Claimant has failed to produce a copy of a valid credit agreement and a copy of a valid Default Notice which conform to the 1974 Act and also a valid Notice of Assignment as required by the Law of Property Act 1925.

25 seeks an order that in view of the matters pleaded above, the court gives consideration to exercising its powers under CPR Part 3.4 to strike out the Claimant's statement of case as disclosing no reasonable grounds for bringing the claim and that any claim cannot succeed.

Statement of Truth

I, believe the above statement to be true and factual.

Signed .....................

Date

[melmumof3]

thankyou docman, few dates i need to change, 26th march 09 i need to change to 30/6/08- this is the date m and s tell me it was bought by HFO..., at top of letter, but ill copy/paste and change it.... aww thankyou really thankyou, youve worked hard on it....

 

so i just now take this to the court!

[Docman]

Sorry mel, just puzzled about the change of dates. M&S may have TOLD you today but the court will only go with the wrtten evidence presented to it by HFO and you.

 

IMO, the fact that HFO have supplied a NOA with the wrong date is the killer for them.

[Docman]

Just thought. Did you get a DN from M&S in 2008?

[melmumof3]

Just thought. Did you get a DN from M&S in 2008?

just want to clarify the dates i have,

 

i have default notice from HFO with 30/07/08 as NOA, a notice of assignment with M and S header 30/7/08, which came from HFO.

 

the 'account sale' letter has date 26th sept 06

 

shame i didnt do the thing with M and S ages ago, they are meant to be sending me a letter, but isnt any good now i guess....

 

No i never got any DN from M and S in 08, BUT apparently according to M and S, they dont send them, they leave that to the DCA.

 

I think basically im reliant on the account sale exhibit date, and the date on DN.

[DonkeyB]

just want to clarify the dates i have,

 

i have default notice from HFO with 30/07/08 as NOA, a notice of assignment with M and S header 30/7/08, which came from HFO.

 

the 'account sale' letter has date 26th sept 06

 

shame i didnt do the thing with M and S ages ago, they are meant to be sending me a letter, but isnt any good now i guess....

 

No i never got any DN from M and S in 08, BUT apparently according to M and S, they dont send them, they leave that to the DCA. If M&S did not send you a Default Notice, then HFO have a problem. We're in 'unlawful rescission' territory here.

 

I think basically im reliant on the account sale exhibit date, and the date on DN.

 

Again, just wish you could have recorded this or get it in writing. This could be a crucial point.

[Docman]

Hi mel,

As DonkeyB says, these dates do bring the account into 'unlawful rescission' territory. But I think that is an action against M&S at a later date. For now the important step is to get HFO off your back.

My interpretation of the events from what you have posted is as follows_

1. HFO enters into an account sale agreement with M&S on 26 September 2006 whereby M&S agrees to sell its bad accounts to HFO. At this date, I doubt the schedule of bad debts would have included yours but HFO will argue that the agreement included FUTURE debts.

2. At some date between 14 February 2006 (according to HFO's letter of 27 March 2009) and 2008 (according to your information) you defaulted on the credit agreement. However, it appears from the telephone calls you have had with M&S that they did NOT issue a Default Notice.

3. Around January/February 2008, M&S ask Moorcroft to collect the debt from you. This collection would have been either on behalf of M&S (i.e. they still owned the debt and Moorcroft were being paid a collection fee or commission) or alternatively directly by Moorcroft on their own behalf because M&S had sold or assigned the debt to them i.e. Moorcroft owned the debt. I suspect it was the former because the debt was returned to M&S, possibly because you had asked Moorcroft for a CCA which they didn’t have.

4. Having been ‘returned’ to M&S, they then passed it to HFO on or around 30 July 2008 under the terms of the ‘account sale agreement’ from September 2006. However you never received any Notice of Assignment of the debt by M&S to HFO.

5. HFO sent a document to you on 27 March 2009 which looks like a Default Notice but starts by telling you that the debt is now owned by a company called HFO Capital Ltd. You were supposed to pay the debt to another company called HFO Services Ltd. A few days later, HFO Services Ltd brought the claim against you and a N1 claim form was issued through the Northampton County Court.

In order to succeed in their claim, HFO have to prove that (1) a valid enforceable CCA exists; (2) that the credit agreement has been defaulted and (3) that HFO is legally entitled to collect the debt because it has been assigned to them.

Your defence has here parts to it. First that HFO have not provided a CCA or if they have, it is not enforceable. Second, that a Default Notice was not issued or if it is the document dated 27 March 2009, it is invalid. Third, that proper Notice of Assignment was not sent to you. Case law states that the details of the assignment must be correct and that you must be ‘reasonable certain’ that HFO is the new legal owner based upon the documents put before the Court. In this case, the documents provided by HFO only serve to show confusion ON THEIR PART and so it is difficult to see how you can be certain if they are not certain.

That’s why I suggest you leave the date of 26 March 2009 alone if that is indeed the date shown in the Particulars of Claim. If that date does not match up with the documents,(as in the 'Default Notice' and the 'Account Sale Agrement', then HFO have shot themselves in the foot.

[melmumof3]

DOCMAN,

you have it to a tee.....

 

i must apologise fully.... im unbelievably thick these past few days lol.

i have read the particulars of claim, and YOU are correct, it says HFO capital purchased all rights and obligations from original lender on 26th march 09!! and that a letter of assignment has been supplied previously...

i get it now... derrrrrr...

ive changed nothing at all on it, i feel stupid. i read these things, but nothing registers in my brain!

everything you wrote above is correct, moorcroft were on commission to collect. i understand now what the account sale bit is, its not referring particularly to my case, but just in general right?

 

thankyou again docman, i very much apprieciate the time youve spent helping me

[melmumof3]

one more thing,

the paperwork ive to send with this amended defence is the DN correct?? im worried i must put something else with it.

 

is it correct, i dont have a claim form in the name of HFO Capital, only HFO services. ive been looking and looking and not sure if i am meant to have a claim form in the correct name who is taking me to Court.

i just have the allocation questionnaire, and an application notice which is explaining their change of name...

going to take it tomoz...

[Docman]

Hi mel,

 

You are not 'unbelievably thick ' at all. HFO seem to specialise in complicating even simple issues, possibly in the hope of confusing he judge.

 

When you say 'your paperwork', if you are referring to your 'exhibits' you can file these with the defence or separately with a witness statement. For now, try and get the defence to court asap. If the post strike happens, then you may want to visit the court if that is possible and hand deliver the defence.

[melmumof3]

Hi mel,

 

You are not 'unbelievably thick ' at all. HFO seem to specialise in complicating even simple issues, possibly in the hope of confusing he judge.

 

When you say 'your paperwork', if you are referring to your 'exhibits' you can file these with the defence or separately with a witness statement. For now, try and get the defence to court asap. If the post strike happens, then you may want to visit the court if that is possible and hand deliver the defence.

 

thanks docman,

ill file with the defence. another dim Q, what are my exhits i should file, i know will be the DN, but what else? lol...

 

thankyou

[melmumof3]

hi again,

just need some help...

im filling the bits out in your draft, docman, and stuck on a bit.

point number 20, bit about the claimant filing an exhibit DN....im stuck, dont know what to write to get what i mean across to you guys....

 

ive 2 lots of exhibits, one from june 09 saying this has been filed to the court.

contains exhibit 1, application form

M and S important information (t and cs)

ex 2, NOA

ex 3 , a compliment slip from M and s

statement of transactions

ex 4 account sale agreement

 

then another set of paperwork in july, amending name containing

ex 1 applcation form

T and cs

exhibit 2 NOA

 

this is it... seemingly no DN filed. so confused for point number 20 in draft see....should i refer to it as my exhibit? CONFUSSEDDDDD

Edited October 28, 2009 by melmumof3

[melmumof3]

hi again people

TR have just sent the paperwork they have submitted as evidence luckily, so now i have proper reference to the relevant paperwork, and a DN filed.

the letter they have sent to court, states they apologise the 7 day delay, and attached £300 fee.

 

they state, 'defendant has failed to comply with paragraph 3 of the order, by clarifying which paragrphs of her defence remain relevant in view of the docs provided in the claimants AQ. No clarification has been received'

goes on to say ' in light of documents already isclosed in the claimants AQ, and the persuant to CPR 3.4 (2) (a) © we ask that the court excersise its powers to strike out the defendants statement of case as it discloses no resonable grounds for defending the claim and defendant has failed to comply with a court order.'

in the alternative we request the court make an order that unless the defendant complies with papragrapg 3 of the order of 7th oct 09 wihin 14 days, the defence do stand struck out. the purported defence consists of largely irrelevant minutiae, which is in desperate need of clarification as a result of claimants disclosure to date and in view of forthcoming small claims hearing listed on 2nd dec 09.

 

ive sorted the amended defence with all the relevant exhibits correctly in place. printed off.. no i hope im doing this right by delivering by hand, this today to court.

[Docman]

Looks like they are playing hard ball. I wouldn't be surprised if they have been viewing this thread. OK let them have your amended defence.

 

It might be useful to include a covering letter to the court apologising for the delay due to late receipt of the court's order of 7 October.

 

Best of luck!

[melmumof3]

Looks like they are playing hard ball. I wouldn't be surprised if they have been viewing this thread. OK let them have your amended defence.

 

It might be useful to include a covering letter to the court apologising for the delay due to late receipt of the court's order of 7 October.

 

Best of luck!

 

hi docman,

ive done a cover letter, left it vague, just apologised for my delay ans said ive clarified the paragraphs which remain relevant.... didnt know what else to say.. hope its good enough going to deliver in a few mins..

[DonkeyB]

You're a litigant in person... you should get some leeway. They have absolutely NO excuse for being late, other than being complete EDITED MYSELF - JUST TOO STRONG ON A FAMILY WEBSITE.

[melmumof3]

You're a litigant in person... you should get some leeway. They have absolutely NO excuse for being late, other than being complete EDITED MYSELF - JUST TOO STRONG ON A FAMILY WEBSITE.

lol donkey.....

yeah i wondered why they were apologising for being late. if they get away with 7 days late, so should i hey, im 10 days late, and delivered mine in person, the court may not even have yet opened HFO's papers , and was dated yesterday. mine was opened and checked by a court officer woman. what will happen now? do i now just trot along to the court hearing?...

[melmumof3]

sorry... 1 MORE question please...

 

do i need to send a copy to HFO of the defence? just because on the court letter, it says that ; 'the defendant must clarify the defence by delivering to the court and the claimant by no later than 19th oct details of which paragraphs remain relevant. collating receipt of documents provided with claimants AQ'

 

sorry for all these questions....

[broken arrow]

If HFO want to fully comply with CPR, try this one

 

Under Civil Procedure Rule Practice Directive 16.7.3, 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.

[broken arrow]

This is how low HFO are!

 

Part of a PM I was sent

 

Hi BA, sorry to hear about your problem with HFO, I had a similar case with them.

 

I found out some interesting stuff which may help, any way i hope it will.

 

This concerns the the deed of assignment from HFO Capitol to HFO Services and is an extract from my defence.

 

Deed of assignment HFO Capitol and HFO Services

90. The defendant notes the deed of assignment of consumer debt receivables between HFO Capital and HFO Services certified as a true copy.

91. Under clause 7 the agreement is governed by English Law.

92. Under clause 36A of the Companies Act 1998 the following applies:

Execution of documents: England and Wales.

 

(1) Under the law of England and Wales the following provisions have effect with respect to the execution of documents by a company.

(2) A document is executed by a company by the affixing of its common seal.

(3) A company need not have a common seal, however, and the following subsections apply whether it does or not.

(4) A document signed by a director and the secretary of a company, or by two directors of a company, and expressed (in whatever form of words) to be executed by the company has the same effect as if executed under the common seal of the company.

This section was neither repealed or altered under the Companies Act 2006 coming into force in November 2006

93. As the document submitted appears to have only 2 signatures on it, one for each party to the agreement it is not valid under English law.

I hope it will help.

 

Like you I had a NOA that purported to come from the original creditor fortunately I had written confirmation that the NOA was sent out by HFO services not by the original OC.

 

 

The reason I am PM'ing you rather than on open forum is part of the deal with HFO i made was not to disclose.

 

Hope it helps.

[Docman]

sorry... 1 MORE question please...

 

do i need to send a copy to HFO of the defence? just because on the court letter, it says that ; 'the defendant must clarify the defence by delivering to the court and the claimant by no later than 19th oct details of which paragraphs remain relevant. collating receipt of documents provided with claimants AQ'

 

sorry for all these questions....

 

Hi mel,

 

Yes the CPR do require you to serve the other side. I suggest you do so as it is also part of the Order. Hwever, I would suggest you tell HFO/TR that as they do not appear to be able to substantiate their claim, you invite them to discontinue. Turn the tables on them for once.

[melmumof3]

Hi mel,

 

Yes the CPR do require you to serve the other side. I suggest you do so as it is also part of the Order. Hwever, I would suggest you tell HFO/TR that as they do not appear to be able to substantiate their claim, you invite them to discontinue. Turn the tables on them for once.

so if i do a letter, would this be adaquate enough

 

dear Sirs,

I attach the Amended defence. As you do not appear to be able to substantiate your Claim, i invite you to discontinue.

 

yours faithfully....

 

it this too vague, im not good with wording things ?:-|