HFO CAPITAL/services/turnbull CCJ

[melmumof3]

For making notes start by making headings for what you want to cover and then put in phrases about wht you want to remember. Keep reading through your stuff and adding to you notes. When you're happy you've got all your main points into note form then rewrite the note:

 

eg and not exhaustive

 

NOA

-date, which company?, letter from M&S, Beginning of POC

 

Default Notice

-----points here

 

Agreement

---points here.

 

get the idea, get a system going

ok cool, my notes are more a flipping essay... i started off with bullet points then just kept looking at what ive wrote in the defence to bulk it up lol. its really hard sitting here, not being in the situation before, and thinking how do you bluff something you know absolutely nothing about!!... its hard as im constantly distracted with 3 little kids up until 11 pm most nights!!... who's in the mood to sit down then and think about this stuff.

 

group hug needed for mel x lol.

[hungrybear]

Here’s some points about a DN lifted from another defence giving case law and statute. It might not all be applicable so read it through. It certainly tell you all you need why the DN is not compliant

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. 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.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that 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).

 

6. The 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 not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

 

For the blurb on the NoA see docman post 302

[hungrybear]

thanks HB,

 

ok this is a bit more understanding to me. basically, if i was going to court going by the above, the app form is total crap, and is unenforceable.... correct?...

 

 

Yes but you need to say what should be in it and why with statute references.

 

Too many people (you're not one of them) come on here get told the 'agreement' is unenforceable the just go to court and say 'its an application form innit so its not enforceable' then they are surprised when they lose. Anything you state is only as good as the case law/statute you have to back it up.

 

I'm off for the night but I see Docman's lurking so your in much more capable and experienced hands than mine

[Docman]

mel

 

Here are the two cases I mentioned earlier.

Van Lynn Developments Ltd v Pelias Construction Co Ltd.doc

W_F_Harrison__Co_Ltd_v_Burke_and_another_-_[1].doc

[melmumof3]

Yes but you need to say what should be in it and why with statute references.

 

Too many people (you're not one of them) come on here get told the 'agreement' is unenforceable the just go to court and say 'its an application form innit so its not enforceable' then they are surprised when they lose. Anything you state is only as good as the case law/statute you have to back it up.

 

I'm off for the night but I see Docman's lurking so your in much more capable and experienced hands than mine

thankyou HB, much appreciated for that ...ok i kind of get it...

im off too in a min, im gonna wake up positive tomoz, ready for a better day, and get to grips with this. ive filed everything, printed what everyone has posted up for me, my folder is thick!! lol...unlike me of course ha!!...

 

[melmumof3]

mel

 

Here are the two cases I mentioned earlier.

thankyou doc, printing them as we speak... any points apart from what you said earlier, that i should highlight?

 

oh how many copies?? 3 or just the 1??

[vjohn82]

Out of curiousity mel are you dealing with Turnbullsheet and Rudderless or directly with HFO?

[melmumof3]

turdybum .......

[vjohn82]

Have you had the displeasure of speaking with Paul Courtney? He at first claimed he was a solicitor when I first starting speaking with him in February... turns out he is not. Wish I had recorded that call... or did I

[vjohn82]

Sorry... I phrased the question wrong.

 

When you deal with Turdbullies & Rudeford you ARE dealing with HFO aswell.

[melmumof3]

ive had very few calls with TR, totally because they are a bunch of double u's, with the attitude.....

 

ive stuck to writing letters to them.

[vjohn82]

ive had very few calls with TR, totally because they are a bunch of double u's, with the attitude.....

 

ive stuck to writing letters to them.

 

People on here tend to advise against making/receiving telephone calls with all DCA's... I tend to enjoy them as part of my therapy

[Docman]

thankyou doc, printing them as we speak... any points apart from what you said earlier, that i should highlight?

 

oh how many copies?? 3 or just the 1??

 

You should just need one that you can show the judge. However, the judge may keep the copy and you have nothing left to refer to. Hence the advice to take a second copy with you to court to use yourself. A third copy for the other side isn't needed but giving them one does show you are polite, professional and well organised.

 

The main point to get over to the judge is that Lord Denning in the Court of Appeal endorsed a test that is a 100 year old, i.e. that you should be reasonable certain that the company claiming to be the owner or assignee of the debt is in fact that. But as you can point out to the court, HFO and their solicitors are not certain themselves because they can't even get the name correct, so how can you be expected to be, especially when one of the companies (Capital) doesn't appear in at Companies House. Its either that or HFO/Turnbull Rutherford may have lied to the court and possibly committed perjury which I don't think they can admit to the judge.

[hungrybear]

Yes, the fact that HFO Capital ltd does not exist is interesting and of course contrary to the Companies Act 1985 as amended.

 

Here's a link to all companies beginning HFO on the companies database:

 

WebCHeck - Select Search Results

 

and a screenshot of it to print:

 

comphfo.doc

 

might be worth having available

[vjohn82]

Hfo Capital Limited C/O M&C Corporate Services Limited, George Town, GR CAYMAN, Cayman Islands

 

 

What laws are there about firms like HFO Capital taking legal action in the UK... anyone know?

[hungrybear]

Hfo Capital Limited C/O M&C Corporate Services Limited, George Town, GR CAYMAN, Cayman Islands

 

 

What laws are there about firms like HFO Capital taking legal action in the UK... anyone know?

 

 

As with all things from what I can see it's overcomplicated. It would appear (google and read it - so dont take this as gospel) that so long as they have an address where they can be served with legal process papers in the UK then they can take UK court action.

[melmumof3]

You should just need one that you can show the judge. However, the judge may keep the copy and you have nothing left to refer to. Hence the advice to take a second copy with you to court to use yourself. A third copy for the other side isn't needed but giving them one does show you are polite, professional and well organised.

 

The main point to get over to the judge is that Lord Denning in the Court of Appeal endorsed a test that is a 100 year old, i.e. that you should be reasonable certain that the company claiming to be the owner or assignee of the debt is in fact that. But as you can point out to the court, HFO and their solicitors are not certain themselves because they can't even get the name correct, so how can you be expected to be, especially when one of the companies (Capital) doesn't appear in at Companies House. Its either that or HFO/Turnbull Rutherford may have lied to the court and possibly committed perjury which I don't think they can admit to the judge.

 

im going for the polite, professional, well organised look tomorrow!!.... eeek tomoz :-|

have everything printed, just going to highlight some bits.

 

do i need to print off the whole case- woodchester v swain?? ive found it in caggers library and printed that off, is that sufficient??????

 

HB, ive printed the companies house part off, but i cant rememeber who, DB or docman advised i should just stick to the facts and law....???????

[hungrybear]

im going for the polite, professional, well organised look tomorrow!!.... eeek tomoz :-|

have everything printed, just going to highlight some bits.

 

do i need to print off the whole case- woodchester v swain?? ive found it in caggers library and printed that off, is that sufficient?????? As long as you know why you have it and have highlighted the bit you may want the DJ to read

 

HB, ive printed the companies house part off (for information only, you never know if it will be useful in response to something they say that's all its for - if you have it you can bring it home without using it), but i cant rememeber who, DB or docman advised i should just stick to the facts and law....???????YES YES YES this is very important. Stick to the facts and what you can prove with documents, facts, case law and statute. The DJ will get peed of with any 'he said she said' type waffle

 

Do yourself a bit of a rehearsal. Try to put yourself in their shoes. Think what they might say and what you would say in response and say it out loud. Also rehearse the things you want to say

[melmumof3]

Do yourself a bit of a rehearsal. Try to put yourself in their shoes. Think what they might say and what you would say in response and say it out loud. Also rehearse the things you want to say

im cackin it.. lol.

 

i dunno what they will ask me, so dont know how id respond thats the problem!!!.... and i guess all dj's say different things....

 

ok what are they likely to ask. i think i know why i have the cases, the van lynn, is saying what doc said, reasonably certainty....HFO are not 100% certain who owned debt, so how can i be certain. harrison case is mentioned in van lynn thats why ive that???.....

 

ermmmm gonna have a good read for a few hrs now, to get up to scratch, ill be back later with all my observations for you all to check im up to scratch....!!

[DonkeyB]

Let me play the judge.

 

"So, melmumof3, do you owe this money?"

[DonkeyB]

Hi Mel

 

Keep thinking about the answer - and of course there is one - but in the meantime...

 

VJ's thread now has some juicy info on there which I've discussed at length across the forum.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/231293-help-defence-ws-required-7.html

 

In the reply to his witness statement which TR have sent him, look at point 3. This says unequivocally that HFOC undertakes to assign all existing and future debts to HFOS.

 

This would, of course, include your debt.

 

Therefore HFO Capital CAN NOT EVER bring any action in the UK due to this agreement.

 

They have, once again, seriously f***** this up by telling fibs.

[hungrybear]

Yes donkey but I think if you look at points 7 and 8, they will attempt to use CPR 19 to add HFOS to the POC and rely on intra group equitable assignment. What I dont know is if they can

[DonkeyB]

As Docman has often pointed out, if they don't know who actually owns the account, how can it be brought to court? They have stated it has been assigned to HFO Services... therefore HFO Capital no longer owns it, according to the contract document HFOC and HFOS that is also on VJ's thread. They can't have it both ways.

 

In VJ's case, if the court does not accept that the supposed notice of assignment to HFOS was valid, then it's end of story.

 

Just need to find a way for Mel to use this in court. After all, HFO/TR can't object to her using stuff from the forums, because they've done it themselves!

[melmumof3]

Let me play the judge.

 

"So, melmumof3, do you owe this money?"

 

 

NO, i do not!

[hungrybear]

So your not going to use the Oliver North defence then?

'I have no recollection of that matter, sir'

 

(from the senate iraqgate enquiry in the states - that was his reply to pretty much every question as I recall)