HFO CAPITAL/services/turnbull CCJ

[patrickq1]

POC (particulars of Claim) yes you need to check with expeian make sure you have the full name either srvs or ltd entered by HFO also M and S ,i am not sure they can enter two defaults for the one debt ?will check this for you and then start doing some work on your defence i might be a couple of days but dont worry have they sent the origional aggreement yet this must come from M and S if you have not received this then HFO have a big problen but they are very slippery and donkey and one or two others...

patrickq1

[patrickq1]

the Information Commissioners Data Protection Technical Guidance: Filing defaults with credit reference agencies (http://www.ico.gov.uk/upload/documen...3%20%20doc.pdf)

 

1) pg. 13 paragraph 31:

 

"The date of default recorded on the file should be the date on which a decision to file a default becomes effective according to the criteria discussed in paragraphs 9 to 16. If a notice of intention to file a default is served (see paragraphs 32 to 37), the default date should be the date the notice becomes effective."

 

2) pg. 15 paragraph 39:

 

"Any default record should be accurate. We normally expect a lender to keep records that are necessary to show an agreement exists and to support filing a default. We would also expect a lender to be able to produce evidence to justify a default record they had placed on a credit reference file. Not having any supporting records may indicate a breach of the data protection principle requiring personal data to be adequate, relevant and not excessive for the purpose for which it is processed. A record that a notice of an intention to file a default was sent, if not a copy of the notice itself, will help lenders to comply with this requirement."

 

3) pg. 19 paragraph 53:

 

"If the purchaser agrees to take control of the record, the customer should be informed that the debt has been sold or assigned and to whom. The credit reference agency file should be changed to show the name of the purchaser and that the rights to the debt have been sold or assigned. The purchaser should then make sure the record is kept up to date including changes to the amount still owed. The purchase should not affect how long the record is kept."

 

If you have been assigned all rights and duties in accordance with section 189 of the Consumer Credit Act 1974 then it is most likely you will have taken responsibility for maintaing the record. This would seem to correlate with ****** 's name appearing on the default itself.

 

I trust this outlines the legal definitions regarding the recording of the default and how the Information Commissioner makes their judgements and I expect that the discrepancies highlighted should be amended before I enter into further correspondence relating to the debt itself. The account is in legal dispute and therefore no collection activity should be occurring at this time in accordance with the Office of Fair Trading Debt Collection Guidance.

[patrickq1]

ive taken this from another thread and this is their arguement concerning the default notices .

patrickq1

[melmumof3]

POC (particulars of Claim) yes you need to check with expeian make sure you have the full name either srvs or ltd entered by HFO also M and S ,i am not sure they can enter two defaults for the one debt ?will check this for you and then start doing some work on your defence i might be a couple of days but dont worry have they sent the origional aggreement yet this must come from M and S if you have not received this then HFO have a big problen but they are very slippery and donkey and one or two others...

patrickq1

 

thankyou patrick for your help. i havent got the original agreement, only the m and s application form, i never asked m and s for my CCA as they just sold it firstly over to moorcroft, who i CCA'd, and they couldnt provide it so went to HFO which i got the ' you missed your parcel' card from them. i will check the credit report again, and will get the figures etc and who its to all for my defence.

[patrickq1]

was the account in dispute before M and S sold it,or where you in correspondance with M and S

[melmumof3]

was the account in dispute before M and S sold it,or where you in correspondance with M and S

my last letter from m and s was in dec 07, i was paying m and s via CCCS, but then became in arrears with my mortgage, so CCCS cancelled my DMP. that was sept 07, i then missed october's, nov payment for m and s, so they then sold on debt to moorcroft in a letter in jan 08, i probably got a default letter from m and s in 2006 before i went to CCCS?? moorcroft then sold the debt to HFO, the first letter from them is dated sept 08 (this is the pack letter, the post card came in before that.) and the notice of assignment with m and s heading, which im sure is from HFO has date of july 08. am i right in thinking that i would have had no more dealings with m and s after the sold it to moorcroft? or didnt moorcroft actually 'buy' it???

[melmumof3]

hi all,

ive finally got around to having a look at my credit file, and i have the details for HFO as HFO SERVICES LTD. Its classed itself as a bank, it says account started 11/2003 (would have with M and S) its also says my default balance was £2700 and current balance £4500. it also goes to say i defaulted 2/2006 (would have defaulted in 2006 with m and s not HFO), and thats it........

 

so im think its half fair to say, the 'collections agents' own my debt, not the 'creditor', because this is how HFO are wording it on my default letter, HFO capital are the 'creditor' and HFO services are the collections agent...But the creditor is taking me to court??? hmmmmmm, what do you reckon guys????:-?

 

Ive also checked M and S, and its under the section individuals you may be financially linked with, with an association type of 'proposal form'. i dont have any defaults, or money owed to m and s according to credit expert....

Edited October 21, 2009 by melmumof3

[melmumof3]

hi again....

ive just re read the court order, its says signed statements setting out evidence must be prepared within 42 days of order, order dated 7th oct... it also says, which i dont understand, that i must clarify the defence by delivering to the court office and claimant by no later than 19h oct (too late now i know, as havent done this) details of which paragraphs remain relevant collating receipt of documents provided with claimants questionaire..... ive done a boo boo havent i ??? Helppppp.....

[Docman]

I wouldn't be too stressed about missing th date. If the judge has put this into small claims, there can be a little leeway. But you must respond quickly, certainly by the weekend on the first point. The real problem isn't the court - is HFO trying to sneak in and get something past the judge or more likely the court officials.

 

You need to file an amended defence linking the points in your original defence with the POC and also the documents that have been supplied (I think that is what you meant in your post #21.

 

You mentioned earlier that M&S assigned the debt to Moorcroft. Do you have a NOA confirming that or where Moorcroft just a collecting agent for M & S?

[melmumof3]

I wouldn't be too stressed about missing th date. If the judge has put this into small claims, there can be a little leeway. But you must respond quickly, certainly by the weekend on the first point. The real problem isn't the court - is HFO trying to sneak in and get something past the judge or more likely the court officials.

 

You need to file an amended defence linking the points in your original defence with the POC and also the documents that have been supplied (I think that is what you meant in your post #21.

 

You mentioned earlier that M&S assigned the debt to Moorcroft. Do you have a NOA confirming that or where Moorcroft just a collecting agent for M & S?

hi docman

it is small claims track yes..

would someone be able to help me with it, how i go about linking the points please???? very confused, it doesnt help ive 2 children under 4, who i just cant get the concentration to think straight:confused:

my defence hasnt really changed, i think????they still havent supplied an executed tru signed copy of CCA etc.... do i send the paperwork i have received from HFO to the court?? i assume now i need to go in person as royal mail are on strike too....really really confused... sorry, i feel ive lost this, because of my incompetence.

[Docman]

No way have you lost it. We can cover everything in a further defence. I'll try and put something tomorrow for comment. And don't forget that they have some explaining to do to the court such as how a solicitor was either very economical with the truth or very slapdash in the Statement of Truth that he signed.

[melmumof3]

No way have you lost it. We can cover everything in a further defence. I'll try and put something tomorrow for comment. And don't forget that they have some explaining to do to the court such as how a solicitor was either very economical with the truth or very slapdash in the Statement of Truth that he signed.

 

im just quaking in me boots and petrified:-(...im sooo glad and enormously grateful of the help ive received and continue to receive.

 

thankyou:-)

[Docman]

Hi Mel,

 

I've started to draft an Amended Defence but it isn't finished yet. I need to see the "default notice" that was issued against you. Can you post it up without your peronal details?

 

Draft so far...

 

In the XXXXXXX County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

• I xxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxx am the defendant in this action and make the following statement as my amended defence following the Court's Order of 7 October 2009.
  
• Except where otherwise mentioned in this amended 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

• 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.
  
• 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 plc puts the Claimant to strict proof thereof.
  
• In respect of that which is denied, the Defendant asserts that in effecting statutory assignment from Marks & Spencer plc 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].
  
• 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 ascerts 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.
  

CONSUMER CREDIT AGREEMENT

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

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

• The Claimant has not exhibited any credit agreement and the Defendant puts the Claimant to strick proof that such a credit agreement exists.
  OR
  

7. 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.

• 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.
  
• 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)]
  

10. 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.

11. 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.

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

13. 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.

14. 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.

15. 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.”

16. This Particular is denied.

DEFAULT

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

 

17. This Particular is denied

 

DOC

[melmumof3]

http://s646.photobucket.com/albums/uu186/mel28089/

this is the default letter i received from hfo.. hope it works??????????

 

yes it works!! lol..

 

sorry for the delay

Edited October 24, 2009 by melmumof3

[melmumof3]

im reading the allocation questionaire and reading a paragraph which i would like someone to make clear to me....

'with all due respect to the defendant, her defence is generic and essentially a bare denial of the claim. The claimant requests that the court exercise it's inherent power under CPR 3.4. and strike out the defence as showing no reasonable prospect of success, nor any reasonable grounds for disposing of the issue at trial.

If the court declines to exercise it's power under CPR 3.4, the claimant requests that the defendant fully particularise her defence to the claim in light of and referring to the documentation already disclosed...'

what is CPR 3.4 please?

[sillygirl1]

Your counter to that would be

 

The claimants claim is poorly particilarlised and under CPR 3.4 the defendant requests that the claimants claim be struck out entirely with no leave to reinstate.

 

It basically means (in my understanding) that they think you are defending just for the sake of it... naughty of them to try to direct the courts decision to allow you to exercise your legal rights to defend yourself, however poorly in their eyes.

 

Just goes to show how low this lot dig when they attempt to scare people into paying up.

[Docman]

Hi mel

 

As sillygirl says, they are attempting to scare you. Don't be worried. They just want the court to strike out but if the judge has already asked for further information, he isn't going to be fooled by this trick. But you do have to file an amended defence.

 

Can you post up the second page of the DN from HFO please. Also I was puzzled by the dates. When did the assignment happen? The DN indicates it was in 2008 or amreading the dates on the DN wrongly?

[melmumof3]

http://i646.photobucket.com/albums/uu186/mel28089/P1010845.jpg

this is the pic of other page, sorry didnt realise it was 2 paged....

 

i just found this at the back of the exhibits with the latest allocation questionaire..... its saying the account sale date as sept '06???? confused??? this account was with moorcroft early part of 2008, as i got into arrears in 2007, and only was HFO involved last september..... should really take more notice of whats sent to me, but i thought it was the same paperwork HFO keep sending, so didnt look through it.....

http://i646.photobucket.com/albums/uu186/mel28089/P1010846.jpg

[melmumof3]

Hi mel

 

As sillygirl says, they are attempting to scare you. Don't be worried. They just want the court to strike out but if the judge has already asked for further information, he isn't going to be fooled by this trick. But you do have to file an amended defence.

 

Can you post up the second page of the DN from HFO please. Also I was puzzled by the dates. When did the assignment happen? The DN indicates it was in 2008 or amreading the dates on the DN wrongly?

hi docman, im confused with the dates too....

the notice of assignment which has M and S has the date 30/7/08, it says in letter, it has been assigned to HFO services on the date at top of letter. The Default notice also reads the same date. dont know what they mean about 2006 default??? m and s used to be paid thru CCCS, until the DMP was cancelled.... im really confused, but think HFO have effed it up!!! they have plucked dates from sky????.. and now i find this new paper with account sale, never seen that before, and it definately never was sold to HFO in 2006!!!!!

Edited October 26, 2009 by melmumof3

[melmumof3]

hi docman, im confused with the dates too....

the notice of assignment which has M and S has the date 30/7/08, it says in letter, it has been assigned to HFO services on the date at top of letter. The Default notice also reads the same date. dont know what they mean about 2006 default??? m and s used to be paid thru CCCS, until the DMP was cancelled.... im really confused, but think HFO have effed it up!!! they have plucked dates from sky????.. and now i find this new paper with account sale, never seen that before, and it definately never was sold to HFO in 2006!!!!!

if ive confused anyone, ive confused myself lol....

if you want me to try make things clearer, pease ask ill go thru the timeline:|

[melmumof3]

ive just rang M and S to confirm dates etc.....

 

i defaulted with them in feb 2006, which was added to my credit file. was paying them up til latter part of 2007 until my DMP was cancelled.

 

they sold my debt to Moorcroft in January 2008, i dont have a notice of assignment from M and s, or moorcroft for this.

 

Moorcroft CCA'd. they couldnt provide one, so that was that.....

didnt hear anything until the September, when i received the 'missed delivery' card from HFO. rest is history as they say..

M and S confirm they never sent me any notice of assignment, the account stops from when it was sold to Moorcroft. they do say HFO requested application form, which was sent etc......hope this makes sense?

 

confused about the 'account sale' letter.

[DonkeyB]

ive just rang M and S to confirm dates etc.....

 

i defaulted with them in feb 2006, which was added to my credit file. was paying them up til latter part of 2007 until my DMP was cancelled.

 

they sold my debt to Moorcroft in January 2008, i dont have a notice of assignment from M and s, or moorcroft for this.

 

Moorcroft CCA'd. they couldnt provide one, so that was that.....

didnt hear anything until the September, when i received the 'missed delivery' card from HFO. rest is history as they say..

M and S confirm they never sent me any notice of assignment, the account stops from when it was sold to Moorcroft. they do say HFO requested application form, which was sent etc......hope this makes sense?

 

confused about the 'account sale' letter.

 

That's interesting... M&S claim they sold it to Moorcroft in January 2008, yet HFO have sent a 'true' copy of a sale agreement between them and M&S dated September 2006 and claim they bought it it July 2008.

 

(This agreement between M&S & HFO itself isn't too important - the agreement between M&S and HFO would probably have referred to all future sale of debts as well.)

 

So... did Moorcroft sell it back to M&S or sell it to HFO? If HFO bought it from Moorcroft, they are well and trully b*ggered - because they have fibbed rather largely and rendered all their documents useless.

 

Can you check with M&S again to confirm whether they bought it back from Moorcroft and then sold it to HFO? This could be important - can you record the call? Finding out who sold what to whom and when is key!

[melmumof3]

hi donkey,

have got to ring another dept later at M and S, as the number i rang doesnt know..... as far as i know, M and S had nothing more to do with my debt after jan 08, well thats what M and S are saying anyway, hopefully the other debt (they apparently deal with agents etc) will shed light more.

i dont have any way to record the call either, shame....anything else i can do???

will keep up to date how today runs....

[melmumof3]

UPDATE

 

M and S passed original debt to Moorcroft on a commission basis.

It was referred back to M and S on 26th May 08, where it was sold on to the first available agent. They know HFO as 'ROXBURGHE'..... it was sold to HFO on the 30/6/08. M and S have said that the 'account sale' letter with the date 26th sept 06, is probabaly a typing error.....

well least i know now....

[Docman]

http://i646.photobucket.com/albums/uu186/mel28089/P1010845.jpg

this is the pic of other page, sorry didnt realise it was 2 paged....

 

i just found this at the back of the exhibits with the latest allocation questionaire..... its saying the account sale date as sept '06???? confused??? this account was with moorcroft early part of 2008, as i got into arrears in 2007, and only was HFO involved last september..... should really take more notice of whats sent to me, but i thought it was the same paperwork HFO keep sending, so didnt look through it.....

http://i646.photobucket.com/albums/uu186/mel28089/P1010846.jpg

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