HFC Marbles credit card SD - was dismissed as voluntary joint charge provided - now owed by Cabot - settled at home sale - was i overcharged?

[tedney]

Thanks clemma, I thought so.

[tedney]

Following correct issue of SAR on 26th January and my responses to two stalling letters from the OC Marbles/HFC sent to the address provided by the OC as their "SAR Team". My LBA was sent to the same address, 

I have received today a letter from "Beneficial" described as "a trading name of HFC Bank" with the same PO box and post code as provided on the form of Marbles SAR Team, stating that "you will receive a full response within the next forty days" Their letters never refer to the date of my correspondence, merely "your recent communication"

The LBA expires next week.

I had intended to begin action exactly on deadline.

Anyone have any advice as to how best to proceed now please

Seems like HFC are bending the rules a bit.

Before I found this excellent group,

I was served a SD by a credit card company which I tried to set aside.

Unfortunately, in the attempt, I did admit to a debt, which included "unlawful charges".

Subsequently a charge was made on my property, which includes a substantial increase over the account balance when the default was originally issued.

I did not get a copy of the agreement or any of the details referred to on here at the time of the actions.

Is there any mileage in obtaining a copy of the CCA, and "reopening" or contesting the outstanding balances?

Both before and after the default, I have been making monthly payments, but the ongoing outstanding balance is increasing!

Any help would be appreciated.

[tedney]

Hello

I would really appreciate some advice on this, 

Deadline long past.

No information received.

What steps do you think would be best.

Thanks in advance.

LBA has been sent, their response was to acknowledge SAR and state that they would comply within 40 days, effectively 80 days from first SAR!

Any advice on next step please?

[womble72]

Hi Tedney,

Here is a link with what happens if they do not comply with your request and it will mean you taking them to court.

The next stage is issuing the court papers... - Havinastella V Lloyds TSB

I know nothing about the procedure but have a read on the above link and it looks like you will need a N1 form.

Hope this helps.

Womble

[tedney]

UPDATE

I issued an SAR to the OC HFC back in March, and eventually got a response, with numerous copy statements, copies of my previous letters to the OC and sundry screen print outs, including "journal entries".

The covering letter stated verbatim:

" Please find enclosed a copy of your legal agreement and any account related correspondence (manual letters will be included if issued, systemic letters are not enclosed)"

The only "agreement" enclosed was a copy of my original card application.

There was no copy of the Default Notice, Statutory Demand, Legal Charge, Account Assignment or any other related correspondence. 

A solicitor acting for the OC wrote to me saying that the account had been assigned as at May 2008.  

In the SAR documents, I have been sent copies of statements with the OC dated up to and including March 2009.

No mention of the assignee at all!

The balance as at May 2008 with the OC was approximately £1900 LESS than that quoted by the solicitor!

I have never been advised of any assignment by the OC, merely by a solicitor who was acting for the OC, and now seems also to be acting for the alleged assignee.

This letter was not sent by registered or recorded delivery.

The account balance indicated on the last statement was below that of the legal charge, which was provided to the OC.

Would the alleged assignee also now benefit from the legal charge, or does this remain with the OC?

I am continuing to pay monthly sums to the OC, and have not missed any payments since the demand was issued.

Has the assignment been carried out correctly?

Should I now be paying the "new" alleged assignee?

Any advice would be welcome please

The legal charge etc. was entered into before I was aware of this excellent forum.

[lilly white]

ok lets go back a little

do you have a copy of the agreement and can you post on here we can have a look.

ANY PPI ANY CHARGES HOW OLD IS THE DEBT.

[tedney]

Hello lilly white

I do have a copy of an agreement, if this is defined as the account application, but I don't have a scanner!

The copy I received in the SAR has my signature, in a "box" which I signed as an application.

There is also an illegible signature "On behalf of HFC Bank" which seems to be dated ??/10/02, I signed on July 2002.

There was no PPI and The account was defaulted in December 2006.

I could send copy to my son for him to scan in and forward on to me, if you think that would help.

Thanks

Another (small) update!

Having looked a little closer at the cc terms and conditions copy sent as part of their SAR response,

no rate of interest is shown and the term 'credit limit' and repayment terms are missing.

Also, "right to cancel" quotes FS regulations of 2004, copywrite date of document as June 2006,

but application was 2002!

Is any of this relevant, as I admitted the debt in court when I tried (unsuccessfully) to set aside the statutory demand.

[lilly white]

well given what you have said.

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 9 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3).

The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

18. With regards to the Authority cited in point 11, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

” The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with.

In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.”

Consumer Credit Act 1974 This version of the Consumer Credit Act 1974 has simply been scanned in from a printed copy.

check out 142.

do has much research as you can

[tedney]

Thanks for that lilly white,

I will have a look at the document in your post #18 above, and see if I can identify further relevant details.

As I admitted the debt in a court, albeit at a significant lower amount than that which the alleged assignee is now indicating, 

do you think there is any mileage in confronting OC's solicitor and assignee's solicitor (same solicitor) with "unenforceable" argument, as the OC has a charge on my property now?

[Seminole]

Is the solicitor Bryan Carter by any chance?

[tedney]

No, weightmans

[Seminole]

Thanks for clarifying. Phoenix has cropped up here before but in the context of Bryan Carter.

Did this actually go to court or did you voluntarily agree to a charge in response to a Stat Demand?

If the agreement is unenforceable then the creditor has no way enforcing the alleged debt. In your case this means that any amount in excess of the charge can't be collected.

I am unsure what happens in respect of the charge itself.

[tedney]

I tried to get the SD set aside, as the amount stated on the SD was above the sum on the "default notice" by approx £1K5 (overall sum approx £9K)

Despite my sending all letters by recorded, W actually denied receiving some letters, and arbitrarily changed deadlines, even though I had responded within their original time limits, and they had received my responses.

As I had admitted a lower debt the judge denied the set aside of the SD, then W pressed for a legal charge on my (joint) property, or they would proceed with bankruptcy.

I got a solicitor involved at that point, on the advice of the CAB (who had prepared a financial statement for me, sent to the OC) (I did not know of CAG at that time) but the solicitor was not very well informed on such matters, although he did manage to limit the sum in section 8 of the SD rather than an open ended amount originally inserted by W.

In view of above, I volunteered the charge, which was actioned.

I wish I had found this site sooner, as I am sure that the debt is one that is unenforceable, as the CCA that has been provided in response to the SAR does not have interest rates, repayments etc.

The "assignment" was merely advised to me by a letter from W, not from the OC.

I have been making monthly payments since before the SD.

In response to the SAR, I received copy statements from the OC, even for months after the alleged assignment.

I have also received a statement from W, which shows a balance approx. £2K above the OC statements for the same period!

I am still paying the OC, not the alleged assignor.

Having further checked my files, the account was defaulted, with a notice providing 13 days (from date of notice to payment date).

Payment was not made, but I have never received any "termination notice" of the account from the OC in fact after the DN, other than the letters about the SAR, I have received nothing from the OC, only from their solicitor.

Should I have received a termination notice?

IF so, what are the implications of not receiving one please?

No CCJ, account defaulted but not terminated.

Account has allegedly been assigned from OC.

A statutory demand was issued for bankruptcy, but the petition was dismissed as voluntary charge provided.

Original debt details, such as if signed agreement can be provided and if it meets CCA requirements, and if default notice complies has not been investigated or brought up with OC.

After further checking DN might not be correct as date for payment action was just 13 days from date of issue.

Is this a factor?

Is it worth pursuing?

The account has allegedly been past to Phoenix, what is the best way to proceed please, should I pursue Marbles for charges and interest?

I know I have left it a long time, but I am only now getting to grips with all the outstanding accounts I have

As the thread title suggests:)

If an OC has a charge, and then allegedly assigns the account to a DCA, who has the charge on the property?

No "official" notification of assignment has been received,

just a letter from a solicitor.

Any thoughts would be welcome.

Thanks

HFC Charges reclaim rebuttal letter.pdf

[PGH7447]

Pass - what does the letter state

[harrassed senior]

Well my thought would be, assuming the Charge is backed up by a Court Order then it stays with the OC.

If, by voluntary you mean an Agreement only, not a Court Case, then not so sure.

[tedney]

OK, thanks, letter states

"We give you notice that the above named Assignee has acquired from the above named Assignor all of the Assignor's rights in relation to your above detailed account and any charging order / voluntary charge registered by the Assignor in respect of the debt due under that account.

This means that the creditor under your above account (and the beneficiary of any charge registered against your property) is now PHOENIX RECOVERIES (UK) LIMITED s.a.r.l. (my capitals) and all amounts due under the account are due to Phoenix.

The balance currently owed is £incorrect (monies added, in any event was not as shown on charging document).

Under the terms of the assignment, Phoenix is now the data controller of your personal data contained in the records of the account (as defined in the data protection act 1998.

Phoenix has the same rights and obligations as the Assignor to give information to CRA's. ..

... Phoenix will comply with any request for a copy of the personal info.......

....please send £10 to us (solicitor).

Charge was unfortunately, (pre finding CAG), agreed voluntarily.

Looking at recent posts on other threads, there may be two issues (or more?)

1. The OC using a SD to force Voluntarily Charge and

2. Can charge be transferred to DCA?

Following receipt of that letter (nearly 2 years ago now)

I made an SAR to OC which made no mention of assignment, but was marked as "charged off"

I have been reading the issues surrounding Phoenix on some other threads, not sure of up to date thoughts on that though.

Apart from letter from solicitor who acted for OC and also for Phoenix

I have had nothing from OC in respect of the charge.

Any thoughts/help would be welcome.

[harrassed senior]

you say that the original SAR contained no documentation referring to the vol chg.

That to me is very interesting because how are they going to prove it existed should they want to act on it?

Personally I have not had dealings with Phoenix so would not be able to say if the letter you have received (mentioning vol crg) is actually just a standard template letter they send out.

I am presuming there have never been any CCJ's or Court Orders, can you tell me what the debt was for, and how long ago so that we can decide the best course of action.

Hopefully you have not acknowledged anything to Phoenix either over the 'phone or in writing so that we have a clear playing field.

[izzitme101]

phoenix eh, i had a few friends have letters from them, all of which had no address on them, just a phone number.

Complaint to companies house sent them packing lol, just make sure they put their address on the top of the letters.

[PGH7447]

these fools are based in luxemburg so are they entilted to carry out this threat

[tedney]

Having read some other threads, and recently receiving some other information too.

Does anyone have an up to date on Phoenix please?

[tedney]

As the thread title.

 

An SD was served some time ago by a solicitor acting for the OC.

The debt was supposedly assigned to a DCA, and now has been supposedly assigned again.

The original SD was discontinued by the OC, as an agreement was reached.

 

Can a SD be raised again for the same debt please?

The same solicitor has allegedly been acting for all three parties (the OC, first and second DCA's)

Nothing has yet been suggested or presented, I just want to be prepared!

 

Any views or comments welcome. Thanks t

[brokebutnotbeatn]

as nothing has been presented I would wait until it is - which may be never of course.

[dx100uk]

something smells here....

 

tell us the story snd the names

 

dx

[BRIGADIER2JCS]

Yes please do sounds odd to me

[tedney]

Ok, Don't want to give too much away here, prying eyes and all that!

Original debtor served an SD, before I had seen this excellent forum.

I admitted part of the debt (minimal charges were applied) and applied for SD set aside which was refused in court and OC agreed not to pursue if I gave voluntary charge on property,

which OC's solicitor said would not pursue as I had undertaken to pay nominal monthly sums, which I have done and continue to do without missing any payments.

Debt was allegedly assigned to a DCA, same solicitor as OC wrote to me about this, not heard from OC, but credit report shows original debt as satisfied, and showing first DCA as a new debt.

Now same solicitor has written alleging debt assigned to another DCA, which I think has run credit check on me.

Obviously "something is happening" here,

I continue to make payments to OC,

which are not refused.

According to the solicitor all "benefits etc of the debt" have been transferred to the new "owner" of the debt.

I am concerned that some other action may be imminent from the DCA.