car2403 -v- HFC Bank (Default removal)

[tomterm8]

interesting.

 

Firstly, nothing in their "agreement" gives them the right to issue any collection charges.

 

While, I would not presume to tell anyone what to do, it might be considered useful if you were to include a few things like, i.e. the date the credit agreement was made, and the figures, since it makes it VERY difficult to do the sums etc.

 

once you have included these things, i would suggest you contact peter bard, our resident Total charge for credit expert, to see if their figures stack up.

 

I must say, my view is that if you just admit the debt, then you will have a lead weight around your neck that is impossible to remove. You really have very little to lose defending, or at least finding out if the amounts they are claiming are legal.

[car2403]

Agreement was signed 23/03/03 and the figures are;

 

Amount of Credit (the Loan) - £5177.00

Comprising amount to discharge your existing indebtedness - £5177.00

Interest Total - £583.72

Total payable - £5760.72

APR - 2.4%

Monthly repayments - 108 X £53.34

 

I've already linked to this post for Peter to come take a look - I think I'll PM him to see if he can drop by, as our resident expert.

[car2403]

Quick update as to where I am with dates, etc, regarding this claim.

 

- Data Protection Act S.A.R - (Subject Access Request) 11/08/07 sent to HFC. They replied 22/08/07 wanting more info, thereby confirming that they received the request. It was also sent Recorded Delivery with confirmed receipt from WINDSOR Delivery Office. I have proof of signature on receipt as well.

- Request for more info under CPR in response to the Court Claim form sent 25/08/07, with a copy to the Court. I've heard nothing.

 

So, they are already over the SAR period of 40 days and have until 09/10/07 to provide everything I asked for under CPR.

 

I'm sending this to HFC for the SAR;

 

Dear Sir/Madam,

DATA PROTECTION ACT 1984 – DATA SUBJECT ACCESS REQUEST:

 

FAILURE TO PROVIDE INFORMATION WITHIN PRESCRIBED TIMESCALES – PRE-ACTION LETTER

You have failed to comply with my Data Protection Act Subject Access Request dated 11 August 2007 – I have enclosed a copy of my original request, for your information.

If you do not comply within the next 7 days I shall seek a Court order obliging you to do so together with damages at the discretion of the Court and without any further notice.

Yours faithfully

 

And this to Reston's or the CPR request;

 

REQUEST FOR INFORMATION – FAILURE TO COMPLY

I, the Defendant in the case above, refer to a letter I sent to you dated 25 September 2007, a copy of which is enclosed.

To date, you have failed to provide the information requested, therefore please take this as notice that I intend to report to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

Yours faithfully,

 

Do I make a formal application notice to the Court? I'm hoping to spur some action on here...

[car2403]

The questions I would like to know the answer to now are;

• Can they produce something "other" than the agreement that they've sent me under the CCA request? If they can, I'm assuming that the copy is taken from the original which is more than likely to have the remedies/protection and default charges notices on the reverse. If not, it doesn't contain that form/content required. I'm obviously worried that the original will be produced at trial - but I'm not sure what the Judge will decide of that if they haven't submitted it when requested.
  
• They are in Default of the SAR deadlines. Again, I think this will go in my favour, but will the Judge consider this as an attempt to frustrate proceedings?
  
• They are almost in Default of the CPR deadline as well. How do I progress this, or should I leave it and hope they continue to Default?

I have also read some of the other Defences that have been constructed and I see what is meant that mine (above) doesn't address the issues. I'll put some more work in to this and post again later once I have got my head around it.

[tomterm8]

The questions I would like to know the answer to now are;

• Can they produce something "other" than the agreement that they've sent me under the CCA request?

What they send you in response to a CCA request, is binding on them. They can show the original document, however any information on it that is not in their CCA response would have to be "ignored" by the judge

• If they can, I'm assuming that the copy is taken from the original which is more than likely to have the remedies/protection and default charges notices on the reverse. If not, it doesn't contain that form/content required. I'm obviously worried that the original will be produced at trial - but I'm not sure what the Judge will decide of that if they haven't submitted it when requested.

The agreement seems to be in the "minimum" form required for enforcement with a court order.

however, I haven't done the sums because Peter is our resident expert on the rules of the agreement regulations

• They are in Default of the S.A.R - (Subject Access Request) deadlines. Again, I think this will go in my favour, but will the Judge consider this as an attempt to frustrate proceedings?

No they aren't, necessarily; they are entitled to ask you for information to confirm your identity etc, or determine what information you are asking for. It depends what information they requested.

• They are almost in Default of the CPR deadline as well. How do I progress this, or should I leave it and hope they continue to Default?

With the postal strikes, they have probably got a good excuse... i guess you may end up having to do a placeholder

I have also read some of the other Defences that have been constructed and I see what is meant that mine (above) doesn't address the issues. I'll put some more work in to this and post again later once I have got my head around it.

 

The main issues are:

 

* assignment / notice of assignment

* correct amount on any default notice

* correct amount on claim form

* enforceable credit agreement

* penalty charges / collection charges.

[car2403]

Cheers tomterm8 - with each reply to this thread, I'm starting to fell MUCH better about Defending! The initial thought was that I was done for, but I'm not feeling very empowered!

 

Looking at the figures, I've used the calculator here...;

 

Loan Calculator

 

...to work out if they are right - and I don't think they are!

 

I've input £5177 as the total loan amount with 2.4% APR over 9 years and it's coming up with 108 payments x £53.28 totalling £5,754.83 and £577.83 total interest.

 

In the agreement it states £5177 total loan amount with 2.4% APR over 9 years and has 108 payments of £53.34 totalling £5760.72 and £583.72 total interest.

 

I'll obviously bow to others' opinion as I haven't a clue about correct APR and that calculator may be wrong anyway.

 

As for the other issues;

 

The main issues are:

 

* assignment / notice of assignment

 

As far as I can tell, there isn't one as the debt is still with HFC as the original creditor, but is being collected by Reston's Solicitors Limited.

 

* correct amount on any default notice

 

That's an interesting one, as there are no statements showing what I have/haven't paid. The default notice also has the wrong dates for enforcement, it is dated 9 August 2005, but allows me until 26 July 2005 to remedy the breach.

 

* correct amount on claim form

 

Again, no statements - I have checked my credit file which has the latest balance (updated by HFC on 04/09/07) as £3859 but the claim form is for £4992.49 plus £832.24 collection charge and minus £771 I've paid, totalling £5053.73.

 

* enforceable credit agreement

 

As you say, probably is with a Court Order only though.

 

* penalty charges / collection charges.

 

With no statements, I couldn't say unless they reply to the SAR.

 

 

No they aren't, necessarily; they are entitled to ask you for information to confirm your identity etc, or determine what information you are asking for. It depends what information they requested.

 

I gave them addresses and account numbers in my initial request, but they wrote back wanting a copy of the Driving License or Passport and a signature on their standard SAR form.

[tomterm8]

Cheers tomterm8 - with each reply to this thread, I'm starting to fell MUCH better about Defending! The initial thought was that I was done for, but I'm not feeling very empowered!

 

Looking at the figures, I've used the calculator here...;

 

Loan Calculator

 

...to work out if they are right - and I don't think they are!

 

I've input £5177 as the total loan amount with 2.4% APR over 9 years and it's coming up with 108 payments x £53.28 totalling £5,754.83 and £577.83 total interest.

 

That's very interesting. if their total charge for credit is wrong, then that would render the entire agreement unenforceable. i really would get Peter to check the figures

 

In the agreement it states £5177 total loan amount with 2.4% APR over 9 years and has 108 payments of £53.34 totalling £5760.72 and £583.72 total interest.

 

I'll obviously bow to others' opinion as I haven't a clue about correct APR and that calculator may be wrong anyway.

 

I'm rubish with that kind of maths, which is why I generally leave it to the experts... law, yes, maths, no way.

 

 

As for the other issues;

The main issues are:

 

* correct amount on any default notice

 

That's an interesting one, as there are no statements showing what I have/haven't paid. The default notice also has the wrong dates for enforcement, it is dated 9 August 2005, but allows me until 26 July 2005 to remedy the breach.

Ha ha ha! yeah... they're not going to win their case with that one. In itself, it gives YOU a right of action:0 In a recent case, the judge awarded £1000, plus the amount of the default.

 

* correct amount on claim form

 

Again, no statements - I have checked my credit file which has the latest balance (updated by HFC on 04/09/07) as £3859 but the claim form is for £4992.49 plus £832.24 collection charge and minus £771 I've paid, totalling £5053.73.

 

I don't personally see how the amount on the claim form can possibly be correct, since the interest rate is 2.4% , and there are no collection charges / default charges listed on your credit agreement.

 

* penalty charges / collection charges.

 

With no statements, I couldn't say unless they reply to the S.A.R - (Subject Access Request).

With no statements, they have no reasonable chance of getting a court order, because they can't prove the amount of the debt.

 

 

 

 

 

I gave them addresses and account numbers in my initial request, but they wrote back wanting a copy of the Driving License or Passport and a signature on their standard SAR form.

 

this is rediculous... so, they know who you are, sufficient to issue a claim form, but they want to question your identity under a SAR.

..

[car2403]

Don't get me started tomterm! From going to the cowering puppy in the corner, I'm now a violently aggressive Rottweiler with a vicious bite! All thanks to CAG-ers like you...

 

I'm still working on that Defence, based on some constructed from Peterbard, so I need to include all these other issues too - just as well I have until 22/10/07 to submit it!

[car2403]

Ok, so I've looked in to the regulations on APR shown and here's what it says;

 

Permissible tolerances in disclosure of the APR

1A. For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is included in the document -

 

(1) a rate which exceed the APR by not more than one; or

 

(2) a rate which falls short of the APR by not more than 0.1; or

 

(3) in a case to which either of paragraphs 2 or 3 below applies, a rate determined in accordance with the paragraph or such of them as apply to that case.".

 

As the figures aren't that far out, I don't think the Court will have any of it? I may include this in the "Unfair relationship" argument to see if I can win them over, though.

 

Here's the latest version of the Defence, of parts I've taken from elsewhere on the forums;

 

Removed as it has been replaced later in the thread

 

Any thoughts?

[Goldlady]

The Default Notice supplied;

a. Is addressed to the Defendant’s current address – an address that the Claimant was not aware of at the date of issue of the Default Notice, (9 August 2005) the Defendant having moved to this address on 9 September 2005;

 

:eek:

[car2403]

As your doesn't have any tone, is that a good or a bad ?

 

[Goldlady]

Haha - it is a good:eek:. They have shot themselves in the foot somewhat was what I meant!!

[car2403]

Cool, because I was wondering what a "bad :eek:" could have meant... I've spent too long on this subject now that I'm getting paranoid! (P.S. - I live in the North East too, just 12 miles away from Newcastle! Fancy being a "Court buddy"? )

 

Post from Peterbard on the CCA thread re: the APR;

 

Hi Have i done this before

dejavu

 

Anyway

 

The agreement seemstto have all the prescribed terms the APR works out at 2.67% as i think has been mentioned beore the maximum that the TCC regulations alow for an agreement to be in error is .1%below the actual APR.

Got to be a bit careful here i have calculated the APR as if you started payng the loan back the month following the date the credit was given if you started paying earlier or later than this the APR will be different.

 

Having said that you can claim that the agrement is improperly executed under section 65 and also that the incorrect APR pedudiced your ability to make an informed puchasing desision and therfore by section 65 and 127(1)i ask for any appliction for an enforcement order to be thrown out.

 

I don't know the success rate of this but i have heard of people getting there agreement changed as the court as the right to do to the debtors benifit under this section.

 

Best regards

Petr

 

Interesting... (he says, stroking his chin in wonderment!)

[Goldlady]

Fancy being a "Court buddy"?

 

Up for it - have done it a few times:cool:. Suspect it might not get that far once you submit your defence but if it does I will give it my best shot for you.

[tomterm8]

 

 

As the figures aren't that far out, I don't think the Court will have any of it? I may include this in the "Unfair relationship" argument to see if I can win them over, though.

 

 

Any thoughts?

 

The unfair relationship test does NOT yet apply to credit agreements made before those sections of the consumer credit act 2006 came into force. It will next year.

[car2403]

Oh well, better rethink that part of the Defence in that case.

 

Just had a PM from Peter - the finance figures are right. (Or, at least they are only 0.02% out, which is within the 0.1% tolerance zone)

[car2403]

I've had a look at MoonHawk's thread about Next and it seems very similar to mine in parts - I especially like this from you tomterm and was wondering if I should use this in my case; (amended to fit my circumstances, of course)

 

http://www.consumeractiongroup.co.uk/forum/general/113490-next-directory-making-claim-2.html#post1167633

[car2403]

I was thinking along these lines;

 

Removed as it has been replaced later in the thread

 

I'm will also be away on 21st/22nd October, so I'll need to file this on 20th via MCOL or post it Special Delivery on that date to ensure I meet the 4pm deadline on the 22nd.

 

Any further help would be appreciated, ASAP...

[caro]

I'm trying to get someone knowledgeable on this to help you.

[tomterm8]

car2404 i personally wouldn't use the arguments I mentioned in the defence I wrote for moonhawk in this case. the cases are dissimilar, because next couldn't provide an agreement for Moonhawk, whereas you have an agreement.

[car2403]

This is the other one, that I was updating from earlier posts, in that case;

 

Removed as it has been replaced later in the thread

[car2403]

I've submitted a complaint to the ICO re: the DPA SAR failure to see if that will spur them on

[car2403]

Also submitted a complaint to the Financial Ombudsman Service for the other account that they've failed to provide an agreement at all for.

 

Still waiting on some feedback of the Defence, above, too...

[tomterm8]

With regard to your defence:

 

1) Why do you think this agreement is a cancellable agreement? you don't explain that in your argument and,

 

2) I would suggest issuing a counter claim. the grounds I would suggest would be unlawful termination and breach of the data protection act 1998.

[car2403]

1) Why do you think this agreement is a cancellable agreement? you don't explain that in your argument

 

I can't remember if I signed this after being sent the agreement by post and posting it back or if I signed it in their branch - it would be interesting to see if they have "evidence" that I signed it on their premises.

 

If it's non-cancellable I'll have to rely on my prejudice arguments.

 

2) I would suggest issuing a counter claim. the grounds I would suggest would be unlawful termination and breach of the data protection act 1998

 

I was thinking of counterclaiming, but I'd struggle to pay the Court fee at such short notice. (Don't think I'd qualify for assistance)