HFC issued court proceedings - Restons Collection Charge removed

[Amethyst]

Re: HFC issued court proceedings

okay - still carry on with the court side stuff too tho honey - don't trust them as far as you can throw em.

[fuzzybrain]

Re: HFC issued court proceedings

Absolutely - thanks

[fuzzybrain]

Re: HFC issued court proceedings

Ok, have just watched the dispatches programme - i didn't realise that they could shove an extra 8% interest on top per year if they get a CO - ouch!!!

Given that fact am i best off just getting a ccj and asking the court not to apply any additional charges/interest once CCJ is granted???

[fuzzybrain]

Re: HFC issued court proceedings

Have cobbled to gether a defence and submission to pay - any thoughts??



I am the DEFENDANT in this case.

I make this Witness Statement from information and facts within my own knowledge and which I believe to be true

The defendant had instructed Payplan (a national debt charity) to act on her behalf and they had submitted an Income and expenditure form, plus an offer of payment of £118 initially which then rose to £149.70 in April 2009 as the defendants disposable income increased. As far as the defendant or payplan are aware aware the claimant did not respond to the defendant offer with either an accetance nor rejection.

On 17/04/2009 the Claimant entered a claim number XXXXXXXXX against the Defendant for an outstanding debt totalling £25256.43

On 23rd April 2009 the defendant wrote to the claimant and their solicitors requesting details regarding all charges applied to her account, including the collection charge of £3550. The claimant has not responded in any manner to this request for information.

On 08/05/2009 the Defendant entered an embarrassed defence as the claimant had not provided the defendant with the required paperwork to either accept or deny the claim put before her

The Defendant has not received any of the requested details in regards to the charges and collection charge placed on her account. The defendant has also noticed that the claimant has not deducted her account balance with any payments made since the default notice was sent, despite multiple payments being made before the claim was issued

The Defendant respectfully asks the court to dismiss the collection charge of £3550 against the debt as the claimant has not right to request this no provision was made for this within the original agreement.

The defendant is willing to accept that a balance of £20,876.08 is outstanding and respectful requests the court to make a payment order of £150 per calendar month to the claimants until the debt is settled

The defendant also respectful asks the court to consider making an order to freeze all further interest and charges on this debt

The defendant is unable to make a forthwith payment as her current financial situation is increasingly difficult due to a drop in come from her self employment and also her husband’s income being reduced due to the withdrawal of overtime payments. The Defendant has other debts and essential expenditure and has entered into a voluntary debt management programme with her creditors under advice from Payplan

The Claimants Solictors notified the Defendant of their intention to apply for a Charging Order against her property at XX ADDRESS XXXXXXXXXXXXXXXXXXXX during a telephone concersation between the defendant and Restons solictors on the 17th July 2009

The Defendant is unwilling to accept this and feels the claimant is unfair in requesting a charging order as the defendant has made the reduced payments proposed on time without fail

This property is the defendant’s main and only residence and resides there with her husband and 2 children.

The property is in negative equity and the defendant has several other unsecured debts. The defendant feels that by granting the claimant a Charging Order they would gain unfair advantage on the other debtors

The Defendant is happy to review this figure with Payplan with a view to increasing it at 12 monthly intervals as her circumstances and financial position allow. The defendant has no intention on reneging on any of her debts and wished to settle this matter

A full current financial breakdown is attached to this statement

[fuzzybrain]

Re: HFC issued court proceedings

I have drafted a letter to restons - any thoughts???

Thank you for your recent letter.

Further to our telephone conversation recently held I am writing confirm and accept your offer of agreeing to dismiss the current legal proceedings against me and the removal of the collection charge added to the debt you in return for accepting a voluntary Charging Order on my property which will be repaid by a monthly repayment of £150 per calendar month. I also confirm that you agree not to add any further interest or charges to the debt.

The amount outstanding is £20, 876.08, which I propose to repay by £150 a calendar month via standing order. Please let me know what date you wish this to commence.

I enclose a copy of my income and expenditure and a full financial breakdown of my situation.

I also agree that Payplan will continue to administer my debt management plan and will review my financial situation on a 12 monthly basis and payments will be adjusted in accordance to this review.

[WendyB]

Re: HFC issued court proceedings

Would it be worth mentioning the telephone conversation with Restons in the WS?

[fuzzybrain]

Re: HFC issued court proceedings

What is the best course of action - to send a letter to restons agreeing to a vol CO -providing they drop the collection charge and agree not to apply any further interest and charges to the account

Or continue down the court route, get a CCJ and then fight the CO when it raises its head????

[fuzzybrain]

Re: HFC issued court proceedings

I have under a week to get this sorted, so I could really do with some help please -
I don't what what to do - what's the best course of action - Do I?


A
write to restons and agree to the vol CO, providing they dismiss court case, drop the collection charge, and stop all further charges and interest being applied to the account

OR

B
Carry on with the court case defend the collection charge but accept the debt and ask for a payment order and a judgement that will freeze all interest and charges i can afford and bat off any further action that might come my way?

Or

C
Do both of the above and make the letter without prejudice when sending it to restons???

[Amethyst]

Re: HFC issued court proceedings

Morning

Editing your bits and bobs now

[Amethyst]

Re: HFC issued court proceedings

Basically

A - Wont happen

B - Yes

C - doesnt hurt to make threm the offer you are making the court.

[Amethyst]

Re: HFC issued court proceedings

Okay Letter to Restons

Without Prejudice

Thank you for your recent letter.

Further to our telephone conversation recently held I am writing to confirm your offer to dismiss the current legal proceedings against me and the removal of the collection charge that has been added to the alledged debt. You have also agreed not to add any further interest or charges to the debt.

In return I agree to repay the sum of £20,876.08 by monthly installments of £150.00 and am willing to accept a voluntary Charging Order over my property (ADDRESS) to secure the debtduring the repayment period.

I enclose a copy of my income and expenditure and a full financial breakdown of my situation.

Payplan will continue to administer my debt management plan and will review my financial situation on a 12 monthly basis and payments will be redetermined, with your agreement, in accordance with this review.

Please confirm all details in writing by XX July 2009 and provide evidence of your discontinuance of the claim in the county court.

For your information I have submitted a formal defence, admission, offer to pay and allocation questionnaire to the county court on XXDATEXX in the event you decide to proceed with this action.

i dont think they will - but same outcome if they agree but get the ccj anyway as if you go through the courjust less safe (IMO).

[Amethyst]

Re: HFC issued court proceedings

Right DEFENCE. (you did a WS which we'll work on if its needed later for the hearing and the parts on the charge order will come when / if restons apply as there is another hearing to deal with that - courts dont like putting on final COs unless you have missed ordered installments) Look at post #81 - have amended Para 4 on this bit. Rest stands as in post #81 (ie need to do the N244)

In court restons havent asked for a CO - just repayment of the debt so I dont think, as you dont really want the CO, theres any benefit in this case in preempting that.

1: The Defendant denies each and every allegation in the Claimant's Particulars of Claim save as where specifically admitted.

2: It is admitted that the Defendant opened an personal Loan Account with the Claimant on 30/08/2007 numbered 00000xxxxxx.

3: The Defendant fell into financial difficulty on or around 24/12/2008 as her partners income was reduced by his employers withdrawing overtime payments due to the current economic climate. The defendant's self employed income also was reduced.

4. On 23rd February 2009 the Defendant offered a reduced monthly payment of £118.99, through Payplan as part of a Debt Management Plan, to the Claimant for repayment of this account.

5: A letter was received from the claimant on the 10th March 2009 stating that the claimant had been contacted by Payplan regarding the defendant’s payment difficulties and that they would liaise with Payplan to reach an amicable payment schedule.

6. The Claimant instructed Payplan (a national debt charity) to act on her behalf and they had submitted an Income and expenditure form, plus an offer of payment of £118 initially which then rose to £149.70 in April 2009 as the defendants disposable income increased. As far as the defendant or payplan are aware aware the claimant did not respond to the defendant offer with either an accetance nor rejection.

7: No admissions are made as to the amounts claimed by the Claimants, and the Claimant is put to strict proof of the same.

8. On the 18th April 2009 the Defendant received court papers from the claimant. Neither the Defendant nor Payplan had received any prior communication regarding court proceedings from either HFC or Restons contrary to the pre-action protocols.

9. The Defendant contests the amount of £3550.09, the ‘Collection Charge’ as entered in the particulars of claim by the Claimant.

• The Collection charge is a disproportionate penalty and therefore unenforceable as it is contrary to common law.
• Further, there is no provision in the original agreement allowing the Claimant to apply such a charge.
• Altervatively, as a disproportionate penalty, it is invalid under the Unfair (Contracts) Terms Act 1977 s.4 and under the Unfair Terms in Consumer Contracts Regulations 1999 Para 8. and sch.2(1)(e).
• In the event the Collection Charge is not a disproportionate penalty then it is unreasonable within the meaning of the Supply of Goods and Services Act 1982 s.15.
• The Defendant has repeatedly asked the Claimant to give a breakdown of this charge in order to justify the amount but they have declined to do so.

10. The Defendant asks for relief from interest and charges and for payments to be set by the court at £150.00 per calendar month. The Defendants financial statement is attached (APPENDIX C)

[Amethyst]

Re: HFC issued court proceedings

Then the AQ which you havent really discussed ?

With the letter to restons as well as the amended defence I really dont think theres anything you need to put in it barring moving to local court if needed.

[fuzzybrain]

Re: HFC issued court proceedings

Thank you, thank you, thank you, thank you , thank you, thank you, thank you, thank you, thank you!!!

I've been so worried about all of this!

Right my sensible head is on and i'm ready for action!!

Letter has been printed and i will fax to restons when I get to work and send a hard copy through post.

The AQ has come from my local court - do I need to do a witness stateent with it at all???


Have copied the defence and will send that to the court asap, do i download the form and send it back to my local court with the fee inclosed? Can i send the AQ back at the same time?

Is there anything else i should be doing?

Thank you sooooooooooo much for all your wonderful help, i really do appreicate it.

Thanks you

[Amethyst]

Re: HFC issued court proceedings

Letter has been printed and i will fax to restons when I get to work and send a hard copy through post.

The AQ has come from my local court - do I need to do a witness statement with it at all???
Nope just the AQ keep it simple

Have copied the defence and will send that to the court asap, do i download the form and send it back to my local court with the fee inclosed? Can i send the AQ back at the same time? Yes and Yes


Is there anything else i should be doing? Nope, just carry on paying the £150

no worries.