HFC issued court proceedings - Restons Collection Charge removed

[fuzzybrain]

Re: HFC issued court proceedings

When the word costs comes up - I worry!!! It's what i do best!! next to eating chocolate!

Thank you very much for your help, it is very much appreciated indeed

[Amethyst]

Re: HFC issued court proceedings

These might calm you

y tried to charge me £1500 for a collection fee which i objected to with recorded delivery letters requesting a detailed breakdown of this charge to both HFC and Restons.
They never responded to my letters but when i got to court they had written to the judge advising him that they had withdrawn the collection charge-how generous!!
They still got their CCJ and Charging order.

I,ve done battle with Restons/HFC. I objected to the £1600ish collection charge in my defence submission. Before the court date they withdrew it. They didn't try to charge interest before the court date. They got the CCJ

Just have a google on Restons Collection charge - comes up with loads been removed before/in court.

They get away with it cause CAB, Paypal and CCCS say you have to accept anything they throw at you.

If you want help with that letter for info (I sent a letter as well as the formal info request) then yell.


you will, most likely, get 21k CCJ then go on to get charge order and installment order of £116 (cause u'll ask for it). So keep paying that.

Unless theres absolutely sod all from restons/hfc like the cca, in which case we do a holding defence then a strike off request.

[fuzzybrain]

Re: HFC issued court proceedings

Ok. Will get the letter off tomorrow and see what happens, although i dobut there is much to get back.

I guess i need to do an admission for the £21k and a defence for the collection charge by the 8th May (i've allowed an extra couple of days to ensure everything is done in time)

Restons didn't indicate on the phone that they were going for a charging order - i did ask what their intentions wereshould they get a CCJ. he said no further instructions had been received from their client regarding further matters - so I guess they are keeping the charging order request quiet at the moment.

If they get a CO does that mean as long as we pay the instalments on time then they can't do anything with it? I guess at least this way we get the CJJ out of the way early and they can't shove any more charges or interest on the debt - so it's a good thing???

[Amethyst]

Re: HFC issued court proceedings

Ok. Will get the letter off tomorrow and see what happens, although i dobut there is much to get back.

I guess i need to do an admission for the £21k and a defence for the collection charge by the 8th May (i've allowed an extra couple of days to ensure everything is done in time)

Good plan. Give them 7 days. I doubt you will hear from them at all tbh. Make sure you dispute the collection charge in the covering letter and ask for a breakdown in the request for info.

Restons didn't indicate on the phone that they were going for a charging order - i did ask what their intentions wereshould they get a CCJ. he said no further instructions had been received from their client regarding further matters - so I guess they are keeping the charging order request quiet at the moment.

Aye thats the usual routine....don't worry about the CO till anything happens. If you get installments ordered then so long as you keep paying those yes they can't try for a sale order.

If they get a CO does that mean as long as we pay the instalments on time then they can't do anything with it? I guess at least this way we get the CJJ out of the way early and they can't shove any more charges or interest on the debt - so it's a good thing???

They can continue to charge interest - it will be a clause in the credit agreement T&C's although that clause is arguable..will look some bits up for you - we can ask the judge to order a halt on interest anyways.

[fuzzybrain]

Re: HFC issued court proceedings

Letters have been set 1st class signed for and I have also faxed a copy to restons (apparently HFC have removed all their fax machines!!)

I guess its a case of wait and see now.......

[Amethyst]

Re: HFC issued court proceedings

Well done and try not to worry. you already know the outcome, its just box ticking

[fuzzybrain]

Re: HFC issued court proceedings

Thanks for all the help. i have had a read round about Restons and know that they are not particularly a shining example of good practice as far as reasonable behaviour is concerned!!

I guess I need to work on a defence - which i have been having a think about, however i'm guess there will be about £100-£200 worth of charges added to the total, so until i get a statement there is no way of knowing what the actual amount is. I guess I will be defending against these?

[fuzzybrain]

Re: HFC issued court proceedings

Right - the letters have been received, so that's one job done.

I have been reading anything and everything I can about CCJ and Charging Orders and it seems that Restons have completely jumped the gun. They should have tried to make contact with me and they didn't. It also says on OFT guidance that they should only appply for a CO if a payment plan has failed - clearly this isn't the case as they haven't given me a chance to set on up.

I have the letter from HFC dated 10th March that states they want to work with Payplan to sort this out, but then handed it over to solicitors with no notice!!

I have also read something about Tomlin Orders - although I'm not copletely sure what they are. As far as i understand they are a suspneded CCJ - if you default on the payment plan then the CCJ become active immediately - is this right and woudl it be worth considering going for? Would a Judge consider it?

Have finally got the hang of scanning so have posted the contract (which was the orginial one i had from the company) default notice and POC.

Also we have paid off our mortgage arrears (yippee!!) so I have upped my DMP so the amount HFC get now is a little over £148 a month (contractual payment is £366) which means the debt would be cleared in 12 years

[Amethyst]

Re: HFC issued court proceedings

All that about contact etc will go in the defence. If you make a list of the letters with dates that you think will be useful and have available to include in the appendix then we can put the in the defence to show the disregard of process, or to ask for the claim to be struck out.

Tomlin orders are usually used as an agreement between the parties without going to judgment. Then if the terms of the Tomlin order are broken the case carries on to judgment.

Will read through your documents

[fuzzybrain]

Re: HFC issued court proceedings

Thank you so much for helping me. Will type up a chronology of events over the weekend and post that up when done. One of the letters states without prejudice - should I include that (it's one that refers to them working amicably with me to resolve my financial difficulties)

[fuzzybrain]

Re: HFC issued court proceedings

I've just found this on Charging orders, so am sticking the link here to remind me as I think it could be useful if Reston's try to go for a CO.

http://www.nationaldebtline.co.uk/en...e_county_court

[fuzzybrain]

Re: HFC issued court proceedings

Well a week has passed and I've heard nothign from either Restons or HFC.

What do I need to do next - send them a chasign letter (so to make sure my back is covered)

[Amethyst]

Re: HFC issued court proceedings

okely dokely will be a put up or shut up holding defence then will get an example for you.

[Amethyst]

Re: HFC issued court proceedings

Will need a lot of amendment but its a start (its from zanzibhar over the road) there is a shorter version on here but poo'd if I can find it right now. Anyway gives you the general idea. Personally i;d remove the CCA bits and stick with the CPR.

In the Northampton County Court
Claim Number: xxxxx

Between

HFC Bank Limited - Claimant

And

Fuzzybrain - Defendant

Defence

1. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.
   
   
   
2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present. The Claimants’ particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the Claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard the Defendant wishes to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the Claimant calculated any outstanding sums due, or any default notices issued or any Notice of Assignment required for the Claimant to have a legitimate right of action for the purported debt or any other matters necessary to substantiate the Claimant’s claim.

b) A copy of the purported written agreement that the Claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

4. Consequently, the Defendant denies all allegations on the particulars of claim and do not know what case the Defendant have to meet.

5. In respect of that which is denied, on xxxxxxxx the Defendant requested that the Claimant provide a true copy of the executed credit agreement, which they claim exists between parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the Claimant must comply with such request in 12 working days of receipt of such request.

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

s78 (6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.


7. It is drawn to the courts attention that the Claimant has failed to comply with the Defendant’s request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the Claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the Defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 the Defendant denies that the Defendant is liable to the Claimant and put the Claimant to strict proof that such enforceable agreement between parties exists

9. Further to the case, in an attempt to ascertain what grounds the Claimant is bringing this action and to allow the Defendant to prepare her defence the Defendant requested on 03/01/2008 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the Claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by the Defendant and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the Claimant a legitimate right of action.

10. To date the Claimant has ignored the Defendant’s request under the CPR and the Defendant has not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

11. The courts attention is drawn to the fact the Claimant has failed to comply with CPR part 16 and Practice Direction 16 in-so- far as they have failed to attach the written agreement they are basing this action on to the particulars of claim as required by the civil procedure rules. Therefore the Defendant believes that the Defendant is entitled to ask the Claimant to supply the Defendant with the requested documents

12. The courts attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules the Defendant have not yet had the opportunity to assess if the documentation the Claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 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

13. The courts attention is also drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 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

14.The Defendant refers 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.”

15. Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

16. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

17. Notwithstanding point 15, the Defendant put the Claimant to strict proof that any default notice sent to me was valid. The Defendant 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)

18. 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 a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give the Defendant a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

19. Without Disclosure of the relevant requested documentation, the Defendant is unable to asses if the Defendant is indeed liable to the Claimant, nor is the Defendant able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

20. In view of the matters pleaded above, the Defendant respectfully request that the court gives consideration to whether the Claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16 and Practice Direction 16.

21. Alternatively if the court decides not to strike out the Claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules

22. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines the Defendant believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

23. The Defendant respectfully ask the permission of the court to amend this defence when the Claimant provides full disclosure of the requested documents




Statement of Truth


The Defendant believes the above statement to be true and factual


Signed …………………

[fuzzybrain]

Re: HFC issued court proceedings

Thank you so so much for this. All i need to do now is understand it!! I'm sure once I have read it 100 times I might get to grips with it!!

I have also sent the company a CCA request and SAR (just incase they try pulling any "additional" documents out of the bag, plus I want to see how much of the claim was made up of charges etc, plus a chasing letter for the info.

This was delivered to them today - do I need to enter that info in anywhere

Also do i need to mention that no LBA was sent - in fact the last letter I received from HFC was to tell me that would happily deal with payplan and hoped to come to an amicable agreement (although that letter is marked Without Prejudice)