HFC issued court proceedings - Restons Collection Charge removed

[Amethyst]

Re: HFC issued court proceedings

This was my defence (2006 )- pretty simple but did what I wanted it to do (without a hearing even) Judge just agreed with me and rubberstamped it removing the collection charge and setting installments at my CCCS rate. Still had costs and he gave them permission to apply for CO.

DEFENCE

1.Save as is specifically admitted in this Defence – the Defendant denies each and every allegation set out in the particulars of Claim.

• It is admitted that the Defendant has an Affinity Loan Account with the Claimant numbered 00000xxxxxx

• It is admitted that the Defendant has an outstanding balance on the account to the value of £xxxx.xx, as detailed in the particulars of claim.

• The Defendant contests the amount of £1009.93, 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, 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.

• The Defendant has offered a reduced monthly payment, through the Consumer Credit Counselling Service, to the Claimant for repayment of this account. This offer was made to the Claimant on 22nd June 2006. This proposal included a full financial statement with regards the Defendant.

• The amount being paid to the Defendant each calendar month is £66.36.
  The first payment was made on 18th August 2006 and received by the Claimant on the 25th August 2006.

• The account was transferred to Restons Solicitors by the Claimant on the 10th August 2006.

• The Defendant contacted Restons Solicitors on the 14th August 2006 to discuss the repayment proposal. Restons Solicitors agreed to contact the Consumer Credit Counselling service to arrange the new payment instructions. The Consumer Credit Counselling Service have not received any communication from Restons Solicitors.

• The proposal for repayment was sent to Restons Solicitors by Consumer Credit Counselling Service on 14th August 2006.

• A breakdown of the Collection Charge applied by the Claimant was requested from Restons Solicitors. This request was refused and no breakdown has been received by the Defendant.

• A letter requesting information from the Claimant was sent to Restons Solicitors by Royal Mail Special Delivery on 30th August 2006. A copy of this letter will be presented to the court. A reply to this letter has not been received.

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

[fuzzybrain]

Re: HFC issued court proceedings

So I don't need to send the WT, but instead end a letter to Restons, asking for the breakdown on the collection charge (espeically as it's not mentioned on the statements and the balance is very different to that they are claiming in now owed and CC'ing the court into the letter

When do i amend my defence??

I'm not sure what to put in thel letter to Restons- can you help pleaseeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

[Amethyst]

Re: HFC issued court proceedings

Course, bonk curls to have a peek at the CCA I'll draft something up xx

[fuzzybrain]

Re: HFC issued court proceedings

Thanks, will do.

What abut a Tomlin Order - is that worth a shot???

[Amethyst]

Re: HFC issued court proceedings

Tomlin Order for what?

[fuzzybrain]

Re: HFC issued court proceedings

I was hoping that the judge might issue a Tomlin Order instead of a CCJ - or am i wishing on a cloud???

[Amethyst]

Re: HFC issued court proceedings

Judge's don't issue Tomlin orders...basically a tomlin order is an out of court agreement, lodged with the court, which puts proceedings on hold, if a party breaks the terms of the order then they can go back to court to enforce the terms. It would have to be in HFC's benefit to accept a tomlin order.

[fuzzybrain]

Re: HFC issued court proceedings

So unless I agree to accept the dept in full (including the collection Charge) then HFC are not likely to go for this are they........

Oh well back to a CCJ being granted then!!

So I guess to write a letter to restons asking for the info on the Collection charge and askign why the balance statement figure is£13879.82 and the amount they are claiming for is near just over £25,000?

Do I put in the letter that i dispute the charges they have applied to account (the late payment etc charges) as well as the collection charge??

[Amethyst]

Re: HFC issued court proceedings

Yep letter to Restons asking specifically for breakdown of collection charge.....and start a draft of the defence replacement. Charges will go in said defence too.

[fuzzybrain]

Re: HFC issued court proceedings

I have been looking through the statements and I haven't got a monkey's what is going on!!

Firstly there is the amount they are claiming for. Ii don't understand how they arrived at the amount owed
How the amount owed is made up

The DN dated on the 17th Feb states that £14386.94, plus the addition of £6909.40 - statutory refund of interest if i had settled the account making a total of £21.296.34.

>>>>>>>>>>>>BUT>>>>>>>>>>>>>>>

On the date mentioned on POC (24/03/2009) the payment history gives a balance of £13789.66, so even if I add the £6909.40 that makes £20699.06 - there is a difference of 597.28

>>>>>>>>>>>>>BUT>>>>>>>>

After adding up all the payments received and deducted them from the full loan amount (including the interest added for the entire loan at the beginning of the agreement) and the balance is £20.645.30 at the time they filed a claim at court, so there is a difference of £651.04, which I can only assume is charges????

Collection charge
What the collection charge is and how the collection charge is made up

I can't figure out is the charges etc. They are listed, but is doesn't seem to affect the balance - does this mean i have or haven't been charged for them???

[fuzzybrain]

Re: HFC issued court proceedings

Have composed a letter to HFC in request of the requirment for ID and proof of address - any thoughts or advice please???

Thank you for your letter dated the 5th May 2009, which I received on the 9th May 2009. the contents of which I have noted.

I am extremely surprised and confused to your response of “we require proof of your address and identity”. I would like to point out that you were more than happy to issue court papers to me at this address, so I can only assume that you were convinced of my identity and proof of address enough to do this, so fail to see why you need the extra identification now.

I request that the required information is sent to me without further delay, especially as this matter is now before the court.

Should the requested information not be forth coming, then I will have no alternative to bring this to the court’s attention and ask they resolve the matter.

I trust that you will treat this matter with the urgency it requires.


Yours faithfully

[fuzzybrain]

Re: HFC issued court proceedings

Have also had a go at a letter to Restons - any thoughts or advice is most welcomed!!

Dear
Thank you for letter dated the 8th May 2009, which I received on the 9th May 2009, the contents of which are noted.

You refer to a letter that I have “allegedly” received explaining your instructions, the account details and then balance owed. I explained during a telephone conversation with a member of your staff on the 20th April, that I have never received such a letter from you. The only correspondence I have received from you is the letter dated the 8th May 2009. A copy of this letter has never been sent either, despite it being requested from you during the telephone conversation. Without seeing a copy of the letter I can not confirm or deny its contents.

I am very disappointed and frustrated that you have not provided the required information requested by me under the CPR. Although I appreciate and that you for sending me a copy of the default notice and the credit agreement and payment history, the information is not enough for me to be able to understand the claim put before me. I have specially requested information in respect of the collection charge, this information has not been provided by yourself. There is also a discrepancy between the amount you claim is owed (and have put before the court) and the balance shown on the payment history, which I would like clarified please.

I have filed a defence with the court stating the above and I enclose a copy for your information. I also enclose a copy of my original request for information

I trust that you will be able to supply the required information, so that this matter can proceed quickly before the court.

I would appreciate your due diligence in this matter and await your rapid response

Defence entered
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 claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR.


3.
The claimants also failed to make any contact with the defendant prior to the commencement of court proceedings. HFC last communicated with the defendant via letter on the 10th March 2009, stating they were prepared to work with the defendant to resolve the matter amicably and hope to come to a mutual agreement in respect of reduced payments. (Appendix A). No further communication was received from HFC by the defendant until the arrival of court papers on the 18th April 2009.

4.
The defendant sent a CPR letter to the claimants on the 21st April via signed for 1st class post (which was delivered on the 23rd April 2009. A copy of this letter was also faxed to the claimants on the 21st April 2009 the claimant did not respond in any form to the defendant's request.


5.
A further letter was sent and faxed on the 29th April 2009 (Appendix D). At the time of submitting this defence the claimants have not responded in any form to the defendant's request.


6.
On the 27th April 2009 the defendant sent a SAR and CCA request to HFC via 1st Class signed for post. These were received on the 29th April 2009. At the time of submitting this defence HFC have not responded in any form to the defendant's request


7.
Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no reference to the date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information.


8.
Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.


9.
No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

10.
Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

11.
Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

[fuzzybrain]

Re: HFC issued court proceedings

Help please???

[Amethyst]

Re: HFC issued court proceedings

Hi Fuzzy

Have been tied up today but after school run is sorted will sit and go through this

Sorry hun

Ame
xx

[fuzzybrain]

Re: HFC issued court proceedings

Why are you saying sorry? You have absloutely nothing to be sorry about!!!

You have been an absolute angel towards me and I REALLY appreciate all the help you have/are giving me. Thank you :hug:thank you :hug:thank you!!!:hug:

I'm just being Mrs panic kinockers again!! - just slap me with a wet fish and tell me to behave!! :fish: