HFC issued court proceedings - Restons Collection Charge removed

[fuzzybrain]

Re: HFC issued court proceedings

Restons have now written back, i got the letter today and it says

Thank you for your letter dated 17th September 2009. We are prepared to agree the proposed terms of the Consent Order subject to the Land registry approving the voluntary legal Charge.

This will of course necessitate the Legal Charge being registered prior to a Consent order beign filed at the Court in conclusion of the proceedings. The only other alternative to this is that the Consent Order, as proposed, do be amended to provide for a judgement (as opposed to a Tomlin Order) which will then enable us to make formal application to the Court for a Charging Order.

I haven't got a clue what this means!!!

[Amethyst]

Re: HFC issued court proceedings

Restons have now written back, i got the letter today and it says

Thank you for your letter dated 17th September 2009. We are prepared to agree the proposed terms of the Consent Order subject to the Land registry approving the voluntary legal Charge.

This will of course necessitate the Legal Charge being registered prior to a Consent order beign filed at the Court in conclusion of the proceedings. The only other alternative to this is that the Consent Order, as proposed, do be amended to provide for a judgement (as opposed to a Tomlin Order) which will then enable us to make formal application to the Court for a Charging Order.

I haven't got a clue what this means!!!

Basically they mean yes, fill in the forms and we'll see if the land registry accept it. If they do then great, proceedings in court can be concluded with the submittal of the agreed consent order. It also means the charge will be placed on your home prior to submitting the consent order with the court. I would get a signed copy of the consent order first before returning the forms, just to cover your back.

If not then we'll have to go through court to make the land registry agree and the consent order will say in advance you agree this to be the case.

[fuzzybrain]

Re: HFC issued court proceedings

How do i get a signed copy of the consent order?

There was nothing included in with the letter.... Do i need to write back and ask them to sent a signed consent orde and i will sign it and return it with the charging forms???

[Amethyst]

Re: HFC issued court proceedings

that sounds like a good plan I do think you need a signed copy, they can add in subject to agreement of the land registry etc, before you allow them to apply for the legal charge.

[fuzzybrain]

Re: HFC issued court proceedings

How does this sound??

I thank you for your letter dated 25th September, the contents of which I none.

I require you to draft a Consent Order for agreement which is signed by yourselves that confirms:-

Providing that the land registry accepts the charge against xxxxxxxxxxxxxxxxx(address left in fuzzy) the following will apply:

The collection charge of £3550.09 will be removed from the outstanding balance

No further interest or charges will be applied to the account

A consent/Tomlin Order will be sent to the court in respect of claim number XXXXXXXXXXXXX Charging Order be placed on my property,


Repayments to the account are agreed at a rate of £150 per month and are subject to annual review.


Should the defendant default in the agreed instalments then the claimant would be entitled to apply to the court for judgement in default of the consent order.

Once I receive this I will return the completed forms.

I trust that this meets to your satisfaction and will be implemented without delay.

[fuzzybrain]

Re: HFC issued court proceedings

This is the defence that i entered with the AQ. I also stated on teh AQ that i wished to admit to the debt, minus the collection charge and the payments already made.

I, XXXXXXXXXXXXXXXXXXXXXXfollows:-

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)

[fuzzybrain]

Re: HFC issued court proceedings

ok, just spoke to restons and they have said that they will not send a consent order before the vol charge is registered on the property, nor will they ask for a stay until a decision is made whether the mortgage company will accept/allow a 2nd charge.

I haven't sent the forms back yet - i didn't like the idea of sending forms back unless i have a signed consent order from them. When I explained this they said it was the way it had to be and that they have agreed to the consent order and that shoudl be ok for me and that they won't go back on their word.


Apparently we have to get photos signed by a solicitor for the ID1 forms - whiich is goign to be awkward as i think hubby will start to wobble again about signing the forms if i mention to him about havign to see a solicitor.

They said they are asking for judgement on the 3rd Nov unless the CO is sorted by then,

Any suggestions what i should do?

[Amethyst]

Re: HFC issued court proceedings

ok the defence on the AQ is fine.

you do have in writing i suppose that they agree to the terms of the consent order, so if you still want to go that route, then yes I'd agree with them that that is enough to take it back into court if they do go back on anything.

If not then it will simply go ahead following judgment, and I expect they would only ask and get judgment on the same amount as in the consent order too although they may have the costs added on then too and of course you then get the ccj on top.

[fuzzybrain]

Re: HFC issued court proceedings

I phoned the court and the hearing is for 30 minutes and it is for the judge to decide how the case should proceed.

Its the issue of getting hubby to a solicitor to get the papers signed - i know if i mention he has to do this then erruptions will start again.

I know i'm going round in circles, i think the as i am going into hospital soon, the best thing is to leave things as they are (not send the forms back - haven't got time to go to a solicitor now anyhow!!) and attend the meeting on the 3rd Nov and let the judge decide.

If the issue of a vol CO is brought up then i will explain that my husband would not agree to sign the forms and that i had go into hospital and i couldn't talk him round in time.

Although we had a letter from them stating they agreed we wanted a signed order with the term laid out clearly from them and they were not prepaid to give this until a CO had been regsitered. Our explanation to the judge why we didn't sign the vol CO papers without a consent order was that HFC wrote to us telling us that thery were sympathic to our situation and wanted to work with us - next thing we hear from them is court papers, nothign in between. So we aren't likely to take them at face value that they will keep to their word and wanted it stated clearly it in writing

So what do i need to take to court with me???? Is it the following?

copy of my defence
copy of all payments made since Feb

Can you think of anything else i need to take?

[fuzzybrain]

Re: HFC issued court proceedings

Haven't signed the charging order forms (hubby refusing again) so hearing is definately going ahead on the 3rd Nov.

What do i need to get ready for Court? I am going into hospital on Friday, so need to get this sorted asap incase i'm not upto it after my surgery

[Amethyst]

Re: HFC issued court proceedings

Defence, Witness Statement and evidences of payments.

What do you have written so far ?

[fuzzybrain]

Re: HFC issued court proceedings

Ok having a panic now!! I haven't written anything?? Have i not done something i should have done - what should i have written??

I have the defence, which admits to owing a large amoutn if the debt and asks for a payment order for £150 per month. The defence also contests the collection charges

Defence also draws attention to the fact that payments have been made that were not taken off the balance prior to court papers being issues. I have a letter from restons stating this too...

Have done a spreadsheet of all payments made since on DMP, and have a statement from HFC upto Aug which shows all the payments on account from the start .

I was in court with Ju (re her nursery charge) on Fri and she had the same judge i will have. He was very fair and very nice, so i feel a lot easier about the court side of things, but I know that if i have everything orgainised and sorted to present to the judge then things will be a lot easier to explain and could help things go in my favour (i hope)

[Amethyst]

Re: HFC issued court proceedings

Cool, how did Ju get on ?


you have written something, the defence and you submitted that already with the aq didnt you.

So all you need to do is a witness statement backing that up, we did a draft a few pages back on here so will just need updating, then everything needs to go to the court.
Evidence of payments etc you really want to stick in an appendix to the WS and have your spreadsheet showing those as a summary.

Pop the WS up and we can help with it check you are all sorted.

[fuzzybrain]

Re: HFC issued court proceedings

WS attached - I'm a muddle but not if that makes sense... Do I need to draw refence to the Chargign Order business or just wait and see if it is raised at court and explain that hubby refused to sign papers.

I don't know if it makes a difference but the house is definately in neg equity as next door has just sold theirs so we now know what the value of ours definately is - with redemption charges etc we are about £20,000 in neg equity - is this worth mentioning??

Re Ju
Hearing was on Friday - they only mentioned this on Wednesday that they wanted help as they weren't initially going to go, but I told them they had to otherwised things could be very costly for them. I went with ju's hubby as Ju was too nervous to go. They got a CCJ for £423, payable at a rate of £15 per month, which was a lot better than what the company was asking for as they wanted to charge 30 days notice and keep the £300 deposit she paid. The jduge diod rip into the company a bit for trying to charge both as their T&C didn't make any reference to the fact they could do this, he also deducted a late charge of £35 that was applied - they didn't like that much either!!

He did allow £40 petrol expenses and of course court fees, but apart from that they didn't get any of the other expenses they wanted

The CCJ was less than the mediation service allowed for, so it was good result for Ju, especially as they offered £30 a month but the judge said £15 in case any emergencies cropped up. The other sidee were considerable unimpressed!!

[Amethyst]

Re: HFC issued court proceedings

Well thats good, well done you for going and encouraging ju hubby to go along, will be a weight off now and £15 a month isn't too bad is it. It does help going along with someone when it isnt your neck on the line in preperation for when it is, if you know what I mean.

i wouldnt mention the CO at all in the WS. Let them bring it up, they will probably say you have already agreed in principle to a CO and there isnt much you can say against it.

I expect you will get a installment order at your monthly payments rate of the admitted amount plus they will get permission to apply for CO tagged on the end.

Post up the WS and Defence and spreadsheet of payments when ur done. Then you can send it into the court and not worry about it till after the Op and the hearing date.