help needed please - application form as CCA sec 77 ?

[hellhasnofury]

Thanks to everybody for their friendship and support

Hello,

I have received a court summons from hfc today. I am in a state of shock and don't know what to do

I was just about to send a letter of complaint to hfc regarding the harrassment calls.

They have sent me a copy of a credit application form which I cannot read as it is so blurred. Can't see if it contains all of the prescibed terms etc.

The have also defaulted on the S.A.R - (Subject Access Request).

Who do I now write to regarding these. hfc or restons or both. I do feel that they are not going to be helpful now.

Please advise, I am truely at a loss

[Amethyst]

Hiya Hell

I'm so glad to have got hold of you. I received your original post in my email subscriptions today.


Okay....firstly don't panic or worry or anything


Can you type out the Particulars of Claim from their N1 form. What dates you have to respond by etc. As I remember you were aware this was coming and the CCA request and SAR you got in so you were ready for the claim. If theres anything on your thread on CAG may help let me know on here or by PM/

Don't write to anyone yet.

We will write a defence/admission, well you will I might try and help you a bit

Give me the background, and the POC/Dates of the claim and we'll go from there.

I've been there, Ashley will help you out too, so try not to worry.


Oh and re the CCA form just keep hold of it for the mo - if you have a scanner or anything it would be handy to see it but I wouldnt expect anything to be wrong with it. The T&C with it should mention the collection charge % for defaulted accounts which would be handy to see for wording the defence.

[hellhasnofury]

Hiya Hell

I'm so glad to have got hold of you. I received your original post in my email subscriptions today.


Okay....firstly don't panic or worry or anything


Can you type out the Particulars of Claim from their N1 form. What dates you have to respond by etc. As I remember you were aware this was coming and the CCA request and SAR you got in so you were ready for the claim. If theres anything on your thread on CAG may help let me know on here or by PM/

Don't write to anyone yet.

We will write a defence/admission, well you will I might try and help you a bit

Give me the background, and the POC/Dates of the claim and we'll go from there.

I've been there, Ashley will help you out too, so try not to worry.


Oh and re the CCA form just keep hold of it for the mo - if you have a scanner or anything it would be handy to see it but I wouldnt expect anything to be wrong with it. The T&C with it should mention the collection charge % for defaulted accounts which would be handy to see for wording the defence.

Hello Amethyst,

Many thanks, truely grateful,

I have tried to download a copy of the ca, but my computor won't have, so maybe I could e-mail it to you.

The story goes, I have been picking through my creditors one by one and unfortunately for me hfc was the last. Last year the pooh hit the fan and I found myself up pooh alley, owing a few creditors a lot of money. I approached payplan and set up a debt management plan to pay of my debts for the rest of my life. I have made regular payments of £43.84 every month, and never defaulted on my agreement.

Out of the blue a couple of weeks ago hfc rang and asked me to pay more money. I told them I could not give them anymore. I owned them £8,248.01 They told me that they would apply to the courts to put a charging order on my house.

I then sent a sar and a ca request.

I then get a letter from restons solicitors demanding that I pay them £9,743.61. This includes a collection charge £1,374.66 in five days.

I have contacted payplan and they told me not to worry. HELLO!!!!!

I received the ca, but have not received the sar which they are now in default.

I then received the court sumons yesterday

POC

The Claimant claims payment of the overdue balance due form the Defendant under a contract dated on or about the 13/11/2002 in the sum of £9743.61 inclusive of the interest to the date of this summons at 19.8% per annum from 20/04/07 to 22/05/2007.

Particulars ac no xxxxxxxxxxxxx

Date Item Value

20/04/207 Default balance 8246.01
20/04/2007 Collection Charge 1374.60
15/05/2007 Post refrl cr -43.84

15/05/2007 0.00

22/05/2007 Interest 166.84
TOTAL £9,743.61

Together with:-
interest pursuant to contract at the rate of 519.51 pence per day
to the date of judgement or sooner payment.

Amount chaimed
court fee 240.00
Solicitor's cost 100

[Amethyst]

Thanks Hel.

I'll be back after the school run - have pm'd you my email addy

You can defend the ''collection charge'' on the same basis as the penalty charges.

Most likely outcome of this is you'll get a ccj for 8500 ish and be ordered to pay at £ 43 a month as you do currently.

Do you own your house ?

[Amethyst]

Thanks for sending the ''agreement''

I have asked a couple questions in the CCA forum on your behalf. If anything comes up over the road' regarding it can you let me know.

Also over there have a read of Kotum's thread - search on HFC restons....I think we did a very similar defence for him that you would be looking at for this.

Defend on the lack of CCA agreement, and in the alternative defend the additional charges.

[Amethyst]

Hi Hell

This is the defence I used in my case.

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.

[Amethyst]

also just popping this here - once we work out where we are with the CCA request and Application form....

Quote:

1. This Defence is filed and served without prejudice to the right of the Defendant to
apply for summary judgment in respect of and/or to strike out the Particulars of Claim.

2. The Defendant on the 12th January 2006 wrote to the claimant to request a copy of the original copy of the credit agreement (enclosed D1).

3. This has not been sent

4. Under the Consumer Credit Act 1974 (Sections 77−79) the defendant was entitled to receive a copy of their credit agreement on request.

5. The Consumer Credit Act 1974 (Sections 77−79) state clearly that the claimant had 12 days to supply this, and if not supplied the agreement becomes unenforceable. (( WE MAY NEED TO QUOTE SECTION THAT SPECIFIES THE DAYS ))

6. Failure to comply with Consumer Credit Act regulations is fatal to the claimants claim.

7. The Defendant invites the Claimant to remedy the above by supplying a copy of the original credit agreement. In the event that the Claimant fails to do so within 14 days of the service of the Defence then the Defendant will apply to the Court for an Order striking out the Particulars of Claim.

8. The Defendant reserves the right to plead further to the Particulars of Claim once and if the Claimant produces the ornaginal agreement. In the meantime, it is denied that the Claimant is entitled to the relief claimed or any relief whether as pleaded or at all.

[hellhasnofury]

Hello Amythst,

Should I be writing to restons for a breakdown of the collection charge and costs etc

[Amethyst]

Morning Hel

Can't hurt and helps your case.... you wont get a reply - I tried a part 18 request on HFC to get that information and got nothing.

Costs are standard so even though they shouldnt have bought the claim really, they are just gaining the security of repayment through the court - so you do just have to swallow these..

So ask what the collection charge is, ask if its a charge for defaulting you account , and where the contractual term is that permits them to apply it and at what rate, how is that justified in relation to their costs etc etc. I would also include in the letter reference to the CCA request not being fulfilled.


Won't hurt then to attach a copy to your defence when you do that.

Get the claim acknowledged now - do it online with intent to defend
- you'll need the reference number off the front of the claim form. Just to get it out the way really and ensure you have the 28 days from service to do the defence.


hope this helps a bit....sorry probably rambling on a sunday morning

[hellhasnofury]

Morning Hel

Can't hurt and helps your case.... you wont get a reply - I tried a part 18 request on HFC to get that information and got nothing.

Costs are standard so even though they shouldnt have bought the claim really, they are just gaining the security of repayment through the court - so you do just have to swallow these..

So ask what the collection charge is, ask if its a charge for defaulting you account , and where the contractual term is that permits them to apply it and at what rate, how is that justified in relation to their costs etc etc. I would also include in the letter reference to the CCA request not being fulfilled.


Won't hurt then to attach a copy to your defence when you do that.

Get the claim acknowledged now - do it online with intent to defend
- you'll need the reference number off the front of the claim form. Just to get it out the way really and ensure you have the 28 days from service to do the defence.


hope this helps a bit....sorry probably rambling on a sunday morning

Hello Amethyst.

Thank you for being so helpful, the last post has pointed me in the right direction.

Sorry I probably am a bit dense, but up until now I have only issed summons I have not been on the receiving end So I go mcol and enter that I will be defending the case. Then do I have 28days to put in my defence to the court?

I now write to restons asking for a breakdown of the collection charge and ask them for a true copy of the excuted agreement. Do I mention that I have received a illedgible copy of an application form and that I will be couter claiming for penalty charges (probably only about £100, but mine nevertheless)

If this credit agreement ? application form is deemed invalid, can I not claim back all of the interest I have paid them over the years.

Thanks

[Amethyst]

Its okay - it scary being on the other side isnt it, although having made a claim already you feel a little more confident about using the court process. Theres no need just to roll over and take it.

So yes - acknowledge on MCOL now - wiht intent to defend all of the claim. You have 28 days from SERVICE of the claim on you to defend, regardless of when in the first 14 days you get the acknowlegement in - so may as well do it now so you dont have to think about that bit anymore.


Write to restons...yes to counterclaiming. Do you have the actual balance owed without the charges on ?

Re the CCA - I have asked in the CCA forum but its not hugely populated yet - I'll ask a couple people privately what their opinion is, basically they need a court order to enforce the debt which is what thye are trying to do. No credit agreement is an absolute defence but we need to be 100% on rules re application forms.

Illegible isnt really a defence - I could read it well enough on the scan, and dont forget HFc will have the original if they sent you a copy. So I'd forget that part. The bit we need to concentrate on is the prescribed terms for running credit agreements - which I'm going to dig out now.

Re the interest - hmmmmm - I'd say no just be happy to have the debt written off - but it is quite unlikely even that will happen.

Be back in a while once ihave had a read of the CCA notes.

[hellhasnofury]

Hello Amethyst,

Have been on MCOL and enter an aknowledgement of service and stated that I intend to defend the claim. (Oh s**t). About to write the letter to restons????They will probabley not response as you have stated, but I will have a go., If you don't try, you will never know.

Again thanks for your help advise and support. Hope to hear from you soon.

[Amethyst]

Wicked ! Good luck hun. Get that letter off we'll spend a couple days working out the CCA stuff then get your defence started

[hellhasnofury]

Hello all,

Been busy trying to write this letter to restons solicitors, but not getting anywhere fast. I have asked for the breakdown of the collection charge and under what contractual terms is has been applied. I have further asked to a true copy of the credit agreement and not a pre-contractual application form.

I have also been looking at OFT debt collection guidence and they have certainly not followed that. I did ring the oft today and they did seem a little interested and took details and gave me a ref no and told me that ts would contact me in a few days. (Wait in anticipation for that one). The lovely guy at the oft did give me a number for the national debtline and they where really good.

They stated application not acceptable unless it has all of the prescribed terms and wished me luck in my fight. She said these companies have got to bit for their boots

Anyway back to reading the cca for bits to put in my letter

Any thoughs or advice greatly appreciated

[hellhasnofury]

I have tried to get this application ?agreement on site fingers crossed