HELP. In Court vs Varde Investments/Hegarty LLP

[QCKate]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Could someone else please confirm for Heph that a 2006 CCA can only be enforced in court if the lender can produce an agreement which has been SIGNED by BOTH parties as my post earlier today.

I think that no longer applies for agreements from 2007 onwards.

QCK

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
It wouldn't seem right if there wasn't one more final twist to this saga. After my near court appearance on Monday 25th, and being instructed by the judge to email Hegarty. I left the court room along with the other solicitor and she took me to a side room where she rang Hegarty and confirmed their email address and informed them of the Judges orders. I have since emailed the relevant stuff to Hegarty and assume the court has faxed them too. I got home from work today and had two letters waiting for me, one from the Judge who was in charge on Monday stating his order to hear the case Friday and the other was from Aktiv. This included a notice of change of solicitor in which they state that "Hegarty have ceased to represent Aktiv and he will now be representing himself". It is dated the 23rd! But we spoke to Hegarty from the court on the 25th and they said nothing. The letter also stated that all parties had been informed, however, when I contacted the court to see what they thought of it they knew nothing and said they had recieved no notification. I have sent a copy of AK letter to the court and also rang the number on the AK letter as they state " Should you have any queries do not hesitate to contact us"
Who should answer the phone but our old friends IND. All I could blurt out was "Oh No, Not you lot again!"
(ever the diplomat!!). When I asked them what was happening as this number was on an AK letter they told me not to concern myself and they they were in charge again. Also any emails and faxes sent to Hegarty by me or the court would go straight to them! I thought for a moment after reading their letter I was going to actually meet Mr Aktiv in the flesh! but maybe not.

Will post what happens on Friday. Am still on wifes pc so am having a lot less internet time.

Big thanks to Kate for quoting those sections of the CCA for me, reading those didn't half lift my spirits as was getting a bit stressed out today and was starting to wonder if I was doing the right thing. The amount of to-ing and fro-ing that Varde, IND, Hegarty and AK have been up to leads me to believe that I must have a chance tho. I'm glad I've already gone bald or I would be grey by now!!

Thanks everyone.

Heph.

[QCKate]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
The case has been adjourned till Friday. They gonna hear it immediately before my main case. Hegarty are the solicitors I am up against despite them telling me they were not involved anymore. They had someone who works in the court I attended to ask for an adjournmant as they had not recieved anything from the court. The judge was the same one who granted the sale to AK and also noted my objection. He said to me that secion 28 and 29 of the CCA stated nothing about licence assignment being barred from one company to another and I had to agree with him. It don't look too good for my case and I am basically going to have to rely on the lack of a signed credit agreement as my defence to just about everything.
I have to email stuff to Hegarty but my PC has decided yesterday morning to stop working! bad timing or what? am using my wifes notepad thing and am going to cut and paste my letters from this site as otherwise I would be in a bit of a pickle.
If anyone knows the relevant CCA sections I can reel off in court I would be eternally grateful. I can't seem to find them.
It will all be over Friday though, one way or another.

Cheers.
Heph.

How frustrating Heph. Isnt the agreement from 2006?? If so I thought the lack of a signed agreement was all you needed as a defence and the court has no choice but to find in your favour. They HAVE TO provide a signed copy - signed by YOU and by THEM. These are what I thought were the sections that apply.

I hope this is right and wish you all good fortune on Friday.


The Claimant is prevented from obtaining an enforcement order pursuant to s127(3) of the Consumer Credit Act 1974:
“The Court shall not make an enforcement order under s65(1) if section 61(1) (a) signing of agreements was not complied with unless a document (whether or not in the prescribed form) and complying with regulations under s(60) (1) itself containing all the prescribed terms of the agreement was signed by the debtor (whether or not in the prescribed manner)”



Further or alternatively, the Claimant is prevented from obtaining an enforcement order pursuant to s127(4) (a) of the Consumer Credit Act 1974:

“The Court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if –

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of proceedings in which the order is sought, or
(b) section 64(1) was not complied with.

QCK

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
The case has been adjourned till Friday. They gonna hear it immediately before my main case. Hegarty are the solicitors I am up against despite them telling me they were not involved anymore. They had someone who works in the court I attended to ask for an adjournmant as they had not recieved anything from the court. The judge was the same one who granted the sale to AK and also noted my objection. He said to me that secion 28 and 29 of the CCA stated nothing about licence assignment being barred from one company to another and I had to agree with him. It don't look too good for my case and I am basically going to have to rely on the lack of a signed credit agreement as my defence to just about everything.
I have to email stuff to Hegarty but my PC has decided yesterday morning to stop working! bad timing or what? am using my wifes notepad thing and am going to cut and paste my letters from this site as otherwise I would be in a bit of a pickle.
If anyone knows the relevant CCA sections I can reel off in court I would be eternally grateful. I can't seem to find them.
It will all be over Friday though, one way or another.

Cheers.
Heph.

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi again Hep

Last time i was in the small claims court (I took a building company to court to force them to comply with the planning consents they had been granted, and tried to wriggle out of), i informed the Judge at the outset that i was by no means an "expert" and apologized in advance if i made any mistakes. Perhaps i just got lucky with the Judge but he looked after me really well after that and ripped the defendants solicitor to pieces. I almost felt sorry for the poor guy at the end.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Added these two little snippets for good measure. Have slotted then in nicely in my real letter but have just pasted them in here on their own.

1. Taken from The Office of Fair Trading website “It is important that you renew your licence before it expires. Once a licence has lapsed it can not be renewed. You will need to apply for a new licence. Trading in credit activities without a licence is a criminal offence, (OFT)” This reaffirms Vardes need to be reassigned this debt/account after their licence lapsed.
2. Varde require a high risk Category F licence from The Office of FairTrading to conduct Debt collecting but they only have a low risk Category A.

Cheers
Heph

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Am going to submit the following letter to the court upon my arrival. I intend to read it out in the hearing but will file a copy just in case they get arsey about it.

1. Varde have still failed to supply a true signed copy of the original credit agreement. This breaches the Consumer Credit Act 1974 ( section 77/78).
2. Vardes original licence lists Debt Recovery but their new one does not. Therefore they are unable to partake in debt recovery actions.
3. Currently, a credit agreement is regulated by the Consumer Credit Act 1974 where (a) the borrower is or includes an individual, (b) the amount of ‘‘credit’’ as defined in the ConsumerCredit Act 1974 does not exceed the financial limit, which is £25,000 for credit agreements made on or after 1 May1998 and lower amounts for credit agreements made before that date and (c) the credit agreement is not an exempt agreement under the Consumer Credit Act 1974.A vast majority of the credit card transactions which occur on a designated account have or will have a credit limit of an amount up to £25,000.Accordingly, the Consumer Credit Act 1974 applies to the transactions occurring on the designated accounts and, in whole or in part, to the credit card agreements.
Any credit card agreement that is wholly or partly regulated by the Consumer CreditAct 1974 or treated as such has to comply with requirements under the Consumer Credit Act 1974 as to licensing of lenders and brokers, documentation and procedures of credit card agreements and (in so far as applicable) pare-contract disclosure. If it does not comply with those requirements, then to the extent that the credit card agreement is regulated by the Consumer Credit Act 1974 or treated as such, it is unenforceable against the borrower,
(a) without an order of the Office Of FairTrading, if the lender or any broker does not hold the required licence at the relevant time,
(b) totally, if the form to be signed by the borrower is not signed by the borrower personally or omits or mis-states a ‘‘prescribed term’’ , or
(c) Without a court order in other cases.
If a credit card agreement related to a designated account has not been executed or modified in accordance with the provisions of the Consumer Credit Act 1974 and is completely unenforceable as a result, the principal receivables arising thereon will be treated as ineligible receivables.
The above highlighted in red demonstrates that this account/debt is totally unenforceable as
A) Varde do not hold the correct Consumer Credit Licence and
B) Varde are unable to provide a signed copy of the credit agreement. This also renders the Card Receivables which have been sold to Aktiv Kapitol as “ineligible”
4. Aktiv Kapitols Consumer Credit License No. 0510166 (see attached copy “AK1”) is currently undergoing a renewal. Aktiv Kapitol have been investigated by the OFT and found to be guilty of unfair debt recovery practise. They have been publically reprimanded twice and have two sets of Conduct Requirements attached to their Consumer Credit Licence.
5. The OFT stated that Aktiv Kapitol were (amongst other things) guilty of “failure to research into the background of a claim before pursuing it”. This is particularly relevant in this case as if they had researched the defendants’ position they would be aware that Varde were in breach of Section 77/78 of the Consumer Credit Act 1974 and as a result the Card Receivables they bought from Varde were ineligible.
6. The defendant maintains that Varde knew they were in breach of the law and rather than cease court action they have deceived Aktiv Kapitol by selling it to them. Aktiv Kapitol have not heeded the OFT’s warnings and have acted incompetently and been duped into purchasing this account without researching the case history.
7. The Defendant requests that Aktiv Kapitols request to replace Varde as the Claimant in the case listed above be rejected and costs allocated to the Defendant.
8. The Defendant also requests that the case listed above initially brought by Varde Investments (Ireland) LT be stuck out and costs allocated to the Defendant.


I'm hoping they just don't turn up as I think I will crumble badly under any cross examination. The judge will only have to say " Hephaestus, what the hell you talking about boy?" and I will be doomed.:tinysmile_hmm_t2:

Will post tomorrow what actually happened.

Cheers.

Heph.

[MIKE770]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Wish I was there - good luck

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Evening Hep.

Can't answer your question as to whether you're on the right lines, but that little lot is going to give someone a headache. Lets hope it's AK

Good luck on Monday and try not to strangle anyone in court, they really frown on that sort of thing.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Have been digging deep trying to find where I got the aforementioned snippet from the CCA and came across this little beauty whilst sidetracked
It is pinched from a post on the Consumer Action Group

Application of the Consumer Credit Act 1974 and Unfair Terms in Consumer Contracts Re

Application of the Consumer Credit Act 1974 and Unfair Terms in Consumer Contracts Regulations 1999

Application of the Consumer Credit Act 1974 and Unfair Terms in Consumer Contracts Regulations 1999
may impede collection efforts and could cause early redemption of your notes and/or a loss on your
notes.
The primary statute dealing with consumer credit in the United Kingdom is the Consumer Credit
Act 1974 – which we will refer to in this base prospectus as the ‘‘Consumer Credit Act’’. The Office
of Fair Trading (the ‘‘OFT’’) is responsible for the issue of licences under, and the superintendence of,
the CCA, related consumer credit regulations and other consumer protection legislation. The OFT
may review businesses and operations, provide guidelines to follow and take action when necessary.
Currently, a credit agreement is regulated by the CCA where (a) the borrower is or includes an
individual, (b) the amount of ‘‘credit’’ as defined in the CCA does not exceed the financial limit,
which is £25,000 for credit agreements made on or after 1 May 1998 and lower amounts for credit
agreements made before that date and (c) the credit agreement is not an exempt agreement under the
CCA. A vast majority of the credit card transactions which occur on a designated account have or
will have a credit limit of an amount up to £25,000. Accordingly, the Consumer Credit Act applies
to the transactions occurring on the designated accounts and, in whole or in part, to the credit card
agreements. This may have consequences for your investment in the notes because of the possible
unenforceability of, or possible liabilities for misrepresentation or breach of contract in relation to, an
underlying credit card agreement.
(a) Enforcement of improperly executed or modified credit card agreements
Any credit card agreement that is wholly or partly regulated by the CCA or treated as such has
to comply with requirements under the CCA as to licensing of lenders and brokers, documentation
and procedures of credit card agreements and (in so far as applicable) pare-contract disclosure. If it
does not comply with those requirements, then to the extent that the credit card agreement is
regulated by the CCA or treated as such, it is unenforceable against the borrower (a) without an
order of the OFT, if the lender or any broker does not hold the required licence at the relevant time,
(b) totally, if the form to be signed by the borrower is not signed by the borrower personally or omits
or mis-states a ‘‘prescribed term’’ or (c) without a court order in other cases and, in exercising its
discretion whether to made the order, the court would take into account any prejudice suffered by

the borrower and any culpability of the lender. If a credit card agreement related to a designated
account has not been executed or modified in accordance with the provisions of the Consumer
Credit Act and is completely unenforceable as a result, the principal receivables arising thereon will
be treated as ineligible receivables. See ‘‘The Receivables – Representations’’.
With respect to those credit card agreements which may not comply with the Consumer Credit
Act, such that a court order could not be obtained, the originators estimate that, on any pool
selection date or additional selection date, this will represent less than 1 per cent. of the aggregate
principal amount of receivables in the designated accounts. The originators do not anticipate any
material increase in the percentage of these receivables in the securitised portfolio. In respect of
those designated accounts that do not comply with the Consumer Credit Act, it will still be possible
to collect amounts owing by cardholders and seek arrears from cardholders who are falling behind
with their payments. It is unlikely that the originators will have an obligation to pay or to account to
a cardholder for any payments received by an originator because of this non-compliance with the
Consumer Credit Act. Any such receivables will be treated by the receivables trustee as ineligible

receivables. See ‘‘Representations’’.


The text in red is highlighted by me. Varde were unable to produce a signed credit agreement with regard to the account they are taking me to court for and if I'm not mistaken that would make their case totally unenforceable. They have sold this account to Aktiv and I have a copy of the "Deed of Card Recievables", again though, if I am correct the receivables mentioned are deemed ineligible receivables according to the above.

Am I on the right lines here? Am well out of my depth at the moment but this is the only other time I have ever seen the word "receivables" except for in the deed of sale between Varde and Aktiv.

Cheers.

Will try to stay and track but it's so very easy to get carried away with all.

Heph.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Have been checking the OFT CCA section 29, does anyone know where it states that “the rights of the original assignment cannot be passed along to the new license holder. This is in breach of the Consumer Credit Act 1974 (s29).”
I cannot find those words in the Act and am going to be hard pressed in court if I can't quote the source accurately.

Cheers

Heph.

[QCKate]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Just received a letter from the court regarding my objection to Aktiv replacing Varde as the Claimant. They want me in court on Monday!
"The District Judge has considered the matter and ordered that the above hearing will take place by way of attendance at court and not by way of a telephone conference hearing. Failure to attend may result in an order being made in your absence."
My case against Varde is due at the end of next week so this is another new hearing. Have rang and confirmed this with the court. When I first read the letter I was expecting the usual brush off so I didn't notice the new date, and even then I just thought it was all going to be dealt with at the hearing already scheduled. Luckily my wife noticed it otherwise I would have missed it and turned up several days too late!
If this hearing goes in my favour it will be the death knell for Vardes case. I have no other info to supply to the court except what they have already had in my letter from the other day. Will just turn up and hope the Judge is in a good mood and my facts are correct.
Talk about short notice tho!

Will post any developments.

Cheers.

Heph.

I wouldnt be surprised if they don't turn up Heph.

QCK

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Just received a letter from the court regarding my objection to Aktiv replacing Varde as the Claimant. They want me in court on Monday!
"The District Judge has considered the matter and ordered that the above hearing will take place by way of attendance at court and not by way of a telephone conference hearing. Failure to attend may result in an order being made in your absence."
My case against Varde is due at the end of next week so this is another new hearing. Have rang and confirmed this with the court. When I first read the letter I was expecting the usual brush off so I didn't notice the new date, and even then I just thought it was all going to be dealt with at the hearing already scheduled. Luckily my wife noticed it otherwise I would have missed it and turned up several days too late!
If this hearing goes in my favour it will be the death knell for Vardes case. I have no other info to supply to the court except what they have already had in my letter from the other day. Will just turn up and hope the Judge is in a good mood and my facts are correct.
Talk about short notice tho!

Will post any developments.

Cheers.

Heph.

[Hephaestus]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
Have sent my letter. Will wait and see if it has desired effect. Left it as I originally posted it as thought it better to ask nothing and just state facts.
Will post what happens.

Cheers.

Heph.

[QCKate]

Re: HELP. In Court vs Varde Investments/Hegarty LLP

Hi Folks,
This a copy of the letter I am sending to the Judge, It was CCA s29 and not Law of Property Act that is relevant on this point.

Dear sir,
I write regarding The General Form of Judgment or Order madeby District Judge xxx at xxx County Court made on 8^thJune 2012 in which it is ordered that Aktiv Kapital AS, Zug Branch be substituted as Claimant in place of Varde Investments (Ireland) Limited in the case listed above.
I object to this order on the following points.
1. Varde Investments (Ireland) LT were assigned this account on 26/05/2010. I have enclosed a copy of a letter and marked it “Exhibit A”. The date of assignment is listed on line 2 of the first paragraph.
2. At this time Vardes Consumer Credit Licence No 057759 shows that the “Current Organisation who run this organisation” to be “Deutsche International Corporate Services (Ireland) Limited”. I have enclosed a copy of their Consumer Credit Licence and marked it “Exhibit B”.
3. This Consumer Credit Licence lapsed on13/11/2010. This information is clearly visible on “Exhibit B”.
4. Varde did not renew their Consumer Credit Licence until 22nd June 2011. I enclose a copy of this licence and have marked it “Exhibit C”.
5. This new licence is numbered 0643780 and the company has changed hands or been sold as the “Current Organisation who run this organisation” are now listed as “Matsack Trust Limited”. This information is clearly visible on “Exhibit C”.
6. The Defendant has raised this point in his “Statement of Defence” and pointed out that “the rights of the original assignment cannot be passed along to the new license holder. This is in breach of the Consumer Credit Act 1974 (s29).”
7. Varde are aware of this breach and when challenged about it have supplied a copy of the original licence which does not show the lapse date. I have enclosed a copy of this and marked it “Exhibit D”.
8. Since Varde were in breach of Consumer Credit Act 1974 (s29) after their licence was renewed and no longer owned the rights of the original assignment it follows that they are unable to sell this account to Aktiv Kapital AS, Zug Branch.
9. Based on the above information the “Deed of Sale and Purchase of Card Receivables” between Varde Investments (Ireland) Limited and Aktiv Kapital Portfolio AS, Zug Branch is null and void and Aktiv cannot replace Varde as the Claimant in this case.
10. The Financial Ombudsman are currently investigating this matter (ref: xxx) but I am unable to get a progress report from them at this time.

Yours sincerely
Hephaestus.

Hope that will do the trick, haven't sent it yet so there is still time for me to change it or add anything that you may think relevant.

Cheers

Heph

What a superb letter Heph. Content must be on your side and the tone looks just right to me - sticking to the facts.

Everything crossed for you!!!!!!!!

QCK