HELP. In Court vs Varde Investments/Hegarty LLP

[Judge mental]

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

Hephaetus

The hearing on ** November is to only determine if the Judgment granted by Northampton bulk centre will be set aside, it will not determine the claims made by the claimant, however as previously stated to do this you will need to show a reasonable chance of success at defending the claims against you.

Things which might trigger some sort of brainwave, if not you should bring them to the attention of the court in support of your claims to have a 'reasonable chance of success' at a full hearing -.

The claimant has been uncooperative with disclosure of documents relating to their claims, a complaint has been made to the IFO and you are awaiting a decision. (Do make a complaint, hopefully you will receive an acknowledgement from IFO which you can produce at the hearing). Additionally, the claimant has a continuing duty of disclosure under Civil Proceedure rules Part 31.11

The claimant was operating unlawfully between 13/11/2010 and 22/06/11 and therefore had no legal right to pursue any claims. (This is particularly important if they initiated recovery of the debt between those dates, written confirmation of your telephone conversation with OFT would be very useful)

The relevant sections of the CCA are -

(A payment under section 28 is the license fee)

28C Failure to pay charge under s. 28.

(1)This section applies if a person (the ‘defaulter’) fails to pay a charge—.
(a)before the end of a period (the ‘payment period’) as required under section 28A; or.
(b)where the payment period is extended under section 28B, before the end of the payment period as extended (subject to subsection (2))..

(2)Where the payment period is extended under section 28B in relation to a part of the charge only, this section applies if the defaulter fails—.
(a)to pay so much of the charge as is not covered by the extension before the end of the payment period disregarding the extension; or.
(b)to pay so much of the charge as is covered by the extension before the end of the payment period as extended..

(the important one.......)

(3)Subject to subsection (4), if the charge is a charge under section 28A(1), the defaulter's licence terminates..

(4)If the defaulter has applied to the OFT under section 28B for the payment period to be extended and that application has not been determined—.
(a)his licence shall not terminate before the application has been determined and the OFT has notified him of the determination; and.
(b)if the OFT extends the payment period on that application, this section shall have effect accordingly..

(5)If the charge is a charge under section 28A(2), the charge shall be recoverable by the OFT.]].

Renewal, variation, suspension and revocation of licences

29 Renewal.
(1)If the licensee under a standard licence [of limited duration], or the original applicant for, or any licensee under, a group licence of limited duration, wishes the [OFT] to renew the licence, whether on the same terms (except as to expiry) or on varied terms, he must, during the period specified by the [OFT] by general notice or such longer period as the [OFT] may allow, make an application to the [OFT] for its renewal..

(2)The [OFT] may of [its] own motion renew any group licence..

(3)The preceding provisions of this Part apply to the renewal of a licence as they apply to the issue of a licence, except that section 28 does not apply to a person who was already excluded in the licence up for renewal..

(3A)In its application to the renewal of standard licences by virtue of subsection (3) of this section, section 27(1) shall have effect as if for paragraph (b) there were substituted—.
“(b)invite the applicant to submit to the OFT in accordance with section 34 representations—.
(i)in support of his application; and.
(ii)about the provision (if any) that should be included under section 34A as part of the determination were the OFT to refuse the application or grant it in terms different from those applied for.”].

(4)Until the determination of an application under subsection (1) and, where an appeal lies from the determination, until the end of the appeal period, the licence shall continue to have effect, notwithstanding that apart from this subsection it would expire earlier..

(5)F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

(6)General notice shall be given of the renewal of a group licence..

And under schedule 1 - Prosecution and punishment of offences

9(1) Engaging in activities requiring a licence when not a licensee.
(a) Summarily. £400.
(b) On indictment. 2 years imprisonment or a fine or both.

Hope it helps

Stuart

[Hephaestus]

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

Hi,
Have been ransacking the house looking for letters from Varde. No luck yet. I have found one from a company called IND Ltd. ( dated Aug/2011). It says that Varde were sold this debt on 26/5/10 and that IND now hold all my data. I have only ever written to Varde so I will write to IND now and get my info, they want £10 admin fee. I never sent this fee in any of my previous requests to Varde. Hopefully I will get some paperwork before I go to court.

Cheers.

[Judge mental]

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

Hi:

That is a good find, if Verde sold the debt Varde has no legal rights. Does the letter say notice of assignment?

Its another (and possibly the best) reason for the Judgement to be set asside -

On the day of your hearing (make sure you take copies of that letter with you) inform the Judge that new information has recently come to light proving that Varde is not the owner of the debt and therefore they have no lawful right or entitlement of action. Pursuing a debt to which they have no legal right to pursue is deceitful by misrepresentation and an abuse of the court process.

Section 136 of the Law of property Act 1925 states -

136 Legal assignments of things in action.

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—.

(a) the legal right to such debt or thing in action;.
(b) all legal and other remedies for the same; and.
(c) the power to give a good discharge for the same without the concurrence of the as signor:.

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or.

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925..

Stuart

[Hephaestus]

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

Hi Judge Mental,
Thanks for your info. I have looked again at this letter and I have made a mistake, it does not say sold it says assigned. Sorry dude.
The actual wording is Last Letter Before Legal Proceedings.
"MBNA Europe Ltd has assigned to Varde Investments (Ireland) Lt the full amount owed by you under the agreements(s) referred to above with effect from 26/05/2010. As a result of this assignment the full outstanding balance owed by you is due to Varde Investments (Ireland) Lt immediately. Varde Investments(Ireland) Lt has appointed IND Ltd to collect this balance on its behalf."
This is the only letter I have received from IND dated 5/8/2011. The next letter I received shortly afterward was the judgement for claimant (in default) from the courts.
This letter has Varde as the claimant but the address for payment is IND Ltd. co Heggarty LLP, 48 Broadway, Peterborough. On the AOE that came shortly after this though, Varde are named again as the claimant but payment is due to Heggarty and not IND.
So far I was originally contacted by Varde, I requested info from them, they ignored me and I started getting letters from Heggarty, I requested info from them, they ignored me as well, then I get the letter from IND referred to above (which I ignored) who say they now have my personal data and I should get it from them. I have written to them with a £10 fee and await a reply.
The office of fair trading have given me the following ref numbers to enter into their site
OFT 664 and OFT664CON which they said is something specifically related to Debt Collectors and/or companies who are sold and want to continue with the previous companies business. I will look at this later and see what it means.

Once again, thanks for your advice and my apologies for getting the wording wrong in my previous post.

Cheers.

[Judge mental]

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

Hi Heph

Assigned was actually the word I was hoping was there, but I thought that it was Varde that has assigned the debt to IND.

Crossed wires all round

Stuart

[Hephaestus]

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

Hi Folks,

Got an update. I have not received any proof of claims from IND. I know they received my request as I sent it "signed for delivery" and have proof of delivery.
I just received a letter from Heggarty tho regarding my hearing to have the judgment set aside.
The say that as I have reconfirmed my address to the court by asking for this new hearing this means that Vardes claim was properly served and therefore I have no prospect of successfully defending the claim and there is no reason for the judgment to be set aside.
They go on to say
"If the court allows the Defendant's application, the claimant applies for orders dispensing with service of the claim form and for permission (under CPR r24.4(1) to apply forthwith for summary judgment on the claim with the decision of the Court of Appeal in Nelson and another v Clearsprings (Management) Ltd (2006) EWCA Civ1512"

They have attached a print out of Vardes new Consumer Credit Licence issued 22 June 2011.
Also enclosed is a copy of IND's "Last letter before Legal Proceedings"

I am in court tomorrow and still don't know what this is about. Hopefully the judge will also want to see what this about.

Cheers.

[teaboy2]

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

Taken from the public register:


Current license

Application / Licence Details




Licence Number:0643780
Licence Status:Current

Current Applicant / Licensee:

Business NameCompany Registration Number Varde Investments (ireland) Ltd401930

Categories:

Consumer credit

Right To Canvass Off Trade Premises:No


Issued Date: 22-Jun-2011
Date Maintenance Payment Due: 21-Jun-2016


Legal Formation:

Body Corporate (incorporated outside UK)

Current Individuals that run the organisation:

Previous license:

Application / Licence Details




Licence Number:0577595
Licence Status:Lapsed on 13/11/2010

Current Applicant / Licensee:

Business NameCompany Registration Number Varde Investments (Ireland) Limited401930

Categories:

Consumer credit Consumer hire Credit brokerage Credit reference agency Debt adjusting/counselling Debt collecting

Right To Canvass Off Trade Premises:Yes


Issued Date: 13-Nov-2005


Legal Formation:

Body Corporate (incorporated outside UK)

So it would appear they have may have been acting unlawfully if they had sent you any letters or issued a claim too (i believe) between those dates. You should forward copies of any such letters and details of their claim issued against to the OFT and ask them to take action.

[Hephaestus]

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

Thanks Teaboy,
I am doing just that regarding this licence discrepancy but its going to take too long for me to present any outcome at my hearing. Will keep at it tho.
I've looked at the Nelson case quoted in Heggartys letter. It concerns having a judgment set aside if the claim form did not reach the defendant. The most important factors appear to be the "prompt" application of the defendant once he finds out about a judgment against him. I believe I fulfill that requirement. And also that the defendant can demonstrate a reasonable chance of success in another hearing. I believe I also fulfill that requirement as Varde,Heggarty and now IND have all failed to supply any proof of claims. I will argue that I have the right to know what I am paying for.
But that's about all I can come up with.
Yikes.

[teaboy2]

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

I can not see a judge agreeing with Heggarty, they seems to be alot of cases involving Varde recently some of whom i have advised on where each time the claim form in thoses cases were received, though they never responded the any CPR34.14 request for documents to be supplied to the defendant leading the defendant to file an embarrassed defence. and the case actually being automatically stayed due to them not responding to allocation after the defense was entered. Resulting in the defendants then having to issue an N244 and an unless order to have the claim struck out. So my point being here is they probably do not have such documents and are worried they will lose the claim althougher if you get the set side - hence their letter to you.

Your case is different as you never received the POC and ended up with a default judgement.

Though one thing i will ask, is did you ever send a CCA request with the £1 fee? Because if you did, then i would also present evidence of such including proof of postage and receipt of the request to at the hearing tomorrow, as that would mean automatic set aside on the grounds that they were in default of your request and under section 77 s.s4 (A) and section 78 s.s6 (A) they are not entitled to enforce the agreement whilst the default of your request remains in place. Meaning the court was never entitled to enforce the claim in the first place.

Though generally not receiving the POC is automatic reason for a setaside anyway, if you can demostrate you would have defended in full if you had been aware.

[Hephaestus]

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

Hi Teaboy,
I never included a fee with my request to Varde or Heggarty, but I have done in my request to IND. I have proof of receipt which I will take tomorrow but I think it may be considered that it is too soon for them to have replied. I only found out about IND quite recently (From the judgement) and they received my request on 21st Oct.
I was particularly lax in my initial dealings with Varde and Heggarty and have destroyed all their letters. I wish I hadn't but I can't undo it now.
A lesson learned, the hard way...

Cheers.

[CleverClogs]

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

It's too late for this case, but you could recover the correspondence by serving a Subject Access Request (and £10 fee) on each of those buggers.

[Judge mental]

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

Teaboys excellent comments triggered another thought, under Section 7 of the cca 2006 they must provide you with an annual statement of account, also if the account is in arrears, an arrears statement every six months. failure to do this also means they cannot enforce the agreement during the period of non-compliance.

Have you been receiving statements for this account?

Stuart

[teaboy2]

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

Teaboys excellent comments triggered another thought, under Section 7 of the cca 2006 they must provide you with an annual statement of account, also if the account is in arrears, an arrears statement every six months. failure to do this also means they cannot enforce the agreement during the period of non-compliance.

Have you been receiving statements for this account?

Stuart

Now thats also execellent advice as their is quite a few cases where MBNA and Varde claims have been issued out of the blue, where i bet no annual statement of account has been issued either.

[Hephaestus]

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

Hi,
I have never recieved a statement from any of this lot. Will use this later in court.

Thanks for all your advice.

Cheers.

[Hephaestus]

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

Hi Folks, major update...

Just got back from court, I have won and my application to have the judgment set aside has been granted.
Varde sent a solicitor to represent them, but he did not know who they were either and had never heard of IND. The paperwork he was sent was illegible and he was not able to make any comments except to request summary justice and allocate costs. He had been instructed to do this.
I now gather that this debt relate to a credit card that MBNA were the underwriters for but we don't know which card. The judge has given Varde 14 days to show proof "in the plastic" of this matter. (Vardes solicitor appeared to know what this meant but I am baffled!) I have to submit a defence by Nov 30th but I think I need to see what Varde do next.
It was a very scary thing, I was quite worked up and got nervous at the time. I was called by the judge to give evidence under oath. He asked if I had any other credit cards, I said I had two which were both active and were up to date. He took their details. He asked me if I ever had default judgments from any other credit cards in the past. This is my first CCJ so I answered no. He explained that this would get very serious if I was wrong.
In my statement to the court I said how Varde, Heggarty and IND had all failed to supply data. I was able to offer proof of delivery to IND and show that they had not responded either and were in default. I also said about the statements of arrears which I never received either and quoted the section about this makes the matter unenforceable whilst in a period of non compliance. I kept hoping the judge was gonna say that's enough and cancel the whole case but no such luck. I then stated that I believed I had acted promptly with regard to my N244 form. (This was mentioned in the nelson v clearwater case cited by Heggarty, so I made sure to get that one in there!!)
I then argued that I could win this case as Varde,Heggarty and now IND had all failed to comply with my requests for data and I believe they have no evidence or else they would have provided it by now.
Varde solicitor spoke with me after and said to wait and see what happens next and showed me how to format my defense to the court. I think it best to get a second opinion as he would obviously rather I messed it up.
I don't know where to go from here now, I don't know if I feel relieved, or more worried than before... But, if I never got the set aside, I would have lost. I just don't know how much heavier this is going to get or what my next move should be.
If anybody wants to learn something from reading this, then I would state, if you ever find yourself getting hassled by a debt collector, "Do not throw their letters out or ignore them hoping they will go away. They don't. "

Thank You to everyone who has advised me, I think I would be on the run now if it hadn't been for your wise council.

I will post further developments as they happen.

Cheers.