PS This can be done. A Cagger named broken arrow did it after a hell of a time, because the evidence re wrong assignment was strong. It’s long, but it’s an excellent primer. http://www.consumeractiongroup.co.uk/forum/showthread.php?144119-HFO-court-claim-**WON** At post #510, he wins... this will give you lots of clues as to what HFO are like and about. Link were utterly stupid and unprofessional ever to do business with such a bunch of undesirables.

OK, I have that, but maybe get your personal details off all your posts! Not that I think you’re bothered... There’s a few minor niggles, but nothing that changes the tenor. It’s better you spend time learning it and preparing your questions and presentation of your points, rather than nitpicking the copy. As I’ve said repeatedly, this is a long shot. It’s unfortunate that nobody has come back to help on the 7-year wait to reassign, but hey-ho, can’t have everything... Good luck. Golden rule is to tell the truth, however painful, and to stress your evidence that questions the assignment and who actually owns the account, plus your denial of the information needed to avoid this action. Let us know how it goes. Back online 7am is if you need owt else.

I agree. ‘Referencing’ means a reference to the whole T&Cs, ie. ‘This document should be read in conjunction with X document’. That’s not there. It should be. Need to research similar recons to see if there are discrepancies. That’s a job for sickoflowells , cos it’s bedtime...

Bum. I’m local-ish but out tomorrow morning. Would have been good to attend as a Mackenzie friend. Guildford is where I stuffed the b*****s. Stick to the facts and keep repeating why you did not respond to the claim. Highlight HFO’s documented unfair treatment and misleading practices, also highlighted by the OFT, and show the evidence. Make sure the judge understands that HFO provably have problems with the truth of their assignments. Stress your status as a non-legally trained LiP, and beg some latitude from the judge. You will be allowed to cross-examine their rep. Have some Qs ready around the issues we have highlighted. Ask, for example, how they know HFO Services had title to the account – did they do due diligence to check this, given their established poor reputation and OFT investigation? That’s a tough question to answer – like asking someone why they did business with the Krays. There isn’t a good answer. Also ask the judge directly – and in your WS – to strike out their application to be substituted as claimant until they prove title. A notice of assignment is not enough – ask the judge to order production of the deed of assignment, and the chain of assignment and documentation. I know they’ll struggle. If you succeed in that, then there’s an outside chance you’ll get (a) a win, or (b) an adjournment for them to prove their case. Ask the judge about costs – say you have told Link that you have been disadvantaged by HFO’s failure to comply with the SARs, yet they have ploughed on regardless of your rights. As an LiP, this is unfair on you, as you are prepared to pay any money provably owed, but demand the right of scrutiny. Take three copies of everything – one for you, one for the judge and one for them. Apologise for serving on the day, but say you only got Link’s stuff today, which is also unfair given how long they’ve had. If the judge won’t admit your pleadings, ask that Link’s pleadings also be barred. Just be a pain in points of fairness, but always be polite and reasonable. One killer Q has to be this: if the HFO charging order was so watertight and their case so clear cut, why on earth would they want to sell for pennies in the pound an account that is guaranteed to deliver? Why are link afraid of the facts – which they can’t know – being examined? I’ll look, if I can, at anything else you post. Hopefully one or two others can chip in.

The prescribed terms are there, but as you say, I had a feeling something was missing. The problem is that the whole T&Cs are not here. That’s not a problem if they are referenced. But they are not referenced as such, other than as ‘condition x or y’. I’m not actually sure that’s good enough. Ive just re-read some of Carey v HSBC (in and around paras 150 onwards), and without a proper reference to T&Cs elsewhere, there’s a problem even with digital sigs. Could be onto something there, dx. Your gut feel may be right. Worth a read of Carey. http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

Actually, as a CCA for a digital signature, I can’t see what’s missing...

Can you remind me – is this being heard at Guildford? Is that your home area? Guildford has a circuit judge facility so tends to cover a wide area for COs etc.

Tell the court you’ll get her to swear an affidavit as such if required.

Excellent. That false document refers to a case from around the same time. It proves they did not always send out Notices of Assignment in all cases, and only made them up when they needed to – and often got them wrong. It’s not an admin error, it’s deception.

Here we go. Here’s an example from 2011 of HFO misleading people regarding what will happen if court action is taken. Note the document says what WILL happen, not what could happen. It is seriously misleading as uses threats that bailiffs WILL visit to frighten people. Next, here’s the ‘impossible’ document that HFO put into a court case I helped defend successfully in December 2010. This purports to be a notice of assignment sent by Barclays (but which would have been sent by HFO anyway, or Turnbull Rutherford) to the defendant as proof that the debt had been assigned and that he had been informed. It was sworn as a true document. It cannot be the case. Barclaycard could not have assigned the debt directly to HFO Ireland because at that time, it did not exist! It was only incorporated in September 2007, with a different name. This was a clear attempt to mislead the court as to the ownership of an account. The judge told them to do one. Print these out together with the Burney case, as evidence that (i) HFO have a history of misleading debtors as to the true legal situation, and (ii) they not only don’t know who owns half of their accounts, but have provably attempted to hoodwink the courts with false documents regarding assignments. Also google HFO and look for nasty cases. Tony Hetherington has a good one. http://www.thisismoney.co.uk/money/article-1179871/TONY-HETHERINGTON-Hurl-brick-window-advises-solicitor.html It’s a bit of a mud slinging exercise, but they have form. That’s why the OFT got involved. In these circumstances, I can’t see how the judge could allow Link to be substituted as claimant, and as the true owner is not contesting, you might just pull off a miracle. Really depends on the judge and how clearly you rally your arguments. Don’t deny you may owe a debt – just say that for circumstances beyond your control, the facts are untested and may be defendable.

Looking for proof of HFO’s deceptive assignment letters for you.

First of all, suggest you PM Andy & Co regarding the question of whether the seven year gap since the CCJ was awarded has any bearing on having Link applying to be substituted as the claimant. As mentioned, I can’t find anything that definitively says a CO can be assigned when the CCJ on which it is based is beyond seven years. COs don’t have a time limit as such, but beyond 12 years enforcement would be unlikely. Sorry I can’t offer more on this – not strong on COs – but I detect a bit of bluster in their statements around this. They may not be totally sure themselves. My suggestion will be that you try and claim that Link has no standing in the matter, and neither has HFO Services. Use the case I linked to earlier – this is evidence that HFO themselves haven’t a clue who owns what, and there is also evidence that they moved accounts between sister companies in a manner that may have been not quite what it seemed. I know the full background, but your headline point must be that Barclaycard have told you unequivocally that the account was sold to HFO Capital Ltd based in the Cayman Islands. It must have been this HFO, because HFO Capital Ireland did not exist at the time of the assignment. HFO Cayman did assign its accounts to the other HFO Capital in early 2008, but I doubt you were informed of this. Therefore how can HFO Services claim title to your alleged account, which they then say they sold to Link? The assignment is totally non-transparent. At present Link has no provable locus in the claim, and if that is accepted they have no right to oppose your set aside – that MUST be your argument. The company opposing the set aside must be the one that provably owns the account. Link cannot prove that yet, and won’t be able to tomorrow. THIS IS CRUCIAL – you must argue that Link has no standing in the case, and is therefore disbarred from opposing your set aside. In legalese, what you must do is oppose their application to be substituted as claimant as they cannot prove title beyond reasonable doubt, because Barclaycard say they sold the account to a different company. Your other track must be that you absolutely never received the original claim or paperwork, and tell them why – your ex would have wanted you to receive it. You had serious domestic problems, and were not aware of leaving any significant debts behind. Do you have copies of any ORIGINAL documents which were supposed to have been sent to your old address? For example, a copy of the claim form, or the CO? They’re sent by the courts, not HFO, so they would have been sent out – you need to know the addresses the court sent them to. State this as the reason why your application is so late, combined with your ignorance of procedure, and the blatant lies and misleading information provided to you by HFO Capital/Services. have the documents there to prove it, e.g.. demands showing HFO Capital were masquerading as the judgment creditor, and that they were owed the money. One aspect of getting a set aside is that you need to be able to show you have a good prospect of defending. So you need to tell the court that HFO Capital and Services, and its sister company Roxburgh, all had their licences rendered as ‘minded to revoke/refuse’ by the OFT because of the lies they told debtors and the unprofessional, misleading and unfair ways in which they treated their ‘customers’. They often put false documents into court case bundles – I can prove this – especially regarding assignments. In one case, they put in a supposed notice of assignment sent by HFO Capital Ireland to a debtor, but unfortunately the letter was dated BEFORE the Irish version of HFO Capital existed. I’ll see if I can find you a copy of it. Another example of their unreasonable and unfair behaviour is that HFO were discussing the account with you and demanding money AFTER they had sold the account – even by Link’s own admission this happened. It’s just not on, and goes straight to the heart of HFO’s deceptive and unfair practices. Also keep pointing out that HFO Capital were demanding the money – at no time did they state they were collecting on behalf of HFO Services, Ever. They were trying to deceive you. Full stop. Have the documents to prove this. And, because HFO have refused your SAR requests, you have been seriously hindered in establishing if you ever even owed the money. That has denied you a basic right. State that if it is found you owe the money, you will happily arrange to pay – say that if Link is so sure the judgment is sound, it should be prepared to back this up, rather than rely on legal technicalities. Link’s noting of the chronology in point 20 is irrelevant. I’ll go through their document shortly and counter their points where I can. Regarding making an offer to settle with HFO, simply say you panicked, are threatened with a forced sale, did not understand the legal situation, and so sought advice. You simply do not know if you owed the money as you were never provided with any documents to show the debt existed or was enforceable, or how the amount adjudged was reached. These were fundamental issues that you have been denied. Get all this down in a witness statement with a statement of truth at the end. It’s a long, long shot, but it’s the only shot you have.

OK, you need to prepare a skeleton argument against all this. basically, you have to trash HFO’s actions and their entitlement to the alleged debt, let alone their entitlement to sell it. Can you transcribe the Kearns info?

Aha... just found out that Turnbull Rutherford has changed its name to Peckwater Advisory, as of 16 March this year. Alasdair Turnbull’s CV on LinkedIn is trying to make out that he’s at a new company and is no longer at Turnbull Rutherford. This is not true. The company has simply changed its name and now has an address in central London. Same old stuff.

Have a look at post #19 here, in this thread. There’s loads to tell the judge. It’s not strictly relevant, but it adds colour. It’s clear that HFO Capital claim to own the debt and the CO, so how could HFO Services have sold it to Link? http://www.consumeractiongroup.co.uk/forum/showthread.php?437613-Rutherford-HFO-Capital-Ltd-amp-HFO-Services-Ltd-2007-BC-debt-now-LINK-set-aside-hearing So your set aside argument should simply raise the point that there is uncertainty in the true ownership. HFO have lost cases on issues of assignment, most notably in HFO v Michael Burney, here: http://www.bailii.org/ew/cases/Misc/2011/23.html I had a weeny bit of input to that. Amazingly, it was the OFT ordered the transcript, I believe...

By the way, both HFO Capital Ireland and HFO Services have been given trading licences by the CFA and show their trading address as Turnbull Rutherford’s offices in Chiswick.

By the way, coops, I think your point in the set aside app, that your SARs were not dealt with, is a fair point to put, especially as a litigant in person – your argument must be that your knowledge of the alleged debt is very limited, and that you have been denied the chance to ascertain whether it was rightfully due or whether you had recourse to the courts to overturn the judgment and CO. The previous debt owners failed to discharge a legal requirement, and the current owners are making legal claims that it’s irrelevant. That may be a tad misleading. As to timings, you must strongly plead the litigant in person point and a total lack of procedural knowledge. Just apologise lots for your ignorance, and hope you get a sympathetic judge. Having said that, you are climbing one f’ing great mountain here. You need 90% luck and 10% argument to hit a bullseye. Dig into the areas I’ve mentioned to see if there’s anything you can add. First of all, call Barclaycard and hope they have some data on their systems.

Except that in this case the defendant, coops999, has to show the balance of probability as he’s bringing the application! Link has so far taken no action. (Mind you, MKDP are even more stupid than HFO ever were!)

A few points. 1. HFO Services still exists. You have no real evidence it is not trading. It probably isn’t, but it is not registered as dormant. I’s irrelevant, alas. 2. At a set aside, you would also need to show you had a chance of defending the original case. Without a result from a CCA request (you could only have gone to the original creditor), you can’t show this. Did you SAR the original creditor at all? We’d need some history of the account to go down this route so late in the day. 3. You’ve known about this since 2012, but have taken three years to act. That’s a problem, but it’s easy to show that HFO were lacking in their responses. However, an untimely application for set aside is likely to fail. 4. Link’s documentation may be poor. They mention in their letter that they wish to be substituted as the claimant – I’m not completely sure they can do that beyond six years, because the CCJ itself is dead but the CO securing the judgment debt is live. 5. How do you explain that a CO was granted when someone was living at the property? Was your mail not forwarded? Did they get the CCJ and CO at the property address or elsewhere? 6. As you are joint mortgagees, I’ve stolen this from eggboxy one on this thread: http://www.consumeractiongroup.co.uk/forum/showthread.php?203298-A-guide-to-Charging-Orders-amp-Orders-for-Sale/page32 You must remember it's not that the Charging Order is Full or Final it's what it is made against that counts. For a sole owner or joint owners who both owe the debt, then the charging Order is made against the land and becomes Equitable. But where the property is owned jointly and only one of the owners owes the debt, then the CO is made against the debtors Beneficial Interest (equity). This is far different and and the CO cannot be registered as an Equitable Charge on the LR deeds. It's therefore far easier to get shot of. So perhaps you should only have had a restriction? In other words, I think you could have attacked the CO rather than the CCJ (hence the earlier reference to Form K). But it should have been done ages ago, which remains a problem. See here (thanks to Ford): https://www.gov.uk/government/publications/charging-orders/practice-guide-76-charging-orders In other words, if you could have downgrade the CO effectively to an interim, you could sell it. But the situation may be regarded as more complex as you are divorcing. I just don’t have enough knowledge of COs to give you the correct info, sadly. The lack of your earlier action – or an objection from your other half, who should have been informed about any restriction – is an issue. Was your other half informed by the Land Registry? 7. Have you considered negotiation, for example agreeing the removal of the CO subject to an agreed repayment schedule secured by a Tomlin Order? Not totally sure if this is possible –*the creditor doesn’t need to do this, and why should they IF they can be substituted as claimant? But, at present, Link cannot really claim anything unless they apply to be substituted as the creditor or beneficiary. Remember, the CO is against the property or your beneficial interest in the property in favour of HFO Services. Have you ever gotten hold of a copy of the claim form or judgment from the courts? 8. A charging order has a life of its own, but I think Link may have a problem being substituted as the CCJ claimant after seven years. Within six years, I would see no problem – case law says they could under CPR 19. Need to dig more on this. For example, you should demand sight of the assignment from HFO Services to Link to see if the contract allows for it. I would also dig more on whether HFO Capital actually were assigned the debts from HFO Services – if so, HFO Services had no right to sell to Link. This is one case where the sale agreements may be validly requested. See my earlier comments. Overall, and as I’ve already said, this is a bit of a mess because of your failure to act. The area I would work on first is whether, after seven years, Link can still be substituted as the claimant. I would strongly recommend consulting a specialist solicitor. I can find no (free) definitive answers to this. The other area I would investigate is the assignment route – look at whether, in the light of HFO Capital Ireland buying the shares of HFO Services, they also reassigned the accounts. The fact that HFO Capital was seeking payment it otherwise would never have been entitled to suggests this was the case. Dig out the evidence (I have given you all the prompts earlier in the thread and elsewhere on CAG – Google it!), and show that it is highly likely that HFO Services were not actually in a position to sell the account to Link. But I’m not sure how that helps you in your set aside application – unless you can show there was some irregularity in the original judgment. Did you ever receive notices of assignment from HFO in or around 2006-07? Do you have any history of the account? Maybe give Barclaycard a call and ask who they sold it to, exactly, and when – you might get a useful surprise. Especially if the name HFO Services or Roxburgh crops up, because neither company had an agreement with Barclaycard. Give it a try.

Sorry, posts crossed. Consent order/Tomlin pretty much the same thing, though a Tomlin order gives the right to continue the legal process without starting new proceedings – which is not needed here. A Tomlin order actually keeps the case live in case of a breach of the order, but they have discontinued. A Tomlin order would only be needed to protect them from your counterclaim, as the discontinuation of their claim was already effective, which makes it a bit one-sided. So you’d need to rely on their word that it’s the end of proceedings – do you have that in writing? Without a signed Tomlin or consent order, things are a bit tricky otherwise. If the order stated there would be no further action, then they would have breached it and you could have gone for damages.

Was the Tomlin Order completed though? Could be a problem there. Do you have it in writing that it’s the end of the matter?

Ah. It seems the Tomlin order did not end things. Rather left it open. You’re simply in a position where you’re back to square one, as if the previous case never happened. However, I think you have two choices. 1. Ignore them/tell them to go away. 2. Refer them to two significant judgments that would make them look foolish in court. They’re not binding as they’re from the lower courts, but they would look like idiots if they ever threaten any further legal action (has a threat of legal action been made by the DCA?). The first judgment concerns MKDP. The judge stated clearly that the claimant should have stated clearly the documents on which it wished to rely (your claimant didn’t have a clue), and should not breach court orders regarding disclosure, which your claimant did. The confused evidence also called into question their statement of truth, which the judge commented on in this case. https://consumercreditlitigationanddebtcollection.wordpress.com/2015/02/06/the-mkdp-judgment/ The second case to look at is Grace v Blackhorse – http://www.bailii.org/ew/cases/EWCA/Civ/2014/1413.html and https://consumercreditlitigationanddebtcollection.wordpress.com/2014/10/31/grace-v-blackhorse-court-of-appeal-ruling-my-view-as-the-fee-earner-responsible-for-the-case/ It seems very clear to me – and probably the reason for Lloyds’ discontinuance – that they had no enforceable agreement, such was the mess of their case and the number of unlinked agreements. I think this makes any agreement (whichever one they choose) very probably irredeemably unenforceable, and that further means the debt should not be recorded with the credit reference agencies (check this). There’s loads of other cases you could throw at them, but I would also suggest, for the sake of £1, sending off another CCA request to Westcott. Bound to confuse them and Lloyds... Things would have been a lot simpler if you’d come back to us for advice on the Tomlin order. They have well and truly fooled you, avoided paying costs, and potentially left the door open for further litigation unless you close them down sharpish.

Is it the same in-house DCA? Did the Tomlin order make clear that the debt would no longer exist, or prevent them from selling it on or re-litigating?

Demand a drug test!