HFC-No Agreement? - Amended defence help please **WON**

[pt2537]

Hi Paul,

That looks excellent!

 

Sorry I didn't get back to you earlier than I have, but I did look in and check from time to time just to ensure you hadn't asked me anything, and just assumed you were having a well earned break. However I was wrong and you were obviously still hard at it!

 

I have read through the defence and I am going to study it and try to understand all the implications and references to other documents so I will probably be back to you when I've managed to absorb it all!

 

Does it matter that I didn't actually request disclosure under CPR (and my CCA request) until the last day for my original defence to be entered?HMM MAY MAKE A DIFFERENCE

I had only just discovered CAG the day before that (just in the nick of time for this case!), see my first very short thread for details of my original request for advice on here: http://www.consumeractiongroup.co.uk/forum/general-debt/116254-cca-request-r-subject.html

 

I am thinking we may need to change the beginning of the defence to reflect this, just so as to not give the impression that I am not telling the truth or being inaccurate with the facts.

 

Hope you enjoy your Christmas day,

 

Thanks a million for spending your Christmas Eve helping me,

Cheers,

Rob

 

 

Hey Rob,

 

Merry Christmas ,

 

im not unfortunatley going to be able to make any amendments today for obvious reasons, but once im free again i will get on to it and amend it to reflect

 

 

 

regards

paul

[robcag]

Hey Rob,

 

Merry Christmas ,

 

im not unfortunatley going to be able to make any amendments today for obvious reasons, but once im free again i will get on to it and amend it to reflect

 

 

 

regards

paul

Hi Paul

I'm glad you are taking some time for yourself at last, I didn't expect you to spend your Christmas eve on this!

 

However I'm extremely relieved that you have done what you have.

 

I will probably run a few things past you in a day or so, but please try and take care of your own needs first!

 

Merry Christmas to you too

Thanks yet again!

Rob

[pt2537]

Hey Rob,

 

ive been giving consideration to the issues you raised

 

now what you can do is outline in a covering letter attached to the defence why things were delayed

 

the fact of the matter is that the claimant should have supplied this info with the claim and they didn't

 

the agreement is flawed and unenforceable as it stands so the court should not enforce this agreement period so its really not for you to try and explain your conduct imho

 

Regards

paul

[robcag]

Hey Rob,

 

ive been giving consideration to the issues you raised

 

now what you can do is outline in a covering letter attached to the defence why things were delayed

 

the fact of the matter is that the claimant should have supplied this info with the claim and they didn't

 

the agreement is flawed and unenforceable as it stands so the court should not enforce this agreement period so its really not for you to try and explain your conduct imho

 

Regards

paul

OK Paul, I'll give that some attention later today (26th).

 

I might also need to get some advice on some aspects of the defence and filling out the forms (N244 + EX160).

 

Thanks

Rob

[pt2537]

Hi Rob,

 

The EX 160 is fairly self explanatory

 

the N244, to be truly honest its a while since i did one so i may be a little rusty, that said, its not too much of a problem

 

regards

 

paul

[robcag]

Hi Paul

 

Before I get around to filling the forms out, I would like to ask a few questions about the defence if you don't mind.

 

I'll start with the worst first, so here goes!

 

Although your defence has shot the claimants claims down on two major angles of attack, do you think it would be worth me including:

 

1. Some paragraphs about the Default Notice also being invalid on a second count, namely because it includes unlawful penalty charges in the default amount stated? Restons have supplied copy statements to demonstrate this and I can probably even find the original statements if I have a good sort through my jumbled paperwork.

 

2. Something specifically about the "Collection Charge" of £1908.02 stated in the POC being an unlawful penalty charge etc.?

 

Thanks

Rob

 

Edit: changed "Collection Fee" to Collection Charge"

[pt2537]

right rob,

 

personally i wouldn't bother, quite simply, the fact is the agreement produced is unenforceable and the default notice is not compliant.

 

personally i wouldnt add to that atthis stage,

 

if the judge ignores this and allows this to procede to trial, then its something which would be a consideration to include within the skeleton arguement and your witness statement possibly, but an unenforceable agreement is more than enough to leave this case dead in the water

 

the thing to remember is that its not going to be me in court but its you, so we need to follow the K.I.S.S principle and keep things simple

 

an unenforcable agreement is that, totally unenforcable

 

 

regards

paul

[robcag]

Thanks for your reply Paul,

 

I hadn't actually imagined that the Judge would throw the case out without a trial, even though it is requested in the defence! That would be an excellent result! I don't know too much about the possibilities/probabilities as you can probably see, even though I am very confident with what you have done and said!

 

I have a few more minor questions though if you wouldn't mind answering them.

 

 

 

1. Ref to Para 3 of the defence;

1.a. Is the item referred to as "Exhibit R1" the letter I wrote to the claimant under CPR requesting disclosure?

1.b. Do I enclose a copy of said letter when I submit this defence?

1.c. Is there a method for choosing the labelling of the exhibits? ie why R1 ?

 

2. Ref to Para 27 of the defence;

Should I enclose a copy of the open letter mentioned, and if so should I refer to it as "Exhibit xx"?

 

3. Ref Para 24 of the defence;

When you stated "

this is confirmed by case law as well", should I know which case law this is and should I make a reference to any specific cases?

 

4. Ref Para 10 of the defence;

4.a. The document supplied to which you have referred to as "Terms and conditions" is actually headed "GENERAL INFORMATION ABOUT YOUR GM CARD", so should I change the wording "terms and conditions" to reflect this?

4.b. Should I provide a copy of this and the purported credit agreement and refer to them as exhibits?

Sorry if I appear to be a bit thick with what should probably be obvious, but I just want to make sure everything is done properly so I don't foul up because I missed some minor points!

 

Thanks,

Rob

[pt2537]

Thanks for your reply Paul,

 

I hadn't actually imagined that the Judge would throw the case out without a trial, even though it is requested in the defence! That would be an excellent result! I don't know too much about the possibilities/probabilities as you can probably see, even though I am very confident with what you have done and said!

 

I have a few more minor questions though if you wouldn't mind answering them.

 

 

 

1. Ref to Para 3 of the defence;

1.a. Is the item referred to as "Exhibit R1" the letter I wrote to the claimant under CPR requesting disclosure?

yes thats it, you would use you initials as the reference followed by the number 1 for the first exhibit,2 for the second and so on

1.b. Do I enclose a copy of said letter when I submit this defence?

yes i would definatley along with a copy of the proof of postage

1.c. Is there a method for choosing the labelling of the exhibits? ie why R1 ?

see point 1

2. Ref to Para 27 of the defence;

Should I enclose a copy of the open letter mentioned, and if so should I refer to it as "Exhibit xx"?

yes i would,it would be Exhibit R2,

3. Ref Para 24 of the defence;

When you stated "

this is confirmed by case law as well", should I know which case law this is and should I make a reference to any specific cases?

Amended that point see the defence

4. Ref Para 10 of the defence;

4.a. The document supplied to which you have referred to as "Terms and conditions" is actually headed "GENERAL INFORMATION ABOUT YOUR GM CARD", so should I change the wording "terms and conditions" to reflect this?

yes just need to change the terms and conditions to

GENERAL INFORMATION ABOUT YOUR GM CARD

4.b. Should I provide a copy of this and the purported credit agreement and refer to them as exhibits?

yes, i will need to make a reference in the defence to this point as i dont think i referred to the documents they sent in the defence as being included

Sorry if I appear to be a bit thick with what should probably be obvious, but I just want to make sure everything is done properly so I don't foul up because I missed some minor points!

 

Thanks,

Rob

 

 

Hi Rob,

 

hopefully this answers your concerns,

 

we must remember that ultimatley this is in the hands of the Judge so he may throw their case out, he many not, he may order they disclose the original document before the court he may not

 

 

however, he cant ignore the authority of the House of Lords and the Court of Appeal so if he does it will be an error on a point of law and as such will give an automatic right of appeal IMHO

 

Regards

paul

[robcag]

Hi Rob,

 

hopefully this answers your concerns,

 

we must remember that ultimatley this is in the hands of the Judge so he may throw their case out, he many not, he may order they disclose the original document before the court he may not

 

 

however, he cant ignore the authority of the House of Lords and the Court of Appeal so if he does it will be an error on a point of law and as such will give an automatic right of appeal IMHO

 

Regards

paul

Thanks Paul

 

All points taken on board and understood, I know it depends what the Judge had for breakfast as they say!

 

I'll copy the defence into a Word document and get it formatted up, and then do a covering letter as you suggested. Would I address this letter to the "Court Manager"? Should I include (re-phrased) most of what I added to my AQ which I attached in Post#23, ie http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=1683&d=1198490237 or just write something brief?

 

Do I put a declaration of truth at the end of the letter?

 

Thanks

Rob

[pt2537]

if you want to hang fire on the defence and the letter, i will happily draft a suggested letter. ive a couple of amendments to make to the defence RE post 59, so as soon as i get a mo ill get them done.

 

regards

paul

[robcag]

if you want to hang fire on the defence and the letter, i will happily draft a suggested letter. ive a couple of amendments to make to the defence RE post 59, so as soon as i get a mo ill get them done.

 

regards

paul

Will do Paul

 

Sorry if I gave the wrong impression, I wasn't trying to rush you!

 

One of the things I was going to put in the letter was that I had been trying to get an appointment with the CAB to try and get some advice on how to handle the claim. However, in my town it sometimes (often) takes weeks to get an appointment, in fact it is sometimes days before you can even get through to them on the phone, and they are not there every day.

 

Therefore I was not able to get advice until I found CAG just before the deadline for the defence to be filed expired.

 

Cheers

Rob

 

Edit: Typo

[pt2537]

No i didnt think that at all mate:), and if i did i would have said so:p

 

this is the biggest problem when typing replies in this type of environment (forums) it often the case where comments are taken the wrong way or misinterpreted

 

it is something we can include in the covering letter with the amended defence so no worries

 

Regards

paul

[robcag]

Hi Paul

 

I just phoned my local court and was told they are open today and tomorrow until 4:00 pm on each day so it looks like I will be able to hand-deliver my documents before the 28th Dec. (presumably it would be OK to do that right up until the court closes on the 28th?).

 

Cheers

Rob

 

PS I just browsed the stonking defence against Link you prepared yesterday in another thread. I think I'll save that for possible future reference!

[robcag]

PPS

Having read your Defence against Link, it reminded me that in my case Restons did not send any LBA, yet another point where they failed to comply, what a bunch of cowboys they appear to be.

 

Rob

[pt2537]

hi rob,

 

ive just added the amendments re the terms and conditions and also the reference to exhibits

 

are you ok with the N244? it doesnt need to be with hearing and the level of judge is district

 

i can help you through it if you like

[robcag]

hi rob,

 

ive just added the amendments re the terms and conditions and also the reference to exhibits

 

are you ok with the N244? it doesnt need to be with hearing and the level of judge is district

 

i can help you through it if you like

Hi Paul

 

Thanks for making the amendments etc. I've got to nip out for 1/2 an hour or so, but I'll get right on it as soon as I get back.

 

I'll take another look at the N244 after that.

 

Did you say you had some further ideas to my suggestion re: CAB appointments etc. in Post#62 about the covering letter?

 

Sorry to keep putting on you!

 

Thanks

Rob

[pt2537]

Hi Rob,

 

as promised

 

take a look at the attached letter as let me know what you think

 

if there is any thing ive missed let me know

 

regards

 

paul

[robcag]

Hi Rob,

 

as promised

 

take a look at the attached letter as let me know what you think

 

if there is any thing ive missed let me know

 

regards

 

paul

That is absolutely brilliant Paul! :D

 

You've even included the fact that Restons did not send a LBA which I only remembered at the last minute after browsing your other excellent attack on Link in another thread. What would we do without you? (I won't answer that, but needless to say brown trousers are not needed!)

 

I'll read the letter again a couple of times and try and think of anything else which might be relevant, but at the moment it looks final.

 

You say "don't sign" the letter, even at this stage of proceedings, does that mean I shouldn't sign the "Statement of Truth" on the amended defence either? (just type my name?)

 

(Unfortunately I signed the AQ when I returned it)

 

Thanks again

Rob

[pt2537]

argh bugger,

 

no sorry Rob,the letter was an amended letter that i used a while ago in another case, however that one was where there was no disclosure and a copy was sent to the claimant and the court.

 

in this case, you can sign it for sure, sorry i missed that.

 

anything you send the court at this stage by all means sign

[robcag]

anything you send the court at this stage by all means sign

Thanks for the clarification Paul.

 

I'm still going through the agreement and formatting it (indents etc), I'm not as quick as you!

 

 

A couple of small points,

1. In the defence, shouldn't we refer to 'the agreement' as 'the purported agreement'? (eg in points 10 and 11)

 

 

and

 

 

2. Ref point 25, "...

and having failed to investigate a dispute as required by the OFT Debt collection Guidelines". What dispute are we referring to? Would that be HFCs failure to respond to my CCA request? (sent at the same time as my CPR request, and which they still haven't complied with, or even acknowledged).

Thanks

Rob

Edit: Typo

[pt2537]

Thanks for the clarification Paul.

 

I'm still going through the agreement and formatting it (indents etc), I'm not as quick as you!

 

 

A couple of small points,

1. In the defence, shouldn't we refer to 'the agreement' as 'the purported agreement'? (eg in points 10 and 11)

Yes Either or really Rob, you can call it the Purported Agreement

and

2. Ref point 25, "...

and having failed to investigate a dispute as required by the OFT Debt collection Guidelines". What dispute are we referring to? Would that be HFCs failure to respond to my CCA request? (sent at the same time as my CPR request, and which they still haven't complied with, or even acknowledged).

AH now then, this is where the problems arises with not being involved with the case from the start, i wasnt aware of what exactley you had done

 

 

Thanks

Rob

 

Edit: Typo

 

okay well edit 25 to this.........................

 

 

25. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

thats my suggested amendment

 

Regards

 

paul

[robcag]

Thanks for being so patient with me Paul , but you probably realise that I'm just trying to pay attention to detail ;-) .

 

Rob

[pt2537]

Youre welcome Rob

 

its not like you are asking the same question over and over so no problems,

 

at the end of the day , i will be happy if you get the result with this case in court and that will be satisfaction for me with regards top the work ive put in

 

Good luck mate

 

regards

paul

[robcag]

are you ok with the N244? it doesnt need to be with hearing and the level of judge is district

 

i can help you through it if you like

Hi Paul

 

Sorry to bother you again, but I'd like a little help with the N244 please

 

I got let down with a lift to the court yesterday, but I will definitely get there today to hand in my documents etc.

 

I was going to ask the court people to help me with it but I think it might be better if I get it done beforehand as they might not be as knowledgeable as you!

 

I note what you say above about the Judge and no hearing requested.

 

Here goes:

 

Q6. Parties to be served. What do I put here?

Part A

intend to apply for an order (a draft of which is attached) that What do I put here?

because What do I put here?

Part B

I wish to rely on Presumably I tick the attached witness statement box

 

Do I need to fill in part C ?

 

How many copies of all the documents should I take to the court?

 

Thanks

Rob