HFC agreement turned up Help

[trevor33]

Hi Trevor

 

To save me looking right through your thread, could you point me back to the post # where you posted up your DN?

 

Cheers

Rob

I did not post up the DN. I thought that the amount was wrong and based my defence on that. It was proven to be correct at trial. AS for the wording and time to rectify, this DN was BEFORE the law changed.

What I need advice on is the T&C.

Thanks Trevor.

[car2403]

He said, even if I was to reclaim the charges the DN would still stand as it was and be legal.

 

Did you refer him to Woodchester Lease Management v Swaine? That's the precedent for the effect a Default Notice has if it is inaccurate - which it would be because of the amount of those charges.

 

It seems to me this is grounds for appeal on it's own, as I'm sure this was part of your Witness Statement from memory.

 

I have been going through the old papers and found the ORIGINAL agreement (obviously not sent back), NOT SIGNED by anyone. There are some subtle differences, like the 2 X,s showing where to sign and various pen lines through sections not relevant but the basic document, with all the numbers, is identical. However the T&C's are entirely different.

Any mileage in this given that I have already argued that the T&C are not correct?

 

It would have been handy to have had this prior to the hearing - the Judge couldn't have ignored you if you'd shoved this in front of him.

 

Like Rob, I'll need to review the thread again. But;

 

- Is this agreement the same they replied on in Court?

- What do you mean "not sent back"?

- Was the construction of the agreement (particularly referring to T&C's) raised in the Defence or Witness Statement?

 

If the only issue with the agreement is the missing T&C's, but the prescribed terms are there, it would be enforceable unless you can show you've been prejudiced under s.127(1)(i) CCA 1974.

 

For me, the issue is the DN, or rather the charges applied to it, as that would throw the entire claim in to doubt and the Judge was wrong to ignore it as it's a pre-trial protocol under s.87/s.88 CCA 1974. The issue will be that an appeal on this basis may result in them being allowed to reissue the DN, without the charges applied, and enforce on that basis.

 

In short, this enforcement is a disgrace.

[robcag]

I did not post up the DN. I thought that the amount was wrong and based my defence on that. It was proven to be correct at trial. AS for the wording and time to rectify, this DN was BEFORE the law changed.

What I need advice on is the T&C.

Thanks Trevor.

 

Hi Trevor

 

Sorry to keep harping on about the DN, which as you've probably guessed is one of my favoured arguments ever since Paul - pt2537 - used it to great effect in my own defence.

 

In the past when I've been trying to find the same errors for other people with their DNs I've taken a bit too simplistic view in calculating the days allowed to rectify. I was previously just adding 2 days (for service) to the date of the letter, then adding a further 14 (obviously this would be 7 in your case) days to arrive at the date that should have been given to rectify.

 

However, if you do this calculation a bit more thoroughly and actually use a calendar, it often happens that a much later date can be arrived at for the remedy date than would be using the former method, and some of the creditors still do not seem to be getting things right.

 

e.g. If the letter was posted (dated) on a normal Friday, then it would not be deemed served until the following Tuesday (or Thursday if sent 2nd class post), and that is provided that none of the 'working days' between (and including) date of posting and deemed date of service are public holidays, if they are then they must be added accordingly.

 

So you will see that by using that more scrupulous method of examination of the dates that it could well be possible that even though your DN was issued in the days when it was only required that you were given 7 clear days to remedy, that you could still have been 'short-changed'.

 

I'm aware that you didn't use that argument, but at least you argued that the DN was defective, so it might still be good to see the DN posted up, without personal information of course.

 

Cheers

Rob

[trevor33]

Right then Rob/Chris.

I did tell the Judge that a DN was invalid if the value was inaccurate AND quoted Woodchester LM v Swayne. He agreed that, if it was found that the DN is inaccurate, then case over. Their sol said WLM v S was not relevant. I ignored him because I knew better.

I argued till blue in the face that he (Judge) could not judge on DN until High Court case was resolved.

He said, EVEN IF I WAS TO RECLAIM THE CHARGES THE DN WOULD STILL STAND. :mad:

With regard to the T&C's, they relied on a section (5a) which allows them to charge £15 for breaches and (5b) all reasonable cost for enforcing etc.

These terms are not included on the T&c I have, therefore the £748 added to the claim by (5b) should not have been added. Which makes the claim below £5K. They kept refering back to these 2 clauses.

I do not know how I still have the original agreement, but T&C are on the back.

I did refer the judge to my WS in which I pointed out the the T&C was not linked to the agreement but, because it was not in my defence, he would not accept it.

Edited March 22, 2009 by trevor33
additions

[trevor33]

Rob. I do not have an original DN (I seem to have everything else). They do not have an original. They generate their copies from computer records.

[car2403]

That decision is flawed - the argument in the TC is that the charges are unfair under UTCCR and recoverable as a result. If the Bank's appeals fail, there's an argument here that the DN is invalid, as it contains those enforceable contractrual terms leading to charges being applied unfairly.

 

If the DN is invalid due to these charges, it's invalid and isn't open to opinion or discussion - the Judge is wrong to have done what he did, Trev.

 

Further more, there's even an argument that the OFT TC doesn't apply in your case - the TC is regarding the fairness of terms in standard Banking terms and conditions allowing the Bank to enforce charges applied under overdraft or default situations on Current accounts. This isn't a bank account or a current account, so the situation is different ("distinguishable" is the actual legal term) from that Judgment anyway. IMHO, the OFT TC has no bearing on the charges applied here.

 

There's also precedural errors here, IMHO. If the Defence contains allegations that the agreement is unenforceable due to construction and the WS expands on that to allege that the T&C's aren't linked, the Judge is wrong to not even consider those arguments in his Judgment.

 

Did the Judge outline his reasoning for coming to this Judgment? Usually, they will sum up all the arguments for and against and sometimes state why they feel the Judgment given is fair despite those arguments.

 

I feel there's definately grounds for appeal here. Of course, if you do appeal and lose that too, (we may get another failure in the "Judge lottery") that will increase your debt even further.

[trevor33]

I cannot remember all the summing up (I was in skock) but I do remember him saying that he could not allow the DN to be faulty as it would set a precident by these charges being illegal.

He did (I think) mention that I thought that the T&C were not part of the agreement but, there not being any evidence to the contrary, he would allow it.

What about the T&C. They (HFC) are relying on a **edited** document entered as evidence.

Edited March 23, 2009 by car2403
removing potentially libellous wording...

[car2403]

I cannot remember all the summing up (I was in skock) but I do remember him saying that he could not allow the DN to be faulty as it would set a precident by these charges being illegal.

He did (I think) mention that I thought that the T&C were not part of the agreement but, there not being any evidence to the contrary, he would allow it.

What about the T&C. They (HFC) are relying on a **edited** document entered as evidence.

 

Trevor,

 

I know passions are running high for you on this one, but we must protect the site from potential legal action based on comments made in threads for the benefit of all our members.

 

Isn't the Judge making a precedent on the charges by allowing the DN though? I think his summing up is the wrong way around! If you brought a claim based on the OFT TC Judgment, it would be stayed pending the final determination of that case - what happened here is the reverse, but the Judge made Judgment on those issues anyway by allowing it!

 

This looks like another procedural irregularity to me? (More grounds to appeal on, if you wanted to take the risk)

 

He was probably right to refuse to allow the new T&C, but if your submission included that new document you have, or queried the construction sufficiently enough to allow your WS to highlight those issues, it couldn't be considered as new evidence?

[trevor33]

Chris.

Another issue I think.

With regard to my Application to strike out. I received the following order on the day of trial. We get our post about midday. (I was in court at that time) I did phone the court and asked about it and was quoted the following.

"It is ordered that....Refused on paper. If the defendant wishes it can be re-listed on (ie trial date) but the trial is not vacated."

The way I read that is, I can get the judge to look at it but it wont do you any good as the trial goes ahead.

What do you think?

[car2403]

"It is ordered that....Refused on paper. If the defendant wishes it can be re-listed on (ie trial date) but the trial is not vacated."

The way I read that is, I can get the judge to look at it but it wont do you any good as the trial goes ahead.

What do you think?

 

Has this date passed now, though? (Trial date?)

 

It sounds like they wanted to hear the application, but only before/on the trial date, when the trial goes ahead if the application is refused.

[trevor33]

Sorry about the ooops.

I am very concerned about adding more to what I owe. If I have a very GOOD chance of winning an appeal, I will go ahead. Because of my last time in court, I do not feel comfortable with courts.

Anyway, back to business.

The T&C states that they can add £15 for charges, but this is only on the new version, not on my copy. I think they might use this to their advantage.

[car2403]

Was the Court hearing with a District Judge?

 

In theory, if it was, you should have a better chance on appeal, as it will need to be heard by a Circuit Judge, or above - this is the next level of Judge in the system. Usually meaning they are more experienced and prudent and don't usually just take things as read, as what seems to have happened here.

 

On the other hand, no Judge likes saying another Judge has done something wrong, from what I've seen.

 

As for the T&C's, the Judge hasn't considered those arguments, from your side or theirs, so I can't see how this works in their favour?

[trevor33]

There is nothing on the order to say which judge it was.

[car2403]

Doesn't really matter, actually - all appeals will be heard by the next level of Judge in the hierarchy, generally.

[trevor33]

AS I see it there is 2 issues here;

1. the DN is defective because of the charges. This is due to the OFT TS.

2. The judge not taking any evidence with regard to the T&C not linked the main agreement.

 

Just a further bit of info;

The judge would not take any pleadings that went on before the date of claim.

Their not complying with my SAR (still waiting for 1 acc).

Their late submission of Alocation Questionnaire (38 days).

Their not supplying any documnent to OH in disclosure list.

Disclosure list served late.

Their not supplying any other documents (Statements) until CPR pt18.

 

I think the judge was extreamly predudiced in my case. He said that I was only trying to avoid the debt.

[humbleman]

AS I see it there is 2 issues here;

1. the DN is defective because of the charges. This is due to the OFT TS.

2. The judge not taking any evidence with regard to the T&C not linked the main agreement.

 

Just a further bit of info;

The judge would not take any pleadings that went on before the date of claim.

Their not complying with my SAR (still waiting for 1 acc).

Their late submission of Alocation Questionnaire (38 days).

Their not supplying any documnent to OH in disclosure list.

Disclosure list served late.

Their not supplying any other documents (Statements) until CPR pt18.

 

I think the judge was extreamly predudiced in my case. He said that I was only trying to avoid the debt.

 

Judges are a law on to themselves. listen this out:

 

Had a crooked claimant (been bankrupt twice already) that made a claim against my company (some 10 years ago) it was a clear cut case I hired a top firm of solicitors. After the issue of the claim and apart from filing in the A.Q, the claimant had done nothing, I mean nothing, no disclosure, no list of document zilch turned up on the day of the hearing with a file 10" thick. My barristed asked the judge for an adjournment didn't agree, he had already made up his mind asked the claimant if he had his schedule of costs, argued for a bit got a judgement against my company, my barrister was gobsmacked to say the least. I was just you know what. Later transpired that the Judge was known to be C******** biased

Edited March 24, 2009 by humbleman

[robcag]

AS I see it there is 2 issues here;

1. the DN is defective because of the charges. This is due to the OFT TS.

Sorry to keep wittering on about this Trevor, but do the dates of the (non-original, probably 'EDITED' as it is re-constructed) DN actually add up when checked on a calendar (as I detailed a bit further up the thread)? Not sure it would now be admissable if they were found not to be correct if you didn't originally submit that argument ....

 

2. The judge not taking any evidence with regard to the T&C not linked the main agreement.

 

Just a further bit of info;

The judge would not take any pleadings that went on before the date of claim.

Their not complying with my SAR (still waiting for 1 acc).

Their late submission of Alocation Questionnaire (38 days).

Their not supplying any documnent to OH in disclosure list.

Disclosure list served late.

Their not supplying any other documents (Statements) until CPR pt18.

 

I think the judge was extreamly predudiced in my case. He said that I was only trying to avoid the debt.

 

Chris is giving you some great help and encouragement.

 

Well done Chris

 

Cheers

Rob

Edited March 24, 2009 by car2403
Removing potentially libellous content

[car2403]

Trevor,

 

I know passions are running high for you on this one, but we must protect the site from potential legal action based on comments made in threads for the benefit of all our members.

 

BTW, this doesn't only apply to Trevor...

 

[trevor33]

Chris is giving you some great help and encouragement.

 

Well done Chris

 

Cheers

Rob

Thanks Rob,

I relied so much on the amount being wrong in the DN that I did not give anything else as evidence. I will have a look though just to satisfy you and me.

 

Well, what do you know, I think it is wrong.

DN dated 15/4/04 (Thurs)

Remedy date 26/4/04 (Mon)

What do you think Rob

Edited March 24, 2009 by trevor33
Added para

[trevor33]

Chris, it seems that the only way forward (if I have the bottle) is to challenge the DN accuracy with the OFT TC. This will set a precidence though (I think) if I win. Propbably bankrupt me if I loose.

[car2403]

Chris, it seems that the only way forward (if I have the bottle) is to challenge the DN accuracy with the OFT TC. This will set a precidence though (I think) if I win. Propbably bankrupt me if I loose.

 

I don't think you'll get the precedent - it's probably more likely that any application to have the Judgment set aside (rather than appealing) would and should be stayed until the OFT TC outcome is known. Doing it this way may reduce the risk, although you may be deemed to be appealing the decision even if you don't use those words, and be treat as doing so...

 

Arrrrgggghhhh... Why isn't this just straightforward?!

 

I think we should avoid bankruptcy at all costs.

 

I do think we need some more help from the Site Team before we go ahead - probably from Paul? I'll see what I can do there for you too.

[trevor33]

Many thanks Chris. I do not know what time I have before HFC start making noises for payment.

[robcag]

Thanks Rob,

I relied so much on the amount being wrong in the DN that I did not give anything else as evidence. I will have a look though just to satisfy you and me.

 

Well, what do you know, I think it is wrong.

DN dated 15/4/04 (Thurs)

Remedy date 26/4/04 (Mon)

What do you think Rob

 

Hi Trevor

 

IMO, on the face of it on your reconstructed DN I'm sorry to say that it looks like they gave you the required 7 clear days (unless you can prove it was sent 2nd class post).

 

DN dated (presumed posted) 15/4/04 (Thurs),

So assuming 1st class post, deemed served 19/4/04 (Mon)

Days to rectify therefore run from 20/4/04 to 26/4/04, which on my fingers makes 7 days.

 

I searched the web to find out what dates the easter bank holidays fell on in 2004 to see if that would help, but unfortunately it was before that DN was allegedly issued, with easter sunday being on 11/4/04.

 

You may be aware that several people (to my certain knowledge) on their CAG threads have stated they have been provided with reconstructed DNs by HFC, only to later find that they still have their original which gives different dates. In some of these cases the original DN has been found to be defective, whilst the reconstructed DN has miraculously found to be compliant date-wise. Draw your own conclusions.

 

I have to say that in my own case the photocopy of the (defective) HFC DN that Restons sent me actually had exactly the same dates as the original (also obviously defective), but that was probably before HFC realised that mistakes had been made in their method of calculating dates.

 

So it looks like unless you can prove 2nd class postage or find the original DN then unfortunately that avenue is closed.

 

Cheers

Rob

[trevor33]

Thanks Rob.....it seems I ight be stuffed with this one!!

[Hopeful1]

Hi Trevor, i'm sorry to see how this has turned out. These fights are hard fights aren't they? Thinking of you x