HFC/Restons/Charging Order - ***ORDER REMOVED***WON***

[pt2537]

well, the main thing to remember and im sure Sequenci will correct me if im wrong (setting aside judgments isnt my strongest point, i prefer not getting them in the first place) but you need to show the court that you have a reasonable prospect of defending this action

 

so you need to ideally concentrate on the key salient points of your arguement, the lack of an LBA while relevent, would be quite low down the list, i owuld go for the strong grounds first,

 

the agreement supplied is largely illegible and not in compliance with the Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 (SI 1983/1557) in particular s2 of those regs

 

it is improperly executed as it fails to contain the prescribed terms as required by schedule 6 coloumn 2 of the Consumer Credit Agreement Regulations 1983

 

the amount claimed contains charges where there is no contractual or legal basis for doing so

 

Was there a default notice issued? if not then they shouldnt have taken action til it was

 

regards

paul

[robcag]

I CCA'd and SAR'd HFC back in March this year but all they sent me was 6 years worth of statements (and my £11 PO was returned), nothing else.

 

Regarding a DN, I have since found the original and I can show that it is defective (having just won another seperate case against HFC/Restons with the help of other CAGgers - mainly pt2537 - due to an identical defective DN).

 

Cheers

Rob

[Satterthwaite]

PT 2537,

Thanks for your input I have checked I did not receive a LBA, I take your point about using the strongest grounds first.

[Satterthwaite]

:idea:Even though i have never done one of these before I thought I could have put it together quite easily, I am really not sure that what i have put together is right, or indeed comprehensive enough for a form N244.

Any help would be appreciated on what I have done so far, if it is wrong please say so as I desparate to get this right.

Thanks

 

I wish to rely on the following evidence as grounds to have the CCJ set aside.

The agreement supplied to me at my request is largely illegible and not in compliance with the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) in particular s2 of those regulations.

 

It is improperly executed as it fails to contain the prescribed terms as required by schedule 6 column 2 of the Consumer Credit Agreement Regulations 1983.

 

No terms and conditions that were in force at the time of the application have been received.

 

I deny that there has been any failure to make payment in accordance with the alleged contract. As HFC have failed to produce a properly executed credit agreement and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, I aver that no agreement has ever existed for there to have been any failure to make said payment.

In respect of that which is denied, during the period in which the Account was operating HFC have debited numerous charges to the Account in respect of purported breaches of contract on the part of myself and also charged interest on the charges once applied. I understand that there is no contractual or legal basis for doing so. Accordingly I put HFC to strict proof that every charge and collection charge made to the account was valid and lawful. I aver that any default notice sent would have included these charges.

 

It is denied that any Default Notice in the prescribed format was ever received and I put HFC to strict proof that said document in the prescribed format was delivered to me. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach. If HFC sent a default notice that includes unlawful charges, this default notice is invalid under English law for the reason that it is inaccurate and so the claimant may not seek to enforce this debt.

No Letter before action in the prescribed format was ever received and I put HFC to strict proof that said document in the prescribed format was delivered to me.

:idea:

 

 

[pt2537]

IMHO, its good, but could do with a couple of tweaks to add strength

 

if you can bear with me, i will see what i can do and post my suggestion to be critiqued

[Satterthwaite]

Hi Paul, thanks tweak away.

[Satterthwaite]

bump

[Satterthwaite]

Hmm, I have received the letter repruduced below, I am not sure where this leaves me but I will certainly be whizzing a S.A.R - (Subject Access Request) off to them on Monday morning. After a quick look around it seems I am not alone.

 

[Satterthwaite]

To be within the Law of Property Act 1925 NOA must be served via recorded post, they must have proof of posting to prove the service was effected.

Also there is no amount mentioned, does this render it inefective?

[miffedpuppy]

Er correct me if I am wrong but from reading threads on here, the NOA should have been sent by HFC and by registered post before you got one from Marlin

[Satterthwaite]

miffedpuppy,

Yes, I believe that is the case.

[Satterthwaite]

Received the result of my SAR, that was quick.

All it shows is the payments I have been making through my DMP but it does show that Restons have taken some legal action re the charging order.

No CCA, T&C's etc

[Satterthwaite]

I would appreciate any thoughts on my post at no.29

[interweb]

Hi Guys

 

I've been reading other threads and this one. It looks like there are some of you (Conar686, Robcag, Boss-mann etc.) in the same position as me and that is that HFC/Restons managed to take out a charging order against us before we came across CAG website.

 

We've had letters from Marlins. The threads appear to have come to the conclusion that the assignment was not legal therefore I have decided to ignore Marlins and still send my monthly payment direct to HFC.

 

In the first instance, I guess, we need to overturn the original CCJ. Has anyone managed to do this yet? I think 'Satterwaite' was in the process of applying??

 

Best Regards

 

Interweb

[OnMyWayOut]

I am definitely looking into the possibility....

[interweb]

Hi

 

I CCAd HFC a couple of weeks ago and have recieved a reply from them.

 

What they have sent me are the copies of the last 6 statements up to January 2008. It was passed to Restons in Dec 2007. I have continued making payments though since January 2008.

 

They have also sent me a 1 page semi legible copy of my original application form from 1997. At the top you can just about make out "Credit Agreement regulated by the Consumer Credit Act 1974." But it sort of says this twice, like it was superimposed badly....???

 

Does what they have sent me constitute compliance with my request?

 

Thanks for any help and advice in advance.

 

Interweb

[robcag]

Hi

 

I CCAd HFC a couple of weeks ago and have recieved a reply from them.

 

What they have sent me are the copies of the last 6 statements up to January 2008. It was passed to Restons in Dec 2007. I have continued making payments though since January 2008.

 

They have also sent me a 1 page semi legible copy of my original application form from 1997. At the top you can just about make out "Credit Agreement regulated by the Consumer Credit Act 1974." But it sort of says this twice, like it was superimposed badly....???

 

Does what they have sent me constitute compliance with my request?

 

Thanks for any help and advice in advance.

 

Interweb

 

Hi Interweb

 

You need to start your own thread and post up your alleged agreement (after obscuring your personal details).

 

Maybe you could post a link here to your thread.

 

Cheers

Rob

[interweb]

Hi Rob

 

Thanks for that.

 

Have started new thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/152393-hfc-restons-charging-order.html#post1618433

 

Rgds

 

Interweb

[katakana69]

Hi, I am new to the site today although not a newbie in the life of debt. I have been managing to pay all of my debtors agreed amounts since admitting to having over £30k of debt back in July 06. All of my debtors have been great apart from HFC. In retrospect HFC went for a default CCJ & then a charging order as soon as they found out I am a property owner. Although at the time of court proceedings I got the collection charges from Restons dropped I never received a copy of my original Ts & Cs as requested from HFC. They sent me an illegible copy of my application form. They also refused sending me a copy of all data held & returned my £10 cheque. The court didn`t see a problem with this & the most help I got was a postponement of the CO hearing when I stated that none of my other creditors had been notified of proceedings. Anyways, to cut a long story short they got the CO last August 07. Agreed £30 month to Restons. Requested again copy of original Ts & Cs & also a breakdown of what interest & charges they were adding & received nothing. Just received a letter exactly like the one on this thread headed MARLIN Financial which is an NOA. I haven't receved anything from HFC or Restons. Should I just ignore their request to pay them & carry on paying Restons? Tried phoning & cant get thro. Only want to deal in writing preferably any way. Some advice would be good please... Thanks in advance.

[OnMyWayOut]

Report HFC to the Information Commissioner for breaching your rights under the Data Protection Act to be provided with a copy of the data they hold on you. Send them a copy of anything you have from HFC/Restons as proof if you have it.

 

Report HFC & Restons to the Office of Fair Trading & Financial Ombusman Service - all of us who have been treated like this by this shower of **** should do the same. Also inform your MP.

 

Send a CCA request to Marlin.

 

Make sure anything going to HFC, Restons or Marlin is unsigned.

Edited July 19, 2008 by OnMyWayOut
Added a bit

[Satterthwaite]

Katakana,

I was paying Restons through a DMP with CCCCS so I have cancelled payments to them and I will not be paying Marlin a penny.

In the mean time I intend to have a good go at getting the CCJ overturned, I just need a little help getting my N244 right which is at post 29.

[katakana69]

OnMyWayOut & Satterthwaite, Many thanks for that. I feel strong enough to go for an overturn of the CCJ. At the time it was so hard as I was dealing with all of them at once & although I was following guidance from CAB everything they said wouldn't happen did. I even got to the point where we put the house on the market to pay off all of my debts but because of the state of the housing market we cant even sell up. Really winds me up that those of us that are genuinely trying hard & taking responsibilty for situations that just got out of hand dont get fair treatment. I am ready to go for it now & will pick up on the other threads that are referred to on here & sort out a plan of action. Will keep you informed, & good luck to anyone else reading this in the same boat!

[katakana69]

Forgot to say, I have got every bit of paperwork ever sent & received & it all went recorded delivery. I have re-instated my payment to Restons today though just in case I get accused of defaulting on the agreement regardless of the letter from Marlin. Cant risk any action on the CO as property is joint owned with my hubbie.

[pt2537]

ok on the N244 in box 3

 

 

An order (a draft of which is attached) that the order made by [insert name of judge/master/district judge] dated [insert date of the order] be set aside because default judgment was entered by request of the Claimant on [date] notwithstanding that the claimant did not hold a valid and enforceable credit agreement in compliance with the Consumer Credit Act 1974. The Defendant requests that the court set aside the default judgment pursuant to 13.3 CPR. as the defendant has a real prospect of defending this action

 

 

 

then this is the draft order that you attach to the N244

 

 

IN THE XXXXXXXX COUNTY COURT

 

 

Claim No:

 

 

 

BETWEEN:

 

 

[ ]

Claimant

and

[ ]

Defendant

draft/ORDER

UPON reading the Defendant’s application notice dated […]

 

 

IT IS ORDERED THAT:

 

 

• The judgment in default dated [ ] on the request of the Claimant dated [ ] be set aside.
  
• The Claimant do pay the Defendant’s costs of the application, to be assessed by the court.
  
• The Defendant do file and serve his Defence to the claim by no later than [ ].
  
• The Claimant do have permission to file and serve a Reply by [ ].
  

 

 

 

 

 

 

 

 

 

 

then in box 10

 

 

the defendant respectfully asks that the court set aside judgment entered by default on xx/xx/ 2008 at XXXXXX County Court before District Judge XXXXXXXX

 

The defendant being a layman and litigant in person and without the knowledge or assistance of legal advice while under a Debt management plan wrongly tried to negotiate with the claimant albeit in error and ignorance of the court procedures, however judgment was entered at the request of the claimant. the defendant upon receiving guidance on his case believes that there is a good prospect of success in defending the action for the following reasons

 

the defendant requested that the Claimant, who is the purchaser of delinquent debts, supply a copy of the credit agreement which the claim was based upon. in response to this request an illegible document purporting to be the contract, this failed to satisfy the requirements of the Consumer Credit Act 1974 or the requirements of Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 (SI 1983/1557) in particular section 2 which states

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

the defendant asserts that the claimant has or had a duty to supply the agreement in a legible form as evidenced by section 2 of the Consumer Credit (Cancellation Notices and Copies of Documents)Regulations 1983 and complaint with the form and content requirements of the Act and Consumer Credit Agreements Regulations 1983

 

Furthermore the claimant failed also to provide the defendant with a Letter Before Claim as required by the CPR pre action Protocol and their particulars of claim were vague , insufficient and failed to disclose a sufficient statement of facts to allow the defendant to plead even giving allowance for the claim being issued via the Bulk Centre in Northampton

 

In addition , No default notice as required by section 87 of the Consumer Credit Act 1974 was received from the claimant and the defendant considers that without a validly served default notice the claimants claim could not progress notwithstanding the fact that the claimants claim is as it stands irredeemably flawed

 

 

based upon these facts and given the large body of case law in respect of Consumer Credit Agreements the defendant is of the belief that he has a good prospect of successfully defending a claim based on these facts and respectfully asks that judgment be set aside

 

 

 

 

Have a read through, check the facts and let me know if anything is wrong

 

you may be successful you may not, i really cant offer any guarantees

[pt2537]

Sorry about the delay in getting back to you by the way