HFO claimform - old Morgan Stanley Card Debt **WON**

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fake

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All these were submitted as evidence and they got away with it.

[DonkeyB]

I will gladly supply you with a copy of my fake NoA - it is in the same format and has the same spelling mistakes, but just from a different bank. Got to stop these ar******s getting away with this.

 

Can anyone help on how to move forward to getting this judgment set aside or appealed?

 

You'll have to be highly forensic in repudiating their evidence - plenty of us will be only too pleased to help.

[broken arrow]

Hi DonkeyB,

I have got a copy of UK26 NOA and vice versa, his is Barclaycard, I am presently awaiting a copy of judgement and believe I have 14 days to appeal after, hoping Paul (pt2537) could advise on this.I am more than likely going to be using a lawyer as the judge gave me no chance as a litigant in person, if I lose and it costs more money so be it but I feel I need to at least try.If I win all costs can go to CAG.

 

Any advice will greatly appreciated.

 

Thanks

 

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[DonkeyB]

This is going to be tough, and I'm sure you'll need to PM a few experts to have them examine the thread in full. A technical and forensic defence - if that's what it takes - is still a defence, and I'm sure we have the guys on this forum to get a result.

 

Let's keep it bumped!

[DonkeyB]

Bumping for advice for Broken Arrow on appealing this.

 

Best be prepared, cos you can guarantee HFO will probably make a bee-line for a charging order as soon as the paperwork arrives.

[Rosie_123]

I'm sorry I have no legal advice broken arrow, - but I just wanted to wish you luck and let you know that I still think of you and wish your luck. Our cases against HFO ran almost parallel for so long, and I still feel so upset that you got such an unfavourable outcome whilst I was lucky. I hope some of the good people here can help you in your case.

[Docman]

BA,

 

I'm out of the UK now until next Thursday but when I'm back I scan in the NOA I had from our friends and PM to you. They should be useful but looking at yours and reading UK26's posts, I think you will find they are exactly the same - more ammunition.

 

In the meantime, if you are thinking of hiring a solicitor, you could start to set out the forensic examination of everything. A solicitor will not have your detailed knowledge and may miss something vital unless you spell out everything about NOAs, S78, and the CCA in general. That said, if you can afford a solicitor, it might be time to bring one in to act for you.

Edited September 25, 2008 by Docman
typo

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Cheers Docman

I think the evidence is in my favour, I just need someone who can get across to the judge, who did not want to listen to my reasoning why their claim should not be enforcable.His argument being I borrowed money pay up.

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s 136 of the law of property 1925 states

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]

Questions

Under the hand of the assignor, does this mean the original creditor

Can he in any way discharge this duty to the Debt collector/assignee

Should a Notice of assignment be signed

 

Answers to these question and any other relevant input regarding Notice of assignment would be greatly appreciated

[Docman]

Hi BA,

I suggest that since s196(4) LPA1925 requires that a valid NOA must have been served on the Defendant by recorded delivery before court action for the assignment of a debt to be effective, the NOA must come from the OC and cannot be given to someone else purporting to be the OC. That said, I think there is a case where the solicitor for the DCA wrote to the debtor and that was held to be a valid assignment. Not sure of the case though.

[broken arrow]

Cheers Docman, taking your advice and being forensic.any more info regarding NOA.s much appreciated.

 

Spoke to OC today and they say they allow DCA to give NOA on their behalf.

[Richard Spud]

I understand that for a legal assignment to come into existence to allow the purported Assignee to sue in their own name singularly against the alleged debtor (otherwise an equitable assignment would be created) that the NOA MUST be delivered to the debtor prior to proceedings being started. I suggest that proof of posting is insufficient, cogent evidence would be proof of delivery.

[patrickq1]

proof of posting is insufficient, cogent evidence would be proof of delivery

can you clearly explain what this means richard i am a bit on the slow side tonight

patrickq1

[patrickq1]

had a look through wiki to understand what it meant richard this is the conclusion

patrickq1

Ambiguity of Narration Language is ambiguous and several meanings can often be ascribed to the same word. It may be that only the maker of the statement knows what he meant when he used the particular words in question

[popeye1]

Do they not need a Deed OA first , signed by both parties and a witness

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Any answers to allowing assignor to issue NOA on their behalf.

[UK26]

subs

[semyaza]

subbed. This is an interesting question.

 

On my first instance in court the Judge seemed to think the notice of assignment was ok and above board but then at the time I wasn't using this in my defence so maybe wasn't scrutinised. I have been sent copies of letters supposedly sent to me titled Sale of your Debt but not from the original creditor.

[surfaceagentx20]

Broken Arrow,

Following on from your PM to me ..

 

Any application to overturn this decision will have to be by way of appeal. It was a decision made in your presence at a hearing. It is not a default judgment.

 

The judge made two decisions. The first was to refuse your application to strike out the Particulars of Claim. The second was to strike out your Defence. As far as I can tell, the decision to strike out the Defence was not made on application by the claimant, but rather was by the court of its own motion under CPR Part 3. I am assuming the decision to strike out the Defence lead to the Claimant obtaining judgment.

 

It seems to me that any appeal should be limited to the decision to strike out the Defence. At the moment I am not familiar with the issues raised in the Defence and whether there is any merit in those issues. However, on the strike out order, it seems to me that striking out your Defence in circumstances where the claimant had not applied for strike out and you had not received any prior notice that there was a risk this might happen on the day, was wrong. You ought ot have been given an opportunity to prepare to argue against strike out. I would be looking to centre my appeal around this aspect of the Judge's conduct of the case.

 

How to proceed with an appeal depends upon a number of factors to include:

[1] what track was the case allocated to?

[2] was permission to appeal sought at the original hearing and if so, was permission granted or refused?

 

I suspect you did not formally seek permission to appeal.

 

The time for appealing is 21 days from the date of the decision, not the date on which the written decision arrived in the post. You are likely to be out of time for appealing and you will therefore need to include in your appeal notice a request for [1] permission to appeal and [2] an extension of time for the filing of the appeal notice.

 

The appeal notice will need to deal with the grounds of appeal to include a skeleton argument and the reason for the delay in making the appeal and the steps taken to bring on the appeal prior to making it. Additionally, if there is a judgment you will probably want to apply to stay execution pending a decision on any appeal.

 

If you decide to proceed, this will be a rough and rocky ride and something you will need to get on with rapidly.

 

The first thing I suggest you do is produce a scan of the order to be appealed and simultaneously familarise yourself with Form N161 and Form N161A. Then let us know whether you want to go ahead with an appeal. There's no point in the rest of us putting our heads together for you and involving us in a lot of time and effort if you're not serious about proceeding with an appeal.

 

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Thank you for your reply, With respect to the strike out of my defence I did receive a witness statement the day before the hearing with a request to strike out my defence.

 

I did mention to the judge at the hearing about appealing, he told just to go and see a solicitor.

 

As a litigant in person I was walked al over, in hindsight I should have not made the application, I was not aware of CPR part 3.3.

 

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[Docman]

Hi BA

I'm sure others can help with the wording of an appeal as I can’t put it in the right format. I can only offer the following.

IMO, HFO had to prove 3 points

1. The a valid enforceable agreement existed.

2. That there was a valid default notice served; and

3. That a valid Notice of assignment was served upon you.

Valid CCA

The agreement may have the prescribed terms but if they are there, they are illegible. The agreement hasn't been signed by the creditor and may be unenforceable. You don't seem to have made anything of this in your defence but I'm not sure if you can now introduce it.

Default Notice

I cannot see any default notice being submitted although it is referred to in HFO's witness statement. Incidentally, how can HFO Services Ltd make a witness statement about what Morgan Stanley did or did not do? HFO Services is not the claimant and certainly isn't MS.

I suspect HFO don’t have a default notice, or they would have included it in their witness statement

Notice of Assignment

Yep, another NOA special from Wimbledon. I would argue that this is a forgery and therefore cannot be relied upon. If you look at the contract between MS and HFO, you will see that Morgan Stanley Bank International limited with company registration number 3722571 entered into an agreement with HFO Capital Ltd, a Cayman Islands registered company. Your NOA purports to come from Morgan Stanley Bank International Ltd but the registration number is for another company. I think you can argue that the NOA was wrong and therefore invalid per the case of W F Harrison & Co Ltd v Burke and another{1956] 2 All ER 169].

Best of luck

[surfaceagentx20]

The claim Form was received on 9 May 2008 and the POC which BA sought by application notice to strike out said this:

 

The Claimant HFO Capital Limited is a debt purchase company.

The Claim is for monies due under a regulated interest bearing credit agreement.The assignee HFO Capital Limited purchased the defendants account and all rights and obligations attaching therto from the original lender on **/**/****.

The original lender was Morgan stanley/Goldf

a letter of assignment has been provided to the defendant previously.

the claiment also claims interest theron pusuant toS.69 of the county court act 1984 at the rate of 8.00% up to the date of of ( their typo not mine) judgement or earlier payment in full at the rate of 1.23 per day.

Contractual interest was accruing on this debt prior to issue and will continue to acrue at the rate of 12% after judgment.

 

The Defence entered and which was struck out said this:

 

In the particulars of claim the claimant refers to a letter of assignment has been provided to the defendant previously no such document has been provided to the Defendant. The Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

No Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet.

In an attempt to ascertain what grounds the claimant is bringing this action and to allow me to prepare my defence I requested on 20/05/2008 the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of any Credit Agreement and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

Alternatively if the court decides not to strike out the claimants case, it is requested that the court orders full disclosure of the requested documents pursuant to the Civil Procedure Rules.

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, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act1970. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

I respectfully ask the permission of the court to amend this defence when the claimant provides the above documents.

 

Statement of Truth

I xxxxxxxx, believe the above statement to be true and factual

XXXXXXXXXXXX

 

The Notice of Assignment was received on 27 May 2008, nearly three weeks after the proceedings began. The Notice appearing at post no145 is a notice from Morgan Stanley. It carries a date but the date is obliterated. I imagine it pre-dates the date of issue of the proceedings. It is not signed. It gives notice the debt had been sold to HFO Capital Limited.

 

BA therefore made an application if Norm N244 for an order to strike out the Particulars of Claim. The application came on for hearing on 19 September 208. The day before the hearing the claimant served a witness statement exhibited to which was a copy of the credit agreement, sale agreement beetween OC and HFO, statements from card account and notice of assignment. The witness statement included a request that the Defence be struck out.

 

At the hearing the Defence was struck out and Judgment awarded to the claimant expressed in this way 'in the sum of £5194.85 debt including interest of £638.48'. Added to that was £350.00 for costs summarily assessed. The total of £5544.85 was expressed to be payable forthwith.

Additionally, HFO Services Limited were substituted as Claimant in place of HFO Capital Limited.

 

In my opinion there are a number of shortcomings in relation to the order.

Remember, the hearing was convened to determine an application to strike out the Particulars of Claim.

[1] The order is silent as to the result of BA's application.

 

[2] The order was made in the absence of an application notice stating sufficient grounds from the Claimant for

[a] an order striking out the defence (as would be required under CPR 3.5), and

an order substituting HFO Services for HFO Capital (a would be required under CPR 19.4)

Alternative to and in truth, an application for HFO Services to be added as a party in substitution of HFO Capital would be an application made by HFO Services and not HFO Capital, since it would be HFO Services who would have an interest in being added, not HFO Capital.

 

[3] In the absence of an application for strike out made by the Claimant the court's power to strike out was limited to the powers available for it to use on its own initiative under CPR 3.3 in combination with CPR 3.4. When striking out the judge was bound by these rules if he beleived the Defence was meritless, to state as much in the order. The order merely records strike out without any explanation or reason for doing so.

 

[4] BA applied for permission to appeal but his request was contemptuously rejected with a suggestion he go see a solicitor. As such the order failed to comply with CPR 40.2(4) by failing to state permission to appeal had been refused and the appropriate appeal route (on which BA may rely in relation to the delay in bringing an appeal)

 

Additionally, I take the view there were a number of shortcomings on the Particulars of Claim

 

[1] The Particulars of claim neglected to disclose a principal debt (at least, that looks to be the position on the text of the POC as posted)

 

[2] The claimant neglected to comply with CPR 16.4(2) (Contents of Particulars of Claim where interest is claimed). Further there was a dual claim for interest both contractual and statutory. In relation to statutory interest under County courts Act 1984 section 69, there was

[a] no statement of what sum within the debt constituted interest nor

from when interest was claimed nor

[c] the principal debt upon which interest was to be calculated.

[d] since the Claimant alludes to a contractual right to interest there is

[d1] no statement whether any and if so what sum has already been included for contractual interest in order to avoid the alowance of interest upon interest (ie statutory interest on contractual interest) as provided by county court Act 1984 section 69(4) and

[d2] no statement explaining why contractual interest at 17% or so had been abandoned in favour of statutory interest at just 8% and

[d3] no statement why in law the Claimant who had abandoned a claim to contractual interest should be allowed to restore such a claim and claim contractual interest post judgment and if so, why at a rate which was different to or less than the contractual rate.

 

In the circumstances an application to strike out the Particulars of claim was not wholly without merit, though in my opinion was somewhat brazen.

 

Nonetheless, what is in issue here is the order the Judge made for striking out the defence. In the absence of an application made by the Claimant setting out grounds and a statement of reasoning made by the Judge I am in difficulty in appreciating why the Judge should regard the Defence as wholly without merit so as to strike out every aspect of it. I note for example the Defence denies service of a default notice and a default notice has not been produced in evidence. As such the non-service of a default notice would constitute a valid defence to the extent the Claimant had terminated the agreement and sought accelerated payments.

 

In the circumstances I think there are reasonable grounds for supposing an appeal would be successful. The delay is a problem but may be excused hopefully where there are good grounds to appeal and moreover after having sought permission to appeal the order neglected to deal with that fact and what to do.

 

Further Thoughts

Of note is the judgment neglects to record that the Claimant has been awarded post-judgment interest at 12% and therefore in the absence of such an award the Claimant will be precluded from recovering post judgmen interest by reason of The County Courts (Interest on Judgment Debts) Order 1991 which precludes the recovery of interest on sums less than £5000.00 or under agreements regulated by the Consumer Credit Act. Watch out for that in any enforcement action.

 

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