HFC via Weightmans LLP set aside statutory demand! *** WON ***

[terlyn1104]

Thanks Tiglet

 

It would be great if you could advise me of what to point out in the consumer act and insolvency act

 

Am I correct in thinking that because they have not provided a full breakdown of charges and not sent a default notice as suggested that this could be what I quote?

 

With regards to the insolvency act - again am I correct in thinking that the point to make is that it should not be used as a 'debt collection tool' and that the debt was in dispute and therefore should not have been pursued in the manner of which it has

 

Your help would be really appreciated

 

Thanks

[42man]

Have a look here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/164580-capquest-sd-please-help.html#post1769594

[42man]

And yes absolutely correct....generally Judges do not like the Insolvency Act used for debt collection.....but it depends on the judge on the day....

[terlyn1104]

this is great 42man

 

reading through the default notice area it looks like they are snookered!

 

and because they terminated the agreement september 08 and I did not receive the default notice until 7th March 09 they are def in breach of the CCA

 

Furthermore both the default notice I did receive and the one they 'say' I received are inaccurate show different amounts!

 

I have cut and pasted this and added to my documents ready for tomorrow

 

Thanks again

[tiglet]

Got there before me 42man!

[terlyn1104]

Thanks so much guys for all your help

 

After going through the default notice section yet again!

 

Have noticed that the default notice HFC did send me dated 28th Feb 09 asks for all sums owed to be paid by 20th March 09 - if not paid by on or after this date then further action will be taken and the agreement will be terminated with effect from this date

 

ermmmm did they not already terminate the agreement on the 1st Sept 08 and assign Weightmans on the 3rd Oct 08 - as per weightmans witness statement - and if they HAD sent the default notice as stated dated 18th August 08 - why send another one? - furthermore, a SD was served on the 3rd March 09 17days before stating action would be taken

 

I feel so confident now guys - will update you tomorrow

 

wish me luck!

[foolishgirl]

Got there before me 42man!

 

It's becoming a habit - think you should change your ID to 'quickoffthedraw' or similar, 42man!

[foolishgirl]

 

Have results (did very well) and am just waiting for enhanced CRB check back then I'll start my work as a tribunal advocate.

 

 

Excellent! Congratulations

[terlyn1104]

Hi Guys

 

Just wanted to let you know that I have just got back from my application hearing to set aside a SD and i have WON!!

 

The judge ripped the others solictor to pieces - asking her three times why her client did not go down the county court route and chose instead to issue a SD which is a complete abuse of the collection process!

 

He also questioned all the charges and was bemussed as to why her client had charged three times in the same month!!

 

He said that it is clear from the debtors application and documents enclosed that there is a clear dispute to the debt and your client has still not resolved this dispute

 

Judge advised to negotiate payment with creditor as they may now start county court proceedings and to be mindful of the costs involved, however, from your evidence you would have a good case!

 

I didnt even get chance to speak!

 

prior to going in the other sides solicitor asked to talk through the application - and when I challenged about not receiving the default notice she said they dont have to confirm it has been received but have to confirm it has been sent - when I referred her to copies electronic documents from the client which clearly had no entry of the default being sent but had the entry of the default I had received 5 months after issuing the SD she said 'where have you got this from?'

 

She even acknowledged to the judge that the figures did not add up and her client assummed that they could work them out!

 

I am now in the process of writing to the creditor to get a true copy of my statements up to date, costs / charges and interest and will work out an offer from there - if they refuse or we do not come to an agreement looks like it will go to court who I would think will not be happy that negotiations were not reached!

 

Just like to say thanks again guys for all your help - it tool me 12 hours yesterday to write my defense and I never even started it! - the judge was brilliant and made the other side solictor stutter!

 

:-D:-D:-D

[clemma]

Well done - you had a fantastic judge there. So pleased for you :D

[42man]

Did you get your costs Terlyn ??

[terlyn1104]

no - other solicitor opposed them due to the fact that I could have obtained 'free' advice from CAB etc... and that it was my duty to respond to correspondence anyway!

 

Which was a shame at first it looked like the judge was going to award them but when she said that he agreed!!

 

But he did say if it did go to county court because of the work that has been involved to increase costs!

 

Solicitor was very helpful when I came out she admitted even she couldnt work out the amounts did say that my defense was excellent and I have been very successful! pat on the back for me!

[babybear39]

Congratulations

[Thailand]

The judge ripped the others solictor to pieces - asking her three times why her client did not go down the county court route and chose instead to issue a SD which is a complete abuse of the collection process!

 

Wow! I've never read that before - brilliant.

[42man]

Seeing your defence would be useful T....? Are you happy to post it up ?

[terlyn1104]

yes no problem - how do I do that?

[babybear39]

Scan the document, upload it to something like photobucket and then post the img link on here

[terlyn1104]

Sorry my scanners not working!

 

I have cut and paste below - if someone can create a link to it then great

 

Refuting witness statement of ? and debtors defence

P 5. With regards to the amount payable under the above agreement, the total amount paid from the debtor totals £2,213.40 as per statements provided

(Refer to appendix 1)

P 6. This is incorrect - Payment Protection Insurance was cancelled on the above account in November 2007 as per the attached confirmation letter from ? so therefore monthly payments were reduced from £65.60 to £56.55.

(Refer to appendix 2)

· Is the creditor assuming that a default has occurred because the PPI has not been honoured?

P 7. This is incorrect monthly payments were £56.55 as per above

P 8. It is denied that any Default Notice in the prescribed format was ever received on the said date and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

Notwithstanding the above points, 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)

(Refer to appendix 3 and copy marked TM2 from witness statement)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without a valid default notice, I suggest the claimant’s case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

· Date of termination of said account 1st September 2008 as per Mr M witness statement

· Date of Default Notice sent 28th February 2009

· No electronic record of default notice dated 18th August 2008 (as per Mr M witness statement) being sent from creditor

· Electronic record of default dated 28th February 2009 sent

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

P 9. As no arrears or default notice was received at that time the debtor was unaware a payment of £56.10 owed and required by the date stated.

The only arrears notice received was in November 2008 and dated 18th November 2008, 6 weeks AFTER the debt was assigned to ? and 10 weeks AFTER terminating the agreement as per the witness statement thus again showing a different amount to the one seeking to recover

(Refer to appendix 4)

P 10. The entire outstanding balance stated of £1,481.34 shows no consistency with the default and arrears notices received as above.

P 11. It is clear from the statement made that ? are charging interest on Payment Protection Insurance which was cancelled in November 2007

(Refer to appendix 2)

P 12. The amount quoted by Mr M in unlawful penalty charges is incorrect, as per statements from ? the total amount charged is £475 (up to 18th August 2008 and an additional £65 thereafter), furthermore, as Mr M has stated interest has also been added to these charges.

(Refer to appendix 1)

P 13. As stated ? were instructed on the 3rd October 2008 to recover the balance as stated by ? of £1,481.34, however, the letter received on this date was seeking payment of £1,635.14, again no consistency with amounts, several letters from ? seek differing amounts as detailed below:

Letter dated 3rd October 2008 outstanding balance £1,725.45

Letter dated 10th October 2008 outstanding balance £1,730.14

Letter dated 20th October 2008 outstanding balance £1,635.14

Letter dated 12th March 2009 outstanding balance £1,715.64

(Refer to appendix 5)

Furthermore, as per the default and arrears notices received from ? dated 26th and 28th February 2009, when adding ? charges as confirmed in the witness statement of £242.94 the amounts seeking would be £1,538.44 and £1,638.52 respectively, again no consistency in amounts seeking to recover

(Refer to appendix 3 and 6)

P 14. This is the first time, after requesting on several occasions that ? have finally confirmed their charges of £242.94

P 15. With this added to the amount requested by ? of £1,481.34 the total is £1,724.28? However, ? amount to recover is £1,629.28? Once again no consistency with amounts

P 16. I queried the amounts to recover on several occasions due to the non consistency of the amounts stated, and the payments already made to the account with regards to the total amount payable under the agreement. Therefore the account was in dispute until the correct information had been received, ‘a true breakdown of the true balance outstanding and how you have come to these figures?’ to date both ? and ? have yet to fully breakdown the amount they are seeking, there are clear discrepancies in all figures.

(Refer to appendix 7)

P 17. This is incorrect – the reason the statutory demand was NOT issued on the 21st January 2009 was because the account was in clear dispute, of which this was confirmed by ? in writing on the 28th January 2009, it is unfair practise under the OFT guidelines to continue to pursue a debt when in dispute

(Refer to appendix 8)

· A formal complaint was made to OFT and Trading Standards

(Refer to appendix 9)

P 19. The above is a blatant excuse as to why ? continued to pursue the debt when in clear dispute and has not complied with his obligations required pursuant to the consumer credit act 1974; they have clearly issued the demand as an abuse of process.

· The account was clearly in dispute

· No default notice was ever sent at the time of issuing the statutory demand or at termination of the agreement; the default notice was dated the 28th February 2009 and received 7th March 2009.

· As confirmed by ? in writing the account was on hold due to the dispute

· All information requested from ? was not received, correspondence was sent requesting information on several occasions

· The statutory demand was served on the 3rd March 2009 even when the account was still in dispute

· A letter received from ? dated the 11th February 2009 asking for proposals for settlement within 14 days yet also confirming that if not heard by 4pm Wednesday 11th February 2009 further action would be taken, so no 14 days were given to allow for any proposals to be made and furthermore, all information requested had still not been received.

(Refer to appendix 10)

· I also dispute that I was in default with ? in the first instance, ? confirmed that April and July 2008 payments were missed and that the payment made on the 3rd October 2008 of £95 was insufficient to clear the arrears of £113.10, however overpayments had been made to the account of £30.15 and the total arrears as at 3rd October 2008 were £12.05 credit and no arrears as stated

(Refer to appendix 11)

· Both ? and ? have included substantial unlawful penalty charges, therefore increasing the debt when clearly the account was never in default in the first instance

P 20. The amount claimed within the statutory demand once again is not consistent and does indeed include a substantial sum of unlawful penalty charges being;

• £540 charges applied from ? and not £389 as stated by Mr M
  
• £242.94 additional charges incurred from ?
  
• £? Interest on Payment Protection Insurance which was cancelled November 2007
  
• £? Charging for PPI which was cancelled
  

P 21 and 22. Given that the total amount payable under the agreement is £2,714.40, less payments already made to the account of £2,213.40 leaving a balance of £501, even with the charges added from ? of £242.94, the debt would fall under the statutory insolvency limit of £750 (total £743.94)

P 24.

• If no notice of assignment is required, why was ? ‘assigned’ to the debt on the 3rd October 2008?
  
• The only default notice received was on the 7th March 2009 dated 28th February 2009, 4 days after serving the statutory demand, 5 weeks after first issuing the statutory demand and furthermore, 5 months after terminating the agreement
  

(Refer to appendix 3)

• The first letter received from ? was dated the 3rd October 2008, coincidently the date the last payment was made to ?, no other correspondence was received from Weightmans prior to this date and neither from ? in relation to ‘assigning’ the debt
  

(Refer to appendix 5)

P 25. The debtor respectfully requests that the creditors application be dismissed on the grounds that;

• The account is in clear dispute
  
• The creditor has continued to pursue a debt when in dispute and has not complied with his obligations under the consumer credit act 1974
  
• No default notice was received/sent prior to the statutory demand being issued
  
• No Assignment notice issued / received
  
• The amount seeking includes a substantial amount of unlawful penalty charges as described
  
• No consistency with the amounts they seek to recover
  
• The outstanding sum falls under the statutory insolvency limit of £750
  

P 27. The debtor is not insolvent and has made reasonable offers of repayments, which have been refused and hereby opposes the creditor’s costs

I would like to quote to the judge the following case:

Hammonds (a firm) v Pro-Fit USA Ltd [2007] EWHC 1998 (Ch)

In this case, Mr Justice Warren confirmed that it was usual for an indemnity award to be made:-

 

27 So far as disputed debts are concerned, the practice of the court is not to allow the insolvency regime to be used as a method of debt collection where there is a bona fide and substantial dispute as to the debt. Save in exceptional cases, the court will dismiss a petition based on such a debt (usually with an indemnity costs order against the petitioner).

I would also like to state how deeply annoyed and distressed I am at receiving the statutory demand which is obviously being used as a debt collection tool.

Can I also ask the opposing solicitor as to why my application to set aside is ‘misconceived’?

[tiglet]

Brilliant - well done you!

[42man]

moving to legal successes....

[foolishgirl]

Congratulations terlyn - not just on winning but an excellent composed & researched defence! No wonder the other side's solicitor was full of praise.

 

And if you have to go to court to progress this, it won't be scary next time will it?!

 

Have a great weekend, you deserve it - FG

[fdpm]

Well Done terlyn, you have given me hope for my SD hearing in two week's time.