HFO and court action forms - help

[DonkeyB]

You only have to reply to the court - at this stage, they take care of passing a copy of your defence to HFOhdearwe'reinthepoo. It's then up to the claimant to let the court know they are taking it further, then it will be AQ stage.

[darragh]

Can someone scan through this defence and let me know what they think ?

Thanks - beginning to get worked up again - Do I need to put a 'header' at the top -?

 

1. I, [insert full name & address], am the defendant in this action and make the following statement as an embarrassed defence to the claim made by HFO Capital Limited.

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

PARTICULARS OF CLAIM

 

3. The Defendant notes that the Claimants' claim is not fully particularised and offers no cause for action and is thus eligible for a strike out under CPR 3.4.2(a).

 

4. The Claimant has failed to deliver the appropriate documents referred to in the Particulars of Claim and requested under CPR18, which leaves the Defendant at a disadvantage and unable to plead effectively or at all. The Defendant is embarrassed in pleading to the Claim as it stands, but believes that the content of the present disclosure by the Claimant is sufficient to present a defence that the Claimant has not demonstrated any cause for action.

 

5. It has been asserted in the Particulars of Claim that the "The assignee HFO Capital Limited purchased the defendants account and all rights and obligations attaching thereto from the original lender on 23-03-2007 and that "A letter of assignment has been provided to the defendant previously"

 

NOTICE OF ASSIGNMENT

 

6. It is denied that the Defendant has ever been notified of an assignment and therefore denied that the lender has been lawfully assigned all of the rights and obligations of any regulated agreement in my name.

 

7. The Defendant denies the Claimant’s statement that the Account was assigned to the Claimant and puts the Claimant to strict proof thereof.

 

8. The Claimant asserts that a Notice of Assignment Exhibit A1 was sent by Barclaycard. The Defendant denies that Exhibit A1 was sent by Barclaycard and puts the Claimant to strict proof thereof.

 

9. The Defendant asserts that in effecting statutory assignment from Barclaycard to HFO Capital Ltd, explicit Notice of Assignment must be given by writing under the hand of the assignor as required by S 136(1) of the Law of Property Act 1925, [the LPA 1925].

 

10. For the assignment of a debt to be effective and so giving the Claimant a right of action, a valid notice of assignment must have been sufficiently served on the Defendant by a registered postal service pursuant to s 196(4) LPA 1925 before court action is commenced.

 

 

11. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

 

12. The Defendant denies any valid Notice of Assignment of the alleged debt from Barclaycard to HFO Capital Ltd was sufficiently served on the Defendant and so the Claimant has no right of action.

 

13. The Defendant asserts that by case law, if there is a failure of a Notice of Assignment to be accurate, the legal right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison & Co Ltd V Burke and Another [1956] 2 All ER 169].

 

 

BARCLAYCARD APPLICATION

 

14. The Defendant admits that he signed a document provided by Barclaycard. It is not admitted that the Defendant signed a regulated agreement with Barclaycard.

 

15. It is admitted that, in the sense that the Defendant applied for and was given a credit card, that there was an agreement between the Defendant and Barclaycard. The Defendant does not admit that such agreement was reduced to writing. The precise terms and date of any such agreement are not admitted.

 

16. The Claimant is put to strict proof as to the date and terms of such agreement and is put to strict proof that a written agreement is in existence.

 

17. If, which is not admitted, there is a written agreement in existence, it is admitted that such an agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act).

 

THE REQUIREMENTS OF THE CONSUMER CREDIT ACT 1974

 

18. Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature.

 

19. Under S61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

 

 

 

20. The prescribed terms must be within the agreement and not in a separate document for it to be compliant with s60 (1). [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

 

21. Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s60(1), it is improperly executed and only enforceable by court order.[Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) ]

 

22. Further, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 requires that the lettering in every copy of an executed agreement be easily legible.

 

23. It is denied that the ‘Agreement’ Exhibit B1 is an agreement within the terms of the Act. The document states clearly that it is an Application Form which under s.59 of the Act is not a binding agreement. The Defendant asserts that most of the document is not easily legible and does not appear to contain the prescribed terms.

 

24. Further, S 62(1) of the Act requires that if an unexecuted agreement is presented for signature but upon signing by the debtor the document does not become an executed agreement, then a copy of it, and of any other document referred to in it, must be there and then delivered to the debtor. It is asserted that no such copy was presented or sent.

 

25. S 62(3) provides that a regulated agreement is not properly executed if the requirements of S 62 are not observed.

 

26. Further and in the alternative, a copy of the documentation signed by the Defendant was not provided to him at the point of signature and that, which is not admitted, if this document was the agreement it was therefore improperly executed and in respect thereof may only be enforced with leave of the Court.

 

27. The Defendant did not, until after the issue of these proceedings, receive a copy of the Application Form. The Defendant recalls receiving a credit card following on from the completion of the Application Form but does not recall being provided with, at that juncture, any documentation containing any alleged terms and conditions nor was a copy of the signed document provided. The Claimant is put to strict proof that such terms and conditions were so supplied.

 

Default Notice

 

28. The Claimant has attached a document purporting to be a Default Notice issued under s.87 of the Consumer Credit Act (Exhibit C1). It is denied that the Defendant neither defaulted nor is in breach of any Agreement and the Claimant is put to strict proof that any such breach has occurred.

 

29. A default notice is a required by S 87(1) of the Act before a creditor can become entitled to take any action in respect of a regulated credit agreement including the termination of any account.

 

 

30. The Defendant denies that such a document was served by the original creditor allowing the termination of the account under s.87 (1) a and facilitate an assignment of the account. The Claimant is put to strict proof that such a document was served by the assignor.

 

 

31. Furthermore s 88(1) of the Act requires that a default notice must be in the prescribed form. The prescribed format for a default notice 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).

 

32. By Regulation 2(2) of these regulations, any Default Notice must include both a description of the agreement sufficient to identify it and the name and a postal address of the creditor or owner.

 

33. It is denied that the document exhibited C1 is a valid Default Notice in that it is not in the prescribed form nor does it contain sufficient information to identify it or the name and postal address of the original creditor or owner.

 

AND the Defendant;

 

34. seeks an order that the Claimant’s action is struck out under CPR 3.4.2 (a), or otherwise dismissed on the grounds that any claim cannot succeed and that the Claimant do pay the Defendant’s costs

[darragh]

what happens now that they diont have to poroduce the app forM?

[DonkeyB]

What do you mean? They still have to produce an agreement.

[darragh]

court case in manchester seems to indicate that anything signed (by me) - i.e. application form will suffice? - haven't slept since io heard this on radio

[darragh]

sorry - haver to go back to work. will be back later if I havent topped myself first

[DonkeyB]

It's a bit more complex than that. And very confusing. An unenforceable agreement is still just that - unenforceable. And put that gun away! You're in safe hands here, mate.

[DonkeyB]

Have a good look through this. It is very confusing, but remember that in the Manchester case the banks were the defendants, not the claimants. Puts the judgment on a very different level.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

[vjohn82]

I've read it... nothing to worry about in my opinion unless you have Rankines Disease

[patrickq1]

well you're a fat lot of use, in the same darkened room as me:p.

hb are u calling me fat lol

i must adit to puttin on afew stone sinc xmas...lol

:twisted:

[darragh]

i have receieved an AQ but dont know what to do with it. It needs to be back with the court by next friday ? any help much appreciated

[darragh]

am i right in thinking that if I die then this will die with me? seem to remember reading it somewhere?

[vjohn82]

i have receieved an AQ but dont know what to do with it. It needs to be back with the court by next friday ? any help much appreciated

 

Have you received the AQ from HFO?

 

I can help you with your own no probs.

 

am i right in thinking that if I die then this will die with me? seem to remember reading it somewhere?

 

Yup

 

Not planning on dying anytime soon though are you?

[DonkeyB]

Er Darragh, what are you thinking of doing? Whatever it is, if it isn't filling out the AQ, stop it. No, your debts remain with your estate.

[DonkeyB]

And yes, the AQ will be simple, as VJ says.

[darragh]

no AQ came from Northampton CC to be transferred to my home city

[DonkeyB]

Which AQ form have they sent? A 149 or 150?

 

Look at sections 14 and 20 here. Should give you a heads up.

 

The Consumer Forums - Bank charges templates (consumer)

[darragh]

to be honest i dont feel very well and am just really fed up with all of this . want it to stop. sometimes i feel that i am worth more dead than alive. have already tried once a few years ago but made a mess of it but not in good frame of mind - sorry

[darragh]

the AQ is a 149

[darragh]

where do i go from here?

[vjohn82]

I will help you with the AQ tommorrow... but attached are copies of mine that I filed in November...

vjohn82 Draft Order AQ.doc

vjohn82 Section G AQ.doc

[vjohn82]

Download the PDF's from here...

 

2shared - download vjohn82 pg1 AQ.jpg

 

2shared - download vjohn82 pg2 AQ.jpg

 

2shared - download vjohn82 pg3 AQ.jpg

[darragh]

Thank you vj - speak tomorrow

[patrickq1]

Thank you vj - speak tomorrow

dar dont forget stand up you are now in control ,also are they still phoning you and harrassing you with threats if so then you need to send the harrassment letter recorded and any further harrassment can be dealt with in the courts ,

YOU ARE IN CONTROL ITS NOW YOUR GAME THEY PLAY BY YOUR RULES.....

[darragh]

HI can anyone give advice on completing AQ 149 please