HFO CAPITAL/services/turnbull CCJ

[hungrybear]

sorry. I did say that will do for now did I not?

 

I was giving you the heads up for future reference - forgot what a tizz you're in!!!!

 

Relax what you have put together for this hearing is fine Imo. I just wanted to remind you for future reference that at the full hearing you'll have to back it all up more

[melmumof3]

sorry. I did say that will do for now did I not?

 

I was giving you the heads up for future reference - forgot what a tizz you're in!!!!

 

Relax what you have put together for this hearing is fine Imo. I just wanted to remind you for future reference that at the full hearing you'll have to back it all up more

my apologies hungry bear...

yes you did say it was fine, im trying to take it all in, and take everyones advice on board. its hard, i dont fully understand the law, im trying to get it all right. should i add some cases hungry bear?? can you suggest what to put in, my amended defence is on page 8, if it helps??.... what type of hearing am i going to??? i just have the court letter to say i have to attend a hearing... didnt know there are different types....

i just need to sort it out, then ive done all i can, the rest is up to the judge.

 

btw how do i skype a call, have heard of it, but never used it.. how would i record and play that back in court???

 

 

thankyou xxx

[melmumof3]

In the xxxxCounty Court

 

Claim number xxxxx

 

 

 

 

Between

 

 

 

HFO Capital LTD - Claimant

 

 

and

 

 

Mxxxx

 

 

 

 

 

 

----------------------------------------------------------------------------------------------

 

 

WITNESS STATEMENT

 

 

 

 

 

 

1. I xxxxxxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement regarding my defence to the claim made by HFO Capital LTD.

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16.

 

4. It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same

 

 

5. The Defendant neither admits nor denies that he is liable to the Claimant as alleged in the Particulars of Claim, or at all.

 

6. It is averred that the Claimant has failed to serve a valid Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt.

 

The Alleged Agreement

 

7. It is denied that the copy of the agreement referred to in the particulars of claim and containing the defendant’s signature represents a regulated agreement under the terms of the Consumer Credit Act 1974 (“CCA”).

 

8. Under the CCA there are certain conditions laid down by parliament which must be complied with if such a consumer credit agreement is to be enforced by the courts

 

9. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

10. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)(“the Regulatons”) and are inter alia: -

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

11. It is averred that the agreement referred to in the particulars of claim is deficient of the prescribed terms as is a requirement of schedule 6 of the Regulations and is therefore unenforceable under section 127 (3) of the CCA

 

12. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

 

13. If the claimant is to rely on a written agreement then the original agreement should be available for inspection by the court in accordance with CPR Practice Direction 16 paragraph 7.3.

 

14. It is further averred that the agreement referred to in the particulars of claim represent an application for a credit card account and by nature this is a pre-contractual agreement prior to the approval of such a credit card account. Section 59 of the CCA specifically precludes a pre-contractual agreement to be a binding agreement under the CCA.

 

The Default Notice.

15. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA and 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.

16. 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)

17. It is averred that the default notice referred to in the particulars of claim does not allow the prescribed timeframe of 14 days after service to remedy any breach referred to in said default notice and the defendant puts the claimant to strict proof that the prescribed timeframe has been given.

18. 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 amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Failure of a default notice to be accurate invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255)

19. Without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the CCA.

20. The Claimant’s claim to be entitled to £3,565.51 to interest or to any other sum is denied.

 

 

Statement of Truth

 

 

I xxxxxxxxx, believe the above statement to be true and factual.

 

 

Signed .....................

 

Date............

 

this is my finished witness statement, is this ok????

[melmumof3]

had a catastophe, my printer has died now, so i only have the first draft of my skeleton, and my witness statements, and some of the CC act and cases printed. cant afford to buy a new printer this week payday friday, so im left with what ive got is what ive got printed.... hope its ok....but tough if it isnt i guess................ everythings against me at the moment:( havent even printed cover letters, is it acceptable to hand write a cover letter....... i cant believe this!

 

panic over, got another printer working phewwww.... going to envelope them up, and off to post and hand deliver tomoz....hope its all in order!

Edited November 22, 2009 by melmumof3

[melmumof3]

hi all

 

ive finished my skeleton and witness statements for my forthcoming court hearing next wednesday against HFO Capital.

i dont know what i should accompany them with. i have printed off relevant sections of the Consumer credit act which i rely on, but do i send this now to the court, or hold it back until hearing??? new to this, never been to court......

also do i send these act sections to HFO with the copy of skeleton and witness statement???

 

 

any advice greatly received:confused:

[vjohn82]

Can you not get to a local library where there are printing facilities?

 

If you are local I'm happy to print the docs off for you.

[melmumof3]

Can you not get to a local library where there are printing facilities?

 

If you are local I'm happy to print the docs off for you.

 

thanks john for the offer, i managed to use a printer i was given months ago, lucky it worked!!!.....

 

im today going to post off the statement and skeleton, do you know if i should put the copies of the consumer credit act sections i am relying on with them, or do i hold them back till hearing?

[vjohn82]

thanks john for the offer, i managed to use a printer i was given months ago, lucky it worked!!!.....

 

im today going to post off the statement and skeleton, do you know if i should put the copies of the consumer credit act sections i am relying on with them, or do i hold them back till hearing?

 

You might some assistance on that question but as far as I am aware you keep the legislation you intend to rely upon back until standard disclosure... but I may be wrong.

 

Click on the red triangle and ask a mod to help with this

[melmumof3]

You might some assistance on that question but as far as I am aware you keep the legislation you intend to rely upon back until standard disclosure... but I may be wrong.

 

Click on the red triangle and ask a mod to help with this

thanks john, just been reading your thread.

i started a new thread with my question, but havent had it answered yet, shall click triangle now. i am off soon to deliver, so it would be nice to know if im doing it right...

[melmumof3]

im having to leave now to take the paperwork to post office and court and have had to make a decision, so ive taken out the act sections i printed off, and will refer to them in court i guess now...... hopefully ivemade the right decision......

[supasnooper]

IIRC, if you refer to any part of an Act of Law, then the relevant part should be included in your submissions (e.g. if you refer to s61 of CCA 1974, just print off just s61).

 

You should get away with it as you are a Litigant in Person.

 

However, take a copy with you when you go to court and do apologise to the Judge for your oversight.

[patrickq1]

YES i think you send a copy statement to HFO or Turnbull if its them but dont send it until the last few days best thing is check with the court as to the case of sending them the copy see if the court think this is the correct procedure,but like HFO/Turnbull you would never receive a copy from them would you nout to stop you from sending it to HFO CAPITAL OR ROXBURH OR ONE OF THE OTHER COMPANIES THEY OWN OR EVEN REGISTERED TO THERE INDIAN COMPANY LOL

[patrickq1]

just thinkin allowed is it HFO CAPITAL WHO IS TAKING THIS CASE TO COURT OOP sorry for caps

[melmumof3]

just thinkin allowed is it HFO CAPITAL WHO IS TAKING THIS CASE TO COURT OOP sorry for caps

hi patrick,

yes its hfo capital taking me to court. i sent my witness statement and skeleton by first class recorded monday afternon to TR, hand delivered the courts copy. i didnt put anything else in as regards to acts etc....

 

this time next week i shall be in the court room:|

[melmumof3]

thanks SS...

 

i sent my paperwork in minus to acts. im glad thats done with though now, i can do no more now until the day.....

 

calmer this week now....

[melmumof3]

ok im in court on wednesday coming, what paperwork do i need to take.

 

this is what ive got in my folder so far:

TR evidence they have submitted to the court

My skeleton copy and witness statement

The letter from M and S stating who bought the debt (HFO services)

3 copies of CC act 60, 61, etc etc.....

1 copy of the case wilson and another v hurstanger

1 copy of wilson v first county trust.

my printer went wrong, but do i need copies of the 2 above cases for judge and TR (hurstanger is 16 pages long grrrr..)

 

anything else ive forgotten, or anything i need to print off... i couldnt find all the various things to print referred to in my amended defence

[vjohn82]

ok im in court on wednesday coming, what paperwork do i need to take.

 

this is what ive got in my folder so far:

TR evidence they have submitted to the court

My skeleton copy and witness statement

The letter from M and S stating who bought the debt (HFO services)

3 copies of CC act 60, 61, etc etc.....

1 copy of the case wilson and another v hurstanger

1 copy of wilson v first county trust.

my printer went wrong, but do i need copies of the 2 above cases for judge and TR (hurstanger is 16 pages long grrrr..)

 

anything else ive forgotten, or anything i need to print off... i couldnt find all the various things to print referred to in my amended defence

 

Ask the court regarding the Hurstanger documents... they might not see it as necessary.

 

Make sure you print another copy of your WS and skeleton.

 

Other than that I think you are set

[melmumof3]

ok thankyou john.... will sort it all monday..... getting very nervous, trying not to think about it, but will be a wreck on wednesday :S

[vjohn82]

ok thankyou john.... will sort it all monday..... getting very nervous, trying not to think about it, but will be a wreck on wednesday :S

 

Take a deep breath before you go in... make sure you get there in plenty of time but no too long that you start getting panicky (I'd suggest 15 mins is enough). Speak to the county court usher so that they know you have turned up and ask if the other side is being represented and whether that person has arrived.

 

If they have... then they might seek you out to have a chat. If they want a chat about the case then that's fine... just say that you will listen to what they have to say but you do not have to talk about your side of the case... just simply listen They might just try some scare tactics to try and put you off... DON'T LET THEM!!!

 

Make eye contact with the judge when you enter the room (or attempt to) - say good morning Sir/Ma'am - and sit upright etc and stay focused. Listen to what the DJ says and ask them to clarify anything you do not understand. Listen when the other side speaks... DO NOT INTERRUPT THEM... it's not like on TV ;-)

 

Listen carefully to their points and if you hear rubbish make sure you point it out to the judge when you have chance to speak. If the other side have finished and there is an awkward silence simply ask the judge if can respond to those points made (and hopefully rip them apart).

 

You will be given leeway but not too much... just stay calm and relax as best as you can. You can't go to jail and you won't be tripped up by the judge because they should remain impartial.

 

Seize on ANY mistakes or ridiculous comments by the other side and turn it around in your favour if you can. Every opportunity they look like a muppet is another point in your favour.

 

Best advice of all... LISTEN AND WRITE NOTES!!!

 

You ALWAYS have the opportunity to appeal... so be pleasant when leaving the room and respectful to anyone you encounter. You are not a DCA remember... just a member of the public trying to seek justice in this fair and green country.

 

I wish you lots of luck and I, regardless of what happens, we are proud of you for doing this because it's not easy.

 

May the force be with you!!! lol

 

Edited November 28, 2009 by vjohn82

[hungrybear]

mel just to let you know I'm still reading every word as I suspect several others are. John is doing a good job with his advice and I dont want to confuse you by saying he same thing again.

 

I'll be sending good karma your way on wednesday. The only thing I would do different is take a book and at least pretend to read it - esp. if the paralegal for the other side tries to talk to you. Act confident, stay strong and then go and fall to bits in the nearest pub after!

[bugsy123]

good luck mel, I'll be rooting for you on wednesday. hopefully raising a glass wednesday night too!

[supasnooper]

Make sure you know exactly where your docs are in your folder.......stick coloured tabs on them or mark them up.

 

have a read of this post -

 

BRW's post on What to pack for a day in court

[melmumof3]

thankyou people, is very nice to know ive you all rooting for me. apart from hubby and you lot, no one knows what burden im trying to contain.

[vjohn82]

thankyou people, is very nice to know ive you all rooting for me. apart from hubby and you lot, no one knows what burden im trying to contain.

 

Fingers crossed for you... let's hope you get a good result.

 

Then you can shout it to the rooftops... you will have loads of people coming to you ;-)

 

All the best!

 

VJ

[broken arrow]

Good luck Mel

 

Hope you get a good Judge!

 

All the best

 

BA