HFO CAPITAL/services/turnbull CCJ

[creditcardmug]

Hi and welcome, dont worry help is at hand, on the front of the claim, and maybe on the next page are the "particulars of claim", can you type up what it says, )dont put anything which could identify you)

 

What is the date on the claim?

 

Who is the claimant? (on the front of the claim)

 

How old is this account?

[creditcardmug]

Ok, if you live in england, you cant contest the courts jurisdiction.

 

Go online to MCOL (using the password on the front of the claim form), and acknowledge service, make sure you intend to defend ALL of the claim, dont submit a defence at this stage.

 

You will then have a total of 33 days from the date on the claim to file your defence

 

Then you need to send The otherside a CPR request, will post this up later, unless someone else does meanwhile.

 

Take some paracetamol and stop worrying, this can be sorted out, you will get all the help you need on here.

 

Welshmam has put up the CPR letter above...Thanks

[creditcardmug]

yes thats right, send by recorded, keep the receipt

[creditcardmug]

It will be moved to your local court automatically at a later stage, dont worry you wont have to go to northampton, just make sure you acknowledge, defending all of the claim, thats the main thing at this stage, you can do it by post if you wish using the form in the pack.

 

The CPR letter is simply requesting the documents they will rely on .

[creditcardmug]

You need to wait a while to see if HFO come up with anything....whats the date on the claim form?, the max date to file your defence is 33 days from then.

 

You need to aim to file your defence about a week before the deadline

[creditcardmug]

So the deadline is 6th may, file around the end of this month.

 

Spend some time reading the threads on here to get to know about procedures, and how HFO operate.

 

Read especially the WON threads

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/

[creditcardmug]

Hi again, most of this as sillygirl says is absolute rubbish.

 

The thing that stands out to me is the fact that they have provided you with a fake DN (the judge is going to love that, if it ever gets that far), this alone is enough for you to win.

 

Dont worry i will help you with the defence.

 

Do you have a scanner? Can you post up the "agreement" they just sent

[creditcardmug]

That default notice is the biggest load of ballocks I have EVER seen

 

Jogs

 

Agreed..it beggars belief considering a solicitor owns the firm:rolleyes:

[creditcardmug]

lol...

im still really at a loss. i dunno where to start to put together my defence

 

Its ok im going to start work on it shortly. you have plenty of time, ill post it up when its done

[creditcardmug]

Just posting stuff up for reference, ignore for now

 

 

the assignee HFO capital ltd purchased the defendants account and all rights and obligations attaching thereto from the original lender on 26th march 2009. a letter of assignement has been provided previously.

 

the claim is for monies due under the consumenr credit act 1974. under the agreement the said sum is to be repaid by the defendant by way of monthly instalments. the defendant has defaulted in his payment and is in breach of payment clause of the agreement.

 

despite numerous written and verbal requests by the assignee's agent HFO services ltd, the defendant has failed to pay the said sum and remains in debted to HFO capital ltd.

 

the claimant also claims contractual interest at the rate of 12.00% a year from 26th march 2009 to 1st april 2009of 8.82 and also interest at the same rate up to the date of payment at the rat of 1.26 per day.

[creditcardmug]

Mel, did you get a "letter before action" from HFO between 26th march (when they say they purchased the debt) and 3rd april (when they issued the claim?

[creditcardmug]

Mel, have a read of this, let me know what you think/ask any questions

 

 

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

 

Defence

 

1. I xxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxx

 

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

 

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

 

4. 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. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

d) The claimant did not send a Letter Before Action as required under the Pre-Action Protocols.

 

 

e) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

f) . It is denied that the claimant may claim contractual interest as the claimant has failed to provide any such contract which conforms pursuant to the Consumer Credit Act 1974 and its related regulations.

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

The build up to this action

 

9. In the build up to this action, on the DATE I wrote to xxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

( letter attached marked Exhibit A)

xxxxxxxxxxxxxxxx replied to my request on the DATE supplying an Application Form without any prescribed terms. ( letter attached marked Exhibit B)

 

10. I wrote to xxxxxxxxxxxxxx setting out the facts that the document supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and requested that they supply the required documents.

 

11. On DATE I wrote to the claimant requesting information pursuant to CPR 18 to date the claimant has failed to respond to my request

 

12. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) 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

 

 

13. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

14. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. 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

 

15. 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."

 

16. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

17. Notwithstanding points 13 and 14, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

18. The claimant is therefore put to strict proof that such a compliant document exists

 

 

19. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

20. It is neither admitted nor denied that any 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.

 

21. Notwithstanding point 20, 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)

 

22. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

23. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

24. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

25. 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.

 

26. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

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

 

Date

[creditcardmug]

Yes fill in the xxxs and dates, attach your two exhibits, sign and date it, send it to the court by Special Delivery, dont bother sending a copy to the other side.

 

Try to read and understand what it says, dont be afraid to ask questions about it on here, if you dont quite understand something, we are all here to help each other.

 

I think it will be too big to go on MCOL, only 8000 characters are allowed, and anyway you cant put attachments on there

 

GOOD LUCK

[creditcardmug]

If your having a problem with the exhibits, don't send them, just delete the lines "exhibit attached marked A", and the same with B.

 

Its not that important...what is important is that you get this to the court in time!!

[creditcardmug]

As far as getting defaults off your credit file, this is a whole different ball game to this court claim...it can be very difficult..there are a number of threads on here about it, suggest you have a look round the forums, use the search facility