HFO CAPITAL/services/turnbull CCJ

[Docman]

yes mel post a link.

 

Donkey, Docman, (treehugger) care to comment on the above?

Just writing a longish post...

[melmumof3]

its in debt collection forum,

called 'A and L switching to santander, debt being collected by global debt management' didnt know how to post the link soz...

[melmumof3]

Mel, don't worry about them looking in - lots of DCAs do it. I'm sure that they will have identified you already if they want to, just from your situation, court dates, etc.

 

The basic fact is their paperwork is defective, if not disingenuous and economic with the actualité. M&S have done you a huge favour by confirming some facts which don't tally with HFO's drivel.

 

If HFO can't be sure who owns the debt or when it was assigned, how can you be sure they even own the debt? This is the big question you have to ask HFO in court, in front of the judge.

thanks DB,

 

im going tonight go through all whats been said and make bullet points i nned to ask....is it acceptable to use notes, rather than from memory. i think ill probably be ok if ive bullet pointed it down on paper i think i would just have brain freeze if i try to speak without them!....

[DonkeyB]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/235800-l-switching-santander-debt.html

 

Here you are.

 

And yes, use lots of notes!

[hungrybear]

here's the link for you Mel:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/235800-l-switching-santander-debt.html

[citizenB]

thanks DB,

 

im going tonight go through all whats been said and make bullet points i nned to ask....is it acceptable to use notes, rather than from memory. i think ill probably be ok if ive bullet pointed it down on paper i think i would just have brain freeze if i try to speak without them!....

 

Good thinking, yes it is acceptable to use notes. Although I imagine you will know them fairly well by the time you get to court:D

[vjohn82]

Fine to use notes... make lots when the other side speaks too... any discrepancies... just try to counter them.

[melmumof3]

sorry me again.......

 

DB, earlier, when you said i should copy the M and S letter and take to court, do you think if i took it tomorrow, would it be too late.... it may sit on someones desk, and not be put immediately to the trial bundle.

 

everyone else,

im trying to do my list, what should i start with first? should i start with what i start with in defence or make a hoo harr about the POC??

[Docman]

Mel

Sorry, I got held up with something at work. As for the letter from M&S, if you want to use it, you should technically send it to the court and the claimant 7 days before the hearing. A bit late now, so I suggest you take the letter (and a couple of copies) with you on Wednesday. The judge should allow you some leeway as a LiP.

Personally, I would start with the NOA and the fact that Capital can't bring the claim. Then move onto the faulty CCA (application form etc) and finally, the defective DN (only 7 days etc).

As for the assignment, the claim has been brought in the name of HFO Services Ltd [let’s call this company just ‘Services’]. The Assignee according to the POC is HFO Capital Ltd [Capital]. Only the legal owner of the debt can bring the claim. If the debt has been assigned, that means Capital according to the POC. However, Capital has instructed Services to act for it to collect the debt and in doing so, Services has instructed Turnbull Rutherford to issue the claim form [N1]. Turnbull Rutherford has issued the N1 in the name of Services.

The name of the claimant on the N1 is Services but the POCs relate to Capital. You have pointed out the inconsistency and so Turnbull Rutherford has claimed there was an IT ‘error’. OK, says the old judge (believing anything from TR’s), I’ll allow Turnbull Rutherford to change the name of the claimant from Services to Capital.

So, the claimant is now Capital, who were assigned the debt by M&S on 26 March 2009, according to POCs. But, you point out to the judge, the NOA that is produced by Turnbull Rutherford in evidence [Exhibit 2] states that the assignment on 30 July 2008. The claimant’s own evidence therefore contradicts their particulars of Claim.

You then tell the judge that in order to clarify the confusion in your mind, you wrote to M&S directly. They state that the debt was assigned to Services on 30 June 2008. Different assignee and different date of assignment. More confusion!

Now you explain to the judge what the law says about assignments. Firstly, you must be given notice of the assignment [ S136 of the Law of Property Act 1925]. But, as TRs will point out, the Act does not specify what must be in the Notice and may quote the Van Lynn case where the junior judge made the point.[Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824.]

The main judgment in the Van Lynn case was given by Lord Denning, the Master of the Rolls. You need to quote him (and print off a copy of the case to give to the judge with the following bit highlighted)

Lord Denning, the Master of the Rolls, said

“I think the correct interpretation of this statute was given by Atkin J in Denney, Gasquet, and Metcalfe v Conklin. It is quite plain from his judgment that no formal requirements are required for a notice of assignment. It is sufficient if it brings ([1913] 3 KB at p 180):

"to the notice of the debtor with reasonable certainty the fact that the deed does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor." Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 All ER 824.

IMO the words “with reasonable certainty” are key. If the claimant isn’t certain, how can you be expected to be certain?

The other case that is relevant (and is referred to in Van Lynn) is that of Harrison v Burke. Lord Denning ruled that if a fact in the NOA, such as the date, was stated WRONGLY, then the NOA was invalid. That is why the date of assignment is sometimes not stated in the NOA. Take a copy of Harrison v Burke with you as well.

Doc

[vjohn82]

Good points from Doc there... you always start off with the weakest points on the Claimant's side... and be prepared to answer their rebuttals (as per the Van Lynn case).

[melmumof3]

thankyou doc, great post!!!....

 

can someone help me find the van lynn case.. ive tried before on google, nothing, and it isnt in the caggers library....

[melmumof3]

Good points from Doc there... you always start off with the weakest points on the Claimant's side... and be prepared to answer their rebuttals (as per the Van Lynn case).

whats a rebuttal??..... i know nothing.

[vjohn82]

whats a rebuttal??..... i know nothing.

 

When you make a statement... they respond with something... then you answer it back...

 

I worded it wrong though... I meant have a rebuttal for their predictable responses.

 

i.e

 

Claim

You claim the agreement does not have the prescribed terms as per s 65 and the court are unable to uphold the agreement as per s 127

 

Response

They claim section 127 was repealed by the 2006 CCA

 

Rebuttal

You state 2006 Act does is not retrospective to agreements prior to April 5th 2007

[melmumof3]

im hard work arent i hee hee...

 

i can see you have been there and got the tshirt now!...

[Docman]

thankyou doc, great post!!!....

 

can someone help me find the van lynn case.. ive tried before on google, nothing, and it isnt in the caggers library....

 

 

I'll post a copy of both cases up when I get home later tonight.

[melmumof3]

thats fantastic thankyou. i cant find it at all!! only references to it in forums etc.

[vjohn82]

Would be helpful to my case too to be honest... cheers Doc!

[melmumof3]

heres a link to the key changes of 2006:

Consumer Protection ? A Guide to the Consumer Credit Act 2006

 

this is the bit you'll be looking for:

 

6. Section 127, subsections (3)-(5) of CCA 1974 have been repealed so as to give courts a discretion as to whether agreements should be deemed unenforceable. The CCA 1974 automatically renders agreements unenforceable where, for example, certain prescribed information has not been included in the agreement. This discretion will certainly be helpful to lenders in light of the increased prescribed information to be provided under the CCA 2006.

 

What I do not know is whether it applies retrospectively to existing agreements or to new agreements which need the increased prescribed information.

should i print this paragraph off?... i still cant find the relevant part in the CC act 2006...

[hungrybear]

should i print this paragraph off?... i still cant find the relevant part in the CC act 2006...

 

 

No I was only making you aware of it because you asked. Your agreement is dated before April 2007 and this act does not apply retrospectively. Just like in Johns explanation of a rebuttal above.

[melmumof3]

cant get my head around doin notes now... grrrr.

 

ive said this about the 'CCA'

the alleged CC agreement states its an app form. Any such regulated agreement must be signed in the prescribed manner both by debtor and creditor embody all terms and be readily legible when presented for signature....

 

is this too much or not enough?? what else should i say about it???...

do i say anything about monthy instalments (this is mentioned in my defence) ive not dont the default notice bit yet. am i making too much work of it all....im drowning in printer ink and paper!! lol...

[melmumof3]

No I was only making you aware of it because you asked. Your agreement is dated before April 2007 and this act does not apply retrospectively. Just like in Johns explanation of a rebuttal above.

im really really sorry. i dont think ive ever felt as stupid as i do!!.... i want to fight this case, i feel im gonna be trampled on:rolleyes:

[hungrybear]

cant get my head around doin notes now... grrrr.

 

ive said this about the 'CCA'

the alleged CC agreement states its an app form. Any such regulated agreement must be signed in the prescribed manner both by debtor and creditor embody all terms and be readily legible when presented for signature....

 

is this too much or not enough?? what else should i say about it???...

do i say anything about monthy instalments (this is mentioned in my defence) ive not dont the default notice bit yet. am i making too much work of it all....im drowning in printer ink and paper!! lol...

 

You have all the info about schedule 6 and prescribed terms? If not here's a copy I've lifted from 42man (one of the site team):

 

CCA RULES FOR PRESCRIBED TERMS

 

CONSUMER CREDIT ACT

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

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

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

[hungrybear]

For making notes start by making headings for what you want to cover and then put in phrases about wht you want to remember. Keep reading through your stuff and adding to you notes. When you're happy you've got all your main points into note form then rewrite the note:

 

eg and not exhaustive

 

NOA

-date, which company?, letter from M&S, Beginning of POC

 

Default Notice

-----points here

 

Agreement

---points here.

 

get the idea, get a system going

[hungrybear]

im really really sorry. i dont think ive ever felt as stupid as i do!!.... i want to fight this case, i feel im gonna be trampled on:rolleyes:

 

 

There are no stupid questions

[melmumof3]

You have all the info about schedule 6 and prescribed terms? If not here's a copy I've lifted from 42man (one of the site team):

 

CCA RULES FOR PRESCRIBED TERMS

 

CONSUMER CREDIT ACT

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Prescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

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

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

 

 

thanks HB,

 

ok this is a bit more understanding to me. basically, if i was going to court going by the above, the app form is total crap, and is unenforceable.... correct?...