HFO CAPITAL/services/turnbull CCJ

[WelshMam2009]

DCA CHARGES

 

Ok, this is what OFT Debt Collection Guidance says...

 

Charging for debt collection

2.9 Charges should not be levied unfairly.

 

2.10 Examples of unfair practices are as follows:

a. claiming collection costs from a debtor in the absence of express

contractual or other legal provision

 

b. misleading debtors into believing they are legally liable to pay

collection charges when this is not the case, for example, when there

is no contractual provision

 

c. not giving an indication in credit agreements of the amount of any

charges payable on default

d. applying unreasonable charges, for example, charges not based on actual

and necessary costs

e. applying charges which are disproportionate to the main debt.

 

Now, I could be wrong, but I thought that if the debt was sold on (rather than the DCA collecting on behalf of the original creditor) then the original agreement is terminated and hence, there is no contractual provision for the DCA to add charges and/or interest.

 

Can anyone help me out with this? Is this correct?

[DonkeyB]

Sound to me like the POC is seriously flawed - they say they bought the debt on 26 March 2009. This would leave no time for any default notice or request for payment or even a letter before action. So in terms of following the pre-action protocols they have seriously screwed up.

[melmumof3]

Sound to me like the POC is seriously flawed - they say they bought the debt on 26 March 2009. This would leave no time for any default notice or request for payment or even a letter before action. So in terms of following the pre-action protocols they have seriously screwed up.

hi donkey, i never noticed that. im guessing this is part of my defence, ad would need to state this in correspondence. im no legal eagle,im hoping this is something i can fight on my own, without legal representation?

 

thanks for replies mel

[melmumof3]

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

i do have a scanner someone gave me, havent tried it out but dont have a disc for it so it might not hey.

everything from hfo seems fake, obviously the application form isnt, it has my sig on it. but dont seem to have an M&S default notice at all. and as ive requested a default notice, HFO have 'made' one. the notice of assignment came from HFO with a cover letter. when i rang M&S they said they hadnt sent me any letters from nov 07 onwards. from november 07, the debt was passed onto moorcroft, who i inturn requested the CCA, they said they couldnt get it, so sold on debt to HFO.

i ill try the scanner later this afternoon. is there somewhere on CAG which has a sticky about how to upload items please???

 

regards mel

Edited April 13, 2009 by melmumof3

[melmumof3]

Take a look at this for a start Mel...this is a typical defence regarding dodgy CCA's.

 

REMEMBER...each case is individual and not all of this will be relevant to you. Just amend to suit and try not to use verbatim...

help lol..... i cant get my head round it and what or wouldnt be relevent lol...sorry if im being dim!:-?

[havinastella]

help lol..... i cant get my head round it and what or wouldnt be relevent lol...sorry if im being dim!:-?

 

 

Hi Melmum,

 

Firstly, CALM down, there is no point getting stressed.

 

Second, you are in the hands of one of the best CAG members, Creditcardmug, he is a fantastic guy and has seen off more DCA's than he's had hot dinner's.

 

My advise, rather than just posting help, it to read as many threads as possible, esp those concerning HFO (just type HFO) into the search area.

 

Having a quick look through your thread you have these idiots on more than one cock up.

 

NO default notice (or flawed)

Their POC stating they have given you time to pay etc etc, but they issued Court papers just days after 'BUYING' the debt.

Wrong figures

No valid CCA

 

 

Read and absord as much info as you can reqarding those points as although someone can write your defence, you will need to understand it.

 

You may also want to send the SAR request to the OC, I suggest this one

 

http://www.consumeractiongroup.co.uk/forum/payment-protection-insurance-ppi/118145-sar-ppi.html#post1198765

 

This will give you ALL information on the account, including the balance when it was 'SOLD'

 

Second, I would check my credit rating through one of the agencies. This will show if HFO was entering details of your account prior to 'buying' it.

 

This could cause them huge problems if they were.

 

We all know that these companies don't really buy and sell these debts and thanks to PT, UK26, Toulse etc, we will soon prove this.

 

Keep your head up

 

 

Jogs

[WelshMam2009]

I have to agree with Havinastella, Mel.

 

There's no point inserting something on your defence if you don't understand it and are later questioned on it in court. Legally, it has to be in your own words and this is where a lot of people fall down.

 

If I were you, I would be looking at the CCA and the DN and writing down what's wrong with them. Researching and understanding is something you need to spend times getting to grips with also.

 

Best of luck....

[melmumof3]

I have to agree with Havinastella, Mel.

 

There's no point inserting something on your defence if you don't understand it and are later questioned on it in court. Legally, it has to be in your own words and this is where a lot of people fall down.

 

If I were you, I would be looking at the CCA and the DN and writing down what's wrong with them. Researching and understanding is something you need to spend times getting to grips with also.

 

Best of luck....

thankyou all. ill have a look thru and see if i can try make sense of it. need some time(which i lack lol) but imsure wih all your help ill get some sort of defence typed up.

 

thankyou

[melmumof3]

Pictures by mel28089 - Photobucket

right not sure if this works, but have taken some pics of my documents thankyou mel

i did it lol....am impressed with myself lol....

[havinastella]

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

 

Jogs

[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:

[melmumof3]

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

 

Jogs

lol...

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

[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

[melmumof3]

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

ahhhh thanks thats very much appreciated truly

[Docman]

Melmum

 

Welcome to CAG,

 

Unfortunately HFO are also one of the biggest bullies. Thankfully, they seem to mess up everything they do, so a defence can usually be put in. You are in very good hands with CCM. Just remember not to panic or give in to these bullies and you will get through this.

[WelshMam2009]

Just out of interest Mel, as I also have an M&S card, although my debt is bigger than yours , I note you've actually signed the agreement for an M&S and More card.

 

So you didn't have a store card that was switched over by them?

 

This is purely for my own curiosity I should add!!

[melmumof3]

Just out of interest Mel, as I also have an M&S card, although my debt is bigger than yours , I note you've actually signed the agreement for an M&S and More card.

 

So you didn't have a store card that was switched over by them?

 

This is purely for my own curiosity I should add!!

hi welsh mam

no i just took out the and more CC, was never the storecard. was yours switched over then?? coz im sure that must mean you would have had to have a different agreement surely..... i mean say you have a next card, and they give you a card you can spend ANYWHERE its a bit irresponsible of the company. i do slightly feel that had i not had so many options to get CC's i wouldnt be in the mess i am now in. i know i shouldnt have spent the money, but then im sure they shouldnt have lent it.

[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?

[WelshMam2009]

hi welsh mam

no i just took out the and more CC, was never the storecard. was yours switched over then?? coz im sure that must mean you would have had to have a different agreement surely..... i mean say you have a next card, and they give you a card you can spend ANYWHERE its a bit irresponsible of the company. i do slightly feel that had i not had so many options to get CC's i wouldnt be in the mess i am now in. i know i shouldnt have spent the money, but then im sure they shouldnt have lent it.

 

Yeah, mine was switched Mel...one day I had a store card with a limit of £500 and the next a credit card with a limit of £5,000 which I never asked for!!

 

I know we can all say that we shouldn't have spent the money, but the way they keep increasing the credit limits is irresponsible in my opinion.

 

In the end, I called it a day when I owed circa £90k (yes, really, and nothing to show for it...no ferrari in the driveway!!) and yet my overall credit limit was in the region of £150k.

 

Now my argument is, if you were going to take out a loan for even, say, £3k, you would think carefully about the monthly repayments and whether or not you could afford them. So why is it that credit card companies can just increase your limit willy nilly when you haven't asked for it!!

 

Love your DN by the way!! I've had one from M&S which has flaws in it, but nothing like the one you've received form HFO!!!!!!!

[melmumof3]

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?

hi CCm, ive looked through my paperwork, i received a letter on the 13th march, but it was ANOTHER copy of the application/CCA form. so no letter before action. on 20th feb i received a letter from turnbull rutherford, saying they have been instructed by hfo in connection with debt blah blah, and that i had recently been sent a notice of default (which i havent got) attched to letter is yet another copy of application form, so this obviously is to try to pressure me i guess. well that sorted out my debt folder tonight lol.....

[melmumof3]

Yeah, mine was switched Mel...one day I had a store card with a limit of £500 and the next a credit card with a limit of £5,000 which I never asked for!!

 

I know we can all say that we shouldn't have spent the money, but the way they keep increasing the credit limits is irresponsible in my opinion.

 

In the end, I called it a day when I owed circa £90k (yes, really, and nothing to show for it...no ferrari in the driveway!!) and yet my overall credit limit was in the region of £150k.

 

Now my argument is, if you were going to take out a loan for even, say, £3k, you would think carefully about the monthly repayments and whether or not you could afford them. So why is it that credit card companies can just increase your limit willy nilly when you haven't asked for it!!

 

Love your DN by the way!! I've had one from M&S which has flaws in it, but nothing like the one you've received form HFO!!!!!!!

 

i know the feeling about not having much to show for it. trouble is when you buy something on tick ie car tv whatever, you are still paying for it when its knackered or no longer owned!! i had 7 credit cards and a loan (credit cards obtained for balance transfers, but i kept the original card then maxed them ffs!!! ). we were ok until i lost one part time job then fell pregnant twice within 2 yrs. it was ok for a while coz i was doing bank transfers from one credit card to the other, i think id pay one with cash, and then id get charged more to do these transfers. i had to stop when the interest alone on oe card was £80. who's more stupid, me or the banks allowing it?? well judging by the banks states of affairs i only(only.. if only) owe £26k can the banks say the same!

[WelshMam2009]

i only(only.. if only) owe £26k can the banks say the same!

 

EXACTLY!!

[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

[melmumof3]

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

wow lol...

well, its all there whats happening up to date. so i just copy this, fill in the dates and names etc. do i print it, or can i then somehow upload to court site??? thankyou for taking time to do this for me;)