HFO CAPITAL/services/turnbull CCJ

[humbleman]

Have they introduced any new evidence, they are not allowed to

[vjohn82]

Have they introduced any new evidence, they are not allowed to

 

No they just claimed that the document that won the case, CP2, was invalid because it referred to another batch of accounts and was privileged in my case. They were essentially saying the Judge was hoodwinked by Mel.

 

I wrote an affidavit stating that it was not privileged and they were proceeding on the basis of HFO Capital Cayman being the only firm able to bring proceedings.

 

This cannot be the case if the Directors restructured the company in Jan 2008 and sold everything off to HFO Capital Ireland.

[DonkeyB]

I would aver that it was new evidence, as the only "HFO Capital Ltd" referred to in any of HFO's witness statements was Cayman, referring to the sale document between HFO Capital Ltd (Cayman) and M&S.

 

There has been no mention of the Ireland company anywhere in proceedings. In fact, nowhere has the proper address of HFO Capital Ltd been shown, which makes the whole assignment ambiguous.

 

Even TR's rep at the first hearing seemed convinced - as his notes proved - that Cayman owned the debt.

 

This raises a huge number of questions. If HFO Capital Ltd (Ireland) have been assigned all of HFO Capital Ltd (Cayman)'s debts, where are all the Notices of Assignment that need to be sent out for the debts previously owned by Cayman?

 

Secondly, the famous document CP2 shows that all debts - not just certain tranches - bought by HFO Capital (Cayman) are instantly assigned to HFO Services Ltd. So what on earth could the Cayman operation be transferring to Ireland? Nothing, as HFOS would own it all.

 

I'll post my full thoughts in a minute...

[vjohn82]

I would aver that it was new evidence, as the only "HFO Capital Ltd" referred to in any of HFO's witness statements was Cayman, referring to the sale document between HFO Capital Ltd (Cayman) and M&S.

 

There has been no mention of the Ireland company anywhere in proceedings. In fact, nowhere has the proper address of HFO Capital Ltd been shown, which makes the whole assignment ambiguous.

 

Even TR's rep at the first hearing seemed convinced - as his notes proved - that Cayman owned the debt.

 

This raises a huge number of questions. If HFO Capital Ltd (Ireland) have been assigned all of HFO Capital Ltd (Cayman)'s debts, where are all the Notices of Assignment that need to be sent out for the debts previously owned by Cayman?

 

Secondly, the famous document CP2 shows that all debts - not just certain tranches - bought by HFO Capital (Cayman) are instantly assigned to HFO Services Ltd. So what on earth could the Cayman operation be transferring to Ireland? Nothing, as HFOS would own it all.

 

I'll post my full thoughts in a minute...

 

That's quite a good point to be honest DB...

 

I'm slightly concerned that if we make too many links apparent between all of the companies that the Judge will simply say that the account in question must belong to one of them and that any payment would benefit the group as a whole - therefore - pay up.

 

I agree that there are other issues to consider which, when stacked up, should produce a fairly open and shut case...

 

...but then we know what the judiciary can be like when trying to get them on the side of the consumer.

 

I think if Mel goes in there with the word "dishonesty" or "disingenuous" on her lips the Apellant will be squirming their seat somewhat.

[vjohn82]

...oh and going in there ripping apart their own Witness Statements will also go some way to swaying the opinion of the appeal court.

[humbleman]

I think Mel needs to make sure that they do not introduces any new evidence, and if they do the Judge needs to disregard it.

[DonkeyB]

Some of this is particular to Mel's case, some general and usable by other Caggers, I hope.

 

HFO's appeal centred on the assertion that it wasn't actually HFO Capital Ltd (Cayman) which owned the debt, but the Irish version, as the Cayman operation has ceased (interesting, eh VJ?). It claims Ireland bought the 'master documents' or deeds from Cayman, regarding all purchases, and therefore only HFO Ireland had a claim to the debt. This is supposed to have happened on 31 January 2008 (ie. Cayman should not be involved in any claims after this date).

 

But HFO failed to make its ‘true’ identity clear on the claim form or in its witness statements. CPR states that a company may use a ‘true’ place of business as an address; however, HFO Capital Ltd (Ireland) is based in Dublin, and on its Consumer Credit Licence listing has only a Dublin address as its principal place of business. Again, you might think the use of a Surrey address could attempt to disguise the true identity of the claimant, but I couldn't possibly comment. Indeed, the original claim form was in the name of HFO Services Ltd.

 

Look from another viewpoint. HFO Capital Ltd should now admit that their 'reconstructed' NoA sent to Mel 'on behalf' of M&S is misleading, as their WS clearly referred to the deed between M&S and HFOC (Cayman). Nowhere does the claimant’s WS refer to HFO Capital Ltd (Ireland). The only references in any documentation provided to Mel are to HFO Capital Ltd (Cayman), and therefore it is fair for Mel to assume this was the true assignee. I imagine even M&S still believe the assignee to be HFO Cayman (which it is). HFO's efforts to retain assets within a new vehicle but with the same name do not mean they don't have to issue new NoAs - they should! - maybe this suggests a motive?

Hopefully tomorrow the court will also demand an explanation from HFO as to why HFO Capital Ltd (Cayman) has continued to issue claims and litigate in its own name if it no longer has title to the alleged debts? VJ has made an affidavit in this respect.

It's my belief that HFO may be vexatious with this appeal by introducing new information which, ironically, completely undermines its case further by proving that the trail of assignment is ambiguous. If HFO had won the first hearing, where would the funds have ended up? And when people have lost to HFO Cayman in the last couple of years, where have the funds ended up if Cayman isn't functioning? Hmmm.

The fact that Mel was informed on the telephone and in writing by the original creditor, Marks & Spencer, that the account was actually sold to HFO Services Ltd increasingly undermines HFO’s position.

Turnbull Rutherford Ltd cannot claim ignorance of their "client’s" position in this, as Turnbull Rutherford is listed by the OFT as the organisation running HFO Services Ltd, while its owner, Alasdair Turnbull, is also a director of HFO Capital Ltd (Ireland) and has widespread involvement in other companies within the Concilian Group (the ultimate parent of all incarnations of HFO).

 

The law requires some certainty and I quote Lord Denning, the Master of the Rolls, who 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.

HFO has repeatedly asserted that the identity of the assignee was transparent - but the assignee’s true address and location of registration was never communicated to the Mel.

In older cases brought by HFO Services Ltd I have noted that the Notice of Assignment issued specifically stated the location of the assignee as in the Cayman Islands, so there could be no doubt as to its identity. Again, given the clear conflict in having two companies with identical names, you may wish to draw your own conclusions as to why this disambiguation has been shelved by HFO Services.

 

 

The issuer of the Notice of Assignment was not, in fact, M&S, as may first appear, but HFO itself. M&S gives permission for debt buyers to issue NoAs on its behalf, but is not aware of the content of the letters, therefore the veracity of the information contained therein is not always clear - so the claimant effectively issued its own evidence! If M&S had issued the NoA, their records would show a deed with HFO Cayman. Therefore it's only fair to assume that, with the deed of sale given in HFO's WS, M&S was referring to Cayman. Who else could it be?

As a result of all this disinformation and confusion, I think the judge was NOT mistaken in drawing the conclusions she did and dismissing the claim.

There are other issues still...

The Default Notice...

I believe that the issuing of a non-compliant default notice is not a de minimis issue. The second default notice, from HFOS, even though it gave only seven days’ notice, was irrelevant, as the account had already been terminated and only a DN issued by M&S had any relevance. It was the validity of this DN which should be considered. M&S admitted to the Mel that it did not send out default notices, and HFO failed to produce a copy of the alleged M&S DN as part of her legitimate CPR request. HFO even admitted in its WS that a copy of the any original M&S DN was unavailable, and Mel always denied its existence.

The ‘agreement’, T&Cs and Rankine...

HFO's appeal relied on Rankine to justify its failure to supply an enforceable agreement. This is flawed. The relevant case law is Carey v HSBC Bank (thanks PT2537). The relevant passage is 173.1, below:

Agreed Principles 173. The parties in Carey have helpfully agreed the following principles. The fourth one was added by Mr Uff, with their agreement. No other party takes issue with them. The OFT has formulated the matter in a slightly different way but accepts these principles are close to its position.

(1) It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms without a copy of those terms being supplied to the debtor at the point of signature;

(2) A document need not be a single piece of paper;

(3) Whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document;

(4) Additionally, a physical connection (or one or more physical connections)

between several pieces of paper does not necessarily constitute them as one

document;

(5) Accordingly, where the debtor’s signature and the Prescribed Terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

It remains Mel’s case that no terms and conditions were presented at the point of signing the application form. It therefore cannot comprise an enforceable agreement, and Deputy District Judge Yeshin was correct in her interpretation of the law.

So... HFO has failed to clearly identify in its documents and witness statements the true nature and identity of the claimant, and therefore the appeal must fail.

And Carey v HSBC shows the judge was correct in her application of the law, and therefore the appeal must fail.

 

 

Let's see what happens tomorrow...

[vjohn82]

You have me interested now DB... HFOC Ireland has ceased trading too??

[DonkeyB]

You have me interested now DB... HFOC Ireland has ceased trading too??

 

Did I say that? Eek! Where? No!

[vjohn82]

Did I say that? Eek! Where? No!

 

Hi,

 

Sorry, my eats, shoots and leaves came into effect then.

 

Re-read... all ok.

 

BUT

 

HFO Capital Ireland, according to the Consumer Credit Register do not have a UK address listed for correspondence etc.

 

Thoughts?

[DonkeyB]

Yup, spot on. Also, HFO Cayman was only listed as Cayman Islands.

 

A cynic might suggest that having two companies with the same name could be a device to try and avoid sending out thousands of new NoAs telling people who really owned their accounts. Only a cynic, mind... but then a cynic might suggest other reasons

[vjohn82]

Only a cynic, mind... but then a cynic might suggest other reasons

 

Oh you are something special Mr DonkeyB

[DonkeyB]

Oh VJ, I didn't know you cared!

[melmumof3]

just in a tizzy, as i feel unprepared for tomoz.. ive the affidavit form and WS printed off.. do i need anything from the original hearing... i need some notes.. not gonna have time to come on here in morning see, as its an hrs drive to court

[vjohn82]

just in a tizzy, as i feel unprepared for tomoz.. ive the affidavit form and WS printed off.. do i need anything from the original hearing... i need some notes.. not gonna have time to come on here in morning see, as its an hrs drive to court

 

Hi Mel...

 

You will be fine

 

The worst that can happen is you have your eyes removed, your tongue taken out, your car firebombed and your bank account purged...

 

...or even worse...

 

...you could get to meet Darth Nelson!

 

The first sounds rather apealing on second thoughts ;-)

[DonkeyB]

Mel, just read those notes I sent and today's bits on here and absorb what you can.

 

If the judge can't unravel this, then there'll be no appeal.

 

The issue of the unenforceable agreement is clear too - you can rely on your WS content for this.

 

Stay calm and you'll do well.

 

DonkeyB

[gh2008]

Good luck Mel - you've got a hell of a team behind you, cheering you on

[DonkeyB]

Sorry Mel, meant to add this this is a directions hearing - HFO may not even turn up, who knows. The judge may simply read the statements and make a decision. If he has questions to ask, they will most probably be to the HFO rep asking why he should allow the appeal.

 

Your questions should be as I've sent to you. Read the bit about the Carey judgment - it's much more important than the Rankine case, and would take precedence.

[melmumof3]

thanks all.... im off to bed, going to try and digest the notes in bed, not ideal but ive only just discovered that i had them all the fricking time... slap wrists for mel!....

 

im not as nervous as last time, really dont know why, think its more i know what to expect kinda... and im wearing jeans tomoz lol..

[vjohn82]

thanks all.... im off to bed, going to try and digest the notes in bed, not ideal but ive only just discovered that i had them all the fricking time... slap wrists for mel!....

 

im not as nervous as last time, really dont know why, think its more i know what to expect kinda... and im wearing jeans tomoz lol..

 

That's our Mel!!!

 

Good luck... can't wait to hear how it has gone

 

CAG is coming to get ya HFO!!!

[DonkeyB]

Mel, a quick killer question for the rep, if he's the same as last time - ask him if he was aware which HFO Capital Ltd he was working for last time.

 

If he didn't know, how could you?

 

Also complain about the introduction of new evidence!

[broken arrow]

Good luck:)

[melmumof3]

just wrote some Qs down.. now on my way.,... nervous as hell!

[DonkeyB]

Mel you're logged on... are you back?

[vjohn82]

Am I right in saying this hearing today Mel was a "Permission to appeal hearing"?