Dori2o v HFC ***won***

[dori2o]

Phoned the court yesterday, and they told me HFC submtted a defence on 2 May- the last possible day.

 

Court said they are running a little behind but I should get defence and AQ next week.

[dori2o]

OK heres the defence. (Have a look at paragraph 2)

 

DEFENCE

1. The Claimant's account is governed by the Defendants personal and/or business banking terms and conditions.

 

2. Persuant to the Defendant's terms and conditions the Defendant is entitled to make a charge for it's services as set out in the Defendant's price list, including an overdraft review fee for considering whether to provide and providing and overdraft.

 

3. The defendant denies that the charges applied to the Claimants account amount to penalties at common law and/or unfair contract terms for the purpose of the UTCCR 1999

 

4. The charges appled to the Claimants account are reasonable and are properly and fully disclosed in the Defendants terms and conditions and published price list. The charges represent the contractually agreed price for the services provided and the UTCCR's are not applicable to them; alternatively, they are not unfar contrary to the UTCCR's. Further, the charges are not default charges and, accordingly, cannot amount to a penalty.

 

5. Save as set out above, each and every allegation made by the Claimant is denied. For the reasons set out above, it is denied that the claimant is entitled to the relief claimed or any relief.

 

Now, Para 2, goes on about overdraft fees, but this is a HP agreement, therefore there cannot be an overdraft, all charges but 1 are for late payment, the other charge is the registration of a Default with the CRA's.

 

Any help appreciated with the next step to take. I'm off to read about the AQ.

[dori2o]

Any help please.

[dori2o]

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[dori2o]

Anyone got any suggestion as to what to do with regards to the defence the solicitors have sent.

 

Seems to be a template, which I did not think was allowed.

 

Any help appreciated.

[Pliny the Penuriosus]

The solicitors defence para 2 appears to be a cut & paste froma bank defence.

 

Dispute it on the grounds that it is irrelevant in that it is a hire purchase agreement & not capable of being an overdraft. These charges where simply applied because of your failure to pay on time which was a breach of contract.

 

Also have you got the agreement what does it say about if the account isn't managed properly by you such as late or non payments etc

[dori2o]

The solicitors defence para 2 appears to be a cut & paste froma bank defence.

 

Dispute it on the grounds that it is irrelevant in that it is a hire purchase agreement & not capable of being an overdraft. These charges where simply applied because of your failure to pay on time which was a breach of contract.

 

Also have you got the agreement what does it say about if the account isn't managed properly by you such as late or non payments etc

 

I have a copy of the agreement but no t&c's, they did not send them.

 

I was thinking about writing to them requesting a copy of the relevant t&c's from when the account was opened.

[Pliny the Penuriosus]

Are you saying that you have never! had a a copy of the T's & C's.

 

Does the agreement you signed refer to them?

[dori2o]

I did have a copy, but when the DVD player broke I threw them out, the t&c's were on the back of the agreement and when I asked for a copy of it, they just sent a copy of the front page, not the back.

[dori2o]

would it be worth contactng them by phone to get a copy.

[MARTIN3030]

If this is what they are going to be relying on in any defence then its something you will need to be getting hold of.

On what grounds you can demand it isnt clear.

Terms and conditions are classed as information not data therefore its not covered by a data protection act request.

Not sure if theres anything under the 1974 CCA that you could force their hand with.

[dori2o]

Well I phoned them and they said they will send out a copy of their terms and conditions from the back of the agreement I signed.

 

I was just thinking though. If I went to curry's do you think they would give me a copy, thats where I got the DVD player from.

[dori2o]

Just contacted comet but they don't have anything they can help with.

 

But, my mum has bought a telly from Currys in the last couple of years and that was on tick, and she has the t&c's somewhere.

 

I know I have to fill in the questionairre, but do I have to respond to the Defence, and if so who to, and can anyone give any advise on what I should be putting in the letter.

[dori2o]

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[dori2o]

Right, got a copy of my mums T&C's and it does mention the following

 

Key Information

Other Charges

• £15.00 - for an unpaid direct debit
  
• £15.00 - collection administration charge which will be incurred if your account is 14 days overdue and each month after until your account is up to date.
  
• £50.00 - if we have to register a default notice (see section 5 overleaf)
  
• All reasonable costs incurred by us in enforcing our rights under this agreement.

 

Here is section 5

 

5. When we may end the agreement early

If any of the following occurs

1) you fail to apy a Monthly Repayment (excluding any part that referres to PPI Premiums) within 21 days of its due date; or

2) we discover that any of the information which you gace to us prior to entering into this Agreement was untrue in any material respect; or

3) a statutory demand (which is a written demand for payment of a debt of at least £750 which, if not complied with, may result in the commencement of bankrupcy proceedings) remains unsatisfied by you in whole or in part for mre than 21 days, or any steps that are taken by or aginst you for your bankrupcy or any composition, agreement or arrangement is entered into by you with your creditors or a bailiff or other officer attaches, seizes or impounds any of your goods pursuant to a court order; then we may serve on you a default notice as required by the Act and require you to pay immediately the Total Amount Payable together with any sums due from you under this Agreement, (excluding Monthly PPI Premiums), less the total of the Monthy Repayments paid, any ther payments made by you under this Agreement (excluding PPI Premiums) and any rebate of inerest you may be entitled to under the Act.

 

Anybody able to comment on these terms?

[dori2o]

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[dori2o]

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[meagain]

As far as I am aware, if you did not get the T+C in their response to your CCA request, they have not fulfilled it. If the request is out of time, they are now in default. The T+C are an integral part of the agreement - if they were on the back of the bit where you sign, then they have not sent you the whole agreement.

[bed32]

Perhaps you could apply to the Court to have the defence struck out on the grounds that the defence is incoherent/incompetent

[dori2o]

This is the response I have come up with to HFC's defence, please feel free to pull it apart.

 

Please find enclosed my completed Allocation Questionnaire (Small Claims Track). Further to section G, please find below my response to the defence provided by DG Solicitors, on behalf of their client, the defendant HFC Bank Ltd. (Thanks to Tbern for this bit)

 

 

 

1. The Claimant's account is governed by the Defendants personal and/or business banking terms and conditions.

 

This is correct, however, the Terms and Conditions of the agreement must be lawful and adhere to consumer contract regulations.

 

2. Pursuant to the Defendant's terms and conditions the Defendant is entitled to make a charge for it's services as set out in the Defendant's price list, including an overdraft review fee for considering whether to provide and providing and overdraft.

 

This point of the defence confuses me somewhat.

 

Firstly, I agree that the Defendant is entitled to make a charge for missed direct debit payment administration; however, the charge must be respective of the loss that the Defendant has suffered as a result of the missed/late payment.

 

The Defendant has repeatedly refused my request for them to disclose the true cost they suffer when a payment is late or missed.

 

Secondly, the Defendant mentions the right to charge a review fee for considering whether to provide and providing an overdraft. However, this agreement the account in dispute is a ‘Personal Loan Agreement’, and as such there is no overdraft facility available o this kind of agreement.

 

Having researched similar claims against HFC, this defence seems to be a standard template defence that the Defendant has used in defence of many other claims.

 

3. The defendant denies that the charges applied to the Claimants account amount to penalties at common law and/or unfair contract terms for the purpose of the Unfair Terms in Consumer Contract Regulations 1999

 

The charges applied are in respect of missed direct debit payments, which the defendant states in their terms and conditions as ‘a failure to comply with any of the terms of the agreement.’

 

This shows that for ‘failing to comply’, or indeed being in breach of the agreement, the Defendant will impose a charge.

 

It is this charge that is unlawful at common law, the precedent for this was Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor co Ltd [1915] AC 79. along with Murray v. Leisure play [2005] EWCA Civ 963. It was held that a contractual party can only recover damages for an actual loss or liquidated losses.

 

It is also these charges that are contrary to the Unfair Terms in Consumer Contracts Regulations 1999. Schedule 2 (e) of these regulations gives a non-complete list of terms which may be regarded as unfair, such as a term that requires me as a consumer who fails in his obligation, to pay a disproportionately high sum in compensation.

 

4. The charges applied to the Claimants account are reasonable and are properly and fully disclosed in the Defendants terms and conditions and published price list. The charges represent the contractually agreed price for the services provided and the UTCCR's are not applicable to them; alternatively, they are not unfair contrary to the UTCCR's. Further, the charges are not default charges and, accordingly, cannot amount to a penalty.

 

As stated previously, I have requested that the Defendant disclose the amount of their loss(es) as a result of the failure to comply with the agreement, but to date they have failed to do so.

 

These charges are fully mentioned in their terms and conditions of agreement, however, it is my argument that the terms and conditions of the agreement do not conform to consumer contract regulations.

 

The Defendant has stated in their defence, ‘The charges represent the contractually agreed price for the services provided…’, however, these terms were not mutually agreed. They were written by, and are in favour of the Defendant.

 

5. Save as set out above, each and every allegation made by the Claimant is denied. For the reasons set out above, it is denied that the claimant is entitled to the relief claimed or any relief.

 

The amount I am claiming is the total of the charges the Defendant has charged, plus interest at the rate of 8% as per the County Courts Act 1984.

 

I have a copy of all the documents referred to in this letter and will be able to issue copies of such.

 

Yours faithfully

[dori2o]

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[dori2o]

Any help please in regard to the proposed response I have writtem above to HFC's defence.

 

Also, when I sent this to the court- do I send a copy to HFC?

 

Many thanks.

[dori2o]

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[dori2o]

Well I'm off to the court this afternoon to drop off my AQ, before I do can anyone advise if I should include the response to the defence as shown above.

 

Many thnks

[dori2o]

Received the following from the court today

 

Before DEPUTY DISTRICT JUDGE JENKINSON sitting at Oldham County Court, New Radcliffe Street, Oldham, OL1 1NL

 

Upon reading the court file

 

IT IS ORDERED THAT

 

Unless by 4:00pm on 22nd June 2007 the defendant files an allocation questionnaire the defence be struck out by this order.

 

Dated 11 June 2007

 

Is this HFC's usual tactic, to not file an AQ?