car2403 -v- HFC Bank (Default removal)

[tomterm8]

1) Why do you think this agreement is a cancellable agreement? you don't explain that in your argument

 

I can't remember if I signed this after being sent the agreement by post and posting it back or if I signed it in their branch - it would be interesting to see if they have "evidence" that I signed it on their premises.

 

If it's non-cancellable I'll have to rely on my prejudice arguments.

 

What I meant is, in your argument you have to state why you think the agreement is cancellable, including relevant sections of law / regs.

 

2) I would suggest issuing a counter claim. the grounds I would suggest would be unlawful termination and breach of the data protection act 1998

 

I was thinking of counterclaiming, but I'd struggle to pay the Court fee at such short notice. (Don't think I'd qualify for assistance)

 

I think you have a very good chance of winning on a basis that the default notice was void. Remember, the going rate on this would see their claim offset, and a nice £1,000 payment.

 

Alternatively, you could file your defence and then send them a letter like this:

 

"Dear XXX,

 

Letter Before Action

 

I write to you with reference to the recent court action you started dated Xth. As a matter of courtesy, I must inform you that I intend to bring a counter claim, which may include arguments on the basis that:

1. You brought this action and terminated my account unlawfully, and
   

2. You have reported, and continue to report, inaccurate data against me to credit reference agencies, causing considerable harm, and

   
   

3. By reporting such data against me, you have breached my human rights, in particular my rights to privacy with associated actions in breaches of confidence, consumer credit law, european law and Data protection legislation,

   
   

4. other substantial legal grounds argued in Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119

   
   

In particular, i note that the basis of this action would be that the default letter you have sent to me during disclosure was addressed to an address that I did not move to until several months after the date on the letter. I attach a copy of this letter for your convenience.

 

 

I understand that the civil procedure rules require that a reasonable opportunity for a compromise should be given before commencing legal action. in this case, since legal action was already brought by your clients, I intend to give you 7 days to consider your position and offer any proposals to settle these issues.

 

 

Yours Sincerly,

 

 

XXX.

 

 

 

[car2403]

Thanks tomterm.

 

What would be the effect of arguing that the agreement is cancellable when I'm not sure? If I can't remember, can I legitimately use it in my Defence hoping that they can't prove it either way? It's obviously damaging, as the prejudice argument can go either way but the cancellable/missing right of cancellation notice argument is a total defence.

 

I could file the Defence, send your LBA above and use the AQ to request a 1-month stay to attempt settlement I suppose. Could I then counterclaim, or is that too late? What are the chances they will accept my argument re: the Default Notice when I have binding precedent?

 

I'm suddenly very confused now...

[tomterm8]

Thanks tomterm.

 

What would be the effect of arguing that the agreement is cancellable when I'm not sure? If I can't remember, can I legitimately use it in my Defence hoping that they can't prove it either way? It's obviously damaging, as the prejudice argument can go either way but the cancellable/missing right of cancellation notice argument is a total defence.

 

I could file the Defence, send your LBA above and use the AQ to request a 1-month stay to attempt settlement I suppose. Could I then counterclaim, or is that too late? What are the chances they will accept my argument re: the Default Notice when I have binding precedent?

 

I'm suddenly very confused now...

 

In terms of defence, you don't need a binding precident on the default argument... it is explicitly in the primary legislation. as for damages, the one I referenced is only one of a string of judgements in similar issues in higher courts.

 

Filing the defence is very important. It would be for the creditor to prove that the agreement was not a cancellable agreement. Hard to prove at this point in time.

[car2403]

How should I amend the Defence to say it's cancellable?

[car2403]

Like this, presumably;

 

In that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, and that signing took place away from creditors’ premises making the agreement cancellable as per regulations.

[car2403]

I was thinking of counterclaiming, but I'd struggle to pay the Court fee at such short notice. (Don't think I'd qualify for assistance)

 

I've thought long and hard about this and, as they've issued against me on MCOL, the Court fee is £70 - (counterclaim for £1,000) I'm going to beg/steal/borrow to get this fee together this week and file my Defence and Counterclaim on Friday. I'm going away on Sunday/Monday, so need to file early, and don't want this looming over me when I come back.

 

So, I'm sending your counterclaim LBA, tomterm, by fax and first class post today;

 

"Dear XXX,

 

Letter Before Action

 

I write to you with reference to the recent court action you started dated Xth. As a matter of courtesy, I must inform you that I intend to bring a counter claim, which may include arguments on the basis that:

1. You brought this action and terminated my account unlawfully, and
   

2. You have reported, and continue to report, inaccurate data against me to credit reference agencies, causing considerable harm, and

   
   

3. By reporting such data against me, you have breached my human rights, in particular my rights to privacy with associated actions in breaches of confidence, consumer credit law, european law and Data protection legislation,

   
   

4. other substantial legal grounds argued in Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119

   
   

In particular, i note that the basis of this action would be that the default letter you have sent to me during disclosure was addressed to an address that I did not move to until several months after the date on the letter. I attach a copy of this letter for your convenience.

 

 

I understand that the civil procedure rules require that a reasonable opportunity for a compromise should be given before commencing legal action. in this case, since legal action was already brought by your clients, I intend to give you 7 days to consider your position and offer any proposals to settle these issues.

 

 

Yours Sincerly,

 

I've filed a Claim/Defence before, but have never counterclaimed, so any help with this - wording/construction, etc - will be even more appreciated!

[car2403]

Any suggestions over how to word the counterclaim? Or additions/amendments to the Defence, above?

 

As mentioned, I'm on a tight deadline as I want to submit Defence and counterclaim on Friday... so, no pressure

[tomterm8]

There's no need to file the counter claim yet... send the letter, and wait a week anyway.

 

As for the defence, it seems OK to me.

[car2403]

Oh, I thought I had to counterclaim as part of the Defence? See... learning all the time...

 

So, just to clarify - file the Defence on Friday, (Monday being the final deadline - but I'm away this weekend) then counterclaim depending on what their response is. Right?

[Goldlady]

I would have thought the same car2403.

[tomterm8]

Oh, I thought I had to counterclaim as part of the Defence? See... learning all the time...

 

So, just to clarify - file the Defence on Friday, (Monday being the final deadline - but I'm away this weekend) then counterclaim depending on what their response is. Right?

 

You can always phone the court up to confirm, but my understanding is that you can file a counter claim any time before the court case is decided.

[car2403]

I'll call the Helpdesk in the morning to confirm - don't want to miss the opportunity and it will be interesting to find out for future reference anyway

[car2403]

I have found out that the counterclaim forms part of the defence. If the defendant is free to decide to counterclaim if it forms part of his defence. However, if the defendant wishes to counterclaim AFTER he has already filed his defence then he must apply to the court for permission.

 

This is covered by Rule 20.4 (2).

 

20.4 (1)A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

(2)A defendant may make a counterclaim against a claimant –

(a)without the court's permission if he files it with his defence; or

(b)at any other time with the court's permission.

 

(Part 15 makes provision for a defence to a claim and applies to a defence to a counterclaim by virtue of rule 20.3).

(3)Part 10 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.

 

 

Wobbles

 

Any advice on the structure of the counterclaim?

[car2403]

I've had a letter from HFC Bank; (not Restons)

 

Further to your letter dated 24 September 2007 and proceeding correspondence, regarding your request for information of your account under the Consumer Credit Act 1974 (CCA). The details of your complaint have now been escalated to me in accordance with HFC Bank’s complaint handling procedure.

 

I was concerned to learn that you did not receive a reply to your previous letter dated 13 August 2007. As you are aware both of the above accounts have been placed with solicitors, therefore the information you requested was forwarded to them and not to you directly. In respect to account number [A/C number 1] a copy of the legal agreement was forwarded to Restons on 5 September 2007. In respect to account number [A/C number 2] a copy of the legal agreement was forwarded to RobinsonWay on 22 August 2007. It would appear from your letter that you are not in receipt of the legal agreements for either accounts and I would therefore like to offer my sincere apologies.

 

In relation to your request for true, executed signed agreements, please find enclosed copies of the legal agreements for both accounts. I can confirm that under the CCA we have now fulfilled our obligations by supplying you with a copy of the signed credit agreement. You will note in the signature box it states; “this is a credit agreement regulated by the CCA 1974” and by signing this you want to be legally bound by its terms. The form of any copies we must provide are governed by the Consumer Credit (cancellation notices and copies of documents) Regulation 1983. We are confident that HFC Bank has complied with these regulations.

With regards to your request for true, certified copies of the original signed default notices. Please find enclosed sample copies of the default notices issued. In addition please find enclosed statements for both accounts.

 

As you are aware, there are outstanding balances on your accounts and as we are permitted to process your data regarding these debts to the relevant Credit Reference Agencies, HFC Bank will continue to do this until the outstanding balances are cleared in full. I trust this clarifies out position on this matter.

 

If you have any further queries relating to this matter, or remain dissatisfied, please do not hesitate to contact me and I will arrange for your complaint to be escalated. Alternatively, you may follow the steps detailed on our internal complaint procedure.

As you are aware, HFC Bank is a member of the Financial Ombudsman Service and ultimately, you have the right to refer your complaint to them as an independent adjudicator in disputes between Banks and their customers.

 

I would also like to advise you that unless I hear from you within the next 8 weeks, I will assume the matter is resolved to your satisfaction and my files will be closed,

 

Yours sincerely

Lisa Bond

Customer Relations Advisor

Executive Complaints

 

They have included;

 

- 1 x copy of the agreement at post #7, here;

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default.html#post1107155

- 1 x agreement for the second account;

- 2 x statements;

- 1 x Default Notice;

- 1 x Termination Letter.

 

All these, with personal details removed, are in the attached ZIP file.

HFC Bank.zip

[car2403]

I've had a letter from HFC Bank; (not Restons)

 

They have included;

 

- 1 x copy of the agreement at post #7, here;

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/110146-car2403-hfc-bank-default.html#post1107155

- 1 x agreement for the second account;

- 2 x statements;

- 1 x Default Notice;

- 1 x Termination Letter.

 

All these, with personal details removed, are in the attached ZIP file.

 

On first pass;

 

- The second agreement hasn't been signed on behalf of HFC Bank

- The APR/repayment figures seem to be correct, or within the tolerance allowed

- The statements have £330 and £440 in charges on them respectively

- The Default/Termination notices clearly aren't signed true copies of the originals (they haven't even bothered to complete the financial details)

 

The main question would be, is this 2nd agreement enforceable? My Defence to the first agreement still stands, along with incorrect/unlawful Default and Termination which will also apply to this 2nd agreement by the looks of it.

 

I need to update my Defence to this Claim and prepare a counterclaim to that claim for the issues raised in my LBA, sent to them this week in post #56, above.

[car2403]

One more thought - can I Defend on the basis that I don't know which agreement they are trying to enforce? It is obvious as Restons are only dealing with 1, but with the surfacing of the 2nd can this be said to throw their entire claim in to doubt?

[car2403]

A letter in response to the CPR from Reston's;

 

Re: HFC Bank Limited v. Yourself

Thank you for your letter of 15 October 2007 which has been referred to me. I have read your letter and our file carefully and would respond as follows:

 

1. You appear to be confusing this company with our Client. HFC Bank plc. This company did not terminate your account nor have we reported any information to the Credit Reference Agencies.

 

2. Our Client does not store copies of Default Notices. If a “copy” is required at a later stage this must be reconstituted using the information on our Client’s system. It seems from what you say that a simple mistake has been made when completing the address and the dates.

 

3. In your letter of the 11 August 2007 you refer to your account showing as “default”. We are not sure what you would expect to see against your account other than the word “default” if you fall into arrears with your contractual monthly payments.

 

We have provided you with documentation under the CPR. With regard to the subject ‘access request’ you appear to be making identical requests to both this company and our Client and we are not the data controllers. You should make your request to our Client only (sending the correct fee) otherwise your request is invalid.

While it would be fair to say that you are perfectly entitled to defend the claim it is equally true that the Court will expect you to admit to an amount which you believe is due and defend as to the balance. Thus far you have indicated that do not agree certain fees and costs and have therefore decided to dispute the full claim. This is wrong. We would ask you to please use the form of admission to admit the debt you believe is due and it will then be for our Client to determine whether to accept that to avoid further proceedings or to pursue for the remaining balance.

 

With regard to the Counterclaim this is of course a matter for you but we cannot see on what basis you will be able to bring such a claim.

 

Managing Director

Reston‘s Solicitors Limited

 

I'm thinking that this is scare tactics? Do I have them on the run? Of course, I could be completely wrong and would probably fold and accept their version of events if I wasn't using CAG.

 

Any words of support or help with either the Defence or Counterclaim would be REALLY appreciated! I intend to post both tomorrow, to ensure they get it before 4pm on Monday as I'm going to be away for most of the weekend and don't want this hanging over me.

[shane5408]

A letter in response to the CPR from Reston's;

 

 

 

I'm thinking that this is scare tactics? Do I have them on the run? Of course, I could be completely wrong and would probably fold and accept their version of events if I wasn't using CAG.

 

Any words of support or help with either the Defence or Counterclaim would be REALLY appreciated! I intend to post both tomorrow, to ensure they get it before 4pm on Monday as I'm going to be away for most of the weekend and don't want this hanging over me.

 

Hi Car,

 

As I understand it the rights and duties, including legal remain with HFC until such a time that an absolute legal transfer takes place. This means that any legal action taken by Restons must be instigated by HFC. As a result, any Legal requests for info such as cpr4.6 you want to send should be directed to HFC and not Restons. in all likelyhood HFC might very well then pass the request onto Restons to deal with, but the important thing is that it must be sent to HFC in the first place as they own all legal rights and responsibilities?

 

I'm sure Tomterm will clarify, not entirely sure on this one

 

regards,

shane

[car2403]

Thanks Shane.

 

The Claim form states that all Restons is the address for sending documents and payments to, so would this not cover it?

 

I think that HFC have provided everything I asked for, dotted around on this thread, so I'm not sure what effect sending a new CPR request to them would have.

 

The only things missing are the T&C's attached to the agreement, transcriptions of phone calls, details of manual intervention/logic applied, true copies of Default/Termination notices, breakdown of charges.

[car2403]

Couldn't get on the site yesterday - probably my darn ISP, which I won't name, (it isn't a "UK"-one ) as I've had loads of probs with my connection.

 

Anyway, CPR request faxed/posted to HFC and I've submitted my Defence and Counterclaim. I wanted a 2nd opinion from the experts on here, but had to go for it anyway as I was running out of time and didn't want to miss the Monday deadline as I'm going away tonight, back Monday night.

 

Take it easy...

[shane5408]

Hi Car,

 

did you issue counterclaim or the LBA tomterm suggested?

 

regards,

shane

[car2403]

I've based my counterclaim on the LBA tomterm provided.

[NitrousOxide]

That default says you owe 3 pence.

They either have to find the original or rely on this copy.

[car2403]

Just noticed I haven't included the Defence/Counter I submitted. This is taken from the MCOL site, so I hope the formatting works for you?;

 

Defence

1. I, car2403, (the Defendant in this case) am a litigant in person and I make this Defence statement from my own knowledge and experience.

 

2. The Defendant denies the allegations made in the Claimants particulars of claim and puts the Claimant to strict proof thereof.

 

3. The Particulars of Claim are summary in nature and do not disclose sufficient grounds for bringing any action. Despite this, the Defendant pleads as follows, but seeks to reserve the right to amend this Defence in such circumstances that the Claimant provides more detailed particulars at a future point in these proceedings;

 

4. The Defendant made a request, pursuant to s.77(1) of the Consumer Credit Act 1974, on 11 August 2007. In a response dated 30 August 2007, an alleged copy of the originally executed agreement and an alleged signed true and certified copy of the original Default Notice were supplied. No other document was provided, whether referred to in the alleged copy agreement or not, within that response.

 

5. The agreement provided has been improperly executed under s.64(5), in that the agreement does not contain statements of the debtors right of cancellation (as required by s.64(1) and Reg.2(3) of the Consumer Credit (Agreements) Regulations 1983 (SI1983/1553)) and that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer

Credit Act 1974 and the regulations there under.

 

6. Any application for an Enforcement Order under s.65(1) of the Act, as a result of this improper execution under s.64(1) of the Act, must be dismissed by the Court by virtue of s.127(4)(b) of the Act.

 

7. In addition to this, that the alleged copy agreement has been improperly executed under s.61 of the Act, in that it does not include details of the protection and remedies available under the Act, as prescribed in s.60(1) and the regulations.

 

8. Any application for an Enforcement Order under s.65(1) of the Act, as a result of this improper execution under s.61 of the Act, should be dismissed under s.127(1)(i) of the Act, due to the prejudice caused to the Defendant by;

 

a. The Defendant’s pleadings regarding the defaulting and termination of the

account, outlined in paragraph 10 and 11 of this Defence Statement, specifically;

i. That the account has been improperly and unlawfully defaulted and terminated;

(s.88 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default

and Termination Notices) Regulations 1993)

ii. This improper default has effected (and continues to effect) the Defendant’s

reputation and credit rating held by credit reference agencies;

iii. The Claimant’s failure to reply to, or to unconditionally comply with, a

Statutory Notice issued by the Defendant pursuant to s.10 and s.12 of the Data

Protection Act 1998, requiring it to remove this information from its own records

and to cease from continuing to process or share that information.

 

b. The Defendant disputes the balance of the account, as outlined in paragraph 9 of this Defence statement;

 

c. The fact that the Claimant (and their representative) is aware of these

disputes, but has decided to issue these proceedings, being in direct contention with s.2.8.i of the Office of Fair Tradings guidelines on collection activity, namely;

“Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued”

and s.13.6.k of the Banking Code;

“Not ceasing collection activity whilst investigating a reasonably queried or disputed debt”

 

9. The Defendant disputes the balance of the account, as follows;

a. The Default balance, outstanding balance and the amount of the claim is uncertain;

i. The Claim form showing a Default Balance of £4992.49;

ii. Statements provided by the Claimant showing that figure to be £3991.85;

iii. The Claimant reporting the original default balance to CallCredit PLC, (a

credit reference agency) as £4817.00 and an outstanding balance of £3859.00 (updated

on 4 September 2007).

 

None of these sums appearing as part of the Claimant’s claim. Accordingly the Defendant puts the Claimant to strict proof that the Default balance, outstanding balance and the amount of the claim are valid and lawful.

 

b. During the period in which the account was operating the Claimant debited charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Defendant understands that the Claimant contends that the charges were debited in accordance with the terms of the contract between itself and the Claimant.

i. The Defendant contends that:

1. No such contractual provision exists to allow the Claimant to levy such

charges.

2. Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Claimant which

exercises the contractual term in respect of such charges with a view to profit.

3. Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful. The Defendant avers that any Default Notice sent would have included these charges, invalidating that Notice due to this unlawful application.

 

10. The agreement has been unlawfully defaulted and terminated, in that the Notice supplied is not accurate and fails to comply with s.88 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Notice supplied;

a. Is addressed to the Defendant’s current address – an address that the Claimant was not aware of at the date of issue, the Defendant not having lived at this address at that time;

b. The Default Notice is dated 9 August 2005, but gives until 26 July 2005 to remedy the breach, therefore not providing the period of remedy prescribed under s.88;

c. The Default Amount being incorrect as per paragraph 9 of this Defence.

 

11. Failure of a Default Notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Defendant a counter claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

I, the Defendant in this case, believe that the facts stated in this Defence

statement are true.

 

 

Counterclaim

 

1. I, car2403, (the Defendant in this case) am a litigant in person and I make this Counterclaim statement from my own knowledge and experience.

 

2. The Defendant counterclaims against the Claimant on the following basis;

a. The Claimant has brought this action unlawfully, and has defaulted and

terminated the account unlawfully;

b. The Claimant has reported, and continues to report, inaccurate data against the

Defendant to credit reference agencies, causing considerable harm to reputation and credit standing. By reporting such data against the Defendant, the Claimant has breached the Defendant’s human rights, in particular, but not exclusively, the right to privacy with associated actions in breaches of confidence, consumer credit law, European law and Data protection legislation;

c. Other substantial legal grounds argued in Woodchester Lease Management Services Ltd v Swain and Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

3. The Defendant, therefore, counterclaims against the Claimant in the following terms;

a. Damages in the sum of £1,000, due to the Claimant’s failure to Default and Terminate the Defendant’s account in the lawfully prescribed manner;

b. An Order from the Court enforcing the Claimant’s compliance with the Defendant’s statutory notice under s.10 and s.12 of the Data Protection Act 1998, (issued to the Claimant on 24 September 2007, a copy of which is attached to this counterclaim statement) and damages at the Court’s discretion due to the Claimant’s failure to comply with that notice;

c. The amount of Charges applied to the account as per paragraph 9b of the Defendant’s Defence statement, totalling £245.00. (Charges statement attached)

i. Under the County Courts Act, the Defendant is entitled to interest of 8% per annum from the date they were deprived of the money. This totals £55.48 at the time of counterclaiming, accruing at the daily rate of 0.021% until judgment or payment.

d. Costs at the discretion of the Court.

 

I, car2403, the Defendant in this case, believe that the facts

stated in this Counterclaim statement are true.

 

[car2403]

That default says you owe 3 pence.

They either have to find the original or rely on this copy.

 

Interesting one, Nitrous, as they provided the original one to Restons as part of my CCA request response from them but haven't sent it to me? I wonder which they will rely on at trial, as neither meets the form/content requirements?

 

I have just got a reply from the Data Protection Act S.A.R - (Subject Access Request) I sent and they've included statements with £1145 in fees/charges applied over the 6 accounts, which have now been consolidated in to these agreements. Shame I couldn't include them in my Defence/Counter, but they failed to reply within the 40 day prescribed period and to a CPR request - I must remember to bring this to the Judge's attention when I discuss prejudice caused to me! He won't be impressed, I'm sure...