Court Hearing - Me vs Horwich Farrely

[noomill060]

However, even if the agreement is unenforceable, the debt doesnt go away- they just cant enforce it in Court.

 

You can reduce it by claiming your charges and interest on charges back. You can reduce it further by claiming that as you never actually agreed to pay any interest at all, all payments you made should have gone to pay off the amount borrowed instead of being unlawfully nabbed as interest.

[noomill060]

You could put this in as a counter claim.

[noomill060]

If your charges and interest exceed the outstanding "debt" -they owe you money.

[elizabeth1]

Hiya - I have an "agreement" just like this and have a hearing with these nice peoples on Tuesday 11th Sept. Now - I did ask advice on this and was given the following answer -

 

"It is definately unenfoceable as an agreement regulated under the CCA, it contains none of the prescribed terms and the lack of an APR would make it very unlikely that a court would enforce it as it is contrary to section 127(1).(i).

The practice of risk prcing is also going to be an issue as the idea that they are getting you to sign for an agreement without having assesd your possible loading due to your credit score also predjudices your decision making process in taking on the card and is also frowned on by the OFT although moorso in distance marketed agreements.

I don't know if you have a copy of the 1983/1553 regs but it states there that all information in schedule 1 should be within the agreement and i think all items between secdtion 5 and 17 should be together as a whole this bit includes the prescribed terms.

To my mind if the terms are anywhere else then they do not conforme with the regs and the agreement is unenforceable via 127(3).

The idea that a sepperate sheet containing the t and cs is acceptable is rubbish and really needs to be shown up, as more and more creditors seem to be adopting the tactic of producing what is basically an information sheet containing the companies T and cs and saying it is part of the agreement."

 

CAP1 are pulling rubbish like this and doing their best to tell us how silly we are - So far in my claim with CAP1 - Judge has actually ordered them to show the "ORIGINAL AGREEMENT AND DOCUMENTS" in court on TUESDAY - so I will know more then to tell you all. Should be interesting to see how they convince Judge such a document complies as a CCA. I shall prepare my side of this argument and will post it for all to see after Tuesdays hearing for obvious reasons.

 

There isn't a lot we can keep saying when they do this trick time and time again - appears they learn nothing from these mistakes?

 

If you want a copy of the Regs PM me uour email address - I do have a copy I can email to you.

[elizabeth1]

Pardon my dimness, and all that, but if the agreement is unenforceable, what happens to all the money paid to C1/RW&C/HF, especially if £776 is unlawful charges?

 

From what I see here the "agreement" is unenforceable (see my previous post here)

 

You claim back all the charges and interest, ask for default removal and for all the negative markers to be removed from CRA files (cap1 are very good at eventually removing the default - but leave the markers ha ha nice trick if they can get away with it?)

 

Also if you paid PPI claim that back too - unenforceable agreement you can reclaim it as no contract existed - they do pay this back.

 

Depending on how much they annoy you - tell court you want "damages at discretion of judge/court" - they've obviously written to CRA's blackening your character/name since "**** date - this has cost you in other finances you've committed to etc.. so you want something for the trouble they caused you?

 

You just need to remember they messed up and the are Laws these companies need to abide by too.

 

Lay your points out clearly so there is no mistaking in what you want - and stick to them and you'll get exactly what you want.

[teethgrinder]

Just an update

 

HF failed to supply the court with assignment of debt by 4pm yesterday, so this (or near) will be the letter I'll send to the the court tomorrow. Any tips?

 

 

 

The Defendant notes that neither Robinson, Way & Company Limited, or

their representative, Horwich Farrelly Solicitors, have served any such

documents and/or statements that were ordered by the Court as evidence,

namely that the did not provide the Court with a copy of the assignment

of debt by 4pm on 1st October 2007.

 

The Defendant also requested a copy of this agreement under section

78(1) of the Consumer Credit Act 1974 on the 30th August 2007, and this

information has not been provided. Non-compliance of this request is a

criminal offence under the above act (see attachment 1 for a copy of the

letter and proof of posting/delivery).

 

Additionally, the credit agreement the Claimant provided in their

letter to court dated 30 September 2007 is not a credit agreement at all, as

it does not contain all the prescribed terms and as such is

unenforceable under CCA74 s127. Attachment 2 is a copy of the application form

provided by the Claimant, and can be seen to be a ‘Short Application

Form’ with no mention of credit limit, repayment amounts or interest rate.

 

The Defendant therefore respectfully requests that the claim be struck

out due to the non-compliance of the order of the Court by the Claimant

and that the Claimant is also liable for any costs incurred by the

Defendant (£5 for writing materials and postage costs, £75 for 1 days pay

for a day off work to attend a hearing where the Claimant failed to

attend – Total £80).

 

‘S61(1)(a) CCA provides that, for a regulated agreement to be properly

executed, it must contain all the prescribed terms of the agreement and

conform to regulations under s60(1).

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements

Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and

s127(3) – see Q8.2.

 

What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order

unless a document containing all the prescribed terms of the agreement was

signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the

agreement is not enforceable against the debtor, and the court is

precluded from making an enforcement order.

 

What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.’

 

 

Yours Sincerely,

[diskmandave]

Like it!

 

Can't the £80 be rounded up to £100 ? Travel costs, research.... ?

 

Thx for the text earlier too!

[teethgrinder]

Hmmm. Fuel is rather expensive, and the bottle of lucozade, etc.

 

I'll (try to) learn 'em!

[ODC]

Try Vimto. DMD swears by it

[Curlyben]

Nice one teethgrinder.

I bet HF et al will love you when you submit that gem

[noomill060]

Like a Roman sword.

 

Short, sharp and to the point.

[teethgrinder]

And...if there's no valid, legal assignment of debt, then surely any payments to RW&co and HF should be returned to me?

[teethgrinder]

I have paid HF/RW £251 in total, and it now appears they have no claim to the debt - £100 for costs, plus the £251 sound fair?

[elizabeth1]

I have paid HF/RW £251 in total, and it now appears they have no claim to the debt - £100 for costs, plus the £251 sound fair?

 

 

Yep - go for it !!! I PM'd you

[alfwithhair]

Go for it. Hit them where it hurts. IN THEIR POCKET.

[tiglet]

subbing with interest. go for it!

[teethgrinder]

Faxed the letter to the court this morning - asked for £100 costs and the £251 I payed them without a valid DoA. Checked back with the court at 3.45, and the Judge has ordered that the claimant has 7 days to comply with the original order that expired on 1st Oct before it gets struck out - mad!

[tiglet]

It's not fair, but the judge obviously wants to be seen as giving everyone a fair chance.

[ODC]

Yeh! And Whorewitch Farrelly are really fair:rolleyes:

[noomill060]

Just think- another 4 working days and HF are stuffed.

[teethgrinder]

Shame there's a postal strike:D

[alexteh]

If only solicitors had an alternative to the Royal Mail which they regularly used

 

*cough*DX*cough*

 

Of course, they'll probably get some extra leeway because of the strike anyway...

[teethgrinder]

Well, letter arrived from court today, giving HF until 19 Oct to produce DoA or claim will be struck out!

 

There was also another order which stated:

'Because this order has been made by the court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must deliver the application to the court to arrive within seven days of service of the order.

 

So...If no DoA turns up by 19th, I win. Nothing was said about my request for expenses and claimimg the £251 back, though.

 

Advice?

[tomterm8]

Well, letter arrived from court today, giving HF until 19 Oct to produce DoA or claim will be struck out!

 

There was also another order which stated:

'Because this order has been made by the court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must deliver the application to the court to arrive within seven days of service of the order.

 

So...If no DoA turns up by 19th, I win. Nothing was said about my request for expenses and claimimg the £251 back, though.

 

Advice?

 

Don't get too excited... just wait until the 19th and see what happens. Even if their case does get struck out, they will probably be able to revive it...

[teethgrinder]

Nothing arrived as of Fri 19th at the court - rang today, and it's with the judge so sohould get a letter in the next few days.

 

I will be asking, nay claiming all monies paid due to the lack of DoA and CCA.

 

I will try to nail them by the scrote!