Hillesden Securities

[frisp]

These clowns are the latest in a long line of DCA chasing a debt where the OC cannot provide a Copy of the contract for a loan they claim I took out in 2006.

I basically told them the account is unenforceable and strangely they've come back with McGuffick v RBS on enforceability. Stating that 'bringing proceedings is not enforcement and it follows that demanding payment prior to commencement of proceedings cannot therefore be considered enforcement'.

Apart from telling them just to 'feck off' is there a pithy rebuttal to this statement?

[Deepie]

Re: Hillesden Securities

Welcome frisp, have you got round to looking at the Template letters yet?


Final Response - Unenforceability (No CCA Received)

[midastouch]

Re: Hillesden Securities

Personally, I'd go with your first instincts and tell them to fuck off....

[Paul.]

Re: Hillesden Securities

lol

Id ask them to comply with their statutory obligations and produce a true copy of the agreement,

now i dont know what you say about the signing of an agreement but if you say you did not sign an agreement, then id refer them to carey v hsbc which states

Para 53(11)

If he does and for example asserts positively that although he has been using a credit card agreement for years he never actually signed an agreement, or one that complied with s61, the creditor may well have to try and find the original in order to deal with that allegation.

So that means that in my view, the creditor when faced with such an allegation needs the original agreement or some strong evidence to prove there was a signed compliant agreement

Id also refer them to the case of

Devendra Kotecha vs Phoenix Recoveries (court of appeal) which confirmed that to comply with s78 the creditor must provide the complete agreement not just part of it

so i think they best go provide the full information rather than hassling you

[garlok]

Re: Hillesden Securities

Hi Paul,

Thanks for your common sense comments on "Carey" here and on other threads. It has been much of my thinking since I first read it when it came out. It hs some dangerous ground for creditors -- used properly.

regards
Garlok

[CleverClogs (RIP)]

Re: Hillesden Securities

Personally, I'd go with your first instincts and tell them to fuck off....

Whereas I would be minded to suggest they look up the celebrated retort by Richard Ingram in the (unreported) case of Arkell v Pressdram.

[Never-In-Doubt]

Re: Hillesden Securities

in the (unreported) case of Arkell v Pressdram.

LOL, in that he did say "f**k-off"

[CleverClogs (RIP)]

Re: Hillesden Securities

LOL, in that he did say "f**k-off"

It may be more effective if they look up what it means.

[Paul.]

Re: Hillesden Securities

Hi Paul,

Thanks for your common sense comments on "Carey" here and on other threads. It has been much of my thinking since I first read it when it came out. It hs some dangerous ground for creditors -- used properly.

regards
Garlok

youre welcome mate

One thing that i think we are really going to need to dispell the myth on, is this notion that non compliance with s78 gives you the right to stop paying, it does not and will lead you into court very quickly

so often i hear people say to me, well they didnt send the the CCA so i stopped paying, McGuffick addressed this very clearly.

People need more, than just that, they need something like Keith Harrison, the Unfairness side of things, Harrasment etc, or a dispute like this one where the goods were defective

they need something of substance to stop paying really as the courts are trying their best to find against debtors where ever they can.

I really think we need to make sure people are educated on this point

[Paul.]

Re: Hillesden Securities

I ought to have said, however, that section 78 breaches may well provide a defence in court if you are sued, but you should not rely on the creditors failings and assume they will never comply

[Never-In-Doubt]

Re: Hillesden Securities

LOL, in that he did say "f**k-off"

here you are!

Arkell v. Pressdram (1971) [unreported]

Solicitor (Goodman Derrick & Co.):
We act for Mr Arkell who is Retail Credit Manager of Granada TV Rental Ltd. His attention has been drawn to an article appearing in the issue of Private Eye dated 9th April 1971 on page 4. The statements made about Mr Arkell are entirely untrue and clearly highly defamatory. We are therefore instructed to require from you immediately your proposals for dealing with the matter. Mr Arkell's first concern is that there should be a full retraction at the earliest possible date in Private Eye and he will also want his costs paid. His attitude to damages will be governed by the nature of your reply.

Private Eye:
We acknowledge your letter of 29th April referring to Mr J. Arkell. We note that Mr Arkell's attitude to damages will be governed by the nature of our reply and would therefore be grateful if you would inform us what his attitude to damages would be, were he to learn that the nature of our reply is as follows: fuck off.

[Never-In-Doubt]

Re: Hillesden Securities

Guys lets remember this site was set up for those not able and not really willing to get drawn into a legal fight. Therefore whilst I (we all) appreciate what you're saying, and KNOW what you're saying is right, for the majority here the court thing isn't the problem - it is the simple lack of funds.

So although yes, payment cessation is not ideal it is fine for the majority to buy them breathing space; time to consider options/offers etc and even so, in some cases court aint a bad thing.

I have seen numerous users here that were on £200+ per month pay-outs. After the redetermination, this is now £1 per month. So all this talk of building up a harassment case is fine, and the info would be great, but lets not forget our main target audience is the last resort, ie those that cannot pay.

Ergo, cessation of payments will always be used here, especially when there is outstanding CCA issues. As the user has really little alternative but to stop payments.

Not all cases will end up in court, and even so we can usually find enough errors to hold the defence - as Paul has seen, how many cases have you taken on and of those, how many are paying? None, right?

Carey can be useful, but you still have to play it in context, we can't just nick a quote here and there and create a defence, we're not the DCA's and it'd fail. Like the quote above, that needs to be used in context with the rest of the judgment. In the quoted example, surely then for those with no signed agreement, we just say to the user "say you cannot recall signing the agreement ergo lets chase s.61 as per Carey".....

Anyway, that's how I look at it..... hopefully only a small percentage will have claims brought against them, ideally none, but it'll always happen... Maybe in time, as things evolve then yea, we'll need to address these issues?

Why don't we all get a case law and strip it down and start using elements from them, to create a foolproof system of defence.... Can that not be done?

[Paul.]

Re: Hillesden Securities

no ,

I accept that, people fall over for a variety of reasons, what needs to be remembered is that they need to say that is the reason for not paying.

I call it a CAG isim, because i saw it soo often said that the failure to comply with s78 was a valid dispute, which entitled the debtor not to pay

It isnt, far from it,

If you waltz into court with that approach its CCJ, Charging order and order for sale for the most of them

The OFT has produced some good guidance on dealing with people in debt with financial difficulties, and i would rely on that first, and then say in addition the creditor cannot enforce because he hasnt complied with s78 rather than saying i aint paying because of the s78 breach

[Never-In-Doubt]

Re: Hillesden Securities

The OFT has produced some good guidance on dealing with people in debt with financial difficulties, and i would rely on that first, and then say in addition the creditor cannot enforce because he hasnt complied with s78 rather than saying i aint paying because of the s78 breach

Nah mate you're missing my point, they'll be saying to the judge "I couldn't pay cos I aint got no money"...... Forget the s.78 breaches, that's when we come running to you. Only a small (less than 10%) of debtors on here are homeowners....

[CleverClogs (RIP)]

Re: Hillesden Securities

Guys lets remember this site was set up for those not able and not really willing to get drawn into a legal fight. Therefore whilst I (we all) appreciate what you're saying, and KNOW what you're saying is right, for the majority here the court thing isn't the problem - it is the simple lack of funds.

So although yes, payment cessation is not ideal it is fine for the majority to buy them breathing space; time to consider options/offers etc and even so, in some cases court aint a bad thing.

It could, however, be more stressful.

I have seen numerous users here that were on £200+ per month pay-outs. After the redetermination, this is now £1 per month. So all this talk of building up a harassment case is fine, and the info would be great, but lets not forget our main target audience is the last resort, ie those that cannot pay.

There may be the risk that the creditor or DCA - and some are more wont to use such antics than others - may threaten the debtor with bankruptcy.

Carey can be useful, but you still have to play it in context, we can't just nick a quote here and there and create a defence, we're not the DCA's and it'd fail. Like the quote above, that needs to be used in context with the rest of the judgment. In the quoted example, surely then for those with no signed agreement, we just say to the user "say you cannot recall signing the agreement ergo lets chase s.61 as per Carey"...

A better argument might be that, whilst one may recall signing something, one seems to recall and asserts positively that it did not contain the prescribed terms.