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F E Smith
F E Smith, Solicitor
Category: Bankruptcy Law
Satisfied Customers: 9801
Experience:  30 years in general practice.
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I am being sued by HIFX Europe Ltd, a money transfer

Customer Question

I am being sued by HIFX Europe Ltd, a money transfer organisation, for an completely ONLINE transaction to transfer money from £sterling in the UK to South African Rands in South Africa(SA). They claim that I reneged on an fx deal with them. Here is the background:
In March, I enquired with XE.com about possible use of their services for transferring money from the UK to SA. This enquiry was followed by a series of calls by the same company for me to register with them, which I eventually did on 06/04/2017. Upon registering online, I did not receive any documentation expressing the main points of future dealings with them, including the point for which they are making this claim against myself. The money that I intended to transfer to SA was expected to come from an impending sale of my house here in the UK.On 05/05/2017, it became likely that I would receive the money in the very near future. However, as it happen with house sales, anything can happen to frustrate the sale. So on that day (05/05/2017), I spoke to XE.com about a money transfer deal. I explained to the agent about my circumstances, being that I did not have the money to hand but that I was ‘expecting’ to receive the money in the next couple of days. The agent told me about their policy for holding the deal for 3 days but did not explain to me that I would be contractually bound immediately on the day of the call, considering that this was my first time ever to transfer money with them. Many times in our conversation, he referred to the 3rd day from the day as when they have to receive the money, otherwise the deal would lapse.
As I was not aware and he did not make me aware that I would be contractually committed immediately, I went ahead with the deal, still insisting to the agent that I did not have the money to hand. He did not at any time in our conversation, warn me that I would be immediately bound contractually and I was left with the impression that the contractual agreement would become contractually binding after 3 days, which is when they said the deposit would become due. The contract note that was subsequently sent to me by email is a one-page document which also did not specify this very important point regarding immediate contractual obligation(I can share it with you if needed). It does not make any reference to any immediate liability/obligation to complete the deal. The contract note is a one-page simplistic document that does not provide any detail, considering the complexity of the transaction to a layman such as myself. Furthermore, I had gone through their website and I did not find anywhere where it specifies this very import point regarding immediate contractual obligation, without any statutory grace period which I have come to expect with all transactions. And, all of this is happening over the phone and there are no signatures anywhere, nor had I received prior written notes specifying all these issues which clearly are central to a contract. As mentioned, I did not receive any documentation specifying terms and conditions nor any reference as to where to find them. All I got from subscribing with them was a marketing email about ‘saving me money’. I never thought that I could be contractually tied to a deal without any exchange of funds and without any visible service as well as without any contractual grace period. For an established company that deals in complex financial matters and I expected clarity on such an issue.There were complications with the sale of my house and I was not able to go ahead with the deal. On the 3rd day, I called the claimant to let them know about this and that as a result I was not able to proceed with the deal. That is the first time I became aware that I had been contractually bound from the minute I spoke to them over the phone. Had I known, and had they communicated that point to me, I would have waited until I had the funds in the hand to make the deal with confidence, knowing that I was not leaving myself vulnerable to any contingencies.
After all this, I feel as if I have been mis-led into entering into a contract with the claimant. I tried to raise this as customer feedback so that in the future, other people will not find themselves legally entangled and for them as a way to improve their communication and service and make this very important point of immediate contractual obligation overt and clear. They do not seem to value that.
Submitted: 4 months ago.
Category: Bankruptcy Law
Expert:  victoria-mod replied 4 months ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Victoria
Customer: replied 4 months ago.
Will I be able to get an answer today though do you think?
Customer: replied 4 months ago.
What about Jamie-Law. Yestarday she told me that she has the expertise for my case???
Expert:  victoria-mod replied 4 months ago.
Hello,
I sent your requested Expert a message to follow up with you here, when they are back online. If I can help further, please let me know.
Thank you for your continued patience.
Kind Regards,
Victoria
Expert:  F E Smith replied 4 months ago.

I have been asked to look at this for you.

I am at exactly this question before although it was some months ago and I’m almost certain (but cannot guarantee) but it was the same company using the same tactic.

I need some more information from you please.

You say that you are being sued. Have they actually issued legal proceedings or are they threatening?

If they have issued, are you able to attach a copy of the claim?

Have you asked for a recording or transcript of the telephone call where you are alleged to have entered into this contract?

Customer: replied 4 months ago.
they have issued legal proceedings with a court in Northamptonshire. I have received court papers and I have asked the court for an extention of my response time.I have until 28/07/2017 to respond.
Yes I have attach a copy with this message, please see attached.
I did ask for a recording transcript and the lawyer said they are not at liberty to provide me with that,
Expert:  F E Smith replied 4 months ago.

Thank you. It comes down to whether you did enter into this contract (albeit verbal) or not.

At the moment you need to acknowledge the claim and file a defence. Your defence is quite simply that there is no contract between you whereby you accumulated the debt in the sum of £6884.02 or any sum at all and the claimant is put to strict proof of the existence of any such contract. You can also say that in the alternative, the claim is brought as a debt claim and that even if the Claimant is entitled to any money (which is denied) they are not entitled to the full amount of the debt for the service they didn’t provide but at most, they would be entitled to damages. You are defending the whole of the claim.

The Claimant is then going to have to at some stage in the future ordered by the court, put together a detailed particulars of claim and you are going to have to put together a detailed defence.

Get the court papers submitted as soon as you can, don’t leave it till the last day because time is now getting short and we have a weekend. Send by recorded delivery.

The Claimant solicitor is just being difficult. Write to the solicitor and tell them that you have submitted a defence and they will get that from the court in due course. Tell them that you put them to strict proof of the existence of a contract between their client and you and that you require the recording and if they are not willing to let you have it, at your discretion, you will make a make an application to court for pre-action disclosure of the transcript recording and you will ask the court to award costs against their client.

What you can also do is simply make a Subject Access Request under section 7 of the Data Protection. You need to send the request to the Data Controller at the claimant along with a cheque for £10 and tell them exactly what you want from them which is basically the transcript and anything else they have which relates to their dealings with you. They have 40 days to reply.

If they don’t let you have that, then you could make the application to court for pre-action disclosure I mentioned in the earlier paragraph. There is no harm in telling the solicitors what you have done.

Depending on the content of the telephone conversations, you may end up picture relating and agreeing that you did, albeit mistakenly, enter into a contract.

I don’t know the substance of any dealings between you or whether the amount they are claiming is a genuine measure of their loss pursuant to your breach or whether they are just claiming the debt from you. They are not entitled to the full amount of the debt if they have not provided the service but they may be entitled to an amount of damages/compensation.

Can I clarify anything else for you?

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! All you need to do is press Submit. Thank you. If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Do you still want a telephone call? I am happy to ring

Customer: replied 4 months ago.
Thank you very much. No,I do not need a a telephone call after your last message. May you write the defence for me and how much extra would it cost me?
Also, I am going away to South Africa on 7 August, on a work contract. I am worried about things proceeding in my absence. What can I do to make sure that I am in the loop with any proceedings relating to this claim?
Customer: replied 4 months ago.
alternatively, are you able to review my defence before I send it out?
Expert:  F E Smith replied 4 months ago.

You need to give the reply a positive rating and then I can review the defence for you. At this stage, we are just looking to put on the form rather than a fully structured defence I assume.

There is normally an extra fee for that but as the document is not likely to be very long at this early stage, you can just pay an extra bonus after I have done it.

Put forward your own defence and I will suggest or change wording for you.

If you are going to South Africa, you have to make sure that someone is it your normal address to pick up all the paperwork to tell you what happens. This thread stays open and you can access that from anywhere you like.

You could potentially put the cat amongst the pigeons and give them your new forwarding address in South Africa telling them when you will be there and asking to forward all correspondence to you. I don’t know how good the Postal Service is in South Africa so that may not be such a good idea because all they have to do is prove they posted the letter and you are legally deemed to have had it.

F E Smith, Solicitor
Category: Bankruptcy Law
Satisfied Customers: 9801
Experience: 30 years in general practice.
F E Smith and other Bankruptcy Law Specialists are ready to help you
Customer: replied 4 months ago.
Please find below my defence for your review. I look forward to your response:My defence:
I did not enter into a contract with the plaintiff that would involve me accumulating the said amount of £6,884.02, or any sum at all for that matter. I request that the plaintiff be put to strict proof of the existence of any such contract. I am defending the whole of the claim.My defence is based on that:
• There were no services performed to justify the claim
• There was no disclosure in respect of the contract being binding immediately upon the phone call I had with the plaintiff on 15 May 2017.On that date, 15 May 2017, I spoke to the plaintiff to place a money transfer request to South Africa. This call took place after weeks of being called by the plaintiff to proceed with their money transfer services, following my online registration for their services on their website on 06 April 2017. The online registration on 06 April 2017 itself, took place after many calls by the plaintiff to submit the registration, following my routine telephone enquiry about their services on 01 March 2017. Not at any time or stage of this entire process, whether during the initial 01 March 2017 routine enquiry nor during and after the online registration on 06 April 2017, nor during and after the money transfer request on 15 May 2017 was I made aware of the terms of any contract or terms of contract with the plaintiff, particularly in relation to when the contract becomes binding. At all these stages, I did receive correspondence, but there was no reference to a contract or terms thereof, neither did it make any reference to the relevant area on their website, bearing in mind that their website is very large.During the call on 15 May 2017, at which the plaintiff claims I entered into a binding contract with them, which they claim I later breached, the agent emphasised that the payment of the money that I needed to transfer was due 3 days after that date, on 18 May 2017. I made the agent aware that I did not have the funds in the hand and that I was expecting to receive the money from the sale of my house, in order to finance the transfer. I believe it is reasonable to expect the agent to then have warned me about the consequence to me if, as it happened, the money did not come through for whatever reason.In the absence of transparent reference to a contract and terms thereof, by a regulated financial organisation, it is reasonable that I would have expected better clarity and that I would not have known that I was entering into a binding contract immediately during the call. Furthermore, I believe that it is their duty to have sufficiently informed me of such a contract with sufficient clarity as the opportunity presented itself at each stage of the process as identified.I was ensnared into an immediately binding contract by what appeared to be a reputable and regulated organisation, without any due diligence on their part to inform me effectively. To that end, there was no contract.
Expert:  F E Smith replied 4 months ago.

I think that’s very good.

I think you could say that you were being pestered on the telephone by the plaintiff to use their money transfer service following et cetera et cetera

I would emphasise that you only ever made any enquiry.

I would break this up so you’ve only got one sentence per paragraph and on each line and double space it purely because it makes it much easier to read.

In the paragraph starting, during the call on 15 May, what you are saying in content is correct but I would emphasise that you had made it quite clear that you were not in a position to proceed until that money was in your hand.

I don’t think the last bit about the agent warning you about the consequences of not completing need to be in there.

I don’t think the last two paragraphs are completely relevant you seem to imply you did enter a binding contract . I think that would be better if it says that you did not consent to enter a binding contract quite simply because you knew that you were not in the position to do so until you were sure that the money was going to be in your hands some days later. All you ever believed you were doing was making an enquiry

Customer: replied 4 months ago.
My defence:
I did not enter into a contract with the plaintiff that would involve me accumulating the said amount of £6,884.02, or any sum at all for that matter.
I request that the plaintiff be put to strict proof of the existence of any such contract.
I am defending the whole of the claim.My defence is based on that:
• There were no services performed to justify the claim
• There was no disclosure by the plaintiff that justifies their claim that the contract was binding immediately upon my phone enquiry of 15 May 2017On that date, 15 May 2017, I spoke to the plaintiff about placing a money transfer request to South Africa.
All that I believed I was doing, was making an enquiry.
The call on 15 May 2017, took place after weeks of being pestered with calls by the plaintiff to proceed with their money transfer services, following my online registration for their services on their website on 06 April 2017. I would receive calls virtually every other day.
The online registration on 06 April 2017 itself, again took place after being pestered by the plaintiff to submit the registration, following my routine telephone enquiry about their services on 01 March 2017. Again, I would receive a call every other day between these 2 dates.
Not at any time or stage of this entire process (whether during the initial 01 March 2017 routine enquiry nor during and after the online registration on 06 April 2017, nor during and after the money transfer request on 15 May 2017), was I made aware of the terms of any contract, particularly in relation to when the contract becomes binding.
At all these stages, I did receive correspondence, but there was no reference to a contract or terms thereof, neither did it make any reference to the relevant area on their website, bearing in mind that their website is very large.During the call on 15 May 2017, on which the plaintiff claims I entered into a binding contract with them and which they claim I later breached, I made it very clear that I did not have the funds in the hand to proceed with any money transfer, except for funds I was expecting to receive, of which there could be no absolute certainty.
I was absolutely clear that although I was expecting the money to come through to me, I did not have the money to hand.
I made them aware in order to be above board and to make them aware that there would be a chance that the funds may not be available to proceed.
At no time during that conversation, did the agent refer to a contract, which they would later seek to rely on.
Given the circumstances as laid out, I contend that there was no contract.
Customer: replied 4 months ago.
My defence:
I did not enter into a contract with the plaintiff that would involve me accumulating the said amount of £6,884.02, or any sum at all for that matter.I request that the plaintiff be put to strict proof of the existence of any such contract.I am defending the whole of the claim.My defence is based on that:
• There were no services performed to justify the claim
• There was no disclosure by the plaintiff that justifies their claim that the contract was binding immediately upon my phone enquiry of 15 May 2017On that date, 15 May 2017, I spoke to the plaintiff about placing a money transfer request to South Africa.
All that I believed I was doing, was making an enquiry.The call on 15 May 2017, took place after weeks of being pestered with calls by the plaintiff to proceed with their money transfer services, following my online registration for their services on their website on 06 April 2017. I would receive calls virtually every other day.The online registration on 06 April 2017 itself, again took place after being pestered by the plaintiff to submit the registration, following my routine telephone enquiry about their services on 01 March 2017. Again, I would receive a call every other day between these 2 dates.Not at any time or stage of this entire process (whether during the initial 01 March 2017 routine enquiry nor during and after the online registration on 06 April 2017, nor during and after the money transfer request on 15 May 2017), was I made aware of the terms of any contract, particularly in relation to when the contract becomes binding.At all these stages, I did receive correspondence, but there was no reference to a contract or terms thereof, neither did it make any reference to the relevant area on their website, bearing in mind that their website is very large.During the call on 15 May 2017, on which the plaintiff claims I entered into a binding contract with them and which they claim I later breached, I made it very clear that I did not have the funds in the hand to proceed with any money transfer, except for funds I was expecting to receive, of which there could be no absolute certainty.I was absolutely clear that although I was expecting the money to come through to me, I did not have the money to hand.I made them aware in order to be above board and to make them aware that there would be a chance that the funds may not be available to proceed.At no time during that conversation, did the agent refer to a contract, which they would later seek to rely on.Given the circumstances as laid out, I contend that there was no contract.
Customer: replied 4 months ago.
Hi Mr Smith,
I have revised my defence, taking into account your advice. Can I please ask you to review it one last time and advise before I send it out.
Thanks again for all your good help.
rgds,
Mandla
Customer: replied 4 months ago.
Ps..Please only look at the last defence sent, and ignore the 2nd last one.
Expert:  F E Smith replied 4 months ago.

I just moved it around a bit. It follows a more logical sequence.

I changed all the references to plaintiff to Claimant although if you were in Scotland, it should be Plaintiff.

It’s always a good idea to number each paragraph.

My defence:

I did not enter into a contract with the Claimant that would involve me accumulating the said amount of £6,884.02, or any sum at all

The Claimant is put to strict proof of the existence of any such contract. The Claimant has been asked to provide a transcript of the telephone call wherein it is alleged that I entered into a binding contract but they have refused to do so.

I am defending the whole of the claim.

My defence is that:

• There were no services performed to justify the claim
• There was no disclosure by the Claimant that justifies their claim that the contract was binding immediately upon my phone enquiry of 15 May 2017

All I was doing, was making an enquiry.

BACKGROUND

I made an enquiry about using the Claimant’s serviced around 1 March 2017.

After 1 March, I made an online registration on 06 April 2017 which took place only after being pestered by the Claimant (with a telephone call virtually every other day) to submit the registration.

After 6 April 2017, I would receive calls virtually every other day pressing me to then use the service.

On 15 May 2017, I enquired to the Claimant about placing a money transfer request to South Africa.

The enquiry on 15 May 2017, took place after weeks of being pestered with calls by the Claimant (after I registered) to use their money transfer services.

Not at any time or stage of this entire process (whether during the initial 01 March 2017 routine enquiry nor during and after the online registration on 06 April 2017, nor during and after the money transfer request on 15 May 2017), was I made aware of the terms of any contract, particularly in relation to when the contract becomes binding.

At all these stages, I did receive correspondence, but there was no reference to a contract or terms thereof, neither did it make any reference to the relevant area on their website, bearing in mind that their website is very large.

During the enquiry call on 15 May 2017, on which the Claimant claims I entered into a binding contract with them and which they claim I later breached, I made it very clear that I did not have the funds in the hand to proceed with any money transfer, except for funds I was expecting to receive, of which there could be no absolute certainty.

I was absolutely clear that although I was expecting the money to come through to me, I did not have the money to hand.

I made them aware in order to be above board and to make them aware that there would be a chance that the funds may not be available to enable me to proceed with using their service.

At no time during that conversation, did the agent refer to a contract or tell me that I was entering into any contract, or which they would later seek to rely on.

Given the circumstances as laid out, I contend that there was no contract between me and the Claimant

Customer: replied 3 months ago.
Hi Mr Smith,
I got a response from the courts regarding my court issue with HiFx. Please see attached documents and advise the way forward.