I finally got a response.They want a fully particularised schedule of costs incurred and only if the figure is in the vicinity (which it isn't) of what they are claiming, will they consider writing off the debt.They agree that they debt is unenforceable and attached OFT guide lines stating that information will be passed onto credit refence agencies (which they have already done from the start).There is also the Notice of Discontinuance which has been sent to the court which I need to sign that states they are discontinuing all of the claim. No mention of costs incurred or each person should pay their own costs.I think I am out of ideas here. Any thoughts?

There has been no reply as yet. Hopefully I will hear back soon. Bryan

I have written a letter to DG as RWM had suggested asking them to write off the debt. Let's see what happens.

The Consent to Discontinuance letter where my signature is needed along with theirs also contains the the part about "each party shall bear their own costs". Should I draw up my own discontinuance letter and omit the part about "each party shall bear their own costs" or simply sign and strike off the part that I do not agree with?

Hi all, Received a letter from DG requesting me to sign a Consent of Discontinuance which they will then send off to the court. The Discontinuance letter to the court also says that each party shall bear their own costs of this action. Attached with the Discontinuance letter is another letter marked "WITHOUT PREJUDICE" The letter states that they are not going to continue with legal action based on a commercial decision and with no admission as to liability. It goes on to say the sums remain due and owing to their client (HSBC) and they now require my repayment proposals. In the absence of which, we may take our client's instructions who may instruct that the matter be passed to external agents for recovery. If I sign the discontinuance, does that mean I will have more debt collectors calling me for repayment of this debt? Can this be avoided?

Can someone take a look at my defence?

Hi Guys,Is there anyone else that can offer some advice on my defence?

Thank you Pedross for your input. I will be sure to include the Default Notice in my defence.

If I refute point 5, is that enough to submit a defence?HSBC must have done this many times to know a way of getting past not having the original agreement.

I have received the claim from DG.POC details are attached.It seems like HSBC are more content on going down the "Carey" route than to defend an actual agreement in court which I have with me.The attachements for the POC that came with the Clam from Northampton included a1. Reconstructed copy of an application form2. Original Terms and Conditions3. Notice of Variation4. Current terms and conditions5. Statement of account. (List of credit card statements.)I have to sumbit a defence by 14th August 2011.I have put up most of my defence in my previous posts a bit prematurely thinking that it needed to be submitted at that stage. I never submitted that defence.Can someone help me polish up my defence?

Hi,I did not consent previously when DG asked to have the stay lifted, I simply did not respond.Yesterday I received a GENERAL DIRECTION ORDER from Northampton CCBC dated 6 July 2011."The Court will deal with the application to lift the stay without hearing under CPR 23.8©."It is ordered that:1. The Application to lift the stay is granted2. Permission is given for the Claimant to file and serve a fully particularised POC by 1st August3. The defendant is to file and serve a fully particularised defence within 14 days of service of the POC. Is there anything else I need to do here?

Thank you for your assisstance. It's really highly appreciated.I will do nothing and see what happens.

The offer was for 50% of the amout owed as a Full and Final settlement and nothing else.

Any thoughts on this as I have to reply to them by 12th May?

Hi,I have finally received DG Solicitors response. I am a little confused on how to respond, so I have attached their response.It seems like they are asking for consent to have the stay lifted and to allow them to file a fully particularised POC.They mention that if I don't give them consent, I will incur additional costs which they be asking me to pay.They have also rejected my offer to pay 50% of the debt in one lump sum. I did full out an Income and Expenditure based on my income alone. They are now asking for a HOUSEHOLD income, before any settlement can be reached, which I am not willing to provided as the Credit Card was on my name only.Any thoughts on how I can proceed, do I agree with the consent? 20110503090955174.pdf

Hi Shadow, Thank you for your reply. It's not that I am not confident in my defence, as I do strongly believe that I do have a defence but there is always that element of risk, not to mention the amount of stress something like this brings about. I would also like to do everything genuinely possible to resolve this without going to court and if it does go to court, I will be able to show that I have tried to resolve the situation without inloving the court.

Hi, After reading hours and hours of threads, it's very clear that going to court is somewhat of a lottery mostly depending on the judge on the day. I'm not sure if I want to risk losing in court. I have made previous offers to settle this account and we had settled on 53% of the amount they are claiming but it fell through as they were not prepared to mark my file as fully satisfied. As I see it, making the offer can only help the case. If accepted, the case will go away. If it's not accepted, it will go to court and the offer can be shown as me trying to settle then debt rather than trying to get out of the debt completely without paying a penny. Any thought on how to word the letter and should it say "Without Prejudice"?

I submitted my defence detailing the Claimant did not submit a fully particularised POC and did not respond to my CPR31.14 and CPR 18 request. Received a letter from the court to say they have received my defence, a copy of which has been sent to the Claimant. The next step. I'm not sure if I should submit a N244 request? I have submitted one before and as they have sent me some time ago a so called credit agreement, I'm not sure if another N244 application will work in my favour. Should I sit tight and wait for Allocated Questionaire or should I submit another N244 application?

Thank you Diddy for your insight. I will stick to them not providing a fully particularised POC with regards to my 31.14 request. Should the title then change from Defence to something else?

They did not send the documents when I made CCA, SAR and N244 application. The agreement came after that but I they don't mention it in any of their correspondence, so I am not sure it they know I have it. They have not sent it with the POC or CPR 31.14 request, which they would have done, had they had it. As I have dealt with HSBC, MCS and DG Solicitors, I think think the documents may be lost between them. Apologies if I looked misleading.

Can I request a strikeout based on them not having the documents rather than me asking for them to be disclosed?

Please can you have a look at my first draft of a defence. I tried to keep it short but it's pretty hard when you are trying to get in all the facts. Please advice if I have too much, too little info or if some parts need to be removed. In the Northampton County Court. Claim number xxxxxxx Between: HSBC Bank Plc - Claimant and xxxxxx - Defendant Defence 1. I am at a considerable disadvantage in preparing this defence in that the Claimant has failed to disclose any documents that are mentioned in it's statement of case or will otherwise be relying on in court. 2. On 30th December 2010, I made a request to the Claimant for disclosure of documents mentioned in it's statement of case pursuant to CPR31.14. To date, the Claimant has failed to respond. I have made many previous attempts to the Claimant to disclose these documents. My 1st attempt was a CCA request in December 2008, I was sent a blank CCA with no signature and none of my details. My 2nd attempt was on xx March 2009 when I made a Subject Access Request with the appropriate fee to disclose all information regarding this account. Once again, I was not sent the original agreement. My 3rd attempt was a CPR 31.16 application on xxth October 2009 to the Haywards Heath County Court using form N244 for disclosure (exhibit ABC1). I was sent a letter by HSBC stating “the bank is not able to disclose which it cannot currently locate” and “we ask that you to withdraw your application” to the court (Exhibit ABC2). A further letter confirming HSBC cannot find the document was sent on xxth November 2009 (Exhibit ABC3). 3. I call DG Solicitors on xxth January 2011 at xx:xxam ( 2 weeks after sending my CPR 31.14 request for disclosure) and spoke to Mr xxxxx. He checked his computers and confirmed he does have my CPR requests on file but his colleague who is dealing with this case is not in the office. He agreed to a 2 week extension to the case for me to file my defence. Mr xxxx agreed to send me a letter confirming the extension. To date I have not received the letter. I sent a letter to Northampton Court on xx January 2011, notifying them of the extension as per my conversation with DG Solicitors. 4. As a result, I would respectfully request that the court consider using it's powers to either strike out the claim or stay it until such time as the Claimant responds to my CPR 31.14 request. It would unfairly prejudice me if the Claimant will not disclose the documents that it seeks to rely on. 5. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and HSBC, secondly that such an agreement complied with the requirements of Consumer Credit Act 1974 (“the Act”) and all consequential regulations made thereunder, both at the date of inception and at all times thereafter. Thirdly it must establish that HSBC complied with all of the provisions of the Act in that it must show that it served a proper default notice upon myself prior to terminating the agreement. Fourthly, it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925). Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times. 6. It is submitted that it is the obligation of the Claimant to prove all of the above matters. Existence of a Written Agreement 7. My wife and myself opened a joint account with HSBC in early 2002. I was then called by HSBC and asked if I wanted a credit card. I clearly remember not making the request for a Credit Card at the time as I was unemployed for the entire year of 2002 and being approved for a credit card was unthinkable. As this was my first ever Credit Card, I was very impressed with the level of technology with which HSBC had operated with at the time. I walked in, I did not fill out an application form, as my details were already on the computer. I was also not given any documents to take away as it was printed from the computer, signed and I assume filed by the clerk. I cannot remember if there was an interest rate mentioned, payment terms or even the amount of credit I was given. It is my position that the agreement is not enforceable by the claimant as it has failed to comply with its obligations under Section 61 of the Consumer Credit Act 1974 by failing to include within the document that I signed all the prescribed terms. 8. I currently have 2 other credit cards from the Bank of Scotland(BoS) and Barclays. After opening both these accounts and filling out forms clearly showing all information with prescribed terms and conditions, I became aware that this was not done with HSBC. I have never requested a CCA agreement from either BoS or Barclays and I never will as I know these accounts were opened correctly. I have also never defaulted on a payment with either BoS or Barclays. It is not accepted that a valid agreement containing all of the prescribed terms required by the Act exists between myself and HSBC. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest. 9. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable. 10. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell[2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced. 11. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299). Valid Default Notice 12. The Default notice supplied by the Claimant is dated Friday xx May 2009, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday xx May 2009, namely Wednesday x June 2009, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been xxth August 2009. (See exhibit ABC4) 13. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119. 14. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). 15. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states: Section 87. Need for Default Notice (1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement - (a) to terminate the Agreement, or (b) to demand earlier payment of any sum, or © to recover possession of any goods or land, or (d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or (e) to enforce any security. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below: Section 88. Contents and effect of Default Notice (1) The Default Notice must be in the prescribed form… 16. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue. 17. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence. 18. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully. 19. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate. 20. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87. 21. An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was closed on xx/xx/2009 (Exhibit ABC5),a month before the Default Notice was sent out. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future. 22. The invalidity of the default notice means that the Claimant has no right of action in this case. On this basis, I respectfully ask the Court to strike out the Claimant's statement of case. Sums Claimed 21. As the account was closed on 09/04/2009 (Exhibit ABC5) and a default notice served on xx May 2009 (Exhibit ABC4) for the sum of £4xxx.xx. The final sum claimed by the Claimant is £5xxx.xx (excluding solicitor costs and Court fees). How is it possible for the claimant to keep adding charges to the account after closing the account. It is my opinion that the claimant did not want this case to be passed through small claims track. The claimant unlawfully added charges to the account to enable it to go through fast track. 22. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all. Statement of Truth I, xxxxx, Defendant believe that the facts stated in this Defence are true Signed ......................... ...........

I sent of a request for an extension on Friday to Northampton without any supporting docs from DG. I did mention everything we discussed regarding the extension over the phone with DG. I will call later this afternoon to check if I have the extension.

According to Pt's thread, I should not file a defence if they do not respond to the CPR 31.14 request for disclosure of documents set out in the POCs as I cannot file a defence if I do not have the documents. I previously filed a CPR31.16 request with an N244 application to the courts. HSBC responed by telling me to withdraw my N244 applicationan as they could not find the documents. There's also the case of the faulty DN that was sent out not giving the prescribed time to respond (14 days). I'm at a loss at the momnent. Should I file a second N244 application for disclosure if DG agree to the extension? If they do not inform the court of the extension, I need to do something before 18/01 to avoid summary judgement against me. Any ideas?

I called the court yesterday to advise that DG have agreed to a 2 week extension. I was told there is nothing I can do as DG have to notify them of the extension. If DG do not notify them, I will have to file before 19/01/2011. DG have agreed to send me a letter to confirm the extension. If I do not receive the letter by 17/01, I will have to submit a defence on 18/01. I will also call the court on 17/01 to confirm if they have received the extension notice from DG.