Hi Andy,
First attempt at Defence. I need to check some dates when I get home this evening, any feedback in the meantime please?
The particulars of claim read as follows:
1.The claimant claims the sum of 3,816.00 being monies due from the Defendant to the Claimant under a regulated agreement original between the Defendant and HSBC Bank Plc.
2. The Defendants account number was ################ and was assigned to the Claimant on 08/12/2011, notice of this has been provided to the Defendant.
3. The Defendant failed to make payments in accordance with the terms of the agreement and a default notice has been server pursuant to the Consumer Credit Act 1974.
And the claimant claims
1. The sum of 3,816.00 and costs.
2. The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction
Defence
1. It is denied that the Defendant entered in to any such regulated agreement with HSBC Bank Plc.
2. I can neither confirm nor deny the Claimant’s assertion the debt was assigned to the Claimant as I have no evidence of this.
3. The Claimant has provided what is claimed to be a reconstituted agreement. If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms. Also, The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. I put the Claimant to strict proof that a true copy of the original agreement cited exists.
4. The Claimant has not provided the Defendant with a copy of the original agreement along with the terms. The agreement provided is a Midland Bank Plc agreement. The terms provided are HSBC Bank Plc terms. Therefore the defendant notes it is impossible that the terms provided are the original terms of any such agreement.
The Request for Disclosure
1.On xx xxxxxx 2013 I made a request under s78 of the Consumer Credit Act 1974 for a true copy of a properly executed agreement. The Claimant failed to provide said documents and the alleged account entered in to default on the xth xxxxx 2009.
2. In response to the Claimants claim issued through the Northampton County Court, on the 10th April 2014 I lodged a CPR 31.14 request for copies of the Assignment Notice & Default Notice cited in the Particulars of Claim along with the Executed Agreement and which should have attached to or served with the POC.
3. To date the Claimant has failed to provide a copy of the alleged agreement referred to in the Particulars of Claim.
4. The court’s attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules, I have not yet had the opportunity to asses if the documentation which the Claimant claims to be relying upon to bring this action.
The Alleged Agreement
1. On 20th January 2014, I received a photocopy of an alleged reconstituted agreement which I believe the Claimant purports to be a valid and properly constituted agreement under the Consumer Credit Act 1974.
2. The alleged reconstituted agreement does not meet the strict requirements of Carey v HSBC. The reconstituted agreement makes reference to both Midland Bank Plc and HSBC Bank Plc.
3. On xx Jan 2009 I received a photocopy of a reconstituted agreement from HSBC Bank Plc. This alleged agreement differs from that provided by the Claimant referenced in point 1, above.
