Marlin claimform - HSBC OD debt ****SETTLED VIA MEDIATION****

[Craftygirl42]

Right today I have received some statements from Mortimer Clarke re this account, but it was already overdrawn on the first statement, so more charges and they are saying that to supply 21 years of statements is just us trying to frustrate the court process. Surely they have to supply the 6 years that we would be able to back claim if the court ruling decides. They have also sent us a statement of payments made since Marlin took it over, but no explanation of when they have applied charges to the account, as the amount claimed is more than it should be looking at the statements.

 

They have provided a notice of assignment for one of us (its a joint account) and say that we should withdraw our defence.

 

Statements are needed going back and they say they dont have to send a default notice as its an overdraft. Also I read somewhere that we should have had a letter laying out the terms of the authorised overdraft.

 

CAn someone help me please on what to do next

[Craftygirl42]

Decided to type up the letter they sent.

 

Enclosed

Statement of account (Goes back less than a year from when account closed and balance bfwd is O/D)

Statement of account after termination (only credits, but there must have been some debits as amount claimed doesnt tally to amounts paid)

Notice of Assignment (addressed to just one of us)

 

As to paragraph 8-11 of your defence, the current account is not a regulated agreement because it provides no credit. The overdraft agreement provides the credit and this sits seperately from the current aco**** agreement. The consequence of this is that Section 10(1) does not apply as this account does not relate to a running-account credit agreement. In addiction, Section 87(1) of the Consumer Credit Act 1974 (the Act) does not apply to current account sand a therefore Default Notice is not required.

 

Furthermore, as confirmed by the Statement of Payments, you are continuing to make payments towards the outstanding balance. Our client believes that they payments you made towards the account are a clare admission of your liability and a contradition to your Defence. Monthly statements were issued to the address you supplied to HSBC confirming the balance due at the time. You did not, at any point, dispute the balance due until the County Court proceedings were persued. Our client is therefore of the opinion that the request for documentation which over 21 years old is merely an attempt to frustrate the court proceedings. These facts will be disclosed to the Court if the matter proceeds to a small claims hearing.

 

Based on the above information we believe that you are fully aware of this outstanding debt and as such we invite you to withdraw your defence as its misconeived.

 

Failure to withdraw your defence may result in an application being made at the court to strike out the defence on the above grounds which in turn may increase your liability.

 

I realise that there are more charges and just doing a quick jot up of the charges on the statements they have supplied, without adding any interest, they equal almost half the amount on the POC. So pleas help on where to go now. Should I ask Mortimer direct to supply more statements up to the 6 years in order to offset some of the charges, or wait to see what the court does/says

 

Many thanks

[Craftygirl42]

Just rang the court and they said Mortimer have asked for a stay. Its gone up to the District Judge and they will let me know their decision.

 

What does this mean, I understand a stay means a temporary hold, but if they think they have a case, why ask for one at this stage

[ScabHunter]

I have been asked to look in on this thread and offer an opinion.

 

Sadly, overdrafts are an issue I have barely studied, which makes assessing this letter very difficult.

 

The first thing I notice about this letter is the ridiculous number of spelling and grammar errors, suggesting it was written by someone other than a qualified legal expert who would know what they were saying. It appears more like it was written by the teaboy.

 

"current account sand" - What is current account sand? I don't remember seeing any of that last time I went down to Eastbourne, but then Eastbourne isn't very sandy anyway.

 

"Our client believes that they payments" They payments? How do you pay for a "they", eh?

 

"are a clare admission of your liability" Who on Earth is Clare Admission? One of your silly threat monkeys who spends all of her days painting her nails and staring out of the window, and all of her nights lying on her back trying to be capable of thinking of England?

 

"contradition to your Defence" - What is a contradition? Is it the opposite of an expedition, i.e. a journey organized for a particular purpose? That would make it a journey disorganized for no particular purpose. Well, if the cap fits.....

 

"we invite you to withdraw your defence as its misconeived." - What is misconeived? It sounds rather like Miss Con Heaved, which would seem a pretty fair description of one of your female threat monkeys after her body has taken on too much alcopop, and decided to give it back to the environment again.

 

Anyway, I digress.

 

They are claiming that an overdraft is not covered by Section 10(1). I am assuming this is false as it was specifically included in your defence on the advice of 42man.

 

The issue of whether an overdraft requires a default notice under section 87(1) is critical here. Clearly, one was not issued, and the Particulars of Claim alone make it clear that the account has been terminated. Expert opinion is needed on this issue, and I am not qualified to give it.

 

There must surely be some procedure laid down with which a bank needs to comply in asking for the full repayment of overdraft monies which have been used by an account holder in line with the agreed overdraft, and/or monies which have been drawn in excess of the agreed overdraft.

 

What is certain is that requests for documentation are not attempts to frustrate anything, but are necessary to establish any balance on the alleged account, and to determine the percentage of this balance made up of unlawful charges.

 

The last two short paragraphs just read like a DCA threat letter - "MAY result in an application being made...". If they think they can get the defence struck out, why don't they just get it done?

 

This now needs expert input from somebody who understands the workings of overdrafts, specifically in terms of how they should be defaulted and then terminated, and also whether they are covered by Section 10(1). If no expert opinion is forthcoming, start a specific thread with these questions in the subject line.

 

SH

[Craftygirl42]

OOooppps I typed the letter, must be my typing all the errors.

 

Thanks for the suggestions SH, will wait and see what the court says re the stay when it comes through.

 

I did note all the references to 'may' that they used and it did make me think.

 

If anyone can offer any help re the documents that should be supplied re an overdraft and a CCJ, it would be much appreciated

[111253]

Hey Crafty Girl, If they were so confident they would have gone ahead straight away. Don't be intimidated by them, and you can find the answers on CAG for Marlin, they are all in here. The fact you are still paying means nothing.

 

Best of luck

[Craftygirl42]

Hey Crafty Girl, If they were so confident they would have gone ahead straight away. Don't be intimidated by them, and you can find the answers on CAG for Marlin, they are all in here. The fact you are still paying means nothing.

 

Best of luck

 

 

Thank you. I just wish the info on being taken to Court for an O/D was more readily available. If anyone can help with any threads I can read up on, I would be grateful.

 

If it was any other type of debt, I would feel more confident fighting it.

[42man]

http://www.consumeractiongroup.co.uk/forum/general/94575-cca-overdrafts-final-word-2.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/145092-bank-account-cca.html

[Craftygirl42]

Thank you 42man, I will have a better look at those threads when no family buzzing about asking questions.

[ScabHunter]

So, to quote from Having A Knightmare's post -

 

" (b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any,

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

- of the procedure for terminating the agreement;

and this information shall be confirmed in writing."

This suggests that the standard default rules don't apply in this case, in which case we had better start working on some new defences. Otherwise, we are just playing into the enemy's hands.

 

There is still the need for the termination procedure to be confirmed in writing, though. We need to be requesting a copy of this agreement.

 

SH

[Craftygirl42]

Thank you Sh, would you be able to help me with that

[Craftygirl42]

Right, received a letter from the court today basically stating the Claimant has to file an AO by (date removed) or their claim will be struck out.

 

Does that mean that their request for a stay has been turned down.

[shifty50dog]

Hi i sent in two cca requests to marlin myself.And also through the c.a.b they wrote back after a long time saying they could not find the agreements they also said without them they would not take legal action and closed the accounts.I would advise getting the c.a.b involved once they see an organisation like them involved they take notice give it a try.

 

best of luck,

[Craftygirl42]

Deleted as was having a problem posting - so duplicate

Edited February 18, 2009 by Craftygirl42

[Craftygirl42]

I have received a copy AQ from the solicitors and just waiting to see what court says.

 

I was wondering if I should write to the sols asking for more statements and a copy of the termination notice.

 

Also today I have recieved some LBA's for other accounts that CCA's were requested a year ago and I sent them an Account is Dispute letters some time ago as they sent more threatograms. What should I do about these. We did get a letter stating they didnt have the CCA's and quoted Rankine. Also two of these are credit cards, so there would be some charges to claim.

 

Any advice on what I should do about these

 

Thanks

Edited February 18, 2009 by Craftygirl42

[Craftygirl42]

sorry another duplicate post

Edited February 18, 2009 by Craftygirl42

[42man]

They may not supply statements and termination notice, get the judge to order them to comply....although i'm not sure if service of a termination notice is enough of a defence....(or to get a judge to throw it out)

 

If you have received LBA's then send this back by recorded (you'll need to edit it though)

 

Dear Sirs,

 

I write in response to your letter dated XXXXX

 

Your letter is incorrect and frivolous, you are fully aware of legally valid reasons why no payment has been made on this account, namely that the agreement which underpins this account has not been supplied despite a perfectly valid request and furthermore, it is suggested that notwithstanding the failure to supply a copy, the agreement itself is improperly executed, devoid of all prescribed terms and deficient in respect of detail relating to APR, total charge for credit and statements of rights ,remedies and protections as required by schedules 1,2 and 6 Consumer Credit Agreements Regulations 1983

 

Therefore the agreement as outlined in section 65 (1) Consumer Credit Act must be laid before the court to be granted an enforcement order before any further action can be taken

 

It is my view that the court would not grant such an order due to the deficiencies that i have outlined within the agreement, further more this has already been raised with (orignal creditor/previous DCA) yet I note they have still assigned the account over to yourselves and the absence of any documents disproving my points itself speaks volumes

 

Therefore, I would indeed welcome the opportunity to place this before the court. furthermore should you proceed with the threats to issue a statutory demand or a court claim I will make an immediate application to have it set aside for the grounds outlined above, also I shall refer the judge to this letter when the matter of costs falls due

 

I trust this outlines my position clearly enough for you

 

 

If they are quoting Rankine then you might like to incorporate this too...

 

Account Ref: xxxxxxxx

Dear Sirs

 

I refer to my letter dated XX/XX/XX in which I requested pursuant to s.77/78 of the Consumer Credit Act 1974, for you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

You have replied quoting the Rankine Vs HBOS & Others, claiming that you do not need to provide the requested information, This has surprised me, as no precedent was sent in this case, May i remind you of the following cases:

 

WILSON Vs FCT (2003) UKHL "the court considered that under the CCA, it was bound to uphold Mrs Wilson's arguments and declare the agreement to be unenforceable"

 

Dimond v Lovell [2000] 2 WLR 1121 where a credit hire company's loan agreements failed to stipulate the prescribed terms and were therefore, as Lord Hoffman put it, "irredeemably unenforceable"

 

I am sure that I do not need to remind you of your legal obligations under the Consumer Credit Act 1974, and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

May I also take the opportunity to remind your company of the Solicitors' Code of Conduct. In particular Rule 11.01 Deceiving or Misleading the Court.

 

11.01 Deceiving or misleading the court

• (1) You must never deceive or knowingly or recklessly mislead the court.

 

 

 

(2) You must draw to the court's attention:

o (a) relevant cases and statutory provisions;

o (b) the contents of any document that has been filed in the proceedings where failure to draw it to the court's attention might result in the court being misled; and

o © any procedural irregularity.

(3) You must not construct facts supporting your client's case or draft any documents relating to any proceedings containing:

o (a) any contention which you do not consider to be properly arguable; or ..............."

If you are unsure of your legal obligations, please seek advice from a qualified solicitor or your local CAB office.

 

Yours faithfully

[Craftygirl42]

Thanks 42man. I will add that I have been paying all these accounts even recently, via a DMP and have continued to do so even though they havent proved their rights.

 

Anyway, I will dash of the letters tomorrow and get in the post.

 

As to the judge ordering them to provide the statements, I have already sent the court an order of directions, with my N149, so can I request the court to make an adjustment as I didnt mention the termination notice.

 

Thanks

[Craftygirl42]

Going back to the overdraft, how do I change my directions or my defence to include the 'proper' missing items, ie the termination, the terms and conditions that I should have recieved after the overdraft was started and also the rest of the statements up to 6 years.

 

Should I just write to Mortimer and ask for them or should I do something via the court.

 

Thanks

[Craftygirl42]

received a Form of Judgement or order from the court and after reading around here, I never asked for a couple of things on my draft of directions, that perhaps I should have.

 

Will I get another chance to ask for these during the court procedure, or should I just go direct to the claimant and ask.

[ScabHunter]

So much here hinges on the issue of exactly when an overdraft creditor becomes entitled to terminate the agreement, and how that needs to be carried out to be valid.

 

In the absence of any reply on this thread, I will start a thread in the Legal Issues section to see if I can get answers on this crucial point.

 

There will be other cases following this one where people will need this crucial information.

 

SH

[Craftygirl42]

Right - Have received a reply to my defence. Still none of the documents the court ordered them to supply have been supplied.

 

Just a few points

 

They are saying that An overdraft agreement would constitute provision of credit but in this instance there was no agreement by HSBC to provide an overdraft and therefore there was no agreement to provide credit. The determination only relates to debtor - creditor agreements enabling the debtor to overdraw on a current account, so if there was no overdraft agreement the requirement for an executed agreement under the Act doesnt apply. This was an agreed overdraft, so surely they should have provided us with a copy of the terms and conditions.

They also say there is no need for a default notice as its not regulated by the act and there is no requirement for a default or termination notice to be issued.

 

They then go on to say that we are aware of the debt and deliberately fraustrating court proceedures.

 

What do I do now, do I wait to see what the Court says must be done or what.

 

Please Help

[Craftygirl42]

Bump

 

Can anyone help please

[fedupwithdebt2009]

Hi craftygirl just wanted to say hope you get this sorted....am dealing with these muppets myself...Marlin are a nightmare!!! Good luck and keep strong

[Craftygirl42]

Thank you Fedup, just wish I knew what to do next