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

[ScabHunter]

I would suggest the answers here are the correct ones -

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/170673-bryan-carter-ccj-can-4.html#post1900657

 

See next post for the other parts of the AQ.

 

SH

[ScabHunter]

Below is a copy of a post from another thread, which basically gives you what you need to fill in your own AQ. The only difference is that your Particulars of Claim mentioned an agreement, a termination notice, and a notice af assignment, albeit indirectly. No default notice, though, strangely enough.

 

The need for a compliant default notice was mentioned in the defence which you submitted, which was an excellent defence, so there is nothing to worry about.

 

Any parts I have added for your case are in red.

 

 

Right, here is what I have managed to come up with.

 

Firstly, on the AQ form itself, section G, put the following -

 

Please find the following attached to this allocation questionnaire;

 

1) Section G - other information

2) Draft order for directions

 

This allocation questionnaire and its attachments were sent to the claimant on **/**/2008

 

The date will be the date on which you intend to send a copy of the AQ to Carter. Then, on a separate piece of paper, print this -

In the ************* County Court

Claim number **********

 

 

 

 

 

Between

 

************* - Claimant

and

 

 

xxxxxxxxxx - Defendant

 

 

 

 

Draft Order for Directions

The Claimant shall within 14 days of service of this order file and serve the following:

• Copies of the Credit Agreement referred to in the Particulars of Claim, and any documents referred to within it which complies with the Consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
  
• A copy of the Notice of Assignment necessary to prove the claimant's right to collect on the alleged account.
  
• A copy of the Notice of Termination referred to in the Particulars of Claim, and any Default Notice which preceded it
  
  
• Copies of all statements for the duration of the alleged agreement, used to establish a balance on the alleged account
   
  
  
• Copies of any other document to be relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

And, on another sheet of paper, print this -

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

N149 Allocation Questionnaire

 

 

Section G - other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

1. On xx/xx/xxxx I forwarded a request for information pursuant to the Civil Procedure Rules Part 31.14, for a copy of the agreement mentioned in the Particulars of Claim. Despite the fact that Civil Procedure Rules Part 31.15 insists that the claimant furnishes this document within seven days, my legitimate request was completely ignored.

 

2. On xx/xx/xxxx I forwarded a request for information pursuant to the Civil Procedure Rules Part 18, inculding details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers, and copies of statements for the entire duration of the alleged agreement.

 

NOTE : Paragraphs 1 and 2 will need replacing here, with a reference to the CPR letter which you did send out.

 

These documents are necessary to demonstrate whether or not the defendant has ever entered into the alleged agreement referred to in the Particulars of Claim, whether or not the claimant is a valid assignee of any alleged debt, and whether or not a compliant default notice was issued on the alleged account prior to termination.

These documents are also necessary to establish the balance on the said account, to establish the percentage of the balance caused by unfair terms under the Unfair Terms in Consumer Contracts Regulations 1999 and therefore not binding on the defendant, and to establish whether or not the defendant is indeed indebted to the claimant to any degree. My legitimate request for this necessary information was ignored.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further.

 

Attach these two pieces of paper to the claim form, after you have made the necessary copies. Send the AQ to the court properly signed and dated, and an unsigned copy to Carter, also with the attached letters. Carter's copy need only be sent through the normal second class post.

 

 

Of course you need to replace "Carter" with your own bunch of goons. Everything relating to the unfair charges can simply be kept in as is.

 

SH

[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

[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

[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