HSBC not suppling signed CCA

[flyerx]

Hi,

 

I have been searching for a suitable "embrassed defence" as no reply from DG.

 

I can only seem to find one for debt recovery agencies not for the original lender.

 

Can anyone point me in the right direction??

 

Thanks

Sam

[bazaar]

The embarrassed defence should work either way, who has brought the claim? Is it DG or the Original lender?

Your defence will state that the claimant has failed to provide any documentary proof of debt etc.

You can always draft one up, and post it here ( Minus all your privates of course)

Then people can help to fine tune it.

[flyerx]

Hi Bazaar,

 

I have pasted my doctored defence below

 

Could someone review and comment please.

 

Claim is from Original Lender HSBC, I have requested CCA by Consumer Credit Act 1974, SARS and Now CPR31.14 - Nothing supplied!

 

Many Thanks

Sam

 

In the Northampton (CCBC) County Court

Claim number - **

Between “HSBC Bank PLC CL Finance – Claimant” and “**”

 

Defence

1. I ** am the defendant in this action and make the following statement as my defence to the claim made by HSBC Bank PLC

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

3. I am embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure rules, in particular part 16 and practice direction 16, in particular paragraph 7.3 as the claimant has failed to supply a copy of the written document which forms the basis of this claim.

4. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

5. The claimant has failed to also attach a copy of the default notice which they claim has been served under s87 (1) Consumer credit act 1974

6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the Credit agreement and the Default notice. Therefore these Documents must be produced before the court and must comply with the relevant sections of the consumer credit act and the regulations made under the act, I will address these requirements later in this defence

7. Consequently due to the claimants failure to supply the documents required under the Civil Procedure rules and the fact that the claimant has failed to sufficiently particularized the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof

8. I will now look at the important issues relating to this case which must be brought to the courts attention

 

Pre-action protocols

9. The claimant HSBC Bank PLC has failed to follow the pre-action protocols insofar as they did not send any letter before as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.

 

The Request for Disclosure (CPR 31.14 Request)

10. Further to the case, on 1 April 2010 I requested the disclosure of information pursuant to the Civil Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

11. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person

12. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists

 

The Credit Agreement

13. The Agreement referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

14. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

15. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

1. Number of repayments

2. Amount of repayments

3. Frequency and timing of repayments

4. Dates of repayments

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

16. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

17. Notwithstanding point 16, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

18. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

19. The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

20. With regards to the Authority cited in point 21, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

21. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers

 

The Default Notice

22. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

23. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

24. Notwithstanding point 25, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

25. 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 a 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

 

 

Conclusion

31. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

32. I further ask the court consider striking out the claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly

33. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

34. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 12 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

35. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced under the Consumer Credit Act 1974 which is the relevant act in this case.

 

Statement of Truth

I ** believe the above statement to be true and factual

 

Signed .....................

Date **th April 2010

[zingy]

subbing...

[flyerx]

subbing?

 

Can anyone help? It needs to be posted today.

 

Many Thanks

Sam

[citizenB]

You should be able to file online. An embarrassed defence needs to be just that.. embarrassed. Until you receive the documents requested, you are unable to submit a fully particularised defence. You could amend the following to include a point that having asked for information, it hasnt been forthcoming. HTH

 

In the xxxxxxxx County Court

Claim number

 

 

 

Between

xxxxxxxxxxx- Claimant

 

and

 

 

xxxxxxxxxxxx- Defendant

 

 

 

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

5. On receipt of the claim form the defendant sent a request for a copy of the agreement which forms the basis of this claim. The information provided does not relate to the agreement stated in the particulars of claim.

 

6. Furthermore, the Claimant pleads that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

7. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

8. I respectfully request the court’s permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

[flyerx]

Hi Citizen B

 

Thanks for your reply, I have added in point 7 - Does this look to go?

 

Defence

 

1. I ** of ** am the defendant in this action and make the following statement as my defence to the claim made by HSBC Bank PLC

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

5. On receipt of the claim form the defendant sent a request for a copy of the agreement which forms the basis of this claim. The information provided does not relate to the agreement stated in the particulars of claim.

 

6. Furthermore, the Claimant pleads that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

7. The defendant has requested a copy of the Signed Consumer Credit Agreement under the Consumer Credit Act 1974 and a Subject Access Request which the claimant has refused to provide.

 

 

8. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

9. I respectfully request the court’s permission to submit an amended defence should the claimant file a fully particularised Particulars of Claim

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

[citizenB]

Perfect:D

 

If you made other requests via CPR then you could also add that in, just to complete the knife sticking lol

[Docman]

Hi flyerx,

I have had a look at your original draft defence. It does contain a lot of information and argument, most of which is not relevant at this stage. Also it is quite long, nearly 11,000 characters. To give you an idea of how long it should be, the maximum number of characters in a document that can be filed online is 8,000. You also need to remember that you will need to understand and explain what you have written to the judge. CitizenB’s draft is clearer and is shorter (about 2,800 characters) and I suggest you adopt it as your draft defence.

That said, I would like to make a few comments from my own experience of dealing with Dumb Goofers and HSBC.

Firstly, the documents (CCA & DN). These should be attached to the claim form in order to comply with CPR 16. However, there is an exemption in CPR 7 available to a claimant filing on line that the documents need not be served with the claim form. HSBC make the most of this and enjoy rubbishing your defence if you quote CPR16. I suggest you take out the words “and does not comply or even attempt to comply with CPR part 16” from paragraph 3.

Second, in paragraph 3 (a), the draft goes on about no particulars being offered. This is incorrect in that the details are in the POCs. What is not in the POCs is any attached documentation. I suggest you delete from paragraph 3(a) the sentence

“No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim”.

Third, for much the same reasons, I suggest changing “attached to the claim form” at the end of paragraphs 3 (b) & (c ) to “upon the Defendant.”

You now need to show that HSBC haven’t bothered with your requests but more assertively than in the current paragraph 5. Personally, I would not add you paragraph 7. It will allow HSBC to bring all the baggage associated with the 'Carey v HSBC' case heard in Manchester which dealt with S78 requests. HSBC will use any suggestion of asking for a copy agreement under S78 as a reason to produce a 'reconstructed (and UNSIGNED) agreement to convince the judge. Also, IMO references to SARS (under the Data Protection Act) will only serve to confuce the picture. Stick to the Court's rules. I suggest you amend paragraph 5 by inserting the words “by recorded delivery letter dated xx April 2010”. Then delete the last sentence and replace it with ‘No response has been received from the Claimant or their solicitors.’

The rest of CB’s defence is great and shouldn’t be altered.

Once you have filed your defence, don’t expect any great movement from DG’s or HSBC. They will be notified of the defence being filed and be given 28 days to respond. If they do not respond, the claim will be automatically stayed by the court. Eventually, they will respond (in my case it was after ten months) and ask that the stay be lifted and probably also ask for a summary judgment. The case will then be transferred to your local court.

[flyerx]

Hi,

 

Unfortuntely i sent in the defence prior to reading Docmans post.

 

I have today received a response as follows:-

 

They mention that as the claim was issued from County Court Bulk Centre no paperwork is provided.

 

With referance to (7) of you defence, it appears that your view that our client is not entitled to interest (persuant to S69 county court act 1984) may be misconceived, The purpose of the county courts (Interest on Judgement Debts) order 1991, specifically s2 (3) (a) upon which you rely, concerns interest claimed on a "Judgment debt" - being the debt owned post judgment. Should you wish to pursue this avenue of your claim, please confirm to us the legal basis, together with supporting caselaw.

 

For the avoidance of doubt, it remains out contention that our client is entitled to claim interest pursuant to s69 County Courts Act 1984.

 

Notwithstanding, we enclose a draft copy of the fully particulars of the claim which we intend to file at court by which, a further 14 days will be allowed for you to file an amended defence to the claim.

 

In order to save the unnecessary costs and judicial time, we request your agreement to file the particulars of claim by mutial consent - a draft order is enclosed for your consideraton, sign and return by xxxxxxxxxx

 

We believe that your liability for the indebtness is irrefutable and consequently, our client will be entitled to judgment by installments subject to suitable offer being received. We would also advise that further legal costs could be minimised if an agreement to repay this debt can be reached.

 

Should you decline our request to file the particulars of claim by consent, we will be left with no alternative but to make a formal application to court and in doing, so reserve the right to refer to our reasonable request when the question of cost arises.

 

-----------------

Consent Order

-----------------

 

Upon the claimant and the defendant having agreed to the terms set out hereto:

 

by consent

 

it is ordered that

 

1. The claimant is given permission to amend the particulars of claim

2. Within 14 days of receipt of this sealed order, the claimant is to file and serve its amended particulars of claim.

3. The defendant has permission to file and serve any amended Defence to the claim within 14 days of service.

4 The court will, upon receipt of an amended defence as per 3, issue allocation questionnaires.

 

Sign here, etc

 

--------------------------

PARTICULARS OF CLAIM

--------------------------

 

1. The claimants claimis in relation to the indebtedness of the defendant being a credit card in the sum of £********

 

2. The claimant is a banker carring on business at various branches

 

3. At all material times the deferndant was a customer of the claimant

 

4. By an agreement in writing ("the credit card agreement") dated on, or around, ## Month 1996 and made between the parties, the claimant provided the defendant with a credit card number ########### regulated by the cunsumer credit act 1974.

 

5. Attached hereto is a reconstituted copy of the credit card agreement in accordance with principle laid down in "Carey and others vs HSBC plc and others [2009] EWHC 3417(QB).

 

6. On ## Month 2009 the Claimant served upon the defendant a notice pursuant to section 87(1) of the Consumer Credit Act 1974 requiring the defentant to remedy the breach under the credit card agreement by making payment of the arrears of £#####. The defendant failed to make repayment of the sum due.

 

7. By a letter dated 17th March 2009 the claimant formally demanded repayment of the sum due to the defentant. The defendant failed and continues to fail to pay the sums demanded.

 

8. A letter before action was sent by the claimant solicitors, DG Solicitors, to the defendant on ## Month 2009

 

9. At the date hereof the sum outstanding is as follows:-

 

Balance informtion ############

 

The claimant claims

 

(a) the said sum of £#########

 

(b) Interest pursuant to Section 69 of the County Court Act 1984 at the rate of 8% per annum from the date hereof until judgment at a daily rate of £#.##

 

Statement of truth

 

END

 

-----------------

 

They then enclosed the particulars of the claim.

 

Reconstituted copy of the credit card agreement (not signed)

Original T&Cs

Current T&Cs

Notice of Variation

Statment of Account

 

Could anyone advise on my next action? Do i sign and send it back or not??

 

Many Thanks

Sam

[flyerx]

Can anyone give any advise on my last post??

 

Thanks

Sam

[The Mould]

Reconstituted credit agreement does not eliminate doubt, they will need to provide the original in order to prove the accuracy of the 'clone' agreement.

 

Do you think their conduct towards you has been reasonable and fair so far in this action?

 

Kind Regards

 

The Mould

[The Mould]

What about that default notice, can you post it up please?

 

Do you have your own records relating to this case, regarding the statements, if so, does the amount on the default notice match the amount of arrears stated on your account statements for the missed payments?

 

Don't worry about the Carey case.

 

Kind Regards

 

The Mould

[The Mould]

Well there are agreeing to allow you an amended defence also.

 

Come back on those points above, when you can.

 

Kind Regards

 

The Mould

[Docman]

I wouldn't sign. It's a nicely worded trap played by Dumb Goofers on litigants in person.

 

Once a claimant has served a statement of case, the only way they can amend it is by the written agreement of the other party or with the permission of the court (CPR 17.1).

 

By agreeing to the amended POCs, you are agreeing to the introduction of a 'reconstructed' agreement which then restricts your defence. How can you challenge the reconstucted CCA if you have just agreed to the new amended POcs. Same is true for the Default Notice.

 

However, you don't want to be seen as obstructive. That could go against you later. I suggest you write back to DG Solicitors and say that before you will agree to anything, you want to see a copy of the original agreement that the reconstituted agreement is based upon. Also ask them for a copy of the DN. You have made a reasonable request and when they go to court, you can say so.

[citizenB]

I agree with Docman.

 

As he predicted, they have come back with the Carey argument. Which has been taken out of context. What the judge said was .. that they could provide the reconstruction for the s78 request. Not that a reconstruction would be acceptable for litigation.

[citizenB]

 

judgment-carey-v-hsbc.pdf

 

Be sure to note points: 95 - 105, 112, 116 and the concusions

 

 

The above provided on another thread by vint1954. Posts 23 - 25 in the link below.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/260167-another-nasty-bank-little-3.html

 

HTH