Marlin/Phoenix CCJ on HSBC OD debt now want SD - Charging Order objection - ***WON***

[42man]

I agree with you Molly, if they have terminated the agreement then any new default notice would be complete fiction as you no longer have any agreement !!! Do have a read of this too - http://www.hammonds.com/FileServer.aspx?oID=23087

[molly13]

Hi,

 

Thank you all.

 

These are the documents sent to me DN etc:

hsbc001.pdf

 

(hope I've done this right)

Thanks again

 

Molly:-)

[molly13]

I might also add that recently, in the last few months, they have phoned me at home and at work several times a day. At work, colleagues and I answer just say I don't work there, and at home I refuse security questions.

 

Molly

[Bazooka Boo]

For the telephone harassment, keep a diary of events with a view to reporting them to the Police for the criminal offence of harassment and note the other areas they are in breach of also.

1 Prohibition of harassment. E+W

 

(1)A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other.

(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3)Subsection (1) does not apply to a course of conduct if the person who pursued it shows—

(a)that it was pursued for the purpose of preventing or detecting crime,

(b)that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

©that in the particular circumstances the pursuit of the course of conduct was reasonable.

http://www.legislation.gov.uk/ukpga/1997/40/section/1

 

127Improper use of public electronic communications network E+W+S+N.I.

 

(1)A person is guilty of an offence if he—

(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)causes any such message or matter to be so sent.

(2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a)sends by means of a public electronic communications network, a message that he knows to be false,

(b)causes such a message to be sent; or

©persistently makes use of a public electronic communications network.

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

http://www.legislation.gov.uk/ukpga/2003/21/section/127

 

40 Punishment for unlawful harassment of debtors

 

(1)A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—

(a)harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

(b)falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

©falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

(d)utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

(2)A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

(3)Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose—

(a)of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or

(b)of the enforcement of any liability by legal process.

(4)A person guilty of an offence under this section shall be liable on summary conviction to a fine of not more than £100, and on a second or subsequent conviction to a fine of not more than £400.

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1970/cukpga_19700031_en_5#pt5-l1g26

 

Although this is a little long winded, it will tell you exactly what the DN should look like and state for it to be enforceable;

http://www.johnpughschambers.co.uk/Consumer%20Credit%20%28Enforcement,%20Default%20and%20Termination%20Notices%29%20Regulations%201983.pdf

 

I'm going to go back and have a look at what you posted up.

[Bazooka Boo]

So let me get this right, on the 19th they sent you that DN giving you till the 28th of the same month in which to rectify the account? Then 5 days later they issued you with a final DEMAND!!!!! giving you 14 days from the date of that letter to rectify the account?

 

Notwithstanding the amounts are different which adds to the confusion as does stating three other figures on the initial DN.

Can you confirm that the DN is dated the 14th and they want you to rectify by the 28th of the same month?

 

They then issued you with another DN followed by a formal DEMAND with the dates adjusted to comply with consumer law?

 

You told them after their first faulty DN that you accepted their unlawful rescission?

It looks like they know full well what mistakes they have made and are attempting to back peddle sharpish, however, they've already repudiated the contract so no amount of issuing subsequent documents is going to save them, least of all they can't make up their tiny minds what the actual arrears are meant to be!

 

I would welcome the opportunity of going to court with these incumbent fools, with amount of ineptitude I am amazed we didn't have to bail them out as well!

[molly13]

Hi bb

 

Thanks for the info re phonecalls. I am keeping notes of dates and times.

 

In regards to the first DN.. It was dated 14 xxx 08 giving me until 28 xx 08, and FD dated 19 following month 08.

 

I accepted their unlawful termination earlier this year, they then sent the letter stating that they lawfully repudiated.

2 months later I get a new DN and FD.

The account is not showing in default with Experian, but I can't wait to see what date they put, if they eventually register it.

As to the amounts being different, they are still adding interest, so maybe that's why:roll: I am actually very surprised that they have not passed this on to some DCA or other by now.

I'm just waiting to see what they do next, but wanted to make sure that I was right.

 

Regards

Molly:-)

[Bazooka Boo]

Well in that case if you have written to them accepting their unlawful repudiation AFAIK that is game over, you win. You are only liable for the arrears stated on that faulty DN.

 

The fact that they have re-issued what they believe to be an enforceable DN with their inept explanations will look extremely good when you place that in front of a DJ if they are foolish enough to try any legal action.

 

You have done all you need to, you have accepted their unlawful rescission, they will be unable to enforce anything other than the arrears on the evidence they have given you.

[molly13]

Well I suppose I will just have to wait and see what happens. At least I feel a little bit prepared now.

Thank you again.

 

Regards

 

Molly:-)

[Bazooka Boo]

Not to worry, if I am wrong then someone will put me right, but I do not believe there is anything they can do to correct their school boy error.

[molly13]

I'm just debating whether to send a complaint to HSBC regarding that 2nd DN and FD or maybe it would be better to leave it for now.

Have had 4 phone calls so far today at home that I didn't answer.

Perhaps they are phoning to apologise for their mistake

 

Regards

Molly:-)

[Bazooka Boo]

Four in one day eh!

Your only correspondence with them now is to enter their complaints procedure for their repeated harassment, and exhaust it, at the same time you need to make a formal complaint to the OFT&TS via http://www.consumerdirect.gov.uk/contact

And quote the relevant laws and acts they are in breach of, and if it continues you need to report them to the Police for the criminal offence of harassment.

127Improper use of public electronic communications network E+W+S+N.I.

 

(1)A person is guilty of an offence if he—

(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)causes any such message or matter to be so sent.

(2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a)sends by means of a public electronic communications network, a message that he knows to be false,

(b)causes such a message to be sent; or

©persistently makes use of a public electronic communications network.

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

http://www.legislation.gov.uk/ukpga/2003/21/section/127

 

1 Prohibition of harassment. E+W

 

(1)A person must not pursue a course of conduct—

(a)which amounts to harassment of another, and

(b)which he knows or ought to know amounts to harassment of the other.

(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.

(3)Subsection (1) does not apply to a course of conduct if the person who pursued it shows—

(a)that it was pursued for the purpose of preventing or detecting crime,

(b)that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or

©that in the particular circumstances the pursuit of the course of conduct was reasonable.

http://www.legislation.gov.uk/ukpga/1997/40/section/1

 

40 Punishment for unlawful harassment of debtors. E+W

 

(1)A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—

 

(a)harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;

 

(b)falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

 

©falsely represents himself to be authorised in some official capacity to claim or enforce payment; or

 

(d)utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

 

(2)A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

 

(3)Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose—

 

(a)of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or

 

(b)of the enforcement of any liability by legal process.

 

(4)A person guilty of an offence under this section shall be liable on summary conviction to a fine of not more than £100, and on a second or subsequent conviction to a fine of not more than £400.

http://www.legislation.gov.uk/ukpga/1970/31/section/40

[Bazooka Boo]

Alternatively, see my other post #9 for the exact same response!

[molly13]

Thanks BB

Molly:-)

[molly13]

Hi,

 

I am in need of some advice again,please.

 

This has now been passed to the 'nice' people at Metropolitan Collection Services.First had a phone call a couple of weeks ago.... refused security checks and was told that I would have to speak to them at some point, told them to go away.

 

Then a letter demanding the full outstanding amount. Wrote to them telling them the account is in dispute and refer to HSBC.

 

Today received a letter telling me they are disappointed that we have been unable to come to an arrangement to clear the debt:sad: They then go on to say that if I don't contact them they "intend to instruct Solicitors to issue legal proceedings and apply for a Charging Order".

It would have to be brought to the attention of any joint owners of the property:roll: I know they would have to obtain a CCJ first so I regard this letter as blatant harassment.

 

Any advice of a good reply, other than GO AWAY or does it even warrant a reply?

 

Thanks

 

Molly:-)

[Bazooka Boo]

You have of course reported them and made a complaint to all of the following?

 

OFT&TS via http://www.consumerdirect.gov.uk/contact

 

Local MP http://www.writetothem.com/

 

CSA of which this toddler group are members of http://www.csaconsumers-uk.com/page/i-have-a-complaint

 

And what the hell, BBC Watchdog, http://www.bbc.co.uk/watchdog/gotastory/

 

Doesn't even warrant a reply, just send it telepathically, if they don't receive it, you have proof you sent it!

[jimbo45]

Hi there

the fact it has even been passed to a DCA is indication in this case that it is indeed game over.

 

You should be 100% in the clear now. Any further actions on this debt is just pure harassment and you can use the entire legal system without any risk as they have ZERO chance of any further action.

 

Don't be surprised at some DCA's grasping at the *pssible" chance for them to make some money -- most of these DCA's assume that 99% of their "victims" have never heard of CAG and will probably pay up.

 

Cheer

jimbo

[42man]

Metropolitan are HSBC's internal debt collection agency based in the same offices as DG Solicitors over in Edgbaston. If you ignore Metropolitan then it will go to DG Solicitors who may well take it further....(as you can probably read from these forums)

[Guest jsa12]

they (metropolitan) now appear to be operating out of a coventry address.

 

 

and telling people they haven't heard from them.the same previous st james road address appears at the bottom.

[molly13]

Hi all,

 

Thanks for your responses.

 

I have asked them to send it back to HSBC, even though they are HSBC.

 

The account is in dispute. I accepted their repudiation as stated in previous post.

 

So surely they are not entitled to the full amount, which incidentally has gone up by several hundred pounds since my post in October as they have kept adding interest up until it went to MCS.

It is my understanding that they will only be entitled to the arrears if anything.

 

And also threatening a Charging Order is surely not right at this stage, in my opinion anyway.

 

Thanks again all.

 

Regards

Molly:-)

[molly13]

jsa I did send my letter to that PO box in Coventry, recorded delivery, but surprise, surprise it has not been signed for...

[jimbo45]

Hi all,

 

Thanks for your responses.

 

I have asked them to send it back to HSBC, even though they are HSBC.

 

The account is in dispute. I accepted their repudiation as stated in previous post.

 

So surely they are not entitled to the full amount, which incidentally has gone up by several hundred pounds since my post in October as they have kept adding interest up until it went to MCS.

It is my understanding that they will only be entitled to the arrears if anything.

 

And also threatening a Charging Order is surely not right at this stage, in my opinion anyway.

 

Thanks again all.

 

Regards

Molly:-)

 

 

To get a charging order they first need to go to court at least 3 times - once to get a CCJ. You then have to default on this and they have then to get an Interim and a FINAL CO.

 

Although others might disagree here the whole CO process is grossly overdone these days and is unlikely to give the creditor back any money quickly.

 

I'd actually let them go for a CO as this actually stops ANY interest on debts covered by the various CCA's of ANY amount . So you would have stopped any further interest being added STONE DEAD.

 

 

Others might say let them attempt a CCJ and then at court offer them say 1 GBP a month depending on your circumstances -- however this won't stop interest and you will NEVER EVER clear the debt.

 

Courts also don't really like this "Back door" step of turning Unsecured Debt into Secured debt and there is pending discussions by the Coalition govt to review this whole process for debts of less than 25,000 GBP.

 

In any case a Forced sale of your property will almost NEVER be sanctioned by a Court --however aggressive the creditor is.

 

You certainly won't have to sell for example if the outstanding debt is only a tiny fraction of the value of the house for example if Sleazebag DCA gets a CO for 3,000 GBP but your house is worth 300,000 GBP then they would be laughed out of court for even attempting to go down this route.

 

Really you are in a better position here than people realize since you can easily say to the DCA hey -- I could sit here for 30 / 40 years before I move -- meanwhile this NO interest debt is being eaten away by inflation etc.

 

Why don't you accept a Full and Final of -- make your own offer here but I'd start at around 10%.

 

CO's actually are a scare tactic -- If these greedy DCA's really want their money a more effective route is going for SD's -- although you can get set asides interest can Still be charged as per the original CCA. The CO route while it looks nasty is actually more of a problem for the Debt chaser than you since INTEREST is stopped and there is almost ZERO possibility of a forced sale.

 

AS always in this whole rotten stinking industry it's fear and ignorance that allows these vultures to operate.

 

Just look at the rules and follow the usually sound advice you see on these Forums.

 

cheers

jimbo

Edited February 10, 2011 by jimbo45

[molly13]

Hi again,

 

Jimbo I know about the CO issue... been there done that, didn't get a T-shirt though

 

Charging Order objection - ***WON***

 

The thing is with this issue is the fact that they issued a defective DN and I accepted repudiation.

 

HSBC then said they lawfully repudiated..which I questioned. and they issued me with a new 'valid' DN.

 

But maybe you're right, perhaps I should offer F&F on the arrears due.

 

Thanks for your input though

 

Regards

 

Molly:-)

[molly13]

Charging Order objection - ***WON***

sorry link doesn't work....

thread started 12 June 09 in Legal forum

[Guest jsa12]

thats good to see.

[Bazooka Boo]

The thing is with this issue is the fact that they issued a defective DN and I accepted repudiation.

HSBC then said they lawfully repudiated..which I questioned. and they issued me with a new 'valid' DN.

 

Did they indeed! Well once they have unlawfully repudiated the agreement, they cannot simply issue you with a valid DN, as there is no contract??/