backdoor HSBC/DG CCJ - Now going for CO to seize my home?

[AnimalMagic]

Just been notified of a hearing date about my application to have a default CCJ set aside. Can anyone tell me what takes place at this hearing? Am I expected to supply any proof of statements I made in Part C of the application? My thread here: http://www.consumeractiongroup.co.uk/forum/first-direct/84234-animal-first-direct.html

[paulwlton]

Received notification that my application to have the CCJ set aside is to be heard on 14th June. Eeek!

 

Anyone able to explain what I need at this hearing? There is no indication in the letter, just a couple of very short sentances - do I need to provide proof of my reasons to have the CCJ set aside? This would be more or less the evidence I would be submiting in defence of the original claim, so why have two hearings?

 

Anyone with some reassuring words

 

Take a look I've just won a set-aside against Lloyds.

PM if you need any help.

Paul

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/11427-walton-rbos-16.html

[AnimalMagic]

I have received a letter from DG Solicitors this morning: (my comments in blue)

 

Without Prejudice

 

We refer to the above matter and your application to set aside judgment on the grounds that:

 

You did not receive the summons at the time and had no opportunity to defend this case;

that the claim amount includes unlawful charges;

and that the Claimant, HSBC Bank plc., has acted unlawfully by not complying with relevant statutes and the OFT Debt Collection guidelines.

 

Firstly, we would advise you that the claim form was issued on nn xxxxxxx nnnn by first class post to you at the address of xxxxxxxx. The claim form was not returned through the Royal Mail Dead Letter Service and therefore was correctly deemed served on nn xxxxx nnnn. DG Solicitors were notified at the time that I had not received the court papers and knew nothing of the judgement as I received a letter from them claiming to have a judgement. I assumed it was an unlawful scare tatctic and I replied stating I was contacting the court to verify the judgement. They were subsequently informed several times that I intended to apply to get the judgement set aside. This simply resulted in them applying for a charging order against my home.

 

With regard to your statement that the Claimant has acted unlawfully by not complying with relevant statute and the OFT Debt Collection guidelines, we can assure you that the Claimant and DG Solicitors act at all times within current legislation, codes of conduct and guidelines. If you have a specific complaint then please let us have full details so that we may investigate your complaint. I have a letter raising the issue of unlawful charges dated 2 months prior to the claim. The issue was never addressed. First Direct ignored a Data Protection Act sent in Oct 2006. They claim to have no record of it. I sent the DPA by first class post and copied it to DG solicitors. I subsequently sent a CCA request which included a reminder of the DPA request. They have admitted, in writing, to receiving the CCA request. I have already raised these issues with First Direct.

 

We enclose for your perusal the statements of your account for the period from nn xxxx nnnn to nn xxxxxxx nnnn when the account was closed and transferred for recovery action. These statements represent as far back as we have been able to obtain statements. You will see that the balance transferred for recovery action was £nnnn.nn and that on the last page, numbered nnn the debit interest of £nn.nn was refunded. Previous to this last entry, the statements show Bank charges totalling £nnn.nn.

 

HSBC Bank is entirely confident that its charges are reasonable, are properly and fully disclosed in its terms and conditions and published price list and you must have been aware that you would incur such charges depending upon how you managed your financial affairs. HSBC is confident that it was entitled to apply these charges and that it would successfully resist your claim in the Courts.

 

HSBC is, however, mindful of the management time and legal costs that will be incurred by your application to set aside judgment. For those commercial reasons alone, and without any admission of liability whatsoever, HSBC is prepared to reduce the balance outstanding against the judgment order which is currently £nnnn.nn (this includes the Court fees and costs of the claim and the charging order application) by £175.00 to £nnnn.nn upon your agreement to withdraw your application. The charging order obtained on your property at xxxxxxxxx will remain in place until such time as the balance remaining under the judgment order is settled.

 

The offer to reduce the balance outstanding by £nnn.nn is made in full and final settlement of any possible claim arising from the charges applied to your account numbered nnnnnn/nnnnnnnn and by accepting this offer you agree not to make any subsequent claims relating to charges for the account.

 

HSBC also, reasonably, requires your confirmation that you will treat this payment as confidential. If you accept this proposal please sign and return the enclosed copy of this letter to us and we will arrange for the balance outstanding to be reduced accordingly

Alternatively if you can raise the sum of £nnnn.nn (£600 off!) in full and final settlement of the judgment debt, which is the balance transferred for recovery action less the sum of £nnn.nn, we will issue a Letter of Satisfaction for the judgment and release the equitable charge on xxxxxx. This offer will remain valid for fourteen days from the date of this letter. If you wish to accept this offer, then we also require your confirmation that you will keep this matter confidential.

 

If you do not wish to accept either offer made in this letter, we reserve the right to exhibit this letter at any future Court hearing. All in the interests of maintaining the principal of equity, mutuality and reciprocity - NOT!

It is my intention to refuse the offer as I primarily want the CCJ removed.

 

Can anyone tell me if there is any legal or procedural obligation on the claimant to have the judgement set aside, if they have been made aware that the defendent has not received the court papers? Seem to remember seeing this somewhere, but haven't been able to locate it...

 

Can I reasonably ignore the 'Without Prejudice' on the basis of the last paragraph?

[Sparkie1723]

Hi,

It will cost you I think £65 to apply to hav judgement set aside, what happens then you will go before a judge or deputy judge ( more than likely in his office)and explain your situation, HSCB might attend but I dont think so, the Judge 9 times out of 10 in cases like yours will set aside.

 

 

You can't rely on a without prejudice offer letter nor can it be produced in court to efer to, if it hadn't contained an offer you could, but that is why they added the without prejudice bit in it.

 

The main point is you have to really convince the judge you did not receive the papers and because they never sent them recorded delivery I believe you will ...letters can and do get lost in the post more that a million a year I've heard.

 

sparkie

[AnimalMagic]

Thanks Sparkie,

 

Yes, the lost in the post is little problem as we have experienced this before. We live in an apartment with 17 flats, all with the same postcode. 3 of the apartments the address differs by 1 character and one of those is unoccupied.

 

I have already applied for the set aside and a hearing date set.

[ncf355]

Just like to say the very best of british AM, want a bunch of XXXXXX

[JonCris]

If you didn't acknowledge or defend the matter than you will almost certainly have it set aside.

 

The letter from the solicitors is meant as a frightener cos they know your application will almast certainly be successful & here's the bit your referring to which you may wish to use when you respond to their letter with a copy to the court.

 

As their letter can be seen as not being a genuine attempt to settle but just an attempt to intimidate you you can ignore the 'without priviledge'

 

Advise them of this intention when you respond

 

Also if they have not complied with your CCA or SAR it's important to report them now! & don't forget to advise the court of this

 

CPR

 

CLAIMANT'S DUTY TO APPLY TO SET ASIDE JUDGMENT

 

13.5

(1)

This rule applies where --

(a)

the claimant has purported to serve particulars of claim; and

(b)

the claimant has entered judgment under Part 12 against the defendant to whom the particulars of claim were sent.

 

 

(2)

If a claimant who has entered judgment subsequently has good reason to believe that the particulars of claim did not reach the defendant before the claimant entered judgment, he must --

(a)

file a request for the judgment to be set aside(GL) ; or

(b)

apply to the court for directions.

 

 

(3)

The claimant may take no further step in the proceedings for the enforcement of the judgment until the judgment has been set aside(GL) or the court has disposed of the application for directions.

[AnimalMagic]

Thanks Joncris, that was exactly what I was looking for... I couldn't find it - been looking at to many statutes, i've become blind!

[AnimalMagic]

I am struggling with the wording of a response to the letter from DG Solicitors above. I wonder if anyone would be able to help with suggestions/corrections?

 

My text thus far is:

I respectfully decline your offer to settle my claim. The CCJ on my credit record is causing financial distress and I believe I have sufficient evidence to show that the claimant acted improperly in the collection of this alleged debt. The consequences of the claimant’s unlawful behaviour caused considerable distress to my very ill wife and I have suffered a loss of many thousands of pounds.

 

In the interests of maintaining the principal of equity, mutuality and reciprocity, I believe your last paragraph removes any ‘Without Prejudice’ privileges. Your letter appears to be an attempt to intimidate and not a genuine attempt to settle, therefore I reserve the right to use it in my evidence.

 

You are well aware that I did not receive the court papers as a result of my letter dated nn mmm yyyy addressed to yourselves. I am sure the court will wish to take this into account, especially with your subsequent actions in attempting to enforce the judgment. I would also remind you that proof of posting is not proof of delivery.

 

I have already raised a number of the unlawful acts with your client. You will note that I expect to add to this list once I have the documentation I require from your client. In no particular order, the issues I have evidence for are:

• The unlawful penalty charges.
  
• Breach of OFT guidelines on Deceptive and/or unfair methods.
  
• Breach of OFT guidelines on psychological harassment.
  
• Failing to supply information requested via a Data Protection request.
  
• Failing to supply information requested via a CCA request.
  
• Breach of Section 40 of the Administration of Justice Act 1970.
  
• Breach of section 127 of the Communications Act 2003.
  
• Breach of section 287 of Companies Act 1989

The court of appeal has already ruled that if a moneylender wants the rewards of his trade he must operate strictly by the book.

 

Yours faithfully,

 

[Sparkie1723]

Lookinforinfo gave me this site to have a look at, it might be well worth you reading it as well.

 

AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES [1997] EWLC 247(2) (16 December 1997) AGGRAVATED, EXEMPLARY AND RESTITUTIONARY DAMAGES [1997] EWLC 247(2) (16 December 1997)

 

sparkie

[AnimalMagic]

At a quick glance that does look interesting. Thanks Sparkie...

[elsinore]

I respectfully decline your offer to settle my claim. The CCJ on my credit record is causing financial distress and I believe I have sufficient evidence to show that the claimant acted improperly in the collection of this alleged debt. The consequences of your client’s alleged unlawful behaviour caused considerable distress to my very ill wife and I have suffered a loss of many thousands of pounds.

 

You are well aware that I did not receive the court papers as advised in my letter dated nn mmm yyyy addressed to yourselves. I am sure the court will wish to take this into account, especially with your client’s subsequent actions in attempting to enforce the judgment. I would also remind you that proof of posting is not proof of delivery.

 

I have already drawn your client’s attention to a number of unlawful actions which I contend were perpetrated by them. You will note that I expect to add to this list once I have the documentation I require from your client. In no particular order, the issues I have evidence for are:

• The unlawful penalty charges.
  
• Breach of OFT guidelines on Deceptive and/or unfair methods.
  
• Breach of OFT guidelines on psychological harassment.
  
• Failing to supply information requested via a Data Protection request.
  
• Failing to supply information requested via a CCA request.
  
• Breach of Section 40 of the Administration of Justice Act 1970.
  
• Breach of section 127 of the Communications Act 2003.
  
• Breach of section 287 of Companies Act 1989

The court of appeal has already ruled that if a moneylender wants the rewards of his trade he must operate strictly by the book. If you use this I think it would be better to cite the source, which I think was Wilson v Somebody (I cant find it!)

In the interests of maintaining the principal of equity, mutuality and reciprocity, I believe the last paragraph of your letter removes any ‘Without Prejudice’ privileges. Your letter appears to be an attempt to intimidate and not a genuine attempt to settle. It is quite at odds with your statement contained in the same letter:

“we can assure you that the Claimant and DG Solicitors act at all times within current legislation, codes of conduct and guidelines”

Consequently I shall continue with my application to have the judgment set aside.

Yours faithfully,

Copy to XXXXXXX County Court

HTH

Els

[AnimalMagic]

Tanks Els,

 

Have been trying to find a way of finishing and you hit the nail...

[AnimalMagic]

Had a letter from a Ms Heather Wagstaff dated 30 May 2007 in which she states 'I can see from our records that a discussion regarding charges took place on dd mmm yyyy...blah blah blah'

 

I wrote back saying I have no recollection of any discussion...

 

Today I get a letter back stating 'On further investigation I can see no reference of this ever taking place on your account...'

 

How do these people get off on their repeated lies? Is this a case of disappearing records to cover up their breaches of the law?

[un1boy]

No, it's a case of trying t fob you off so you leave them alone - they really should no tbe allowed to get away with all these lies they keep spurting out.

 

I am now sending all letters I receive from these companies like that to the OFT/law society/FSA etc..

[AnimalMagic]

Any bank worker willing to say how long their bank keeps telephone recordings? Are they destroyed completely after a period of time or are there backups kept?

[AnimalMagic]

So where have all the Bank Workers gone?

[devandy]

Asked recently over the telephone service of my Bank of Scotland account, they told me everything is kept for the life of the account however problem was resolved without asking for transcripts.

 

Hope this can be of some help.

[welshcakes]

Hi

 

Okay so it's reasonable that phone logs are kept for the life of the account whilst it is open, however I'd like to know if that means they are disposed of once the account is closed, six years after the account or perhaps longer.

[bella86]

to be honest i dont have a factual answer for this question. However, i believe the logs are not deleted. Even when an account is closed we still keep the information regarding the customer. surely the call logs would be kept as well?

ill try and find out - however i am no longer employed by abbey

[AnimalMagic]

Thanks for any information. It would be even more helpful if I could get something to use in court - documentation, statement anything like that...

[AnimalMagic]

I settled on the day of the hearing with a condition that the credit file entry be removed. Th eentry remains as a default that has been settled. Anyone know what I can do about this?

 

The court order states 'the claimant agreeing to use its best endeavours to remove adverse credit rating arising from the case'.

[Hopeful1]

I settled on the day of the hearing with a condition that the credit file entry be removed. Th eentry remains as a default that has been settled. Anyone know what I can do about this?

 

The court order states 'the claimant agreeing to use its best endeavours to remove adverse credit rating arising from the case'.

 

 

Have you written to First Direct with regards to this?

[Lula]

Write to FD and point it out, telling them that if they do not comply with the terms of the order - if no joy, then write to the DJ that made the order, enclosing a copy of the order and see what he has to say about it.

[AnimalMagic]

Thanks guys, A letter will be composed on the weekend...

 

I'm thinking about going back to court to persue a harrassment case as they continued to telephone me after I disputed the amount owing and told them not to call as my wife was very ill and distressed by the calls. They also took a legal action, getting a charging order, without any attempt to resolve the dispute. I agreed to forgo that action on the condition that they removed the credit file entry.

 

Can anyone point me to evidence to show that FD can remove cedit file entries?