Urgent Help Needed! - HSBC Filed Claim at Court What do i do??

[dominorally]

Hi dominorally. Anything to do with "assignment" should be taken out because this has NOT been assigned. As you rightly point out, Metropolitan are in house DCA as DG is in house solicitors. The account is still with HSBC therefore any refererence to assignment is not required.

 

When did we say your defence needed to be in by ?

 

If I understand this correctly. This is a current account, so it is likely there would never have been an agreement as such. However, they refer to terms of the bank account. Have you ever seen any terms and conditions, where they say that any debit balance would be repayable on demand ?

 

Can you confidently claim that the monies they are claiming are in fact made up of Bank Charges ?

 

CitizenB ,

 

Thanks for your help on this.

 

date of issue was 25th aug - 33 days from then is 27th Sept but i think maybe i should sumbit by this Friday 24th to be sure.

 

I have seen some T & C 's each time the bank wrote to me telling me i was over the o/d Limit a copy was enclosed however i havnt got the original t & c when the account was taken out.

 

the account was overdrawn by just about the same amount of charges that had been applied going back to 2002 i have all the charges / interest entered onto the advanced spreadsheet from these forums which i was using in my initial claim.

 

another thing also - do i need to add anything about the fact that i am still taking my complaint to the FOS? can i ask for the case to be struck out as this is still ongoing?

 

 

Just seen a post from emandcole which i need to read through a couple of times and digest. it seems there is going to be more of an argument to this than i first thought.

 

as far as the hardship angle goes i was thinking that at the time of these charges i was in hardshiop struggling to pay for things etc - That is not the case now though - just wondered where i might stand with that??

 

Will amend the defence ref the 'assignment' part when i get home later.

 

thanks

 

DR

[dominorally]

Ok , overdrafts are a tricky matter to deal with but you do have options which can make the bank reconsider their action. Banks like to insist that overdrafts are not regulated by the consumer credit act 1974, however they are. What the bank is actually trying to avoid is the fact that in order for them to not need an agreement of any kind for the sums they lent you they must be able to demonstrate that they took advantage of Part V exemption from the CCA as detailed in the OFT determination. Here therefore is one of your points to attack.

If you refer to the CCA 1974 you’ll note that an overdraft is a regulated creditor/debtor arrangement under sections 8 and 13, it is classes as running account credit further defined in section 10. Most importantly this is confirmed in case law, so you’ll need to read up on the case of Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005) which you should refer to in your defence.

 

You will need to put the bank to strict proof of:

 

• The terms of OD lending which should have been provided to you within 30 days of the OD being given.
  
• You should have a Default Notice.
  
• You should have a Termination Notice.
  

As for the current account it is protected under the banking code, I think the FSA (or whoever has replaced it) and as such it doesn’t offer credit by definition, it is first and foremost a facility to enable you to pay money in, withdraw your money and allows you to pay bills etc with the provision of account numbers and all of the bits and bobs that go with that. As such the credit that is extended to you is an entirely separate matter and needs an agreement under the CCA.

You need to request a true copy of your credit agreement, do this via the normal CCA request. Yes time is pressing but if they do not provide you with it in time you can address this later. The bank should respond with a templated ‘we don’t have to give you an agreement as its not covered by the CCA 1974’.

 

You can then use the Coutts case to demonstrate otherwise. This then forces the bank to produce evidence of their Part V exemption, they have after all confirmed they have no agreement in place for this extension of credit and must by definition have secured that exemption.

You will need to issue a SAR also as soon as possible. The particulars of claim do seem quite vague and perhaps we could make more of that, not sure its worth it though.

 

In the SAR you should specifically and boldly request a copy of the Default Notice, the Termination Notice and vitally, the letter they sent you within 30 days confirming the details of the OD lending. This letter needs to contain the details of the lending but must have the interest rate and must have the limit.

The letter they (may) send should also tie up with their internal records of when it was sent, this should ensure that the bank hasn’t just conjured it up to suit.

If there are no data records of it being sent then attack it and question the credibility of their data as they should have had record of when such an important document was sent out. They will after all have other less important details stored on there.

 

The CCA request is appropriate until the bank tells you in writing that it is actually Part V exempt – however once they have done this the bank must document this exemption. If they do not document the exemption the debt is unenforceable under section 78(6) of the CCA 1974.

This states:

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

and

(b) if the default continues for one month he commits an offence.

 

So, if the bank cannot provide evidence of Part V exemption they are prevented from enforcing the debt by way of court order.

If the claimant cannot provide this documentation then the defence should concentrate on this primarily and would suggest the following:

 

(Will need numbering as appropriate)

The Claimant provided an overdraft on the account:

 

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit);

 

 

b. As such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

 

74. – (1) This part …. does not apply to –

 

 

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

 

 

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

 

 

(a) may be made subject to such conditions as the OFT thinks fit …

 

 

(b) (3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. This determination is provided in full below:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

 

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

 

 

(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.

 

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

The Defendant avers that the Claimant is in default of the Defendants request to provide those details required by the Determination of The Office of Fair Trading and, while that default continues, should be held in default within the terms of s.78(6).

 

The Claimant has failed to provide a document that complies with this request. Accordingly, the Claimant is “in default” under s.78(6) and the Defendant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Claimant therefore has also committed an offence under s.78(6)(a) CCA 1974.

 

The Defendant puts the Claimant to strict proof of;

 

 

The contractual agreement between both parties in relation to the Current Account, allowing the Defendant to request overdraft facilities and which terms and conditions were included as part of that agreement;

 

 

Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Defendant at the time of application for an overdraft by the Claimant;

 

 

Where no such agreement can be provided, copies of original documentation sent to the Defendant that complies with the Office of Fair Trading’s Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

 

--------------------------------------- End

 

You also have the issue of bank charges to consider. To my mind the bank should have a copy of the account agreement and T&C’s demonstrating they reserved any contractual right to apply these. If they can’t provide this how do they maintain you were made aware of and by association then agreed to these costs?

You may wish to introduce the new banking arguments about charges but this may complicate matters and result in the case being allocated to a higher track where costs implications are prevalent. I don’t believe the new arguments have been tested yet but I suspect the banks will have a far harder time trying to address these points than the old argument they had to get round.

 

Perhaps if the bank produce the documentation needed to show Part V exemption you could throw them into the final defence if you are of the mindset that you have nothing else to lose – you will need to be sure of what you’re doing however and give it serious thought. The questions you can present are from a templated letter that you adapt for your own unique circumstances. You can consider them here –

I write further to my outstanding complaint concerning unfair bank charges applied to my current account which had been placed on hold pending the Supreme Court test case of OFT v. Abbey National plc and others [2009] UKSC 6.

Although the OFT lost this case under regulation 6 of the Unfair Terms In Consumer Contract Regulations 1999 (UTCCR), the Supreme Court stated that this did “not resolve the myriad cases that are currently stayed in which customers have challenged Relevant Charges” (para 61 of the court’s judgment). In particular, the Supreme Court made it clear that “it remained open to question whether bank charges were fair” in relation to regulation 5(1) of the UTCCR (para 80 of the Supreme Court’s judgment).

Accordingly, in consideration of my request for a refund, and in light of the Supreme Court’s judgment, please ensure that you have regard to the following amended grounds of complaint:

(1) I seek a refund of overdraft charges (with interest thereon) applied to my current account because these charges were unfair in terms of regulation 5(1) of the UTCCR as –

(a) your charges were set by reference to the overall costs of providing current account services to all of your customers rather than the costs incurred by my individual conduct which occasioned bank charges;

(b) at no time have you ever informed or adequately explained to me, that I would be paying bank charges in order to cross-subsidise the costs of providing the vast bulk of your customers with ‘free if in credit banking’;

© your charging structure was designed or created the potential for rolling or multiple charges, with charges and interest being applied and/or occasioned by ‘charges on charges’;

(d) the way that charges were imposed and accumulated in terms of your charging structure was unclear, unpredictable and complex; and

(e) the main providers of current accounts in the UK operated a similar charging structure to you, and in so doing restricted market competition, resulting in my inability to obtain an alternative current account with a fair charging structure;

(2) Separately, I also seek a refund of overdraft charges (with interest thereon) applied to my account because these charges were unfair within the meaning of section 140A(1) of the Consumer Credit Act 1974 for the reasons as set out in paragraph (1)(a) to (e) above, and in relation to the following additional reason: your charges were excessive in relation to the level and/or cost of the borrowing which triggered these charges.

Please note this is not a template letter as my letter contains specific factual information which relates solely to my personal circumstances. I would ask you to have regard to the following examples of detriment which I have suffered as a result of your unfair and punitive charges:

[iNSERT in your own words bullet point examples of how bank charges have affected you personally – for example you may wish to discuss how charges resulted in personal hardship; not having enough money to pay bills or buy household essentials; or resulted in you being unable to pay other direct debits; or how they placed you into a cycle of debt resulting in difficulty with paying your rent or mortgage, for example. Essentially, explain how the charges impacted on your life and that of any dependents or partners, for example].

 

---------------------------------------------END

I suspect throwing in these questions would alarm the bank to some extent and they may back down, who knows? They may, for such a small sum not wish to rock the boat but you never know, they may feel brave and just go for it.

Finally, in the SAR you send make sure you obtain a full account history. The bank should maintain these records so make sure they send you the lot.

 

WOW!!! Emandcole thanks for this! I have read through this but i will need to read again a couple of times when i get home to really digest what you say.

 

Sending a SAR - will that be too late for the defence which needs to be submitted this Friday???

 

I definately have not had a default notice. so that will be intersesting to see what they produce.

 

Would i send a holding defence then send a full defence at a later stage??

 

will be in touch later hopefully i can get this sorted in the next couple of days.

 

thanks for your help

 

DR

[citizenB]

dominarally. Yes, emandcole has left you some very good information. I wasnt sure whether or not the CCA1974 would come in to play with this claim. Apparently it does so you have more protection that I thought at first.

 

If there had been a complaint in with the FOS at the time the claim was issued, then I think you could have used it in your defence. That would mean the bank were attempting to circumvent any decision made by the FOS. But I dont think that you did have a complaint in with them at the time the claim was issued, did you. You could put a paragraph in to say that the Bank hadnt allowed you to pursue the complaint because they issued their Final decision and advice to go to the Ombudsman at the same time as issuing the claim.

[emandcole]

Thanks to DX for the reputation click - appreciated

[dominorally]

dominarally. Yes, emandcole has left you some very good information. I wasnt sure whether or not the CCA1974 would come in to play with this claim. Apparently it does so you have more protection that I thought at first.

 

If there had been a complaint in with the FOS at the time the claim was issued, then I think you could have used it in your defence. That would mean the bank were attempting to circumvent any decision made by the FOS. But I dont think that you did have a complaint in with them at the time the claim was issued, did you. You could put a paragraph in to say that the Bank hadnt allowed you to pursue the complaint because they issued their Final decision and advice to go to the Ombudsman at the same time as issuing the claim.

 

You are right when you say there was not a claim in to the FOPS at the time the claim was made however the c laim was issued 1 week after the final response dated 17th august which i didnt receive until probably the 23rd Aug ( i didnt keep the envelope so not 100% on that date)

 

so yes i could possibly use that argument. I will be continuing with the claim to the FOS anyway as i dont think i have anything to lose.... do i?

 

I take it the advice emandcole has given is to be used ion the first defence i send.I need to read up and really understand the direction i need to go in

 

DR

[dominorally]

Ok , overdrafts are a tricky matter to deal with but you do have options which can make the bank reconsider their action. Banks like to insist that overdrafts are not regulated by the consumer credit act 1974, however they are. What the bank is actually trying to avoid is the fact that in order for them to not need an agreement of any kind for the sums they lent you they must be able to demonstrate that they took advantage of Part V exemption from the CCA as detailed in the OFT determination. Here therefore is one of your points to attack.

If you refer to the CCA 1974 you’ll note that an overdraft is a regulated creditor/debtor arrangement under sections 8 and 13, it is classes as running account credit further defined in section 10. Most importantly this is confirmed in case law, so you’ll need to read up on the case of Coutts & Co v Sebestyen [2005] EWCA Civ 473 (28 April 2005) which you should refer to in your defence.

 

You will need to put the bank to strict proof of:

 

• The terms of OD lending which should have been provided to you within 30 days of the OD being given.
  
• You should have a Default Notice.
  
• You should have a Termination Notice.
  

As for the current account it is protected under the banking code, I think the FSA (or whoever has replaced it) and as such it doesn’t offer credit by definition, it is first and foremost a facility to enable you to pay money in, withdraw your money and allows you to pay bills etc with the provision of account numbers and all of the bits and bobs that go with that. As such the credit that is extended to you is an entirely separate matter and needs an agreement under the CCA.

You need to request a true copy of your credit agreement, do this via the normal CCA request. Yes time is pressing but if they do not provide you with it in time you can address this later. The bank should respond with a templated ‘we don’t have to give you an agreement as its not covered by the CCA 1974’.

 

You can then use the Coutts case to demonstrate otherwise. This then forces the bank to produce evidence of their Part V exemption, they have after all confirmed they have no agreement in place for this extension of credit and must by definition have secured that exemption.

You will need to issue a SAR also as soon as possible. The particulars of claim do seem quite vague and perhaps we could make more of that, not sure its worth it though.

 

In the SAR you should specifically and boldly request a copy of the Default Notice, the Termination Notice and vitally, the letter they sent you within 30 days confirming the details of the OD lending. This letter needs to contain the details of the lending but must have the interest rate and must have the limit.

The letter they (may) send should also tie up with their internal records of when it was sent, this should ensure that the bank hasn’t just conjured it up to suit.

If there are no data records of it being sent then attack it and question the credibility of their data as they should have had record of when such an important document was sent out. They will after all have other less important details stored on there.

 

The CCA request is appropriate until the bank tells you in writing that it is actually Part V exempt – however once they have done this the bank must document this exemption. If they do not document the exemption the debt is unenforceable under section 78(6) of the CCA 1974.

This states:

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

and

(b) if the default continues for one month he commits an offence.

 

So, if the bank cannot provide evidence of Part V exemption they are prevented from enforcing the debt by way of court order.

If the claimant cannot provide this documentation then the defence should concentrate on this primarily and would suggest the following:

 

(Will need numbering as appropriate)

The Claimant provided an overdraft on the account:

 

a. The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit);

 

 

b. As such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

 

Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

 

 

Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

 

74. – (1) This part …. does not apply to –

 

 

(b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

 

 

(3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

 

 

(a) may be made subject to such conditions as the OFT thinks fit …

 

 

(b) (3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

THE DETERMINATION:

 

The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. This determination is provided in full below:

 

"1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

 

2. This Determination is made subject to the following conditions:-

 

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

 

 

(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.

 

 

© that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

 

3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

 

The Defendant avers that the Claimant is in default of the Defendants request to provide those details required by the Determination of The Office of Fair Trading and, while that default continues, should be held in default within the terms of s.78(6).

 

The Claimant has failed to provide a document that complies with this request. Accordingly, the Claimant is “in default” under s.78(6) and the Defendant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Claimant therefore has also committed an offence under s.78(6)(a) CCA 1974.

 

The Defendant puts the Claimant to strict proof of;

 

 

The contractual agreement between both parties in relation to the Current Account, allowing the Defendant to request overdraft facilities and which terms and conditions were included as part of that agreement;

 

 

Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Defendant at the time of application for an overdraft by the Claimant;

 

 

Where no such agreement can be provided, copies of original documentation sent to the Defendant that complies with the Office of Fair Trading’s Determination, issued in relation to overdrafts on Current Accounts, under s.74 and s.133 of the Consumer Credit Act 1974; (that Determination being dated 1st February 1990)

 

--------------------------------------- End

 

You also have the issue of bank charges to consider. To my mind the bank should have a copy of the account agreement and T&C’s demonstrating they reserved any contractual right to apply these. If they can’t provide this how do they maintain you were made aware of and by association then agreed to these costs?

You may wish to introduce the new banking arguments about charges but this may complicate matters and result in the case being allocated to a higher track where costs implications are prevalent. I don’t believe the new arguments have been tested yet but I suspect the banks will have a far harder time trying to address these points than the old argument they had to get round.

 

Perhaps if the bank produce the documentation needed to show Part V exemption you could throw them into the final defence if you are of the mindset that you have nothing else to lose – you will need to be sure of what you’re doing however and give it serious thought. The questions you can present are from a templated letter that you adapt for your own unique circumstances. You can consider them here –

I write further to my outstanding complaint concerning unfair bank charges applied to my current account which had been placed on hold pending the Supreme Court test case of OFT v. Abbey National plc and others [2009] UKSC 6.

 

Although the OFT lost this case under regulation 6 of the Unfair Terms In Consumer Contract Regulations 1999 (UTCCR), the Supreme Court stated that this did “not resolve the myriad cases that are currently stayed in which customers have challenged Relevant Charges” (para 61 of the court’s judgment). In particular, the Supreme Court made it clear that “it remained open to question whether bank charges were fair” in relation to regulation 5(1) of the UTCCR (para 80 of the Supreme Court’s judgment).

 

Accordingly, in consideration of my request for a refund, and in light of the Supreme Court’s judgment, please ensure that you have regard to the following amended grounds of complaint:

 

(1) I seek a refund of overdraft charges (with interest thereon) applied to my current account because these charges were unfair in terms of regulation 5(1) of the UTCCR as –

 

(a) your charges were set by reference to the overall costs of providing current account services to all of your customers rather than the costs incurred by my individual conduct which occasioned bank charges;

 

(b) at no time have you ever informed or adequately explained to me, that I would be paying bank charges in order to cross-subsidise the costs of providing the vast bulk of your customers with ‘free if in credit banking’;

 

© your charging structure was designed or created the potential for rolling or multiple charges, with charges and interest being applied and/or occasioned by ‘charges on charges’;

 

(d) the way that charges were imposed and accumulated in terms of your charging structure was unclear, unpredictable and complex; and

 

(e) the main providers of current accounts in the UK operated a similar charging structure to you, and in so doing restricted market competition, resulting in my inability to obtain an alternative current account with a fair charging structure;

 

(2) Separately, I also seek a refund of overdraft charges (with interest thereon) applied to my account because these charges were unfair within the meaning of section 140A(1) of the Consumer Credit Act 1974 for the reasons as set out in paragraph (1)(a) to (e) above, and in relation to the following additional reason: your charges were excessive in relation to the level and/or cost of the borrowing which triggered these charges.

 

Please note this is not a template letter as my letter contains specific factual information which relates solely to my personal circumstances. I would ask you to have regard to the following examples of detriment which I have suffered as a result of your unfair and punitive charges:

 

[iNSERT in your own words bullet point examples of how bank charges have affected you personally – for example you may wish to discuss how charges resulted in personal hardship; not having enough money to pay bills or buy household essentials; or resulted in you being unable to pay other direct debits; or how they placed you into a cycle of debt resulting in difficulty with paying your rent or mortgage, for example. Essentially, explain how the charges impacted on your life and that of any dependents or partners, for example].

 

---------------------------------------------END

I suspect throwing in these questions would alarm the bank to some extent and they may back down, who knows? They may, for such a small sum not wish to rock the boat but you never know, they may feel brave and just go for it.

Finally, in the SAR you send make sure you obtain a full account history. The bank should maintain these records so make sure they send you the lot.

 

 

Hi emandcole,

 

Great advice and info given earlier!! - i had a few read throughs and have some questions if thats ok as there is alot to take in now. i am still a little confused about what to include in my initial defence.

 

1. Am i going to use all this information in my first defence which is to be filed by this Friday? Or do i need to just put in a holding defence first to get more time as i dont expect any documents i have requested to arrive in time?

 

2. I have sent a CPR 31.14 request - if this info does not arrive in time (20th Sept deadline) Then should i ask for / get more time to plead properly?

 

3. Should i include the argument about Part V exemption and the info about the Determination etc Now or wait until a later defence?

 

4. Again Do i need to refer to Coutts v sebestyan Now or later to see if the bank produces/or not, the exempt proof?

 

5. I have sent the SAR request however HSBC have 40 days to send this will it be too late to use this info?

 

6. Should the terms of the OD be the original from 2002 OR the latest one I have from 2008. Which one is valid?

 

7. I do have a letter stating that my OD facility has been cancelled would this class as a termination notice?

 

8. Would charges on this overdraft between 2002 and Aug 2004 be unenforcable as they are more than 6 yrs old?

 

Just a bit of info i have got together :-

 

I have got out all letters i have had from HSBC - the account was from 2002 but the only letters i have about OD was when they did a review. this basically amounted to HSBC reviewing my Od and then giving me the same terms as i had before and charging me £25 for doing so - i did get a letter at that time stating the terms of this facility that was in 2008. i had had nothing before then even though there had been an OD on the acccount.

 

i wrote to HSBC as part of my reclaiming process and asked them to remove any default notices that had been placedon my credit file. their response was to ask me to send proof that these default notices existed - Surely then that indicates that they admit there are no default notices because they would have known if they had been placed on my credit file.

 

i have read through the Coutts case and i can see that even though the appeal was dismissed the point about the debtor creditor agreement is there to refer to - Hope thats right???

 

Many Many thanks again for your advice and help

 

 

DR

[emandcole]

Hi emandcole,

 

Great advice and info given earlier!! - i had a few read throughs and have some questions if thats ok as there is alot to take in now. i am still a little confused about what to include in my initial defence.

 

1. Am i going to use all this information in my first defence which is to be filed by this Friday? Or do i need to just put in a holding defence first to get more time as i dont expect any documents i have requested to arrive in time?

As you have so little time you'll be using the above in your full defence (as long as HSBC can't provide part v exemption documents). Yes, in the measntime you'll submit your defence of sorts but it will be detailing what you have done to date to obtain the info you need in chronological order. The court can then see that you're taking the matter sriously and are going through the motions dutifully, prevented from submitting a full defence only by the claimants provision of essential docs. You'll respectfully ask at the end of your defence for permission to submit a full defence once the claimant has provided you with all you need in order to answer their claim.

 

2. I have sent a CPR 31.14 request - if this info does not arrive in time (20th Sept deadline) Then should i ask for / get more time to plead properly?

Include this in your initial defence, all part of the waiting process that the court will be familiar with. As you've sent the 31.14 you must be prepared to issue the 31.15 if you don't get what you need, take it you've read up on this? If not have a quick look and you'll see what it entails.

 

3. Should i include the argument about Part V exemption and the info about the Determination etc Now or wait until a later defence?

You could outline the basic requirements so that the court can understand what the delay is sure. Keep it simple at this stage though. You'll replace the early one with your full defence soon enough.

 

4. Again Do i need to refer to Coutts v sebestyan Now or later to see if the bank produces/or not, the exempt proof?

Wouldn't worry about that now, you're in the stages of document collection. In theory you might not even know about such cases at this stage so save the nitty gritty for the full defence.

 

5. I have sent the SAR request however HSBC have 40 days to send this will it be too late to use this info?

 

Clearly you'll not meet the earlier deadlines but thats why its important to show the court waht you've done so it can see any delay is not needless time wasting. You are entitled to gather the docs you need and the sort of details a SAR should provide would be considered as essentials and not luxuries if you like. The court will wait if the reason is good as it allows you to submit the defence you need too, it's your right as the defendant.

 

6. Should the terms of the OD be the original from 2002 OR the latest one I have from 2008. Which one is valid?

 

You should be provided with each and every set of terms or the facility letter for each stage of the OD, this is why the statement history is so important as it allows you to see what was provided and when. From this you can ensure the bank provides documents to match with the OD history.

 

7. I do have a letter stating that my OD facility has been cancelled would this class as a termination notice?

Probably best if you can make copies of all the docs you have that are important and then scan the copies for us to review once you've removed personal details that can identify you. Don't modify any originals, keep those safe.

 

8. Would charges on this overdraft between 2002 and Aug 2004 be unenforcable as they are more than 6 yrs old?

I believe limitation would apply, the exeception was during the test case that preserved any charges as time went on so long as the account holder had registered their complaint. Think now that the OF test case rolled over that normal limitation would apply but check that out to be certain.

 

Just a bit of info i have got together :-

 

I have got out all letters i have had from HSBC - the account was from 2002 but the only letters i have about OD was when they did a review. this basically amounted to HSBC reviewing my Od and then giving me the same terms as i had before and charging me £25 for doing so - i did get a letter at that time stating the terms of this facility that was in 2008. i had had nothing before then even though there had been an OD on the acccount.

 

i wrote to HSBC as part of my reclaiming process and asked them to remove any default notices that had been placedon my credit file. their response was to ask me to send proof that these default notices existed - Surely then that indicates that they admit there are no default notices because they would have known if they had been placed on my credit file.

Interesting - might be of use once you find out what they have and haven't got.

 

i have read through the Coutts case and i can see that even though the appeal was dismissed the point about the debtor creditor agreement is there to refer to - Hope thats right???

Yes, the court confirmed the nature of the relationship specifically.

 

Many Many thanks again for your advice and help

 

 

DR

Welcome.

[sacs]

Sub

[The Debt Star]

all major banks have signed up to) banks must treat you fairly and be considerate if you are in financial difficulty.

 

pmsl. the banks don't give a feck what the lending code says and they just ignore hardship letters. see Mozz's thread on HSBC. The LSB aren't interested either. Its just rolled up trouser legs and funny handshakes with between these boys.

[dominorally]

i wrote to HSBC as part of my reclaiming process and asked them to remove any default notices that had been placed on my credit file. their response was to ask me to send proof that these default notices existed - Surely then that indicates that they admit there are no default notices because they would have known if they had been placed on my credit file.

 

Have been looking into my credit file and i have found that HSBC have put a default on my bank account in August 2009 a full year ago when i was still disputing the charges etc etc the SC judgement hadnt been made at that point i dont think . How come they can claim to know nothing about a default and I have to prove it when they already know it has been placed there :-x:-x.

 

Am i able to get this default removed at all?? as i said i never received a default notice.

 

 

 

Emandcole/ CitizenB

 

Ok, so i have attached what i think my initial defence should be. i would appreciate some feedback to

 

1. That i have included all i need to.

2. I have not repeated myself! ( i have read through but tis getting late again and i sure could miss something)

3. That it is not too long and detailed for a 1st defence.

4. Any other advice on the correct wording/ content that needs to go in the defence.

 

BTW - any advice on getting the default on my credit will be appreciated9 will check the threads for more info on that myself. Maybe after i have submitted this defence.

 

BTW2 - should i have received anything from Northampton ref my acknowledgement of service cos nothing has arrived yet!

 

Thanks again!!

 

DR

1st Defence.pdf

Edited September 21, 2010 by dominorally

[emandcole]

Remove 'and' at the end of para 4.

Remove 'it is not admitted that such a notice exists' from paras 5 and 6.

 

As you're eesentially asking the court to make an order for provision of docs make sure you include the full list of what you need. You're nearly there but you'll need a full statement history for example, not sure you've asked for that and although its implied the court prefer clear and direct requests to remove ambiguity. Juts make sure you specifically list anything else you need from the claimant.

 

Finally, just as a precaution you know you had the money, so does the bank and so does the court so perhaps remove the more defiant statements or you may risk winding the judge up. This is a matter of ensuring the bank acted within the confines of the legal system and protected its right to recover that money, your aim is to explore that fairly. If the bank has failed to conduct itself correctly you can expose that before the court and set out the lack of options available to the bank as a result of this, subsequently inviting the court to agree with you - the result being a win.

 

Other than that it reads well enough so good job overall.

[dominorally]

Remove 'and' at the end of para 4.

Remove 'it is not admitted that such a notice exists' from paras 5 and 6.

 

As you're eesentially asking the court to make an order for provision of docs make sure you include the full list of what you need. You're nearly there but you'll need a full statement history for example, not sure you've asked for that and although its implied the court prefer clear and direct requests to remove ambiguity. Juts make sure you specifically list anything else you need from the claimant.

 

Finally, just as a precaution you know you had the money, so does the bank and so does the court so perhaps remove the more defiant statements or you may risk winding the judge up. This is a matter of ensuring the bank acted within the confines of the legal system and protected its right to recover that money, your aim is to explore that fairly. If the bank has failed to conduct itself correctly you can expose that before the court and set out the lack of options available to the bank as a result of this, subsequently inviting the court to agree with you - the result being a win.

 

Other than that it reads well enough so good job overall.

 

 

Thanks Emandcole,

 

Will make the ammendments to Paras 4 5 & 6.

 

I think then that the defiant paras you mention are 10/11/13/14/16 & 18 which talk about

'Lawfully owing monies & interest & charges being Breach of Law'

'Unfair terms in CCR 1999 reb 8(2)'

'claim for interest is denied'

' denial of being indebted at all'

and ' asking the court to strike out the case eref part 16 7 praxctice dorection 16'

 

 

Would you agree ?? if so i will amend tonight and repost.

 

i have also asked for the full statement history in the SAR - not sure if i specifically aske dfor it in the CPR31.14 will have to check.

'

 

Any thought on the default notice that is on my credit file ??

 

DR

[emandcole]

Thanks Emandcole,

 

Will make the ammendments to Paras 4 5 & 6.

 

I think then that the defiant paras you mention are 10/11/13/14/16 & 18 which talk about

'Lawfully owing monies & interest & charges being Breach of Law'

'Unfair terms in CCR 1999 reb 8(2)'

'claim for interest is denied'

' denial of being indebted at all'

and ' asking the court to strike out the case eref part 16 7 praxctice dorection 16'

 

You can keep bits that are making use of CPR etc, its just the overall tone of the defence was a bit strong in places. The denial of indebtedness at all etc. I may have been a touch sensitive to it, I just feel its important that the judge looking at this doesn't automatically take a dislike to you. Look at it again and just soften or remove areas where it might come across wrongly, its fine to be assertive and to state your rights but felt it went a little over here and there and would not serve you well.

 

Would you agree ?? if so i will amend tonight and repost.

 

i have also asked for the full statement history in the SAR - not sure if i specifically aske dfor it in the CPR31.14 will have to check.

 

Good, real important you get those asap.

'

 

Any thought on the default notice that is on my credit file ??

If its correct you're probably stuck with it but if they try to discontinue for any reason you coud try to get it removed as a condition of that. Generally it can be pretty tough to get DN's removed even if they are lawfully invalid - having a battle with the ICO over this point at the moment as they appear to be disinterested in the content of a DN but interested in whether or not it was served at the right time! Bizarre.

 

DR

Yes, the ICO do appear to be pointless as they'll support a DN that the High Court would reject (as in Woodchester) but rejected my assumption that they are not aligned with the practice and thinking of the courts. Confusion reigns.

[dominorally]

Yes, the ICO do appear to be pointless as they'll support a DN that the High Court would reject (as in Woodchester) but rejected my assumption that they are not aligned with the practice and thinking of the courts. Confusion reigns.

 

I thought you meant to remove the whole of the Paras that seemd defiant, sorry just want to get thiss right as you say dont want the Judge taking a dislike to me at the start.

 

Will look through again tonight and re post later.

 

BTW I do not have the account that is in question i opened an account elswhere and moved everything to the new account around about the time that the default was put on my credit file. It was just left there with the overdraft over its limit made up ogf charges .I guess once they realised then they defaulted me although no default notice was served as i thought they couldnt do that whilst the charges were being disputed.

 

I am annoyed because i asked them about any default notices and they were very vague.

 

Thanks

 

DR

[dominorally]

Emandcole,

 

I thought you meant to remove the whole of the Paras that seemed defiant, sorry just want to get this right.As you say I dont want the Judge taking a dislike to me at the start.

 

Right , I have posted up the ammended defence - i hope this reads better but am woried that i have taken too much out and am missing something. Would be grateful if you would advise again. i want to submit online Thursday evening so that they get it on Friday. I think the deadline is Monday but dont want to risk being late.

 

Just another point. The deadline for HSBC to respond to the CPR31.14 request has passed (BTW i have asked for "True Copies of all bank statements in the 31.14 as well as the SAR" ) - i read the 31.15 as you suggested do i send that now even though i have sent the SAR or do i wait for the Court to order them to produce the docs.

 

I have read on another thread about CPR 31.14 only comes into force if a doc is mentioned in the POC which there is not in my case also about sending an Application Notice if the Claimant totally ignores the CPR31.14 request see link posts 58 & 59.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage/page8

 

So then, instead of the 31.15 CPR Should I consider sending this N244 form requesting the court to order HSBC to produce the docs or wait until later this form will cost me £75

 

BTW - I dont think i mentioned previuosly that do not have the account that is in question aa HSBC withdrew it because i opened an account elswhere and moved everything to the new account around about the time that the default was put on my credit file. It was just left there with the overdraft over its limit made up of charges .I guess once they realised then they defaulted me although no default notice was served as i thought they couldnt do that whilst the charges were being disputed.

 

I am annoyed because i asked them about any default notices and they were very vague.

 

The other thing also is that at the time i started the claim for unfair charges i was having financial hardship but recently my situation has improved. hoping that it doesnt affect this defence at all.

 

DR

2nd draft Defence.pdf

[emandcole]

Will have a squizz in the morning but I suspect you'd have done just fine.

[emandcole]

Reads beautifully, short, snappy and concise. Pendering feedback from others it's good to go.

[dominorally]

Reads beautifully, short, snappy and concise. Pendering feedback from others it's good to go.

 

Phew!! thats great emandcole - your help so far has been brilliant i would never have got to this point i dont think.

 

Thanks for taking the time to help out its much appreciated.

 

 

I assume once this is filed i will hear from the court about what happens next and i will have to revise my defence based on what HSBC do?

 

DR

[emandcole]

Pretty much, the balls in their court now so we'll see what happens. As for the help you're welcome, credit to you though for making it easy to be helped...makes a big difference!

[dominorally]

Ok Filed defence online last night so court should receive today. Still not had a responce to CPR request though.

 

Should i send the 31.15 now or do i wait for the court to order them to produce the documents ??

 

Also gone ahead and complained to the FOS online.

[dominorally]

Ok Filed defence online last night so court should receive today. Still not had a responce to CPR request though.

 

Should i send the 31.15 now or do i wait for the court to order them to produce the documents ??

 

Also gone ahead and complained to the FOS online.

[dominorally]

Ok Filed defence online last night so court should receive today. Still not had a responce to CPR request though.

 

Should i send the 31.15 now or do i wait for the court to order them to produce the documents ??

 

Also gone ahead and complained to the FOS online.

 

 

Emandcole,

 

I still havnt had any response to the 31.14 request from DG or HSBC

 

do you think i should be sending the CPR31.15 now or would it be the part 18 that i should use? or do i wait??

 

I havnt had any response from the Court either. Should i ??

 

although i filed the embarrassed defence on 23rd i am now not sure what to expect.

 

Any help is gratefully received so that i am ready to ammend my defence when the time comes.

 

DR

[emandcole]

You might as well send the 31.15, I expect they'll ignore that as well but helps you later on as you can show they've been obstructive. The court will notify you as and when, as long as you've complied with dates and know all was received you should focus on the claimant and getting what you need from them.

[dominorally]

You might as well send the 31.15, I expect they'll ignore that as well but helps you later on as you can show they've been obstructive. The court will notify you as and when, as long as you've complied with dates and know all was received you should focus on the claimant and getting what you need from them.

 

Letter from Northampton Court today which reads as follows :-

 

Case Number XXXXXXX

 

HSBC V Mr XXXX XXXXX

 

I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimants Solocitor). The Claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

 

Where he wishes to proceed,the claimant must contact the court within 28days after receiving a copy of your defence. After that period has elapsed,the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay.

 

I guess this is a standard reply ie HSBC will not be contacting me to settle 'informally'

How will i know the date when HSBC got a copy of my defence?

I would like to know as I will then know when the 28 days are up although I am sure they will proceed prior to that.

 

I was wondering that as there are no specific docs referred to in the POC that HSBC will say the CPR requestes are not valid. What do you think?

I know i cant do much until HSBC produce the docs they are going to rely on but i want to give myself enough time to really understand the defence i need to give.

DR

 

 

[emandcole]

Standard letter yes. HSBC are free to contact you at any time if they wish to mediate so don't rule this out, however given the fact that HSBC is a machine it's probably not very likely but you never know, depends on what they have and how they perceive you given your defence.

 

As for knowing when they received a copy of your defence you could try ringing the court, they'd maybe give you an idea but not sure of any 'official' way of doing this.

 

They may well say the CPR requests are invalid, however you have a basic right to obtain sight of the documents they will rely on and until they do this you are well within your rights to offer no more than the response you've already submitted.

 

Up until a track has been allocated these requests are perfectly valid however the lack of definitive reference to paperwork relied upon does mean the actual matter of disclosure hasn't really happened in full. I suspect HSBC use this sort of POC a lot, it allows them to be vague about the manner of the debt and this is not accidental.

 

Irrespective of this initial difficulty your response made it quite clear to the court that you needed X, Y and Z and you requested the claim be stayed if the court did not order the claimant to respond.

 

If you need to force their hand you can do this. Maybe give them a touch longer to respond now your defence is in and they can see what you've requested, if they still don't provide perhaps after a week or so then send a letter threatening an application will be made to the court if they don't voluntarily supply them.

 

This will help show the court that you are actively seeking resolution and if the claimant starts mucking about and dithering it won't go down very well.

 

You've done what is expected of you, let's see what the bank does next - you never know, they may not wish to proceed if the paperwork you are requesting doesn't exist. For every 25 claims they make of this nature maybe 1 person will know what's what and put them to strict proof. Law of averages might be on your side, we'll see.

Edited September 29, 2010 by emandcole