Court Claim MKDP old HSBC debt***Claim Struck Out***

[citizenB]

There isn't an account - it was a credit card from way back - definitely - we think it was sent to us in 2000 or 2001? Not really sure because all the original papers are long gone! We only have the last statement sent just before we defaulted.

 

It is a credit card.. "account" !

 

The reason I ask the date you entered into this" contract", is because around 1998, HSBC for some strange reason sent out Credit cards along with Debit cards, but failed to obtain signed agreements. I don't know how long they did this for.

[factor59]

It is a credit card.. "account" !

 

The reason I ask the date you entered into this" contract", is because around 1998, HSBC for some strange reason sent out Credit cards along with Debit cards, but failed to obtain signed agreements. I don't know how long they did this for.

 

 

Sorry, my bad! Yes, of course, it is a credit card account - and we're really not sure when the thing was sent to us... it could have been '98 or '99 - neither of us recall signing any docs!

[AndyOrch]

Okay Andy, will do this tomorrow - is this the one where we need to send a £1 PO? I think we sent one of these off to HSBC for the other court thing that never came to fruition.

I think these MKDP people are chancing their arm?

 

Thats the one but head the request " I do not acknowledge any debt with your company "

[factor59]

Hi, today is the only day we have where we're both at home at the same time so think we ought to put the base of our defence together today.... can someone point us in the right direction. We think we can argue that the Plaintiff is requesting payment of an account we know nothing about - we had neither an overdraft or account agreement with them. Should we point out there was a credit card? Or should we wait for them to realise their mistake?

[AndyOrch]

Take a look through my posts Factor...I have provided defences for most of the threads I assist with.

 

Regards

 

Andy

[factor59]

Hi Andy

 

Have read through most of your posts and picked one we think is close to ours but just one quick question. All the way through this they are talking about a bank account facility. We only have credit card statements for this account. Therefore, do we state that we have no knowledge of an account for this amount and leave it at that or should we say that we acknowledge the credit card?

[AndyOrch]

The fact that they think its a current account can be used to your advantage ...however the defence must state what in reality it is...a court could take the view that your pleading is pedantic and frustrating their claim.

 

 

Post up the particulars and post up the defence you wish to use and we can tweak it for final submission.

 

Couple of points I cant recall you have requested a copy of the agreement that relates to the CC ?

 

Have you had a response?

 

Do they still insist its an overdraft?

 

Regards

 

Andy

[factor59]

Hi Andy

 

This is what we have put together... if you get ten minutes spare (we noticed how busy you are!) we would be grateful for your comments/input? Thank you

 

P.O.C

 

1) The claimant claims the sum of xxxxxxx being monies due from the defendant(s) to HSBC Bank Plc under a bank account facility regulated by the Consumer Credit Act 1974 and assigned to the Claimant on xx/xx/2011.

 

2) The Defendant(s) account number was xxxxxxxxxxxx. It was a term of the bank account that any debit balance would be repayable in full on demand.

 

3) The defendant has failed to make payment as required by the statutory default notice served by HSBC Bank Plc The claimant claims the sum of xxxxxxxx and costs. The claimant has complied as far as necessary with the pre-action conduct practice direction.

 

Defence

 

Paragraph 1:

 

The Claimant, has stated that the Defendant held a bank account facility with HSBC Bank. The Defendant denies this as she never applied for a bank account with an overdraft facility from HSBC Bank.

 

The Defendant is not aware of or has ever been informed of any bank account that she held with HSBC Bank with an overdraft facility.

 

The Defendant. therefore, puts the Claimant to strict proof of;

a. 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;

b. 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 Defendant;

c. Where no such agreement can be provided, copies of original documentation sent to the Defendant that complies with the Office of Fair Trading 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)

 

The Defendant denies that she is liable to the Claimant as alleged in the demand at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable.

 

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied. That is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

The defendant requires sight of the Notice of Assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. The reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents, the defendant notes that if there are errors in the assignment it may be rendered ineffectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

The defendant has never received any Notices of Assignment according in all respects with s136 of the Law of Property Act 1925

 

The Defendant respectfully submits to the court that steps to ensure service of a Notice of Assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

Since the claimant explicitly states the notices were “served” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

It is noted that the claimant has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

The Defendant did not receive any Notices of Assignment in the format prescribed by law and served in the prescribed manner from the respondent, and she has asked the other members of her family if they signed for such a document; they have assured her that they did not.

 

Paragraph 2

 

The Defendant has never received any correspondence regarding said account from HSBC or the Claimant.

 

Paragraph 3

The Defendant has never been informed or been requested to make any payments. The Defendant has never received a Default Notice from either party.

 

On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx for a copy of the bank account agreement, default notice, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim. This was signed for by the claimant on xxxxxxx. The claimant has yet to comply.

 

Further, by reason of the fact that the Claimant was sent a Section 77 (6) CCA 1974 request dated xxxxxxx and signed for by the claimant on xxxxxxxx the Claimant has yet to comply with this request and until such time the Agreement cannot be enforced against the Defendant without an order of the Court, until such time they comply with the request

 

It is the Defendant’s contention that the claimant has acted this way to frustrate and confuse the submission date to enable themselves to attain a judgment by default.

 

Notwithstanding the above is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

Until such time the Claimant can comply with the Defendant’s request for a copy of the agreement/Default Notice it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[factor59]

The fact that they think its a current account can be used to your advantage ...however the defence must state what in reality it is...a court could take the view that your pleading is pedantic and frustrating their claim.

 

 

Post up the particulars and post up the defence you wish to use and we can tweak it for final submission. - see above

 

Couple of points I cant recall you have requested a copy of the agreement that relates to the CC ? - request sent on 7/11 and received by them - no response as yet

 

Have you had a response?

 

Do they still insist its an overdraft? probably

 

Regards

 

Andy

 

Hi Andy - I've answered next to your questions... Thank you

[AndyOrch]

Particulars of Claim :-

 

1) The claimant claims the sum of xxxxxxx being monies due from the defendant(s) to HSBCicon Bank Plc under a bank account facility regulated by the Consumer Credit Act 1974 and assigned to the Claimant on xx/xx/2011.

 

2) The Defendant(s) account number was xxxxxxxxxxxx. It was a term of the bank account that any debit balance would be repayable in full on demand.

 

3) The defendant has failed to make payment as required by the statutory default notice served by HSBC Bank Plc The claimant claims the sum of xxxxxxxx and costs. The claimant has complied as far as necessary with the pre-action conduct practice direction.

 

#####Defence#####

 

1. Paragraph 1 is denied I have never had or applied for a bank account with an overdraft facility from HSBC Bank.

 

2 .Paragraph 2 is denied I have never had or applied for a bank account with an overdraft facility from HSBC Bank.

 

3. Paragraph 3 is denied HSBC have never served a Default Notice, I have never had or applied for a bank account with an overdraft facility from HSBC Bank.

 

Further to the above it is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with HSBC; and

(b) show Notice served under Sections 76(1) and 98(1) of the CCA1974

© show how the Defendant has reached the amount claimed for; and

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

Thats all you need for now you can retain the above for a Witness Statement ....should it get that far.Copy and paste into MCOL and print your receipt as proof of submission.

 

Regards

 

Andy

[factor59]

Thank you so much for this - yours is very succinct and to the point! We'll get this posted into MCOL and wait and see what happens next?

[factor59]

Good morning and hope everyone had a decent Christmas...we spent ours at home and without fuss. We received a big envelope and hoped it was the reply to our CPR request for more information but it wasn't; we have received absolutely no replies from the solicitors or HSBC. What we have received is Directions Questionnaire and Draft Directions from MKDP and a blank set that we assume we have to fill in. It says it has to be filed by 6th January.

We have read through the one MKDP have filled in and they have still not provided any more info.

 

Can anyone give us a bit more help please?

[AndyOrch]

Its quite simple to complete using the guide provided...which Track are you on SCT/FT? N180 or N181?

[factor59]

HI Andy and thank you for the reply - the form says its N181 FT! They have ticked the box that says they want to stay for one month and try to settle the matter, but they haven't bothered sending us any more information or answer our CPR request!

 

We still don't know where they are getting the account number from, the amount or any of it, frankly. We did have a credit card but that was sent to us unsolicited way back and the account number they are quoting doesn't tally. Also, they're insisting it is a bank account averdraft!!

 

We'll fill in the form and send it off - is that all we do for now? Should we ask for a stay as well?

 

Thank you and HAPPY NEW YEAR TO ALL CAGGERS!

 

Just a side note, the reason we haven't been on here much is that my partner's mother is in a care home and extremely ill. She has been in and out of hospital and we're really just waiting for the end. Sad, but inevitable.

[factor59]

One more quick question - they have ticked the box about trying to settle the claim but we don't want to settle as we don't know what this is account is - do we therefore tick NO and what should we write in the box?

[factor59]

Just read through and it has been allocated to Multi Track. We found your Order for Draft Directions on one of the other threads and have copied this...we sent CPR 31.14 on 21/10/13 and S77/78 on 6th November and have had no response other than the copy of their N181.

[AndyOrch]

One more quick question - they have ticked the box about trying to settle the claim but we don't want to settle as we don't know what this is account is - do we therefore tick NO and what should we write in the box?

 

 

Yes you should tick and agree to mediation...its certainly not Multi Track though?

[factor59]

Hi Andy, sorry to be a pain - should we say yes to settle even though we don't know what it is? Seems like we're admitting we owe it? The letter says Multi

[AndyOrch]

Hi Andy, sorry to be a pain - should we say yes to settle even though we don't know what it is? Seems like we're admitting we owe it?

 

 

No your not.... it means you are open to mediation to try to resolve this whether you owe the debt or not.

Unless you are a 1000% sure its not yours and its case of mistaken identity then yes you can tick no.

[factor59]

Okay, thank you for being so helpful. You really are a Star!

[Ganymede]

Yes you should tick and agree to mediation...its certainly not Multi Track though.

 

 

 

The claim is for over £25,000.00 Andy so the multi track would be appropriate.

 

 

Edit: I meant "would be appropriate" sorry. Lousy predictive text.

Edited January 2, 2014 by Ganymede

[factor59]

The Notice of Proposed Allocation to the Multi Track is what is headed up on the letter (form N149C) that came with the N181 for us to fill in and file by 6th January.

 

We also received a copy from MKDP and they have attached a load of stuff on the back saying the Judge has ordered things but there's no dates so not sure what that is? We are panicking a bit because we really are not too sure what we're doing. Mum-in-law is dying as we speak... that's stressful enough without having to worry about this as well! We also can't see how we're meant to go to Northampton Court... can we request a Court nearer to home? Feeling very scared and frustrated by this.

[rev.ian]

I cannot help you with the legal stuff but I do not think you will go to Northampton Court; it should be transferred to your local court. Northampton Court is basically just an administration office.

My thoughts are with you at this time.

[mjt2013]

The claim is for over £25,000.00 Andy so multi track wouldn't be appropriate.

 

Do you mean " would" Ganymede?

[Ganymede]

Do you mean " would" Ganymede?

 

Yes.

 

Sorry, I've edited my post.

 

I blame my mobile phone.