Restons (HSBC bank account) sold to marlins -Claim Form - poss statute barred - help with defence

[teeze666]

Hello, This is my first post here so forgive me if i don’t get it exactly right,

but using some of the threads I have read as examples of what is needed so I have tried to keep it concise.

 

I really could use some help please.

 

I have received a claim through the county court for an account that I had back in 2006 with HSBC.

 

The claimant is stated as Reston’s Solicitors acting on behalf of MARLIN EUROPE I.

 

I have submitted my AOS online and intend to defend the whole amount as I believe it is made up mostly of charges from when I was a student.

 

However, I’m at a loss as of what to do next in terms of preparing my defence and could use a bit of direction from the good folk on CAG.

I understand that a bit of background is necessary, so here goes...

 

According Experian the account was recorded as being in default in 2010.

I have not been in / had any contact with HSBC since 2008 given that I have lived at several addresses since then

and only registered at my current address on the electoral role last year (probably why this has now escalated!)

 

I have kept a copy of all the correspondence received since 2010.

 

Chronology of

20/03/2011 MOORCROFT DEBT RECOVERY LTD - Discount offer letter (I did not respond)

17/06/2011 WESTCOT - Door Step Notice Collection Letter (I did not respond. They did not show up)

Jan 2013 HSBC- sent a letter saying MARLIN FINANCIAL SERVICES had been passed the account (I did not respond)

12/03/2013 MARLIN FINANCIAL SERVICES – “please contact us to discuss repayment” (I did not respond)

25/03/2013 MARLIN FINANCIAL SERVICES – “reminder” (I did not respond)

05/05/2013 MARLIN FINANCIAL SERVICES - “we’re going to get the solicitors involved” (I did not respond)

08/05/2013 – MARLIN FINANCIAL SERVICES – Notice of Change of Agent (I did not respond)

10/05/2013 – RESTON SOLICITORS – “you have until the 24th of May or we will commence action” (I responded, see below)

 

After reading some threads on the CAG forums the sensible in my view was to request a copy of the original credit agreement.

I sent a letter on 17th May 2013 to Reston solicitors using a template from CAG and asking them to provide me with a true copy of the credit agreement

und CCA 1974 stating; s.78(1), s.77(6), s.175, and s.189.

 

I also drew their attention to s5(2), 3(b), 6 and 7 of the CPUTR (2008).

 

I included a postal order for £1 and sent it by recorded delivery (I have all of these)

and I did not sign the letter as I have heard they can use your signature on other documents.

 

On the 20th of May Restons responded, returning my payment and stating that they could not process my request without my signature.

 

I then responded on 22nd of May saying that there was no legal requirement to provide a signature

and that my original request still stands and that I would expect a response by the 3rd of June in line with their legal obligation under my original request.

 

I included the returned postal order and a copy of the original letter. Again, this was sent by recorded delivery.

 

Restons then responded on the 3rd of June, once more stating that they would not acknowledge receipt of my request without a signature. They also returned my Postal Order.

 

A bit of further reading on the CAG threads seemed to suggest that I had done the right thing for now and that I should sit on it at this point... so I did.

 

Then on the 18/06/2013 a letter arrived at my old address (I have now changed address but old house mate passed it on to me – thank god!)

with the County Court Claim.

 

The POC on the claim form states:

 

“The Claimant Claims payment of the overdue balance due from Defendant(s) under a contract between the Defendant(s) a

nd HSBC Bank Plc dated on or about 26/07/2006 and assigned to the claimant on 20/02/2013 in the sum of £3212.91

 

PARTICULARS a/c:- (account number) which i don’t recognise.

DATE: 08/05/2013

ITEM: Default Balance

VALUE:£3212.91

Post Refrl Cr NIL

 

No other documents were included other than what looks to be the standard Claim documents.

 

I have submitted my Acknowledgement of Service on line, as I said earlier, now I need some help with how to go about;

 

A) Getting the information I need in order to put a reasonable defence together i.e. CCA and details of the account history

including a detailed breakdown of charges on the account and how these have been calculated.

Especially given the refusal to provide it in the past (see above); and

 

B) What are the next steps for me to do to ensure that I am fully equipped to defend this in the County Court?

 

I’d like to also thank everyone who has added info on this site in the past.

 

It has been invaluable and I would like to thank anyone in advance of any help/advice they can give me.

CHEERS!

 

I’ll keep this up to date and respond within a few hours of any posts

[dx100uk]

when was YOUR last payment on this 'account' and what type of account is it?

 

is this showing on your CRa file?

 

dx

[teeze666]

dx,

 

Glad you just asked that question!

 

on the 19th of June experian showed the account on my file as in default to the amount specified in the County Court Claim.

 

I've Just checked now and the account isn't even showing on my current credit file!

 

I even downloaded a previous CRA report to check - its definitely there up to the 19th of June!.

 

to answer your question (or not) my CRA file says it hasn't been serviced for about 4 years,

though I suspect it may actually be a bit longer than that.

 

I have phoned HSBC to ask for copies of statements - they were unable to access the account. .

 

Is there another way I can find out given that my previous attempts to obtain copies of statements have not been adhered to?

 

It is a current account.

[dx100uk]

so this indicates that the debt must have first been defaulted 6yrs ago

and has now, in-line with ICO guidelines, been removed on the defaults 6th birthday.

 

ok this does not mean the debt is gone.

 

but. it puts the reliance upon them to PROVING you HAVE made a payment within 6yrs

 

I am looking at statute barring here.

 

if you have not made a payment or use of this account in 6yrs

then its SB'd and that will be your defences.

 

have you ever SAR'd HSBC?

 

I think you indicate they have no CCA as its past 6yrs old

if this is the case , then HSBC could ONLY have been allowed to destroy the data if it WAS SB'd

 

hope you understand this.

 

dx

[teeze666]

So what I need to do is SAR HSBC?

 

 

Given the limited time constraint - the CC Claim was issued on the 13th June on the document so I will need the SAR info returned to me before the 15th July

(28 days after the 18th June) - is that enough time?

 

 

If i do not have the info from HSBC before the 15th

could I ask for an extension from the court?

 

 

In any case I will send it tomorrow morning recorded delivery.

 

Could it just be that Experian have messed up this time?

 

 

They have done in the past with things like my address.

[teeze666]

dx

 

One other thing - should i keep my signature off the SAR? Having read the horror stories of banks etc forging signatures...

[dx100uk]

no the only letter you never sign is the CCA request

 

yes I know time is tight by worth a try.

 

don't forget noddle cra below [ they often have data where others don't but it sometimes old or slow]

but its free!

 

I would expect the debt was defaulted more than 6yrs ago though hence it don't show

 

now there is no harm in ringing HSBC and asking when was your last in/out!

 

might work too

 

dx

[teeze666]

dx,

 

once again, thanks. Will definitely give them a call this morning.

 

Just on the point about my credit file changes (for info)... I Spoke with Experian this morning. They said that it was removed by HSBC themselves this week. Could this be a tactic of some kind? As I understand it MARLIN (Reston's) cannot file another default on my credit report for the same debt. Is that correct?

[dx100uk]

yes correct.

 

so in all that tallies with the 6yrs default removal

 

the ICO say this:

All references to a defaulted debt must be removed from your credit files after 6 years has passed from date of default,

whether paid off or not.

This is so that someone who continues paying something even after 6 years from default should not be at a disadvantage

to someone who pays nothing after default and ends up with a clean file after 6 years.

 

dx

[teeze666]

when was YOUR last payment on this 'account' and what type of account is it?

 

is this showing on your CRa file?

 

dx

 

Just spoke to a very helpful woman at HSBC who checked all my previous statements for the past six years.

 

She has said that there has been no credits on my account since 1st June 2006 other than those which were recredits by HSBC.

 

The recredits were £25 which makes me think that HSBC have refunded charges on my account - these occurred last year.

 

I have sent an SAR this morning by recorded delivery in any case , but on the face of it, if I haven't credited the account since June 2006,

does this mean that the account is actually statute barred?

[teeze666]

yes correct.

 

so in all that tallies with the 6yrs default removal

 

the ICO say this:

All references to a defaulted debt must be removed from your credit files after 6 years has passed from date of default,

whether paid off or not.

This is so that someone who continues paying something even after 6 years from default should not be at a disadvantage

to someone who pays nothing after default and ends up with a clean file after 6 years.

 

dx

 

 

dx,

 

SO can I use the fact that the account is possibly statute barred (I will look into it further) as a defence in the county court claim against me?

[dx100uk]

so that confirms things it IS statute barred

 

their [HSBC] payment does not change things.

 

so there are many threads here in the legal forum already

regarding the SB defence.

 

so i'll let you and the legal bods here get on with that.

 

as such, legal is not my game

 

though i'm good at finding the facts out....

 

glad to help.

 

I have slightly amended your thread title to reflect what you need help on.

 

dx

[teeze666]

Legend! Tanks again dx. I'll have a look at the other threads. Hope in the future i can do the same for someone else!

Edited June 22, 2013 by teeze666

[teeze666]

Right,

 

So it turns out its not Statute barred. I did some maths with my payments from my employer and they must have been going into the account in 2008. So now where do i stand? Help!

 

I've filed my AOS on MCOL but have not prepared a defence of any kind as yet. CCA has been sent twice to RESTONS SOLICITORS and they have sent back twice saying that they need my signature. What is the next course of action? Any advice at this stage will be more than welcome as I'm getting quite nervous.

[citizenB]

Can you let me know the date of issue on the claim form please ?

[citizenB]

Is this a current account, overdraft ?

[citizenB]

 

The POC on the claim form states:

 

“The Claimant Claims payment of the overdue balance due from Defendant(s) under a contract between the Defendant(s)

and HSBC Bank Plc dated on or about 26/07/2006 and assigned to the claimant on 20/02/2013 in the sum of £3212.91

 

PARTICULARS a/c:- (account number) which I don’t recognise.

DATE: 08/05/2013

ITEM: Default Balance

VALUE:£3212.91

Post Refrl Cr NIL

 

 

Have you previously received any contact from the claimant ?

[citizenB]

You have a timeline to adhere to.

 

Date of issue ?? + 5 days for service = ??? + 14 days to acknowledge = ??? + 14 days to submit defence.

 

You should have sent a CPR request to Restons in which you could have requested the following items. There will be no agreement if this is a current account /overdraft.

 

Facility letter

Notice of Assignment

Statement of Account showing how the amount claimed has been assessed.

 

Was the bank aware of your new address ?

[citizenB]

The CPR 31.14 request is in the first post of the link below.

 

You need to read it carefully and amend where necessary. Send it recorded or Special Delivery .

 

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

[teeze666]

Hi CitizenB

 

Yes 10/05/2013 i received a letter from restons saying that they had been instructed by Marlin to claim immediate payment.

 

I did receive a letter from Marlin Europe 1 Ltd on 08/05/3013 titled NOTICE OF CHANGE OF AGENT which said the following "Since you have not agreed a payment plan with us, the creditor of your account MARLIN EUROPE 1 LIMITED, has decided to appoint Restons solicitors to take recovery activity from us. Restons solicitors will be in touch shortly and you should engage with them to agree a payment arrangement on your account.

 

Since then I have never had any other correspondence from Reston's other than the responses refusing my CCA requests.

[citizenB]

So they were aware of your new address when they issued the claim to a previous address ??

[teeze666]

You have a timeline to adhere to.

 

Date of issue ?? + 5 days for service = ??? + 14 days to acknowledge = ??? + 14 days to submit defence.

 

You should have sent a CPR request to Restons in which you could have requested the following items. There will be no agreement if this is a current account /overdraft.

 

Facility letter

Notice of Assignment

Statement of Account showing how the amount claimed has been assessed.

 

Was the bank aware of your new address ?

 

Thanks CitizenB,

 

Yes the bank was aware of my address

 

My defence has to be submitted by 16th of July by my reckoning therefore I still have time to request the CPR given that Restons mus supply me with the information within 7 days, or am i going to struggle with this in your opinion? . I will carefully read through the letter and send by recorded (next day signed for) delivery tomorrow. This is a current account. If there is no agreement, as you say in your post, does this mean that my CCA request is irrelevant?

Edited July 3, 2013 by teeze666
additional info

[teeze666]

CitizenB,

 

Apologies a bit of duff information there. They did not know my new address I only moved last month. However, when I completed the AOS my contact details are my new address. Restons do not have my new address but I will include this on the letter i send tomorrow.

[teeze666]

Here is a draft of the letter that I intend to send (it will include obvious omissions). Does it look okay to you.

 

Dear Sir,

 

Re: MARLIN EUROPE 1 LIMITED v XXXXX Case No:3XXX

CPR 31.14 Request

 

On 18th of June 2013 I received the Claim Form in this case issued by you out of the NORTHAMPTON (CCBC) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored CAN I INCLUDE THIS PARAGRAPH GIVEN MY PREVIOUS REQUESTS FOR CCA – ARE THEY RELEVANT FOR A CURRENT ACCOUNT??

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your Particulars of Claim:

 

1 the facility letter

 

2 the assignment

 

3 the statement of account showing how the amount claimed has been assessed

 

Although your claim is for a sum which is not more than £10,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[citizenB]

tezee, if you haven't already sent the above.. then use the one below.

 

 

 

 

Dear Sir or Madam,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest and counter claim all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1: The agreement/ overdraft Facility confirmation and Terms and Conditions from that date. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2: The Demand/Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974

 

3: Notices of Sums in Arrears under running account credit CCA2006 sec 86C

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence as required under CPR15.5.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully