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

[teeze666]

CitizenB

 

Caught me just in time. I'll quickly amend and post. Thanks for the template.

[citizenB]

Excellent - I forgot that we did have a specific CPR letter for current accounts and my apologies for linking you to the general request in the first place.

[teeze666]

No problem at all. You've already more than helped.

[teeze666]

CitizenB,

 

So now that I've sent the CPR request (next day signed for), what can i do to be proactive about the next step? I really don't want to sit twiddling my thumbs! By my reckoning Restons should respond by the 13th and I will need to submit my defence online by the 15th. Any advice?

[citizenB]

I will leave a message for andyorch and he should be able to advise what your next move is

[citizenB]

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?

 

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.

 

 

I am not quite sure what you are saying here.

 

First statement from HSBC that no credits were going to the account, but they you say that money was going into it ? Have you statements showing these payments from your employer and why did the HSBC lady get it so wrong ?

[teeze666]

Hi Citizen,

 

Apologies for the late reply my brothers jus had a new arrivals so been away visiting.

 

Anyway, to the matter at hand...

 

The woman on the phone at HSBC had told me that she could not see any credits into the account. However, after I thought about it for a while I must have been having my salary paid into HSBC in 2010 as this was when I opened a new account with another bank and had my salary paid into that instead. I don't know why she got it so wrong!? Therefore, I cannot see why it will be SB'd. I do not have copies of my statements and can't access them online. I haven't SAR'd HSBC at this point - is it worth doing that now.

 

Is it also worthy of note that the account numbers referred to on the POC is not the same as my HSBC account number.

[citizenB]

I think it would be too late to rely on an SAR arriving in time for this claim, although it would do no harm for you to have that information.

 

Ok.. so the account number on the claim form is different to the overdraft ? I wonder why that is?

 

The first letter you received from Marlin saying they had been assigned the account - have they mentioned the HSBC account number on that, then subsequently changed it to a reference of their own ? Can you check please.

 

If you don't recognise the account number and HSBC have said that no monies were paid into the account for over 6 years, then I think this needs to be investigated a bit more. I will see what andyorch has to say.

[teeze666]

Citizen,

 

I've just had a look through all the letters I have. There is no mention of the correct HSBC account number on any correspondence from them. In addition when Marlin sent me the "Change of Agent Notice" the letter only stated the Marlin Reference.

 

Just to be sure, I've double checked the account number it is definitely not the one shown on the POC or any of the correspondence.

[citizenB]

Citizen,

 

I've just had a look through all the letters I have. There is no mention of the correct HSBC account number on any correspondence from them. In addition when Marlin sent me the "Change of Agent Notice" the letter only stated the Marlin Reference.

 

Just to be sure, I've double checked the account number it is definitely not the one shown on the POC or any of the correspondence.

 

 

So in theory, you don't actually know if they have the right account ?

[teeze666]

Thats a pretty accurate description of the situation Citizen. I have sent several letters now (details earlier in the thread) nothing has come back as yet from Restons confirming anything to me.

[citizenB]

I wonder if there is anyway you can obtain a statement of account from HSBC showing the last entry ?

 

Did you take the name of the person you spoke to at HSBC ?

[teeze666]

I don't think i noted the name of the woman on the phone, I'll have to go through my notes when I get back home.

 

I could go to the branch and see what they say about the account. Would that be a good idea? Alternatively I could phone them up again and go through the process of having them search for when the last entry was and what the amount was for? As I said earlier in the thread there have been some payments into the account, but i suspect that this is returned charges as they all seem to be for £25 according to my credit report - this was on the 06/05/2010. The account is also shown as settled though the same amount is shown against a default account with Marlin.

 

I'm getting very confused by all this. Restons should respond to my CRP request by Saturday which will hopefully shed some light on all this but I'm not holding my breath on them providing anything. I have to have a defence by Monday, and I am concerned that I will not be able to enter anything due to lack of information What will my defence be if i do not have any of the information?

[citizenB]

Yes, if you can get into the branch and ask them if they could print off the last statement on the account for you. That would be good.

 

If Restons do not reply to your CPR and we suspect they wont, then it is not a major worry. You will simply defend on the basis of the facts that you do have.

 

1: You don't recognise the account details

2: They have not established their claim.

3: And this is assuming HSBC are able to provide information.. It is very likely any account is statute barred

[teeze666]

So, as suspected no information has been provided in relation to the CPR request and the time limit has expired. I have to enter my defence tomorrow. Can anyone advise as to what i need to say? Citizen has given me the low down on what it will basically amount to but how do i word it. Also, HSBC haven't confirmed the statement so I cannot say that the account is statute barred. Any help greatly appreciated!

[citizenB]

Hold tight.. there was a defence posted for a similar situation on another thread.. I will go and track it down for you.

[citizenB]

*** THIS IS AN EXAMPLE ONLY - YOU MUST AMEND WHERE NECESSARY TO SUIT YOUR PARTICULAR CIRCUMSTANCES **

 

 

I would go with something like this:

 

 

 

1.This claim is neither admitted nor denied with regards to the Defendant entering in to an Agreement or contract referred to in the Particulars of Claim. The Defendant has no recollection of the alleged debt. The Claimant has yet to disclose any Agreement or contract in response to the Defendant's CPR 31.14 Request. The Defendant is put to strict proof as to the existence, execution and terms of any alleged Agreement or contract.

 

 

2. The Defendant contends that any claim the Claimant might have is statute barred pursuant to section 5 of the Limitation Act 1980. In excess of 6 years have elapsed since the date on which any cause of action accrued to the benefit of the Claimant.

 

 

3. The Particulars of Claim are 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 or contract 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;

 

 

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

 

 

5. On the alternative, as 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. The Defendant has no recollection of receiving a notice of assignment.

 

 

6. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that the Claimant is in default of a request for a copy of the executed agreement under Section 78 of the Act of the Consumer Credit Act 1974.

 

 

7. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6.

 

 

8. 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.

 

 

 

 

 

 

 

 

Credit to andyorch, this is adapted from one of his Defences in another thread.

 

 

 

 

 

Also make a s78 CCA request if you haven't already.

 

I will also ask someone to look in on you.. when is the defence due.. today ?

Edited July 15, 2013 by citizenB

[steampowered]

I think that's fine. The only things I might change, is that you should only make definitive statements like saying that the cause of action is more than six years or that you have no recollection of receiving a notice of assignment if you are fairly sure that these things are true.

 

If you are unsure when the account was defaulted then it is better to use a caveat, for example in paragraph 2 you add something like "the Claimant has failed to provide any documents in support of its claim, and to the best of the Defendant's recollection any default is in excess of 6 years old". The legal effect is the same, it just helps you keep your credibility in case they manage to come up with documents showing the debt is not SB.

[teeze666]

Thanks citizen . I'll post a draft of what i intend to put in my defence shortly. Tomorrow is the deadline,but im going to get it in tonight. i'll keep you posted.

[citizenB]

Be guided also by steampowered's statement.

[teeze666]

A bit of help please, I've been trying for the past 3 hours to get on MCOL to input my defence and can't log in. I've had my pw and gov gateway number resent - still doesn't work! Tried ringing and also re-registering. no luck! has anyone else had this problem or know how to resolve am seriously stressing right now...

[citizenB]

Oh dear, no sorry I don't know. Someone else I have been helping has just entered a defence ok so I am not sure what the problem might be.

 

I am sure if you ring them first thing in the morning and explain they will be able to help you. Good thing you tried doing this early and are not right at the last minute.

[teeze666]

Managed to finally get on to the MCOL site (4 hours!) Anyway, defence submitted as per Citizens advice, with tweaks where appropriate. Lets see what happens next. Just for inf... I didn't make a counter claim for costs as I wasn't sure this was the right thing to do at this stage. If I am successful can I still claim for costs etc at a later timer - obviously any thing awarded will be going to CAG donation

[citizenB]

Well done for persevering. I wonder if the site was just very busy ?

 

If on receipt of your defence, they don't discontinue and put you to any expense, then I think you can claim costs.

[teeze666]

Quick update....

 

Acknowledgement of my defence received today from the court (dated 16th of July!).

 

 

The letter stated that the claimant has 28 days to respond once they have received a copy of my defence,

though the letter i have does not state when that is.

 

 

If there is no contact from the claimant with the court during this time then the claim will be stayed

and that the only action the claimant can take after this time is to apply to a judge for an order lifting the stay.

 

 

Sound normal?