HSBC county court letter

[Andyorch]

Then you must submit your defence today 22nd April.

[tomm0]

thanks, any idea up until what time I have to submit my defence please?

[Andyorch]

Midnight tonight.

[tomm0]

Thanks, I am defending this on the basis that the T&C's supplied as part of the Reconstituted Credit Agreement are not the ones originally supplied and that HSBC/MDKP have failed to produce a properly reconstituted document.

 

 

Particulars of defence being that:

 

 

- The reconstituted agreement is a Midland Bank agreement supplied with HSBC T&C's so they have failed to produce a properly reconstituted document.

 

 

- I have received 2 differing/conflicting credit agreements.

 

 

Any other thoughts/advice/guidance most welcome.

 

 

Thanks

[Andyorch]

Needs a lot more work...the above is not CPR compliant and will be rejected by the court.

[tomm0]

With my limited (no) legal knowledge I'm kind of at a loss on how to proceed any further with this, other than paying up.

 

 

Who/what should I speak with?

[Andyorch]

I think the problem you are really faced with tomm0 is leaving it to the last day with no time to research other threads or prepare...you have had 14 days since acknowledge to get this ready.

 

The basis of your defence is quite good ...just needs tweaking and making compliant.

[tomm0]

I've done a fair bit of research, however I have been away with work which has made it difficult to spend as much time on this as I would have liked.

 

 

Would you be willing to assist with the necessary tweaking? Quite happy to pay for your time.

[Andyorch]

I will assist by all means you find a similar draft and Ill tweak it.....the Forum is happy accepts donations if you feel we have assisted.

 

Regards

 

Andy

[Andyorch]

Lets bring the particulars forward as a starter :- Agreement inception 1999 15 years old

 

1.The claimant claims the sun of 3,816.60 being the monies due from the defandant to the claimant under a regulated agreement originally between the defendant and HSBC Bank Plc.

 

2.The defendants account number was ################ and was assigned to the claimant on 08/12/2011, notice has been provided to the defendant.

 

3.The defendant has failed to make payments in accordance with the agreement and a default notice has been server pursuant to the consumer credit act 1974.

 

The claimant claims the sum of 3,816.60 and costs. The claimant has compiled, as far as is necessary, with the pre-action conduct practice direction.

 

 

Amount claimed £3816.60

Court fee £85.00

Total amount £3901.60

[tomm0]

Ok thanks, I am having a further look/read now.#

 

 

Just re your later post.

 

 

1.The claimant claims the sun of 3,816.60 being the monies due from the defendant to the claimant under a regulated agreement originally between the defendant and HSBC Bank

 

 

The agreement was originally between Midland Bank. So that's wrong straight up?

[Andyorch]

Not really as they were taken over by HSBC and therefore inherit all existing business...but you can make it difficult for them to respond.

[tomm0]

Hi Andy,

 

 

First attempt at Defence. I need to check some dates when I get home this evening, any feedback in the meantime please?

 

The particulars of claim read as follows:

 

1.The claimant claims the sum of 3,816.00 being monies due from the Defendant to the Claimant under a regulated agreement original between the Defendant and HSBC Bank Plc.

2. The Defendants account number was ################ and was assigned to the Claimant on 08/12/2011, notice of this has been provided to the Defendant.

 

3. The Defendant failed to make payments in accordance with the terms of the agreement and a default notice has been server pursuant to the Consumer Credit Act 1974.

 

And the claimant claims

 

1. The sum of 3,816.00 and costs.

2. The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction

 

Defence

 

1. It is denied that the Defendant entered in to any such regulated agreement with HSBC Bank Plc.

2. I can neither confirm nor deny the Claimant’s assertion the debt was assigned to the Claimant as I have no evidence of this.

3. The Claimant has provided what is claimed to be a reconstituted agreement. If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms. Also, The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. I put the Claimant to strict proof that a true copy of the original agreement cited exists.

4. The Claimant has not provided the Defendant with a copy of the original agreement along with the terms. The agreement provided is a Midland Bank Plc agreement. The terms provided are HSBC Bank Plc terms. Therefore the defendant notes it is impossible that the terms provided are the original terms of any such agreement.

The Request for Disclosure

1.On xx xxxxxx 2013 I made a request under s78 of the Consumer Credit Act 1974 for a true copy of a properly executed agreement. The Claimant failed to provide said documents and the alleged account entered in to default on the xth xxxxx 2009.

2. In response to the Claimants claim issued through the Northampton County Court, on the 10th April 2014 I lodged a CPR 31.14 request for copies of the Assignment Notice & Default Notice cited in the Particulars of Claim along with the Executed Agreement and which should have attached to or served with the POC.

3. To date the Claimant has failed to provide a copy of the alleged agreement referred to in the Particulars of Claim.

4. The court’s attention is drawn to the fact that without disclosure of the requested documentation pursuant to the Civil Procedure Rules, I have not yet had the opportunity to asses if the documentation which the Claimant claims to be relying upon to bring this action.

The Alleged Agreement

1. On 20th January 2014, I received a photocopy of an alleged reconstituted agreement which I believe the Claimant purports to be a valid and properly constituted agreement under the Consumer Credit Act 1974.

2. The alleged reconstituted agreement does not meet the strict requirements of Carey v HSBC. The reconstituted agreement makes reference to both Midland Bank Plc and HSBC Bank Plc.

3. On xx Jan 2009 I received a photocopy of a reconstituted agreement from HSBC Bank Plc. This alleged agreement differs from that provided by the Claimant referenced in point 1, above.

 

[Andyorch]

See you can do it:-)

 

But.........a little too in-depth at this stage,never show all your hand or you wont have any surprises for later in the process... here is one of mine have a go inserting snippets from the above...the core must include the reconstituted section 78 and why it is of no use for enforcement on a 15 year old debt.

 

 

 

Example :-

 

The particulars of claim read as follows:

 

1.The Claimant claims the sum of 5xx.xx being monies due from the Defendant to the Claimant under a regulated agreement originally between the Defendant and HSBCicon Bank Plc.

2.The Defendant's account number was 54xx xxxx xxxx xxxx and was assigned to the Claimant on xx/1x/2011, notice of this has been provided to the Defendant.

3.The Defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the consumer crediticon Act 1974.

 

4.The Claimant claims the sum of 5xx.xx and costs.

The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction.

 

Defence

 

Paragraph 1 is noted I have in the past had financial dealings with HSBC Bank PLC but deny any monies being due as alleged by the claimant MKDP LLP.

 

Paragraph 2 is denied I am unaware of any legal assignment between HSBC and MKDP LLP and the claimant is put to strict proof thereof.

 

Paragraph 3 denied the claimant has not provided a default notice as alleged, has failed to respond to a CPR request to verify any breach nor has it served any Notice of Sums in Arrears since their alleged assignment of 2011 and remains in default of my section 78 request dated xxxxxxxx.

 

Paragraph 4 is denied as yet the claimant has yet to provide any proof at all.

 

Therefore this claim is neither admitted nor denied with regards to the Defendant entering into an agreement referred to in the Particulars of Claim. The Claimant is put to strict proof as to the existence, execution and terms of any alleged agreement.

 

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

(d) show that they have served a Notice of Sums in Arrears

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

 

 

On receipt of this claim, I sent a CCA 1974, Section 78 request to the Claimant dated xxx xxxxxx xxxx. This was sent via recorded delivery and signed for on the xxx xxxxx xxxxx. The Claimant has yet to comply.

 

Furthermore, on the xxx xxxx xxxxx I requested copies of the documents referred to in the Claimant’s Particulars of Claim by way of a Civil Procedureicon Request 31, PD 14. This was also sent via recorded delivery and signed for on the xx xxxxx xxxxx. The Claimant has yet to respond.

 

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, 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.

 

Until such time the Claimant can comply with my request for a copy of the agreement and other documents relied upon in the Claimant’s Particulars of Claim, the Claimant is prevented from enforcing or requesting any relief as pursuant to the Consumer Credit Act 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.

[tomm0]

Noted, will give that a shot. Any thoughts as to which bits I should withhold at this stage?

 

 

thanks.

[Andyorch]

If you structure it as above you cover all bases for now and can go into detail further into the process.

[tomm0]

Done. Thanks for all your help thus far!

[tomm0]

Hi Andy,

 

 

It's also just occurred to me that this debt may be statute barred. I was defaulted 17/09/2009 which would mean I stopped paying around March 2009 (6 missed payments before a default?). I've checked on Noddle.co.uk but this only appears to go back to 2012. Any way I can check this properly?

 

 

Cheers,

[Old Cogger]

go back to the Noddle report and look to expand the payments data button usually listed beneath with the balance buttons, should take you back for a few years.

[tomm0]

Hmm, definitely only back to 2012, checked a couple of the other accounts/lenders and they do go back to the account start date. I guess this one only goes back to when MKDP took over the account....

[Andyorch]

Hi Andy,

 

 

It's also just occurred to me that this debt may be statute barred. I was defaulted 17/09/2009 which would mean I stopped paying around March 2009 (6 missed payments before a default?). I've checked on Noddle.co.uk but this only appears to go back to 2012. Any way I can check this properly?

 

 

Cheers,

 

Its a bit late now you should have investigated that before you submitted the defence.

[tomm0]

So after submitting the defence on 24/04/2014 this weekend I received a Notice of Proposed Allocation to the Small Claims Track with a Directions Questionnaire (this is even after I called the County Court Business Centre a few weeks ago and was advised the claim was stayed).

 

 

In the meantime I've heard nothing from the claimant.....

 

 

Where do I start with this? Questionnaire doesn't seem particularly complicated to fill out. What happens once this is returned?

 

 

Thanks,

Tom

[Andyorch]

Its transferred out of CCBC Northampton to your local county court ready for trial.