MKDP Claimform - Old HSBC Credit Card 'debt'

[Toots111]

In January, the above commenced court proceedings against me for a debt of £1,500.

I followed exactly the same proceedings as for the original claim,

ie., submitted the acknowledgement of service,

sent CPR31.14 and CCA letters, (proof of receipt obtained)

and submitted my 'embarrassed' defence within the allocated timescale.

 

As I never heard anything back from the claimant by way of a copy of the original credit agreement, DN etc, after 33 days,

I presumed this case would have been stayed by the court too.

 

 

Unfortunately, a couple of weeks ago, the court sent me a DQ.

I immediately phoned the court and was told that on day 29, the claimant contacted the court

to inform that they were still proceeding with the claim.

 

 

I explained to the court that I still had not received any response to my CCA and CPR requests,

but was advised that if that were still the case on the date the court hearing takes place,

I would have to raise this issue at that point.

 

I am currently awaiting a hearing date, with absolutely no idea of how I will be able to stand in a room full of people,

let alone try and defend myself.

I am totally terrified.

My queries to you, or anybody else you think would be able to help, are;

 

1) I did not sign any of the requests I sent to the claimant, merely printed my name;

is there any chance that my requests for information can be classed as invalid due to the lack of my signature please?

 

2) Whenever I receive the hearing date, would it be a good idea to write to the judge in question,

explaining that as the claimant has never provided me with the documents requested,

I am unable to defend myself properly and therefore ask the judge to either strike the case out,

(I'm probably clutching at straws here), or to instruct the claimant that the case cannot proceed until such time as they provide me with the documents?

 

3) Am I correct in thinking that a debt is unenforceable unless a claimant has provided these documents?

What could I do if they produced the documents on the day of the hearing;

surely I could not be expected to decide/understand whether they were correct and legal within whatever time a judge allows for these types of case??

 

4) Do I HAVE to appear in court, or can I try and represent myself in writing,

outlining that as I have never received any response to my CCA/CPR31.14 requests,

I do not believe I can defend myself adequately and that the debt is unenforceable??

 

5) Are there any case laws I can quote regarding the claimant's failure to provide the documents, which may help my own case?

 

Any help/advice from will be extremely gratefully received.

I'm sure there will be other questions I should be asking,

and I should have been in touch earlier regarding this matter,

but I cope on a day to day basis with my health and only due to new medication

have I been able to think clearly enough to get as far as writing this

 

 

. Hoping it all makes sense.

 

Thank you in advance.

[AndyOrch]

If you give me the details of the claimant.

 

Regards

 

Andy

[Toots111]

Thank you Andy.

The claimant is MKDP LLP and the amount is £1560.77.

As per my earlier post today, I have formally requested all of the necessary documents from them, CCA and CPR31.14, in January of this year, but still have not received anything. I have submitted a DQ and am now waiting for a court date.

[AndyOrch]

If you could take a read of the following Toots and post anything you have not referred to already.... also a copy of the defence you submitted and the name of the original creditor would be helpful.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.

 

Regards

 

Andy

[Toots111]

POC;

The claimant claims the sum of £1561 being monies due from the Defendant to the Claimant

under a regulated agreement originally between the Defendant and HSBC bank PLC.

 

 

The Defendant's account number was................ and was assigned to the Claimant on ../3/2013,

notice of this has been provided to the Defendant.

 

 

The Defendant failed to make payments in accordance with the terms of the agreement

and a default notice has been served pursuant to the Consumer Credit Act 1974.

 

 

The Claimant claims the sum of £1561 and costs.

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

 

This is a credit card debt I believe.

I believe the account was opened in 2007 with HSBC and has maybe been passed/sold to various companies since then.

I do not believe I have ever received a Notice of Assignment or a Default Notice,

although I cannot be 100% sure of this.

I have not received any notices of ' Notice of Default sums'.

 

I ceased payments to the original creditor due to a change in financial circumstance and mental health problems.

I wrote to them about this and they eventually agreed to freeze the interest on the account

and allow me to pay a token monthly payment.

 

 

My circumstances then became worse some time later, due to my mental health

and I was unable even to meet the token payment,

which I again communicated to the lender in writing.

 

 

I provided them with income and expenditure sheets, payslips

and also proof of the medication I was taking for my mental health condition.

 

In January of this year, I received a claim form with the above POC.

 

 

I have strictly adhered to all timescales for entering my Acknowledgement of Service, 'embarrassed' defence etc.

 

In January I sent the Claimant a CCA request and also a CPR31.14 request,

neither of which have been responded to as yet.

 

 

I presumed the case had been stayed due to the Claimant not replying to my requests or to my defence,

but I was informed by the court that 29 days after my defence had been submitted,

the Claimant instructed the court that they wished to proceed with the claim.

 

I have now completed a DQ for both the court and the Claimant and have received the same back from the Claimant.

I am awaiting a date for the court hearing.

 

My first post outlines the burning questions I have, so any advice and help you can offer will be greatly appreciated Andy.

 

I'm not sure how to post the defence I submitted;

I have it on my computer, so should I be able to copy it and then just paste it onto this thread please??

(Also, I am very wary about allowing it to be seen on here, as the Claimant would automatically know it was mine.

Should I be worried about this please Andy??).

 

 

My defence was composed with help and guidance from yourself and this site.

 

Many thanks Andy.

 

P.S. Sorry Andy, but please can you tell me how to refresh the screen I'm looking at, as I never know whether you have replied or not?? Is it the F12 button, or something like that please?

[AndyOrch]

F5:wink:

[Toots111]

Thank you! It works!

 

I am very perturbed by the fact that I did not sign the CCA or the CPR letters I sent to the Claimant in January, I merely wrote my name in capitals. I did this on the strength that I read somewhere on here that unscrupulous DCAs can use signatures fraudulently. Could they use the fact that I didn't sign the letters as their legal response as to why they haven't sent me anything please? Should I re-send them now with a signature, or is it too late do you think? I understand that they have 28 days, (plus 5), to respond, but have no idea how long it is likely to be for the hearing.

 

I realise that I'm repeating one of the questions in my first post, sorry!

[AndyOrch]

There is no requirement to sign them...printed name will suffice.

[Toots111]

Cheers for that Andy. Not wanting to make a nuisance of myself, but will you be able to answer the other questions in my first post please, or do I need to make contact with somebody else? I'm not expecting immediate answers obviously, and am most grateful for any help or advice you give precious time to; I just don't know whether you will be responding to the other questions I raised and desperately need to understand whether I should just leave it with you, or find a way to try ask somebody else?

 

As always, in your debt, (no pun intended:|). Many thanks.

[AndyOrch]

1) I did not sign any of the requests I sent to the claimant, merely printed my name; is there any chance that my requests for information can be classed as invalid due to the lack of my signatureicon please? See above

 

2) Whenever I receive the hearing date, would it be a good idea to write to the judge in question, explaining that as the claimant has never provided me with the documents requested, I am unable to defend myself properly and therefore ask the judge to either strike the case out, (I'm probably clutching at straws here), or to instruct the claimant that the case cannot proceed until such time as they provide me with the documents? No the claimant will disclose at the correct stage which is Standard Disclosure after Witness Statements.

 

3) Am I correct in thinking that a debt is unenforceable unless a claimant has provided these documents? What could I do if they produced the documents on the day of the hearing; surely I could not be expected to decide/understand whether they were correct and legal within whatever time a judge allows for these types of case?? See above

 

4) Do I HAVE to appear in court, or can I try and represent myself in writing, outlining that as I have never received any response to my CCA/CPR31.14 requests, I do not believe I can defend myself adequately and that the debt is unenforceable?? Yes you have to appear in court whether they disclose or not you have submitted a defence

 

5) Are there any case laws I can quote regarding the claimant's failure to provide the documents, which may help my own case? There is none all claimants disclose at Standard Disclosure assuming you have put them to proof within your defence

 

Regards

 

Andy

[Toots111]

Thank you Andy. However, I am now totally confused on a number of points.

 

I have just read leaflet EX306 from HM Courts, in which it states that you do NOT have to attend a hearing; the court can be asked to deal with a claim in your absence, so long as you have written to the court with your evidence etc, no later than 7 days before the hearing date.

 

I have also extracted some comments from this website, which would appear to contradict your responses to me, (see below). I would be very grateful if you could explain to me why there is seemingly so much conflicting information. How do I know who's statements are correct, it's so very confusing?

 

If creditor has not complied with his duties under s.87(1) of the CCA 1974 (as amended), then, to put this matter simply, the creditor cannot proceed with his claim to enforce the same and so his claim must fail and be struck out/dismissed by the Court.

You as the Defendant must draw the Court's attention to the said provisions of the statute (CCA 1974 - as amended), refer the Court to the higher authorities handed down by the High Court and the Court of Appeal on the same and respectfully tell the District Judge in the lower Court that he cannot allow the Claimant to proceed to enforce the credit agreement in contravention of the foregoing.

 

 

 

There are authorities - such as Woodchester v Swain, Harrisson v Link and American Express v Brandon which all make reference to s.87(1) of CCA 1974 (as amemded) which all show that if creditor has failed to serve a valid statutory default notice, then he is not entitled to enforcement action which is based upon the same.

 

I have presented many respectful arguments over the years on this particular subject previous to the Link and American Express cases. Statute says what is says under s.87(1) CCA 1974 (as amended - or otherwise, meaning previous to the amendments), the Courts cannot and will not hand down a judgment that is in contravention of statute, it is up to the Defendant, in these particular type of proceedings - where the CCA applies, to direct the lower Courts and the District Judges who sit such cases to the statutory provisions of the CCA 1974 (as amended) - consumer law.

 

 

If DN(s) are invalid, the Claimant's action must fail, this, in my opinion would bring the credit agreement under the common law and, depending upon the circumstances of each case, the Court must decide who is the contract breaker, the extent of that breach, the extent both parties have engaged in discussion thereon, any agreements/novation to the original contract, the terms of such, whether each party has performed under any such novation/temporary agreements to the original contract, whether any Full and final settlement agreements have been made and entered into by the parties and whether any such settlement agreements suspend or extinguish the creditors'' rights under the original agreement.

 

 

If default notice - or default notices served are invalid, then creditor cannot proceed to enforcement action. s.87(1) of CCA 1974 (as amended) offers a complete defence against such a claim, if the defendant can show that enforcement action contravenes the said statute. See - American Express v Brandon Court Of Appeal Decision, further, simply refer to s.87(1) of CCA 1974 (as amended) for the provisions imposed upon the creditor before he can become entitled to enforce the credit agreement/or the amount claimed!

By the way, if DN is invalid, then enforcement action is invalid and must be struck out, this does not mean that the debt does not exist. As I have said earlier, depending on the circumstances upon which the creditor terminated the agreement, abandoned his obligations and demanded the full account balance claimed thereunder, you may have grounds to counter argue that the creditor is in fact the contract breaker and wrongdoer and that it is you who is in fact the innocent party in this matter.

 

The above would require you to have a great understanding of contract law and consumer law and would involve serous research by you on the same.

 

If DN is invalid, you can argue that creditor has no right to bring this action to enforce, the creditor may well just then discontinue and serve a valid DN on you, which if you fail to remedy, would lead to the creditor issuing another claim on the grounds of the valid DN, however, as I said, if creditor has terminated (issuing a claim against you is a clear indication that he has terminated), then the agreement can longer be live, therefore, if agreement is no longer live, the creditor would unilaterally reinstate the same in order to re-issue a valid DN, but the agreement is a bilateral agreement and your consent to reinstate and make live again would be required.

 

The CCA 1974 (as amended) s.87(1) is silent as regards the foregoing scenario!!

There are many more replies/statements of this ilk on here, so how does one know who is right/ may be right/ may be wrong please Andy? Obviously, when you're in the eye of the storm, you need to know exactly what is fact and confusion only adds to the terror you feel.

[AndyOrch]

" I have also extracted some comments from this website, which would appear to contradict your responses to me, (see below)."

 

I have not mentioned Default Notice,s nor have you asked:???:

 

Regards

 

Andy

[Toots111]

No, sorry, I appreciate that, but I was hoping for your thoughts on this matter too, which is why I included some information?

 

Also, what about the fact that the court leaflet states that you do not have to appear in court, whereas you state that you must attend?

 

The 'other comments' I included earlier also include information regarding s87(1) of CCA 1974, courts' rulings pertaining to this and the possible non-enforceability of a debt where a Claimant has failed to comply with their duties under same please?

 

Many thanks and sorry if my thoughts are muddled, but hopefully you can understand why I am so confused:|.

[AndyOrch]

" Also, what about the fact that the court leaflet states that you do not have to appear in court, whereas you state that you must attend?"

 

Have another look at EX306..that is with regards to preliminary hearings not the trial.I personally would advocate attending every hearing (if there are any) in support of a defence.

[Toots111]

Okay, I'll be able to do that this evening Andy.

 

Your thoughts on paragraphs 1 and 3 of my last post please, ie faulty DN's and a Claimant's non-compliance with s87(1) of CCA?

 

If a Claimant does not serve a copy of the original credit agreement/default notice/other requests made in CCA and CPR31.14 letters, prior to any hearing, is the Claimant at fault in this situation? If these documents only appear for the first time at a hearing, can a Defendant request an extension of time to peruse them/ have them certified? Why, when CCA 1974 says that a Claimant must produce the requested documents within 28 days of request, does this not cause a problem for them please??

[AndyOrch]

Yes Toots its all quite correct....whether a District Judge will entertain it is another question.I personally never base a defence on the lack of a DN:-

 

1.There is no requirement to retain hard copy.

2. They can prove from their internal audit systems one was served.

 

Unless there is a glaring error like 3 days allowed to rectify the breach or they have requested the full balance when the agreement was still live ..not terminated...then I would just put them to strict proof within the defence.

 

Regards

 

Andy

[Toots111]

Hello again Andy,

 

I realise that as it's Sunday, quite rightly I will not receive a reply today, but hope you can get back to me at your earliest convenience.

 

Since our last communication, all documents related to the claim have been passed to my local court, which I was notified of. I then received a letter from Northampton telling me that as they had lost my Directions Questionnaire, I needed to either send a copy of it to my local court immediately, or download a new one and send it off. When I sent it in to the local court, I also wrote a letter to the judge, asking if he/she would instruct the Claimant to provide me with everything I requested from them in January, (under CPR31.14 and section 87 of CCA), namely copies of the original agreement, DN, Notice of Assignment etc.

 

I have since received a letter from the judge, confirming that the Claimant had been ordered to provide me with the above by end of May, after which I have another month to file any new defence.

 

I have just received a bundle of documents from the Claimant, which includes; a copy of the agreement; all terms and conditions that would have applied to the account over the years it was running, (although the T & C's for the original agreement have all of the even-numbered pages missing - is this something I should ask them to rectify please?); a small number of statements from the account; a GENERIC DN; a copy of a letter purporting to be a copy from HSBC saying that the account had been sold to the Claimant, although I do not believe this to be a copy of an original as there is no letterhead on it.

 

My questions are Andy;

1) The DN is generic, it does not show my name, doesn't show any dates, does not have a letterhead, does not show a balance outstanding, is not signed etc etc. All of these fields are filled in with nonsensical wording/ are omitted. Surely they need to provide a copy of the original, not just provide a generic DN?? Should I write to them, and copy to the court, asking for a copy of the original please? My defence may have to rest on any DN served, if it were to be incorrectly worded/served, so I feel I must have a true copy of the original?

 

2) As the letter telling me that the account had been passed to the Claimant also appears to be non-original, should I also ask for a true copy of the original?

 

3) In their present state, ie not copies of originals, what would a judge be likely to think/decide under these circumstances please?

 

4) As the Claimant did not comply with my s87 CCA or CPR31.14 requests within the timescales laid down by law, and it's taken a judge to force the Claimant to now send them to me, does their failure to comply within prescribed timescales provide me with a legal argument which would help me defend the claim please? ( I'm sure I've read somewhere on here that, particularly with reference to the CCA request, if a Claimant fails to comply within timescale, a different section of law kicks in and in effect their breach could have negative consequences for them?). I can't find what I mean at the moment, sorry!

 

Basically Andy, I need any help or advice on the above points, in the hope that amongst all of this something exists to help me defend myself?

 

As always, many thanks in anticipation of your response.

[Ganymede]

I hope Andy won't mind me butting in but can you possibly scan and post the DN etc so people here can comment?

 

I would add though that disclosure has now been compiled with so the Court won't take any further action so you should focus on other elements of your Defence.

 

Also, the reprints of original letters are sufficient. How do you expect to get a copy of the actual letter as it was sent to you?!

[Toots111]

Hi Ganymede,

 

I don't have a scanner at present, sorry.

 

I do not expect to receive actual letters obviously, but do expect to receive a true copy of original documents, which these obviously are not. As stated, there are no letterheads on them, my name does not appear, there are no dates, amounts etc?

 

Also, as the Claimant did not supply any of the requested documentation within prescribed timescales, I am looking for advice as to whether this could be used in my defence?

 

Thank you for responding - any advice which may be used in my defence would be greatly appreciated.

 

I have read on here about cases that have been won at the Appeal Court, where either no DN was served, or a faulty DN was served. Apparently in these situations, a valid contract does not exist?

[Ganymede]

Yes if you don't receive a correct DN you can use that in your Defence and can win off that basis. The time to respond with documents won't make any difference to your Defence now.

 

Ah I see you didn't say that the copy letters weren't addressed to you and didn't have your details on them.

[Toots111]

Yes if you don't receive a correct DN you can use that in your Defence and can win off that basis. The time to respond with documents won't make any difference to your Defence now.

 

Ah I see you didn't say that the copy letters weren't addressed to you and didn't have your details on them.

 

Hi,

 

My first question to Andy does state that my name etc does not appear on the DN, I've just re-read it to make sure?

 

I'm thinking that I should now write back to the Claimant, (and copy in the court), stating that they have not supplied me with a true copy of a DN, nor a true copy of a letter stating the account had been passed to them. Do you think that this would be the correct route to go down please Ganymede?

 

Also, please can you try to explain why, where a Claimant does not supply requested documentation within prescribed timescales, especially a copy of any original agreement under s87 of the CCA, this apparently has no consequence? I'm trying to understand why, when the law allows 28 days, plus 5, to supply such, failure to do so means nothing?

 

Many thanks.

[AndyOrch]

Hi Toots

 

It would appear that they have complied with a reconstituted version of the default notice which is useless...as I had stated previously there is no requirement to retain hard copies of the actual default notice and providing the claimant can provide proof from its internal data that one was served then that will be sufficient evidence for the court.

 

Unless you have the actual Default Notice and it contains errors or is invalid....then the arguing of this point is pointless...

Arguing the lack of served Notice of sums in Arrears has more powerful implications which you should have been served annually since default.

 

Lets move to the agreement...the fact that they have now complied means that any default has been extinguished ...only for none compliance at all are they prevented from enforcement.

 

But what have they disclosed...is it valid?

 

Regards

 

Andy

[Toots111]

Hello Andy and many thanks for replying.

 

I am due at work shortly, so this will be very rushed, sorry.

 

It is totally confusing to me that Ganymede replied earlier and stated that I can use the lack of a valid DN from the Claimant to win in court. Why are there so many different opinions on this subject Andy please? It's so difficult to separate fact from fiction when you're uneducated in these matters. There have been cases won at the Court of Appeal on the strength of no DN or an invalid DN. Should I be writing to them and asking them to provide proof that a valid DN was served, as surely without this evidence, I have some sort of defence? Obviously what they have sent me is not a valid DN, so how can I find out if one was ever issued before having to go to court please?

 

They have sent me what appears to be a copy of an original credit agreement, along with various terms and conditions, (some pages missing here), a few copy statements.

 

I have run out of time and can't get back on here until later today, or tomorrow morning, aaaarrrrgh!!!!!

 

I will check for any reply from you and get back to you asap. I feel like my head is about to explode, I'm so frightened and confused.

[AndyOrch]

You need to clam down and relax as getting worked up and stressed is counter productive.

 

Yes you can argue the merits of any Default Notice and win cases providing you can evidence that none was ever served.I simply stated that they are not required to retain hard copies of the DN and the reconstructed version they have disclosed would be acceptable...not that it proves anything.

 

If they can evidence that one was sent out and you dont have the original to see if it was valid...then its impossible to argue it.You have to declare that one was never issued and therefore the claimant is unable to proceed based on that fact...but if they can prove it it was served...then any court will be satisfied.

 

Also it always depends on the Court/DJ who is proceeding over the claim whether it would be accepted as a valid point of any defence.

 

So there are many permutations of what could and would happen...nothing is black and white.

 

Andy

[Toots111]

Thanks Andy.

 

It sounds then, that my only chance of any defence, would be to state in court that I do not believe a DN was ever served and hope that the Claimant has no proof that this actually did happen? If they have no proof of a DN being served, how would their 'generic/reconstructed' version stand up in court please? Do you think it likely that they will have proof one was served and is there any way I too can find this out please?

 

To your knowledge, would most Claimants in this type of situation actually have an original DN, but just choose to send the Defendant/ court a generic version, (for reasons which I don't understand)?

 

I take your point that much depends on the court/DJ presiding over the case, but in the event that a faulty/no DN was served, would it be okay to inform the DJ of cases won at Court of Appeal for the same reasons?

 

Andy, on a separate point, what likelihood is there of my name appearing in local papers due to this court case please? I have a part-time job, (supplemented by Working Tax Credits, who I am also paying money back to, due to an error in overpayment on their part), and there is a very high risk that I would lose my job if my employer were to read about this in the paper. My employer has been very kind in offering me work, when my mental health problems preclude me from most types of employment . Are these hearings heard in public or private please?

 

Finally, (for now, until my head thinks up more questions), if a friend or relative was willing to offer a small amount of money as a one-off payment to the Claimant, either before the hearing, or at it, as full and final settlement, to your knowledge, might this be acceptable? ( I should point out that I don't even know whether this is a possibility, as I do not know anybody I would dare ask and as I live hand to mouth, I am not in a position to find any funds to offer myself).

 

I do realise that I am losing the plot at present and all of this comes out in a hap-hazard manner; I simply don't know what would be the best way forward. I would like to defend myself, if at all possible, but if it seems I have no defence, all I know is that I live on a very low income and if I am instructed to start making indefinite payments to the Claimant, I have no idea how I will survive.

 

As always, many thanks for sticking with me and replying to my increasingly desperate messages.