Won Vs Marlin (HSBC) Claim Dismissed no cca

[Andyorch]

You dont proceed ...its their move next...which obviously they seem to be dragging their feet....Only they can initiate the AQ (DQ) not you.

[mercyblue]

So what your saying I should merely tell them I will be happy to file an amended defence should they have the stay lifted?

On another note can you still logon to a claim and amend anything if it is stayed? I would of course look myself but have made a bit of a cock up and had to reset my MCOL id and apparently they will have to send the new one in a letter which could take up to a week.

[Andyorch]

Not at all ....who as asked you file an amended defence?

 

And no you cant alter anything on MCOL once a defence has been entered.

[mercyblue]

They ask on what legal basis I intend to use, they didn't ask me to file an amended defence.

[Andyorch]

You can ask them the same...do nothing.... ignore it until you ever/if receive a Directions Questionnaire.

[mercyblue]

thank you for the speedy advice andyorch its reassured me on the line to take

[mercyblue]

Well they now say they are going to apply to lift the stay and apply for a summary judgement against me.

 

 

They also say that a have refused to correspond with them because I didn't supply them with details of a valid defence

(this is after the claim was stayed of course).

[dx100uk]

so await the DQ then.....or they maybe just waving their aems hoping for a response...

 

 

dx

[Andyorch]

There wont be a DQ DX if they make application to lift the stay and request Summary Judgment...claim wont be allocated goes straight to a hearing.Just look out for any applications...the court will inform you if so.

 

Andy

[dx100uk]

ah sorry I was going by post 18

 

 

thanks

 

 

dx

[mercyblue]

Yes I will wait to see what they put in their application notice - hopefully they might shoot themselves. They do write the letter very cleverly though it implies you have no say in the matter and its a done deal.

andyorch part 24 would apply but that I need to realize its not a sort of "mini trial" in response to their application?

[DonkeyB]

There is no onus on you to tell them what your defence is outside the court process once they have issued a claim.

 

They should have had their case ready when they issued the claim, not months after – that means their statement of truth was a lie. They couldn’t possibly have known the facts if they did not have the documents. Judges are getting pretty p***ed off with claimants doing this, and some recent cases have been struck out on such grounds.

 

Watch out for them trying to force through this application without informing you.

 

Now might be a good time to provide us with some details of the claim and circumstances.

[mercyblue]

If a debt is sold by a bank to a dca what date can the dca claim statutory interest the date the dca buys the debt or the date of the original default?

To clarify say the dca buys a debt in 2013 that is 3k then issues a claim with statutory interest dating back to 2009 on the entire balance, which effectively gives them 4 years interest instantly when they buy the debt (or at least when they issue the claim) even though the original letter showing the sale has a figure without any interest.

 

It would seem common sense that you cant charge interest on something you don't own but it appears not to be

Period of interest runs “for all or any part of the period between the date that the cause of action arose” and the date of payment or the date of judgment.

 

So if you use the original default date as the cause of action then you can.

Am I missing something here or is it just another way to right royally screw people over.

[citizenB]

I thought they could only claim sec 69 from the date the DCA was assigned the debt.

[mercyblue]

You would think so citezenB but they are saying from the termination of the agreement 4 years prior to assignment

[mercyblue]

Been thinking about this surely their cause of action only arises once they have bought the debt the actual termination date is irrelevant as they had no err interest until this point.

[Andyorch]

It is generally accepted from the cause of action.....

 

http://www.legislation.gov.uk/ukpga/1984/28/section/69

 

Regards

 

Andy

[richard_se11]

If a debt is sold by a bank to a dca what date can the dca claim statutory interest the date the dca buys the debt or the date of the original default?

To clarify say the dca buys a debt in 2013 that is 3k then issues a claim with statutory interest dating back to 2009 on the entire balance, which effectively gives them 4 years interest instantly when they buy the debt (or at least when they issue the claim) even though the original letter showing the sale has a figure without any interest.

 

It would seem common sense that you cant charge interest on something you don't own but it appears not to be

Period of interest runs “for all or any part of the period between the date that the cause of action arose” and the date of payment or the date of judgment.

 

So if you use the original default date as the cause of action then you can.

Am I missing something here or is it just another way to right royally screw people over.

 

8% as per S69 would add quite a bit to the judgment debt.

I know such interest is discretionary and therefore up to the judge whether to award or not, but I seem to think the rule (under S69) is not applicable to simple debt claims; it is certainly not applicable where interest runs under the contract. This, I think, would exclude agreements covered by the Consumer Credit Acts. I will have to confirm this on Monday, but I think the DCA is seeking that which he is not permitted.

[Andyorch]

" This, I think, would exclude agreements covered by the consumer credit Acts "

 

Afraid not Richard...

 

(4)Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs.

 

 

So once the cause of action terminates the agreement...then section 69 takes over.

 

Andy

[mercyblue]

Well just had the general form of judgement plop through the letterbox from the victory last week. Just waiting now for the cheque off Marlin now for my expenses due by the end of the month.

 

Was able to show at trial that the supposed reconstituted agreement wasn't, that there wasn't a properly executed agreement or even that there was an irrevocably unenforceable agreement but there was never any agreement in the first place.

[ThedaBara]

Hurrah! TB

[citizenB]

Well done

[Conniff]

I love this sort of post.

[mercyblue]

I see somebody from the site team has correctly combined 2 threads together thanks, so I thought I would add some detail as to the successful defence for completeness.

 

The defence was based on the fact there had never been any agreement. I thought I had been clear about this in my initial defence however when it came to the summary judgement hearing the claimants seemed to think that I was saying I had never had an account. I clarified the situation at the hearing and as such was asked to submit an amended defence.

 

At the subsequent trial mortimor clarke submitted almost word for word the same witness statement that they had at the summary judgement hearing, which does make me wonder whether they actually bother reading any defences or just assume what it will be based on and basically pump out the same ws to everything.

 

Whether or not they do their ws helped me by claiming that a document they had already submitted as something else suddenly became a recon agreement "under the principles of carey". At the trial when I pointed this out and threw in the fact that carey refers to s78 requests (which would have had to be made by me) which I'd never made. They then tried to say they meant reconstituted in a more general way and not really meant in the terms of carey. As you can imagine blatantly contradicting their ws went down with the judge like a lead balloon.

 

I had already made my case as to how I came to have a cc without any sort of cca and was able to answer all the other sides questions in a coherent way the court took the view that on the balance of probability (the fact that banks have been shown to act so badly and lax over the last few years helped) my version of events when taken to be correct.

 

One point I would like to add, probably the most important should your case ever get as as far as court, is that you need to come across to the judge as a credible witness, otherwise however strong your case maybe I suspect you will be in trouble.

 

A final point considering a lot of this thread is about s69 interest - that would have added approx 2k to the amount

[citizenB]

HSBC were their own worst enemy where agreements from around 1998 were concerned. I started a bank account with them and they sent me a credit card along with the debit card and cheque book, despite my never asking for the credit card in the first place. So I knew for sure that I had never signed an agreement.