Hoist/Cohen claimform - HSBC OD 'debt'

[Hobbs123]

Ah OK, something like this one then ?

 

The original POC read like this

 

The claimant claims the sum of £4000 being monies due from the defendant of the claimant under a regulated agreement originally between the defendant and HSBC Bank Plc. The defendants account number was xxxxxxxxx and was assigned to the claimant on xx/xx/2011, notice of this has been provided to the defendant. The defendant failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant of the Consumer Act 1974. The claimant claims the sum of £4000 plus costs. The claimant has complied as far as necessary with the pre-action conduct practise direction.

 

I broke the POC donw as follow: Input on this would be appreciated

 

1) The claimant claims the sum of £4000 being monies due from the defendant of the claimant under a regulated agreement originally between the defendant and HSBC Bank Plc. The defendants account number was xxxxxxxxx and was assigned to the claimant on xx/xx/2011, notice of this has been provided to the defendant.

2) The defendant failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant of the Consumer Act 1974.

3) The claimant claims the sum of £4000 plus costs. The claimant has complied as far as necessary with the pre-action conduct practise direction.

 

My Draft Defence:

 

Paragraph 1 is accepted that I have had financial dealings with HSBC in the past I am not aware or ever been informed of any legal assignment of this account number to the claimant.

Paragraph 2 is not admitted with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach.

Paragraph 3 is denied with regards to the amount the Defendant owing monies to the Claimant and the Claimant is put to strict proof to:

 

(i) Show how the Defendant has reached the amount claimed for.

(ii) Show the APR and interest used to calculate the amount claimed for.

 

On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx for a copy of the Overdraft facility agreement,Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim. This was signed for by the claimant on xxxxxxx. The claimant has yet to comply.

 

It is my contention that the claimant has acted this way to frustrate and confuse my submission date to enable themselves to attain a judgment by default.

 

Therefore 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

© show Notice served under Sections 76(1) and 98(1) of the CCA1974

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

 

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

 

On the alternative, if 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.

 

Until such time the Claimant can comply with my request for a copy of the Overdraft facility agreement/Notice served under Sections 76(1) and 98(1) of the CCA1974 it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 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[/i]

[dx100uk]

post 10 here

http://www.consumeractiongroup.co.uk/forum/showthread.php?447061-Hoist-Cohen-Claimform-Santander-Overdraft-debt-***Settled-by-Mediation-ADR***

 

 

LOOK at your particulars of claim...

you'll see its the same wording...that's the clue to what defence to use.!

[Hobbs123]

Fingers crossed this is OK, please let me know if I should change anything........

 

The proposed defence:-

 

Particulars of Claim

 

1.The claim is for the sum of XXXX.XX in respect of monies owing pursuant to an overdraft facility under account number XXXXXX XXXXXXXXXX.

2.The debt was legally assigned by MKDP LLP (Ex HSBC) to the claimant and notice has been served.

3.The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.

 

The Claimant claims:

The sum of XXXX.XX

Interest pursuant to s69 of the county court Act 1984 at a rate of 8.00 percent from the XX/XX/XXXX to the date hereof 1801 is the sum of X.XX.

Future interest accruing at the daily rate of .XX

Costs

Defence

The Defendant contends that the particulars of the claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor HSBC. It is denied that I am indebted for the alleged balance claimed.

 

2. Paragraph 2 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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 Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

3. Paragraph 3 is denied. To my knowledge MKDP LLP (Ex HSBC) has never served me a notice pursuant to 76(1) and 98(1) of the CCA1974

 

Any alleged amount claimed could only consist substantially of default penalties/charges levied on the account for alleged late, rejected or over limit payments.

The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the unfair terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009).

 

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

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

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

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated XX September 2016 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft and Termination Demand Notice inferred by the Claimant's Particulars of Claim.

 

The Claimant has failed to respond or comply with this request.

 

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.

[Andyorch]

Paragraph 3 requires change Hobbs.

 

Paragraph 3 is denied.HSBC have never served Notice pursuant to 76(1) and 98(1) of the CCA1974 and therefore the Assignee is therefore prevented from seeking any relief for any alleged outstanding balance pursuant to the CCA1974.

 

The rest is fine.

 

Andy

[Hobbs123]

Thanks Andy

[Hobbs123]

I submitted our defence on 6th October and received a letter stating the Claimant has 28 days to respond after receiving a copy and if they do not respond then the claim will bemade "stayed".

 

 

It has been 38 days since I submitted the defence,

 

 

I have checked MCOL,

 

 

the claim has not been changed to stayed,

 

 

can I call or write to ask why it has not been changed ?

 

 

Or do I just have to wait and keep checking it ?

[Andyorch]

It does not show " stayed " on the MCOL status......If they do proceed next status will be " allocated"

 

Regards

 

Andy

[dx100uk]

time to forget about them and enjoy xmas

[Hobbs123]

You helped me around 3 years ago with a number of debts my BF was being chased for. 

 

Sadly one of those went to a court order before I had the chance to step in and ask for your help,

we went to court and were ordered to pay Robinson Way per month which he has done ever since. 

In the last two weeks somehow they have managed to obtain his mobile phone number and have been trying to call and text him regarding another debt they want to collect,

 

he was told the figure £710.63 but no other information,

I am fairly certain I dealt with this one with your assistance previously. 

 

They also sent a letter informing him the debt he is paying via the court order is being moved to a different company. 

When he received this letter he was confused and panicked that there may be a problem and called Robinson Way to check,

 

he asked how they obtained his number as he has never given it to them or the court. 

There was no problem, the letter was simply for information only,

however as they had him on the phone they took the opportunity to speak with him about the £710.63 they want to recover and told him if he didn't respond by the 21st or it could have been the 23rd October they would send debt collectors to recover the amount. 

Can they do this ?

 

When you helped me previously I'm sure they had to send paperwork first through the small claims court as the first part of the process, has this changed ? 

 

I tried to log in with my old log in but couldn't probably because I haven't used it for so long

(I set up this new log in, I am still not very good at this thread thing so apologies if I have already done something wrong)

 

[Andyorch]

Hobbs 123 ?

 

 

[Hobbs123]

Yes that's me and I have found a post relating to the exact amount Robinson Way are now trying to recover, I knew it rang a bell.........

I have looked on MCOL and can see the defence I sent back in 2016 whic was never replied to.

 

[BankFodder]

Okay received. Thanks.

Which name do you want to keep – the old one or the new one?

[Hobbs123]

The old one please

[dx100uk]

thread merged

safe to ignore then if the claim in stayed , whicj it is.

 

please stop ringing these fleecers.

they''ll purposefully tie you up in knots everytime.

 

dx

 

[Hobbs123]

Thanks for merging everything. The status is not Stayed.  The last entry on the history shows my defence received 6/10/2016. Can I definitely ignore it as it’s nearly 3 years old ?

 

[dx100uk]

Read the letter from the court when they ack'd receiving your defence

Its autostayed.

 

please stop ringing any dca no matter what the reason

[Hobbs123]

So we came home yesterday to this lovely letter from Robinson Way, should we just ignore it ?

 

[Old Cogger]

sit on your hands case stayed that is it ignore that letter they are idiots trying to mislead you 

[Hobbs123]

Thank you so much for putting my mind at rest, the little so and so's really do mess with your head

I can breath a sigh of relief.........

[Andyorch]

Quote

the little so and so's really do mess with your head 

 

 

Only if you let them