re 7 - they're not in default as yet as you only sent it on 23/5 post #19? 14 days to respond to a cca request.

not sure re 6?

also need to put them to proof re compliant default notice,

when was the original or any subsequent 'agreement'? if prior to 4/07 they would need to show that there was a debtor signed doc that contained all of the prescribed terms before entitled to any enforcement as required by s127 3, 4 con credit act and the Wilson case. yes, you had the credit, but do they satisfy the required legal requirements in order to get an enforcement order?

any ppi?

bump for further input

!2+2 Working days for CCA request, discount weekends and public holidays.

Agreement prior to 04/07 as we believe last payment was made on 21/03/07 but need statements to confirm this. I have altered No 7 of defence slightly to cover them not yet being in default of CCA request.

Defence now submitted - will post it later.

I have been on holiday and have only just got back. Things have moved on with this claim and I would appreciate some help/advice before going further.

Firstly the defence we sent was as follows:

In the Northampton (CCBC) County Court

Claim number 3XX98310

Between

MKDP LLP

and

XXXXXX

Particulars of Claim ......summons dated 29th April 2013

1. The Claimant claims the sum of £1xxx.xx being monies due from the Defendant(s) to HSBC Bank Plc under a regulated agreement regulated by the Consumer Credit Act 1974 which was assigned to the Claimant on (no date given). Notice of Assignment has been provided to the Defendant(s)

2 . The Defendant(s) account number was xxxxxxxxxxxxxxxx

3. The Defendant(s) has failed to make payments in accordance with the terms of the agreement. A Default Notice has been served pursuant to The Consumer Credit Act 1974 by HSBC Bank Plc.

4. The Complainant claims the sum of £1xxx.xx and costs. The complainant has complied as far as is necessary with the Pre-Action Practice Direction.

Defence

Paragraph 1 is accepted in that I have had a credit card with HSBC Bank Plc. I have made no acknowledgment of this account for at least six years. I am unaware with regards to any assignment as no paperwork has ever been received from either HSBC or MKDP.

Paragraph 2 is noted.

Paragraph 3 is denied as above I have never been informed or been requested to make any payments. I have never received a Default Notice from either party. The last payment made to this account was on 21st March 2007.

Paragraph 4 is denied, there has been no previous communications from the claimant or its predecessor.

The Claimant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the Limitation Act 1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

Notwithstanding the above is 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 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

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

On receipt of the claim form The Defendant sent a CPR 31.14 request dated 2nd May 2013 for a copy of the agreement, default notice, 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 delivered by Royal Mail and signed for on 7th May 2013. To date no documents have been received by The Defendant.

The Defendant also sent a formal request pursuant to S.78 of the Consumer Credit Act 1974 for a copy of the agreement and full statement of account to The Claimant dated 23rd May. This was delivered by Royal Mail and signed for on 24th May 2013. To date no documents have been received by The Defendant.

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.

Statement of Truth

I believe that the facts stated in this defence are true.

XXXXXXXXX

To date we have had no acknowledgement of our CPR31.14 request or our S.78 CCA request (this has now exceeded the statutory time limit).

Also the SAR request we sent to HSBC and received by them on 7th May was returned together with the £10.00 cheque in a letter dated 28th June from HFC Bank, PO Box 5137, Coventry, CV3 9EP. Now I know HFC bank is now part of HSBC but that seems strange. They say they were unable to action of our request because a) No signature on letter (there was a digital one) b) They were unable to locate any accounts with the information we have provided. They wanted us to resubmit request with previous address history/account numbers/DOB and they will respond in another 40 days! We have sent another letter with all information again but not holding out much hope!

Because of this we are still flying blind with no statements etc to refer to about this account. A visit to HSBC did not help as they said all they can do is send the last six years statements from the date we went in - not a lot of good when trying to prove it is statute barred on the date of claim.

A letter was received dated 10th June from MKDP LLP which stated that they do not accept our defence and have instructed Northampton (CCBC) County Court that they wish to continue with claim.

A N149A Notice of proposed allocation to the Small Claims Track dated 25th June has been received which requires the N180 Small Claims Directions Questionnaire to be submitted by 12th July (this friday)

We can fill that form in ok but would like a bit of advice regarding The Small Claims Mediation Service. Is there any mileage in ticking the box and agreeing for the claim to be referred to them or is it a sign of weakness to the Claimant? If it went to mediation would I be able to speak on his behalf as he will not have a clue how to deal with it.

Also do we need to do anything further regarding the claim at moment ie how are we going to get sight of the Statements/Signed Credit Agreement/Defaut Notice/Notice of Assignement?

Thanks

Hi GT,

Agree to mediation at this stage - it's not a sign of weakness but shows your willingness to seek resolution by means other than a court hearing.

Is your relative (the Defendant) not able to speak confidently for themselves. I'm not sure if anyone can speak for you at mediation but, if mediation takes place, I'm sure the mediators would help your relative get across their views.

If this gets to a court hearing, it may depend on the judge on the day to decide if you can talk FOR your relative, or simply be there to support and advise at the hearing, leaving YR to speak for theirself.

If you've asked for doc'ts using CPR 31.14 and had no reply, there's no more you need do about it. If the Claimant fails to produce the required doc'ts, the court can be asked to order production of the doc'ts as part of the ongoing process.

Thanks - that is much appreciated. We will get the N180 completed and go for the mediation and take it from there. I will keep the post updated as and when things happen.

We have received the copy of N.180 completed by MKDP LLP - almost a mirror image of ours. They have also ticked box for mediation but have asked for case to be heard at Milton Keynes whereas we asked for it to be heard at our local court.

Still no reply to our CCA request or the request under CPR31.14.

It is your right to have the case heard at your nearest county court, mediation does not need to be a court hearing and can be carried out by telephone appointment.

Check HMCTS small claims mediation service.

Thank you

Telephone appointment now made for mediation appointment next week - one hour set aside. Will update thread after this.

Mediation call has now taken place with no progress.

We could do with a little help pointing us in the right direction over some legal points though?

They are saying that the account does not become statute barred until 6 years after the 'Default Date' Now I am sure that this is not the case but could do with reassuring that it is not and pointing to where we can read it.

Our requests for the paperwork relating to the account were discussed, they say they haven't got it but have requested it from HSBC. Is there anyway we can increase the pressure on them to produce it through the court?

We did request all the data under a SAR request to HSBC - we have now made two requests containing all relevant information, account numbers, full name, DOB and previous addresses and we have had two replies stating that they can find no accounts from the details given. It has been suggested that we should send a copy of these letters to MKDP so we would like some advice regarding that as well.

Looks like we will be going to court with this.

what do they mean by the 'def date'? ie when they registered the def? or?

technically, 6 yrs after the 'cause of action'. s5 limitation act.

but, could be deemed 6 years (eng/wales) after the last payment or deemed written acknowledgement (whichever is the later).

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=25_liability_for_debts_and_the_limitation_act

the general rule in contract is that time starts to run (ie the cause of action) when the breach occurs

There has been a case (which I can't find) where it was decided that the limitation did not start until the creditor 'can demand full repayment of the debt' i.e. the default date, however this was in reference to an HP account.

I have not seen this tested in regard to a straight forward consumer debt of any sort.

Challenges under section 5 are succeeding still.

yes, the general rule in contract is that time starts to run (ie the cause of action) when the breach occurs. (of course subject to any subsequent payments/deemed acknowledgments which would then reset the clock)

The impression they were giving during mediation was the date of 'The Default Notice' which we have never seen anyway.

Could anyone give us any advice as to whether we should be doing anything further to try and get the documentation we need from MKDP LLP - when will we get our chance to ask the court to order them to disclose the documentation?

Could anyone give us any advice as to whether we should be doing anything further to try and get the documentation we need from MKDP LLP - when will we get our chance to ask the court to order them to disclose the documentation?

At standard disclosure (N265) gettingthere.

Regards

Andy

The impression they were giving during mediation was the date of 'The Default Notice' which we have never seen anyway.

isn't the issue date (ie the date of the letter) of a dn usually a bit after an actual breach re the contractual minimum payment missed (so, as long as there are no subsequent payments/acknowledgements, SB clock would start from the breach)?

Any time up to 6 months after the issue of a DN.

Thanks Andy - will wait patiently then.

I cannot see how the relevant date can be 'the default date' as that would be when the bank eventually got round to issuing one.

Thanks Andy - will wait patiently then.

 

I cannot see how the relevant date can be 'the default date' as that would be when the bank eventually got round to issuing one.

As I posted earlier, there has been a decision that entered into case law, that decision was that the limitation period starts from the time that the creditor can demand FULL PAYMENT, e.g. the default date.

This was however in regard to a Hire Purchase agreement not a simple contract. So far I have not had an SB claim rejected on this basis.

Still nothing further heard regarding this one since mediation call.

Update - Still nothing heard from anyone regarding this.

We have still not heard a thing about this one since the mediation phone call. Is this normal?