Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #21
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    Thank you


  2. #22
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    Well it is almost time to submit a defence - would like to do it by Thursday. We have heard nothing at all from MKDP not even an acknowledgement of our requests. I have been looking at various holding defences on the site and have now put the one below togther. It would be appreciated if someone could have a look at it for us please? We have been unable to get any statements so far regarding this account and it may well be that it is statute barredicon as stated in previous posts but without the relevant statements we can not be 100& certain.


    In the Northampton (CCBC) County Court


    Claim number XXXXXXXX


    Between


    MKDP LLP

    and


    XXXXXXXXXX – Defendant




    DEFENCE


    1. I, XXX of XXXXXXXXXXXX am The Defendant in this action and make the following statement as my defence to the claim made by MKDP LLP

    2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in The Claimant’s Particulars of Claim and put The Claimant to strict proof thereof.

    3. The Claimant’s Particulars of Claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the Civil Procedureicon rules. (Even allowing for the constraints of the bulk issue system)

    4. No documents supporting the claim in the particulars have been offered which The Defendant needs to establish what agreement it is that this action is based upon and so The Claimant's claim appears without merit.

    5. On receipt of the claim form The Defendant sent a CPR 31.14 request 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.

    6. The Defendant also sent a formal request pursuant to s.77/78 of the consumer crediticon Act 1974 for a copy of the agreement.

    7. It has been confirmed via the Royal Mail website that the above letters were received and signed for.

    8. To date no response has been received from The Claimant.

    9. As a result, the Claimants claim does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I am at a disadvantage to respond to this claim. Consequently, I deny all allegations on the particulars of claim and put the Claimant to strict proof thereof.

    10. It is denied that I have an agreement with MKDP LLP.

    11. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

    12. Without admission that any cause of action is shown by The Claimant it is denied that I am indebted to The Claimant as alleged or at all.

    13 It is alleged the Claimant has an agreement and there has been an Assignment. Within the proof of claim it was stated that there had been an assignment to the Claimant on a date which was given as Blank. As such it is contended that no such Notice of Assignment has been served pursuant to Section 136(1) of the Law of Property Act 1925. Without a Notice of Assignment, The Assignment is merely equitable and The Claimant is put to strict proof to disclose this and prove that this claim can commence in their own name.


    14. AND the Defendant

    Seeks an order that The Claimant’s action is struck out or otherwise is dismissedicon on the grounds that any claim cannot succeed.

    i. Alternatively if the court decides not to strike out The Claimant’s case, it is requested that The Court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

    ii. The Defendant respectfully asks the permission of The Court to amend this defence if or when The Claimant provides full disclosure of the requested documents and allows inspection of the original documents.




    Statement of Truth

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


  3. #23
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    seems fair at first sight, maybe perhaps with a tweak/trim or two. it seems to address their particulars?, and therefore be 'cpr compliant' re submitting a defence? bumping though for further input

    IMO
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  4. #24
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    Defence now altered after advice on another thread. Hopefully this one is now ok.

    In the Northampton (CCBC) County Court

    Claim number XXXXXXXX

    Between

    MKDP LLP

    and


    XXXXXXXXXX – Defendant




    DEFENCE

    1. Paragraph 1 is admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with XXXXXXXXX

    2. Paragraph 2 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 interesticon used to calculate the amount claimed for.

    3. Paragraph 3 is not admitted with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach.

    4. As per Civil Procedureicon 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:-

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

    5. 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 crediticon Act 1974.

    6. This defence will contend that under the Credit Consumer Act enables Section 140A and the court to make an order (under section 140B) if it determines that the relationship between the lender and the borrower arising out of a credit agreement is unfair to the borrower.
    I will asseverate that under sec 140a CCA 2006 amendments CCA1974 that the assigned agreement was subject to an Unfair Relationship with XXXXXXXX due to extortionate interest applied.
    Also that the agreement was breached by XXXXXXXX for failing to adhere to The UKCA guidelines once a payment plan arrangement is in place. The Claimant is "estoppedicon" due to promissory estoppelicon the original Terms and Conditions agreed were varied.

    7. Further, by reason of the fact that the Claimant was sent a Section 78 CCA 1974 request dated xxxxxxx and signed for by the claimant on xxxxxxxx the Claimant has yet to comply with this request and until such time the Agreement cannot be enforced against the Defendant without an order of the Court, until such time they comply with my request.

    8. On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx for a copy of the credit 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 signed for by the claimant on xxxxxxx.

    9. 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.


    xxxxxxxxxxxxxxx

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  5. #25
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card


  6. #26
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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 Requesticon.
    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 PPIicon?
    bump for further input

    IMO
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  7. #27
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    !2+2 Working days for CCA Requesticon, discount weekends and public holidaysicon.

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  8. #28
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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 Requesticon.


  9. #29
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    Defence now submitted - will post it later.


  10. #30
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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 HSBCicon 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 acticon 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
    (c) 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 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 SARicon 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 claimsicon 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


  11. #31
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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.



    Link 1. OFT Debt Coll'n Guide - http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf
    Link 2. Checking your credit Agreement - http://www.consumeractiongroup.co.uk...greements.html
    Link 3. Interest Tutorial - http://www.consumerwiki.co.uk/index....erest_Tutorial
    Link 4. OFT Guide re s.78 CCA1974 Requests - http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

    Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.

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  12. #32
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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.


  13. #33
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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 Requesticon or the request under CPR31.14.


  14. #34
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

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

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  15. #35
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    Thank you


  16. #36
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

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


  17. #37
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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 barredicon 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 HSBCicon. Is there anyway we can increase the pressure on them to produce it through the court?

    We did request all the data under a SARicon 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.


  18. #38
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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 acticon.
    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/en...limitation_act

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

    IMO
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  19. #39
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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.

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  20. #40
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    Default Re: MKDP LLP Court Claim - HSBC Credit Card

    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)

    IMO
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