sam

Does the documentation now attached to the WS match the .pdf of the CCA you posted in April 2008. If so, I can't see the paragraph numbers and can't see the interest and repayment terms. Also if an interest rate is on the papers attached to the WS check that it is the same as the interst rate shown on your credit card statements. In my HSBC case, they took ages to ask for the stay to be lifted and then went to an SJ. In all they sent in three versions of the unsigned CCA but like yours it quoted a VISA agreement for a Matercard and had three different rates of interest. I pointed out the errors but DGs just ignored me and didn't withdaw until their barrister tried to put together the papers for a full trial. He realised they didn't have a case and backed down paying my costs.

Best of luck for tomorrow.

sam

I noticed you are away from home looking afer your mother. Are yo still intending to go to the hearing on 26th (This Thursday?).

doc

Pipster

Typical behaviour fromHSBC/DGs I'm afraid. But if you keep at it, you will succed. I did and after nearly 3 years, they backed down 2 days before the full trial before a proper judge. They didn't have much option, no CCA, wrong T&Cs filed and no DN. Sound familiar.

You may get the skelly some time in the New Year. In the meantime I suggest you try to draft your own skelly.

Cheers

Doc

This is another example of HSBC/DGs being sneaky with claims and costs.

They pursued me for £15k for over 2 years but 2 days before the full hearing, they withdrew the claim in full. Initially, they tried the argument that both sides should bear our own costs. My solicitor had told DGs that since they admitted they did not have a signed agreement, the Court could not grant judgement and because of this, he insisted that HSBC meet our costs and remove any comments with the credit reference agencies. In the end, we agreed that HSBC would pay £1,000 of my costs (half the total) and remove the credit references. My solicitor advised that as both sides had instructed barristers, attending the court hearing to ask for the balance of £1000 would have cost additional £2000 and since HSBC had withdrawn the claim in full, he thought the Court wouldn't be too pleased at a hearing to argue over costs if I had had over £15k of a credit card debt written off. There was never any suggestion that HSBC would try to pass on the 'debt' to another agency or DCA.

I had a couple of other cases a couple of years ago where the DCAs eventually discontinued. In those cases, I was a LiP and my total costs were in the region of £900 for each case. Both tried the 'no costs' approach but again I negotiated a reasonable outcome and accepted their offers of £750 and £600. Both debts were removed from my credit file and no further claim has been made.

The rules about discontinuance are fairly straightforward. The side that discontinues is liable for the other side’s costs unless both sides agree otherwise. The discontinuance operates from when the Notice is filed at Court which means the case ends EXCEPT as to the issue of costs. The side that is not discontinuing can ask the court within 28 days of the Notice being filed for costs. In one of the two cases above, one DCA wouldn't be reasonable at first so I filed an application for costs (additional £75 fee) and then asked for £750 in settlement instead of the £600 I had accepted from the second DCA. In short, solicitors play hard ball when it comes to costs (it’s 'their' fee) and so you should do likewise.

I suggest you respond to HSBC/DGs by telling them you do not accept their view that there is no liability and that you never agreed that £100 could be retained. Tell them that if they don't pay you the sum of £100 forthwith, you will make an application for your costs to the court on a full indemnity basis. Hit the ball back HARD!

onlyme

Where you go from here depends on how much fight you have in you.

The DJ is wrong in her interpretation of the Carey case. It only applies in relation to S77/78. The statute and case law are quite clear on that point. HHJ Waksman reviewed all the existing legisation and most of the case law and concluded they didnt help in the particular circumstances of the issues before him which were in relation to the provision of information.

Once the Order is sent to you, you could ask the Court to set aside the Order on the grounds that the Court had mis-directed itself as to the law. You will need to set out your reasons attached to an application on form N244.

I would also question the impression of bias (a) because the claimant thought they could nominate a particlar judge and (b) the little chat after the hearing. Both give the impression, rightly or wrongly, of bias. If you want to do something, could complain to the Office of Judicial Complaints about the judge's conduct. However, as the OJC won't investigate until after the end of your case, you could have a long wait. What may be more beneficial would be to copy your complaint to the senior judge (usually a Circuit Judge) overseeing the county court just after you have made your set aside application.

On the other hand, you may not want the hassle and are prepared to accept judgment against you.

McB

A trip down Memory Lane here for some of us!!

Liability Orders are issued by the local Magistrates Court and technically form part of the criminal justice system as opposed to normal debt recovery through the County [ Civil ] Court. It would therefore by up to local Magistrates to enforce the original Liability Order. However, the Council would have to (a) demonstrate the Liability Order was made in the first place by producing a copy and (b) overcome a little problem of Section 9 of the Limitation Act 1980 which states

"9 Time limit for actions for sums recoverable by statute.

(1)An action to recover any sum recoverable by virtue of any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued."

You may ask when the cause of action accurred. In my view, the best the Council could argue was that would be six years from when the original Liability Order was granted, not when the Poll Tax was originally levied. I assume you are way past that date now.

Any one got a different view?

Doc

Jimmy

I am not absolutely certain but a 'deferred funding' agreement sounds like it should be some form of credit agreement and therefore subject to the Consumer Credit Act. Is there any chance you can post up a copy of the agreement without your personal details?

Doc

I see CB's comments about the DN and agree but where have HSBC come up with using Carey to recontruct the DN? Are you getting confused between the Default Notice and the credit agreement?

Have HSBC/DG's admitted they cannot furnish a copy of the signed credit agreement? Have they tried to 'recontruct' the Agreement?

Can you post up a copy of the agreement you hold after removing your personal details?

Hi post

If this is what I think it is, the book is a rather large 2 volume tome. Most firms of solicitors and barristers chambers would buy ONE or possibly TWO copies depending on how flush they are. It is quite expensive.

Local libraries don't stock it but have you tried the law library at your nearest university. They may allow you access to read the reference copy, especially out of term when there would be less pressure on the library. I asked my old uni library and they sent me an access card even though ut nearly 20 years since I was there and I didn't study law.

Hi Cheeky

For the moment, leave the issue of your ex to one side. Remember, revenge is a dish best served cold, not when you are in the midst of a stressfull action.

First of all, make sure you acknowledge service of the claim form. If this came from the Northamton Bulk Centre (as appears to be the case) you can do this electronically. The instructions and password are contained with the claim form.

Next you need to gather information about the credit agreement. S78 of the Consumer Credit Act used to be a way of getting a copy of the signed agreement. However, due to a court case in 2009 [Carey v HSBC] the law now allows creditors to reconstruct a credit agreement in response to a request under S78. Such a reconstuction of course will not contain the signature of the cardholder. Once a creditor starts a legal action though, he needs to produce a copy of the original signed agreement to prove his case [the Proof Purpose].

A copy of the credit agreement should have been attached to the claim form if the agreement is mentioned in the Particulars of Claim. Some 'clever' lawyers are now drafting Paticulars of Claim that don't actually mention the credit agreement, and then try to argue they don't have to produce a copy to bring the claim. That is why everyone needs to see the exact wording of the Particulars of Claim (less any identifying details such as the amount) that are in the form. Once the wording is availale, advice can be given as to the wording in your request for documents.

Doc

Has anyone heard from a bank where the case is a debtor defending the bank's claim and claiming back charges as part of defence?

tedney

A bit old I know for a response but an old case of mine has raised its head again. Basically, my bank sued me for my overdraft after we had a disagreement in 2005. We corresponded for over a year but I could get anywhere with them. The correspondence went dead for a further year during which time the bank unknown to me bounced my direct debits twice a month for 4 months, charging £30 each time. At the start of 2007, they started a legal action against me to recover the overdraft which had grown due to the charges (I had moved banks in 2006).

Not only did I file a defence but I also countereclaimed for the charges. We went through the Court hoops (fast track) but 3 days after being served with the court's order to disclose documents etc, and eight months after the start of the OFT v The Banks case in 2007, the bank made a 'without notice application for a stay until the end of the OFT case.

Needless to say the court rolled over and granted the stay. I tried to get it lifted but all the Deputy District Judge would say when refusing my application was that 'it had come down from on high' that these cases were to be stayed. I just left the court in disgust.

Well, that was nearly four years ago and nearly two years since the Supreme Court gave its final judgement. To be fair, I had almost forgotten about the case but the bank have now written to me saying they will lift the stay on the grounds that following the Supreme Court's decison, I have no defence (wronlgi I might add).

Even if the bank win,I intend to continue my defence all the way using S140 of the Consumer Credit Act (Unfair relationships). I may end up in the Court of Appeal. Do you or any other Caggers know of any other cases where a defence/counterclaim has continued post the OFT decision?

Doc

Hi becky

As DonkeyB has suggested, the figures for 'Accurred Interest' and 'Administrative Charges' ad up to just over £100, the amount you have alledgedly paid. Even a child can see through HFO's smokescreen.

I would also ask HFO to specify and detail what 'administrative charges' have been incurred and also what period the accurred interest covers. You sholud then be able to show that the interest and charges are a fiction and that make you own claim that the only reason the figures are there is to balance the alledged payment of £100.

cups

Tesco Personal Finance plc was a joint 50/50 venture between Tesco and RBS until a couple of years ago when Tesco bought out RBS. TPF also goes under the name of Tesco Bank but it is the same company that would have agreed to the Tomli Order. However, according to press reports, they same to be having some IT problems.

I suggest you write back, enclose a copy of the Tomlin Order, and basically tell them you will not respond to any more of their silly letters. Keep up the payments on the Tomlin Order though.

Bevvyboy

Your amended defence will have to go on the grounds that HSBC have not produced a signed copy of credit agreement which contains the terms required by the Act. The case of Carey v HSBC only applies where a cardholder (debtor) requests a copy of the agreement from the lender under the conditions laid out in S78 of the Act. It does NOT apply where a lender is taking legal action to recover a debt. The lender still have to prove there was an agreement [the Proof Propose as outlined by HHJ Waksman in the Carey case].

If the agreement was entered into prior to 6 April 2007 S127(3) of the Act clearly states the court cannot enforce a credit agreement unless a document containing the prescribed terms was signed. If there is no signed agreement pre April 2007, then HSBC cannot win.

That said, our District Judges are not expert in all areas of the law (Deputy Disrict Judges can be even worse.) Where they are not familiar with the law, judges tend to follow the 'advice' from the barristers enganged by creditors. Not surprisingly, these barristers tend to lead judges to believe that the Carey judgment allows a 'reconstruction' in place of a signed agreement.

Where HSBC required to file an Amended Particulars of Claim? If so, can you post up what they are now claiming. If not, can you type out the words from the original Particulars of Claim?

Doc

Docman can you point me in the direction of which case law to look at regarding the assignment.

BA

The two cases I was referring to were Harrison v Burke and also Van Lyn Developments v Pelias. I have attached copies of both judgments.

In the Harrison case, the Court of APpeal decided that if a material fact (like the date of assignment or the amount of the debt) was wrongly stated, the NOA was invalid. This view was amended in the Van Lyn case where the Court ruled that if a fact was NOT stated in the NOA the the document was still valid. The Court reaffirmed the judgment of Atkin J from a 1913 High Court case Denney, Gasquet, and Metcalfe v Conklin ([1913] 3 KB at p 180):

It is sufficient if it brings

"to the notice of the debtor with reasonable certainty the fact that the deed does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor."

If the claimant and their solicitors are not certain whether the claimant is Services or Capital, IMO in is open to a defendant to argue how he can be reasonably certain who is the correct company to pay any money to?

Van Lynn Developments Ltd v Pelias Construction Co Ltd.doc

W_F_Harrison__Co_Ltd_v_Burke_and_another_-_[1].doc

suzie,

But case law requires that you are NOT confused by the assignor when they give you Notice of Assignment. However, HFO try to be so clever (probably for tax reasons) they end up confusing everyone else, much to your advantage.

A witness statement isn't strictly needed but one should be drafted and sent to the court so that the judge has something to read to understand your position. Don't worry members of the 'HFO Fan Club' will help you to start your witness statement.

Doc

Guys

Looking at the information that suzie has posted above I suspect there may not be a hard copy file. All the legal action took place electronically through the Northampton Bulk Centre.

When TR filed the claim electronically, they would not have to file any documents. Since there was no response from the named defendant, the Court automatically gave judgment by default after 14 days. The case details (but no documents) would then have been transferred electronically to Guildford and TR notified of the transfer. According to the court print out above in post #61, TR did make an application for judgment only to be advised that Northmapton had already granted judgment.

suzie, as has been stated above, you will need to submit a witness statement to the court explaining your side of things. Before you do, can you confirm two points? First, did you live in the Guildford area in 2008? Second, what the actual name of the claimant as shown in the judgment? Is it HFO CAPITAL Ltd or HFO SERVICES Ltd?

Doc

H197

remember you rang at lunch time so you may have just got the one brain cell wonder left in the office.

The basis of your request is to see the documentation that Morgans should have supplied and that until you see the documents you cannot formulate a full defence. Try ringing Morgans again in an hour or so. If they persist in playing games, file a defence on the basis that Morgans have not supplied documentation even though they admit they have received your requests but will only release the documents supporting their claim once they have seen your defence.

h197

Morgans may or may not be trying to delay matters, as it can take some time to recover documents from the orignal creditor.

If you do not want to file an 'embrassed' defence now based on the fact that the claimant has not provided copies of documents properly requested, then you need to obtain their agreement to an extension of 28 days. I suggest a phone call to obtain Morgans verbal agreement and a request for written confirmation. Once they have agreed verbally to an extension, then you have to write to the Court requesting an extension and confirming Morgans agreement.

If Morgans will not agree an extension, then you will have to file a defence pronto. Do not assume the later date you have calculated is correct.

h197

You have started youur response to the Claim well by sending in the AOS. This provides another 14 days for you to file a defence. By my recokoning, you have about another week but I would try and complete the defence this weekend.

The additional 14 days is supposed to provide the claimant (Cabot) with time to provide you with documents ot submitted with the claim. Normally a creditor should supply copies of the documents supporting the claim but there is an exemption to this rule when the claim originates through the Northampton Bulk Centre.

When you receive the claim form without the documents attached, the rules allow you to ask for these to be sent to you. You should send a letter referring to CPR 31.14 when asking for documents or to CPR 31.18 when askng for information. Sending a SAR to the original creditor at this stage isn't much use when you have a limited time to file a defence. There may be some information provided in response to a SAR at a later stage but do not delay filing a defence becasue the SAR response has not been received.

A requesting quoting S77/78 of the Consumer Credit Act is not in my opinion useful once the creditor has commenced a claim. This is because of a case in November 2009 [Carey v HSBC ]which allowed creditors to supply a 'reconstructed' agreement t(ie hat would be unsigned) in response to a S77/78 request.

I suggest you draft a SHORT defence (sometimes called an 'embrassed' defence on CAG) in which you answer the points raised in the claim form. It does not need to be a long document. You can file the defence electronically through Northampton provided it is less than 8,000 characters. Note, some of the embrassed' defences I have read on CAG run to over 25,000 characters which only proves the defence is too long.

Once you file a defence, Cabot will have 28 days to respond. If they do not, the case will be stayed automatically. If Cabot do respond and pay the Court fee, then the case will be transferred to your local county court and then, as they say, it will be 'GAME ON'.

As stated before, Carey only applies where the creditor is responding to a request from a debtor under S77/78 of the Act.

If the creditor insists that Carey allows them to just produce a 'reconstituted' document, refer them to paragraph 234 (4) of the judgement under the title of 'SUMMARY OF FINDINGS' wherein

(4) If an agreement has been varied [such as a change in interest rate] by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;"

and ask for the copy of the original agreement to be produced.

I think you should make a late application on form N244 to contest the court's jurisdiction and ask that the claim be struck out. State you resided in Jersey at the date the alleged agreement was entered into and that any agreement would be subject to Jersey and NOT English law. Point out that HSBC has yet to produce a copy of the agreement and so you should print off the t&cs from HSBC's Jersey website and produce these to the court to support your submission.

jockspy

cerberusalert is correct and the IP shold know better.

Reasonable funeral expenses have always been paid first from a deceased estate, even under the old Victorian legislation. If the IP gets funny, tell him to look at the "Administration of Insolvent Estates of Decased Persons Order 1986, Article 5(2)" and that if he dosen't pay up, you will report him to the Insolvency Service.

andy

Did you file a defence with the Northampton court?