HSBC managed account - Trying to remove a invalid? default

[HSBCrusher]

it is indeed possible to split the threads for you.

 

please post which posts you want moved, and I'll do it for you.

 

crusher

[chris1977]

Thanks Chris and HSBCrusher. I've decided to just start a new thread as some of the posts that would have to have been moved contain information relevant to the default removal claim.

 

The new thread is here and contains HSBC's defence which was received today. I'm hoping they're going to make a bit more of an effort with the default removal defence!!

 

If anyone can give me any advice on next steps I'd be grateful.

 

Cheers

 

Chris

[chris1977]

OK here goes.... Defence to the default claim received today:

 

Chris1977

 

and

 

HSBC Bank PLC

 

Defence

 

1. The Defendant is a Bank carrying on business at branches at ******, and elsewhere.

 

2. At all material times the claimant was a customer of the Bank.

 

3. The Defendant admits that the Claimant has held a current account and overdraft with the Defendant under the sort code and account number pleaded in the POC.

 

4. The current account is not an agreement regulated by the Consumer Credit Act 1974. Whilst the Defendant accepts that the overdraft is a regulated ConsumerCredit Act agreement, it is exempt from the documentary requirements of the Consumer Credit Act by Section 74(1)(b) and the Determination given by the Office of Fair Trading regarding overdrafts on current accounts. As such, there is no executed agreement for an overdraft and accordingly Section 78 of the consumer Credit Act 1974 does not bite.

 

5. The Claimant is indebted to the Defendant to the extent of the overdrawn amount outstanding on the current account. Formal demand for repayment was issued by the Defendant and when payment was not forthcoming the account was passsed in August 2007 to the bank's Debt Recovery Services, Metropolitan Collection Services Limited for recovery.

 

6. At the time of passing the Claimant's account for recovery, notice of the Claimant's default was recorded and the balance at the time of notifying the credit reference agency was £****.**. A copy of the Claimant's current account statement is attached as evidence of the correct outstanding balance in August 2007 and as evidence of the Claimant's liability to the Defendant.

 

7. The Claimant entered into an arrangement with Metropolitan Collection Services Limited in October 2007 to repay the indebtedness owed to the Defendant and the debt is being repaid at the monthly installment of £50.00. The last payment received was £50.00 on 3rd April 2008.

 

8. The Defendant denies that it is in breach of any term of the Consumer Credit Act 1974 as alleged or at all and the Claimant is put to strict proof thereof.

 

9. In relation to the allegations raised by the Claimant relating to bank charges the defendant says that the Claimant's account was governed by the Defendant's personal business banking terms and conditions. Pursuant to those terms the Defendant is entitled to make a charge for its services as set out in the Defendant's price list, including an overdraft review fee for considering whether to provide and providing an overdraft.

 

10. The Defendant denies that the charges applied to the Claimant's account amount to penalties at common law and/or unfair contract terms for the purpose of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs).

 

11. The charges applied to the Claimant's accuont were reasonsable and were properly fully disclosed in the Defendant's terms and conditions and published price list. the charges represent the contractually agreed price for the services provided and the UTCCRs are not applicable to them; alternatively, they are not unfair contrary to the UTCCRs. Further the charges are not default charges and, accordingly, can not amount to a penalty.

 

12. The Claimant's claim relating to the Defendant's alleged failure to comply with the Data Protection Act 1998 is denied. The Claimant has issued seperate proceedings at this court under claim number ******** under which he is seeking damages in relation to the same allegations and the Defendant has filed a Defence to those proceedings. The Defendant denies the allegations made by the Claimant in relation to the processing of data as alleged at all.

 

13. The Defendant denies that the Claimant is entitled pursuant to Section 14(1) of the Data Protection Act 1998 for the removal of the default records. The Claimant remains indebted to the Defendant.

 

14. Save as set out above, each and every allegation made by the Claimant is denied. For the reasons set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

My initial comments below.....

[chris1977]

1. The Defendant is a Bank carrying on business at branches at ******, and elsewhere.

 

Fair enough

 

2. At all material times the claimant was a customer of the Bank.

 

Ditto

3. The Defendant admits that the Claimant has held a current account and overdraft with the Defendant under the sort code and account number pleaded in the POC.

Ditto

4. The current account is not an agreement regulated by the Consumer Credit Act 1974. Whilst the Defendant accepts that the overdraft is a regulated ConsumerCredit Act agreement, it is exempt from the documentary requirements of the Consumer Credit Act by Section 74(1)(b) and the Determination given by the Office of Fair Trading regarding overdrafts on current accounts. As such, there is no executed agreement for an overdraft and accordingly Section 78 of the consumer Credit Act 1974 does not bite.

 

I never said that the current account was a regulated agreement, only the overdraft. Is the Court supposed to take them at their word that they have complied with the requirements of the OFT determination? I highlighted their failure to provide evidence that they have complied in my POC and they seem to have just ignored this point!

 

5. The Claimant is indebted to the Defendant to the extent of the overdrawn amount outstanding on the current account. Formal demand for repayment was issued by the Defendant and when payment was not forthcoming the account was passsed in August 2007 to the bank's Debt Recovery Services, Metropolitan Collection Services Limited for recovery.

 

Surely this is irrelevant until they can prove that they have complied with the OFT's requirements, otherwise, as they have already stated, they don't have a copy of an executed agreement meaning the debt is unenforcable outside of a Courtroom, so the formal demand is meaningless....?

They have also completed disregarded the section in my POC covering the Bank's failure to acknowledge my attempts at resolving this prior to the default being recorded.

 

6. At the time of passing the Claimant's account for recovery, notice of the Claimant's default was recorded and the balance at the time of notifying the credit reference agency was £****.**. A copy of the Claimant's current account statement is attached as evidence of the correct outstanding balance in August 2007 and as evidence of the Claimant's liability to the Defendant.

 

The attached statements prove that I received the funds, but not the exitence of an enforceable debt!

 

7. The Claimant entered into an arrangement with Metropolitan Collection Services Limited in October 2007 to repay the indebtedness owed to the Defendant and the debt is being repaid at the monthly installment of £50.00. The last payment received was £50.00 on 3rd April 2008.

 

True

 

8. The Defendant denies that it is in breach of any term of the Consumer Credit Act 1974 as alleged or at all and the Claimant is put to strict proof thereof.

 

Where do I start???

 

9. In relation to the allegations raised by the Claimant relating to bank charges the defendant says that the Claimant's account was governed by the Defendant's personal business banking terms and conditions. Pursuant to those terms the Defendant is entitled to make a charge for its services as set out in the Defendant's price list, including an overdraft review fee for considering whether to provide and providing an overdraft.

 

OK.....

 

10. The Defendant denies that the charges applied to the Claimant's account amount to penalties at common law and/or unfair contract terms for the purpose of the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs).

 

Hmmmm....

 

11. The charges applied to the Claimant's account were reasonsable and were properly fully disclosed in the Defendant's terms and conditions and published price list. the charges represent the contractually agreed price for the services provided and the UTCCRs are not applicable to them; alternatively, they are not unfair contrary to the UTCCRs. Further the charges are not default charges and, accordingly, can not amount to a penalty.

 

So where are these Terms and Conditions?

 

I'm pretty sure a Judge has recently ruled that the UTCCRs are in fact applicable.....

 

12. The Claimant's claim relating to the Defendant's alleged failure to comply with the Data Protection Act 1998 is denied. The Claimant has issued seperate proceedings at this court under claim number ******** under which he is seeking damages in relation to the same allegations and the Defendant has filed a Defence to those proceedings. The Defendant denies the allegations made by the Claimant in relation to the processing of data as alleged at all.

 

Actually, I have issued seperate proceedings for the Bank's failure to comply with my Section 7 DPA request. Totally unrelated to this claim!

 

The section in my POC covering the Data Protection is dealing with the bank's continued processing of my information without consent, and also to the recording of incorrect information.

 

13. The Defendant denies that the Claimant is entitled pursuant to Section 14(1) of the Data Protection Act 1998 for the removal of the default records. The Claimant remains indebted to the Defendant.

 

So because the bank says that I owe them money, this gives them the right to share incorrect data with anyone they choose to?

 

14. Save as set out above, each and every allegation made by the Claimant is denied. For the reasons set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

What a load of pants!

 

 

Feel free to comment, correct me where I've gone wrong and / or provide any advice.

 

Cheers

 

Chris

[car2403]

I never said that the current account was a regulated agreement, only the overdraft. Is the Court supposed to take them at their word that they have complied with the requirements of the OFT determination? I highlighted their failure to provide evidence that they have complied in my POC and they seem to have just ignored this point!

 

Yeah, they do have their wires mixed up there, don't they?!

 

Surely this is irrelevant until they can prove that they have complied with the OFT's requirements, otherwise, as they have already stated, they don't have a copy of an executed agreement meaning the debt is unenforcable outside of a Courtroom, so the formal demand is meaningless....?

 

Correct. No compliance with the determination = unenforceable debt.

 

They do seem to think they can rely on contract law, but the Judge won't fall for that - even if he isn't ofay with the CCA. (We'll make sure he is!)

 

They have also completed disregarded the section in my POC covering the Bank's failure to acknowledge my attempts at resolving this prior to the default being recorded.

 

It's good you've done that, but it doesn't help your claim that much, sadly. (You could go for costs against them, when you win, but as it's a small claim, you could be on a hiding to nothing there)

 

The attached statements prove that I received the funds, but not the exitence of an enforceable debt!

 

They are trying to pull the wool over the Judges eyes here.

 

Where do I start???

 

They are putting you to proof that they are in breach of the CCA? Wrong! It's them that has to prove they aren't, in order to enforce the agreement against you!

 

Also, notice the lack of a counterclaim against you? How confident are they that they can enforce the agreement now that they've missed the chance to issue a counterclaim against you?

 

Hmmmm....

 

Be careful here, Chris. Including the arguments about the charges (although, you probably can't avoid it at this stage!) could result in the case being stayed until the OFT test case outcome is known, which would severely delay the outcome, IMHO.

 

What a load of pants!

 

Couldn't have put it better myself.

 

It will be interesting to see their witness statements later on - if you get that far!

[chris1977]

Thanks for your comments Chris. I'll write to DG tomorrow confirming receipt of their Defence and I guess it's now just a case of waiting for the court to send the AQ.

 

Just out of curiousity, when would be a good time to suggest a settlement? Not that I think they'll even entertain the notion, but at least it'll show, if it gets to the courtroom, that I'm willing to compromise and avoid dragging this out any longer than it has to. I'd even be willing to contiue making payments and accept default removal in full and final settlement if they agreed to settle at this stage....

 

Cheers

 

Chris

[johnnymitch]

Makes you wonder if they're actually intending to try to justify this garbage in court , or are they still just trying to scare you off........ which at this stage is a bit desperate, I think:).

 

In answer to your query, Chris I think if you acknowledge receipt of their defence, suggest a settlement which would suit you and copy the acknowledgement letter to the court - that'll show your willingness to negotiate..... (recorded delivery as usual of course)

Edited June 9, 2008 by johnnymitch

[chris1977]

Makes you wonder if they're actually intending to try to justify this garbage in court , or are they still just trying to scare you off........ which at this stage is a bit desperate, I think:).

 

It certainly looks like a token effort doesn't it.....

 

In answer to your query, Chris I think if you acknowledge receipt of their defence, suggest a settlement which would suit you and copy the acknowledgement letter to the court - that'll show your willingness to negotiate..... (recorded delivery as usual of course)

 

Thanks for that Johnny

[johnnymitch]

You're welcome mate g'night !

[car2403]

In answer to your query, Chris I think if you acknowledge receipt of their defence, suggest a settlement which would suit you and copy the acknowledgement letter to the court - that'll show your willingness to negotiate..... (recorded delivery as usual of course)

 

Personally, I would wait until the AQ stage.

 

Why? Well, you've offered a settlement in your LBA - to do so now may actually be seen as harrassment of them. (Unlikely, but you know what they are like!)

 

At least you need to serve a copy of your completed AQ on them, so I would use that opportunity to offer some settlement terms.

 

Just out of curiousity, when would be a good time to suggest a settlement? Not that I think they'll even entertain the notion, but at least it'll show, if it gets to the courtroom, that I'm willing to compromise and avoid dragging this out any longer than it has to. I'd even be willing to contiue making payments and accept default removal in full and final settlement if they agreed to settle at this stage....

 

This could work in your favour, then, if you're willing to pay. You could offer to settle on the basis of a Consent Order, signed by all parties and issued by the Court, where you make £X payments each month until the balance (plus interest?) is cleared, but only on the basis that they remove the Default entered. It could work and this would show the Judge you aren't trying to dodge the debt when it does come to Court.

 

Remind me when you get your AQ and when it's due and I'll put something together for you. Usually, they'll want to draft their own Consent Order, (confidentiality clauses abound, probably!) which they'll send to you to sign and return to them - so it's worth putting a letter together putting this carrot forward, though.

[chris1977]

Thanks again for the advice folks. After mulling over Chris' comments I decided to hang back until I received the AQ before suggesting any settlement.

 

Personally, I would wait until the AQ stage.

 

This could work in your favour, then, if you're willing to pay. You could offer to settle on the basis of a Consent Order, signed by all parties and issued by the Court, where you make £X payments each month until the balance (plus interest?) is cleared, but only on the basis that they remove the Default entered. It could work and this would show the Judge you aren't trying to dodge the debt when it does come to Court.

 

Remind me when you get your AQ and when it's due and I'll put something together for you. Usually, they'll want to draft their own Consent Order, (confidentiality clauses abound, probably!) which they'll send to you to sign and return to them - so it's worth putting a letter together putting this carrot forward, though.

 

Well I've now received the AQ from the court, It looks pretty straight-forward, although I'm not entirely sure what to put in the "Any other information" section. But if the offer still stands Chris, about putting something together in the form of settlement terms based on default removal and a consent order for payment, I'll gladly take you up on it

 

Have until 30th June to submit the AQ

 

Cheers

 

Chris

[johnnymitch]

Thanks again for the advice folks. After mulling over Chris' comments I decided to hang back until I received the AQ before suggesting any settlement

 

Yep! That was definitely a better idea than mine..... I don't know if you've got this already, but it may give you some idea of what to put in the 'other info' bit..............

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

[car2403]

There's a guide to completing the AQ on my Default removal thread; (with some interesting draft directions care of Paul)

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html (amend to suit)

 

As for the settlement letter;

 

 

Your name & address

 

 

Date

 

 

Their name & address

Dear Sir/Madam,

Claimant –v– Defendant, in the *** County Court

Claim No: ***

Your reference: If applicable

Please find enclosed Allocation Questionnaire and Draft Order for Directions in the above claim, by way of service.

I am mindful of the Courts use of resources here, so in order to more speedily resolve this matter, I am willing to accept the sum of £X to settle my claim, along with removal of the Default or any other adverse credit history relating to the account in question that is recorded with each Credit Reference Agency and complete cessation of all collection activity on the account. I do not agree to waive my rights in respect of any other actions, nor do I agree to a clause of confidentiality.

I hope to hear from you very soon so that a reasonable conclusion to this claim might be achieved. I am sure that the Courts would approve of our settling this matter in a timely manner and without their further intervention

Yours faithfully,

 

 

 

 

 

Your name

 

You can put in what you like as settlement terms. :o

Edited June 16, 2008 by car2403

[chris1977]

Thanks again Johnny, Chris. I've drafted my settlement letter based on Chris' earlier post and completed the easy parts of my AQ. Struggling a little with the Directions though. As the bank has already stated in their Defence that an executed agreement does not exist for the overdraft, there's clearly no value in asking them to provide a copy of this or the default notice under Special Directions. So, do I ask them to provide copies of documents that prove they've complied with the s.74 determination instead? Or would I be helping them to construct their defence by highlighting this? Should I also ask for a copy of the Final Demand letter again?

 

Incidentally, the bank has stated that they are not obliged to provide copies of contracts as requested in my SAR as these "form part of a chronologically ordered filing system..." which "does not therefore fall within the scope of the Data Protection Act 1998". The full letter can be found in my DPA thread.

[car2403]

It would be worth including the directions regarding the s.74 Determination, but what you'll need to consider is how you will feel if they do provide those letters, etc. I say that, as I did the same with Barclays, and they actually sent me copies of the original letters! It's unlikely, but it could happen...

 

Not including the directions now would just give them some leeway later on, IMHO.

[chris1977]

Thanks Chris. Here's what I have so far......

 

AQ Section G - Other Information:

 

If the court is in agreement I, the Claimant, respectfully request that special directions may be given as per the attached draft order.

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper Claim. Furthermore, failure of the Defendant to supply the requested documentation will make the case much harder for the court to deal with.

 

It is respectfully requested this case be allocated to the small claims track. Should the Defendant not have the documentation required to defend this case I suggest that there will be no valid Defence. Therefore it stands to reason that this documentation must be disclosed before this case can progress any further.

Draft Order for Directions:

 

In the ******** County Court

 

Claim Number ********

 

 

 

 

 

 

 

Between

 

 

 

 

Chris1977 - Claimant

 

 

 

 

and

 

 

 

 

 

HSBC Bank PLC - Defendant

 

 

Draft Order for Directions

 

The Defendant shall within 14 days of service of this order send to the Claimant and to the Court:

 

• Certified true copy of the original Overdraft Agreement and any documents referred to within
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Copies of any documents which demonstrate that the Defendant has complied with the requirements of the Determination given by the Office of Fair Trading regarding overdrafts on current accounts
  
• Copies of any statement or other document(s) relied upon
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

The Claimant shall within 14 days thereafter file and serve the following

 

• An amended Claim sufficiently particularised in response to the documents supplied by the Defendant
  

If the Claimant fails to comply with this order, the Claim will be struck out without further order.

 

And my settlement letter:

 

Chris1977 vs HSBC Bank PLC

Claim No: ********, in the ******** County Court

Defendant’s Reference: ********

 

Dear Sir/Madam

 

Please find enclosed Allocation Questionnaire and Draft Order for Directions in the above claim, by way of service.

 

I am mindful of the Courts use of resources and, in order to more speedily resolve this matter, I am willing to accept the sum of £500.00, along with removal of the Default entry or any other adverse credit history relating to the account in question that is recorded with each Credit Reference Agency in full and final settlement of my claim. Should this offer be accepted, I would be willing to sign a Consent Order issued by the court, instructing me to make regular payments of £40 per month until the balance is satisfied.

 

I hope to hear from you soon so that a reasonable conclusion to this claim might be achieved. I am sure that the Courts would approve of our settling this in a timely manner and without their further intervention.

 

Yours faithfully,

 

Chris1977

 

Any thoughts??

 

P.S I've asked for a copy of a Default Notice as I still can't see why the bank should be exempt from complying with the requirements of the CCA (other than Part V of course, provided they can prove they complied with the Determination). Am I barking up the wrong tree here or is this worth a shot?

[car2403]

Thanks Chris. Here's what I have so far......

 

AQ Section G - Other Information:

 

Draft Order for Directions:

 

And my settlement letter:

 

Any thoughts??

 

P.S I've asked for a copy of a Default Notice as I still can't see why the bank should be exempt from complying with the requirements of the CCA (other than Part V of course, provided they can prove they complied with the Determination). Am I barking up the wrong tree here or is this worth a shot?

 

2 things;

 

Firstly, you should send the settlement letter separately to the AQ submission. You also need to mark the settlement offer as "without prejudice save as to costs", as you're effectively acknowledging the debt by putting the consent order forward - and we don't want to see this letter in Court, in front of the Judge, without your explicit consent.

 

Next, the directions need to state when the Defendant is to submit it's witness statement and skeleton arguments. So, after that last part about you submitting yours, you need to put, something like;

 

"The defendant shall, within 14 days of service of the above documentation from the Claimant, file and serve all documents and witness statements that it intends to rely on at the hearing"

 

You'll then need to state when the trail is to be listed;

 

"The case is to be listed for a 4 hearing in the first available slot after XX/XX/XXXX" (You'll have to work the dates out - AQ submission plus 2 weeks, 2 weeks for them to serve documents, 2 weeks for you to reply then 2 weeks for them to reply to your reply)

 

The rest looks fine

[chris1977]

Thanks for the advice again Chris! The settlement letter was always going to be without prejudice but can you explain "save as to costs"? I thought this was only applicable under CPR Part 36 offers or have I misread the Practice Directions....

 

I've amended my draft order for directions and unless anyone can spot any glaring errors or ommissions, the following will be going off to the court tomorrow, along with my AQ, with a copy to DG Solicitors:

 

In the ********

 

Claim Number ********

 

 

 

 

 

 

 

Between

 

 

 

 

Chris1977 - Claimant

 

 

 

 

and

 

 

 

 

 

HSBC Bank PLC - Defendant

 

 

Draft Order for Directions

 

The Defendant shall within 14 days of service of this order send to the Claimant and to the Court:

 

• Certified true copy of the original Overdraft Agreement and any documents referred to within
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Copies of any documents which demonstrate that the Defendant has complied with the requirements of the Determination given by the Office of Fair Trading regarding overdrafts on current accounts
  
• Copies of any statement or other document(s) relied upon
  

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

The Claimant shall within 14 days thereafter file and serve the following

 

• An amended Claim sufficiently particularised in response to the documents supplied by the Defendant
  

If the Claimant fails to comply with this order, the Claim will be struck out without further order.

 

The defendant shall, within 14 days of service of the above documentation from the Claimant, file and serve the following

 

· All documents and witness statements that it intends to rely on at the hearing.

 

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

 

The case is to be listed for a hearing in the first available slot after 25th August

[car2403]

The "save as to costs" means you can produce the letter later if they lose on the same or lesser terms. Without that, you can't produce the letter at all without their consent.

 

Part 36 probably won't apply, as this is a small claim - using without prejudice save as to costs just shows again that you know what is going on and won't be taken for a fool, IMHO.

 

In all reality, you probably won't get costs awarded against them later anyway, due to CPR Part 27, but it's woth a shot...

[chris1977]

Thanks Chris for explaining. Don't suppose you fancy a trip down south in August do you? I could use someone who knows what they're talking about if this goes all the way

[car2403]

The possibility of this going all the way is very remote - they don't want to risk setting a precedant here, as that would be catastrophic to their business.

 

Where are you? I'm actually working "down South" for a few months... ;)

[pt2537]

im down south too, you cant get much further south than me;)

 

id be up for a trip to the court,

[chris1977]

I'm on the Surrey/Hampshire border. We could have a CAG day out, any more takers?

[chris1977]

Received the bank's copy of the AQ today - disagree with the order for directions and request standard directions. Shock Horror!! .

[car2403]

Received the bank's copy of the AQ today - disagree with the order for directions and request standard directions. Shock Horror!! .

 

Should that be;

 

Received the bank's copy of the AQ today - disagree with the draft order for directions and request standard directions. Shock Horror!! .