HSBC County Court Claim

[Docman]

Pullem

 

HSBC have included a lot of waffle in their witness statement but have skipped over the important bits. You need to challenge them on each major issue but don't get into waffle yourself.

 

IMO,your statement is too long. By way of example, it's nearly at the maximum that can be filed electronically. The document needs to be made shorter but still deal with 2 important points, the requirement for a SIGNED agreement per S61 and also the time period the Default Notice. As it is, I fear a judge may not read all you have written and just accept the verbiage from the rent-a-lawyer that HSBC will send to court.

 

I'll have a look at what I filed when I was up against these bullies and try to post them up later as a suggestion of what i'm on about.

[banker_rhymes_with]

Hello pullem01 and Docman!

 

No signed Agreement that complies with s61(1)(a) and no valid s87(1) Default Notice, suggests they are pulling your leg.

 

Their Witness Statement is nothing more than a wish list for an early Christmas present.

 

The only way they will make this stick is if they have bunged a Judge a fat brown envelope on the Golf Course.

 

However, as that is not so impossible as it sounds, best to hit back hard and make sure your Witness Statement is crystal clear and lining the Judge up for an awkward Appeal if they try to gift wrap this for DG and HSBC.

 

I'm a bit busy right now, so hang fire on the Witness Statement, and over the next few days I'm sure we can all help to get this into shape for you.

 

Cheers,

BRW

[pullem01]

Thanks guys, feeling a lot more comfortable now, got plenty of other stuff to keep me busy but will try and put some thought into it over the next few days.

[citizenB]

Pullem

 

HSBC have included a lot of waffle in their witness statement but have skipped over the important bits. You need to challenge them on each major issue but don't get into waffle yourself.

 

IMO,your statement is too long. By way of example, it's nearly at the maximum that can be filed electronically. The document needs to be made shorter but still deal with 2 important points, the requirement for a SIGNED agreement per S61 and also the time period the Default Notice. As it is, I fear a judge may not read all you have written and just accept the verbiage from the rent-a-lawyer that HSBC will send to court.

 

I'll have a look at what I filed when I was up against these bullies and try to post them up later as a suggestion of what i'm on about.

 

Has this case not been assigned to your local court yet ?

[Docman]

CB

 

I understand that it is a combined application in the local county court to lift the stay imposed by Northampton in June 2008 (ie nearly 18 months ago) AND for SJ wothout ANY documents. HSBC are either getting desparate to pay their bonuses this year or they are hoping to bully the judge.

[pullem01]

You are correct Docman, it's an application at my Local county court for summary judgement and lifting the stay after they failed to respond to my defence submitted over a year ago.

[Docman]

Hi pullem

 

I've had a go at drafting something but it wasn't easy due to the hotchpotch of a witness statement from Dumb Goofers. Their document is supposed to be a witness statement suporting an application. The grounds for the application can be stated on the form N244 and a witness statement need only be used to formally produce documents as evidence.

 

What has been produced by Dumb Goofers is a cross betwen a witness statement, an Amended POC, and a Response to Defence. Consequently, I took the view that you had to address each of the points in the WS, as though it was an Amended POC but without making your document look to much like an Amended Defence.

 

Anyway, have a look and see what you think. Comments from others much appreciated...

Pullem WS.doc

[pullem01]

Thanks docman, with my first glance it's looking good. Can see what you mean now about addressing each point and cutting out the waffle (unlike DG). Will have a proper look through later this evening and come back with any additional thoughts.

[pullem01]

Right have started to update my witness statement, does anyone else have anything to add. Anyone come across this scenario in court already ?

[citizenB]

Looks like Docman has sorted out the main issues for you pullem. DG are masters at waffle. They hope they will overwhelm you with irrelevant information that the main issues ie the lack of a signed and valid agreement will be overlooked.

 

No, I cant say I have come across anything quite like this.

[pullem01]

Ok, I've got my witness statement together along with my exhibit bundle (which is looking like a small forest already). Can I just clarify in my exhibit bundle I have:

All correspondance from myself to DG

Copies of proof of postage

Copies of filed defence

Copies of court letters stating received defence etc

Copies of correspodance from DG

I've numbered the pages and put it in chronological order as this seems most logical for indexing and quick retrieval in court.

 

Do I need to include a bundle with all the case law associated with my defence within my exhibit at this stage and is there anything else that I need to include?

[Josie8]

se

Edited December 24, 2009 by Josie8

[Docman]

The case Carey v Hsbc was mainly over what a creditor needs to do in order to comply with s. 78 request. They are to be allowed to reconstitute agreements. This is also in accordance with the OFT draft guidance which was introduced into evidence. They do not have to provide a photocopy of the application at all.

 

In addition prescribed terms can be overleaf or referred to as attached for agreements pre 2005. This will be a matter of evidence individual to each case

 

josie

 

This case has nothing to do with S78, so today's announcement is irrelevant. Or are you doing the banks job for them?

Doc

[Josie8]

Apologies I must have misread thread. I thought here was an issue regarding a credit agreement containing prescribed terms.

 

However I would suggest you read judgment before decrying me. The judgment states that a creditor does not have to produce a signed copy of agreement when enforcing as long as can demonstrate on balance of possibilites that a compliant agreement was entered into originally.

Edited December 24, 2009 by Josie8

[Docman]

No problem, josie.

 

As you can see from the extract from the draft witness statement, HSBC have admitted not having an agreement or a DN. I am in exactly the same position, yet HSBC are proceeding. If you can mis-read a case, think what will happen in courts where there is a pushy 'solicitor' for the bank, or with DJs who don't know consumer credit law, or simply don't like LiPs, etc.

 

"

1. On xx April 2008 the claimant commenced proceedings through the Northampton County Court.
   
2. I filed a defence at Northampton County Court on the xx May 2008.
   
3. The Claimant did not respond to the Defence and the claim was stayed by the Court.
   
4. On xx June 2008, I received correspondence from the Claimant’s solicitors in which they admitted the Claimant was unable to provide a copy of a Default Notice or original signed credit agreement.
   
5. Further, on xx August 2008, I received further correspondence from the Claimant’s solicitors enclosing a copy of the Claimant’s current terms and conditions, a notice of variation and a blank copy of a credit agreement.
   

I did not receive any further correspondence from the Claimant or their solicitors until xx November 2009, when I received correspondence from the XXXX County Court stating that an application for Summary Judgement had been made by the Claimant. "

[pullem01]

So been spending my eveings researching consumer credit law, which has certainly made fantastic bedtime reading. My witness statement and exhibit bundle is ready to go but still not sure if I should include everything else I will rely on or not (copy of CCA 1974 with s61 & s87 marked, CCA regulations 1983 + amendments 2004 and my copies of the cases associated with my defence Wilson-v- FCT, Dimond v Lovell, Woodchester Lease Management Services Ltd v Swain and Kpohraror v Woolwich Building Society) as this will make the whole exhibit bundle about 500 pages.

Does the pack have to be with DG as well as the court 7 days prior to court date, if so might have to send tomorrow to ensure it's there in time.

[Docman]

pullem

 

You just have to file your witness statement and exhibits. Copies of statutes, regulations etc are not required at this stage. They may be needed later if the case gets to a full trial. Don't forget to attach a certificate of service [N215] to the copy sent to the court, showing that you have served DG.

[pullem01]

So everything is filed with the court, booked day off from work and just recieved a phone call from DG stating they are sending a letter out to me to let me know that they are asking for the case to be adjourned awaiting the outcome of test case Carey vs HSBC, where the defendants defence was the same as mine and the judge ruled that the claimant could re-issue an agreement. They then asked me if I wanted to withdraw my defence as it would save costs WTF !!! I politely informed them that I would like the DJ to make a decison on my case and I would not be withdrawing my defence. Can someone please shed some info on what is going on ?? Surely if the judge had made a ruling then they can't be waiting the outcome of the test case ?? The person on the phone ( have now found out this is Ms Osbourne) didn't seem to have a clue what she was supposed to be telling me, can anyone tell me what is happening with this case. Can I put in any response to the adjournment?

Edited January 7, 2010 by pullem01

[Docman]

pulem

 

A bit odd to await the outcome as we know that Carey was handed down before Christmas. Perhaps you should contact Dumb Goofers and offer to send them a copy of the judgment and at the same time advise them that the Manchester test cases (inc Carey) were concerned with provision of copy agreements to meet requests under S78 and NOT the production of agreements to enforce claims. Such agreements have to comply with S61.

 

I would also contact the court and advise them that the Manchester cases have no relevance and the claimant's request is just a further delaying tactic. Ask the court that the hearing of your application go ahead.

[pullem01]

So I've a drafted an email to DG summarising the above points, thought I better give my local county court first and they have had no application for adjournment. Although I have been told to ring back Monday evening / Tuesday morning to check whether the case will be heard due to weather conditions. I wonder if this is another of DG's tactics to get me to withdraw the defence ?

[pullem01]

Spoke to the county court today, the hearing will still be going ahead tomorrow. Adjournment request went before DJ and he rejected DG's application as not relevant to my case !!! Hopefully may have a good DJ by the looks of it.

Can anyone tell me what to expect for tomorrow, getting a bit nervous about it now. I have three sets of my witness statement and exhibit, a notepad for making notes, draft of costs (just in case), printouts of CCA 1974 with s61 & s87 marked, notes around the irrelevance of test cases in case I'm asked about that.

[pullem01]

Sorry to bump, in court tomorrow for opposition to HSBC's application for summary judgement and application to strike out my defence. I know the basics of writing notes, asking for clarification, addressing the judge as sir/madam etc but don't know the court process bits. Can anyone tell me what to expect - Do I read out my witness statement or will the DJ just read the witness statements from both sides. I presume I will need to counter any arguments from DG, how to I do this ? Do I wait for DG to finish then address the DJ with my points?

TIA

[citizenB]

Hi pullem,

 

Usually the person bringing the claim is asked to kick off, then the other side gets their chance to speak.

 

You shouldnt interrupt either the DJ or the opposition when they are speaking.

 

Be respectful at all times.

 

Here are a couple of posts one from BRW and the other from tomterm8 on how to behave in court.

 

I am sure you will be ok:D

 

EMPTY DESK TRICK

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

 

 

HTH and good luck for tomorrow

[pullem01]

So I'm back from the court, it turned out to be a complete waste of a morning.

DG representative kicked off stated that they had requested an adjournment which was denied but the Carey test case was clearly pertiant so began to present Carey test case to DJ.

Turns out that we had a different DJ than the one who made the decision on Monday that the test case was irrelevant.

I responded with the fact that I thought the test case was irrelevant as the test case was dealing with provision of agreements under s77-79 and not the production of agreements to enforce claims where the creditor is required to provide a true copy when disputing any breach of the CCA. There is no singed agreement that complies with s61(1) and from my understanding of the CCA, execution involves signing an agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement.

DJ then said so I can see from your witness statement that you oppose this application for strike out on the ground of non-compliance with s61 and s87. YES, YES, YES

She then states but in DG's exhibit, you have signed to say you agree to the terms and conditions in your change of title document, panic..panic.. panic - look for the copy, and it states back account number and the words C/CARD. So I replied there is no account number detailed with the words C/CARD it could have been anyone of my cards. The DJ did not look amused, then summed up it is inappropriate for me to deal with this due to the recent test case, both parties to provide additional witness statements, then turns to DG's rep and states I suggest you mention the fact that the defendant has signed a change of title document which says she agrees to the terms and conditions. There I am thinking they are meant to be impartial. Anyway she then turns to me and says I take it that you have taken no legal advice and I suggest you think about discontinuing unless you want a very large costs bill.

Adjourned for 1st open date after 16th Feb.

I didn't think I did anything wrong with my statements, so how come the DJ seemed to have it in for me?? Really worried now if this goes before her again that DG will be granted the summary judgement.

[citizenB]

Oh bliddy hell,

 

I think we need for someone with more legal knowledge to look in on you. Will flag for attention.