HSBC County Court Claim

[pt2537]

Oh dear, well, that claim sucks more that a cheap whore, those POCs are completely insufficiently particualrised

 

No account number for starters, no reference to the legislation under which the claim is brought and quite frankly a pitiful attempt at a claim form

 

you need to send off the CPR request letter as a matter of extreme urgency, this is the letter i use

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

 

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. All records you hold on me relevant to this case, including but not limited to:

 

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d.Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

 

 

obviously the part about the Assignment will not be relevent as the debt is being pursued by HSBC directly so you will need to amend it to suit

 

you need to send it via next day delivery , do not send it by the basic recorded delivery as that will not do

 

special delivery is the minimum

 

did you acknowledge service of the claim?

 

regards

paul

[pt2537]

oh, and just to really make their day, their Letter before Action is lame, it fails to give effect to the CPR pre action protocols as it only gives you 7 days to pay

 

the CPR requires a reasonable time frame which is usually considered 28 days

[pt2537]

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the particulars of claim

• It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

• Notwithstanding point XX, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 CCA 1974.section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

taken from one of the defences i have written

[pt2537]

Excellent thread - I shall be using some of this myself.

 

Question - when sending a CPR request for information, do I need to send a copy of the letter to the court?

 

Thanks.

No there is no need to send a copy to the court

 

also make sure that you send the CPR request via special delivery as you will need to show proof of delivery to the court at the later stages

[pt2537]

Oh deary me,

 

Fillet their donkey me thinks,

 

who the hell are they trying to kid, no credit agreement no chance of enforcement, there is case law which goes some way to confirm that even if the lender can show that the monies are spent, they are still denied the rights of enforcement if they cannot provide a copy of the agreement signed by the debtor

 

they need a rocket up them,

 

i will have a look to see if i have any good letters on file

[pt2537]

WITHOUT PREJUDICE

 

SAVE AS TO COSTS

 

 

Dear Sirs,

 

Thank you for your letter dated xxxxx the contents of which I note,

 

I am afraid I cannot accept your offer to withdraw my defence as I feel it is valid and any application for summary judgment will be countered with an application to have your case struck out under CPR 3.4 or in the alternative a declaration pursuant to Section 142(1) Consumer credit Act 1974

 

 

I invite you to withdraw this action against me while you have the chance, you case is wholly without merit, you will not doubt be aware of the cases of London North Securities Ltd & Mr and Mrs. Meadows [2005] EWCA Civ 956, Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul), Dimond v. Lovell - [2000] Q.B. 216, Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299,McGinn and Grange Wood securities [2002] EWCA Civ 522, Wilson v Robertson’s (London) Ltd [2005] EWHC 1425 (Ch), these cases support the view that without a copy of the credit agreement containing the prescribed terms per schedule 6 column 2 of the Consumer Credit Agreements Regulations 1983 (SI1983 / 1553) bearing the signature of the debtor per S 61 Consumer Credit Act 1974 the agreement is rendered unenforceable even by a court

 

Now if it is your contention that the Consumer Credit Act 2006 repeals the unenforceable sections of the 1974 Act, I must draw your attention to schedule 3 section 11 of the Consumer Credit Act 2006

Consumer Credit Act 2006 (c. 14) - Statute Law Database which states as below

 

11 The repeal by this Act of—

 

(a)the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words “or 127(3)” in subsection (3) of section 185 of that Act,

 

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

I have copies of all the cases I have referred to and also hold copies of the Regulations as well, I strongly advise that you take notice of the case authorities I cited as I cannot see how you hope to have a judge in a county court over rule the decisions of the Court of Appeal and the House of Lords which are clearly relevant in this case

 

I quote from Para 28,29,30,72 of Lord Nichols of Birkenhead’s judgment in Wilson and FCT

 

28……………..Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be side-stepped by recourse to a pledge or other form of security furnished in support of the debtor's obligations under the agreement.

 

 

72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his rights under the agreement, including his rights to any security, which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in cases of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

So it is clear from Wilson and FCT alone that without the agreement, your case is fundamentally flawed

 

I trust you will give consideration to discontinuing your action against me, and will advise your clients of the extreme risks in continuing this action without the documents to support your claim

 

If you do not withdraw this action I shall upon successful application for strike out request the court award me costs and reserve the right to produce this letter where costs are being considered

 

 

thats my suggestion to send them

 

they havent got a hope in hells chance

Edited September 21, 2008 by pt2537

[pt2537]

Hi

 

Long story short, I received 2 letters from Restons at various stages advising me I had no case, first threatening they would get summary judgement, and inviting me to give up to avoid further costs.

 

With Pauls (pt2537) help (excellent amended defence), I not only went on to win by forcing the cheeky barstewards to discontine (BECAUSE IT WAS THEM WHO DID NOT HAVE A CASE ) , but also received costs AGAINST THEM . and what a sweet victory it was as well

 

So my advice here is to listen to Paul, they've as good as admitted they are the ones who cannot win.

 

I'd be tempted to send the letter back unsigned with "Stuff you" or something more suitable written across it in capitals.

 

And what about the matter of unfair practice by trying to con you into believing you have no chance of success and getting you to sign your case away? Hmm...

 

You can win this one! we have more or less won already

 

Cheers

Rob

Thanks Rob, its still annoys me where these solicitors try to hoodwink people into believing they are in a stronger position than they actually are

[pt2537]

HAK, you simply make an application to the court on a N244 along with a fee of £75

 

if you do go with this route you are better off asking for summary judgment too

[pt2537]

IN THE XXXX COUNTY COURT Claim No:

 

 

 

 

BETWEEN:

 

 

[ ]

Claimant

and

[ ]

Defendant

draft/ORDER

UPON reading the Defendant’s Application Notice dated [ ] and the witness statements filed by the parties

 

IT IS ORDERED THAT:

 

1. The Defendant be granted summary judgment and the claim is struck out.

2. The Claimant do pay the Defendant’s costs of the claim, in the sum of £[ ] within 14 days.

 

 

 

 

 

then on the N244 in box three , something along the lines of

 

An order (a draft of which is attached) that Summary Judgment be granted in favour of the Defendant pursuant to Part 24 CPR and/or the claimant's claim be struck out because the claimant has no real prospect of succeeding on the claim and there is no other compelling reason why there should be a trial.

If the claimant wishes to rely on written evidence, he must file and serve copies on each party at least 7 days before any hearing date set by the court.

 

all you need to do is amend the And/OR Parts to say just "And"

 

just a suggestion so its your call at the end of the day as to what you feel comfortable with

[pt2537]

sorry Doc your slightly wrong there

 

There are direct access CFA counsel

 

John pugh of John Pugh Chambers is one of them