Marlin claimform - HSBC OD debt ****SETTLED VIA MEDIATION****

[AndyOrch]

Right - Have received a reply to my defence. Still none of the documents the court ordered them to supply have been supplied.

 

Just a few points

 

They are saying that An overdraft agreement would constitute provision of credit but in this instance there was no agreement by HSBC to provide an overdraft and therefore there was no agreement to provide credit. The determination only relates to debtor - creditor agreements enabling the debtor to overdraw on a current account, so if there was no overdraft agreement the requirement for an executed agreement under the Act doesnt apply. This was an agreed overdraft, so surely they should have provided us with a copy of the terms and conditions. Not exactly they are excempt under part 5 v

 

They also say there is no need for a default notice as its not regulated by the act and there is no requirement for a default or termination notice to be issued.Correct but there is a need for a termination of account notice similar to a default notice recalling any arrears did you ever recieve a notice served under sections 76(1) and 98(1) of the CCA 1974 its not technally a default note more of a notice to terminate the account overdraft agreement

 

They then go on to say that we are aware of the debt and deliberately fraustrating court proceedures.

 

What do I do now, do I wait to see what the Court says must be done or what.

 

Please Help

 

Regards

 

Andy;)

[Craftygirl42]

Thanks for your reply Andy

 

I dont remember receiving a termination notice, it was a long time ago, this has been paid via a DMP for more than two years. I have requested this, but they have sidestepped my request. They were ordered by the Court to provide a copy of the termination notice and again havent complied, this should have been with the court last week.

 

I have read on here that they should have provided me with terms and conditions once the overdraft was agreed, as per the Coouts -v- Sebastyen case.

 

They also mention an agreement in their POC and were ordered to provide that too, nothing as of yet

 

Should I wait to see what the Court orders or should I be doing something.

[Craftygirl42]

Right a court date has been set even though no documents that the Court ordered have been supplied.

 

The Court have also said I have to obtain the 6 years statements by another means, should I SARS HSBC or ask Mortimer for more statements as they sent a year or so

 

Please can someone help.

[42man]

I think a SAR to both will be the only way to go CG42 if they won't make an order....!! There is a SAR in the templates link below (in my signature)

[Craftygirl42]

Thank you 42man, I will sort that out and send it. Should it go to HSBC or Marlin, they did say when they sent the Assignment that could SARS them.

 

Also do you have any links to any witness statements, so I can have a look at these. I have a while before the court date, but want to try and sort something

 

Thanks

[AndyOrch]

Thank you 42man, I will sort that out and send it. Should it go to HSBC or Marlin, they did say when they sent the Assignment that could SARS them.

 

Also do you have any links to any witness statements, so I can have a look at these. I have a while before the court date, but want to try and sort something

 

Thanks

 

Help there you go Craftygirl PF produced a good witness statement towards the end of his thread

 

Regards

Andy:cool:

[Craftygirl42]

Thanks Andy, will have a look later, at least it gives me an idea of what I should be doing. Would you be willing to look it over once I have sorted something

[AndyOrch]

Thanks Andy, will have a look later, at least it gives me an idea of what I should be doing. Would you be willing to look it over once I have sorted something

 

Certainly ( if im around )

 

Andy

[Craftygirl42]

~Andy Please could you let me know your thoughts on my reply in Post 127 to your comments on the previous post.

 

There seems to be little info on what docs they should supply in the case of an overdraft, and I just need to know if I am right in proceeding with this and arguing.

 

Many thanks

[AndyOrch]

Thanks for your reply Andy

 

I dont remember receiving a termination notice, it was a long time ago, this has been paid via a DMP for more than two years. I have requested this, but they have sidestepped my request. They were ordered by the Court to provide a copy of the termination notice and again havent complied, this should have been with the court last week. What date was on the order and by when?

 

I have read on here that they should have provided me with terms and conditions once the overdraft was agreed, as per the Coouts -v- Sebastyen case. Should but not always

 

They also mention an agreement in their POC and were ordered to provide that too, nothing as of yet Again date of order and by when?

 

Should I wait to see what the Court orders or should I be doing something.

In form the Court that they have failled to respond to the DJ order and request a strike out

 

#

 

Regards

 

Andy:cool:

Edited March 20, 2009 by Andyorch

[42man]

I think a SAR to both might be a good idea CG42....

[Craftygirl42]

Hi Andy

 

The date of the Court order was the 18 Feb and its says the Claimant shal file and serve in support of its claim by the 13March copies of the following documents

 

1. Default notice served by HSBC

2. Termination notces served by HSBC

3. Notice of assignment served

 

All we have received is a notice of assignment

 

Can I also request a strike out even if the judge has now set a hearing date and said that all the original documents should be bought on the day

 

In order to prepare my statement, I do need to know exactly what I should have been provided with.

[AndyOrch]

Hi Andy

 

The date of the Court order was the 18 Feb and its says the Claimant shal file and serve in support of its claim by the 13March copies of the following documents

 

1. Default notice served by HSBC

2. Termination notces served by HSBC

3. Notice of assignment served

 

All we have received is a notice of assignment

 

Can I also request a strike out even if the judge has now set a hearing date and said that all the original documents should be bought on the day

What is the date of the hearing?

 

In order to prepare my statement, I do need to know exactly what I should have been provided with.

 

Unless they do turn up with the ordrerd documents then the DJ should strike out the claim anyway saving you £75 vis a vis an application notice

 

I would continue to prepare your statement on the basis that no documents have been disclosed even though ordered to do so by the DJ

have they provided your CCA?

They are really going to come unstuck if they cant produce a valid DN or Termination notice and your statement should reflect that as the basis of your defence

 

Regards

 

Andy:cool:

[Craftygirl42]

Andy, its an overdraft so dont need a CCA, but they have mentioned 'an agreement' in their POC and this hasnt been supplied either.

 

The hearing is not until the 9th June, but I am away for 10 days just before that. The judge has ordered the exchange of info and statement bit to be 14 days before, which is during my break.

 

I just wondered why the Judge would order a hearing when they hadnt adhered to the Court Order, shouldnt it have been struck out at that point

 

Thanks

[AndyOrch]

Well yes you are correct. You can bring this to the Courts attention and request that the hearing be vacated on for that reason.Phone the court and ask to speak to the Case Manager and also follow it up in writing.

As i have stated the only other way is via the N244 application to strike out but will cost you,Check with the Court they are most helpful and ask their advise what would be your best move on this matter.

 

Regards

 

Andy

[Craftygirl42]

Thank you Andy. I get confused by all this court stuff and just having some support and help, really does help get things in prospective. I will ring the court tomorrow as it will be easier to talk as children here.

 

Kind regards

 

CG

[AndyOrch]

In the xxxxxxx County Court

 

 

 

Claim no

 

 

 

 

 

 

 

 

Between

 

 

 

XXXXXXXXx

 

 

 

–V-

 

 

 

XXXXXXXXx

 

 

For the Attention of the Case manager

 

 

 

 

Dear Sir.

 

Further to the order made by District Judge XXXXXXXX sitting at the XXXXXXX County Court on XX (MONTH) 2009

 

I note that the claimant has now failed to submit ***any documents**** supporting their case despite being ordered to do so.

 

The claimant has had every opportunity to file such documentation and the size of the organisation, it is not unreasonable for them to have filed such documentation on time at the first opportunity, they have since been given a second chance to file documents by order of District Judge xxxxxxx and they appear to have ignored the Honourable Judges orders and have failed to comply as directed

 

The result of this failure is that I am unable to file a fully particularised defence to the claimants claim as directed by the Honourable Judge xxxxxxx as without the documentation which the claimant relies upon, I am unable to answer their allegations as set out in their particulars and I am placed at a severe disadvantage, as I am a Litigant in person

 

Therefore, I would request that the pursuant to CPR part 3.4, 2 © that the claim is struck out without further order

 

If this is not acceptable, then please refer this letter and the file to District Judge xxxxxxxxx to highlight XXXXXXX’s non-compliance with the orders dated xx xxx 2009 and for further directions to be issued.

 

 

Signed……………………………. (Defendant)

 

Date …………………………….

 

I trust the above is of help

 

Regards

 

Andy;)

[Craftygirl42]

Thank you Andy, I dont have anything to lose by sending that letter and see where it gets me. At the end of it all, I dont feel I have anything to lose by fighting this, at worst they will get a CCJ against me. I will also get the SARS done when hubby gets paid next week and hopefully that will turn up statements in order to see what charges there are on the account

 

ETA: Wouldnt it all have been put before the judge though after they didnt comply with the courts directions in order for it to be giving a hearing. It does say that the DJ has considered the statement of case and AQ's filed and has allocated it to the Small claims track.

 

Thanks for your help, its much appreciated

Edited March 25, 2009 by Craftygirl42

[Craftygirl42]

I have today received a form to agree to mediation and that an appointment will be made for a 1 hour telephone conversation.

 

Has anyone done this and have you gained by it.

 

I am going to be working on my Witness Statement next week

 

Thanks

 

CG

[Craftygirl42]

Right, I am preparing my witness statement at the moment as off on holiday in a week and the statement has to be served on my return.

 

Now a couple of queries. I have a letter from Marlin stating my balance dated the 11 Sept, on the 31 Oct my Claim form states the amount is £113 more. The judge has refused to order statements, but this is a huge discrepancy. Any suggestions on how to word it in my statement and I assume I need to enclose a copy of the letter to confirm

 

Thanks

[Craftygirl42]

Here is my Witness Statement. Please bear in mind its an overdraft

 

• We xxxx andxxxxare the defendants in this case and make the following statement as our defence to the claim made by Phoenix Recoveries (UK) Ltd.
  

• We make this defence against the Claimants claim against us. Except where otherwise mentioned in this Defence. I neither admit nor deny any allegation made in the Claimants Particular’s of Claim and put the Claimant to strict proof thereof.
  

• I make this Defence from information and facts within my own knowledge and which I believe to be true.
  

• The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia;-
  

• The claimants’ particular of claims disclose no legal cause for action and they are embarrassing to the defendant as the claimants statement of case is insufficiently particularized and does not comply or even attempt to comply with CPR Part 16. In this regard I wish to draw the Courts Attention to the following matters
  

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged course of action. No particulars are offered in relation to the nature of the agreement referred to, the method the claimant calculated any outstanding amounts due, or any termination notices issued and any other matters necessary to substantiate the claimant’s claim.

b) A copy of the purported agreement that the claimant cites in the Particulars of Claim, which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

c) No account number is contained within the particulars to enable me to identify the account on which this claim is brought.

• The Defendant understands that with particulars of claim issued through Northampton County Court bulk centre, the documents do not need to be attached, but they should be forwarded to the defendant at the claimant’s earliest opportunity as this did not happen I put the claimant to strict proof thereof.
  

• In all circumstances the Defendant denies being indebted to the claimant as alleged or at all
  

THE BUILD UP TO THIS ACTION

• The Defendants have been making a monthly payment of xxx as part of a Debt Management Plan. These payments are up to date and have continued up to this point.
  

• On the xxx xxxxafter receiving a Letter Before Action, we requested under the CPR copies of all records held on us relating to this case which included
  

a) All transactions, including charges, fees, interest, payments and both the amounts of credit and any repayments made to the account.

b) True copies of any notice of assignment and/or default notice or enforcement notice that you sent to me, with a copy of any proof of posting.

c) Details of any collection charges added to the account.

This letter was sent by special delivery and was received by the claimants on xxxxx.

10) In reply we received a County Court Claim.

11) Following our Allocation Questionnaire and directions, we did receive some documents from the Claimants including some statements and a copy of the Notice of Assignment..

12) On xx February 2009, the Court ordered that the Claimants shall file and serve by xx March 2009 copies of the following documents

1) default notices served on the Defendants by the Claimant t/as HSBC Bank PLC

2) termination notices served on the Defendants by the Claimant t/as HSBC Bank PLC

3) notice of assignment served on the Defendants by the Claimant

To date, all we have received is a copy of the notice of assignment which was served by the Claimant. And neither of the two other documents ordered by the Court.

COUTTS v SEBASTYEN

13) We refer to an extract from the determination from the above case that we believe is relevant to our case

a) That where there is an agreement between the creditor and debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

- of the credit limit, if any

- of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended.

- This information should be confirmed in writing

b) That where the debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of the 3 month period the annual rate of interest and charges applicable.

14) We require the original documents from the Claimant to prove that these conditions were met. The Overdraft with HSBC was agreed between them and the defendants

15) The Defendants also believe they should have received a termination notice under Section 76(1) and 98(1) of the Consumer Credit Agreement 1974 in order to terminate the account and the overdraft.

16) The Defendants are unable to ascertain the level of unfair charges on this account and therefore believe the amount claimed on the Particulars of Claim is not the true amount owed to the claimants.

17) The Defendants would like to draw the Courts attention to a Notice of Assignment dated xxxxxx 2008 (Attached. Marked Item 1) which states the balance is xxxxand the Particulars of Claim less than two months later the amount claimed is £xxx, there is no explanation for this significant increase. We respectfully request that the Claimants supply strict proof of the balance claimed and how they have arrived at that figure

 

 

Comments and help is much appreciated

[fedupwithdebt2009]

Thats brill craftygirl.....can you do me one now!!!

 

God how busy are their sol's going to be with all us lot defending claims!!

[Craftygirl42]

Do you really think its ok Fedup. Wasnt sure.

 

I did poach the first part from Pompeyfaiths thread, which helped. And its given me a huge headache....lol

[fedupwithdebt2009]

lol I bet it has...I was just re-reading you first part of this thread and the POC on your claim form is EXACTLY the same word for word as mine is........

[fedupwithdebt2009]

Also, am being cynical here but I wonder if, for all the hard work we put into producing things like the disclosure doc's and the witness statements etc, does the judge even READ it??? It makes me feel that they dont... I feel very tempted to put for my witness statement.....

 

"We dont owe it, bog off"

 

Signed....blumminfedup