Default Removal - katenandpete v HSBC **WON**

[kateandpete]

N1 now written. I'll take it to the court in the morning. Thanks again zoot!

[zootscoot]

Best of luck!

[zootscoot]

Any news yet?

[kateandpete]

They intend to defend, but are running out of time to file - 2nd January. We wait with bated breath! We're away this next week so sill see what the post has brought when we get back.

 

Thanks for asking - we'll keep you posted

.

[alexliverpool]

did they send in a defence???

[kateandpete]

Indeedy yes..

I returned from holiday yesterday (4 days late as our car broke down in the Alps ) to find a little defence on the doorstep. Here it is

1. The Claimant's account is governed by the Defendant's personal and/or

business banking terms and conditions.

 

2. Pursuant to the Defendant's terms and conditions 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 and overdraft.

 

3. 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

purposes of the Unfair Terms in Consumer Contracts Regulations 1999

(UTCCRs).

 

4. The charges applied to the Claimant's account are reasonable and are properly and 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, cannot amount to a penalty.

 

5. Even if (which is denied) the Defendant's charges were unfair contrary to the UTCCRs and/or amount to a penalty at common law, the Claimant has no claim for damages or otherwise for any loss alleged to have been suffered as a result of the application of the charges to the Claimant's account. [Further and in any event, the losses alleged to have been suffered by the Claimant (which are not admitted) were not caused by the application of the charges to the Claimant's account and/or are too remote.]

 

6. 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.

 

On first glance i thought this was pretty half-arsed, but then i read it again. They're using the "fee for service" argument. I missed out a paragraph arguing that if it is a service then it must be reasonable under the supply of goods and services act 1982.

 

Looks like i'll have to amend my particulars of claim or something - can i still do that now i've received a defence?

[jonni2bad]

I wouldn't have thought you needed to jump the gun on that one.....

 

You can reply to the defence if you like - which is FREE !!! or you can highlight this issue in your witness statement when submitting the document bundle.

 

Of course there's always the AQ which should be arriving soon. Take the opportunity to review our new attack using the AQ by submitting a draft order...

 

http://www.consumeractiongroup.co.uk/forum/general/57708-draft-order-allocation-questionnaires.html

[kateandpete]

Thanks jonni - yes i used the draft order against Egg and it worked nicely.

 

Have got the AQ today - deadline of the 29th so no hurry.

 

If it's OK to leave the countering of the "fee for service" argument until the document bundle, then i'll do that. As long as it doesn't compromise my case.

[jonni2bad]

I will seek advice on that issue, just to be sure.

[kateandpete]

I've had another look through the draft order thread and noticed the "statement of evidence" posted. This seems to cover the "fee for service" argument nicely.

So i'm going to fill in the AQ now (an N150) and attach the draft order to the "proposed directions" section.

[kateandpete]

Well, it's been over a month since i updated this, so here is the news.

 

I sent a copy of my allocation questionnaire to DG Solicitors on 23rd Jan.

 

I received a without prejudice letter from the dated 5th Feb offering me £175.15 in full settlement. No mention of defaults at all. The amount offered is actually less than the previous offer made as they seem to be arguing with the fact that 8% interest is due on the interest they charged on the penalties.

 

So I replied ....

kateandpete v HSBC Bank plc

Claim No: XXXXXXXX in the Warrington County Court

 

I am in receipt of your without prejudice letter dated 5th February.

 

You state that you do not understand my calculation. The unlawful charges your client has made were added to my credit balance and interest charged upon them. The charges are unlawful, therefore that part of the interest attributable to the charges is also unlawful. Additionally, I am entitled under s.69 of the County Courts Act to charge 8% APR on the total amount which I have lost. This includes interest charged on the penalty charges.

 

I note your without prejudice offer of £175.15 and reject it as no effort has been made to comply with my conditions. If you were to study the correspondence relating to my case you will see that I rejected a similar (but larger) offer made to me by your client on the 12th October 2006. I do not wish to repeat at length the arguments I set out in my reply of 30th October and refer you to that letter.

 

On the 28th November I made an offer to settle this matter. Naturally, a small amount of interest has accrued to the amount I require to be credited to the account. This amount is now £198.17 (calculation enclosed). Additionally, it is my position that any interest charged to the account since 13th July 2006 is unwarranted as your client is unable to produce a copy of the executed agreement. Taking the debt and subtracting penalties, interest on penalties, s.69 CCA interest at 8% and court fees gives £305.86. I offer this as full and final settlement of the account on the following conditions, which have been set out previously on numerous occasions:

• This offer in no way acknowledges the unenforceable agreement.
  
• Your client must ensure the full removal of all references to this account kept by the credit reference agencies. This includes, but is not limited to, all default notices.

If these conditions are acceptable to your client, please confirm in writing and I will forward a cheque in payment. When I have confirmed with the credit reference agencies that condition 2 has been complied with, I will discontinue court proceedings against your client.

 

Please note that should this matter proceed to court, I will claim compensation for your client’s breaches of the Data Protection Act 1998 and the Consumer Credit Act 1974. For further details please see previous correspondence and my particulars of claim.

 

No response from them on this. However, the day I sent this I received my notice of allocation from the court. I have been fast-tracked. Here is the exact wording.....

 

DISTRICT JUDGE XXXXXX has considered the statements of case and allocation questionnaires filed, and allocated the

claim to the fast track, in the light of the complex issues raised by the claimant under the Data Protection Act

1998.

 

There be standard disclosure of documents by list between the parties by serving copies together with a disclosure

statement by 4pm on the 6th March 2007.

 

Each party shall serve on every other party the statements of all witnesses as to fact upon which he intends to rely at

trial. There shall be simultaneous exchange of such statements no later than 4pm on the 3rd April 2007.

 

The witness statements shall stand as evidence in chief at trial.

 

Evidence will not be permitted at trial from any witness whose statement has not been disclosed in accordance with this

order.

 

No expert evidence being necessary,no party has permission to call or rely on expert evidence.

 

The matter be listed for trial before a District Judge on the 3rd May 2007 at 10:30am, with a time estimate of 1 day.

 

The listing questionnaires be dispensed with.

 

The defendant shall file with the court not less than 7 days before trial a bundle comprising of the following;-

an-agreed case summary

an agreed proposed trial timetable

the pleadings

the skeleton argument and reports of any cases upon reliance is placed

Costs be in the case.

 

There is no mention of the draft order I sent with the AQ. This strikes me as bad news.

 

I'm going to need a lot of guidance on this . I almost got to the court bundle stage with my Natwest charges claim.

I'm going to need other stuff aswell as what's in the court bundle because of the default / DPA stuff. I'd really appreciate people looking through my POC's and HSBC's defence (all on the thread).

 

Getting nervous now!

[Guest willowb]

Hi kate,

 

I think that firstly you need to write to the Court and ask that as a Litigant in Person and as you brought the claim forward under the assumption that it would be allocated to small claims that you not be liable for the defendant's costs should you lose. There's a template somewhere, I'll have a look but you're letter writing skills are spot on hun....well done:)

 

As for their non compliance of CCA .77......IMO they'll not take this any further as they are liable for a £2,500 fine. Forgive me as I haven't checked, but have you actually quoted the whole CCA 77 to them in a letter?

 

Wxxx

[kateandpete]

I think that firstly you need to write to the Court and ask that as a Litigant in Person and as you brought the claim forward under the assumption that it would be allocated to small claims that you not be liable for the defendant's costs should you lose. There's a template somewhere, I'll have a look but you're letter writing skills are spot on hun....well done:)

Flattery is always appreciated . I'll look for this too as i'm not keen on getting back into financial hell :o.

 

As for their non compliance of CCA .77......IMO they'll not take this any further as they are liable for a £2,500 fine.

£2500 eh !?!?!?!?! I didn't know that. Well, well, well :grin:.

Forgive me as I haven't checked, but have you actually quoted the whole CCA 77 to them in a letter?

 

The whole section? No, I haven't. I have stated their non-compliance in my POC's and in various letters. The situation is that they did not comply to the request within the prescribed time period. Subsequently, a good few weeks after the deadline expired they "complied" by sending me a copy of their terms and conditions and argued that this was sufficient under regulation 3(2) of the 1983 regulations. It would appear that they are correct about this.

Nevertheless, they have still committed an offence by not complying in time.

[Guest willowb]

Hi Kate, I've just copied and pasted a letter that I helped another member with, it includes the Act so.....

 

 

77 Duty to give information to debtor under fixed-sum credit agreement

 

(1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,-

 

(a) the total sum paid under the agreement to the debtor;

 

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

 

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fail to be ascertained.

 

(4) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits and offence.

 

 

 

Consequently I do not acknowledge any debt to your company.

 

 

Your company has now committed a criminal offence under Section 77 (4) of the Consumer Credit Act 1974, summarily punishable by a Level 4 fine on the standard scale of up to £2500.

 

I remind you that a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the Consumer Credit Act and is therefore a complete defence to any court claim that is issued. Please take note that any legal action you may contemplate will be vigorously defended and contested.

 

 

Wxxx

 

Don't forget about the costs letter to the Court though.

[kateandpete]

Thanks. I've looked through all my previous letters and i've already sent this to them back in september, although i didn't mention the fine.

 

I'd love to know if there is a template for asking the judge to waive costs somewhere, does anyone know - can't find it myself....

[Guest willowb]

Or is it Pete?

 

Anyway, you need to include something along the lines of....

 

As the claim is under the 5K limit it was the claimant's understanding in submitting the claim that they would not be liable to pay the defendant's legal costs in accordance with CPR 27.14. (Thus to allow the defendant's counter claim would be grossly unfair).

 

In the event that the claim is allocated to the fast-track it is respectfully requested that the court does so on the basis that the claimant should not be ordered to pay the defendant's legal costs as the claim is under the 5K limit and thus the claimant submitted the claim in the belief that that they would not be exposed to such liability in accordance with CPR 27.14.

 

Hope this helps:)

 

Wxxx

[zootscoot]

Hi K & P

 

You will need to formally contest the allocation to the fast track. You can do this via n244 (link in the bank templates library). This may result in a hearing.

 

Some points to argue in your favour:

 

1.It is a consumer dispute and should be allocated to the small claims court which is designed particularly for consumers.

2.Under the overriding objectives of the Civil Procedure Rules there is an obligation on the judge to ensure the parties are placed on an equal footing. As the defendant is a huge financial institution it would be unfair to place this in the fast track as they would have the advantage in being able to bear the risk of costs whereas you do not.

 

3.The claim is well below the 5K threshold. You filed the claim believing it would be dealt with in the small claims court and did not anticipate the risk of bearing the costs in the Fast Track. So to transfer to fast track would be grossly unfair.

 

4. You believe fully in the justice of your case and if it is to be transferred to the Fast track request the court orders that no costs order will be made against you.

 

 

Hope this helps

 

Zoot

[kateandpete]

N244 and mention CPR 27.14. Great thanks zoot and willowb.

One thing though - I do want them to have to provide the breakdown of how they arrive at the charges figure etc. can I still have this if I am successful at getting it off fast track. Or is that having my cake and eating it?

[kateandpete]

Another thing willowb. You mention defendants counter-claim - there isn't one here. In fact, I have been expecting one (but not for costs) as I still owe them some money. I've informed them (and the court when I submit correspondence) that I don't intend to defend any counter-claim for the remaining lawful part of the debt (about £305 at the moment).

But there hasn't been one.

[zootscoot]

I

do want them to have to provide the breakdown of how they arrive at the charges figure etc. can I still have this if I am successful at getting it off fast track. Or is that having my cake and eating it?

 

Did you send off the draft order for directions with your allocation questionairre?

[kateandpete]

I

Did you send off the draft order for directions with your allocation questionairre?

Yep, i most certainly did.

[kateandpete]

Ok, this N244 is a bit confusing to a mere mortal like me. From what I gather, I need to attach a fee of £65 . Are these the right answers .....

 

How do you wish to have your application dealt with? c) without a hearing.(?)

 

Level of Judge ??

 

Parties to be served. Defendant.

 

PART A

 

I, kateandpete intend to apply for an order that .. the claim be reallocated to the small claims track

 

because

 

As the claim is under £5000 it was the claimant's understanding that they would not be liable to pay the defendant's legal costs in accordance with CPR 27.14.

 

PART B

 

I wish to rely on evidence in Part C in support of my application.

PART C

 

1.It is a consumer dispute and should be allocated to the small claims court which is designed particularly for consumers.

2.Under the overriding objectives of the Civil Procedure Rules there is an obligation on the judge to ensure the parties are placed on an equal footing. As the defendant is a large financial institution it would be unfair to place this in the fast track as they would have the advantage in being able to bear the risk of costs whereas the claimant does not.

3.The claim is well below the £5000 threshold. The claim was filed in the belief that it would be dealt with in the small claims court. Claimant did not anticipate the risk of bearing the defendant's legal costs in the Fast Track. Therefore to allocate to the fast track would be grossly unfair.

4. In the event that the claim is allocated to the fast-track it is respectfully requested that the court does so on the basis that the claimant should not be ordered to pay the defendant's legal costs as the claim is under the £5K limit and thus the claimant submitted the claim in the belief that that they would not be exposed to such liability in accordance with CPR 27.14.

 

 

This is all probably very obvious to you guys/gals, but I do want to get it right....

 

Also do I need to do anything about the draft order?

And the standard disclosure of documents by list? These have to be in on the 6th!

[zootscoot]

Answers and suggested ammendments in red.

 

Good luck

 

Ok, this N244 is a bit confusing to a mere mortal like me. From what I gather, I need to attach a fee of £65 . (I thought it was 35 but may be wrong) Are these the right answers .....

 

How do you wish to have your application dealt with? c) without a hearing.(?) yes

 

Level of Judge ?? District

 

Parties to be served. Defendant. yes

PART A

 

I, kateandpete intend to apply for an order that .. the claim be reallocated to the small claims track

 

because

 

As the claim is under £5000 it was the claimant's understanding that they would not be liable to pay the defendant's legal costs in accordance with CPR 27.14.

 

PART B

 

I wish to rely on evidence in Part C in support of my application.

PART C

 

1.[It is Delete] The claim involves a consumer dispute and should be allocated to the small claims court which is designed particularly for consumers.

2.Under the overriding objectives of the Civil Procedure Rules there is an obligation on the judge to ensure the parties are placed on an equal footing. As the defendant is a large financial institution it would be unfair to place this in the fast track as they would have the advantage in being able to bear the risk of costs whereas the claimant does not.

3.The claim is well below the £5000 threshold. The claim was filed in the belief that it would be dealt with in the small claims court. Claimant did not anticipate the risk of bearing the defendant's legal costs in the Fast Track. Therefore to allocate to the fast track would be grossly unfair.

4. In the event that the claim is allocated to the fast-track it is respectfully requested that the court does so on the basis that the claimant should not be ordered to pay the defendant's legal costs as the claim is under the £5K limit and thus the claimant submitted the claim in the belief that that they would not be exposed to such liability in accordance with CPR 27.14.

 

 

This is all probably very obvious to you guys/gals, but I do want to get it right....

 

Also do I need to do anything about the draft order? Attach another copy and request that it be substituted for the standard disclosure applicable to fast track.

And the standard disclosure of documents by list? These have to be in on the 6th! If you've not heard anything before this time make sure you comply to this deadline in case your application is refused.

[kateandpete]

I wasn't keen on spending the extra cash on this so I thought i'd chance my luck with DG solicitors. So I phoned them on tuesday and left a message asking if they wanted to reconsider their offer.

 

Then, yesterday the male half of us filled in the form and the female half was about to take it to the court when the post came. We have victory! :D:D:D

 

They have said the default entries have been removed.

 

The only small problem is that I want to confirm this with the CRA's. For some reason none of them will let me sign up for their mucho-money instant file access, so i've sent off for the £2 statutory ones. Trouble is these may not arrive until after the standard disclosure deadline. I don't want to discontinue the litigation until i'm sure they are telling the truth.

 

They also want confidentiality, which i won't agree to. But I was just going to cross this out on the acceptance form.

 

I don't want to have a premature celebration, but I think we're nearly there!

[Guest willowb]

That's great!!!! :D fantastic news!!!

 

Have you tried 'creditexpert' @ experian?

 

Wxxx