HSBC CCA going to court

[nick20045]

In some instances it pays to send both as it gives the OC little or no room to manouvre.

 

M

But basically you are asking for the same information. So considering that the debtor may be of limited financial standing why add more costs in Court charges?

 

Or indeed, why not just see (as in my 5 questions) what there is and then, before saying otherwise take, evaluate, understand, if need be ask, and then give advice?

[MandM]

31.14 relates to documents mentioned in the POC whereas 18 relates to additional information and will be handy for drawing out statements and the like which may or may not give the OP further ammunition

 

M

[nick20045]

whereas 18 relates to additional information and will be handy for drawing out statements and the like which may or may not give the OP further ammunition

 

M

Not really. Read http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/239338-cpr-court-hearing-tomorrow-new-post.html

 

You will notice that a barrister can arrive at the court. Hand over a bundle of evidence. Court may not like it but it is legal to do.

 

So what is the use of asking for "additional information" when it can be just handed at a court room?

[nick20045]

Common law states that: There is no duty of care between parties that are in litigation.

 

So, whereas for example you are at a crossroads and you see somebody who is frail about to make a mistake, you have a common law duty of care (yes you can be actually sued for not doing this) to look after that person. BUT when in litigation, as they say "let hell break loose for if we throw enough cw@p about some of it may hang on to the ceiling". And heck! There is no law that says we cannot have fun on the day either!!!!!!!

Edited January 10, 2010 by nick20045
Typo errors

[MandM]

Quote:

Originally Posted by blind-as-a-bat

Ok you need to go on mcol and acknowledge the summons and say you intend to defend in full. Done

 

They are basing there claim on a document they have already stated they dont have.

 

Not a good start for them Thought that was the case

 

You then need to sen HC the CPR fermi posted, plus a CPR 18 i think to get full statemants of the acount to verify what the true ballence is, im not sure CPR 31.14 covers statemants, need to check. Send who the CPR?

 

 

It is imperative you acknowledge before the hols, prefrably today, you technicaly have a few more days, and it would be nice to use them, but with the hols..............dont think its worth the risk.

 

We then have approx 14 days to get a defence sorted

 

Done and awaiting further instruction

 

Sorry Gemz, missed it on 1st read, see you've sent cpr18. What did you ask for? Did you ask for copies of statements?

 

M

[nick20045]

Can the OP please reply to the questions (5 in all) in posts 19, 20 and 22?

[Gemz]

Can the OP please reply to the questions (5 in all) in posts 19, 20 and 22?

 

Hope I've got them all below....

 

Adding question 5: (Might as well get them in). You DID change the avenue of Court from wherever it is to YOUR local County Court???????

 

No, how do I do that?

 

Hi Gemz,

 

Have read your thread now on both sites. Out of interest, did you also send CPR 18 request? as I can't see it.

 

As TMM stated, it's 28 days + 5. But don't leave it until the last day (just in case your PC blows up )

 

Do you have your ED ready yet?

 

Might still be worth putting in a SAR to HSBC as it could flush out something of interest.

 

M

 

I did not send CPR 18 request, only the CPR 31.14 request.

 

I do not have the ED ready, the whole thing is beyond me to be honest.

 

First question: Once you got told that there was no copy of the agreement, did you send a letter putting the debt into dispute?

 

Second question: You say you got a letter from the bank saying the debt as sold and a letter from CL saying debt bought. You give the same day. Important questions: (a) The dates on the letters are they the same dates? (b) Were they both received in the same envelope? © Were they sent by recorded mail? (d) On the letter which is supposed to be from the bank, does it have any special markings? (Like Barcodes or a small box or something?).

 

Third question: Rough idea of when original agreement taken out.

 

Answer the three above correctly (and honestly.......... not that I am implying that you will not but it will make a big difference between "What I think" and "What I know").

 

After that and pending your replies good chance to get the case struck out.

 

1: Yes, this was sent in February before we'd stopped payments.

 

2: (a) They have the same date

(b) They were sent seperately.

© Not that we remember

(d) It's from their Recovery Services, thers a serial number above my father's name (which is actually wrong on both letters - they have his first initial missing)

 

3: 2005 we think

 

Am adding question 4: Any chance of an upload of the default notice? Once you scan it and before uploading just cover any sensitive information (name, address etc) and upload. It is best to see if you also have a defective default notice.

 

We don't have a scanner, I can take a photo of it if someone can edit it from there.

[nick20045]

Ok. Let's start them one by one.

 

1: Tomorrow contact your local county Court. Tell them that you have a case ongoing and give them the case number. Ask them for advise on how to get it changed to your local county Court. (Otherwise what are you going to do if you need to attend any hearings?) Make sure to ask them also what is the latest date you have to file a defence. (Very important).

 

2: It is strange that you say you got a letter from the bank and a letter from the DCA and they both have the same date. Also it is strange that they both have the same identical mistakes. (Am I understanding correctly that they both have the same identical mistakes on both of them??)

 

3: Good that they were not sent recorded or registered. This is very important.

 

4: 2005 should fall in the 1974 Act.

 

5: Take a photo of the default notice. BEFORE you upload it use something like Paint and cover names, address and other confidental information (Basically that can link it to you in particular (just in case some "spy" is reading the thread)) and upload it. Otherwise, try and answer these questions:

 

a: Look at the date on it. Look at the date it says you have to rectify the breach by. Take the date of issue and add 14 days. Is the date given for rectifying the breach less then 14 days or over 14 days? e.g. Default issued on the 1 Jan 2010. Date by the time to rectify the breach given is 12 Jan 2010. That is not 14 days. So how many days were you given?

 

b: Look at the default notice. What is the amount it says you have to pay to rectify the breach? Is it the missed payment? Or is it the full amount that was owed on the credit card?

 

Last question for now. What stage are you in regarding the Court? How many days have you got left?

 

Note: Edited as I see you have already filed an acknowlegement. Personally (somebody contradict me) I would go for "Strike out on the bases of no chance of success". Any comments?

Edited January 11, 2010 by nick20045

[Gemz]

Ok. Let's start them one by one.

 

1: Tomorrow contact your local county Court. Tell them that you have a case ongoing and give them the case number. Ask them for advise on how to get it changed to your local county Court. (Otherwise what are you going to do if you need to attend any hearings?) Make sure to ask them also what is the latest date you have to file a defence. (Very important).

 

2: It is strange that you say you got a letter from the bank and a letter from the DCA and they both have the same date. Also it is strange that they both have the same identical mistakes. (Am I understanding correctly that they both have the same identical mistakes on both of them??)

 

3: Good that they were not sent recorded or registered. This is very important.

 

4: 2005 should fall in the 1974 Act.

 

5: Take a photo of the default notice. BEFORE you upload it use something like Paint and cover names, address and other confidental information (Basically that can link it to you in particular (just in case some "spy" is reading the thread)) and upload it. Otherwise, try and answer these questions:

 

a: Look at the date on it. Look at the date it says you have to rectify the breach by. Take the date of issue and add 14 days. Is the date given for rectifying the breach less then 14 days or over 14 days? e.g. Default issued on the 1 Jan 2010. Date by the time to rectify the breach given is 12 Jan 2010. That is not 14 days. So how many days were you given?

 

b: Look at the default notice. What is the amount it says you have to pay to rectify the breach? Is it the missed payment? Or is it the full amount that was owed on the credit card?

 

Last question for now. What stage are you in regarding the Court? How many days have you got left?

 

Note: Edited as I see you have already filed an acknowlegement. Personally (somebody contradict me) I would go for "Strike out on the bases of no chance of success". Any comments?

 

1. Will get my father too tomorrow, as it's his account.

 

2. Yes, they are missing his first initial but have his second. E.g. If he was A B Smith, it says B Smith

 

3 and 4. Good.

 

5. On it now. The date given to remedy the breach is 15th February 2007. It is dated the 1st February so I guess that's the day of issue.

The amount overdue is £395, it is a missed payment plus charges.

 

I have filed acknowledgement. Others have mentioned embaressed defence.

 

Sorry first time dealing with this stage. Much appreciated on the help

[MandM]

Hi Gemz,

 

If you've done your AOS and you're defending they will move it to YOUR local court.

 

With regards to ED and CPR18 try this link, adapt to suit and post it up if you have any queries, Read the thread right through as the ED gets adapted - it's quite recent.

 

M

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

[nick20045]

1. Will get my father too tomorrow, as it's his account.

 

2. Yes, they are missing his first initial but have his second. E.g. If he was A B Smith, it says B Smith Smells to me like a photoshop job.

 

3 and 4. Good.

 

5. On it now. The date given to remedy the breach is 15th February 2007. It is dated the 1st February so I guess that's the day of issue.

The amount overdue is £395, it is a missed payment plus charges. Are you sure of this? VERY IMPORTANT.

 

I have filed acknowledgement. Others have mentioned embaressed defence.

 

Sorry first time dealing with this stage. Much appreciated on the help

Question: You were asked to give what the particulars of claim is. On the claim form (N1) you got from the Court it should have the Particulars of Claim. What does it say? e.g. This is a claim for money owed by the defendant bla bla bla bla..............

 

Once you give me that information I will draft you a statement. IMPORTANT: Understand the wording "draft". It is up to you whether to use it, amend it, or whatever you may wish to do. (In short, you have to decide whether to accept it or not).

[MandM]

Can you confirm the amount (roughly) Under £5k, or £5k to £25k, or over £25k.

 

Thanks

[nick20045]

Hi Gemz,

 

If you've done your AOS and you're defending they will move it to YOUR local court.

 

With regards to ED and CPR18 try this link, adapt to suit and post it up if you have any queries, Read the thread right through as the ED gets adapted - it's quite recent.

 

M

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

Does not need any CPR18.

 

No CCA (default there)

Faulty Default Notice (default there)

No properly executed letter of assignment (default there)

 

Any of the above will get a strike out. Join them all together in a statement to a Judge and guaranteed a strike out on the basis of "No chance of any possible success".

[Gemz]

Hi Gemz,

 

If you've done your AOS and you're defending they will move it to YOUR local court.

 

With regards to ED and CPR18 try this link, adapt to suit and post it up if you have any queries, Read the thread right through as the ED gets adapted - it's quite recent.

 

M

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

 

Will we receive something from the local court to confirm this? Thanks M

 

Question: You were asked to give what the particulars of claim is. On the claim form (N1) you got from the Court it should have the Particulars of Claim. What does it say? e.g. This is a claim for money owed by the defendant bla bla bla bla..............

 

Once you give me that information I will draft you a statement. IMPORTANT: Understand the wording "draft". It is up to you whether to use it, amend it, or whatever you may wish to do. (In short, you have to decide whether to accept it or not).

 

I had that, blind posted it for me from MSE on page one. Thanks

 

Can you confirm the amount (roughly) Under £5k, or £5k to £25k, or over £25k.

 

Thanks

 

£5k to £25k

[nick20045]

POC (posting for notes)

 

The claimant's claim is for the sum of

xxxx being monies due from

the defendant to the claimant under

a regulated credit agreement between the

defendant and HSBC bank plc

under reference xxxxx

and assigned to the claimant on the

xxxxx of xxxxx notice of which been

given to the defendant.

 

The defendant has failed to make payment

in accordance with the terms of the

agreement and a default notice has been

served upon the defendant pursuant to

Section 87(1) of the Consumer Credit Act

1974

 

The claimant claims the sum of xxxxx

[nick20045]

Give me till tomorrow and will draft you a defence which should strike it out. ;)

[Gemz]

Thanks so much for your help

[nick20045]

No problem. What I need you to do is to go over my questions again, check your replies to them and recheck that the information is 100% (not doubting but it is best to recheck). Then confirm if 100% correct or if any mistakes found.

[MandM]

Will we receive something from the local court to confirm this? Thanks M

 

 

£5k to £25k

 

Yep, Northampton will write to you confirming receipt of your defence and confirming that a copy is being served on the Claimant.

 

2 or 3 weeks after that you will receive form N271 'Notice of Transfer of Proceedings' which will state that 'if the defendant is an individual the claim has been transferred to the court covering the area where the defendant lives or carries on business'. This, provided the claimant hasn't bottled it already, will come attached to the Allocation Questionairre.

 

Then the fun begins.

 

£5k to £25k

This will put you in 'fast track' unless you're very close to the £5k.

 

This should give you plenty of opportunities to find cause to strike out should the chance arise.

 

M

Edited January 11, 2010 by MandM
missed a bit. M

[nick20045]

Attached draft defence statement. You have to edit everywhere where there is xxxxxxx.

 

There are two exhibits referred to. XX1 you change to Initial Surname 1. So if the name is say John Smith then you change XX1 to JS1 and XX2 to JS2.

 

You have to read it and understand it. As already said it is a draft and it is up to you if you want to accept it "as it is" or if you want to do any amendments.

 

You will have to do 3 copies. (I would actually say do 4 copies so you have a spare one just in case). One for you, one for the claimant and one for the Court. Also 3 copies of the exhibits. Exhibits are: 1: copy of the default notice and 2: copy of the letter from CL finance saying "We cannot get a copy of the agreement". (To prove to the Court that there is no copy of the agreement).

 

The first one by itself should get the claim struck out. The second one by itself should get the claim struck out. The two together in my opinion should 100% get the claim struck out. The third one is to add a bit more.

 

Could have added that they are also in breach of OFT guidelines but think that would be superflous.

 

Have fun.

Amended Draft statement.doc

Edited January 19, 2010 by nick20045

[nick20045]

Note: The dates for the s.77/s.78 application seem a bit strange. 2007 to HSBC and then 2008 reply from CL Finance. Have you got the right dates? Does not make that much difference really as you have that letter from CL Finance saying "no copy of the agreement" which is enough but, it is best to have the right dates on a statement.

[MandM]

Attached draft defence statement. You have to edit everywhere where there is xxxxxxx.

 

There are two exhibits referred to. XX1 you change to Initial Surname 1. So if the name is say John Smith then you change XX1 to JS1 and XX2 to JS2.

 

You have to read it and understand it. As already said it is a draft and it is up to you if you want to accept it "as it is" or if you want to do any amendments.

 

You will have to do 3 copies. (I would actually say do 4 copies so you have a spare one just in case). One for you, one for the claimant and one for the Court. Also 3 copies of the exhibits. Exhibits are: 1: copy of the default notice and 2: copy of the letter from CL finance saying "We cannot get a copy of the agreement". (To prove to the Court that there is no copy of the agreement).

 

The first one by itself should get the claim struck out. The second one by itself should get the claim struck out. The two together in my opinion should 100% get the claim struck out. The third one is to add a bit more.

 

Could have added that they are also in breach of OFT guidelines but think that would be superflous.

 

Have fun.

 

Note: The dates for the s.77/s.78 application seem a bit strange. 2007 to HSBC and then 2008 reply from CL Finance. Have you got the right dates? Does not make that much difference really as you have that letter from CL Finance saying "no copy of the agreement" which is enough but, it is best to have the right dates on a statement.

 

Hi Nick,.

 

That was a late one! .

 

So, are you suggesting that the OP skips the ED route and goes for a full defence now (through Northampton???)

 

Might be worth giving the OP a few links to other threads where this has been used successfully so they can draw a balanced view.

 

IMHO I would have thought that, particularly due to the lack of factual information presented by the OC, it would be prudent at this stage to submit an ED and allow the OC a little more rope to hang themselves with.

 

M

Edited January 12, 2010 by MandM
Added a bit. ; )

[nick20045]

 

So, are you suggesting that the OP skips the ED route and goes for a full defence now (through Northampton???)

 

M

He cannot do it through MCOL due to limitation of words count. So if he wants to go straight through Northampton will have to post the three copies (@ the OP although one of the copies is for you, you should still send three copies which is why I suggested to print 4 copies) direct to their postal address (to be posted at least recorded but as it is involves a defence I would say pay a couple of extra quid and post it Registered before 1pm).

 

Go for ED route or a full defence? Up to the OP what he wants to do. Northampton is a Court in itself. (This is evidenced by all the posts claiming "Embarrassed defence" and hence a Judge will read the defence. Note: If one looks at the length of some of the "embarrassed defences" they will also not fit in an MCOL so they have to be sent by post).

 

Northampton is a Court and a Judge will read the defence. Now answer me this question?

 

What is a Judge going to do when he reads a defence basically thrashing the Particulars of Claim and that defence shows that the application is not worth looking at again as it is a waste of Court time? (read for a start item 25 on the defence). Will he get the application transfered to the County Court local to the Defendant? Will he say "Oh what the heck! Judges have nothing better to do? Or will he just "strike out" on the bases of any (or even a combination) of the CPR rules mentioned?

 

Then again, the OP can for a ED defence. Why? What is there to put an ED (take it you mean an "Embarrassed defence")? The claim is "dead". It is unenforceable. So then first file an ED defence and waste Court time himself. Will that look favourable on him with the Court? Let us see: First you file an ED defence. You make the Court transfer the file and send letters. Then you had the full defence ready so you wasted Court valuable time yourself. How will that look?

 

Then again, the Northampton Court can strike out a defenants defence (even if it is ED) if it believes there is no chance for the defendant to contest the claim. So what is the difference? It is still a Judge that decides what is to happen in the next stage.

 

Yep, Northampton will write to you confirming receipt of your defence and confirming that a copy is being served on the Claimant.

 

M

Confirms that the OP can send any type of defence to Northampton.

 

Re following have added no 2.

Ok. Let's start them one by one.

 

1: Tomorrow contact your local county Court. Tell them that you have a case ongoing and give them the case number. Ask them for advise on how to get it changed to your local county Court. (Otherwise what are you going to do if you need to attend any hearings?) Make sure to ask them also what is the latest date you have to file a defence. (Very important).

2: When in contact with the County Court ask them this question: "I have received a claim from Northampton. I can submit a full defence whereby it shows that the claim has no means of success and is a waste of Court process. Do I send the defence to get the claim struck out to Northampton or do I wait until it gets transfered to your Court? The County Court staff are there to help.

 

Might be worth giving the OP a few links to other threads where this has been used successfully so they can draw a balanced view.

If he pops round I will make him a cup of tea as well. I aint going to go round reading threads to give links. Some people like to do that especially to post "simple posts" to up their post count. IF the OP wants to he can do it himself.

 

Note for the OP: Read what I suggest needs to be done when making contact with your Local County Court for advise. Have added no 2. IF you have already made contact then can phone them again later on today or tomorrow re no 2.

 

Last one, as said, it is a draft defence. What you do, what route you wish to take or whatever else is up to you.

Edited January 12, 2010 by nick20045
typo errors

[nick20045]

 

IMHO I would have thought that, particularly due to the lack of factual information presented by the OC, it would be prudent at this stage to submit an ED and allow the OC a little more rope to hang themselves with.

 

M

IMHO I suggest you read what a "strike out" means when it is based on CPR rules. The OC has already hung themselves because they have no chance of success.

[MandM]

MCOL word count is 8000 so plenty of scope there. Also, when the defence is returned to the court via online then THE COURT will serve the defence on the claimant - no need for 3 copies.

 

M