HSBC CCA going to court

[nick20045]

Yep. Can see the defence on post 82. Can also see gh2008 suggestion in post 83. Can't see anywhere where it was picked up!! Was it?

 

As pointed out, this could be "a major point". OP needs to leave as many angles open to them as is possible.

 

M

Read post 84 and post 87. It was ALREADY in. ALL THREE items on the claim form were addressed.

[Gemz]

Wasn't a negative reflection on anyone, just a bit concerned that there seems to be confliction.

[MandM]

Post 83/84 refers to......

again, just my opinion but I would at least mention that the claimant is not actually entitled to issue a claim whilst in default of an S78 request. Not entitled to issue = strike out full stop no arguing no further defence needed.

 

This is actually a really major point and shows clear 'abuse of process' by the claimant.

 

Your reply in post 87 makes no reference to the Claimant being in default of a Sec 78 request. Just wondering if this is relevant for future reference.

 

M

[gh2008]

All anyone can do on here is give the best advice they can from their own experience.

 

In the end it comes down to the OP to research that advice and perhaps even the person giving it, to fully understand what is being said and why. There is a search facility on the forum that can throw up all sorts of things if it's used.

 

Gemz, if I was in your position, bearing in mind that it would be your father in Court, ensure that he is properly aware of what he is saying and why.

 

Anyway, time to take a deep breath as you've got a bit of time now.

Whilst you have some time, read this http://www.judiciary.gov.uk/docs/judgments_guidance/judgment-carey-v-hsbc.pdf goes into the ins and outs of S78 requests and has moved the goalposts for a lot of claims however it does make clear what being in default of the S78 request means to the creditor.

 

It also makes clear that there is now an unfair relationship between you and the creditor under S140(a) - due to the act of enforcement whilst in default.

 

Why is this important?

Well it is actually quite hard to get the debt 'written off' even with a defective default notice and a dismissed claim or discontinued claim the debt remains (unless you negotiate with the OC for its write off, or you manage to apply for and get a S142 declaration) - they can't claim again without the courts permission, but it's still there.

 

However, with an unfair relationship you can ask the Court to address this unfairness by way of S140(b)

 

“140B Powers of court in relation to unfair relationships

35

(1) An order under this section in connection with a credit agreement may do one or more of the following–

(a) require the creditor, or any associate or former associate of his, to repay (in whole or in part) any sum paid by the debtor or by a surety by virtue of the agreement or any related agreement (whether paid to the creditor, the associate or the former associate or to any other person);

(b) require the creditor, or any associate or former associate of his, to do or not to do (or to cease doing) anything specified in the order in connection with the agreement or any related agreement;

© reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;

(d) direct the return to a surety of any property provided by him for the purposes of a security;

(e) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;

(f) alter the terms of the agreement or of any related agreement;

(g) direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.

 

(2) An order under this section may be made in connection with a credit agreement only–

(a) on an application made by the debtor or by a surety;

...

(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.”

 

again just my 2p

[Gemz]

Thanks GH, I'm trying to bring him up to speed as well as learning myself.

 

The aim of this for us was never a "write-off" - just us paying back the amount borrowed without their ridiculous charges/fees/interest. So anything under S140(b) that addressed that would be a win for us.

[MandM]

Best of luck Gemz. Thats another nice nugget from gh.

 

Read up as much as you get time to on similar cases and post up any thoughts or questions. You'll find plenty of help on here.

 

As soon as you hear something back post it up also.

 

M

[nick20045]

Out of sheer curiousity, why?

 

The OP cannot even do a defence by himself even if given a template. (No offence to the OP intended). The OP cannot differate between an embarassed defence (even though it has the word "embarassed" in the template) and a holding defence. (Once again no offence intended to the OP).

 

carey v hsbc is one heck of a hard judgement to understand and in fact it is still being discussed. why not add, RICHARD DURKIN v DSG RETAIL LIMITED and HFC BANK PLC (for compensation for a faulty default) andif there was any harrassment then read the judgement for Ferguson v British Gas and considering....................well shall I go on? And yes, I do read a lot of test cases and a lot of case law.

 

Let the OP take glory in having got so far. Once he gets the confirmation that the defence has been accepted he can post. Once he gets the confirmation that the claim has been transferred he can post. Then advise can be given. Otherwise there is a good chance the OP will get totally confused.

 

Actually a question to the OP. Have you even read the OFT Guidelines yet? To be honest. Doubt it.

 

So once again why? Does any of you two think the OP can stand in front of a judge and start quoting Default by unfair relationship? Does any of you think the OP can defend on any basis of law in a court room? (Once again no offence intended to the OP). The OPs best defence is...............

 

If the claim is not thrown out then when the judge asks for a defence to be submitted to go for a full defence based on a strike out, reference to the applicable law and reference to the applicable case law.

 

And bluntly put, I am not interested (like some members on here) on posting just to increase my post count. I post to give advise. Neither one of you, when the OP asked for a Holding defence directed him to one. Actually, you MandM, directed him to an embarassed defence. Neither of you when challenged can take the challenge and answer it. gh posted about "unenforceable agreement". Well hallelulja! It was already on the draft defence but when told to "Feel free to edit it" neither one of you did so. And I challenged that so IF it was edited then I would have drawn to your attention that "It was already on".

 

There are two different type of people in life. Some talk and take no action. Some do not talk too much but take action. I am proud to fall in the latter bracket. I am not interested in posting things like "Welcome to caggers. I am sorry I cannot help you but I am sure somebody will come along soon" just to increase my post count.

 

Edited January 14, 2010 by nick20045

[gh2008]

Out of sheer curiousity, why?

why what?

I you meant to read about a very relevant recent case involving the Consumer Credit Act - well, it's to errr learn

 

The OP cannot differate

It is a very difficult skill to master

 

Neither of you when challenged can take the challenge and answer it.

The 'challenge' you gave me was in response to a genuine question of mine, when you made some very dramatic statements

 

And just to make it clear:

 

Notice of Assignment not properly served = Strike out (or should be) but the DCA may try to take another shot at serving. Debt stays on record. Any default stays on record. Debt can be resold to another DCA. Game starts all over again.

 

Unenforceable agreement = Strike out (or should be) but the DCA may try to take another shot at serving if they find the agreement later on. Debt stays on record. Any default stays on record. Debt can be resold to another DCA. Game starts all over again.

 

Invalid Default Notice = Strike out (or should be). Debt is removed from record. Any default on a credit report has to be removed as now debt does not exist. Can sue Claimant for damage to credit rating. Debt cannot be resold to another DCA as it does not exist.

 

That wasn't put forward as your opinion, but as a clear fact, one presumably based in law, and one which I had not come across, or witnessed before. I asked on what basis these claims were made. I would still love to know especially since one of my cases revolved around a defective Default Notice but the debt has not gone away.

 

gh posted about "unenforceable agreement".

Not sure I've even mentioned the actual agreement - difficult to really as I haven't seen it.

 

There are two different type of people in life. Some talk and take no action. Some do not talk too much but take action. I am proud to fall in the latter bracket

I think there are many more than two types, however, you've got me there, I do talk or rather discuss, I would rather try and empower someone with their own knowledge than persuade them to take hasty action, especially when I have not personally experienced the consequences of those actions.

When I give advice from my experience that what it is, my experience in court, it's not my ideas, thoughts, or logic or even what I think should happen. When I give an opinion again it is that, just my opinion and again I try and make that clear.

 

I am not interested in posting things like "Welcome to caggers. I am sorry I cannot help you but I am sure somebody will come along soon" just to increase my post count.

 

It is a real shame that you believe that is the motivation of those who make such posts. There have been (still are) people who come to these forums in a desperate state, often due to no fault of their own. Sometimes just having a single person saying welcome into a community makes all the difference.

There is also another point, and I must admit I make these posts, when a 1st post has been made, and for whatever reason has not been replied to (and does actually need a reply) 'falls off' the front page of a forum, it is much less likely to ever get a reply. A welcome message bumps it back up again and hopefully gets the attention it deserves.

 

Getting back to the thread - sorry Gemz

Now your defence is filed you will receive and acknowledgement and then the claimant has to reply or it will be stayed (unlikely - but if so strike out app in at this point.)

The case will then be automagically transferred to your (your Dad's) local court. You will then be sent an Allocation Questionnaire.

IMHO It is at this stage (assuming still no response to your original S78 request and CPR31 request) that you should apply for a strike out of the claimants claim and a declaration under S140.

 

You've got a few weeks breathing space now, so use it wisely

 

BTW sometimes it's easier to use Google to search the forums - just stick site:consumeractiongroup.co.uk on the end of your search

 

Good luck

[MandM]

mmmm. Nicely put. Not going to answer myself, gave up at 'differate'.

 

wish you luck Gemz, look forward to further posts.

 

M

[nick20045]

why what?

I you meant to read about a very relevant recent case involving the Consumer Credit Act - well, it's to errr learn

There is loads of consumer credit act cases. Argument is "The OP does not seem to be able to know much about legalities". What legalities are there? Tort, negligence, professional negligence, Duty of care under common law,............. shall I go on? Have a look on swarb.co.uk - [email protected] - index. Those are ones that for a start I study and if I find an interesting case then I get the full case and study it. It is my hobby.

 

It is a very difficult skill to master

Some prefer to master playing on their wii, some prefer to master how to play on their xbox live. Nobody can tell anybody what to become involved with.

 

 

The 'challenge' you gave me was in response to a genuine question of mine, when you made some very dramatic statements

What challenge are you talking about? When I posted "Feel free to amend it"? Well you never amended it did you? And if you had amended it I would have drawn to your attention that the fact that the agreement was unenforceable was already in the defence. Or was it when you posted about how I was wrong about NOA and Default notice and............???? Well you never told me which one you challenge. You want to challenge then you are the Claimant and I am the Defendant. So please........ challenge me.

That wasn't put forward as your opinion, but as a clear fact, one presumably based in law, and one which I had not come across, or witnessed before. I asked on what basis these claims were made. I would still love to know especially since one of my cases revolved around a defective Default Notice but the debt has not gone away.

Ahhhhh I see you have now "changed your tune" (see what you originally said).

 

Right try to explain to you:

 

Notice of assignement: I (the assignor) sell to You (the assignee) said debt. You tell the debtor you have bought the debt. IF you fail to do so then you have no right to issue a claim in court as "you have not established you now are the creditor". (Some people claim that it has to be the assignor that sends the letter but this has been contested in court (yes, that is why it is good not just to read threads on here but also to read case law) but it can also be that the assignee can claim it has been assigned. There have been a lot of cases where the DCA (the assignee) has been known (or should I say alleged) that they have used photoshop or some other program to issue "alleged" assignments from the original creditor (look at first post on this thread and wonder how come the date of the letter from the bank and the date of the letter from the DCA are the same........ oops!!!!!!! Photoshop!!!!!!!!).

 

So back to the argument. Whoever has issued the NOA. The argument arises that the issue of an NOA depends on LAW. And according to that law (see the rules as in the draft defence I had prepared) the ONLY way an NOA has to be served is either by recorded or by registered mail. HENCE IF the assignor (or indeed the assignee) serve an NOA on a person UNLESS it has been served properly then it has not been served at all. UNLESS the debtor confirms that it has been served and received.

 

NOW....... we go further...............

 

An assignee who bought a debt issued a court claim. The debtor fights it on the basis that the NOA was not properly served. The claim is dismissed. By the rules of double jeaopardy the the assignee now cannot reissue a claim (Though it has been known that they have tried). IT DOES NOT MEAN THAT THE DEBT IS GONE. They can sell it on with a note saying "When you send an NOA make sure you sent it at least recorded mail". Then the new "creditor" (as the OFT lovingly calls them) can reclaim.

 

Unenforceable credit agreement: Well I do not think I need to go very far in this one. It is unenforceable but the debt still is there. Once the bank/creditor finds a copy (or any excuse of a copy) then the arguments start again. Read McGuffick (might have spelt it wrong) judgement.

 

Default notice: ONCE you have an unlawful default notice issued what do you have? An UNLAWFULLY RESCINDED AGREEMENT THAT CANNOT BE ENFORCED IN ANY WAY WHATSOEVER. When is the default with a CRA issued? After the default. So argue this question............

 

How can you say that I owe you money when you have unlawfully cancelled the agreement whereby I now owe you nothing before you have claimed this?

 

Not sure I've even mentioned the actual agreement - difficult to really as I haven't seen it.

You should NEVER say "Not sure I've even mentioned the actual agreement". As a member who under common law you have a duty of care once you post and legally are liable to be sued for any misleading information you may give (just popped a diary toffee from asda which I think are great if you are trying to stop smoking........... anyway........). Before you post, and give comments you should read what is said and if need be ask questions. You should NEVER assume for as I have said before the word "assume" is made out of 3 words. "Ass" "U" "Me" and if you assume and especially if I agree with you then there is a good chance of "You will make an ass of you and me". (Personal note: Anybody noticed how many times His Hon Judge Waksman uses the word "assume" in his judgement Carey v HSBC???????). Go through the thread. Before I even gave any advise I asked 5 questions. Read them. THEN ONCE I got the replies did I get involved. I read the posts. I read the answers. I posted advice on what had been said. On the other hand.............. if you want......... feel free to assume.

I think there are many more than two types, however, you've got me there, I do talk or rather discuss, I would rather try and empower someone with their own knowledge than persuade them to take hasty action, especially when I have not personally experienced the consequences of those actions.

When I give advice from my experience that what it is, my experience in court, it's not my ideas, thoughts, or logic or even what I think should happen. When I give an opinion again it is that, just my opinion and again I try and make that clear.

Ok. So I will admit. There are more type. We forgot the Politicial correct ones and some others...........

 

Getting back to the thread - sorry Gemz

Now your defence is filed you will receive and acknowledgement and then the claimant has to reply or it will be stayed (unlikely - but if so strike out app in at this point.)

The case will then be automagically transferred to your (your Dad's) local court. You will then be sent an Allocation Questionnaire.

IMHO It is at this stage (assuming still no response to your original S78 request and CPR31 request) that you should apply for a strike out of the claimants claim and a declaration under S140.

Oh My Lord!!!!!!!! I weep!!!!!!!!!

 

Faulty and unenforceable agreement.

 

Faulty Notice of assignment.

 

Faulty Default Notice

 

AND you ADVISE HIM TO GO FOR A S140!!!!!!!!!!:eek:

 

Somebody please shoot me!!!!!!!!!! You DO KNOW that "Unfair relationship" was more designed towards the 2006 agreements. Ahhhhhhhhhhh

You've got a few weeks breathing space now, so use it wisely

Go for a few pints and relax

Edited January 14, 2010 by nick20045

[nick20045]

mmmm. Nicely put. Not going to answer myself, gave up at 'differate'.

 

wish you luck Gemz, look forward to further posts.

 

M

Just stick to your "Send a CCA" and "send an SRA" and "send a CPR xx" and "send an embarassed defence and this is the link but oops you were after a holding defence........" and "other posts" and you should do ok.

[nick20045]

Oh My Lord!!!!!!!! I weep!!!!!!!!!

 

Faulty and unenforceable agreement.

 

Faulty Notice of assignment.

 

Faulty Default Notice

 

AND you ADVISE HIM TO GO FOR A S140!!!!!!!!!!:eek:

 

Somebody please shoot me!!!!!!!!!! You DO KNOW that "Unfair relationship" was more designed towards the 2006 agreements. Ahhhhhhhhhhh

@gh2008

 

OK...... here is one for you. I gave the OP a "Full defence" based on what the OP has said and posted.

 

Feel free to edit it as you may deem fit and I decline all and any rights to that attachment. Feel free to add S.140 and how the OP claims this has been breached and on what basis it has been breached.

 

I await your post with deep hope of learning.

[Gemz]

We received acknowledgement of defence, dated 13th January.

[MandM]

We received acknowledgement of defence, dated 13th January.

 

Well the next docs you receive is likely to be the Allocation Questioniarre. Has anything come back further to your CPR request out of interest?

 

M

[Gemz]

Well the next docs you receive is likely to be the Allocation Questioniarre. Has anything come back further to your CPR request out of interest?

 

M

 

Okay, will keep an eye out for it.

 

Not heard a thing.

[nick20045]

I would advise to forget about CPR requests.

 

Just wait for the next set of papers from the Court and when you receive them post and you will be guided.

 

Remember, it is very important to check (when you get the papers) that it has also been allocated to your local County Court.

 

Your case is already sealed and their claim unenforceable.

[nick20045]

Also have amended the draft statement. Suggest you download it and have a read of it. (page 3 post 45).

[Gemz]

Will do, thanks

[blind-as-a-bat]

Just catching up, to see how you are getting on Gemz

 

You will recieve a reply to your ongoing CPR request soon anyway, as that is what HC do, wait until the deffence had to be filed, then make sure there responce arrives just after, just to frustrate your defence:rolleyes:

 

Hopefully it will still be minus one agreemant;)

[nick20045]

Gemz

 

This is what you should be getting. Have a good read in advance and before you fill it if you have any questions ask. Also note that B asks you if you want to change the location. You have to make sure you change it to your local County Court. http://www.hmcourts-service.gov.uk/courtfinder/forms/n150.pdf

Edited January 22, 2010 by nick20045
Originally posted wrong form.

[MandM]

Gemz

 

This is what you should be getting. Have a good read in advance and before you fill it if you have any questions ask. Also note that B asks you if you want to change the location. You have to make sure you change it to your local County Court. http://www.hmcourts-service.gov.uk/courtfinder/forms/n150.pdf

 

Form will come from local court. No need to change anything.

 

M

Edited January 22, 2010 by MandM

[nick20045]

Form will come from local court. No need to change anything.

 

M

http://www.hmcourts-service.gov.uk/courtfinder/forms/n150.pdf is for not small claims track

 

if it is a small claims then it is http://www.hmcourts-service.gov.uk/courtfinder/forms/n149.pdf

 

It is so the OP can get accustomed to the form (and can know that can even fill it in online in case for example, does not have neat handwriting....... or makes a mistake and needs to restart filling again). Also can have a read of http://www.hmcourts-service.gov.uk/courtfinder/forms/ex307.pdf

 

As to trusting the Court that they will 100% do as it says in the notes B "B Location

Automatic transfer to a defendant’s local court applies to certain claims (Rule 26.2). This claim will be heard at the court to which you have been asked to return this questionnaire but the court will consider an application for it to be transferred to another court if there is a good reason to do so".

 

Say that to the children of the person killed because the Court made a mistake............... BBC News - Killer not tagged due to blunder

 

Court staff do make mistakes. I had a claim in Court where the application sat in the file for 2 weeks because they had forgotten to send it in front of a Judge. It was only after about 4 phone calls that they realised their mistake. Also not first time the clerk at the Court gave one piece of advise and he/she forgot something which finished in a Judge giving directions so that the mistake can be fixed before he can give a ruling. IF the OP does not look carefully or simply makes a mistake and "assumes" there can be repercussions.

[MandM]

errrrr. None of this is of any relevance at all.

 

Fact remains, Northampton will send the details to the Defendants court as soon as the defence is received. AQ will come from the local court. Doesn't need a good reason. It's a matter of procedure.

 

As to trusting the Court that they will 100% do as it says in the notes B "B Location

Automatic transfer to a defendant’s local court applies to certain claims (Rule 26.2). This claim will be heard at the court to which you have been asked to return this questionnaire but the court will consider an application for it to be transferred to another court if there is a good reason to do so".

This refers to changing court AFTER the AQ has been received. Have you done a lot of these out of interest?

 

 

It's N150 due to the value (already posted).

 

Hope that clears it up for you.

 

M

[Gemz]

N150 filed for reading. Still nothing from anyone

[gh2008]

If it were me, as soon as you get notification of it being traansferred to your local court, I would be thinking of making an application to the court, informing them of the continued breach of S78 and the breach of CPR and asking for an 'unless' order i.e. unless they cough up the docs in 14 days it will be struck out.

(I would also add in that if they do submit docs you have permission to amend your defence if required.)