HSBC CCA going to court

[gh2008]

Maybe I'm missing something here, but as the claimant is in default of a S78 request then surely the defence should at least mention that the claimant is not actually permitted to bring the case anyway. The claimant can bring it without an agreement or a DN (obviously if properly defended unlikely to win) but whilst in default of an S78 they can't.

 

Pretty straightforward holding defence & a strike out application to me.

[gh2008]

keep a careful check on your time spent as well £9.25 an hour

[gh2008]

IMHO I would go down the proven route of

 

1. holding defence

2. wait for local court transfer

3. apply for strike out (& costs) on abuse of process (default of S78) and of no reasonable grounds and/or no real prospect of success (the other bits)

[gh2008]

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.

[gh2008]

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.

 

Which one is the best to go for?

 

Can I just ask on what basis you are making these claims?

It's certainly not my experience or that of many others on here ......

[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

[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

[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.)