Marlin issue Claim form on HSBC Credit Card debt***Settled by Consent***

[zingy]

Thanks, Andy.

 

I've added in about the acknowledgement and the court not notifying me.

 

I wanted to highlight that the 'agreement' they have sent isn't actually an enforceable (and a legible) agreement.

 

I will look over other defences again and revise the one I have.

[AndyOrch]

The defence can be redrafted to cover that but in away that it implies and is considered that they are still in default of your section 78...for reasons xyz.

[zingy]

Ahhhhh..... okay, I think I understand now.

[zingy]

Don't I do that in point 3 of my defence though? Or is there a better way of putting it?

[AndyOrch]

Yes you do but it needs further clarification and softening...the date of your agreement (is it pre 2007 or post?)...the fact that they have responded with a reconstituted version...

 

They are arguments for a fuller particularised defence should the set a side be allowed.....

 

Look ...if you can quote the reasons why an agreement is deficient quoting the CCA1974 and amendments and why default notices are invalid then a court will not understand why you cant follow the process of submitting a defence on time......you cant plead litigant in person with no knowledge and then hit them with the technicalities of the CCA1974...your either a novice or expert...cant be both.

[zingy]

Date of agreement is 2000.

 

Ahhh. okay.

[zingy]

Updated

 

 

 

REVISED Statement of EV

=================

 

 

1. I am a Litigant in Person and was unaware of legal proceedings/process, but have now taken advice.

 

2. I acknowledged service of the claim on 12th December 2013. Around the time of the claim, I was coping with the recent death of my father, which occurred quite suddenly. At the time of the claim, and resulting communication, there were the deceased’s estate matter to deal with and this overwhelmed my time and energy. Therefore, I did not consciously keeping track of the proceedings.

 

3. In December 2013, I requested, under CPR 31.14 for the disclosure and production of a verified and legible copy of: the original agreement under sections 77/78 of the Consumer Credit Act 1974, notice of assignment, the default notice, and statement of account. The claimant has failed to comply.

 

4. In a letter dated 20th December 2013, the Claimant requested more time stating “We are taking our client’s instructions in relation to your account and confirm we have requested the documents”. And “…our client agrees to a time extension of one month.” I did not suggest any such extension.

 

5. I did not receive any notification of the judgment. I became aware of the judgement on checking my credit file in late July and through a hand delivered notification by a bailiff from Accrington County Court in August.

 

6. Therefore, I request that the Court, in the interests of justice, sets aside the judgement, makes an order for the Claimant to produce the aforementioned documents relied on in its claim, and allows me to file a defence.

 

 

 

 

REVISED DEFENCE

 

1. The Claimant is relying on a reconstituted agreement that is not legible. It is not considered to be a true copy of the agreement nor the terms and conditions provided at the time of signing the agreement in 2000.Whilst this may be considered acceptable as complying with section 78, the claimant will have to disclose the original should it wish to enforce or request relief as the agreement is pre April 2007.

 

2. The Claimant shows charges relating to late penalty fees of £12. However, a copy statement of the account shows payment fees in June 2006 as £20.

 

3. From a Data Subject Access Request by the Defendant in 2010, to the original creditor, HSBC, a summary report states that [03/02/2010]: “A/c opened 07/09/00;agreement not found. Stmnts…”

 

4. I deny having received a default notice in 2006 for this debt.

 

5. I request the Claimant be ordered to produce a legible, true copy of the agreement in relation to my request under CPR 31.14.

 

 

===================

Edited October 23, 2014 by Andyorch
Point 1 tweaked.

[zingy]

Back from the hearing.

 

The judge is making an order to set aside the judgment (13.3 CPR) and remove the attachment of earnings order, provided I submit a copy of a full defence in two weeks time. (This needs to include all points, including the legal and factual basis, and everything enclosed; if not, the judgment will stand.)

 

He also ordered me to pay the costs for the attendance of the other party's solicitor (£120), as while I may have applied for the set aside within a reasonable amount of time when I became aware of judgment they did have to attend the hearing.

 

The judge didn't allow the other side to bring in HSBC v Carey because it wasn't mentioned in the WS by them, and he also told me sternly that I should have submitted my statement and defence before the morning of the hearing. And, that my documents needed to comply with CPR 22, which this one did not.

 

He also asked what I meant by irregular judgment in my set aside application. He noted that my explanation might not be what a solicitor or legal professional might presume.

 

So, I'll be looking at this all the middle of next week and putting together things for submission. Hopefully, Andy et al. can look over things when I have them together.

 

Thank you for your help so far.

[AndyOrch]

Very good zingy...so far so good.

 

CPR 22 means you failed to sign it off with a statement of truth...and as already discussed it should have been served at least 3 days prior even though you wasnt ordered to submit any WS.

 

Well done

 

 

Regards

 

Andy

[zingy]

I've gone over the defence and added in a few things.

 

Posted as a PDF with certain information removed (not in original, obv.).

 

Just wondering if I should add in any other legal stuff?

[citizenB]

Well I like it However, I will leave a note for andyorch to pop in, zingy.. it might be best to wait for his seal of approval.

[zingy]

Well I like it However, I will leave a note for andyorch to pop in, zingy.. it might be best to wait for his seal of approval.

 

Thanks, CB.

[AndyOrch]

Very good Zingy...just change unreadable to Illegible:wink:

 

Regards

 

Andy

[zingy]

Very good Zingy...just change unreadable to Illegible:wink:

 

Regards

 

Andy

 

Thanks, Andy.

 

Will change and pop it in the post this afternoon.

[zingy]

Okay. An update on this. Filled in a questionnaire for this case around New Year and received an order from the Court about a hearing the end of April.

 

 

 

Having considered the papers in your case, the court believes that your case is suitable for mediation. This is a very simple process designed to give you the opportunity to resolve your dispute without having to attend a court hearing. You are therefore encouraged to contact the Small Claims Mediation Service to arrange a mediation appointment.

 

The mediation service is free.

 

Mediation appointments are conducted by telephone and so do not involve you having to attend court. The mediation appointment is limited to one hour, is confidential and can be done anytime up to ten working days before the final hearing. Further information on mediation is contained in the attached information sheet or can be found at www.gov.uk.

 

To accept the offer of this service and arrange your mediation appointment both parties should contact HMCTS by telephone on 01604 795511or email at scmreferrals@ hmcts.gsi.gov.uk within 7 days of receipt of this order. If you contact the Small Claims Mediation Service by email please ensure you include a return telephone number, and the case number.

 

Please note that if you wish to undertake mediation, you must contact the Small Claims Mediation Service.

 

If both parties confirm they wish to undertake mediation, the Small Claims Mediation Service will contact you to arrange an appointment.

If you require any further information about mediation please contact the Small Claims Mediation Service by email at scmenquiries@ hmcts.gsi.gov.uk.

Warning: you must comply with the terms imposed upon you by this order: otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make formal application to the court before any deadline imposed upon you expires.

 

On xx January 2015, District Judge xxx sitting at xxx considered the papers in the case and ordered that:

l) This Claim is allocated to the Small Claims Track and the parties are referred to Part 27 of the Civil Procedure Rules and the Practice Direction of that Part for guidance on how the hearing of the claim will be conducted.

 

2) The claim will be heard at xxx on the xx April 2015 and should take no longer than 2 hours. A hearing fee off £335 is payable by xx March 2015 by the claimant unless you make an application for a fee concession. Failure to pay the fee will result in the hearing being removed from the list. The court must be informed immediatety if the case is settled by agreement before the hearing date. The hearing fee will be refunded in full if the court receives notice in writing at least 7 days before the hearing date, that the case is settled or discontinued. The Court reserves the right to change the place and./or time of the hearing.

 

3) From the available papers, it is estimated that the hearing will take two hours. If a party is aware of a reason why this estimate might be substantially inaccurate, that party must notify the court immediately.

 

4) The parties are encouraged always to try to settle the case by negotiation. The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. The court must be informed immediately if the case is settled.

 

5) The following paragraphs set out the Judge's directions for preparation for the hearing. Failure to comply with the directions may result in the case having to be adjourned and the party at fault having to pay costs.

 

The following Directions apply to this Claim:

6) Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing.

 

7) The original documents must be brought to the hearing.

 

8) The judge may refuse to consider a document or take it into account if a copy of it has not been sent to the other party as required by this Order.

 

9) The documents to be sent to the other party and the court must include the statements of all witnesses

(including the parties themselves).

 

10) Witness statements must:

a) Start with the name of the case and the claim number:

b) State the full name and address of the witness;

c) Set out the witness's evidence clearly in numbered paragraphs on numbered pages;

d) End with this paragraph: 'I believe that the facts stated in this witness statement are true.' (or words to that effect); and

e) be signed by the witness and dated.

 

ll) The judge may refuse to hear the evidence or consider any statement of any witness whose statement has not been prepared and copied to the other party and the court in accordance with the paragraphs ahove.

 

12) Neither party may rely at the hearing on any report from an expert unless permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

If any party wishes to rely at the hearing on evidence in an electronic form, such as a video tape, audio tape,

DVD or CD, he/she should:

 

l. Serve a copy on the other party at the same time as copy documents are served as ordered and be accompanied by instructions on it may be viewed or listened to;

 

2. Within 7 days of receipt of this notice, inform the court in writing that electronic evidence is to be relied on and in what form;

 

3. At the hearing, provide whatever equipment is required to view and/or listen to the evidence. (Although by prior arrangement the court may be able to provide equipment to view a video tape, any such arrangement must be confirmed by the court office in writing).

 

 

 

I've contacted the mediation service as it seems the Judge is kinda pushing that way, and I guess I'm going to have to get ready for sending the Court docs

that I'm relying on 14 days before the hearing date.

 

Also, the CCJ hasn't been removed from my credit file.

 

 

I'm guessing I contact the Court to ask the reason why as the judge did say it should be removed after I sent in my revised defence, which I did.

[AndyOrch]

You need to query with the court as to why its still showing in view of the set a side zingy.

 

Andy

[zingy]

You need to query with the court as to why its still showing in view of the set a side zingy.

 

Andy

 

All done the other week and it's showing as not there when my credit report updated.

 

Have a quick question with the mediation thing. Do I have to do it and do you have any advice with it? (I've spoken to them already and said I'll get back with dates etc as I know what the claimant can do.)

[AndyOrch]

With regards to mediation zingy

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?433406-Alternative-Dispute-Resolution-(Mediation)

 

The court expects all parties to participate in ADR...very rare its ever successful..but do it.

 

Then refer back to your post above #65...in particular for you to check and comply.....

 

 

2) The claim will be heard at xxx on the xx April 2015 and should take no longer than 2 hours. A hearing fee off £335 is payable by xx March 2015 by the claimant unless you make an application for a fee concession. Failure to pay the fee will result in the hearing being removed from the list. The court must be informed immediatety if the case is settled by agreement before the hearing date. The hearing fee will be refunded in full if the court receives notice in writing at least 7 days before the hearing date, that the case is settled or discontinued. The Court reserves the right to change the place and./or time of the hearing.

 

3) From the available papers, it is estimated that the hearing will take two hours. If a party is aware of a reason why this estimate might be substantially inaccurate, that party must notify the court immediately.

 

4) The parties are encouraged always to try to settle the case by negotiation. The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. The court must be informed immediately if the case is settled.

 

5) The following paragraphs set out the Judge's directions for preparation for the hearing. Failure to comply with the directions may result in the case having to be adjourned and the party at fault having to pay costs.

 

The following Directions apply to this Claim:

6) Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing.

 

7) The original documents must be brought to the hearing.

 

8) The judge may refuse to consider a document or take it into account if a copy of it has not been sent to the other party as required by this Order.

 

9) The documents to be sent to the other party and the court must include the statements of all witnesses

(including the parties themselves).

 

10) Witness statements must:

a) Start with the name of the case and the claim number:

b) State the full name and address of the witness;

c) Set out the witness's evidence clearly in numbered paragraphs on numbered pages;

d) End with this paragraph: 'I believe that the facts stated in this witness statement are true.' (or words to that effect); and

e) be signed by the witness and dated.

 

Dont miss a date...

 

Andy

[zingy]

Thanks, Andy.

 

I will give them a call and arrange an appointment then.

 

How does the mediation affect the hearing? Does the judge get any information on it? Just wondering, after read a bit on it, how I can put myself in the best possible position for the hearing.

[AndyOrch]

Mediation is a separate issue and has no connection to the trial...unless its successful and halts the claim.

 

Good preparation...research is the only way to prepare for an hearing....but your next task is to follow the directions to the dot.....still time for them to discontinue yet.

[zingy]

Thanks, Andy.

 

Yeah, this week I'll be reading lots.

 

For anyone keeping up with this thread, mediation is done 'without prejudice', so nothing discussed there can be used by either party in the proceedings.

 

Here's to them discontinuing, but have blocked off the hearing time in my diary

[zingy]

Andy,

 

Can you mark this thread as settled.

 

I had mediation today and decided to go in with an offer of around 20% of the original amount owed (to the OC) payable over monthly installments of 4 years and not budge. (I was fully aware that the account hadn't had interest added to it for years before sale and I had already claimed PPI etc, so I wasn't settling on an over-inflated amount.)

 

They tried to do some arguments, but I said I wasn't budging and it was my one and final offer.

 

They accepted and all has been agreed. (I know that they did 'cos they know it's completely unenforceable. No niavety here.)

 

The reason I didn't want to be awkward (and proceed to trial; they didn't have the org agreement but did try to bluff that they did have. Saying "We received new paperwork on Tuesday". What utter BS.) was that I'm not always at my home address (work away quite a bit: out of the country) and I didn't want this claim to be dismissed for another DCA to pick it up and issue a claim form that then leads to a CCJ in default etc.

 

I might have to pay something towards this, but I'm happy with the outcome. At least it's all 'over with' and can forget about it now.

 

>>> I'm kinda old school and think that while a lot of the amount is interest, paying back a significantly smaller amount of the original amount (without inflated compound interest) is what should be done. I know some wouldn't agree, but hey.

Such as shame. I was looking forward to going back to Court.

 

(Will make a donation next week.)

 

Thank you to everyone for their input and time. I'll be sticking around and helping where I can.

[AndyOrch]

Done zingy:wink:

 

Regards

 

Andy