Little old me V HSBC - Claim form now received

[lord_tiger_putin]

Very good letter LTP , puts them firmly on the spot

 

I've done a proof-read for you and changed a small bit here and there ........... hope you find this OK

 

I will also keep a copy of this for future use to help others if you're OK with that ?

 

 

Thanks for the proof read Johnny, I am glad that someone helped with the syntax as well!

 

I am more than happy for anyone to keep a copy and that it could help others, Patricia Pearl's book was very helpful, the maroon one been advertised here.

[bilious]

Hi there! well turn up for the books, had a set of court papers through the door today!! So sort of expected it but hoped they never came sort of thing! Well DG have ignored my cpr request and filed for the full amount straight away!!! Can someone now please please guide me on my next bit as to which form to fill out should i contest the amount on the back of the faulty DN and the Termination on the back of that or just give in and put in what i can afford to which they'll ignore??? So any advice would be greatly appreciated at this moment.. Thanks in advance...

[the_shadow]

Hi Bilious, only you can decide if you are to defend or not, if you choose to defend then you need to acknowledge service of the claim online and that'll give you more time for your defence.

 

Either way I'll move this thread to the legal forum for some more advice.

 

S.

[Old Cogger]

Following with interest

[bilious]

Thanks shadow, what i meant to say was if i defend on the basis of their invalid DN and the termination thereof and my accepting their unlawful recession are my chances nil with a court or is it going to be 50 - 50 either way? because what i can offer to pay would take 15yrs to pay off that amount and i doubt if they would accept that? even if the court do i simply can't afford it am in the cak i believe!!

[the_shadow]

Thanks shadow, what i meant to say was if i defend on the basis of their invalid DN and the termination thereof and my accepting their unlawful recession are my chances nil with a court or is it going to be 50 - 50 either way? because what i can offer to pay would take 15yrs to pay off that amount and i doubt if they would accept that? even if the court do i simply can't afford it am in the cak i believe!!

 

Ok, the odds all depend on a) Your presentation b) The facts and c) The judge of the day.

 

As to repayment amounts IF you lose then IMO its a case of taking an I&E with you to show the judge your willing to repay if he rules against you BUT at a sensible rate as you can obviously pay no more.

 

Now to business in hand.... Decide if youre going to defend or make an offer or just accept judgement against you.

 

1) If defending then acknowledge service at MCOL website

2) Post up the particulars of claim (edited ~ remove exact amount and names/case refs/account refs etc) and then people can start to advise on how to formulate the CPR 31.14 requests etc.

 

S.

[bilious]

So is it still too late to look at payplan or the ccs or just acknowledge the debt and just pay the thing? thanks for your advice at the moment..

[the_shadow]

As you've received a court claim, IMO Yes its too late.[clarification: your creditors have had the expense of starting court action, it is possible they could push on regardless... depends on how your asset situation is I suppose]

 

Its either come to an arrangement with the opposing solicitor to stop court action and pay in installments (if they allow this, its not a given) or defend the claim and get them to have to prove the debt. If you felt the default notice was defective and it is than that is a defence to the claim.

 

S.

Edited October 1, 2010 by the_shadow

[bilious]

Well dg aren't going to accept what i can pay as they've turned down everything (hsbc.) that is so may have to leave it up to the court then hope some others can shed some light too? As for the dn it's on this thread somewhere if you'd care to have a look for me!

[the_shadow]

Well dg aren't going to accept what i can pay as they've turned down everything (hsbc.) that is so may have to leave it up to the court then hope some others can shed some light too? As for the dn it's on this thread somewhere if you'd care to have a look for me!

 

Right ok, havent looked at the CCA but I see Vint's commented on it and stated it would prob meet s78 request but not court, we need to see the original and to see that we need to send off a CPR 31.14 request if its mentioned in the particulars of claim, you'll have to post them up as advised if you want a proper cpr 31.14 letter constructed.

 

As to the default, yep its giving you less statutory notice than required, there is a slight possibility they'll use an amex court case American Express vs Brandon to counter the DN issue, although you can differentiate your case from that one as you clearly are in default.

 

S.

[bilious]

Right have uploaded both claim forms for u all to look at here's the hsbc one

 

http://i980.photobucket.com/albums/ae289/tuvelpit69/hsbcccj.jpg

 

1. my questions are if you'll help me on this if i do say yes i owe the money. but i can only afford 35 pounds a month which will mean i'll be realistically dead before its paid off!!! hsbc aren't going to accept this?

 

2. if the court says okay thats all you can afford are mbna then going to try to get a charging order on my home? (shared ownership, not much if any equity.)

 

3. are they going to sell the debt on and it starts all over again with debt collectors?

 

4. what happens after 6 years when it's supposed to be removed from my credit file?

 

5. seems they still want to charge me interest on the debt thus it'll never be paid off will the court allow that???

 

Can't think of anything else at the moment but will post more questions if i think of any?? Hope you can help guys bit panicked at the moment..

 

Sorry the above should be hsbc couldn't edit it for some reason...

[lord_tiger_putin]

You could fight it on the basis of the invalid DN, there are some very good example defences (from this site) which I can post. If successful, they will only be able to claim the arrears but then you can counterclaim for the damages. That is only if you want to fight it. If you fight it and loose, then you can make offers of payments.

 

Cannot remember, was there PPI on the card?

[lord_tiger_putin]

 

5. seems they still want to charge me interest on the debt thus it'll never be paid off will the court allow that???

 

.

 

What they are charging is statutory interest. They are allowed 8% only if they are successful and the court allowed it. They can only charge it up to the date should they get a judgement or when you arrange payment.

 

Off course, you can hit them hard with their failure to comply with the pre-action protocols!

[bilious]

yes there was ppi on the card they canceled it after the first time i missed a payment... What about the rest of my questions not sure i'd be any good in court by myself lol...

[lord_tiger_putin]

yes there was ppi on the card they canceled it after the first time i missed a payment... What about the rest of my questions not sure i'd be any good in court by myself lol...

 

Did you claim back teh PPI? It is never too late to start, the fact that they cancelled it is of no relevance, and these actions take a long time, you could have it refunded before this will come to a hearing.

 

I am not sure about the other questions. I do not think this will be sold on if it actually reached a hearing, it will be one outcome or the other.

 

Even if you do decide to defend it, it is not a given that it will actually reach a court hearing. You made offers and they refused it, this must have a significant bearing on how the court will look at this case but there is another significant point. The courts now do place a significant emphasis on mediation, there will come a point that they will ask you do you want to go down that route and you can select it. If they decline it, they will need a very good explanation why and they will be hard press not to do it. This is an informal discussion that not necessary have to be face to face and there you can make your point that you can only afford a certain amount. IMHO they will have to do to mediation and they will have to accept what you offer. Someone with more experience can shed more light on it but I am sure that is the way you can force it to go, should you choose to.

 

Should you reach an acceptable agreement here, then it will not go to court, you will not get a judgement and the default will fall off six years after the date it has been added to your credit report.

 

Everyone is different but I would address it by going full out with a defence based on their flawed DN and let them respond. Depending on their response you can go to mediation and get it resolved there.

[bilious]

Thanks biggest problem is all the offers i made were over the phone which some even laughed at, (and i can bet if it went to court which it must be as they've sent me the claim forms thought it would be a very quick process now?) that they wouldn't be able to "find" that relevant tape even the one where the chap told me to buy less food for my family...Which is at the point i stopped talking to them... and asked for letters only which consisted of the usual threats...

[lord_tiger_putin]

Thanks biggest problem is all the offers i made were over the phone which some even laughed at, (and i can bet if it went to court which it must be as they've sent me the claim forms thought it would be a very quick process now?) that they wouldn't be able to "find" that relevant tape even the one where the chap told me to buy less food for my family...Which is at the point i stopped talking to them... and asked for letters only which consisted of the usual threats...

 

Well you can always write to the solicitors and made the same offer, it is not too late. If this is all you can afford and they refused it, then what are they going to tell a judge when he award the same amount to them which they refused earlier? Therefore, if you do not feel you want to take this on, write to the sorry sols with an offer and make it VERY clear to them it is all you can afford and that you believe should this go to court, then this is what the judge will award.

 

As I mentioned earlier, if they refused then you raise it again at Mediation, they simply cannot refuse it.

[bilious]

Just feels like theres not much chance of me winning even with the faulty dn and their termination of the the account, so what happens if i say yes i do owe the amount to the court and this is all i can afford? any ideas please as i'm on quite a tight time frame now and don't want to make the wrong choice lol...

[lord_tiger_putin]

Just feels like theres not much chance of me winning even with the faulty dn and their termination of the the account, so what happens if i say yes i do owe the amount to the court and this is all i can afford? any ideas please as i'm on quite a tight time frame now and don't want to make the wrong choice lol...

 

I would think you will benefit by getting a proper I&E together. You must include ALL relevant things, you are allowed for savings for a holiday, Christmas spending, etc. A good place is CCCS webste:

 

https://debtremedy.cccs.co.uk/QuickAssessment.aspx

 

By having that and presenting it when needed, you will get the best sustainable solution.

 

Remember, if you admit the debt, you will get a judgement and a CCJ will be registered against your name. The 6 year clock will start again andI am a bit unsure whether it will fall off after 6 years or whether it needs to be satisfied first. Maybe someone else can comment on that?

 

Which part of the country do you live in? You can let me know via a PM.

[bilious]

Hi LTP not worried about the ccj's past caring about all that at the moment my worry is if i can only afford say 30 per creditor per month ( 4 creditors only behind with 2 hsbc and mbna, but may have to go down the same route with the other 2 i'm okay with, as their minimum payments total 160 per month...)what if the court look at my I&E and say i can afford 200 per month which i can't not with all overtime gone and wife on pt hrs now if i cant afford that then thats a default on my ccj isn't it then the court can go to town on me so-to speak..plus if they accept i pay each creditor 30 quid a month it'll never ever be paid off in 6yrs what happens then is my point! Can anyone shed light on this please getting bit panicky now..

[citizenB]

Responding to your S.O.S.

 

your claim form was issued on 22 September so you have until 25th October to submit a defence. If you are going to defend.

 

You must acknowledge service by 10th October at the very latest.

 

Date of issue + 5 days for service

+ 14 days to acknowledge

+14 days to submit defence.

 

33 days from date of issue.

 

IF you are going to defend then you will need to send a CPR31.14 letter immediately, to the solicitors. You need to obtain any paperwork that has been mentioned in the POC ie the agreement and default notice. Unless you have copies and you are able to defend on what you have.

 

You will find a CPR31.14 draft in the link below. You will need to amend it to suit your own circumstances.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage

 

Also have a read of the following thread regarding CPR

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

 

 

If you are NOT going to defend then you are going to have to prepare and I&E form. You must do it correctly, you cannot offer HSBC a figure plucked out the air. You must list your debts, find out how much money is left over from essential and priority expenditure ie mortgage, utlity bills, council tax etc. What is left over "disposable" income should be shared between your creditors on a percentage basis.

 

If I recall correctly your creditors are in order of amount owed..

 

MBNA = 11K

HSBC = 9K

B/Card = 4k

PayPal = 1k

 

Therefore, MBNA would get the larger slice of whatever is left, HSBC is 2nd in order of priority.

 

I believe you were given a link to an I & E form earlier in the thead, but National Debtline has a good form that you could use. They may even give you some help in preparing it.

 

IF you are going to defend, then all I can see is that the DN is faulty in that you werent given the full 14 days. Did you keep the envelope it came in ?

 

I am unable to comment on the Agreement.

 

From the date of the DN you should have been allowed 2 working days - 1st class post or 4 working days for 2nd class post or UK Mail/TNT.

 

Also, if you are going to defence then HSBC are not entitled to s69 interest on an agreement that is regulated under the CCA1974

 

The Claimant pleads that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

HTH

 

[citizenB]

Did I also see that you have PPI that might have been mis sold ?

 

If so, then you should make a spreadsheet using your statements and calculate how much PPI has been paid and ask for it back. If it has been mis sold or you were co-erced into taking it, this could make the agreement invalid.

[citizenB]

Were there 2 pages to the Default Notice. Because it looks like something is missing. There should be a statement about asking the court for time to pay, etc, etc. Similar to the statement on your MBNA Default Notice.

[bilious]

oh i was definitely co-erced into the ppi but how on earth am i supposed to prove that!!! remember her saying "oh you should have this and that just in case, better to be safe than sorry etc!!" my other point is i'm not behind with my other two cards so what do i do about them? will not be able to afford whatever their minimum is going to be on top of whatever the court says i have to pay? and no it was just one sheet with the dn the other side page two is just signature, then they terminated the agreement on the hsbc one by asking for the full amount...but even if i try and defend on those (plus i sent cpr letter which they ignored..)i'm probably still going to lose as the courts still seem to favour the banks over little old us anyday...

Edited September 28, 2010 by bilious

[lord_tiger_putin]

oh i was definitely co-erced into the ppi but how on earth am i supposed to prove that!!! .

 

We can help you putting together an argument. Also, you can claim back interest as well as interest over charged. It adds up to a significant amount. You can also claim the 8% statutory interest if this ends up in court but I believe you cannot counterclaim the PPI now? Someone has some thoughts on it?

 

It gets better!! If you can show that the theft charges is a direct result of the PPI, then they have to refund it, with interest and again, interest over charged.

 

The PPI, interest and charges are all on the FOS website, the moment they agree that it was mis-sold they will have to refund these. If they refused to refund and the FOS find in your favour, the FOS will tell them to pay you a few hundred quid for your effort!!

 

Claiming back PPI is worthwhile!!