Urgent Help Needed! - HSBC Filed Claim at Court What do i do??

[emmaf01]

subscribing

[The Debt Star]

good advice there from emandcole

[dominorally]

good advice there from emandcole

 

Emandcole has been fantastic so far!! briliant advice and i wouldnt have even been able to get my embarrased defence in or known what to ask for from HSBC . i would probably have a judgenment against me by now!!

 

I just thought i would share this with you also - I have sent CPR and SAR requests for the various docs HSBC are going to rely on for their case - None have been forthcoming. However today in the post from the Head of Customer Communications no less, is a copy of their 'Notice of Variation' to the General Terms, Current and savings account terms which take effect from 1st december.

 

Sometimes you just have to laugh at the strange and ridiculous behaviour of our financial institutions!!:lol:

 

Now, when I looked at these terms there is a clause about defaults (of which i have one on this closed account which is the subject of this claim) It states the following :-

 

34.4.3 If we make demand for repayment following default and you fail to repay the sum due in full or to make and keep to acceptable proposalsfor repayment within 28 days, we may (in the absence of any genuine dispute about the amount owed) register the default with the CRAs which may affect your ability to obtain further credit.

In the previous Terms on the HSBC website the clause is the same however it was clause 34.3.3 effective from June 1 2010.

I am trying to find a way to get the DN removed and think the part in red may be valid as at the time of the DN i was in dispute over the unfair bank charges.

 

Does anyone have any thoughts on this please ??

 

thinking i may write to HSBC and state this is from their own terms so should not have placed the DN on my Credit File.

 

 

Thanks

 

DR

[dx100uk]

I am trying to find a way to get the DN removed

 

if the figure owing on the DN contains any bank charges, then its instantly invalid surely, as this 'was' a bank charges claim by you in the first place, surely it must?

or have i got the end of the stick that still hot.............

 

 

dx

[dominorally]

I am trying to find a way to get the DN removed

 

if the figure owing on the DN contains any bank charges, then its instantly invalid surely, as this 'was' a bank charges claim by you in the first place, surely it must?

or have i got the end of the stick that still hot.............

 

 

dx

 

Hi Dx,

 

The DN was issued Aug 09 but i have only just found this out from my credit file because i never had a default notice from HSBC.

 

At the time i was disputing unfair charges on the account. The OD was more or less the total amount of OD charges levied on the account. The claim HSBC have now brought is for the same amount i was disputing.

 

I am hoping someone may be able to give more advice on this before i write any letters.

 

My original thread is also running with the question about removing the DN

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?181183-Dominorally-v-HSBC

 

 

DR

[dx100uk]

there is a very large thread called 'invalid default notices' or alike

 

look in there.

 

dx

[emandcole]

Hi all. DX I share your frustrations about default removal when the actual default notice is inaccurate and invalid. I'm currently sending emails back and forth with an advisor from the ICO about this very matter.

 

To date I have established that the ICO is wholly disinterested in a DN that is invalid and/or inaccurate...however they are very interested in it if that DN was not served at the appropriate time.

 

I found this to be bizarre and annoying, the fact that the ICO are disinterested in the actual information but concerned about the concept of whether it was served at the right time

 

I responded and provided details of the Woodchester case regarding an invalid default notice. I pointed out that in effect the ICO would have been quite content to leave this DN on the credit file of an individual if a complaint were made but had that individual shown it to the high court it would not be deemed as a valid and accurate legal document, which a default notice really is.

 

I asked for an explanation as to why the ICO do not appear to line up their thinking with that of the high court.

 

They've also stated that such issues should be referred to the OFT and not to them.

 

I'm waiting for another response at the moment but frankly I'm not expecting to get one as it seemed pretty obvious that somehow, somewhere this is an area the ICO wish to stay well clear of. Wonder why?!

[dx100uk]

hehe

pass the parcel..

 

now this time limit is interesting as on another thread i'm on, someone is saying totally the opposite

they don't care a monkeys about the time limit

 

 

i'll go find it, mbna i think.

 

dx

[dx100uk]

sorry to hi-jack for 10 secs

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?275655-Virgin-MBNA-passed-to-Optima-claim-forms-received-help!&p=3147270

 

is the thread EC.

 

dx

[The Debt Star]

ok, so if the ico and fos aren't interested in defaults being incorrectky registered at the CRAs, what do we do about it? where do we turn?

[dominorally]

Standard letter yes. HSBC are free to contact you at any time if they wish to mediate so don't rule this out, however given the fact that HSBC is a machine it's probably not very likely but you never know, depends on what they have and how they perceive you given your defence.

 

As for knowing when they received a copy of your defence you could try ringing the court, they'd maybe give you an idea but not sure of any 'official' way of doing this.

 

They may well say the CPR requests are invalid, however you have a basic right to obtain sight of the documents they will rely on and until they do this you are well within your rights to offer no more than the response you've already submitted.

 

Up until a track has been allocated these requests are perfectly valid however the lack of definitive reference to paperwork relied upon does mean the actual matter of disclosure hasn't really happened in full. I suspect HSBC use this sort of POC a lot, it allows them to be vague about the manner of the debt and this is not accidental.

 

Irrespective of this initial difficulty your response made it quite clear to the court that you needed X, Y and Z and you requested the claim be stayed if the court did not order the claimant to respond.

 

If you need to force their hand you can do this. Maybe give them a touch longer to respond now your defence is in and they can see what you've requested, if they still don't provide perhaps after a week or so then send a letter threatening an application will be made to the court if they don't voluntarily supply them.

 

This will help show the court that you are actively seeking resolution and if the claimant starts mucking about and dithering it won't go down very well.

 

You've done what is expected of you, let's see what the bank does next - you never know, they may not wish to proceed if the paperwork you are requesting doesn't exist. For every 25 claims they make of this nature maybe 1 person will know what's what and put them to strict proof. Law of averages might be on your side, we'll see.

 

Hi emandcole,

 

Just been away from the forum for a couple of weeks. Plus my broadband has been off for 10 days now

 

Anyway, just to pick up on this again - the 28 days that HSBC have to respond to my defence are up around the 26th/27th October. If i havnt heard anything from HSBC by then how do i proceed? do i have to contact the court or send another request to HSBC for the already requested info that i havnt received yet .Am i within my rights to ask for this to be thrown out or will it just get stayed until HSBC do actualy send the information.

 

Thanks again for any help

 

DR

[emandcole]

Just to recap for us - did the court send any order out to you both yet? If not I believe you were trying to get basic documentation from HSBC in order to submit a full defence...is that right? Did you submit anything yet after acknowledging the initial claim?

[dominorally]

Just to recap for us - did the court send any order out to you both yet? If not I believe you were trying to get basic documentation from HSBC in order to submit a full defence...is that right? Did you submit anything yet after acknowledging the initial claim?

 

 

EC,

yes to recap you are right, after my initial defence i have not had anything from the court or any documernts from HSBC. I sent the SAR and a 31.18 request. i was going to send a 31.15 request to HSBC but my internet has been playing up and has been completely off for about 10 days now but hoping to get it sorted in the next few days then i can really get back upto speed.

 

 

I guess i should send the 31.15 request. is there any other action i should/could take in the meantime?

 

DR

[emandcole]

Quick recap on the defence - what did you send, was it based on not being able to submit fully due to no documents?

[dominorally]

Quick recap on the defence - what did you send, was it based on not being able to submit fully due to no documents?

 

In a nutshell yes defence was basically not being able to properly defend due to lack of docs. the defence is attached in post 65.

 

sorry for any delay in my responses but my internet access is limited for the time being

[emandcole]

Send the 31.15 but be prepared to back it up with an application to the court if they fail to provide. Presumably their POC was clear about the documents they rely on enabling you to specifically state what you wish to examine/gain copies of? As long as you have acknowledged and then submitted some form of response if the court sees you are clearly being frustrated by the claimant you're fine. They may even stay the claim but hopefully your request will be answered and you'll get what you need. Make sure its sent recorded and you keep proof of delivery etc.

[dominorally]

Send the 31.15 but be prepared to back it up with an application to the court if they fail to provide. Presumably their POC was clear about the documents they rely on enabling you to specifically state what you wish to examine/gain copies of? As long as you have acknowledged and then submitted some form of response if the court sees you are clearly being frustrated by the claimant you're fine. They may even stay the claim but hopefully your request will be answered and you'll get what you need. Make sure its sent recorded and you keep proof of delivery etc.

 

Ok thanks for that - i will send the 31.15 however i cannot ask for any docs specifically as there was no mention of any docs in their POC (see attached). so until i get copies of any docs they are going to rely on surely i cannot defend properly.

 

DR

POC.pdf

[emandcole]

Ok, looking at the POC I'd say they'd failed to provide sufficient details contrary to CPR. They should set out their claim in law and not just speal off a few 'facts' with no references to anything. Will get back to you...

[emandcole]

As the claimant has failed to provide a proper POC I would submit the following to the court along with a letter explaining that you have been able to get some advice and now believe the POC is insufficient to allow you to respond in the manner you need.

 

Also explain that the claimant has failed to supply you with the documents needed and as such you remain frustrated by their lack of action. Incorporate it into one letter and send it to the court asap.

 

 

1. My name is (Insert full name) and I am the defendant in this matter.
   
2. The Defendant will object that the Particulars of Claim in this action disclose no reasonable cause of action against the Defendant. There is no detailed allegation against the Defendant in law as to how the Defendant should be liable to the Claimant for the amount claimed making no reference to specific failures or breaches of statute.
   
3. The Particulars of Claim do not comply with the Civil Procedure Rules as (amongst other things) they do not show how the sum of (INSERT CLAIMED SUM) was arrived at and the Particulars of Claim are too vague.
   
4. The Claimant should, therefore, be ordered to file and serve an amended claim to set out the basis in law and fact as there is no pleaded basis for the claim itself other than a simple unsubstantiated and ill detailed demand for payment.
   
5. The Defendant respectfully requests that opportunity should then be given to defend the proceedings further, however should the claimant fail to do so the claim should be struck out for non compliance of CPR under the case management powers of the court.
   

You should also deny them the Section 69 interest as there would have been a specified interest rate applicable to the debt claimed (presumably) and they cannot have it twice over.

[dominorally]

As the claimant has failed to provide a proper POC I would submit the following to the court along with a letter explaining that you have been able to get some advice and now believe the POC is insufficient to allow you to respond in the manner you need.

 

Also explain that the claimant has failed to supply you with the documents needed and as such you remain frustrated by their lack of action. Incorporate it into one letter and send it to the court asap.

 

 

1. My name is (Insert full name) and I am the defendant in this matter.
   
2. The Defendant will object that the Particulars of Claim in this action disclose no reasonable cause of action against the Defendant. There is no detailed allegation against the Defendant in law as to how the Defendant should be liable to the Claimant for the amount claimed making no reference to specific failures or breaches of statute.
   
3. The Particulars of Claim do not comply with the Civil Procedure Rules as (amongst other things) they do not show how the sum of (INSERT CLAIMED SUM) was arrived at and the Particulars of Claim are too vague.
   
4. The Claimant should, therefore, be ordered to file and serve an amended claim to set out the basis in law and fact as there is no pleaded basis for the claim itself other than a simple unsubstantiated and ill detailed demand for payment.
   
5. The Defendant respectfully requests that opportunity should then be given to defend the proceedings further, however should the claimant fail to do so the claim should be struck out for non compliance of CPR under the case management powers of the court.
   

You should also deny them the Section 69 interest as there would have been a specified interest rate applicable to the debt claimed (presumably) and they cannot have it twice over.

 

 

EC,

 

thanks for this. I have had some corespondence from HSBC and DG Solicitiors today although i have not got home yet to see what it is - will do that and report back probably tomorrow now as i have limited access to t'internet. then if i still need to send this to the court i will.

 

thanks

 

DR

[dominorally]

EC Have had some info from DG not very much though a few statements and about 4 copies of letters will post up over the weekend what i have got and some of the reasons why they have not sent some things - they have given me until the 2nd Novenber to give them a responce however the 28 days they had to respond are up 26th oct Tuesday so do i have to write to the court in the meantiome??

 

I am unsure on how i will respond to some of the points in the letter from D & g and what i need to do as far as the court is concerned.

 

 

DR

[dominorally]

EC Have had some info from DG not very much though a few statements and about 4 copies of letters will post up over the weekend what i have got and some of the reasons why they have not sent some things - they have given me until the 2nd Novenber to give them a responce however the 28 days they had to respond are up 26th oct Tuesday so do i have to write to the court in the meantiome??

 

I am unsure on how i will respond to some of the points in the letter from D & g and what i need to do as far as the court is concerned.

 

 

DR

 

Emandcole,

 

So I got some info through from D & G.

 

i sent my CPR 31.14 request on 10th Sept giving them 7 days in which to either send me the info or to write and tell me they either wanted an extension( I didnt get this ) and it has taken them 34days to respond to my request.

BTW The information i have received is very sparse by any stretch of the imagination and if this is what they are going to rely on in court then i dont know how they are going to convince the judge.

 

This is what asked for.

 

1. The Agreement & General Conditions - Not received - They claim that current a/c O/D's are exempt with ref to part V and that the determination was graned 21st Dec 1989 so there is no agreementfor a current a/c O/D. They also confirm that a deault notice would not be forwarded to me in respect of a bank acc.

2. The demand for repayment - Copy received - I have also the original of this.

3. All Documents that you will be relying on in court in respect of your claim - In answer to this they are referring to CPR31.6 & 31.7 they also want me to adive what issues the requested docs are relevant to and each head which it falls in. this will enable them to establish whether or not the additional docs are reasonable & relevant.

4. True Copies of all Bank Statements held and a transcript of all charges fees and breakdown of fees/charges and what they relate to and what date they were applied. - They have sent copies of statements from Oct 04 to Sept 09. which is when they closed the account.

Just a point to note is that the amount disputed includes fees / charges from 2002 when the account was opened. are the charges between then and Oct 04 now not valid (approx £600) if so the amount on the claim is wrong and they should not be able to claim this as over 6 yrs old.

5. A list of 3rd Party agencies to whom they have disclosed my personal data and a summary of the nature of the information they have disclosed - Nothing received although i know they have entered a DN in Sept 09.

They have also sent a copy of a letter withdrawing my O/D facility and a Facilty letter from 2008 which confims the amount of the O/D at that time.

Nothing else has been sent.

Now also in the letter from D&G - They confirm that they have been instructed by HSBC and any correspondence should go to them.

 

they also note that my letter sent to HSBC on 17/9/10 stated that HSBC had given me 6mnths to go to the FOS provide and that they are oblidged to hold any action in the interim - Does this mean that they are putting this on hold while i take my complaint to the ombudsman?? if so should they be allowed to put this claim in in the 1st place??

They also claim a LBA was sent to me on 1st Dec 09 and that due to restrictions of HSBC electronc systems they are unable to provide actual copies of the correspondence - I never received this LBA - what can i do then if they cant provide a copy ?? i assume that means they havnt got the letter and it seems to me that it was never sent

In my initial defence i stated that their POC was vague etc etc and does not comply with CPR16 - Their responce to this is taht at this stage the claim was issued by Northampton (CPC/CCBC) CC and given that the procedure for filing a claim via this method differs from the conventional route, CPR part 16 does not apply and refer me to CPR practise direction 7c 1.4. How can this be true when all these claims are issued through the same route??? HELPPPP!!!

They have also conformed that i am awaiting docs from HSBC ref the SAR i sent.

 

They also point out that they beleive that if my defence is on the basis that charges were unfair that it must fail due to the Supreme court judgement Nov 2009 . I dont think that my defence is going to be on that argument is it???

Sorry this is so long - I really need some help on what to respond with by the 2nd November . obviously i havnt got the docs i need but how do i get them surely they should have sent me all i asked for .

 

Do i need to send anything to the court now?

 

My internet is still down 15days and counting so have limited PC access but will try and post up the letter they sent to me.

They have given me until 4pm on 2nd November to respond and confirm that a request for judgement hs not been made - Thats good of them isnt it!!!

 

 

Thanks again for your help

 

 

DR

[emandcole]

POC not correctly pleaded, believe you’ve addressed this already.

 

Agreement and T&C’s – If they state there is no agreement and no signature then they must rely on the part 5 exemption and provide you with a full history of the OD lending. To do this you need a full statement history and importantly a copy of the OD facility letter detailing the exact lending criteria for each OD arrangement. This facility letter should have a number of obvious details such as the amount, interest rate applicable and the dates this agreement covers.

 

Quite simply if they admit there is no agreement to cover the lending and there is not a record of the facility letters they have not protected their lending and cannot really demand it all back. Factor in the charges applied (which you can now state were not contractually reserved as they have failed to provide you with the T&C’s) and they are in a spot of difficulty. As for the DN as they have failed to state on the POC what law this lending was regulated by (if it was regulated at all) then how can they state if a DN was appropriate anyway? It might not have been required, however the fact they have effectively confirmed that ‘it would not have been forwarded anyway’ suggests the lending was regulated and as such you have a right to see it, as does the court.

 

Demand for repayment – ok.

 

All documents – Basically then they don’t have them and instead of admitting this they’re using CPR excuses. If the court has ordered them to bring the originals then make sure they do that on the day and can’t get away with ignoring that. If they bring supposed copies then make sure they have abided by the Civil Evidence Act concerning documents in court. They should have obtained prior permission to use these so if that happens during the hearing ask to see the permission they secured before the hearing. If they don’t have it state the documents they have produced should not be considered. This also comes down to their POC, poorly pleaded and this was deliberate so that what they had to provide for you was negligible.

 

Bank statements – Ok, they’ve sent 6 years then and this might be good enough, however as the account is older than 6 years I would insist a full history is provided, especially as this earlier period contains default charges they can’t demonstrate they had any contractual right to charge. As such you have reasonable ground to call into question the accuracy of the amount claimed. If they categorically cannot or will not prove to you that they had any contractual right to have applied these then the amount claimed is wrong and should not be allowed, after all they cannot demonstarte the amount is correct.

 

Data to third parties – They would have needed your consent to have shared this data, so where is it? If they have no agreement then on what terms was any consent given by you to allow them to use this data in the way they have? Also, this should really be detailed in the T&C’s, which they also cannot provide you.

Have they sent you the latest version of the T&C’s? If they have they need to demonstrate that they had a right to vary the inception T&C’s so that the T&C’s now presented are acceptable too. If they cannot prove that on your account they had the right to vary the T&C’s in the future then the current ones should not be accepted.

 

2008 OD facility letter – Good they’ve sent this as you can now ask, where are the rest?

 

FOS – You do not have to use them and to be honest they aren’t a lot of good, especially where banks are concerned. The simple fact is that banks are a golden industry, they can do as they wish and they will do it with expectation and arrogance as they are effectively untouchable – they’ll be back in the nest 2 months or so for another taxpayer boost claiming it will allow them to lend to businesses…and we’ll ‘give’ it to them too. With that in mind you have every right not to have wasted your time filling out lengthy forms and waiting 3 years for a reply.

 

LBA – This is compulsory, they must be able to show they sent you this. If in the year 2010 a huge institution such as HSBC is not able to provide sometihng as important as this that’s pathetic – they knew they were litigating and as such should keep a file copy. If they’re unable to provide you with one then maintain it was never sent and state they have not compied with pre-action protocol. An LBA is your final opportunity to respond and potentially escape litigation, if they have denied you this then make a noise about it. Remember at all times it is for them to prove their case and not for you to disprove. Quite simply then if they cannot provide you with the LBA, and no proof of postage it wasn’t sent.

 

Quote – ‘In my initial defence i stated that their POC was vague etc etc and does not comply with CPR16 - Their responce to this is taht at this stage the claim was issued by Northampton (CPC/CCBC) CC and given that the procedure for filing a claim via this method differs from the conventional route, CPR part 16 does not apply and refer me to CPR practise direction 7c 1.4. How can this be true when all these claims are issued through the same route??? HELPPPP!!!’

 

This is crap. Yes, issuing proceedings from the bulk centre means there is a difference as they do not need to attach documentation with the claim paperwork but this is not an ongoing excuse to not ever provide them! They should have listed their claim in law on the POC as disclosure and then provided you with full documentation, by CPR request, by decency, by court expectation whatever…either way they need to give you these and not come up with excuses based on where it was filed.

 

SAR – Make sure they don’t go past 40 days, that’s how long they have. Given the fact this is under litigation they should hurry with this and make sure you get it all in good time.

 

As for the supreme court judgment use this in your defence (vary it to suit of course so it fits and makes sense) and ask them to respond in full –

 

Although the OFT lost this case under regulation 6 of the Unfair Terms In Consumer Contract Regulations 1999 (UTCCR), the Supreme Court stated that this did “not resolve the myriad cases that are currently stayed in which customers have challenged Relevant Charges” (para 61 of the court’s judgment). In particular, the Supreme Court made it clear that “it remained open to question whether bank charges were fair” in relation to regulation 5(1) of the UTCCR (para 80 of the Supreme Court’s judgment).

 

Accordingly, in consideration of my request for a refund, and in light of the Supreme Court’s judgment, please ensure that you have regard to the following amended grounds of complaint:

 

(1) I seek a refund of overdraft charges (with interest thereon) applied to my current account because these charges were unfair in terms of regulation 5(1) of the UTCCR as –

 

(a) your charges were set by reference to the overall costs of providing current account services to all of your customers rather than the costs incurred by my individual conduct which occasioned bank charges;

 

(b) at no time have you ever informed or adequately explained to me, that I would be paying bank charges in order to cross-subsidise the costs of providing the vast bulk of your customers with ‘free if in credit banking’;

 

© your charging structure was designed or created the potential for rolling or multiple charges, with charges and interest being applied and/or occasioned by ‘charges on charges’;

 

(d) the way that charges were imposed and accumulated in terms of your charging structure was unclear, unpredictable and complex; and

 

(e) the main providers of current accounts in the UK operated a similar charging structure to you, and in so doing restricted market competition, resulting in my inability to obtain an alternative current account with a fair charging structure;

 

(2) Separately, I also seek a refund of overdraft charges (with interest thereon) applied to my account because these charges were unfair within the meaning of section 140A(1) of the Consumer Credit Act 1974 for the reasons as set out in paragraph (1)(a) to (e) above, and in relation to the following additional reason: your charges were excessive in relation to the level and/or cost of the borrowing which triggered these charges.

 

Please note this is not a template letter as my letter contains specific factual information which relates solely to my personal circumstances. I would ask you to have regard to the following examples of detriment which I have suffered as a result of your unfair and punitive charges:

 

 

 

 

 

[iNSERT in your own words bullet point examples of how bank charges have affected you personally – for example you may wish to discuss how charges resulted in personal hardship; not having enough money to pay bills or buy household essentials; or resulted in you being unable to pay other direct debits; or how they placed you into a cycle of debt resulting in difficulty with paying your rent or mortgage, for example. Essentially, explain how the charges impacted on your life and that of any dependents or partners, for example].

 

END--------------------------------------------------------------------

 

The above may make them think about their charges and how it has impacted on your finances, especially as they provide no proof that you were made aware of these, that you agreed to them or that they even had any contractial right to have applied them.

 

As for responding to them point out all of the above and state that if they have not addressed all of the above before the hearing (at least 10 days before to give you time) that you will bring all of this to the courts attention as they are frustrating your attempts to establish both your own and their legal position and will be requesting adjournment with costs until they start to provide what you need.

 

State that you will show the court any correspondance you have sent them to detail your attempts to establish the lawful position and if they continue to be obstructive, given the fact they also refused mediation, that you’ll make further complaint to the court and consider your options under the CPR.

 

Proceed with the CPR requests as normal and also kmake sure the court knows you are unhappy with the POC as detailed in an earlier post, presume you have sent that already? Just build up the errors they have made and make sure, come the day of the hearing, that you can demonstrate how the other side has prevented you from establishing your position and wherever they have ignored court directions that they are exposed.

[dominorally]

POC not correctly pleaded, believe you’ve addressed this already.

 

Agreement and T&C’s – If they state there is no agreement and no signature then they must rely on the part 5 exemption and provide you with a full history of the OD lending. To do this you need a full statement history and importantly a copy of the OD facility letter detailing the exact lending criteria for each OD arrangement. This facility letter should have a number of obvious details such as the amount, interest rate applicable and the dates this agreement covers.

 

This request for further info would be included in my responce to D & G or for the Court or would i copy both ?? do i have to use a CPR request for this??

 

Quite simply if they admit there is no agreement to cover the lending and there is not a record of the facility letters they have not protected their lending and cannot really demand it all back. Factor in the charges applied (which you can now state were not contractually reserved as they have failed to provide you with the T&C’s) and they are in a spot of difficulty. As for the DN as they have failed to state on the POC what law this lending was regulated by (if it was regulated at all) then how can they state if a DN was appropriate anyway? It might not have been required, however the fact they have effectively confirmed that ‘it would not have been forwarded anyway’ suggests the lending was regulated and as such you have a right to see it, as does the court.

 

included in my responce to D & G or for the Court/defence or would i copy both ?? do i have to use a CPR request for this??

 

Demand for repayment – ok.

 

All documents – Basically then they don’t have them and instead of admitting this they’re using CPR excuses. If the court has ordered them to bring the originals then make sure they do that on the day and can’t get away with ignoring that. If they bring supposed copies then make sure they have abided by the Civil Evidence Act concerning documents in court. They should have obtained prior permission to use these so if that happens during the hearing ask to see the permission they secured before the hearing. If they don’t have it state the documents they have produced should not be considered. This also comes down to their POC, poorly pleaded and this was deliberate so that what they had to provide for you was negligible.

 

I guess this is for my defence on the day but how do i formulate the defence if i dont get to see these docs before the day? do i have to write and ask them to produce them? How do i know if the court has asked them to bring originals? a bit worried about this bit due to the unknown content of any docs they may have.

 

 

 

Bank statements – Ok, they’ve sent 6 years then and this might be good enough, however as the account is older than 6 years I would insist a full history is provided, especially as this earlier period contains default charges they can’t demonstrate they had any contractual right to charge. As such you have reasonable ground to call into question the accuracy of the amount claimed. If they categorically cannot or will not prove to you that they had any contractual right to have applied these then the amount claimed is wrong and should not be allowed, after all they cannot demonstarte the amount is correct.

 

Again to get the fulll history do i have to use a CPR direction ?

 

Data to third parties – They would have needed your consent to have shared this data, so where is it? If they have no agreement then on what terms was any consent given by you to allow them to use this data in the way they have? Also, this should really be detailed in the T&C’s, which they also cannot provide you.

Have they sent you the latest version of the T&C’s? If they have they need to demonstrate that they had a right to vary the inception T&C’s so that the T&C’s now presented are acceptable too. If they cannot prove that on your account they had the right to vary the T&C’s in the future then the current ones should not be accepted.

 

I have a copy of the latest T & C's but no others - again do i use a CPR request to request these?

 

2008 OD facility letter – Good they’ve sent this as you can now ask, where are the rest?

 

Ask D & G by letter or CPR request?

 

FOS – You do not have to use them and to be honest they aren’t a lot of good, especially where banks are concerned. The simple fact is that banks are a golden industry, they can do as they wish and they will do it with expectation and arrogance as they are effectively untouchable – they’ll be back in the nest 2 months or so for another taxpayer boost claiming it will allow them to lend to businesses…and we’ll ‘give’ it to them too. With that in mind you have every right not to have wasted your time filling out lengthy forms and waiting 3 years for a reply.

 

LBA – This is compulsory, they must be able to show they sent you this. If in the year 2010 a huge institution such as HSBC is not able to provide sometihng as important as this that’s pathetic – they knew they were litigating and as such should keep a file copy. If they’re unable to provide you with one then maintain it was never sent and state they have not compied with pre-action protocol. An LBA is your final opportunity to respond and potentially escape litigation, if they have denied you this then make a noise about it. Remember at all times it is for them to prove their case and not for you to disprove. Quite simply then if they cannot provide you with the LBA, and no proof of postage it wasn’t sent.

 

Use This in the revised defence?

 

Quote – ‘In my initial defence i stated that their POC was vague etc etc and does not comply with CPR16 - Their responce to this is taht at this stage the claim was issued by Northampton (CPC/CCBC) CC and given that the procedure for filing a claim via this method differs from the conventional route, CPR part 16 does not apply and refer me to CPR practise direction 7c 1.4. How can this be true when all these claims are issued through the same route??? HELPPPP!!!’

 

This is crap. Yes, issuing proceedings from the bulk centre means there is a difference as they do not need to attach documentation with the claim paperwork but this is not an ongoing excuse to not ever provide them! They should have listed their claim in law on the POC as disclosure and then provided you with full documentation, by CPR request, by decency, by court expectation whatever…either way they need to give you these and not come up with excuses based on where it was filed.

 

Thought that might be the case - again though do i request in a standard lletter format or a CPR request ?

 

SAR – Make sure they don’t go past 40 days, that’s how long they have. Given the fact this is under litigation they should hurry with this and make sure you get it all in good time.

 

I have received a letter saying i didnt specify which branch i want to pick the info up from and a form to complete. so they are obviuosly at a point where they are sending the info - am i within my rights to have this sent to my home?

 

As for the supreme court judgment use this in your defence (vary it to suit of course so it fits and makes sense) and ask them to respond in full –

 

Although the OFT lost this case under regulation 6 of the Unfair Terms In Consumer Contract Regulations 1999 (UTCCR), the Supreme Court stated that this did “not resolve the myriad cases that are currently stayed in which customers have challenged Relevant Charges” (para 61 of the court’s judgment). In particular, the Supreme Court made it clear that “it remained open to question whether bank charges were fair” in relation to regulation 5(1) of the UTCCR (para 80 of the Supreme Court’s judgment).

 

Accordingly, in consideration of my request for a refund, and in light of the Supreme Court’s judgment, please ensure that you have regard to the following amended grounds of complaint:

 

(1) I seek a refund of overdraft charges (with interest thereon) applied to my current account because these charges were unfair in terms of regulation 5(1) of the UTCCR as –

 

(a) your charges were set by reference to the overall costs of providing current account services to all of your customers rather than the costs incurred by my individual conduct which occasioned bank charges;

 

(b) at no time have you ever informed or adequately explained to me, that I would be paying bank charges in order to cross-subsidise the costs of providing the vast bulk of your customers with ‘free if in credit banking’;

 

© your charging structure was designed or created the potential for rolling or multiple charges, with charges and interest being applied and/or occasioned by ‘charges on charges’;

 

(d) the way that charges were imposed and accumulated in terms of your charging structure was unclear, unpredictable and complex; and

 

(e) the main providers of current accounts in the UK operated a similar charging structure to you, and in so doing restricted market competition, resulting in my inability to obtain an alternative current account with a fair charging structure;

 

(2) Separately, I also seek a refund of overdraft charges (with interest thereon) applied to my account because these charges were unfair within the meaning of section 140A(1) of the Consumer Credit Act 1974 for the reasons as set out in paragraph (1)(a) to (e) above, and in relation to the following additional reason: your charges were excessive in relation to the level and/or cost of the borrowing which triggered these charges.

 

Please note this is not a template letter as my letter contains specific factual information which relates solely to my personal circumstances. I would ask you to have regard to the following examples of detriment which I have suffered as a result of your unfair and punitive charges:

 

 

 

 

 

[iNSERT in your own words bullet point examples of how bank charges have affected you personally – for example you may wish to discuss how charges resulted in personal hardship; not having enough money to pay bills or buy household essentials; or resulted in you being unable to pay other direct debits; or how they placed you into a cycle of debt resulting in difficulty with paying your rent or mortgage, for example. Essentially, explain how the charges impacted on your life and that of any dependents or partners, for example].

 

END--------------------------------------------------------------------

 

The above may make them think about their charges and how it has impacted on your finances, especially as they provide no proof that you were made aware of these, that you agreed to them or that they even had any contractial right to have applied them.

 

As for responding to them point out all of the above and state that if they have not addressed all of the above before the hearing (at least 10 days before to give you time) that you will bring all of this to the courts attention as they are frustrating your attempts to establish both your own and their legal position and will be requesting adjournment with costs until they start to provide what you need.

 

State that you will show the court any correspondance you have sent them to detail your attempts to establish the lawful position and if they continue to be obstructive, given the fact they also refused mediation, that you’ll make further complaint to the court and consider your options under the CPR.

 

Proceed with the CPR requests as normal and also kmake sure the court knows you are unhappy with the POC as detailed in an earlier post, presume you have sent that already?

Not sent this yet will send ASAP as per your previuos post - was waiting to see what D & G actually sent first

Just build up the errors they have made and make sure, come the day of the hearing, that you can demonstrate how the other side has prevented you from establishing your position and wherever they have ignored court directions that they are exposed.

 

 

Thanks very much for this - i will have to really read through again and digest it all. i need to know what i do next apart from respond to D & G in terms of the court procedure and when i need to put my proper defence in (i assume i cant do that until D & G have sent all the docs i need) how do i get an extention??

Does the 28days HSBC had to respond to my initial defence apply to me also to submit my next defence? if so that is up tomorrow !

What actually happens now with the court will they know that d & G have given me to 2nd nov to respond or is it up to me to tell the court what is happeneing??

just a bit worried i am missing something

DR

[Docman]

dominorally

 

Do not allow yourself to be bullied by Dumb Goofers and their HSBC paymasters. You have got excellent advice from emandcole and I see no reason why you should respond immediately to them. They took their time and so should you.

 

As to an amended defence, I don't think you can send one to the court without the court's permission. Your defence ( I assume it was along the lines that emandcole suggested in post #94 above) is fine. If it gets to a court hearing, HSBC will either request or be ordered to amend their POCs at which point you should get time to amend your defence.

 

In the meantime, I suggest you try drafting a letter to HSBC pointing out the inadequacies of their case taking into account the points highlighted by emandcole and seeing what we all think.