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

[dominorally]

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.

 

Thanks Docman, its good to have some great advice and Emandcole has been brilliant so far. i dont want to make anything worse for myself by not following any procedures etc etc. I assume that this sort of behaviour by D & G is common place?

 

It is a bit scary when i have never been in this sort of position before and hopefully i can fully understand the process with all the help from this forum. I think it is the court procedeure and whether or not a normal letter of response is sufficient or whether the correct way forward is using the CPR requests to get the info i need.

 

 

DR

[dominorally]

At Last Back online !!!! 3 weeks of no internet access and dealing with wooden headed Technical support people has sent me to the edge!!

 

Any way back to the matter in hand....

 

Emandcole, For info to you and anyone else who may be able to help or is going through the same process i have posted up the letter i got from D & G. i posted the main points on 24th October which you responded to with loads of info . Thanks again for that but being able to see the real thing and the wording sometimes helps.

 

I will try and draft a letter of response and post that up for advice.

 

 

DR

[dominorally]

Emandcole

 

just to keep you guys up to date - i am drafting a letter to D & G ref the CPR31.14 request they responded to - I have received the info from the SAR this morning also today is Day 40! will look through that to see what it includes.

 

I found a letter from the court last night which says that HSBC have 28days in which to give a response otherwise the claim will be stayed.i assume then that the date of 2nd Nov that D & G gave me to respond by is the 28th Day. Obviuoskly i have not responded in time so wondering what will happen now.

 

 

DR

[emandcole]

You will need a full statement history to enable an audit to be conduected to ascertain the accuracy of their claim. Has the SAR produced this?

Facility letter for the OD – does this cover the period of any OD in full and does it state the interest rate applicable? Do the dates tie up?

 

 

They state an LBA was sent on the 1st December 2009. They then state they can’t prove this ‘due to the restrictions of their system’. Unless you’ve had this therefore deny it was received and ask for proof of postage, it is after all an important letter and the only restriction they have is self inflicted. Quite why HSBC is incapable of recording such an important letter is ridiculous and they state they don’t even have a copy of what it may have looked like. Not good enough.

 

As for the CPR stuff if they don’t want to give you what you’ve asked for that’s up tp them. Can’t recall what you asked for but if you’ve requested paperwork that is essential to establishing the status of their claim and they won’t provide you are being prevented from ascertaining the nature of the claim and that isn’t right. Perhaps respond with the reason for anything you’ve asked for included and see if they are being ‘technical’ about it or just plain ‘difficult’. If they’re being difficult make sure the court knows.

 

Defence Issues –

They now know you have some idea about this stuff and they turn to reducing your defence with some credible argument, but as you’d expect it’s just a touch tainted.

 

Yes, Part V exemption was given for overdrafts, however this wasn’t across the board and for free as such. In order to claim part V exemption, thus not having to supply a credit agreement for the lending, the bank must rove they took advantage of that option by instead providing a simple facility letter for any period of OD lending. The content of which is important and should include the rate of interest they will charge and the duration this agreement is for. If they do not have this they did not take advantage of the exemption in the proper manner.

 

Good of them to confirm there is no executed agreement in existence, they will therefore have the facility letter or letters to cover all OD lending. You state you’ve had one, important to now check that this covers OD lending for the period applicable, your bank statements should tie up with this nicely.

 

As for the default notice have you been defaulted with the credit reference agencies on this specific account? Check to see. If they have registered a default against you then they must provide the DN now, if they haven’t registered one fair enough and you can tick that particular item off of your wanted list. If there is an entry on there make sure you print it all off, just to stop them removing it if they have placed one. Perhaps do that as soon as possible ok and see what has happened.

 

Bank Charges –

 

First of all they will need to demonstrate they reserved a contractual right to have added these. This should be in your inception terms and conditions. They must provide these along with the bank agreement you signed at the time of opening. If the T&Cs are ‘unavailable’ you will then argue the charges were not contractually reserved and that you did not agree to them mugging you.

Secondly, yes, the OFT lost the test case but the charges issue is far from over as the actual opinion was that the OFT essentially used the wrong argument, the banks winning on petty technicalites after months of wriggling, sulking, crying to the government and changing tack.

 

Have I already posted some stuff on how to (try) to address bank charge issues? Generally if you include these the bank will be far less willing to take it to the court as a win on that argument could be troublesome for them. If I haven’t let me know and I’ll add some specific challenges you can make that question charging under a differing set of rules.

[emandcole]

Yes - post #98 had the bank charge questions. Make sure you ask DG to respond to these points and most importantly personalise them to your exact situation. A templated generic set of points will not suffice here so make them your own.

 

These will be particularly awkward for them if they can't provide inception T&Cs proving they reserved any right to even apply them.

[dominorally]

Hi Emancole,

 

IFinally I have attached the response to D & G ref the CPR 31.14 request. i would appreciate your comments before i send it off. I have not heard anything from them or the court seeing as they said to respond by 2nd Nov!

 

Do i need to use more legalese?

Should I be referring to sections of the CCA 1974 act in places?

Too long ?

Should i refer to the Coutts case at this stage ?

 

 

I have also been looking through the SAR bundle that came on the 40th Day.

 

No copies of LBA/ default notice/ Further Facility Letters/ T & C's or agreements - I assume from tis then that they do not exist?? Do they have to legally send them with an SAR request??

 

There was a detailed report of the charges applied also of the OD lending over the life time of the account. There were 4 different amounts of lending - no facility letters which match to any dates of when the amounts were started.

 

The facility letter i do have was may 08 and is a renewal/review of the facility at its largest amount. it was at this amount from May 05 ( no facility letter from that time though has been sent )

 

There is alot to go through here - Sorry!! but hopefully i have got some or most of it right.

 

also just realised that i hadnt sent a CPR 31.15 request just down to alot of other things going on can i head this as the CPR 31.15??

 

 

Thanks

 

DR

[frettful38]

Hi dom, sorry to hear about your problems and hope all goes well. I have attached a thread that pt2537 has started and is very good and very useful for people going through court proceedings.

 

Good luck

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrased-Defences-and-the-problems-with-them.

[dominorally]

Hi dom, sorry to hear about your problems and hope all goes well. I have attached a thread that pt2537 has started and is very good and very useful for people going through court proceedings.

 

Good luck

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?283443-Embarrased-Defences-and-the-problems-with-them.

 

 

Frettful,

 

That thread is great advice from Pt - thank you for bringing it to my attantion!!

 

I did have to put an Ed ion because of time constraints as i was came back from holiday and the claim had been sent - i didnt know you coul;d get the 56 days ext either. the claimants Sols still havnt sent me all docs i have asked for and i assume then that they dont exist.

 

I will read that thread again tonight however it does seem daunting and i am now in a place where i am not sure what i am doing is corrcet i obviuosly dont want any costs but it looks like i will get them if i ammend my defence i am sure it will help greatly though

 

thanks again!

 

DR

[dominorally]

Bump

[emandcole]

Hi. Your letter reveals your name and details so please remove asap! As for the letter it is unlikely that the claim will be thrown out or struck out at this stage, history also tells us that the claimant (if its a bank) can pretty much do what they want and enjoy a greater level of leniancy than normal.

 

Can you recap for us? Has there been any response about the vagueness of the POC? Also, has this been allocated yet? If the claim has been allocated to small claims then you need to use CPR 27.4 to get copies of the documents, if it's gone to fast track then 31.14 and 31.15 is the way to go.

[dominorally]

Hi Emancole,

 

IFinally I have attached the response to D & G ref the CPR 31.14 request. i would appreciate your comments before i send it off. I have not heard anything from them or the court seeing as they said to respond by 2nd Nov!

 

Do i need to use more legalese?

Should I be referring to sections of the CCA 1974 act in places?

Too long ?

Should i refer to the Coutts case at this stage ?

 

 

 

I have also been looking through the SAR bundle that came on the 40th Day.

 

No copies of LBA/ default notice/ Further Facility Letters/ T & C's or agreements - I assume from tis then that they do not exist?? Do they have to legally send them with an SAR request??

 

There was a detailed report of the charges applied also of the OD lending over the life time of the account. There were 4 different amounts of lending - no facility letters which match to any dates of when the amounts were started.

 

The facility letter i do have was may 08 and is a renewal/review of the facility at its largest amount. it was at this amount from May 05 ( no facility letter from that time though has been sent )

 

There is alot to go through here - Sorry!! but hopefully i have got some or most of it right.

 

also just realised that i hadnt sent a CPR 31.15 request just down to alot of other things going on can i head this as the CPR 31.15??

 

 

Thanks

 

DR

 

 

Name and address removed - thanks

Response to Sols CPR31.14 Request.pdf

[dominorally]

Hi. Your letter reveals your name and details so please remove asap! As for the letter it is unlikely that the claim will be thrown out or struck out at this stage, history also tells us that the claimant (if its a bank) can pretty much do what they want and enjoy a greater level of leniancy than normal.

 

Can you recap for us? Has there been any response about the vagueness of the POC? Also, has this been allocated yet? If the claim has been allocated to small claims then you need to use CPR 27.4 to get copies of the documents, if it's gone to fast track then 31.14 and 31.15 is the way to go.

 

Emandcole,

 

this has not been allocated yet. looking at other threads i am expecting it to go to small claims as it is under 5k.

 

I have read the CPR 27.4 and see that the court will give instruction ref producing the docs. Now , if this is normal procedure why does'nt the claimant give up the docs in the first place??

 

is it possible that they still wont produce the docs after the CPR 27.4?

 

I have had the docs from the SAR request but no details about the vagueness of the POC.

 

the letter i attached is in response to me not getting the docs i asked for in 31.14.

 

The Docs i got from the SAR ,again there is no agreement or t&c's we know they are claiming part V exemption but no facility letters have been sent either, where there should be at least 4 over the lifetime of the account. no copy default notice nor LBA has been produced either.

 

i am assuming that they dont exist if they havnt sent them?? or can they just not bother????

 

just a bit confused on my next move - do i send the letter response or just wait until it gets allocated.

 

i have seen a thread about ammending defences by PT2537 the link is in post 107 which has confused me in so far as what i can do now about the embarassed defence.

 

think i will send the letter i posted and then wait for the response and or the AQ to come .

 

should the claimant change their POC at some point??

 

 

DR

Edited November 16, 2010 by dominorally

[emandcole]

I would (just me, hopefully others may have better ideas) first of all write to the claimant setting out what you feel you have issues with and use the correct CPR request once more. Explain you are LIP, doing your best to obtain the documentation you require and that you do not appreciate the fact they have not complied to date.

 

Detail what you need and ask for it to be provided immediately stating that if they continue to frustrate matters you will inform the court of their actions. When the AQ comes you can make the position perfectly clear to the judge managing the claim and you can also provide a directions order that essentially forces the claimant to provide what you need, the great thing about doing it via the AQ is that you won't have to pay for a seperate application to the court for an order.

 

Good it's likely to be small claims, however the burden of proof is lower for them so very important you are knowledgable on your position and argument if this progresses to a hearing.

 

Copy your letter to the court so they are aware of your efforts to obtain the documents. Maintain the POC are insufficient also on the AQ (we can help with this) and hopefully the judge will review and agree they have not set their claim out in law. Combined with the current lack of any LBA they aren't doing themselves any favours.

 

As always keep great records of your efforts to play ball.

[geord1e]

from my own experience youl probably just be wasting your time with ombudsman hell just agree with the bank there lots of very very helpfull people on here im sure youl get some real good advise and gl

[dominorally]

I would (just me, hopefully others may have better ideas) first of all write to the claimant setting out what you feel you have issues with and use the correct CPR request once more. Explain you are LIP, doing your best to obtain the documentation you require and that you do not appreciate the fact they have not complied to date.

 

Detail what you need and ask for it to be provided immediately stating that if they continue to frustrate matters you will inform the court of their actions. When the AQ comes you can make the position perfectly clear to the judge managing the claim and you can also provide a directions order that essentially forces the claimant to provide what you need, the great thing about doing it via the AQ is that you won't have to pay for a seperate application to the court for an order.

 

Good it's likely to be small claims, however the burden of proof is lower for them so very important you are knowledgable on your position and argument if this progresses to a hearing.

 

Copy your letter to the court so they are aware of your efforts to obtain the documents. Maintain the POC are insufficient also on the AQ (we can help with this) and hopefully the judge will review and agree they have not set their claim out in law. Combined with the current lack of any LBA they aren't doing themselves any favours.

 

As always keep great records of your efforts to play ball.

 

Hi emandcole,

 

just posting a quick update and i would welcolme your thoughts.

 

rather than apply to the court to get the case thrown out due to non disclosure I sent a letter back to D & G Sols detailing again the docs i require and the reasons why on 19/11 to date i have had no response.

At the same time i emailed the court to find out what the status of my case is ( i was going to ring them but thought i would try an email 1st then at least it would be in writing)

 

I had a reply today which states that my case was stayed on 28th October because there seems to be no responce to my defence from the claimant. i know that now if the claimant wants to continue they will have to apply to the court to get it transferred.

 

I am not really sure what i do now.Any thoghts?

 

I have read a thread where you had a difference of opinion with someone when docs have not been disclosed when requested, ie whether to go for an application to the court or get the court to order disclosure.

 

does the staying of this now mean i cant do anything??

 

thanks again for any advice

 

DR

[Docman]

Hi DR

 

It is now up to DGs to decide when they will get their finger out and respond to your defence. They will eventually and will ask the court to lift the stay. The court should require an explanation but rarely if ever does so provided DGs pay the court fee of £200. The proceedings should then be transferred to your local court.

 

You can apply to have the claim struck out but that would only prod DGs into action and you would have paid out the application fee of £75.

 

Personally I would send a Christmas card to DGs as a reminder to respond to your requests and then forget about this until after the holiday.

[dominorally]

Hi DR

 

It is now up to DGs to decide when they will get their finger out and respond to your defence. They will eventually and will ask the court to lift the stay. The court should require an explanation but rarely if ever does so provided DGs pay the court fee of £200. The proceedings should then be transferred to your local court.

 

You can apply to have the claim struck out but that would only prod DGs into action and you would have paid out the application fee of £75.

 

Personally I would send a Christmas card to DGs as a reminder to respond to your requests and then forget about this until after the holiday.

 

Docman,

 

thanks for that - the reason i was asking about getting the case thrown out is down to the lack of docs being disclosed by DG. through both CPR requests and SAR they gave a vague POC which did not mention any docs at all so asked for the doc sthey may be relying on but none have beeen provided.

 

if anyone has any thought s on that please?

 

thanks

 

DR

[emandcole]

Hi, not been about much recently! Docman has provided a great answer as usual so would consider all of that advice. Apologies if I'm repeating as I lose track of the threads but have we seen the POC the claimant sent, if I'm not confusing threads didn't I post a response to the POC asking them to re-plead as they were not good enough and not based in law?

 

If their POC is poorly composed that would be a starting point and secondly, as you have already done I would persist in sending appropriate CPR requests for the documents you require (if and only if the POC is ok) as their repeated failure to provide would eventually lead to a greater chance of you getting SJ if they weren't to respond to the courts directions, if such an application was made.

 

The creditors however do enjoy a level of lenience not generally extended to a defendant, hence the general lethargy often shown towards the court where documentation is required by certain dates...all part of the 'level' playing field you have to run about on I'm afraid. How was their POC anyway?

[The Debt Star]

The creditors however do enjoy a level of lenience not generally extended to a defendant

 

dude, thats the understatement of the year.

[dominorally]

Hi, not been about much recently! Docman has provided a great answer as usual so would consider all of that advice. Apologies if I'm repeating as I lose track of the threads but have we seen the POC the claimant sent, if I'm not confusing threads didn't I post a response to the POC asking them to re-plead as they were not good enough and not based in law?

 

If their POC is poorly composed that would be a starting point and secondly, as you have already done I would persist in sending appropriate CPR requests for the documents you require (if and only if the POC is ok) as their repeated failure to provide would eventually lead to a greater chance of you getting SJ if they weren't to respond to the courts directions, if such an application was made.

 

The creditors however do enjoy a level of lenience not generally extended to a defendant, hence the general lethargy often shown towards the court where documentation is required by certain dates...all part of the 'level' playing field you have to run about on I'm afraid. How was their POC anyway?

 

 

Hi emancole,

 

yes good advice from Docman. You dont need to apologise fir trying to keep up as i realise there will be alot of threads you are involved in.

 

basically i sent D & G a letter based on your info in post #98 again requestuing docs and the reasons why i need them etc etc since then i have heard nothing so contacvted court and they say the case was stayed on 28/10 i am thinking that D & G will not be responding to my letter due to the stay.

 

The POC is still as was on the claim form vagueto say the least they have not repleaded so stil no docs mentioned. so i wont sent any more requests now until they submit a properly constructed POC.

 

I am thinking that i will wait for the AQ then ask the court to make an order for them to disclose the docs (if they actually exist !) Should i include an Unless order also on the AQ ?

 

I am keeping reading threads on here that give great info and advice however they sometimes are getting confusing as there inevitably are differences of opinion on the way forward and most advice deals with Card or loan agreements, not many for current account O/D's like mine although some of the procedures are the same in both cases.

 

Thanks in advance for any advice

 

DR

[dominorally]

Hi emancole hope you had a good christmas and new year. - i have been laid up all over xmas and Ny with a chest infection and then swine flu - nasty!

 

anyway just a quick update really to bump this up the forum.

 

 

The update is that there is no update!! the case is still stayed at court and DG sols have not been in touchat all. I would assume then that i will just keep waiting for them to apply for the stay to be lifted??

 

I am wondering whether they are waiting for me to progress my claim with the ombudsman as per HSBC previuos letters which stated that i had X number of weeks to take my complaint to the ombudsman. BTW i havnt done that because of the court claim.

 

Any ideas on how i should proceed.

 

There is also a DN on my credit file that i want to get removed as it was put on there while there was a dispute on the account which is against HSBC's own T & C's.

 

Anyone got any thoughts on how i get the DN removed??

 

Thanks in advance for any advice

 

 

DR

[dominorally]

Emandcole, Hopefully you are still out there and you could give me some more of your valuable advice.

 

 

Yesterday ouit of the blue i have had a letter from DG solicitors - (bear in mind my case is stayed with the court) they say it is a responce to my letter dated November 2011 ( i have to assume they mean 2010) any way it responds to numbered points i put in my letter to them requesting specific info.

 

I will have to dig out my letter to which it refers then will post up some of the answers they give - hopefully you or someone can advise me on what to do next.

 

thanks in advance for any advice

 

Dominorally

[citizenB]

dominorally, once you have posted up the documents we will be able to advise better

 

Do make sure you remove anything that will identify you, personally and if you can convert the whole document to pdf it will be much easier and not come up on a google search

[dominorally]

dominorally, once you have posted up the documents we will be able to advise better

 

Do make sure you remove anything that will identify you, personally and if you can convert the whole document to pdf it will be much easier and not come up on a google search

 

Citizen B , thanks for your response and advice, hopefully you can help me through this or if not maybe you know someone that can. i had some good help from Emandcole earlier on in the process as well.

 

 

I must apologise in advance though as there is alot of info here to go through and give advice on hopefully it will make some sense when you read the letter i posted up

 

so basically i have had a claim against me from HSBC, they are claiming overdraft charges that i had started to reclaim but didnt get to court stage before the supreme court ruling. the claim is currently stayed due to no response coming from from D & G sols. They have out of the blue sent a response to a letter i sent November 2010 although they say " in response to your letter dated 18th Nov 2011" !! At the time i advised that i would need a response no later than 10 days before any hearing for them to respond to all the points raised in my letter and that if i dont get the 10 days i will bring this to the courts attention and will be requesting adjournment with costs until I am able to inspect all the information I need. Does this mean that they are going to continue with the claim and if so how do i find out?

 

I have posted up the original letter i sent to them and tried to put as much of their responses on it in red as possible. They have responded to each point in turn however they still seem to be using tactics to avoid giving answers to some questions.

 

The amount they are claiming goes back to 2002 - i beleive they cannot include charges before aug 2004 any thoughts on this?/ if so the amount they are claiming on the POC is incorrect ( the POC are very vague anyway so not sure how to handle this)

 

 

Thanks again in advance

 

 

 

DR

D & G letter received in Response to D & G CPR31.14 request.pdf

[citizenB]

hmm, I will send out some S.O.S. flags for you..

 

In respect of point 5, they should certainly be able to prove via their communication logs if a Letter before Action was sent or indeed any other letter/default notice.

 

Did you receive the communication / diary of event log in your SAR ?

 

You will be able to confirm the status of the claim ie whether it is stayed or not, just by telephoning Northampton and giving them your claim number.