claim form from northampton county court DG solicitors

[chelsea101]

Hi everyone,

Any help with this would be greatly appreciated

I have just received a claim form from northampton county court from DG solicitors on behalf of first direct (hsbc).

 

The claim is for £20,000 + and added charges and interest.

 

The particulars of claim are

The Claimants claim is for the balance outstanding under a bank account facility the claimant agreed to maintain for the defendents.It was a term of the bank account that any debit balance would be repayable by the defendant in full on demand. Despite demand dated x x x the defendants have failed to to repay the amount due.

 

The backgrond is my wife and I originally had a credit card and a loan each with first direct.

We got into financial difficulty when my wife lost her job and was unable to continue payments.

 

First direct suggested that they withdraw facilitys on my current account,lump the loans and credit card debt into one figure and i could pay back at the rate of £350 per month and they would charge me interest at the rate of 1% above base rate on total figure.

They kept the account number open for me to make payments into.

 

I recieved a letter from them in November 2007 (which I still have) confirming this.

Included in the letter is the wording

YOUR OFFER TO REPAY THE TOTAL OUTSTANDING DEBT AT £350 PER MONTH IS ACCEPTABLE.

and

PROVIDED YOU MAKE THE REPAYMENTS AS AGREED,FIRST DIRECT WILL NOT TAKE ANY FURTHER ACTION AGAINST YOU.

 

I have since then never missed a payment

 

Also in the letter it says they will send me a cca agreement,which they never did.

 

In feb 2010 they send a cca for me to sign which says i can continue to pay the amount for 12 months then the total becomes payable which I refused to sign.

 

So today i'm faced with this claim from the court which i wish to defend.

I'm not disputing the figure,although a couple more payments still need to come off of it.

I'm disputing the fact that they have the right to claim the balance in full on demand,when I have a letter from them saying otherwise.

 

Once again any help would be greatly appreciated

[The Mould]

Hello Chelsea101

 

You need to acknowledge service of the claim and state that you do not accept the claim.

 

Do you still have your copy of your letter offering to pay at a rate of £350?

 

Can you post of the entire wording of their acceptance letter to your said offer that you made in 2007.

 

It would appear to me that this new agreement has superseded the original bank account facility and the terms & conditions thereof.

 

Send a CPR 31.14/31.15 request to the claimant's Solicitors for disclosure of the terms & conditions of the bank account facility that the claimant intends to rely upon. They have 7 days to comply with your request.

 

Send also, a short letter to the Solicitors and the claimant stating that you accept their repudiation of the agreement made in 2007, that superseded the original bank account and the subsequent terms & conditions of the said account (the subject of the claimant's claim) between the two parties in this action and the terms & conditions thereof.

 

Include the a copy of the claimant's letter of acceptance from 2007, state that the claimant is in serious breach of the said agreement, fundamental breach of contract by him and that you accept his repudiation of the said agreement, which in law (The Law of Contract) entitles you (the non-breaching party) to treat your obligations under the said agreement as discharged.

 

The claimant has no real prospect of success for his claim, therefore the fundamental breach of the 2007 agreement [is] sufficiently problematic to warrant discontinuance of proceedings and you respectfully request that the Solicitors advise him of this fact.

 

Try that for starters.

 

Acknowledge the claim first.

 

Kind Regards

 

The Mould

[The Mould]

By the way Chelsea

 

I forgot to say that if you have a direct debit or standing order set up to make that £350, then you should cancell it asap.

 

Kind Regards

 

The Mould

[Belaflat]

The Mould, if payments have been kept up as per the 2007 letter, then surely if they are then cancelled that would give the claim legitimacy.

If the claim is to be defended by arguing a new agreement was made and adhered to then breaking the agreement by not making a payment could prove costly.

I think I understand your reasoning but if only enough money was left available to service the payment, then I can't see there being a problem.

[Docman]

Hi chelsea

 

It seems to me that the agreement in 2007 was some form of consolidation. I'm not sure about the ins and out of such consolidations but others may come along later with more specific advice. However, it appears First Direct did consider the agreement to be one regulated under the Consumer Credit Act 1974 and not just a bank overdraft facility as the claim form suggests. You should follow the great advice above from The Mould and make DG solcitors produce some documentation.

 

IMO stopping further payments does not mean you have terminated the 2007 agreement. The bank have already done so by bringing this claim. However, I do note belaflat's comments and so if you can afford to continue putting the money to one side, do so in a separate account. It might prove useful if the judge does come down on the bank's side.

[ScarletPimpernel]

It rather sounds as if this is another one of HSBC's infamous 'managed loans', wherein they take debts from several sources (often unenforceable) and parcel them up under one new, enforceable agreement, usually at a much more favourable interest rate - for them.

 

In such a case the original agreements would have been terminated by the making of the new agreement.

 

I'm not an expert on these, but in many cases these managed loans are missold - the customer is not told that the original debts may not be enforeable, or may be almost statute barred etc., nor are they told that the arrangement is primarily for the benefit of the bank. It may be worth investigating this aspect further.

[chelsea101]

Hi all,

Thanks to the mould and to all of you for your replies

 

Yes I still have a copy of the letter of them accepting my offer which I've added below

 

Re : Credit Card xxxxxxxxxx

Personal Loan xxxxxxxxxxx

I refer to our recent telephone conversation and confirm that banking facilities are now withdrawn.

Any formal overdraft facility is cancelled, as are any direct debits, standing orders and automated bill payments which were previously paid from your accounts.

If you presently subscribe to firstdirectory, this will be cancelled 30 days from the date of this letter, at which time all benefits associated with the package will cease. I can confirm that, as a result of this cancellation, you will cease to be covered by the Travel Insurance or Mobile Phone Insurance provided under firstdirectory and so should consider seeking alternative insurance cover where appropriate.

The balances on the above accounts have been amalgamated onto your current account number xxx

Your offer to pay the total outstanding debt at £350.00 per month is acceptable. The first repayment is due by 22nd January 2008 with subsequent reductions to be made monthly on the same day thereafter.

Once the amalgamation is complete and the first repayment has been received, a Consumer Credit Act Agreement form will be sent under separate cover. This confirms the amount and term of the repayments and the interest to be charged. It also confirms that, provided you make the repayments as agreed, first direct will not take any further action against you.

Interest will be charged at 1% above first direct’s Base Rate which is currrently 5.75%. Please note that the Base Rate may vary from time to time.

I must advise you that if the first repayment is not received, I shall have no alternative but to issue Final Demand for full repayment of the total amount outstanding. However, I am sure that this course of action will not be necessary and I look forward to receipt of the agreed reduction.

For your information, if you have opened a new bank account, a standing order can be arranged to credit your first direct account. Alternatively you can deposit funds via any breach of HSBC Bank or send cheques directly to us quoting your account number on the reverse. Please contact us if you would like a paying-in book to be issued.

Should you wish to discuss the matter or need further clarification please contact the Credit Services Team on xxx

I have still been making payments by standing order and wondered what would the reason be to stop paying.

Further to your advice I have acknowledged service of the claim and stated that I do not accept the claim.

I have also prepared the cpr 31.14/31.15 request and the letter to solicitors and hsbc which I've added below

DG Solicitors

12 Calthorpe Road

Edgbaston

Birmingham

B15 1QZ

4 October 2010

Dear Sir,

 

Re: HSBC BANK PLC v xxxxxxx Case No:xxxx

CPR 31.14 Request

 

On 4TH OCTOBER 2010 I received the Claim Form in this case issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the document mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

You should ensure compliance with your CPR 31 duties and ensure that the document I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version to include an obligation to recover and preserve such version which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

Dear Sirs

We write to advise you of the Agreement made in 2007 that superceded the original bank account and the subsequent terms and conditions of the said account between the two parties in this action and the terms and conditions thereof. We accept your repudiation of that account which is the subject of the claimant’s claim.

We enclose a copy of the claimant’s letter of acceptance dated 11th November 2007 and would specifically refer you to paragraphs 4 and 5 from which you will see that the claimant is in serious breach of the said agreement. This is a fundamental breach of contract by the claimant and in that respect we accept their repudiation of the said agreement which therefore entitles us to treat your obligations under the said agreement as discharged.

As a result of this breach the claimant has no real prospect of success of his claim and it therefore warrants a discontinuance of proceedings and we respectfully request that you advise the Claimants of this fact immediately.

Thanks again for all your advice and if you feel the letters need changing please advise how

 

[The Mould]

OK Chelsea

 

Just double check the letters for spelling mistakes.

 

If you are accepting recision as a result of their said breach, why would you continue to pay the monthly payment, that is a contradiction, as advised by other posters, perhaps put the £350 elsewhere, just in case the claimant continues with the action and the Judge ignores your indisputable defence to the claim.

 

Kind Regards

 

The Mould

[The Mould]

In your letter state 'we accept the claimant's repudiation of the said ageement (2007)', (the one to the Solicitors).

 

Kind Regards

 

The Mould

[chelsea101]

Hi Everyone

I've got to put my defence in by the end of the week and was wondering what to include in the wording of it.

I have received no reply to the letters sent to the claimant and solicitors as mentioned above.

 

I sent the cpr 31.14/31.15 request on the 4th oct and recieved a letter back from dg solicitors 12 days later although dated 8th oct that they received it but because it had no signature couldn't act on it,have since resent it but not holding out much hope of receiving anything.

I take it from the claim that if I do receive anything it will just be original terms and agreement from the current account that i once had with them.

 

My defence is that I no longer have a current account and have an agreement superseding the terms and conditions of that account.

Do I state that I am still waiting for response to cpr request or that there is a new agreement since original account or do I include everything in the defence.Do I also state that i have letters concerning the new agreement

 

Any help always appreciated

[The Mould]

Hello again chelsea

 

Yes, in your defence you state that you do not accept any liability for the amount claimed by the claimant in these proceedings.

 

Then state your reasons why the claimant has no legal argument against you, paragraph by paragraph.

 

You just need to simply state the facts of the matter, i.e. The claimant and you agreed to a new agreement in November 2007. The said new agreement superseded the original account and the terms and conditions thereof. Your obligation under the said agreement was to pay a sum of money to the claimant at a rate of £350 per month. The claimant's obligation under the said agreement was to accept the said payment each month and he (the claimant) stated in the said agreement that as long as I continued to pay the agreed payment each month then, he would not take any further action against me.

 

By commencing with these proceedings against me at a time when I have been performing my obligations under the said agreement, the claimant has breached the agreement and his actions amount to a fundamental breach of the agreement. The claimant has repudiated the said agreement without just cause.

 

I accepted the claimant's repudiation of the said agreement and informed him that his actions [are] a fundamental breach of the agreement that both he and I had agreed to. As a result of the claimant's fundamental breach of the agreement, I wrote to him and stated that as I was the non-breaching party to the said agreement, that I accept recission of the agreement as the remedy available to me because of the claimant's serious violation of his performance obligations under the terms of the said agreement.

 

The claimant's serious breach of the said agreement does so go right to the root of the agreement that he had agreed to with me, I am no longer indebted to the claimant, I am entitled to treat my obligations under the said agreement as discharged as a result of the claimant's repudiation of the said agreement.

 

Words to that effect.

 

Attach your evidence (Exhibits).

 

I hope this helps you chelsea.

 

Kind Regards

 

The Mould

[chelsea101]

Thanks to The Mould for all the help you've given me,will get my defence in and keep you informed of what develops

thanks again

chelsea

[frettful38]

Subbing with great interest. The OP is lucky to be receiving advice from The Mould. great stuff

[DonkeyB]

I think you should be asking the court for an extension of time to file a defence, as well as an order forcing the claimant to comply with your legitimate CPR request.

[The Mould]

Hello again chelsea

 

DonkeyB, with respect, there is no need for the op to make an app for extension of time or to request that the Court grants an Order upon the claimant for disclosure, not in these particular circumstances its not.

 

The op, the defendant in these proceedings has one document that absolutely seals his defence in an indisputable state.

 

This is not a consumer Credit Agreement claim brought by the creditor.

 

The two parties entered into an agreement that superseded the original account and the T&C's thereof, 'consensus ad idem' the correct

translation of the latin is 'agreeing to the [same] thing'.

 

The claimant (creditor) did attempt to modify the said agreement some time after it was concluded, this request to modify the said contract was communicated to the other party (the op/defendant), the other party declined the suggested modifications, the first party (the creditor/claimant) could not modify unilatterally, therefore the agreement that superseded the original account remained intact and legally binding upon both parties to it.

 

The claimant repudiated the said agreement by way of non-performance, this was an act that was done by him without legal excuse/just cause, the non-breaching party (the op/defendant) has elected recission as the remedy avialable to him as a result of the claimant's serious violation of that bilatteral contract.

 

The claimant has no cause of action, this case, the defence, can comfortably rely upon the common law of contract and the principles that have been established over the centuries as far as fundamental breach of contract is concerened.

 

Just that one document (posted by the op in his earlier posts) is enough to undermine the claimant's cause of action in its entirety, the claim fails, the claimant holds no standing with his claim before an Court in England and Wales.

 

I hope that helps a little bit.

 

Kind Regards

 

The Mould

[DonkeyB]

Hi Mould

 

I understand it all now, thanks.

[DonkeyB]

In fact, as they are expecting to deal with a CPR request relating to the PoC itself (which is largely irrelevant, I understand), this defence will come as rather a shock to them!

[The Mould]

Good morning chelsea

 

Precisely what is the dispute between the two parties in these proceedings? (you, chelsea and the creditor)

 

Issues outstanding in this case for the Court to decide upon:

 

i) is there a written agreement/contract between the two parties?

 

Answer - unequivocally - yes.

 

ii) this agreement/contract between the two parties is a new agreement evidenced in writing, so, does or did this new agreement replace (supersede) the original agreement/contract that did exist between the two parties prior to the conclusion of the new agreement/contract?

 

Answer - unequivocally - yes.

 

iii) the case before the Court is one of a repudiated agreement/contract, which the innocent party claims is a serious breach of an essential term (or condition) of the contract

 

iv) clearly one of the two parties has repudiated the agreement/contract.

 

v) which of the two parties of the two parties is the offender?

 

Answer - unequivocally - the creditor/claimant

 

vi) what remedy is available to the innocent party, has he elected that remedy and if so, is that remedy justified?

 

Answer - recission is the remedy available (1 of 3 remedies available), the innocent party has elected the said remedy and, in these circumstances, it is justifiable for him to have opted for the said remedy that is, as a matter of law, available to him, he has exercised his full rights of liberty to chose.

 

This case is one of repudiation - The meaning of 'repudiation':

 

'Can a party be engaged in repudiatory conduct if it is conducting itself in what it considers to be an acceptable and proper way based on a correct interpretation of the contract'?

 

A party can terminate a contract at common law if the other party has repudiated (or renunciated) the contract. Repudiation refers to conduct that shows an intention not to be bound by the contract or to fulfill the contract only in a way that is substantially inconsistent with the party's obligation under it.

 

Continue in a few minuets.

 

Kind Regards

 

The Mould

[The Mould]

Chelsea

 

The meaning of 'repudiation'/ what is repudiation cont'd from previous post.

 

The test is whether the conduct of one party is such as to convey to a reasonable person repudiation either of the contract as a whole or of a fundamental obligation under it.

 

Repudiation entitles the innocent party to accept the repudiatory breach and bring the contract to an end (acceptance of the repudiation or 'recission') or to treat the contract as continuing (affirmation of the contract).

 

Acceptance of the repudiation by the innocent party entitles it to sue for damages suffered following the repudiatory breach.

 

The right to terminate a contract at common law for repudiation should be distinguished from the right to terminate for breach of an essential term (or condition) of the contract or a sufficiently serious breach of an intermediate (or innominate) term.

 

It is also important to consider whether the right to terminate at common law is excluded from the contract. The general presumption is that common law rights have been preserved and 'clear words are needed to rebut the presumption that a contracting party does not intend to abandon any remedies for breach of the contract arising by operation of law'.

 

Repudiation is not ascertained by an enquiry into the subjective state of mind of the party in default. It is to be found in the conduct, whether verbal or otherwise, of the party in default, which conveys to the other party the defaulting party's:

 

i) inability to perform the contract or promise; or

 

ii) its intention not to perform it; or

 

iii) its intention to fulfill it only in a manner substantially inconsistent with its obligations and not in any other way.

 

The touchstone here is conduct, not state of mind. There is no room to consider whether the party in breach held the honest belief that its own action was justified by the contract. Therefore, the repudiator's state of mind is irrelevant. What matters is the character of the repudiator's conduct.

 

There is no doubt that there are cases in which a party, by insisting on an incorrect interpretation of a contract, demonstrates an intention not to perform the contract according to its terms. But there are other cases in which a party, though asserting a wrong view of a contract even though it believes its view to be correct, is willing to perform the contract according to its tenor. Should an intention to repudiate the contract be attributed in both these instances?

 

For party A merely to assert, or argue for, a wrong interpretation of the contract will usually not be enough to justify party B drawing an inference of repudiation. The reason for this is that party A may be willing to perform the contract according to its tenor. It may be willing to recognize the error of its conduct once this is explained or to accept an authoritative view of the correct interpretation of the contract. In either event, an intention to repudiate the contract cannot be attributed to party A.

 

Thus the inference of repudiation should not readily be drawn where, for example:

 

i) party A makes 'contentious observations in the course of discussions or arguments'; or

 

ii) party A's conduct amounts to engaging in 'a bona fide dispute as to the true construction of a contract expressed in terms which are by no means clear'.

 

The inference of repudiation can more readily be drawn when the interpretation relied on by party A is clearly or obviously untenable and party A:

 

i) acts (or threatens to act) unilaterally on the basis of the interpretation; or

 

ii) persist in the interpretation in the face of communications from party B pointing out the error.

 

I shall finish this posting in a few more minuets.

 

Kind Regards

 

The Mould

[The Mould]

Chelsea

 

Conclusion of my posting this morning.

 

As a practical matter, contracting parties need to know what will - and will not - count as repudiatory conduct.

 

This grey area between patent repudiatory conduct and bona fide disputation of the construction of a contract is tricky to negotiate.

 

In helping to solve the conundrum of whether conduct demonstrates an intention to no longer be bound to the contract or whether conduct merely constitutes geuine disputation of the contract, parties should revert to the objective test of repudiation and consider what message the conduct actually conveys to the innocent party.

 

Finally, parties should be careful to note that if genuine disputation appears to be at issue, an innocent party should avoid reaching a hasty conclusion of repudiatory conduct. A notice purporting to rescind may constitute a repudiation in itself, thereby entitling the other party to accept the repudiation.

 

I hope that will help you chelsea.

 

Woodchester case Mr Bard, anyway, this posting by me is designed to assist the op, I am not interested in discussion of any kind with you Mr Bard. If you are going to assist the op, then post up your advice for him here in public.

 

Kind Regards

 

The Mould

[dx100uk]

off topic posts removed to here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?279266-claim-form-from-northampton-county-court-DG-solicitors&p=3187648

please only post to help the op.

 

dx

siteteam

[Peterbard]

I think this is on topic

 

Section 189 deffinitions

 

“executed agreement” means a document, signed by or on behalf of the parties,

embodying the terms of a regulated agreement, or such of them as have been

reduced to writing;

 

No verbal agrements in a cca agrement i amaffraid.

 

Peter

[Peterbard]

Hi even in contract law an agreement has to be offerd and accepted, a letter only fulfills half of this.

It could be argued i suppose tht the act of repaying the loan on reciept of the letter was acceptance but i do not believe it would hold water.

 

Also the act has the facility that stops a document from purporting to instigate a future agreement

(section 59), it says such an arrangement would mace the document void.

 

Peter

 

Peter

[The Mould]

Good morning chelsea

 

Very briefly, I am posting some further relevant, important and factual information for you to use in your defence against this action.

 

Contract Law - Offer and acceptance:

 

An offer is a promise to do, or to not do something that is capable of acceptance by another person. When an offer is accepted by another person, provided that the other 3 legal requirements for a contract are made out, a legally binding contract is formed. An offer is made by an offeror to an offeree. It may only be accepted by a person who knows that it exists.

 

When an offer is made, it may (a) lapse; (b) be rejected; or © be revoked prior to acceptance [subject to any conditions attached to the offer]; or (d) a counter offer may be made, which automatically rejects the offer preceding it. These events are important in the context of the contract disputes as it is the order of events that determines the extent of any contractual relationship between the parties in the circumstances. For instance if an offer is met by a counteroffer, the original offer cannot form part of the contract, as it has been implicitly rejected at law. One then moves to the counteroffer to ascertain whether that 'revised offer' has been accepted. If it has, then that will form the subject matter of the contract; if not, one moves to the next event in time to ascertain whether or not a binding contract has been formed, and so on.

 

More to follow shortly for you chelsea.

 

Kind Regards

 

The Mould

[The Mould]

OK chelsea continuing with Contract Law - Offer and acceptance:

 

A contract is a binding agreement between at least two parties.

 

In order to form a contract, the essential elements are:

 

1. offer

2. acceptance

3. consideration

4. capacity

5. intention to create legal relations

6. no vitiating factors

 

OFFER:

 

An offer is a promise to do or not to do something in sufficiently clear terms, that may be accepted by another. An offer should be distinguished from an invitation to treat and a mere expression of intention to do or not to do some act. Offers do not necessarily need to be made to one person - that may be made to the world at large or to specific groups of people.

 

The significance of an offer is that when it is accepted (subject to the other criterion, see below) the contract is formed.

 

In addition to being accepted, an offer may be rejected, a counter-offer may be made, the offer may lapse or the offeror may withdraw the offer, such that it is no longer available to be accepted.

 

(Option Agreements prevent an offer being withdrawn for a period of time).

 

ACCEPTANCE:

 

When an offeree (the 'acceptor'), accepts an offer, the contract is formed. Acceptance may be in writing, orally or implied by conduct and silence cannot amount to acceptance of an offer other than in unilateral contracts or the postal acceptance rule applies.

 

The key words in the above para are ''implied by conduct', you and the creditor orally agreed to form a new legally binding contract, the terms of the new contract were put in writing and recorded in the said letter (2007), the contract was affirmed when you performed your obligation under it, you made the agreed payment, all other contracts/agreements that existed prior to the new contract being formed were extinguished at the point of the offer being made and then accepted and so too were the terms and conditions that applied to those prior agreements/contracts.

 

I hope that will help you further in your case chelsea.

 

Kind Regards

 

The Mould