claim form from northampton county court DG solicitors

[Docman]

chelsea

 

Do you still need help with drafting a defence?

 

Doc

[Peterbard]

How exactly is this off topic?

 

Hi

I understand what you say but I would still urge you to take independent advice on this,

Currently you are totally in the right .

You found yourself difficulty and you acknowledged the fact, you did not attempt to evade repayment you instead made a deal with your creditor.

Totally as you should have done.

No court will IMO enforce the demand for early repayment if you show your willingness to repay in this manner, all you really need to do is put the details of your creditors behaviour in your defence. I don’t know if you have contacted the fos

but I would, and copy it to the creditor and enclose it in your defence also.

Currently you have right on your side, if however the court thinks you are trying to evade repaying of the debt then, charging orders, attachments of earnings and bailiffs

are a distinct possibility.

Have you considered that stopping payments on this account are exactly what your creditors want you to do.

Despite what anyone may tell you this “defence” is totally unproven in a consumer credit case the reason is it will not work.

There are technical reasons but suffice it to say that if it did there would be case law and there is not.

I am talking about consumer credit case law of course.

Also consider why anyone would advise against independent professional advice.

Peter

[Peterbard]

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.

 

not sure on this must check it out

 

Peter

Edited November 6, 2010 by Dodgeball
possible error

[Peterbard]

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I refer to our recent telephone conversation and confirm that banking facilities are now withdrawn.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

 

 

 

I am affraid there may have been no agrement to repudiate

 

59 Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as

debtor or hirer into a prospective regulated agreement

 

There are other options

 

Peter

[Undercover-Elsa]

Deep breath, both feet..

I'm a belt and braces sort of gal so while I agree with the Mould on repudiatory breach, can anyone see any reason why it could not be part of a broader defence?

I think the behaviour of the bank needs to be brought to the attention of the court, especially in the light of the swelling loss of sympathy for debtors in the judiciary.

 

The particulars of claim are brief and misleading, in that this is not a simple case of an unpaid overdraft.

The defendant encountered genuine financial difficulty and, as universally recommended did the right thing and approached the bank for help in an attempt to come to an amicable repayment arrangement. They acted responsibly and in no way attempted to avoid paying what they owed.

 

In response, the claimant persuaded the defendant to enter an agreement verbally, later confirmed by the claimant in writing.

This agreement was that the claimant would transfer the outstanding amounts from credit cards and loans

taken out by both the defendant and his wife into the defendant's current account. The current account to lose all facilitiies being merely a means for the defendant to make payments of £350 per month UNTIL THE BALANCE WAS CLEARED. The rate of interest to be 1% above base rate. A CCA regulated agreement to this effect was to be sent to the defendant for signing.

Correct me if I'm wrong here:

What the claimant failed to inform the defendant was the crucial fact that in amalgamating the loan and credit cards into a current account debt they effectively stripped the defendant of any protections offered by the CCA in respect of their existing regulated running account and fixed term credit agreements. Viz - the strict protocols required to be followed by a creditor before he is entitled to claim amounts not yet due.

Instead, the defendant was misled into agreeing to transfer the debt to a form of account which by its very nature is payable on demand - an overdraft.

 

Nonetheless the defendant, being unaware of this fact, trusted the bank's advice and agreed to the arrangement. Payments were duly made as instructed and without fail.

However, when the new credit agreement was eventually received, it differed materially to the arrangements discussed on the phone and confirmed by letter, in that instead of stating "£350 per month until the balance is cleared" it demanded "£350 per month for 12 months after which the full balance shall become payable"

The bank having clearly misled them and renaged on their agreement, the defendant refused to sign this unilaterally altered agreement, which was clearly detrimental to him.

Despite this he continued to make payments which, however, went unacknowledged. The County Court Claim form then arrived, at which point the defendant realised how seriously the account was in dispute and withheld payments pending the Courts decision.

Having taken advice it is felt that the claimant has cynically put themselves in a position of being able to attempt early repayment, and misled the debtor as to the nature of the arrangement and possible consequences. This has clearly created an unfair relationship.

The bank withholding and/or giving misleading information undoubtedly impaired the debtor's ability to make an informed decision, thereby causing him to take a transactional decision that he would not have taken otherwise, in contravention of CPUTR 2008.

 

Furthermore they have repudiated their written agreement...(jump to The Mould's defence...)

etc etc

 

Just my thoughts....What does the team think? If it's worth running with we can pad it out more and add specific section refs etc.

 

Ducks down behind wall...

 

 

Elsa x

Edited November 7, 2010 by Undercover-Elsa
clarity

[Guest]

Ducks down behind wall...

 

 

Elsa x

 

[Peterbard]

Deep breath, both feet..

I'm a belt and braces sort of gal so while I agree with the Mould on repudiatory breach, can anyone see any reason why it could not be part of a broader defence?

I think the behaviour of the bank needs to be brought to the attention of the court, especially in the light of the swelling loss of sympathy for debtors in the judiciary.

 

The particulars of claim are brief and misleading, in that this is not a simple case of an unpaid overdraft.

The defendant encountered genuine financial difficulty and, as universally recommended did the right thing and approached the bank for help in an attempt to come to an amicable repayment arrangement. They acted responsibly and in no way attempted to avoid paying what they owed.

 

In response, the claimant persuaded the defendant to enter an agreement verbally, later confirmed by the claimant in writing.

This agreement was that the claimant would transfer the outstanding amounts from credit cards and loans

taken out by both the defendant and his wife into the defendant's current account. The current account to lose all facilitiies being merely a means for the defendant to make payments of £350 per month UNTIL THE BALANCE WAS CLEARED. The rate of interest to be 1% above base rate. A CCA regulated agreement to this effect was to be sent to the defendant for signing.

Correct me if I'm wrong here:

What the claimant failed to inform the defendant was the crucial fact that in amalgamating the loan and credit cards into a current account debt they effectively stripped the defendant of any protections offered by the CCA in respect of their existing regulated running account and fixed term credit agreements. Viz - the strict protocols required to be followed by a creditor before he is entitled to claim amounts not yet due.

Instead, the defendant was misled into agreeing to transfer the debt to a form of account which by its very nature is payable on demand - an overdraft.

 

Nonetheless the defendant, being unaware of this fact, trusted the bank's advice and agreed to the arrangement. Payments were duly made as instructed and without fail.

However, when the new credit agreement was eventually received, it differed materially to the arrangements discussed on the phone and confirmed by letter, in that instead of stating "£350 per month until the balance is cleared" it demanded "£350 per month for 12 months after which the full balance shall become payable"

The bank having clearly misled them and renaged on their agreement, the defendant refused to sign this unilaterally altered agreement, which was clearly detrimental to him.

Despite this he continued to make payments which, however, went unacknowledged. The County Court Claim form then arrived, at which point the defendant realised how seriously the account was in dispute and withheld payments pending the Courts decision.

Having taken advice it is felt that the claimant has cynically put themselves in a position of being able to attempt early repayment, and misled the debtor as to the nature of the arrangement and possible consequences. This has clearly created an unfair relationship.

The bank withholding and/or giving misleading information undoubtedly impaired the debtor's ability to make an informed decision, thereby causing him to take a transactional decision that he would not have taken otherwise, in contravention of CPUTR 2008.

 

Furthermore they have repudiated their written agreement...(jump to The Mould's defence...)

etc etc

 

Just my thoughts....What does the team think? If it's worth running with we can pad it out more and add specific section refs etc.

 

Ducks down behind wall...

 

 

Elsa x

 

said to correct you if you are wrong. You are wrong. The overdraft facility would have had the full potection of the CCA

 

peter

[sequenci]

Just seen this thread, how's it going?

 

I just wanted to throw some concerns into the mix.

 

Firstly, I'm aware that it is often the case that overdrafts can be called in 'on demand', and whilst I appreciate there is a written agreement to allow instalments to be paid I'm not sure the traditional approach of arguing contract formation via offer & acceptance will be strong enough as it's likely that the court may decide that there is no consideration.

 

Take a read of 'Re: Selectmove:' which has a lot of similarities to the above. In that case the court decided that simply paying a debt by instalments gives no consideration so the creditor is able to recover the money has a lump-sum. You see, I'm not even certain that the angle that needs to be looked into is one of is there a legally enforceable contract but could it be argued that the bank is possibly estopped from going back on their promise to accept instalments? This is something that I'll need to research. It wasn't too long ago that I studied precisely this issue for my law degree but it seems like yonks ago!

 

Sorry for the curve ball, I thought I would see what you all think?

 

By the way, Excuse me if I'm going completely off on a weird tangent. It's been a long week and a busy weekend so my brain isn't totally engaged!

 

Best wishes,

 

Seq

[Peterbard]

Just seen this thread, how's it going?

 

I just wanted to throw some concerns into the mix.

 

Firstly, I'm aware that it is often the case that overdrafts can be called in 'on demand', and whilst I appreciate there is a written agreement to allow instalments to be paid I'm not sure the traditional approach of arguing contract formation via offer & acceptance will be strong enough as it's likely that the court may decide that there is no consideration.

 

Take a read of 'Re: Selectmove:' which has a lot of similarities to the above. In that case the court decided that simply paying a debt by instalments gives no consideration so the creditor is able to recover the money has a lump-sum. You see, I'm not even certain that the angle that needs to be looked into is one of is there a legally enforceable contract but could it be argued that the bank is possibly estopped from going back on their promise to accept instalments? This is something that I'll need to research. It wasn't too long ago that I studied precisely this issue for my law degree but it seems like yonks ago!

 

Sorry for the curve ball, I thought I would see what you all think?

 

By the way, Excuse me if I'm going completely off on a weird tangent. It's been a long week and a busy weekend so my brain isn't totally engaged!

 

Best wishes,

 

Seq

 

The issue of consideration is addressed also in statute in sctions 57 and 59 of the act. Which permits either party to withdraw from a prospective agrement.

 

Peter

[Peterbard]

Hi

Be interested to see any update on this

[chelsea101]

Hi Peter

Claim was stayed at the beginning of december so just waiting for next move.

[caro]

Why was it stayed and how long for? Should be something on the paperwork from the court I would think.

[AndyOrch]

Caro Chelsea has not posted here since October apart from yesterday.The thread is mostly between Mould and Peter.

I'm intrigued though to what paperwork anyone would receive as to why a claim is stayed as the Court dont inform you, it is automated process to a non response of the Claimant, after submission of ones defence.

 

Regards

 

Andy

[caro]

I didn't know if it was a non-response from claimant or stayed to try and settle, in which case there is an order from the court detailing how long etc, as I had in my own case.

[AndyOrch]

I didn't know if it was a non-response from claimant or stayed to try and settle, in which case there is an order from the court detailing how long etc, as I had in my own case.

 

Ah righty oh I see were you are coming from now.

 

Regards

 

Andy

[The Mould]

This matter has been stayed due to no response from the claimant after Chelsea's defence was filed to the court.

 

The claimant did not expect the defence that was filed against his claim.

 

Kind Regards

 

The Mould

[Old Cogger]

Court did not give any reasons for a stay in my case, I did not know until out of the Blue a court (Northampton) informed me that local court case had been transferred to - and no reason for stayed case, rang court to be told DG paperwork was incorrect, that was last year!

[chelsea101]

It was just a non response from claimant

I've had nothing to post since defence went in as nothing has happened since then,will get back to posting as soon as I hear anything

 

thanks chelsea

[Peterbard]

It was just a non response from claimant

I've had nothing to post since defence went in as nothing has happened since then,will get back to posting as soon as I hear anything

 

thanks chelsea

 

Hi Chelsea

 

Was your defence as per the site team/Mold did you withold payments as also advised?

 

Peter

[The Mould]

Hi Chelsea

 

Was your defence as per the site team/Mold did you withold payments as also advised?

 

Peter

 

Good evening the Bard

 

Well, I am not a member of the site team (unfortunately) and my name is Mould, The Mould. No offence meant to you Peterbard.

 

Chelsea has stated that when he has anything new to post on his case, then he will of course do that Peter, so why are you so insistent/persistent with your enquirey into this particular case?

 

Kind Regards

 

The Mould

 

PS. The above is not off-topic

[caro]

If this has happened to Chelsea there is every chance it has happened to others The Mould, which is why it's really helpful if people post as much info as they can. It could help others to know how Chelsea has managed to get his claim stayed.

 

Sharing information is how this site works.

[chelsea101]

Sorry caro

I certainly had no intention of witholding information which may help others

My defence was pretty much what the mould advised in post 11

thanks

chelsea

[caro]

No problem Chelsea. Thanks for the clarification.

 

I think it's important to consider all options before making a decision on what's right for you, so it's always interesting to know what's been decided and how it all turns out.

 

I guess that means you've decided to withhold payment too now unless or until the court decide on this?

[chelsea101]

yes been witholding but putting aside

I had had no acknowledgement of the previous 7 months payments

where as before was getting a receipt every month

[caro]

Hmm.

 

I don't know how worried you are about your credit report but I wonder if it's worth checking with the CRAs to make sure they aren't putting anything on there. Presumably there's already a default as it's got as far as a court claim, even if it is stayed.

 

Just a thought.