HSBC vs annabella7 ~ Court action started

[DonkeyB]

In terms of consolidating accounts without your knowledge, this has more than a whiff of the Paul Walton v RBS about it. Long read, but worth it.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?11427-walton-v-rbos&highlight=

[annabella7]

Hi The Mould,

The amount being claimed is 6,103 .and no exact offer sum has been put forward yet from the Claimant.

Re: POC The first one I received was short

."The Claimant's claim is for the balance outstanding under a bank account facility the Claimant agreed to maintain for the Defendant.

It was a term of the Bank account that any debit balance would be repayable by the defendant in full on demand dated ******" That was it !!

However they created the bank account especially for me. My first Defence stated the Claimants particulars of Claim are too vague ect.....

Court Claim Stayed for nearly 11 months.

Numerours letters back and forth especially re:created bank account

The amended POC arrive which is the 2nd Court Claim received. However it

1."The Claimants claim in the sum of 6,103 in relation to indebtedness of the Defendant under a credit card agreement dated 14/11/02 to secure the liabilities of Stan Rosser Limited "(The Company)

2.The Claimant is a banker carrying on business at various branches and whose head office is 8 Canada Square .......At all material times the Defendant was a customer of the Claimant

3 At all material times the Claimant agreed to maintain for the Defendant a credit Card facility 'The Credit Card account" number *****

4.The Credit Card facility was an agreement regulated by the consumer Credit Act 1974.The Defendant has failed to make payment of the arrears of the instalments as required by the statutory Default Notice served by the Claimant dated 24th of June 09

6. At the date hereof the sum outstanding is as follows 6148.

There is no mention of the 'Bank Account in Amended POC

However on The Application Notice of The amended Claim a very short few lines under 'An Order that. 'The Particulars of Claim refers to a current account however the Claim is in respect of the Defendants indebtedness under a Credit Card Agreement account.'

The Claimant respectfully requests an Order that. The Claimant be granted permission to file and serve amended POC

The Defendant do file and serve an amended Defence

Costs be reserved

The final amended Defence has removed 'To secure the liabilities of

Stan Rosser Limited ("The Company")

[annabella7]

That is how it stands at the moment . my Data bundle has arrived and I am going through it with a fine tooth comb.Thanks again for any help or advice you can offer. Tuesday next is the dead line for my Defence.

[annabella7]

I should be able to post both DNs late tonight thanks again.

[The Mould]

I should be able to post both DNs late tonight thanks again.

 

Thank you for those updates annabella.

 

Have you sent a CPR 31.14 to the Solicitor's acting, requesting disclosure of a copy the agreement he refers to in his amended POC, that he intends to rely upon?

 

Yes please do post up the two DN's. Do you know if there was any insurance protection on the Credit Card Agreement?

 

Kind regards

 

The Mould

[annabella7]

Hi, I did not take out any payment protection insurance ,and the CPR 31.14 request was sent to them just after first court Claim. They were given 28 days by court to respond or the Claim would be stayed.

The case was then Stayed for many months until the Claimant requested it to be lifted. By then they had sent me a small bundle of papers but incomplete regarding what was requested under CPR31.14. A far as they are concerned they have sent everything.

[The Mould]

Hi, I did not take out any payment protection insurance ,and the CPR 31.14 request was sent to them just after first court Claim. They were given 28 days by court to respond or the Claim would be stayed.

The case was then Stayed for many months until the Claimant requested it to be lifted. By then they had sent me a small bundle of papers but incomplete regarding what was requested under CPR31.14. A far as they are concerned they have sent everything.

 

Have they supplied you with a copy of the Credit Card Agreement they refer to in amended POC?

 

Do you accept that an amount is owed by you and if yes, what amount do you accept being responsible for?

 

Kind regards

 

The Mould

[annabella7]

http://img832.imageshack.us/img832/7043/dsc02685p.jpg

http://img62.imageshack.us/img62/4066/dsc02686z.jpg

http://img88.imageshack.us/img88/9334/dsc02681j.jpg

http://img828.imageshack.us/img828/9017/dsc02682vf.jpg

http://img853.imageshack.us/img853/7201/dsc02683u.jpg

[The Mould]

http://img832.imageshack.us/img832/7043/dsc02685p.jpg

http://img62.imageshack.us/img62/4066/dsc02686z.jpg

http://img88.imageshack.us/img88/9334/dsc02681j.jpg

http://img828.imageshack.us/img828/9017/dsc02682vf.jpg

http://img853.imageshack.us/img853/7201/dsc02683u.jpg

 

Thank you annabella

 

The two DN's fall quite short on remedy time-scale. Is the figure stated correct?

 

It was a little bit difficult to read the Application forms, were the terms and conditions attached?

 

Kind regards

 

The Mould

[the_shadow]

Hi annabella,

 

Apologies for not coming back on this thread till now....

 

Do you have the envelopes for the default notices, were they sent first or second class? I see the Mould has already warned you about the potential difficulty in an invalid Default defence.

 

S.

[annabella7]

Hi The Mould.

THe applications came blank at the back.

However they then sent 'a sample of an application form' for a gold cc with terms and conditions on the back.

I had also paid a company in 2009 to help me with the case. They wrote to the Bank to say the account was in dispute and not to record any adverse Data on my CF. At the time the Bank only produced up to date T&C and illigiable application. I have some of the replies from the Bank to that company then. which I will again try and post up. I am not sure about the calculations. I will double check Re the 2nd Default It is recorded on the DATA file when they asked for a copy. Also mentions 3rd Party and W/OFF. The Acc number on firdt DN is wrong and even non existant on all of data bundle. Seems like its from someone else entirely. The signature on the Gold CC seems a bit suspect too. Thanks so much for getting back to me. Regards Annabella7

[annabella7]

Hi Shadow, Good to have you back on Thread. The first DN was sent in june 2009 no envelope. I have the envelope for the 2nd DN and also transcript from the bankprint out . date they were requesting the second DN. The 2nd DN arrived over a year later. Thanks again I can get back to you on exact dates soon . Thanks again for support.

regards Annabetlla7

[annabella7]

Hi The Mould.

The first DN is correct on outstanding balance but reissued 2DN I believe the figures are out.

I forgot to post page 2 of 1st DN. Start dates are also wrong as is the Start date of CC on Court Claim papers also.

I would just like to back tract a bit for advice on how the Claimant can make incorrect Data entries on my Credit File.

Is that not a breach under Data Protection Act.

On the 24th June DN was issued and on the 25th of August Consolidation debt was recorded with no previous on my credit file. How can a file start with a consolidation debt. Would some sort of credit history of that CC needed to have happened first. This is Misrepresention of the facts. I though that a Code of Conduct would apply here?

They didnt warn me about this consolidation debt all they said was that 'a default may be registerd against me with CRAs. Any input on the setting up of a savings account in my name without my knowledge or signature. and stating that it was for ' Administration ' purposes.? Also is it still acceptable to take someone to Court when the account is in Dispute. Sorry for all the questions. Thanks again

Regards Annabella7

[The Mould]

Good evening annabella

 

With reference to the Application form, I would like you to have a study of - Patrick Brophy V. HFC Bank [2010] EWHC, Justice Flaux HELD Application Forms constitutes offer to contract on terms as stated in app form.

Counter signing by the bank, accepted the offer.

 

Further, Schedule 6 Consumer Credit (Agrements) Regulations 1983, bare minimum terms included in app form - inflexible condition of enforceability, thus, Application Form for credit if signed by the debtor and then the creditor upon receipt, create legally binding relationship.

 

Consolidation loans/consolidation of debt, which would be a variation of a pre-existing contract(s), both parties must consent to enter the new contract proposed, silence does not amount to acceptance, you could challenge the bank of the newly created account (admin purpose or not), you did not have knowledge of this account or the terms thereof, two parties to a contract, then two parties must consent to the [same] thing, however, you say that the bank has undone the 'created account', maladministration perhaps, needs to be questioned in any event.

 

The default notice, if defective, see - Harrison V. Link Financial Limited [2011] EWHC B3 (Mercantile), in particular I would like to refer you para 75 of the case. Service of a bad statutory notice (DN) cannot lead to proceedings of enforcement, bad notices can often be made good, the circumstances in which a bad notice can be made good has not been established, so you can challenge the DN's, if defective.

 

Data Protection Act 1998, probably a clause in the contract whereby you have granted permission to process your personal data to third parties, if the data relating to you is inaccurate, out of date, irrelevant, incompatible with the purpose or purposes for which they were intended etc, etc, then possible contravention of the act by the bank, you could counterclaim (in your defence) under s13 of the act for any damage and distress suffered as a result of the bank's breach, you need to be sure of the breach (if any) and what the damage/distress is inorder to succeed on that point.

 

Take that all in annabella and then come back, Roger - over.

 

Kind regards

 

The Mould

[annabella7]

Hi The Mould,

Great insight !! thank you so much for getting back to me and for the enlightlement on the subject matter.

I will get stuck in now and have good read up The created account was refered to in a sort of incidental way / brushed over just for admin ...and still exists as a reference no to a savings account connected with this Debt... However and this is the main reason I have dug my heels in with DG.

Circumstances change overnight and I was experiencing a rough patch, however I was never out to wrong anyone or to decieve. In any case DG have caused me Damage I could not apply for credit as a result of the adverse Data processed.

They demanded payment and at the same time take the leggs from under you! Where is the justice!!

Why couldnt they register 2 late payments ect ? The information recorded was inaccurate and they keep the files and inaccurate information up dated !! So although the CC agreements and DNs are flawed which may or may not stand up in court. I was not informed or party to the created Bank Savings Currant Account and I was not informed or party to A Consolidation Debt Registeration !!

Could You explain Deed of Assigment and its purpose ? The subject is mentioned alot on thie forum.

Again I am so greatfull for the time and effort your have taken to help out.

Appreciated !!

Best wishes Annabella7

[The Mould]

Good afternoon annabella

 

Deed of Assignment is a contract/agreement between two parties, the title owner of the contract can sell the contract to another party by way of Deed, in your case, if assignment has taken place, your creditor sells the contract to another creditor with all rights, obligations and duties passing to the new owner, your obligations under the contract remain the same but you must now continue with your performance obligations to the new owner as your obligations to the original owner are discharged as a result of the title transfer. You would know (or should know) if assignment has ocurred in your case as a Notice of Assignment must be served upon you to inform you of the title transfer.

 

See - Assignment of Contracts under English law, Law of Property Act 1925 s136(1) and s196(4), there is also an abundance of case law on the subject available on the web.

 

Do you think assignment has ocurred in your case?

 

Kind regards

 

The Mould

[annabella7]

Good afternoon The Mould,

Thanks again for the info. You are a brilliant help.

All my communications are now coming from DG. Passed from MCSL from First Direct/Hsbc.

I do not think that I received a copy letter of Deed of Assigment . i will have another look through bundle..

My Defence is going to be centered around the created bank account.

The amendments have materially altered the Claim. The first Claim as you know was for money owed under a bank account and dated 24th of march 2010.

I believe that they have amended a Claim that was unlawfully drafted in the first place. Attempting the Set of Rule to replace debt with more debt is contary to their own Terms and Conditions and Banking Law. Transfering debt to an empty account that they created.

I will remind the Court that I wrote numerous letters to DG requesting an explanation and evidence of this bank acc and gave them ample time to respond

However it took them 9 months to come up with an explanation. A credit card debt was closed down and passes to a savings acc, and they were now going to amend the Court Claim to a credit card debt. 9 months later.

Now if that in itself is not an abuse of the legal system.

The other part to my Defence is the incorrect adverse Data registered with CRA

A CC debt that had no previous history recorded on the Credit file suddenly appears as a Consolidated Debt .No record of any previous activity.

They did as you know send me a DN at the time.: 'with unknown acc no,' wrong start date,' and short on days ' would that be considered miniscule and as you mentioned earlier re; 2nd DN . Whats your guess ? Would the 2nd DN need to be perfect even it its created over a year later.and this can be proved.. both DNs request the return of the cards. This is surely termination as is closing the account and transfering debt balance to a created savings account.

Finally I want to mention that the account was in Dispute.

My biggest difficulty is structuring my Defence, while trying to be as articulate and concise as possible.

I really appreciate the legal points you mentioned earlier. I will certainly be using them in my Defence.

Re your reference to application forms I would prefer not to base my Defence too much on enforceability but more on the banks unreasonable behaviour

Sorry this is so long winded, but Defence needs to be posted Monday to arrive Tues deadline.

Thank you so much again . You are an amazing help .

Best wishes Annabella7

[The Mould]

Good evening annabella

 

DG Solicitors are HSBC's 'in-house' Solicitors, so there is no assignment, legal or equitable, having taken place on the account. HSBC are still the title owner.

 

Requesting the return of the Card is stated on the DN's as being for security purposes. If the second DN is defective, then proceeding (or attempting) to enforcement in dependence upon it will fail, as per para 75 Harrison case.

 

Post up your draft defence, when ready, for review.

 

Kind regards

 

The Mould

[annabella7]

Evening The Mould,

Again!! thank you so much for the reply, and the infomation is appreciated.

I am spending all available time working on tmy Defence. It is certainly not my area of expertise, and I am nervous on strange ground. However I am sticking to my guns in the belief that it is the right thing to do under the circumstances.

One small question........how long between putting in final Defence and going to Court .......Aprox ? Thanks Annabella7 Regards

[The Mould]

Depends annabella, could be 8 weeks or more, difficult to estimate, new applications could be made by either party if new evidence emerged, Pre-Listing Questionaire stage, how many cases does the court need to manage, number of factors involved.

 

Anyway, post up your defence annabella and then it can be reviewed.

 

Kind regards

 

The Mould

[annabella7]

Hi The Mould, I hope you can be patient with me today I had major computer foul up so had to start from scratch. this ia rough draft and unfortunately I will have to type out here.

Thanks again so much for your patience.I still have tomorrow and part of monday to finish. Kindest regards

Annabella7

[annabella7]

Amended to Defence to Amended POC

. I am the Defendant in this action and make the following statement as my Defence to the Claim made by HSBC Bank Plc

. I spent many months preparing a Defence and corresponding with the Claimant and in the light of my Defence the Claimant decided to amend their Claim.

. The First Amendment made by the Claimant has materially altered the Claim. The initial Claim from NCCBC was dated 24/03/10 and I quote for 'the balance outstanding under a Bank Account Facility the Claimant agreed to maintain for the Defendant. It was a term of the 'Bank Account ' that any debit balance would be payable by the Defendant in full on Demand.

I believe that the Claimant was forced to amend a Claim that was unlawfully drafted in the first place and i believe that the Claimant was mischievious in doing so.

. Attempting to use the 'Set off Rule' to replace debt with more debt is contrary to their own Terms and Conditions and Banking Law. Transfering debt to an empty savings account that they themselves created.

. It needs to be noted that I was not party to this Contract and both parties must consent to enter the new contract.

Silence does not amount to acceptance. Idid not have any knowledge of this account or the terms thereof, two parties to a contract, then two parties must consent to the (same) Administration purposes or not. This is not the behaviour one would expect from a Bank following normal banking practice and procedures

. This is highly irregular practice of transfering a sum from a complex account that is a regulated agreement to a bank account in order to falsely create a collectable debt.

. this is an infringement on the guidelines laid down by OFT.

. I have challanged the Bank for information on this Account.

. The Amended Court Claim received was dated 03.02.11

.Almost a year later .

. The recently Amended Court Claim states now that money is owed under a Credit Card.

. It would appear that the Claimant elected to terminate a Credit Card Account covered and regulated by the Consumer Credit Act 1974 in order to avoid their legal obligations and deprive someone of their rights under the same Act

. The Claimant terminated unilaterally and without the necessary s87 rights that would allow them to do so.

. I would also challange the Claimant as to why a Default was registered as a consolidated Debt on my credit file for all the world to see.

. COonsolidation loans/ debts would be a variation of a pre-existing contracts, both parties must consent to enter the new contract proposed.

, Under Data Protection rules if the Data relating to you is inaccurate or a misrepresentation of the facts and there were no grounds to make such entries.

. The Defendant further claims that the Claimant is in breach of the Data Protection Act 1998

. The Claimant is a Data Controller and the Defendant is a Data subject and the data is personal as defined in the s1 of the Act

. The Claimant did not have lawful entitlement to do so.The Claimant has continued to process by updating this and is in breach of the Data Protection Act 1998 and i have been made to suffer as a result of the banks breach.

. The accout was in Dispute.

. The l;ist of inaccuracies,omissions discrepancies and amendments are not what one would expect from a big organisation with the resources to get paperwork and legal documents correct.

. Imade my first CPR 31.14 Request to the Claimant for Disclousure on the 10.04. 2010

. The Claimant did not comply with my request sent by special delivery. Neither did they request additional time in order to comply or communicate with me for over 3 months.

. Finally a correspondence arrived dated the 20th july 2010 producing only partial and totally inadquate documentation contrary to my CPR Request,.

.I wrote again to the Claimant on th e03.08.10 to remind thm that the full extent of myCPR 31.14 Request had not been fortcoming

. I received another communication from the Claimant dated 23.08.10 stating that if I required extra I should write to their office in Leeds. A further communication from the Claimant dated the 06.09.10 stating that all my requests had been complied with in their correspondence of the 20/07/10

. However this is untrue and it has denied me the oppertunity o file a proper Defence.I am missing documents that are legally required to provide me but havnt,

.The Account was also in Dispute at the time

. A Default Notice was served dated 24th June 09

. Served under 'Unknown number'

. Incorrect Start Date.

. Short on days with insufficient time to rectify

. On the 10.12.2010 almost 18 months later DN was Re-Done using figures from the reference book notes Default amount.

. The fiction of the second DN and the Enduring Obligation

. The service of any second DN at a time when the contract is terminated owing to the wording of the DN in its perscribed form would perpertrate the fiction that the contract endured. The same can be said owing the provisions ogf section 89 of the ACT.

. I respectfully ask the court to take note of the Claimants pre-action conduct in regards to this Calim

[annabella7]

Hi The Mould

I am so sorry its so close together, but allowing for the rough draft that is the bones of it I am suffering brain damage now . will check late going for coffee ,Best Regards

Annabella7

[The Mould]

Hello annabella

 

I did just make a load of amendments to yor draft and when I went to post my entry I had to re-loggin and my additions were lost.

 

Going for a cup of tea and smoke break, back in 15 mins.

 

Kind regards

 

The Mould

[The Mould]

Annabella

 

As it is so late now, I shall catch up with you on the morrow (it is the morrow already).

 

Kind regards

 

The Mould