Claim Form from HSBC - advice needed!

[andypoth]

Hi, this dispute with HSBC has been rumbling on for almost two years, and today I have received a claim form from the Northampton CCBC. The agreement was originally signed in 2005.

 

I wrote to HSBC in April 2009 requesting a copy of the credit agreement and T&Cs for this account, and have never received it. It was first passed to MCS and then DG. HSBC, MCS and DG have stated several times that they no longer have a copy of the original agreement, in response to the original CCA and a subsequent request under CPR 31.16 in March 2010 when they first stated mentioning legal action.

 

DG wrote to me on 18th August enclosing what they claimed was a reconstituted agreement form compliant with Reg 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. The letter also stated they have made a reasonable search but no longer have the original document in their possession. The reconstituted agreement actually related to a totally different loan agreement I had with HSBC.

 

I then didn't hear anything from them until January, when I received a standard letter asking me to contact them to discuss payment. I phoned them up and eventually found out that HSBC had supposedly sent me a letter on November 4th. I had not received this letter and they couldn't tell me what it contained, so were going to get another copy sent out to me, and was advised to call back if this was not received by January 19th. It still hadn't arrived by January 20th, so I rang them again and was told my complaint would be "escalated" but still haven't received the fabled 4th November letter.

 

At the end of February I then received a letter from CDRU inviting me to contact them as my account would be reviewed for further action a few days later. I rang them as I didn't think there would be time to get a letter to them, explained the situation and was told that as far as they were concerned I had received the letter and if I didn't make an agreement to pay they would take me to court. I told them this was fine as we would be able to resolve this one way or another as they clearly couldn't.

 

Today I've received the Claim Form relating to this account. The particulars of claim state the following:

 

"The Claimant's claim is for the balance outstanding under a Bank account facility the Claimant agreed to maintain for the Defendant(s). It was a term of the Bank account that any debit balance would be repayable by the Defendant(s) in full on demand.Despite having demand dated 7/01/2010, the Defendant(s) has/have failed to repay the amount due.

 

AND the Claimant claims:-

 

1. £2470.75

 

2. Interest pursuant to Section 69 of the County Court Act 1984 at a rate of 8.000% per annum from the date hereof at a daily rate of £0.54 to the date of Judgment (sic) or sooner payment.

 

They've then claimed this sum plus Court fees of £75.00 and Solicitor's costs of £80.00

 

I guess that I need to acknowledge service and then send them a CPR request for all documents.

I did not receive a default notice for the account at any point, nor have I received a Letter Before Action. I also note they refer to the balance as relating to a Bank account facility, rather than a loan agreement (not sure if this matters). If it's of any relevance, at the date of the agreement I was living in Jersey and the agreement was signed in a Jersey branch of HSBC. Without the T&Cs of the account I don't know if the agreement was even subject to the English Courts as it would have been stated in these. Even it was stated in there, would that matter if I was not UK domiciled and the agreement was signed in a branch belonging to HSBC (Jersey) Ltd?

 

Could somebody point me in the direction of a suitable CPR template please?

 

Thanks!

 

Andypoth

[citizenB]

You will need to keep you eye on the calendar for timelines.

 

Date of issue of claim form - Top right hand corner .

 

You have 5 days from the Date of issue on the claim form for receipt then +14 days by which you will need to have acknowledged the claim and advise if you are going to defend or not. If you are going to defend then you will receive a further 14 days.

 

Meanwhile you will need to send a CPR for information. The only information you can request would be the Agreement and the "demand for payment". This is an ambiguous statement. Was it a Default notice or Letter before Action that they sent you ?

 

You can ask for statements in order to assess how the claim against you has been made up. That way you can see if there are any charges applied.

 

You should read the following links. There is a CPR letter you can adapt in one of them. If you need any further help, just yell.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage

 

CPR letter for adaptation in first post of the link above.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here

 

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

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

 

HTH

[citizenB]

I have also moved your thread to the legal issues forums

[andypoth]

OK, here's the adapted CPR request:

 

 

On 12th March 2011 I received the Claim Form in this claim, 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.

 

Prior to the issue of proceedings I had delivered numerous requests to you and your client for the production of the agreement mentioned in the Claim Form and on which you rely. In response to these requests, I was told that the Claimant no longer had these documents in their possession.

 

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 each of the following documents 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.

 

2. The demand dated 7/01/2010, referred to in your Particulars of Claim.

 

3. A full set of statements for the account, so that I may assess how the amount claimed has been determined.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) 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(s) to include an obligation to recover and preserve such version(s) that 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

 

Hope this is OK. I'm not going to sign it, but will use the CAG signature protector instead.

 

AP

[andypoth]

So the letter was posted to DG and they received it on 21st March (Monday before last). No response received yet.

[andypoth]

OK, so having read the other threads linked above, it would seem that I need to apply for a strike-out order via N244. I did think about counterclaiming for damages due to HSBC reporting adverse information to the CRAs, plus aggravated damages (for the distress) and exemplary damages but that would entail filing a defence and counterclaim, wouldn't it?

 

If I were to go ahead with the N244 route, how would I then go about clearing up my credit record afterwards? HSBC have defaulted me on this account!

[Docman]

Andy

 

You mentioned the agreement was signed in Jersey. Are you still resident on the island?

 

Doc

[andypoth]

No, the agreement started in March 2005 and I left Jersey in July, now living in England. On returning to the UK HSBC refused to open replacement onshore accounts. At the date of the agreement I was living in Jersey (and nondomicilied and nonresident in England) and all of my accounts were held with HSBC branches in Jersey.

[andypoth]

...and in today's post, the following letter from DG Solicitors dated 23rd March (so it's taken 8 days to get here?)

 

"Thank you for your letter dated 14th March 2011

 

We acknowledge receipt of your CPR request and are in the process of obtaining the documents you have requested.

 

We will also allow additional time for you to defend the claim.

 

Yours sincerely..."

 

If the claim was served on March 12th, that gives me until April 9th to file my defence - though DG have said they will give more time. Can DG actually give me more time, because surely this is at the Court's discretion? I guess the best bet is to notify the Court of this myself.

 

If I was cynical, I'd think that DG aren't going to tell the court that they're giving me more time, so that I don't file my defence and they can apply for judgement in default. But of course I'm sure they wouldn't do that, would they?

[the_shadow]

Under CPR it is YOUR responsibility to notify the court that extra time is being given, have they left it open ended or given a date... I would write to the court and advise them that the claimant has agreed an extension and include a copy of that letter.

 

Might be an idea to either do a SAR or a request under CPR18 for the information in the comms log, namely all the times you requested the information and they failed to send it.

 

S.

[the_shadow]

Your question about bank account vs loan account is also important, bank accounts have very little protection under the CCA1974, loan accounts have more stringent controls and require a default to be issued before court proceedings can take place.

 

I know Jersey law is different, you need to know whether the agreement you signed was under English law (would state in t&c) and protected by CCA1974.

 

S.

[andypoth]

OK, so will photocopy their letter and send to the Court with a covering letter over the weekend. I'll send this to the Northampton CCBC as I haven't yet been notified that the claim has been transferred elsewhere.

 

As HSBC have never provided copy of the loan agreement, I can't say for certain if it is a loan or not. The product was called a Professional Studies Loan, the repayments were fixed but the interest rate varied (it was something like 2.5% above HSBC base rate) and I was under the impression it was a loan and not a bank account.

 

I also don't have a copy of the T&Cs so can't find out whether it states it is subject to the jursidiction of the English or Jersey courts. The agreement they have provided for another loan (currently being passed around the DCAs) taken out at the same time doesn't state anything about jurisdiction. Plus, if I was outside of England at the time the agreement was made and therefore not subject to English law at the time the agreement was signed, could the agreement even have been made subject to the CCA?

 

I did think that a SAR would be a good idea. However, would I need to send separate requests to HSBC, Metropolitan and DG as they are each individually registered with the ICO? Or would a letter to HSBC Bank PLC asking for data held by HSBC Bank PLC and all subsidiary companies (specifying MCS and DG by name) suffice?

[the_shadow]

OK, so will photocopy their letter and send to the Court with a covering letter over the weekend. I'll send this to the Northampton CCBC as I haven't yet been notified that the claim has been transferred elsewhere.

 

Doesnt get transferred until you file a defence so yes Northampton court.

 

As HSBC have never provided copy of the loan agreement, I can't say for certain if it is a loan or not. The product was called a Professional Studies Loan, the repayments were fixed but the interest rate varied (it was something like 2.5% above HSBC base rate) and I was under the impression it was a loan and not a bank account.

 

I've looked on their website but cant find anything similar, google throws up some people explaining going through the process however and it looks like a loan more than an account.

 

I also don't have a copy of the T&Cs so can't find out whether it states it is subject to the jursidiction of the English or Jersey courts. The agreement they have provided for another loan (currently being passed around the DCAs) taken out at the same time doesn't state anything about jurisdiction. Plus, if I was outside of England at the time the agreement was made and therefore not subject to English law at the time the agreement was signed, could the agreement even have been made subject to the CCA?

 

Normally you would think that but most of the banking documents I've ever seen state something like "this contract is subject to the rule of English law" etc, this is what you are looking for.

 

I did think that a SAR would be a good idea. However, would I need to send separate requests to HSBC, Metropolitan and DG as they are each individually registered with the ICO? Or would a letter to HSBC Bank PLC asking for data held by HSBC Bank PLC and all subsidiary companies (specifying MCS and DG by name) suffice?

 

Unfortunately the ICO believes these are separate companies so its a SAR to each even tho as you state they are in fact all in one but if they are registered with the ICO separately they have to be treated as such I think for now tho only HSBC are key to get the information from.

 

S.

[Docman]

Andy

 

the shadow is correct about the law applicable but as Dumb Goofers [my pet names for them as you will discover is appropriate] haven't sent you the t&cs. However, the current t&cs from HSBC's Jersey wbsite states the following

 

"

are governed by the laws of Jersey, Guernsey or the Isle of Man, depending

on where your account is held. You and we submit to the non-exclusive

jurisdiction of the courts of Jersey, Guernsey or the Isle of Man as appropriate."

 

i'll be back shortly with advice.

 

[Docman]

Hi Andy

 

If the original credit agreement was signed in Jersey, it probably is subject to Jersey law and not English law. However, because the Bank have not supplied a copy of the executed agreement, there is no certainty.

 

Given the paragraph quoted in my post above from the current terms, it is highly likely that the agreement was signed under Jersey law and therefore that an English County Court does not have jurisdiction to try the matter.

 

I suggest you look at the Civil Procedure Rule [CPR 11] at http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part11.htm#pagetop

that deals with applications to challenge the Court's jurisdiction. You will need to acknowledge service of the claim form [N1] immediately and then make an application on form N244 to strike out the claim within 14 days. Make the point that the current terms make it clear that credit agreements with the Bank are subject to Jersey law. Print off and exhibit a copy of the current terms from teh Bank's jersey website. In the abscence of any agreement evidenced from the Bank to the contary, ask that the Court accept that it does not have jurisdiction - and don't forget to ask for your costs!

[andypoth]

Hi guys, thanks for the information about Jersey. That confirms my suspicions that the English courts don't have jurisdiction. My only concern is that I'm not sure where I would stand under Jersey law - there's no Consumer Credit Act in Jersey, for example, so would I better off proceeding in the UK?

 

Plus I'm now well past the 14-day limit to contest jurisdiction, though I could make an application and state that it was delayed because I was waiting for the claimant to produce documents which would have confirmed if the (English) Courts had jurisdiction, that the CPR 31.14 request was served well within the 14 days, and the claimant consented to more time to file a defence.

 

Anyway, so far nothing has happened since my previous post. I have heard nothing from HSBC or DG since their letter stating that they were looking for the requested documents and so gave me more time to file my defence - that letter was sent on 23rd March...

 

So, do I want to:

1. Wait and see what HSBC do;

2. Contest the Court's jurisdiction as the agreement looks likely to be governed by Jersey law?

3. Apply for disclosure?

4. Apply for strikeout because there are no documents?

5. Something else?

 

Thanks again for all the advice!

[andypoth]

Just a quick update; I've had no further communication about this claim from DG or HSBC (no agreement and we're now getting on for five months since I last heard from them). I have interestingly had a letter from CDRU asking me to contact them - which I did, telling them this matter was now subject to legal proceedings so I wouldn't be dealing with them. They claimed the letter was a mistake and would sort this out but I had another letter from them last weekend saying they would be reviewing my account for further action. I've just ignored that one.

 

Any tips on where to go next? I think if nothing happens by the start of September (i.e. six months from issue) the claim gets stayed.

[Docman]

andy

 

Did you file a defence with the Northampton court?

[andypoth]

No, not yet. HSBC agreed that I could have 28 days from receipt of the documentation to file my defense. I notified the court of this and on MCOL the status is showing is acknowledged (I had filed an acknowledgement of service immediately I received the claim form) and I am checking this every few days to make sure nothing happens.

[Docman]

I think you should make a late application on form N244 to contest the court's jurisdiction and ask that the claim be struck out. State you resided in Jersey at the date the alleged agreement was entered into and that any agreement would be subject to Jersey and NOT English law. Point out that HSBC has yet to produce a copy of the agreement and so you should print off the t&cs from HSBC's Jersey website and produce these to the court to support your submission.

[andypoth]

My only concern with doing this is that HSBC may then try to take me to court in Jersey and I don't have any idea about what Consumer Credit laws exist there (from what I can remember, not many!) and I'm worried I may end up in a weaker position. I also can't find any current T&Cs relating to offshore Professional Studies Loans, just the "Personal Banking Terms of Business". These state that the Terms are governed by the laws of Jersey if the account is held there (it is) - though the particulars of claim refer to a "Bank Account" rather than a "Loan account".

 

Would I do better to apply for an order that HSBC disclose the documents (agreement and terms and conditions) within 7/14 days and if not the claim is struck out?

[andypoth]

Incidentally I've also had a number of other letters from CDRU stating they are reviewing the account for further action (but what can they do as they've already started legal action against me anyway?). Today I had a standard letter from Moorcroft dated 6th August 2011 asking me to contact them (by today, 13th August) to avoid litigation.

 

I was going to write to them pointing out that this matter is already the subject of litigation, quoting the claim number, and politely telling them where to go. I think the fact HSBC are now trying to recover the debt through DCAs is rather telling that they don't actually have the agreement (which I requested under CPR 31.14 in March and still haven't had yet).

 

So my plan is:

 

1. Write to Moorcroft expressing my confusion as to why they're dealing with this as I was under the impression it was already at the litigation stage. I'll throw in some DPA notices for good measure. If they don't pass it back to HSBC I'll ask them for Deeds of Assignment, then CCA etc.

 

2. I feel that I need to do something about the HSBC claim. My only concern with getting the claim struck out due to lack of jurisdiction of the English courts is that it's then subject to Jersey courts, and I think my position might be weaker there (Jersey had no consumer credit law while I lived there) plus the current T&Cs state that the courts in Jersey have non-exclusive jurisdiction, so possibly they could take action in England.

 

Would I better off writing to DG, pointing out that

- I am being pursued by internal and external DCAs when this matter is already subject to litigation?

- Almost six months have elapsed since they received my CPR 31.14 request, and almost eighteen months since they received my CPR 31.16 request

- I have not had a substantive response.

- Unless they produce the document or confirm they don't have it I will make an application for the claim to be struck out on the grounds of non-compliance with the CPR request (or would I make an application for a disclosure order first?)

- They will be liable for my costs associated with the application

- I reserve the right to claim wasted costs as per CPR

- Give them seven days to respond, allow extra time if they request it within seven days

- Suggest they give up, forgive the debt and remove all traces of it from my credit record (or mark it as paid off in full without arrears or defaults - I'm sure there is a correct term for this!)

 

Does this all sound sensible or am I barking up the wrong tree?

 

TIA

 

Andy

[citizenB]

I would certainly be writing to Moorcroft advising that this is already subject to litigation and ask them what the hell they are playing at. Offer to report them to the Office of Fair Trading unless they cease their harassment.

 

As to the other queries, I really dont know. Hopefully someone with more knowledge will look in. IMHO, you can contest jurisdiciton. Unless it is for mega bucks, I actually dont see HSBC going further if they are unable to provide any documents.