HSBC d&G taking me to court with no CCA **Discontinued***

[Docman]

TWW

 

If the judge has ordered that all documents must be sent 14 days before the hearing, I'd wait to see what HSBC/DG come up with and then respond accordingly. You have filed a defence and asked for the claimant to produce the documents backing their cliam. If they don't produce the documents now that the judge has ordered them to do so, you could ask for the claim to be struck out. But just wait for now.

 

I take it that this is a small claims case, ie below £5,000?

[TWW]

TWW

 

If the judge has ordered that all documents must be sent 14 days before the hearing, I'd wait to see what HSBC/DG come up with and then respond accordingly. You have filed a defence and asked for the claimant to produce the documents backing their cliam. If they don't produce the documents now that the judge has ordered them to do so, you could ask for the claim to be struck out. But just wait for now.

 

I take it that this is a small claims case, ie below £5,000?

 

Hi Docman.

 

Yes it is under $5k and I am at a loss as to how they can produce dcuments they have admited do not exist.

[Docman]

Hi TWW

Well you may be at a loss but HSBC are not, especially if this is a small claims case. The rules in the Small Claims court are more relaxed than in a full, ‘fast track’ case.

HSBC will be represented by either a local solicitor or, depending how far you are from London or a large city with barristers chambers, by a young (read cheap) barrister keen to prove his worth to a major client.

Forget any notion that it will be ‘Judge John Deed’ hearing your case. In reality, the hearing will be a large room with a table with you on one side, HSBC on the other side and the judge at the head. If you get the full time ‘District Judge’ it is likely that your case will be one of several the judge has to hear that morning and that it is the only credit one. The other cases could be on any other subject of civil law all of which the judge is expected to know about. With the best will in the world, the judge can’t be an expert in everything and so will be led by the legal arguments put before the court by you and HSBC.

If you get a ‘Deputy District Judge’ your chances of winning can be reduced dramatically. A Deputy is a ‘part timer’ perhaps only sitting as a judge a few days a year or alternatively a legal specialist who normally hears a certain type of case.

Both the judge and the barrister will speak the same language and both behave in certain ways. You do not know the language or the procedures. That isn’t peculiar to the law. In any job, if two people working in an industry meet they will talk ‘jargon’ but if joined by a third person who is a novice and who doesn’t know when to speak the right words at the right time, the newcomer will be frozen out of the conversation.

The odds are stacked against you which is why HSBC take a punt that they will win, even without any documents - unless you challenge them all the way.

Are you still up to defending yourself?

[TWW]

Hi Docman.

 

Thanks for taking this time. I know it won't be easy but I fully intend to defend myself to the best of my abiltiy. All I need is as musch help as I can get to go into court. I know that I will be a stranger in a strange land but I've been in that situation before and whilst I am nervous, no one is going to kill me.

 

How do you suggest that I prepare?

[The Lantana]

The rules in a small claims case are more relaxed as Docman rightly points out. However, the law is the law. If they cannot produce an agreement signed by you, the Judge cannot enforce because cca74 won't let him. You will need to point this out to the Judge, and HSBC in your final defence. Your account predates the amendments introduced in the 2006 act.

 

Of course HSBC already know this. They figure that for the cost of court fees they may well get you to cave in. I had a similar experience with LTSB and their final POC referred to the attached signed agreement. There was an agreement attached alright, it just lacked my signature. When LTSB realised I was on to it and would be turning up, they folded - just before the bell.

 

I'm not saying HSBC will fold, but they can hardly deny cca74 provisions apply - try as they may.

 

Regards

 

The Lantana

[TWW]

Thanks for your help Lantana. What I need to know is exactly which points I need to focus on and where I get the supporting documents. Any thought?

[Docman]

TWW

 

Are there any documents around that you want to use when you get to court? If so you will need to produce them to the court, preferably by a witness statement.

 

Have HSBC/DGs filed any documents of their own or made any submission to the court?

 

Depending on what has gone on before, IMO it might be best to set out your arguments for the court in what in fast track cases as a 'skeleton argument'. Here you can set out your reasons and back those uip with references to statute and case law.

 

A skeleton does not need to be produced in a small claims case like this one but I see no reason why you can't set down your thoughts in writing and let the judge have a copy before the hearing. He will then at least know what you are about.

[TWW]

So far HSBC have produced no documents nor submissions to the court. I will make sure that my documents are with the court and the other side 14 days in advance as the Judge ordered. I was intending to submit some of my arguments to the court (only) before hand.

[TWW]

Hi all.

 

7 week to go to the court date and I'm still a little unsure of which points I should be basing my defense. Any help gratefully received.

[Docman]

TWW

 

Are you within the 14 day period? Have HSBC/DGs sent any docments yet?

 

Doc

[TWW]

Hi Docman.

 

Today is the cutoff and they will be getting mine registered post today. Not had anything from them (apart from the usual blank forms) but we will see if anything turns up today. I'll keep you posted.

[TWW]

The post has been and they have sent nothing! Shows in what contempt they hold they courts.

[Docman]

TWW

 

I think there must be a sign up in DGs offices which reads

 

1. The CPR do not apply to HSBC/DG.

2. The CPR apply to defendants bu only in so much as the application does not conflict with Rule 1 above.

3. In all other cases of doubt, revert to Rule 1.

 

In short, don't expect to get anything from them before the morning of the hearing. The Court may receive DGs documents the day before the heaing with apologies for the delay due to administrative error. The judge could rule the late submission of documents out but most judges don't in the hope of clearing another case rather than adjourning.

 

What you need to do is to set out your arguments. From the posts above I suggest there are three areas you need to cover:

(a) your denial of signing the agreement as set out in your posts above. Bring the evidence you refer to to court;

(b) set out what the law requires for an enforceable credit agreement; and

(c ) assume the DG rep will claim they can 'reproduce' agreements and so you will have to rubbish that agrument.

 

You don't need to set this out in any formal way as you will be almost reading it out in court. Have a go a drafting what you would say and post up for comment.

[TWW]

In the xxxx County Court

Claim number xxxxx

Between:

 

HSBC Bank Plc

 

and

 

xxxxx - Defendant

 

Defence

I am at a considerable disadvantage in preparing this defence in that despite requesting the claimant’s documents on July 17th 2010 and April 1st 2011 under the Court Procedure rules the claimant has not seen fit to provide me with any documentation. This is in addition to the court itself ordering both parties to supply each other and the court with all relevant documents 14 days before the hearing.

This obvious abuse of process not only demonstrates complete contempt for the court and its rules but is also is clearly aimed at preventing me from receiving a fair hearing. Should the claimant attribute this ‘oversight’ on an administrative error, it calls into question whether any of their claims of rigorous systems can be trusted.

For these reasons I must insist that any document not supplied to me 14 days prior to this hearing be barred from use.

Since this essential information was not supplied with the particulars of claim nor has it been supplied since I would request that his claim be struck out.

 

Docman. What do you think of this approach? If they have not complied, I can not defend.

[TWW]

Of course I am also preparing my full defense which I will port later today.

[sir_gilmour]

Hi

Welcome to The Consumer Action Group.

 

 

I am just letting you know that as you haven't had any replies to your post yet, it might be better if you post your message again in an appropriate sub-forum. You will get lots of help there.

 

Also take some time to read around the forum and get used to the layout. It is a big forum and takes a lot of getting used to.

 

 

Once you start to find your way, you will soon realise that it is fairly easy to get round and to get the help you need.

 

It can be bit confusing at first.

[Docman]

In the xxxx County Court

Claim number xxxxx

Between:

 

HSBC Bank Plc

 

and

 

xxxxx - Defendant

 

Defence

I am at a considerable disadvantage in preparing this defence in that despite requesting the claimant’s documents on July 17th 2010 and April 1st 2011 under the Court Procedure rules the claimant has not seen fit to provide me with any documentation. This is in addition to the court itself ordering both parties to supply each other and the court with all relevant documents 14 days before the hearing.

This obvious abuse of process not only demonstrates complete contempt for the court and its rules but is also is clearly aimed at preventing me from receiving a fair hearing. Should the claimant attribute this ‘oversight’ on an administrative error, it calls into question whether any of their claims of rigorous systems can be trusted.

For these reasons I must insist that any document not supplied to me 14 days prior to this hearing be barred from use.

Since this essential information was not supplied with the particulars of claim nor has it been supplied since I would request that his claim be struck out.

 

Docman. What do you think of this approach? If they have not complied, I can not defend.

 

Hi TWW

 

I don't think this approach will help your case. All you have said is perfectly correct but the judge in a small claims court has a lot of discretion, especially about admitting documents. IMO (others may have differing views) if DGs send the court and you another set of blank documents a day or so before the hearing with their apologies, all the judge is likely to ask you is whether you have received the documents. If you have (and DG will claim they have sent you these documents before), the judge is unlikely to grant any time for you to examine them and is more likely to be pi@@ed off at you for asking for an adjournment. Remember, the judge just wants to get this case off his desk ASAP.

 

Concentrate on setting out what you are going to say in court. It isn't your 'defence'. You have already submitted a defence, which basically says you can't defend until DGs come up with the documents. DGs will claim they can 'reconstruct' the agreement and that is what they will produce. If you do not raise a strong objection, the judge could accept DGs woffle and hot air and you lose.

 

Try and deal with the points I posted above.

 

Doc

[TWW]

Thanks Doc. Working on it now and will post asap.

[TWW]

Between

HSBC Bank Plc- Claimant

 

and

 

 

XXXXXXXXXXXXX

 

 

 

Defence

1. I XXXXXXXXXXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by HSBC Bank

 

2. Alleged Credit Agreement

On the HSBC bank wrote to me ending the alleged credit agreement regarding a credit card numbered ****************** and insisting that I comply with the terms of the conditions of the Consumer Credit Agreement that I signed. Since I have no recollection of every signing such an agreement, the card being offered in a telephone conversation regarding my business account with HSBC ( terminated with a £0 balance at my request on July 2nd 2009) I wrote to HSBC on March 17th 2009 requesting a ‘true copy’ of the agreement plus any relevant terms and conditions.

On the 9th of April 2009 HSBC sent me a photocopy of a blank application form, stating that his was a true copy of the agreement I allegedly signed. As this carried no personal details of ANY description, I wrote back asking how this could be a true copy as required. On April 20th 2009 Helen Packwood of HSBC wrote stating that the banks final position was that this was all they need to send me.

In all my correspondence with HSBC since that time, I have never denied that I had and used the card, merely that I needed to know how and under what terms the amount was due. Whilst it is impossible to prove a negative, I firmly aver that I never signed the form, a photocopy of which they sent me.

3. This defence is to replace the original embarrassed defence submitted on 04/08/2010 in its entirety.

4. After giving full consideration to the claimants very brief particulars of claim, without production of the written agreement, which the claimant cites that I have allegedly breached, I am unable to admit that I am indebted to the claimant and further more am unable to assess if the contract which the claimant claims to be reliant upon is legally enforceable or is properly executed as required by the Consumer credit Act 1974. Consequently, since the claimants case is still substantially flawed and by the claimants own admission they do not have the written document I deny that I am indebted to the claimant and place the claimant to strict proof that the debt is valid and further more legally enforceable under the Consumer Credit Act 1974

The credit agreement and the Consumer Credit Act 1974

 

5. The consumer Credit Act 1974 is a plainly enacted statute for the protection of consumers. The Act sets out the form and contents of Regulated credit Agreements and the consequences of not complying with the Act. The act further sets out that a debtor may upon request in the prescribed manner under s77 or 78 request a copy of the "executed agreement" between parties and the creditor must comply within 12 workings days.

6. Since the claimant has admitted it does not hold a copy of the original agreement, it is difficult to see how they could discharge their obligations without the original documentation to refer to and without the original document it is impossible to assess if the agreement fully complies with the requirements of the Act

 

 

7. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

8. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

 

9. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the amount of credit, A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

10. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974.If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

 

11. Notwithstanding point 10, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

 

12. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

13. If the claimant cannot produce the credit agreement before the court, compliant with the legislation, bearing the defendants signature as required by the Act it is suggested that the claimant's claim cannot succeed.

 

14. The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) Ruled that a credit agreement must contain the prescribed terms and must be signed in the prescribed manner for the agreement to be enforceable and set out the consequences of non compliance with the 1974 Act. I refer to the judgment of Lord Nicholls of Birkenhead below....

18.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

19. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

20. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

21. The House of Lords and the Court of Appeal before it in considering the Wilson case held that if the agreement does not contain the prescribed terms outlined in Schedule 6 column 2 of Statutory Instrument 1983/1553 then the court couldn't issue an enforcement order. The House of Lords clearly considered it the will of parliament that where a lender did not comply with the provisions of the Consumer Credit Act 1974 and the Subsequent regulations then the lender does not have any recourse, they cannot side step regulation by any other means and weather it is considered right or wrong for the debtor not to have to repay an unenforceable debt becomes irrelevant where the requirements of the CCA 1974 and regulations are not met

 

27. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

Document Retention and the claimant’s failures

 

 

28. The claimant would be fully aware of the fact under the Civil Procedure Regulations PD

16 7.3 “Where a claim is based upon a written agreement:

(1) 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, and

(2) any general conditions of sale incorporated in the contract should also be attached (but where

the contract is or the documents constituting the agreement are bulky this practice direction is

complied with by attaching or serving only the relevant parts of the contract or documents). “ Indeed this court has instructed both parties to bring “Original(s)” to this court.

The claimant would also be fully aware that they would need to be able to produce a copy of the original agreement should they ever need to take legal action to enforce the agreement. The claimant would also need to be able to produce a true copy of the Agreement upon request pursuant to section 77 (1) Consumer Credit Act 1974, therefore it stands to reason that the claimant must surely hold such document.

 

29. According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (section 222(5)(b).

 

30. As a loan agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be "live" until the account is paid, or terminated - thus, the full file should be retained for at least six years after that.

 

31. This interpretation fits in with Inland Revenue legislation that requires prime documents to be retained for a period of six years - AFTER THE END OF THE RELEVANT ACCOUNTING PERIOD. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6) which states:

 

"The duty to preserve records under this paragraph includes a duty to preserve all supporting documents relating to the items mentioned in sub-paragraph (5)(a) and (b)."

 

 

32. Finally, key documents/application forms etc must be kept until 5 years after that business relationship has ended. This is a requirement of The Money Laundering Regulations 1993, 2003 and 2007.

 

33. Therefore, the defendant contends that claimant’s failure to preserve the written documents such as the Credit Agreement is a breach of the Acts quoted above.

Reproduced documents

34 The claimant will contend that he can side step the above requirement by producing reproduced or recreated documents, stating Carey v HSBC a summary of which is:

(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;

(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;

At the date of the alleged agreement, I was living in Sheffield in the County of Yorkshire. Can the claimant please indicate what that address was?

(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;

(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

The agreement was varied on numerous occasions by way of interest rates etc. Note that the judgement clearly states “a copy of the original agreement” NOT a reconstituted document or a blank application form.

(5) If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A;

(6) The Court has jurisdiction to declare whether in a particular case, there has been a breach of s78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case;

(7) In assessing whether Prescribed Terms are "contained" in an executed agreement the principles set out at paragraph 173 above are relevant. On the assumed facts set out at paragraph 177 the Prescribed Terms were so contained;

(8) The claims that there was an unfair relationship and an IEA in Adris should be struck out or dismissed. The claim that there was an IEA in Yunis should be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the IEA claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim other than failure to provide a s78 copy, was fatal to that claim.

Since I have never been supplied with either of those documents, the claimant is still obviously in breach of his obligations making this action both unlawful and vexatious.

Edited July 10, 2011 by the_shadow
Removal of credit card number :(

[TWW]

They have now (a week late) sent me their POC. These are what I expected, some statements and an application form with my name and address on. I'm am now turning the above into a revised defense. Any help would be gratefully accepted.

[the_shadow]

Really sorry didnt see this before as away, I've just edited post #44 as it had your credit card number in it

 

Right, ok... so you have the Particulars of Claim... can you post up exactly what they are, keeping out any identifying information, round up or down the numbers

 

S.

[TWW]

1 is witness statement " i am etc"

 

2 The claim is in respect of credit card 5xxxxxxxxxxxx opened on or around October 2003 and closed October 2009

 

3 There is now produced and shown to me a reconstituted copy of the CCA

 

4 There is now shown to me pages 45 -91 copies of duplicate statements from Jan 2009 to November 2010

 

5 A statatuary default notice was served by the claimant April 2009

 

^ On July 201 issued a claim in Northampton CC for £4xxx.xx together with interest.

 

7 On August 2010 the defendant filed a defense disputing the full amount.

 

8 The defendant states that the claimants statement of case is insufficiently particularized and does not comply or even attempt to comply with CPR 16

 

9 By way of a letter dated September 2010 the claimant's solicitors wrote explaining that the claim was issued electronically so differing from CPR 16.

 

10 no response was received from the defendant and on Feb 2010 a further letter was sent.

 

11 Copy correspondence.

 

12 The claimant request that the court make an order that:-

 

a The defense is struck out as it discloses no reasonable prospects of success.

 

b Judgement be entered in favour of the claimant for the sum of £4xxx.xx

 

Total claimed inc costs £5,%xx.xx

 

This is in essence it.

 

Thanks for you help

[the_shadow]

Right ok, as has been stated by Docman, you have already put in a defence albeit a "holding" defence.

 

Your job now is to convince the judge you have a trialable issue....

 

So you need to look at the evidence they are providing and counter it enough to get over the hurdle of summary judgement. Your witness statement needs to counter what they have disclosed after the initial claim and particularly the reconstruction vs actual agreement argument.

 

You need to look up the thread on here about the manchester test cases specifically you need to look at Carey vs HSBC.

 

S.

[TWW]

Thanks Shadow.

 

I've started to put a detailed defense together. I think I should be able to pull their arguments apart. Should I post the amended defense on here for others to comment on? Also they delivered their POC a week late so I intend to fax my response to them the afternoon before when I deliver it to the court, pleading that their lateness only just allowed me time to respond. Comments on this please.

[the_shadow]

Is this the full trial or just a hearing to hear their application for a summary judgement?