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

[AndyOrch]

If the request is within the Claimants POC then its part of their claim, any request for SJ is usually within an application

and separate to proceedings and is usually made pre AQ.

 

Regards

 

Andy

[AndyOrch]

In your post 45 you state you have received an application, so I assume its an hearing to deal with the application.

[AndyOrch]

Are we past Allocation Doc?

 

Andy

[AndyOrch]

Can you scan the Application Notice TWW

 

Andy

[AndyOrch]

Ok TWW

 

The hearing will be a Preliminary hearing.The claimants AN is to request the stay be lifted and transfered.They have requested an application without hearing

and hence the reason that an hearing has come about at the DJs discretion (SCT).It is not an application for SJ.I assume you did not receive a Notice of Allocation

on completion of your AQs and also that you requested no to mediation.The Claimants state you will not correspond with them.Hence the need for the DJ to call the hearing to discover further direction.

 

Have you received a Notice of Hearing from the Court?

Preliminary hearing

 

27.6

 

(1) The court may hold a preliminary hearing for the consideration of the claim, but only –

(a) where –

(i) it considers that special directions, as defined in rule 27.4, are needed to ensure a fair hearing; and

 

(ii) it appears necessary for a party to attend at court to ensure that he understands what he must do to comply with the special directions; or

 

 

(b) to enable it to dispose of the claim on the basis that one or other of the parties has no real prospect of success at a final hearing; or

 

© to enable it to strike outa statement of case or part of a statement of case on the basis that the statement of case, or the part to be struck out, discloses no reasonable grounds for bringing or defending the claim.

 

 

(2) When considering whether or not to hold a preliminary hearing, the court must have regard to the desirability of limiting the expense to the parties of attending court.

 

(3) Where the court decides to hold a preliminary hearing, it will give the parties at least 14 days’ notice of the date of the hearing.

 

(4) The court may treat the preliminary hearing as the final hearing of the claim if all the parties agree.

 

(5) At or after the preliminary hearing the court will –

(a) fix the date of the final hearing (if it has not been fixed already) and give the parties at least 21 days’ notice of the date fixed unless the parties agree to accept less notice;

 

(b) inform them of the amount of time allowed for the final hearing; and

 

© give any appropriate directions.

 

 

 

 

Regards

 

Andy

[AndyOrch]

Ok the Notice of Allocation is the next stage within the procedure its basically to give clarity confirms the Track and contains directions set out by the DJ

ie dates, disclosure, Witness Statements, and of course the date of the trial..On completion of your AQs you never received it or it was never granted and the claim was stayed.

 

Have you received a Notice of Hearing with regards to their application?

[AndyOrch]

That depends on what the hearing this week is for. If, as Andy beleives, it is a hearing to see how to proceed, then you probably do not need to submit anything at this stage.

 

The Notice of Application filed by HSBC was (a) to lift the stay (b) transfer the case to your local county court and (c ) list the matter for a small claims hearing as soon as possible. None of these requests require a hearing and can be dealt with by the judge reading the papers, which is what HSBC have requested. Points (a) and (b) have been dealt with as the matter is now proceeding and AQs have been issued. The AQs have confirmed that the matter is one that is suitable for a small claims procedure and therefore a date has been set that meets point (c ) in the application.

 

All that is needed now is for the judge to hear both sides and then award judgment, which may what the hearing this week is all about. My concern is that the hearing is to to award judgment, since this is a small claims case, and is not one to determine what the next steps should be.

27.4

(1) After allocation the court will –

(a) give standard directions and fix a date for the final hearing;

 

(b) give special directions and fix a date for the final hearing;

 

© give special directions and direct that the court will consider what further directions are to be given no later than 28 days after the date the special directions were given;

 

(d) fix a date for a preliminary hearing under rule 27.6; or

 

(e) give notice that it proposes to deal with the claim without a hearing under rule 27.10 and invite the parties to notify the court by a specified date if they agree the proposal.

 

 

(2) The court will –

(a) give the parties at least 21 days’ notice of the date fixed for the final hearing, unless the parties agree to accept less notice; and

 

(b) inform them of the amount of time allowed for the final hearing.

 

 

(3) In this rule –

(a) ‘standard directions’ means –

(i) a direction that each party shall, at least 14 days before the date fixed for the final hearing, file and serve on every other party copies of all documents (including any expert’s report) on which he intends to rely at the hearing; and

 

(ii) any other standard directions set out in Practice Direction 27; and

 

 

(b) ‘special directions’ means directions given in addition to or instead of the standard directions.

 

 

Experts

 

27.5

 

No expert may give evidence, whether written or oral, at a hearing without the permission of the court.

(Rule 27.14(3)(d) provides for the payment of an expert’s fees)

 

 

 

 

 

[AndyOrch]

I cant personally see how it can be the main hearing for some of the reasons I have outlined above.

Have you been given notice of the hearing if so as it allowed 21 days notice? ( see PD27.4 (2a)above)

Why was there no Notice of Allocation and why was it stayed on completion of AQ,s? Did the Claimant fail to file theirs on time?

Why did the Claimant amend their statement of claim? Did you request this?

Why have they submitted a WS with their Application Notice? (see PD 27.5 above)

Why did they request it all without an hearing and the DJ as insisted on a hearing?

 

Just some of the points that concern me above before we even get to amending a defence.

 

Regards

 

Andy

[AndyOrch]

Its not the AQ that concerns me TWW.This hearing you have this week have you been allowed 21 days notice ? Have you received a Notice of Hearing from the Court stating this week and if so what date is that notice? Or is this the Notice that you state you didnt copy and sent back with your AQ?

[AndyOrch]

Excellent ok looking at all the documents you have uploaded and the general gist of the process I think the DJ is treating this as a SJ hearing and rolling it into one

hearing to dispense with the need for trial.In preparation you now need to scrutinise their WS and the bases of which they make their application and as to why they deem your defence has no merit.Take a look at you initial defence and look at what if anything as been disclosed.Look at their WS what have they stated? Have they referred to any documents you are not in possession of? Could this process appear to be unfair on you? Without any disclosure you are still not in a position to admit or deny the facts pleaded in their P.o.C are irrefutable.

 

Andy

[AndyOrch]

I shall be going through them with a very fine tooth comb in the morning as I have to go to work now and will post the details tomorrow. Do you think we'll be able to get a defence in place by Thursday? Would it be useful to find out who and what the Judge is before hand?

 

Not sure about the " we`ll " bit TWW, but I will certainly give you some pointers and try to go through your thread in the meantime. I assume Doc will be helping you also. Shouldn't really matter who th DJ is.

 

Andy

[AndyOrch]

Hello all.

 

I am now in need of some serious help with my defense as the court date has been set for July. The POC state as follows.

 

"The claimant's claim is for the balance outstanding under a credit card agreement dated xx/xx/2003 and numbered xxxxxxxxxxxxxxxx regulated by the Consumer Credit Act 1974. The defendant has failed to make payment of the arrears of instalments as required by the Statutary Default Notice served by the claimant dated xx/xx 2009.

 

AND the claimant claims

 

1) £xxxx.xx

2) Interest pursuant to Section 69 of the County Court Act 1984 at a rate of 8.0% per annum from the date hereof at a daily rate of £1 to the date of judgement or sooner payment.

 

No document ere attached to the POC, only blank forms have been sent to me and they have admitted that the originals do not exist. The judge has ordered that 14 days before the hearing all documents must be sent to all parties and the " "originals must be produced in court.""

Where do I go from here?

 

Morning TWW

 

Having had chance to do a quick scan through your thread I picked up on the above.Says it all really have you retained this order?

 

Regards

 

Andy

[AndyOrch]

Post it up:-)

[AndyOrch]

I lost interest after from point 4 on wards TWW but the opening is very well wrote. Perhaps the remainder should be reserved for later

argument or skeleton.Irrespective of how we view most DJs they dont like being patronised or told case law.I think you only need an intro

as you have and then a little expansion as to why reconstituted are not acceptable as enforcement.Reiterate the above i have posted your own DJ words

Originals must be produced in Court.

 

Regards

 

Andy

[AndyOrch]

The secret to a good defence- Attention- Validity- Merit and getting your point across with in the first paragraph:-)

 

Most Caggers dont realise that a defence is not viewed by a DJ until AQ and AQ is not actioned until the Claimant has responded to said defence.

So in essence the point of the defence is to refute the Claimants plea, cast doubt and uncertainty and basically make them run for the hills.

You are hoping to achieve by way of a good defence that they dont respond within the alloted time and that the claim is stayed.This gives you breathing space and allows for you next course of action, apply pressure and use mind games to convince them their effort is really not worth the cause.

Keep it simple keep it fact get the DJ on your side.

 

 

Andy

[AndyOrch]

Getting there TWW (remove your Account Number point 2)

 

Andy

[AndyOrch]

Get to know the cases Waksman http://www.consumeractiongroup.co.uk/forum/showthread.php?272988-Waksman-ruling-and-how-to-defend-against-it and Carey

inside out and backwards:-)

[AndyOrch]

Leave it has is, for now and we can tinker until Thursday.

 

I assume you have never received Notice of Arrears for this debt also

look up Notice of Arrears CCA2006 amendments, another reason as to why they cant enforce.

 

Andy

Edited July 12, 2011 by Andyorch
addition

[AndyOrch]

As far as that WS is concerned it could have been the cleaner that drafted it:roll:

[AndyOrch]

Excellent Doc

 

Regards

 

Andy

[AndyOrch]

Hi TWW

 

Simply amend point 19 to state the request with the date and when and with what they complied with.

With regards to your amended defence submission you have to follow the order and date by.What does it state in the order?

 

Andy

[AndyOrch]

Right i understand, you initially stated in your holding defence that you would submit a particularised defence should the claimant

clarify their claim.So its basically a skeleton you are preparing along with Docman not an amended defence.Why do you state it has to be submitted by tomorrow?

Do you mean it has to be ready for your hearing?

[AndyOrch]

Hi TWW

 

I've knocked together some words based on what you have posted but can I correct some of the terminology used in your posts.

 

HSBC have NOT submitted an Amended Particulars of Claim (a) because they would need the permission of the court and b) you would have required to submit an Amended Defence, usually within 14 days. I say this because you make the suggestion that there have been Amended POCs, you could end up annoying the judge.

 

Instead, HSBC have submitted a witness statement that amplifies their original POCs and produces (exhibits) the documents they rely on. You could submit your own witness statement but as you will be attending court in person and are not producing any documents of your own, you can make your witness statement verbally. When the judge asks for your side of the argument, tell him what occurred.

 

Doc

 

I should read more slowly:-D

[AndyOrch]

Yes I thought the other side had to see it before hand. Must admit I find all this very confusing. I'll stick to computer systems in future.

 

Dont assume anything TWW only do what the Court Orders.

 

Andy

[AndyOrch]

Preparation is key, have to hand your skeleton notes your argument the bases on which your argument relies upon.

They will just rely on the DJ accepting the reconstituted and balance of probabilities.( and of course that dynamic WS)

If you feel its not going your way on the above point then raise the matter I refer to re CCA 2006 Notice of Arrears (post 104) as to why they still cannot enforce

any agreement.That cant be based on the balance of probabilities, either they have complied or not, black or white.

 

Worse possible scenario, he is having none of it and wants you out of his court room, prepare an I&E but i hope it wouldn't come to that.

 

Best of luck with the hearing and update when you can.

 

Regards

 

Andy