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

[TWW]

Hi Andy.

 

The Aq was sent back more than 21 days before the hearing and it did give directions for both parties to supply all docs 14 days before the hearing although they were 7 days late (waiting for mine) All I can assume is that their POC was changed to counter my not enough info to defend. As to the last expert witness point, I have no idea but does that stop them from the sworen statement that it would have singed or the card could not be issued appearing on the day.

 

I understand you points but they did assure me Friday is the full hearing and I don't want to walk in there with my pants down.

[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?

[TWW]

Yes I was informed of this date a month ago and yes I think it's the letter I did not copy.

[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

[TWW]

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?

[BRIGADIER2JCS]

Subbing

[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

[BRIGADIER2JCS]

It can never be guaranteed which judge will hear

a case often until the day of the hearing, but

it is unlikely to affect you.

[Docman]

It can never be guaranteed which judge will hear

a case often until the day of the hearing, but

it is unlikely to affect you.

 

The Court Service do release the name of the judge hearing a case two or three days in advance. Unfortunately for LiPs, it is on a special website for lawyers acting in matters. It means firms like DGs can find out if they will face a tough full time District Judge or a part time Deputy and thus determine if they can run a load of s@@t as their case or not.

[BRIGADIER2JCS]

So true:madgrin:

[TWW]

Hi Andy and Docman. I've sent you a pm to have a look at please.

[TWW]

Going through my records and checking the default notice (which I kept) it was posted on April 22 to be remedied by the 6th May. Allowing for a minimum of 2 days postage (get mine at 14:00) I can't see 14 full days anywhere. Maybe they can count better than I.

[the_shadow]

They'll counter that with Brandon vs Amex, which is currently being appealed and due for a hearing very soon I believe. This case states that so long as you were not actually prejudiced in that 14 days period it matters not that you werent allowed the full 14 days....

 

S.

[TWW]

In their new and better POC point 2 has changed from the original under a credit card agreement dated 6/10/03 to the claim is in respect of a credit card number xxxxxxxxxx opened on or around 6/10/03. Two things suddenly jumped out at me

1) In the new poc they say opened without mentioning any agreement signed or otherwise!

2) Computers don’t do “on or around”.

I then thought. I’ve been suckered into playing their game. All of my post A level education and most of my working life has been in IT, Specifically accounting and business systems. They even have that on their account document (I have deleted that bit from my scan) that my business is it systems. Let’s have a look at this from a systems point of view.

1) I only attended one meeting where I signed anything at the bank so all of the documents must have been in one file.

2) They have taken the trouble to scan and keep both a copy of my driving licence (ID) and a BT bill (proof of address). Why did they not scan the signed agreement which the operator must have had in the same hand? Was there in place a bank procedure which stated that peripheral docs must be scanned but essential core ones should be made into a paper aeroplane and thrown out the window?

3) So if the document was there it MUST have been scanned which leads us to what is it now?

4) With regards to the “on or around”, computers are very quick morons. They can on accept 0 or 1, there or not, on or off.

5) That being the case, when the details were entered into the system they MUST have had to enter the date of the contract together with all the other details. This would almost certainly be linked directly to the scanned copy of the documents.

6) The scanned copies they do produce relate to the current account I opened at that time (they have written that on them), not the CCA. Name and address from any source etc.

Now all the above waffle brings me to this: How can the original written agreement not be in existence? We can see from point 2 that they must have scanned it unless it was bank policy not to ( why?). If it has been lost, stolen deleted by the Fairies then the Audit trail systems that ALL computer systems have would show them who did it, when, which terminal they were at, what level of security access they would have needed (deleting records on a secure system is VERY hard to do). Even when deleted, it would just have been marked for deletion but still there. Full deletion is a separate step which require IT function input. Since all responsible companies regularly back up their systems and never delete audit trails (against the law), they should always be able to recreate the original object if they wanted to.

So all of this leads me to think that either the signed CCA never existed or they have deliberately removed it from their systems. The audit trails that they have to have would show them all of these details unless it has been removed from the audit trails themselves. This is not only very illegal but even with my not inconsiderable IT skills, WAY beyond my abilities

Thoughts please

[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

[BRIGADIER2JCS]

Sensible judge,the IT baffles me but your points could be very useful

in other cases.

brig.

[TWW]

Hi all. I've have done the first draft of my amended defnce. Any offers of an experinced eye to cast over it?

[AndyOrch]

Post it up:-)

[TWW]

Between

HSBC Bank Plc- Claimant

 

and

 

 

xxxxxxxxxxxxx

 

 

 

Defence

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

 

This defence is made following the receipt of amended Particulars of Claim received on Friday July 17th and is to replace the original defence submitted on August 4th 2010 in its entirety

 

2. Alleged Credit Agreement

On the HSBC bank wrote to me ending the alleged credit agreement regarding a credit card numbered xxxxxxxxxxxxxxxxxx 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, 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. After giving full consideration to the claimants brief particulars of claim, without production of the original 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

 

4. 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.

5. 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

 

 

6. 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

 

7. 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)

 

8. 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

 

9. 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

 

10. Notwithstanding point 9, 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

 

11. 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).

12. 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.

 

13. 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....

14.........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.

 

15. 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.

 

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

17. 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

 

18. 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

 

19. The claimant states in their POC that the balance is due under a credit card agreement dated 6/102003 but also have admitted on numerous occasions that that document no longer exists.

20. On Friday 3 10 2003 at 09:15 I attended a meeting at the HSBC bank 33 Park Row Leeds LS1 1LD with a Mr Mark Loker and his assistant a young lady called Nimesh. At this meeting I opened a current account to sit alongside my existing HSBC Business accounts, signing the relevant forms and supplying the evidence of identification and address (numbered 43 and 44 in the claimant’s NCP1 pack. After this had been completed it was suggested that I might like one of their credit cards too. I agreed, but no further paperwork was completed and I did not sign any consumer credit agreement, Mr Loker’s comment was that “they would sort it out for me”.

21. This was the only meeting I attended at this branch, moving very shortly afterwards to Devon. Since that was the case, all documents used at that meeting MUST have formed a single file.

22. Referring to items 43 and 44 in the claimant’s NCP1 pack, these have been reproduced from a scanned image of the items in that file.

23. Since the bank obviously was aware of its responsibilities under the various acts ( numbered 32 – 36) below a scanned image was taken of my driving licence and a BT telephone bill. I must confess to being at a total loss to understand why it was deemed necessary to take and retain copies of these peripheral documents but not the alleged signed agreement which form the absolute core of the relationship.

24. Since all of the document would have been in a single file (and therefore in the hands of a single person) why was this vital document deemed not to be required for scanning.

25. We can only surmise from this that the claimant either did not scan the agreement because it either did not exist or had in place a policy to exclude signed agreements.

26. The claimant also states that the document must have been entered into (signed) on or around 6 10 2003. Since I know that the meeting took place on the 3 10 2003, any signed agreement must bear that date. This being the case when the details of the alleged agreement were entered into any computer system, that date would have to be entered if the agreement existed. This would indicate that the statement on or around would suggest the details were never entered.

27. In all modern computer systems (post 2000) any item of data that had a scanned image would have been linked to that image. Since this is obviously not the case with this alleged agreement it would again suggest its non existence.

28. Since the claimant, like any financial institution is governed by very strict data audit regulations, it would be impossible for any records to be amended, or deleted without a full audit trail being available showing what was done, by whom, when and what level of security that person had etc. This being the case it would be a relatively simple matter for the claimant to (by reference to system back up) to restore any document that had been removed for any reason.

29. Since the claimant states it no longer has the alleged signed agreement it can only mean one of 3 things:-

1) The agreement was never entered into the system as it did not exit.

2) The agreement was deleted and the claimant has not reinstated it.

3) The agreement exits but for reasons known only to the claimant, they do not wish to disclose it.

30. I also note with reference to the claimant’s item 41 in their NCP1 pack that the two documents 43 and 44 were scanned 11 weeks later on 31 12 2003 and the authorisation was signed by Mr Loker.

31. I also note from that document that the Photocopy of Application Print attached box is not ticked suggesting that there was no such document available at the time. The date account opened is also blank which would confirm the claimant’s uncertainty about when this alleged agreement was in fact executed. Also to be noted is the un ticked box referring to existing business customer? This is blank even though I had business accounts at that branch opened 6 8 2003.

32. 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 hearing.

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.

 

33. 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).

 

34. 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.

 

35. 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)."

 

 

36. 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.

 

37. 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

38 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;

(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. Indeed on the various occasions when HSBC sent notification of agreement NO copies or reconstructions were ever supplied. We put the claimant to strict proof that any such copies were ever supplied with the variations.

(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.

The Defendants direct response to each point of the new particulars of claim

 

39. In respect of point 1, we wish to note that the witness statement is clearly dated 6 July 2011, indicating that the claimant waited until they had received my documents sent on 30 June 2011 (and signed for by Mr/Ms Whittle 08:06 01/07/11) thus going strictly against this courts direction as to timescales. This tactic has lead directly to the late entry of this amended defence.

40. In respect of point 2 the “Credit Card”, we note that the new POC varies from the original in that it now states the account was opened on or around 6 October 2003 and makes no mention of any agreement. Since I strongly insist that I signed no Consumer Credit Agreement on that date I put the claimant to strict proof that any such signed agreement existed.

 

41. In response to point 3, the claimant states that reconstituted credit card agreement has been attached to their claim. Since the claimant admits in writing that it has no copy of the original, how can this be a true copy of a document which as in the point above I contest has ever existed? In addition this court stated quite clearly to both parties that all documents on which we would rely be sent to each other and the court and the originals be available in court. Since the supplied reconstituted documents, which were supplied 7 days after the court’s deadline for delivery, can in no way be considered as “originals” we fail to see how this can in any way comply with either the court direction, or CPR 16 7.3.

 

42. In respect to point 4 the claimant submits a series of statements relating to a credit card account, however without the agreement supporting such statements I am unable to make any further comment with regards to the statements and I’m unsure of the relevance of such statements accordingly I request the claimant confirms what relevance it seeks to place upon these documents, given that no agreement has been supplied to support them.

 

43. In respect of point 5, we fail to see how a default can be placed against an agreement the claimant admits they do not have, therefore we are unable to see which clauses have been defaulted against. Also although the statutory notice was not sent in time to comply with the 14 day rule. However I make no further comment on this.

44. In respect of point 6 and 7, Agreed.

45. In respect of points 8 the claimant has now provided more detail to the POC, resulting in this amended defence.

 

46. In response to point 9 whilst we admit that may have been the case, now that this has come to a hearing, CPR does very much apply and I expect the claimant to comply with them fully.

47. In response to point 10, agreed.

48. In response to point 11 I note that this in no way forms a complete record of the correspondence between the two parties and I rely upon the documents I have submitted.

49. In response to point 12 the non existence of or proof of existence of any signed consumer credit agreement provides a very strong prospect of success in this case and in no way should judgement be entered without the claimant proving that such a contract ever in fact existed.

 

 

Conclusion

 

50. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimant’s case pursuant to part 3.4

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

51. The claimant openly admits that it cannot produce the agreement and therefore the defendant considers that there is no reasonable prospect of success for the claimants case given the matters pleaded in this defence.

 

52. If the court considers it in appropriate to use its case management powers , it is requested that the court order the claimant to produce the original documents before the court as the documents supplied do not comply with the Consumer Credit Act or Regulations made under the act, this is confirmed by case law as well. Without production of the requested documents the case cannot be dealt with justly and fairly, and will severely prejudice my rights to a fair trial especially given the extensive reference to statutes, regulations, case law and other materials which support matters pleaded by me in this defence

 

53. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

54. This claim should never have been brought before the court as the claimant would most certainly be aware of the case law quoted and that such action would have little prospect of success without the credit agreement or a copy of it, therefore I invite the claimant to give serious consideration to withdrawing this claim. Should the claimant fail to withdraw their claim I shall request the court consider costs incurred by the defendant in defending this claim and shall forward a schedule of costs for the court to give consideration to should judgment be given in my favour

 

55. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006 to avoid the provisions of section 127(3) of the 1974 Act, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect and since the agreement is alleged to have commenced in 6 10 2003 the Consumer Credit Act 1974 is the relevant act in this case.

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

[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

[TWW]

Thanks Andy. I agree. When at uni I wrote huge essays and then cut them right down as I'll do with this. I wanted get everything in one place so I had it all to hand, then just enter the good bits. I'll let you know what the next drfat looks like.

[BRIGADIER2JCS]

The judges dislike this type of defence, as it confuses the whole reason for the litigation which is to determine if the debtor

has borrowed the money and if it is recoverable in law.

[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

[TWW]

Version 2

 

Between

HSBC Bank Plc- Claimant

 

and

 

 

xxxxxxxxxxxx

 

 

 

Defence

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

 

This defence is made following the receipt of amended Particulars of Claim received on Friday July 17th and is to replace the original defence submitted on August 4th 2010 in its entirety

 

2. Alleged Credit Agreement

On the HSBC bank wrote to me ending the alleged credit agreement regarding a credit card numbered xxxxxxxxxxx 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, 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.

4. On Friday 3 10 2003 at 09:15 I attended a meeting at the HSBC bank 33 Park Row Leeds LS1 1LD with a Mr Mark Loker and his assistant a young lady called Nimesh. At this meeting I opened a current account to sit alongside my existing HSBC Business accounts, signing the relevant forms and supplying the evidence of identification and address for that account (numbered 43 and 44 in the claimant’s NCP1 pack). After this had been completed it was suggested that I might like one of their credit cards too. I agreed, but no further paperwork was completed and I did not sign any consumer credit agreement, Mr Loker’s comment was that “they would sort it out for me”.

 

3. After giving full consideration to the claimants brief particulars of claim, without production of the original written agreement, which the claimant cites 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

4. 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.

 

5. The claimant would be fully aware of the Civil Procedure Regulations 16 7.3 and

 

This court has instructed both parties to bring “Original(s)” to this hearing.

Reproduced documents

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

(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. On the various occasions when HSBC sent notification of agreement NO copies or reconstructions were ever supplied.

 

The Defendants direct response to each point of the new particulars of claim are dealt with in the witness statement

 

Conclusion

7. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimant’s case pursuant to part 3.4

8. The claimant openly admits that it cannot produce the agreement and therefore the defendant considers that there is no reasonable prospect of success for the claimants case given the matters pleaded in this defence and witness statement.

 

9. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

Edited July 12, 2011 by TWW

[AndyOrch]

Getting there TWW (remove your Account Number point 2)

 

Andy