hsbc/DG sols going for a charging order uncles house

[Docman]

Well it would have been nice of DG's to attach a copy of their Amended POCs but it doesn't matter that much.

 

DG's missed the deadline of 28 days to respond to the defence. Northampton CC may have automatically stayed the claim, in which case DG's have to apply (a) to lift the stay and (B) amend their POCs. I expect that Northampton CC will transfer the case to your local county court and you will receive a copy of DG's application. Until you get a copy of that application, as VJ says above, it is difficult on what to advise next.

 

But whatever happens, it will take a few days, so take some time to chill out. If you haven't heard anything by the end of August, I would telephone your local county court to see if they have received the transfer from Northampton and ask what has happened.

[masjntt]

Oki doki will do, thanks again for your help x

[masjntt]

HELLLLLLLLLLLLLLP !! Lol received following from courts and need to respond, can someone help pls x

Thanks x Pls note this wasnt received until Fri 27th Aug, although dated 20 Aug!!

 

Page 1 - Notice of transfer of proceedings dated 20 August 2010

Note to all parties - As a result of an order made on 12th August 2010 the case has been transferred.

 

Page 2 General Directions Order - 20 AUGUST 2010

Before Deputy District Judge XXX sittig at Northamptom CCBC County Court 4th Floor St Katherines House 21-27 St Katherine Street Northampton NN1 2LH

 

The court will deal with the application to lift the stay without hearing under CPR 23.8©

It is ordered that:

1) The Application to lift the stay and transfer the claim be granted

2) The claim be transferred to the defendants local county court

3) Permission to claimant to file and serve an amended Particulars of claim by 3rd September 2010

4) Defendant to file and serve amended defence by 17 September 2010

 

Note: This order has been made without a hearing under the courts case management powers contained in the Civil Procedure rules Part 3. You may within 7 days of the service of this order apply tothe court to set aside or to cary the order under part 23 Rule 10. Tou must file with the court and serve on the other parties an application that sets out your reasons for objection. A fee is payable upon the filing of the application. When your objection is received the matter will be listed for hearing unless you ask the court to vary the order without a hearing.

 

Page 3 Application Notice

Dated 29 July 2010

DG Solicitors - Claimants Solicitor

 

Requesting that the court

1- lift stay and transfer matter to birmingham county court

2- permission for claimant to file and serve fully particularised particulars of claim

3- defendant to file fully particularised defence within 28 days of service

 

States that a draft of order they are applying for is attached

That they want this application dealt with without a hearing

Level of Judge required was district judge

Application to be served to all parties

 

Advices that DG will be relying on following information in support of their application:

The defence to this claim is made on the premise that the Particulars of Claim are inter alia, vague and fail to disclose

any cause of action.

The defendant seeks clairification of the claim and ntends ti file a fully particularised defence.

Statement of truth section signed & dated

THE END

[Docman]

Don't panic, all this means is that Dumb Goofers have woken up and sent an application to continue (lift the stay) and move the case to your local county court, which Northampton would have done automatically.

 

DG's should have provided the court with an explanation for their lateness but as usual, certain parts of the court system just roll over like a lapdog and allow the banks to tickle their tummy once the bank pays the approporaite fee. If you tried being late in a submission, you would be met with a 'NO' and probably a default judgement. That's just life, so let's get on with it.

 

Dumb Goofers have until 3 September to file an Amended Particulars of Claim. That meas they will proabably fax a copy to the Birmingham County Court around 4.30 on the Friday afternoon and send you a copy by post. Your letter won't get picked up by HSBC's internal mail system until Monday 6 September (although the letter will be dated 3 September) and then will take a couple of days for their private carrier to deliver it to you. So if you haven't had a copy by Thusday 9 September, you will need to contact DG's and complain loudly - as well as a letter to the court.

 

Assuming you do get the Amended Particulars of Claim that week, you will have a week or so to draft an Amended Defence. When you do get something from DG's post up the Amended POCs and ask for further advice on what to put in your amended defence.

[stikky62]

Quick question,,,Why doesn't masjntt's uncle have until October 1st to file a defence?

DG's application says '3- defendant to file fully particularised defence within 28 days of service'. Does'nt that mean service of amended Particulars of claim?

[Docman]

You are corect. That is what DG's asked for but what the court ordered was filing an amended defence within 28 days from the date of the court's order. There's one rule for the DCAs/banks/solicitors and quite another one for us poor old defendants. Just got to live with it I'm afarid.

[masjntt]

Once again, thank you for your advice & help x Ok will wait and see what DGs next move is & will post again then, really appreciate your time x

[masjntt]

** UPDATED - Particulars of claim received from DG & Sealed by Northampton County Court - Details are as follows - we have to respond before 17 sept ** - Helppppppp x Thanks !!

 

Particulars of Claim

1 The claimants claim is in relation to the indebtedness of the defendant being a credit card in the sum of £39xx.xx.

2 The claimant is a banker carrying on business at various branches and in particular a branch at 22 xxxxxxxxxxxxx Birmingham.

3 At all material times the defendant was a customer of the claimant at the said branch

4 By an agreement in writing {the credit card agreement} dated on or around 1st July 1972 and made between the parties, the claimant provided the defendant with a credit card numbered xxxx xxx xxxx xxxx, regulated by the consumer credit act 1974.

5 Given the account was opened on 1st July 1972, regulation 9 of the consumer credit {cancellation notices and copies of documents} regulations 1983 provides that the claimant is not obliged to provide a copy of the agreement.

6 Attached herto , and puresuant to Regulation 9, is a copy of the earliest available terms and conditions applicable, a copy of the latest variation notice issued in respect of the credit card , current terms and conditions and a blank copy of the agreement form.

7 Attached hereto are copy statements for credit card no xxxx xxxx xxxx xxxx for the period 2 august 2004 - 1 july 2010.

8 On 18 May 2009 the claimant served upon defendant a botice pursuant to section 87[1} of consumer credit act 1974 requiring defendant to remedy the breach under the credit card agreement by making payment of the then arrears of £179.52. The defendant failed to make repayment of the sum due.

9 By letter dated 30 June 2009 the claimant formally demanded repayment of the sums due from the defendant. The defendant failed and continues to fail to pay the sums demanded.

10 A letter before action was set by the claimants solicitors DG solicitors to the defendnat on 15 jan 2010

11 At the date hereof the sum outstanding is as follows:

Total £39xx.xx

less payments received £0.00

Claim £39xx.xx

 

AND THE CLAIMANT CLAIMS:-

A - The said sum of £39xx.xx and

B- Interest pursuant to section 69 of the county court act 1984 at the rate of 8% per annum from the date herof until judgement at a daily rate of £0.77.

 

STATEMENT OF TRUTH

The claimant believes that the facts stated in these particulars of claim are true. I am duly authorised by the claimant to sgn this statement

 

Signed & Dated 29 July 2010

 

Enclosed

Copy of Original Terms and conditions - Midland Bank Dated August 1992

Copy of HSBC "Important Changes to your credit card agreement" dated 1st October 2008

Copy of HSBC Bank Credit Card Agreement Terms

Copy of blank agreement form used by midland bank - however no logo /headed paper - looks like a drafted word doc

Copies of statments from Aug 04- July 2010 - however missings ten statements mainly from 2005 however probably not relevant.

---------------------------------------------------------------------------------

HELP !! pls x

 

I have copies of all of our correspondence to and from HSBC, other DCAs and DG. In summary we requested CCA, then sent several CCA not complied letters, requested CCA under CPR regs and requested SAR from HSBC.

Most recent letters to & from DG are on this thread.

 

Thank you to anyone who can help as I am now clueless x

[masjntt]

Just for reference here are details of the blank agreement form, it is a basic as follows, no small print, logos etc - just a plain piece of paper with typing on it.

 

Midland ______________ {type of card account}

CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974

 

Midland Bank Plc Full Name of Customer ________

365 Chartwell Square Full Address of Customer_________

Southend On Sea _________

_________

_________

 

I have read and agree to be bound by the Terms and Conditions attached {NOTHING ATTACHED}

 

YOUR RIGHT TO CANCEL

Once you have signed this agreement, you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by the Bank.

 

This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms.

 

Signature of Customer

Date of Signature

 

SIGNED ON AND BEHALF OF MIDLAND BANK PLC

................................................(signature)

................................................(name)

Bank Official

DATE OF SIGNATURE ......................................

 

 

90277-5 {Pad of 50} C8/94 Printed by Print Art & Design Services, Bolton

[masjntt]

Bump - Still need some help pls x

[masjntt]

bump

[masjntt]

BUMP - I really need some advice pls x

[Docman]

Well its an interesting development. I think there is something in the 1983 regulations about copy documents but I need to check it all out.

 

What is intereseting of course is that Dumb Goofers are saying that the credit agreement is regulated under the Consumer Credit Act 1974 but was entered into on 1 July 1972. I don't suppose they have thought about how the bank could get a customer to enter into a regulated credit agreement two years BEFORE the Act came into force.

 

They also seem to have forgotten that the Midland Bank (as HSBC used to be called) didn't issue its own credit card in 1972. Barclays launched the first UK credit card in 1967 with its Barclaycard. The other banks (Nat West, Midland, RBS & Lloyds) joined together in 1972 to Joint Credit Card Company Ltd which launched its 'Access Credit Card ('Your Flexible Friend'). So the one document your uncle didn't sign was this generic one pager and the terms & conditins were definately not these from the bank.

 

Looking at the earlier posts, I couldn't help thinking that your uncle must have been a young man in his first job when he got the card and I assume he has been with HSBC ever since. Perhaps you should write to the bank's MD and ask if this is how the bank treat their loyal custiomers of nearly 40 years.

[Docman]

Just to keep the thread freah overnight, I have produced Regulation 9 below

 

9 Copies of old agreements and security instruments where the agreement or security instrument has been lost etc

Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof.

 

 

It doesn't say this overrules the statute nor case law.

[masjntt]

thank you docman for looking at this for me - i really havent a clue where to go now, i guess as you initially said its whether there is anything in the 1983 regs re copy agreements etc, Obv i have to produce a defence if i can before 17 sept or may need to back down even if the regs are in DG favour??

 

My uncle did bank with midland as a young man but did change banks at a later date but always kept this card going until he reached financial difficulties. HSBC havent been very sympathetic all along so i doubt the MD would be any more so but guess you never know lol x

 

Suppose the immediate thing is do we need to back down or is there basis for a defence? Aarrgghh!! x

[Docman]

masjntt

 

Absolutely no need to back down. You have a great defence.

 

For starters, HSBC don't have any right to bring the claim. If the card is from 1972, the account was with the Joint Credit Card Co Ltd. This was a consortium owned by the banks except Barclays. Eventually, the company and its business was taken over by Mastercharge but if HSBC/midland are saying the bank owns the debt now, the debt must have been assigned to the bank by the Joint Credit Card Co ltd. I bet HSBC/midalnd can't produce a Notice of Assignment.

 

Second, the reference to the 1983 regs is a red herring. You may have seen threads referring to the case of Carey v HSBC. In that case, the judge outlined what had to be produced by the bank to satisfy a request under S78 for a copy agreement. He did not (cand could not) overrule the House of Lords cases and the Act itself that lays down that without a document that contains the 'prescribed terms' that is signed by both creditor and debtor the court cannot make an enforcement order if the agreement was entered into prior to April 2007 ( and has discretion not to enforce for agreements after April 2007). All the 1983 Regs are stating is that the bank may for early agreements 'reconstruct' the agreement where due to an accident or some other cause beyond his control, the creditor does not have in his possession the executed agreement.

So you put HSBC to strick proof of the accident or other cause after pointing out that under regulatory rules, the bank senior managment are required to have systems & controls in place to protect documents and client data.

[masjntt]

thanks for your help AGAIN doc man,

 

I need to submit this then in the form of our defence somehow, if you get a moment would you mind helpin me get this started so i word it correctly based on DGs defence and particulars of claim? x

[Docman]

How about this for a starter?

 

Amended Defence

 

1. Paragraph 1 of the Amended Particulars of Claim are noted but not admitted.

.

2. Paragraph 2 of the Amended Particulars of Claim are noted

 

3. Paragraph 3 of the Amended Particulars of Claim are noted but not admitted.

 

4. The statement in paragraph 4 of the Amended Particulars of Claim that the parties entered into a written agreement on or around 1 July 1972 is denied. The claimant did not carry on business as a bank in the UK in 1972 and did not issue credit cards at that time. The claimant is put to strict proof that a written agreement between the parties and dated on or around 1st July 1972 exists.

5. It is denied that Regulation 9 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 provides that the claimant is not obliged to provide a copy of the agreement. Regulation 9 states that

“9 Copies of old agreements and security instruments where the agreement or security instrument has been lost etc

Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or owner does not have in his possession the executed agreement or security instrument or any copy thereof.”

6. The claimant has not made any claims that it does not have the executed agreement in its possession due to some accident or some other cause beyond his control and thus the regulation does not apply.

REQUIREMENTS OF THE CONSUMER CREDIT ACT 1974

7. In relation to paragraphs 6 & 7 of the Amended Particulars of Claim whilst the claimant has produced various terms and conditions, a blank copy of an agreement form and copy statements, the requirements of the Consumer Credit Act 1974 are that an agreement regulated by the Act must be signed in the prescribed manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a state that all its terms are readily legible when presented for signature. [s61]

8. Under S61 of the Act, any agreement regulated by the Act must contain certain Prescribed Terms under regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the credit limit, the rate of interest; and repayment terms.

9. The Prescribed Terms must be within the agreement for it to be compliant with s60 (1) and not in a separate document [Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299].

10. Further, by S65 (1) if an agreement does not contain these terms in the prescribed manner and does not comply with s60 (1), it is improperly executed and only enforceable by court order.

11. By S127 (3) of the Act, the Court may not make an order under s65 (1) if s61 (1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under S60 (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. Further the House of Lords in the case Wilson v First County Trust Ltd [2003] All ER (D) 187 (Jul) held that “signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order”.

13. It is neither admitted nor denied that on 18 May 2009 the claimant served upon defendant with a default notice pursuant to section 87(1) of Consumer Credit Act 1974 but the claimant is put to strict proof that such a Default Notice was issued.

14. It is denied that the defendant is indebted to the claimant in any sum.

STATEMENT OF TRUTH

The claimant believes that the facts stated in this Amended Defence are true.

Signed

Dated xx September 2010

[masjntt]

Aww Docman - cant thank you enough for your help this is great thank you !!

Just a couple of quick queries if you dont mind pls x

 

I know I have to send this to the courts do i send a copy to DG too?? Also when signing the document does my uncle sign properly or just mark it incase DG try to use his signature ???

 

Also do I need to make reference regarding any letters I have sent to HSBC/ DG over the course of time eg cca /cpr / sar requests etc??

 

Finally should I make a point that the claimant is not entitled to make claim for interest pursuant to Section 69 of County court act 1984 at rate of 8% per annum from the date hereof until judgement at a

daily rate of £0.77 as they stated in their amended pocs ??

 

Something like this The claimant seeks to claim interest of £0.77 and also interest pursuant to Section 69 of the County Courts acts 1984. The defendant notes that the claimant is not entitled to do so and attention is drawn to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974

 

THANKYOU SOOOOOOOOOOOOOO MUCH !! xx

[Docman]

Hi

 

First, yes your uncle has to sign the Amended Defence that is sent to court but I don't think you have to sign the copy that is sent to DGs. i ahve signed my full (and normal) signature on court documents but then just 'sqiggled' on the copy I sent to DG. They haven't said anything becasue most firms of solicitors just sqiggle their firm's signature. You will need to complete a Certificate of Service [Form N 215 from the Courts Service website] and send it to court with the Amended Defence.

 

As to the interest rebuttal, by all measn include it. I didn't becasue you are contesting the whole claim.

[masjntt]

thank you again xx right will get onto this and download one of those forms - extremely grateful thank you xx

[Vana]

With a credit card agreement, the prescibed terms - credit limit, interest rate and repayment schedule - must be in the same section of the agreement as the signature box. If the do not send you a copy of this, they are in default of your CCA request and you can stop paying them and put the account into dispute.

 

Account in Dispute

 

 

Dear Sir/Madam

 

 

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

 

You have failed to comply with my request, and as such the account entered default on **DATE**.(12+2 days after you sent the CCA request)

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore;

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement.Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested, any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 21 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 21 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

 

Hi Pinky69,

 

I have just recieved documents from DG solicitors on behalf of HSBC.

There is nothing signed by me, there is a hand filled in credit card request form which has no signature or even date on it and is not in my hand writing.

They have enclosed :

Current Terms & Conditions

Notice of Variation of Terms

Historic Terms and Conditions

Blank Copy Agreement Form

Copy of Statements

 

For my next letter should I use the template that you advised the OP to use ?

[masjntt]

HELLLLLLLLLLLLP!! Lol !!

 

Update - we have received an allocations questionnaire from the court form N149 need some guidance as how to complete this.

 

It also refers to a fee of £35 do we have to pay this ?

Thanks xx

[vjohn82]

HELLLLLLLLLLLLP!! Lol !!

 

Update - we have received an allocations questionnaire from the court form N149 need some guidance as how to complete this.

 

It also refers to a fee of £35 do we have to pay this ?

Thanks xx

 

If you are the Defendant then no, you do not need to pay the fee.

 

What help do you specifically need on the AQ?

[masjntt]

thanks - just wondered if there are any general dos or donts for when completing these x