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old CCA case stayed- No Default Notice Served - HSBC gold card - back incourt help

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Hi everyone, this is my first post so please be gentle :smile:

 

I am in the process of filing an amended defence regarding unenforceable CCA 1974 agreement and require advice on the matter.

 

The story so far is that I originally filed an embarrassed defence due to DG Solicitors not supplying documents that related to HSBC claim for £12,000 on a Gold Card. HSBC did not take any further action and the case was stayed. They then recently applied for the stay to be lifted and judgement entered for them as, in their opinion, I had no chance of winning.

 

I appeared at court yesterday and contested their application on the grounds that I have not received a default notice and requested it be struck out.

The district judge on reading my witness statement denied summary judgement and re allocated the case to fast track. I now have to file another defence to their claim and was wondering on what basis I should defend post Carey v HSBC. I was originally going to claim that the CCA does not contain the prescribed terms but am now unsure (there is no mention of APR on CCA).

 

DG Solicitors have admitted that they cannot supply a copy of the default notice as they do not keep records of electronic documents.

 

Their agent at court seems to think that she can rely on a reconstituted copy (she showed me a blank template)

 

Advice greatly appreciated :smile:

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renamed and moved to legals section.

 

i would certainly not rely on any paperwork 'errors'

if a clear financial link exists.

 

tell us the history please

 

dx


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Have they provided you with a copy of their Witness statement? If so, then you need to go through each point carefully in order to defend against it.

 

The annoying thing with their "reconstructed" Default notices is that they are now likely to have reconstructed it "correctly".

 

You cannot assume that a reconstruction would be representative of one they WOULD have sent had they actually done it.

 

HSBC had a reputation for mucking up the DNs by not allowing the correct amount of time to remedy the breach. Which should be a full 14 days allowing sufficient time for posting .. 2 working days for 1st class and 4 working days for all 2nd/UK mail services.

 

HSBC generally used 2nd class mail for the Default Notices.

 

The DNs are statutory notices and must be produced in the manner set down by parliament.

 

If you never received the original, and they dont have a copy of the original, how can anyone be absolutely certain that..

 

They only asked for the arrears outstanding at the time of issue

That it was issued correctly as laid down by parliament

That it allowed you the full 14 days to remedy the breach

That they stated correctly, the breach you had committed and if you were capable of remedying it.

 

Hopefully others will pop in and help out.

 

When is your amended defence due ?


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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

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Thanks for the quick replies ... amended defence has to be filed by 5th October, claimant file reply by 19th October, parties to file disclosure by 2nd November,requests for copies of disclosure by 9th November,defendant witness statement by 7th December, questionaire to be filed by 11th January and trial between 18th January and 8th February.

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The history of my relationship with HSBC is a long and unpleasant one.

 

Around about 6 years ago HSBC cancelled my business account along with my current account, without any notification, leaving me stranded in mid Wales with a cancelled debit card and empty fuel tank.

 

My business partner (at that time) then started legal proceedings against HSBC for almost £17,000 in bank charges and penalties, but unfortunately took the personal account route instead of the business relationship route and we all know what happened there. I have since re launched the dispute with HSBC and contacted the ombudsman but to no avail.

 

I have been successful in reclaiming the ppi on a personal loan and also a business loan from HSBC albeit after a lengthy fight.

 

HSBC have continued legal action against me for a credit card debt that remains in dispute, and have admitted that they do not have a copy of the default notice (they believe that they can re construct one). Also, the CCA does not contain the required prescribed terms, although since Carey v HSBC I'm not really sure where I am regarding this.

 

The CCA case was stayed after my original defence because HSBC did not respond in time. They then applied to lift the stay, strike out my defence, and enter judgement against me on the grounds that I had not responded to 4 letters and as such all attempts on their behalf to recoup the debt had failed.

 

I attended court and explained that I had responded to the letters and produced the proof of posting receipts, and also the signed acceptance receipts from DG solicitors.

 

The judge did not have a copy of my witness statement at the hearing (even though I had delivered it by hand and had it stamped as received) he had however read the claimants statement beforehand and admitted that he had researched the matter and it seemed to him that the 'Waksman' ruling was the most relevant at the moment.

 

The claimants application for summary judgement was denied but the judge has lifted the stay and allocated the case to fast track - this means that I have to file an amended defence by early October.

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Bevvyboy

 

Your amended defence will have to go on the grounds that HSBC have not produced a signed copy of credit agreement which contains the terms required by the Act. The case of Carey v HSBC only applies where a cardholder (debtor) requests a copy of the agreement from the lender under the conditions laid out in S78 of the Act. It does NOT apply where a lender is taking legal action to recover a debt. The lender still have to prove there was an agreement [the Proof Propose as outlined by HHJ Waksman in the Carey case].

 

If the agreement was entered into prior to 6 April 2007 S127(3) of the Act clearly states the court cannot enforce a credit agreement unless a document containing the prescribed terms was signed. If there is no signed agreement pre April 2007, then HSBC cannot win.

 

That said, our District Judges are not expert in all areas of the law (Deputy Disrict Judges can be even worse.) Where they are not familiar with the law, judges tend to follow the 'advice' from the barristers enganged by creditors. Not surprisingly, these barristers tend to lead judges to believe that the Carey judgment allows a 'reconstruction' in place of a signed agreement.

 

Where HSBC required to file an Amended Particulars of Claim? If so, can you post up what they are now claiming. If not, can you type out the words from the original Particulars of Claim?

 

Doc

  • Haha 1

Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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Thank you for your reply Docman, I do have a copy of the signed agreement, but not a default notice.

 

HSBC have admitted that they cannot supply a copy of the default notice that they allegedly sent me and will rely on a reconstituted copy at trial.

 

My defence deadline has now been changed to the 19th October.

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I am rather concerned that they will be allowed to rely on a recon of the Default Notice. As they do not have the original then their reconstruction has to be viewed with suspicion.

 

Do you have any other way of working out if they did send an original.. either by way of Credit reference files, communication logs from HSBC ?

 

When are they supposed to have sent it to you in the first place.

 

Did it.. conform to the way in which it should be produced, was there sufficient time given for it to be remedied, did they ask for arrears only or the full balance, did they state the correct clause you had breached ?

 

These are all questions that require answering


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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

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CitizenB

 

They claim that they sent a default notice on such and such a date but they state that they do not keep records of electronic documents and will rely on a witness statement and a reconstituted template of the default at court (quoting Carey v HSBC).

 

I have no record of receiving such default notice but I have a letter from HSBC stating that they do not have a copy of the notice that they claim was sent.

 

I have just registered with a CRA to be able to view my credit file but have to wait to receive a pin by post before I can access it .. why is this relevant ?

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Have HSBC/DG's admitted they cannot furnish a copy of the signed credit agreement? Have they tried to 'recontruct' the Agreement?

 

Can you post up a copy of the agreement you hold after removing your personal details?


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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I see CB's comments about the DN and agree but where have HSBC come up with using Carey to recontruct the DN? Are you getting confused between the Default Notice and the credit agreement?


Arrow Global/MBNA - Discontinued and paid costs

HFO/Morgan Stanley (Barclays) - Discontinued and paid costs

HSBC - Discontinued and paid costs

Nationwide - Ran for cover of stay pending OFT case 3 yrs ago

RBS/Mint - Nothing for 4 yrs after S78 request

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I see CB's comments about the DN and agree but where have HSBC come up with using Carey to recontruct the DN? Are you getting confused between the Default Notice and the credit agreement?

 

 

I think a lot of them are using that Judgment for a lot of "recons".. probably in the hope that we wont notice :lol:


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Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy -

HERE

2: Take back control of your finances -

Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors?

Read Here

4: Staying Calm About Debt

Read Here

5: Forum rules - These have been updated -

Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

 

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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What do you think CitizenB....Time for a part 18 request?

 

IN THE XXXXXXXXX county courtlink3.gif

CLAIM NO:

BETWEEN:

XXXXXXXXXX

Claimant

and

XXXXXXXXXXX

Defendant

PART 18 REQUEST FOR FURTHER INFORMATION

To: XXXXXXXXXX (claimant)

 

Please answer the following questions:

 

1. Was a Default Notice issued in respect of this account and if so:

a) on what date?

b) what clause of the agreement had been breached?

c) what amount of arrears was required to remedy the breach?

d) what was the date for remedy?

e) what date was issuance of the Default Notice recorded in the communications log?

 

2. Was a Termination Notice issued, and if so on what date?

 

3. Please confirm whether the balance claimed includes penalty charges eg late payment fees, over limit fees, failed direct debitlink3.gif fees etc, and if so, to what total amount?

 

 

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

 

 

See if others agree, and if so send by special delivery to the solicitors.

I've left a question in about charges - delete number 3 if not applicable.

If you have any other burning questions to include, run them by the forum first before adding them :wink:

 

 

For your reference, more about this process here

Elsa x

Edited by Undercover-Elsa

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All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

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Sorry, missed this UE.. yes, I think that is the route to go now :) BTW, I would use your Part 18 as well :)


Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy -

HERE

2: Take back control of your finances -

Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors?

Read Here

4: Staying Calm About Debt

Read Here

5: Forum rules - These have been updated -

Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

 

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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Any news yet Bevvyboy?

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