HSBC v Pipster - Court Tomorrow!! *****Discontinued*****

[DonkeyB]

late 2002. I know I didn't sign anything

 

In which case your WS should have said so. As it’s worded, it sounds like you might have.

[Pipster2797]

It makes you wonder what the point of an agreement is if they feel they don't need one to take you to court...

 

Good luck tomorrow:|

 

I totally agree, which is why I feel confident and the only way the can win is by using tactics like we never received the witness statement, even though I have proof they did and by using points of cases that are not relevant and misquoting them etc.

[DonkeyB]

Even for a recon agreement, Carey v HSBC states that they would have to show that the T&Cs were actually present at the point of signing. If there was no signing, you have a further argument you have barely put forward.

[Pipster2797]

Is your whole defence based on their not having a signed agreement? Were there any other disputes on the account, such as PPI or charges?

 

I've never got a default notice, which I mention in my witness statement. HSBC refer to it in letters saying it is included but it isn't

 

I originally requested the CCA to find out about charges and PPI, only recently(last month) found out no PPI. Charges are on there but again I haven't got all the statements yet and Ivbe mentioned in my witness statement that not all docs have been sent.

 

About the date. the date of the account opening is on the POC form.

[Pipster2797]

Even for a recon agreement, Carey v HSBC states that they would have to show that the T&Cs were actually present at the point of signing. If there was no signing, you have a further argument you have barely put forward.

 

They have withheld information all the way along. Today when I got a letter is the first time they have mentioned that the T&C are on a separate page or pages.

[Pipster2797]

Even for a recon agreement, Carey v HSBC states that they would have to show that the T&Cs were actually present at the point of signing. If there was no signing, you have a further argument you have barely put forward.

 

could you point me to where it says this in the Carey case so I can print it off and take with me to the court tomorrow.

[citizenB]

judgment-carey-v-hsbc.pdf

 

Be sure to note points: 95 - 105, 112, 116 and the conclusions

 

[Pipster2797]

Thanks CB, I just hope I can get my point across to the judge

[DonkeyB]

Just state the facts. Always the best policy. And have some stark questions ready for their rep.

[Pipster2797]

Thanks

 

Guess it will just come down to the lottery judge because I have the facts there and ready to state

[DonkeyB]

Sounds to me like they are not really ready for court. But do expect them to try and twist the truth.

 

Going for SJ on flimsy or non-existent evidence is, IMHO, an abuse of process; make sure you put in a schedule of your costs today (at £18 per hour).

 

One word of advice – IMO, it’s better not to deny you owe a debt. Just be clear that you believe the claimant has ignored your efforts to settle, has failed to address serious issues re statute, and leaves you in a position where you must defend yourself. This should find favour with the judge, and gets over the ambiguity in some of your WS. Especially deny that you ever signed any agreement, ever. That puts the ball in their court and in fairness, the judge should then dismiss their application and allow a full hearing to test their evidence.

 

Statutes are vitally important, as is case law, to back your arguments. Look up the recent Amex v Brandon judgment re not enforcing on the back of an invalid DN. They haven’t even shown a DN with or without the prescribed terms or enough time to remedy.

 

Also look at Phoenix v Kotecha. They cannot enforce while they remain in default of a valid CCA request.

 

Your problem is that you do not know what is in their WS, so be prepared to ask for the SJ application to be struck out on that point alone, ie. non-service of their WS.

 

For example, if they present recon agreements, make sure they comply strictly with the agreed tenets in Carey v HSBC, eg. T&Cs from when the account was opened and closed, with your exact name and addresses from those times. Technical points maybe, but they are using technicalities to try and enforce, so you are entitled to use those technicalities to defend.

 

Bear in mind also that they may eventually be able to overcome some of these obstacles.

[DonkeyB]

Also consider knocking up a simple skelly – what time is the hearing? I would encourage you to try and get a copy of their application and WS. You are severely prejudiced by not having one. You can prove they have your WS, but simply turning up after making no effort to chase them for theirs is just a little bit playground.

[DonkeyB]

Hello guests – my, lots of you!

[Pipster2797]

The truth is I haven't tried to avoid paying it. I requested the CCA purely on the basis that it may have PPI. I could of used that to lower the figure and agree a lower monthly payment. I never got the information until about a month ago.

 

I'll have a good read of the cases today.

 

Case for the SJ is to be heard tomorrow afternoon at 3pm and listed for 30 mins

 

With regards to their WS. I haven't got that and pretty sure they will fax it to the court tomorrow, not allowing me the time. I can I chase them for it now? Except from ringing them. I've got their application which states

 

The claimant instructed DG Solicitors to recover sums due in respect of the defendants indebtedness to the claimant relating to a credit card account numbered XXXXXXXXXXXXX. A letter before action was despatched to the defendant on 19tH Aug 2009. The Defendant failed to respond. The claim was issued on 26 April 2010 in the amount of £XXXX. The defendant lodged a somewhat defence to the claim stating that he had requested information under the CPR and in respect of the terms of the credit card agreement form. We wrote to the defendant on the 16th December 2010 providing copy documentation including a reconstituted credit card agreement form together with terms and conditions applicable at account opening. The letter addressed the points raised in the defendants defence and requested a response to the same by 7 January 2010 (2011). We received no response and wrote again to the defendant on 11 February 2011. The defendant failed to respond. The defendant has failed to respond to any communcation to him since evidence of the debt due to our client was provided to him. In view of the above, we would respectfully request the court do consider this application to strike out the defence on the basis that the same has no real prospects of success . We respectfully request that an order that: a) the stay be lifted b) the defence struck out c) Judgement to be entered.

[Pipster2797]

thats why I havent posted up before of guests

[DonkeyB]

Maybe that IS their WS! Did it say there would be a WS?

 

They have admitted only sending T&Cs at the time of opening the account. Have they? Are they the ones that would have been in force? Check for any dates. I think you said there is no reference to them – but while Carey said that an agreement in parts is a matter of substance, not form (or maybe the other way round), there still needs to be a clear link demonstrated between the docs. At least they admit that they are technically in default of a s78 – hence no enforcement allowed.

 

Your defence would be that you know for a fact you never signed anything, not even an application form (actually, how DID you get the card???).

 

The CCA request would not necessarily have indicated PPI, especially if you didn’t sign anything or tick a box. You would need statements for that, via an SAR. If you know you had PPI, this should form part of your defence or possible counterclaim. How was this sold to you?

[Pipster2797]

Maybe that IS their WS! Did it say there would be a WS?

 

Nope nothing, however it is signed as statement of truth

 

They have admitted only sending T&Cs at the time of opening the account. Have they? Are they the ones that would have been in force? Check for any dates. I think you said there is no reference to them – but while Carey said that an agreement in parts is a matter of substance, not form (or maybe the other way round), there still needs to be a clear link demonstrated between the docs. At least they admit that they are technically in default of a s78 – hence no enforcement allowed.

 

There is no links are dates between the application form and the T&C. They also say they have sent out a varaition of T&C

 

Your defence would be that you know for a fact you never signed anything, not even an application form (actually, how DID you get the card???).

I can remember it being done over the phone and the woman from our local branch then sent the card out via the post. To be honest even things like my mobile contract and tv package are took out over the phone but they always quote the CCA

 

The CCA request would not necessarily have indicated PPI, especially if you didn’t sign anything or tick a box. You would need statements for that, via an SAR. If you know you had PPI, this should form part of your defence or possible counterclaim. How was this sold to you?

It didn't have PPI on it. I never thought of originally asking for statements though. I thought it would of been on the CCA and hence why requesting it. I did the same with another lender and the PPI was front loaded and I got it all back plus interest.

[DonkeyB]

Sounds like they are clutching at straws, then. But if they do not provide the court with proof of their actions, ie. a WS and evidence, they should not get SJ. No judge should simply take their word that they have complied with statutory requests and CPR.

 

You may want to chase them for any WS. If they fail to respond by email, take proof of your efforts to show the judge – make it clear that YOU are trying to achieve the overriding objective.

 

It’s possible your WS may turn up in the morning. If it does, get back on here and we’ll look at a skelly to take along if there’s time. Also keep any envelope it comes in to show the judge the postmark as evidence they are obstructing your defence by late filing of their WS.

[Pipster2797]

Ok cheers for that.

 

Should I ring them? if so should I mention that I sent mine recorded delivery?

[DonkeyB]

Email will give you an audit trail, unless you can record the call.

 

Just state that, as they are aware, they have received your WS by recorded delivery on [date]. Where is their WS and evidence in support of your application? It should have been served on me by now. Please respond urgently.

 

You may also want to check with the court to see if they have filed a WS with the court. Dirty tricks abound with these kind of people, especially when you’re an LiP and don’t know the process.

[Pipster2797]

well I have just rang the court and they have got my witness statement. the claimant hasn't sent theirs in.

 

checked to make sure they would need to send one in and they have said that the judge hasn't set any directions for the case so they wouldn't need to send one in and its just a hearing for the stay to be lifted, defence to be struck out and judgement entered. I tried to explain what has happened and they said I would need to plead my case to the judge tomorrow.

 

I'm starting to feel that things won't go my way because of tactics by DG solicitors.

[Pipster2797]

also just checking the notice of application hearing they had tried to get SJ without a hearing too but a hearing has been set.

[DonkeyB]

This is why you need your wits about you. Your case is factually strong. Theirs is not as it stands. Can you call them and record the call?

 

Perhaps you should prepare a draft order that if the stay is lifted, the claimant must comply fully with disclosure of X, Y and Z within 14 days.

[Pipster2797]

I tried to call them, my case handler was unavailable and they wanted to take a number to call me back on. I wouldn't give one out.

 

I will draw up a draft order.

[DonkeyB]

Good. Try and keep one step ahead of their games.