HSBC DCA has issued summons for interest on default notice

[louloujs]

Hi, hope you can help. DCA (Sigma) has issued a summons against me, the debt from an HSBC Gold Card having been sold to them.

 

Brief history:

 

- 4/7/08 Default notice received on (the amount in question I believe was paid from my HSBC current account on 1/8/08.

- 24/10/08 sent CCCS standard letter offering £1 per month due to financial problems.

- 4/11/08 A letter received saying my proposals for repayment were not accepted.

- 19/11/08 HSBC letter passing admin to their agent for repayment arrangement admin.

- 29/1/09 Requested copy of credit agreement.

- 20/2/09 Sent 'Default under the CCA 1974 failure to produce agreement' letter to HSBC.

- 26/2/09 Received copy of agreement and T&Cs. However, HSBC CCA.pdf as I hope you can see on the attached two pages the two 'customer signatures' are different. The one below the Optional Cardholder Repayment Protector box is not mine at all.

 

- From this point onwards I continued to receive DCA demands from multiple DCAs (7 or 8).

 

- 12/7/10 Sent Account in Dispute letter to Moorcroft, with a copy to HSBC

(extract: This account is in dispute with HSBC Bank plc and has been since November 2008.

Not only is this a breach of the Consumer Protection From Unfair Trading Regulations 2008

 

in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the Consumer Credit Act 1974

and Data Protection Act 1998.

 

My previous dispute from November 2008 has NOT been answered.

As HSBC Bank plc is now in default of my Consumer Credit Act agreement request and have also breached *s10 Data Protection Act request ,

I consider this account to be in SERIOUS DISPUTE.)

 

- Until now, sent the same Account in Dispute letter to the various DCAs, and then I receive a Summons...

 

The POC state:

 

"Part only of monies due under regulated Credit Agreement no. XX between HSBC and the defendant, the benefit of which was assigned to the claimant on 21/12/11.

 

The Agreement was terminated upon the defence failure to comply with the terms of the agreement and or the statutory notice of default served by HSBC Bank plc.

 

The claimant seeks interest pursuant to section 69 of the CCA 1984 at the rate of 8% per annum from the date of issue continuing at the daily rate of 0.07.

Any payments or queries should be directed to the claimant on [tel no]."

 

I am hoping that my paper trail is complete, but cannot be 100% certain. However, have the following questions:

 

1. The only DN I hold was paid as itemised above. I do not hold another.

2. Surely the CCA is invalid if it contains a third party signature where mine should appear?

I have repeatedly told (on the phone) HSBC when they've chased me that I am still waiting for a CCA with only my signature on it,

they've ignored these requests and simply passed it around DCAs.

3. If the account is in dispute (see my letter above), surely they cannot take action against me?

 

I would appreciate any help you can give me with regard to my defence that I need to file.

I received the summons late as I've moved house, but it needs to be back by 15/5/12. I sent the Acknowledgement of Service back in good time.

 

If I've left anything out, please let me know.

 

Many many thanks,

 

LL

Edited May 8, 2012 by citizenB
tidied up a bit for easier reading

[BRIGADIER2JCS]

Was the default satisfied in full within the specified time limit?

 

I would like to see the agreement you have can you remove

all personal data barcodes from it and scan an post it up here.

[havinastella]

Also, when was the last payment made on this account?

[havinastella]

Was the default satisfied in full within the specified time limit?

 

I would like to see the agreement you have can you remove

all personal data barcodes from it and scan an post it up here.

 

Its linked in the OP's first post Brig

[louloujs]

Thank you both for your help.

 

Brig, yes there's a link to the CCA on my first post.

 

Re the DN. It was dated 4 July to be paid by 18 July. I was told by HSBC the £301 would be collected from my account on 1st August, which it was. The summons is for £2 less (£299 plus costs etc) than the DN value requested. I cannot recall receiving another DN, but can't rule it out 100%.

 

Havinastella, the last payment made on this account was on 14 Jan 09 (£31), which was the amount requested by HSBC as an initial payment when they wrote to me to tell me my account would be passed to their agent (DG Solicitors).

 

Hope this helps. Thank you both again.

 

LL

[citizenB]

If you have proof that the DN was remedied within the time. Then you need to offer that up as part of your defence.

 

If you believe that there is a "discrepancy" on the document above then I wonder if it might be worth writing to the Claimant pointing this out. Although again - you could do this within any defence.. which might grab their attention a bit quicker !!

[citizenB]

Can you please let us know the date of issue which is in the top right hand corner of the claim form.

 

Was the claim issued from the Bulk Clearing centre - Northampton ? If so, you can submit your defence online.

 

It says on the PoC that the debt has been assigned - who are the claimants ?

[citizenB]

The original Default notice was invalid ANYWAY.. dated 4th July - remedy 18th July (only 14 days from date of issue to remedy ) there was no allowance for posting.

 

It would be interesting to know the date of issue and remedy of any subsequent default notice that was supposedly sent to you.

[Gaston Grimsdyke]

Are you trying to argue that because some other signature appears on the agreement as well as yours somehow trhat invalidates the agreement? If so, drop it - its a non starter. As long as your signature is on it as well as the other statutory info, it doesn't matter what else is on it. As for the default notice, bear in mind that they might have sent you another one and you not receiving it is no defence. Or they might be restricting their claim to arrears only in which case they don't need to serve DN at all.

[louloujs]

Thank you all for your help:

 

If you have proof that the DN was remedied within the time. Then you need to offer that up as part of your defence.

 

If you believe that there is a "discrepancy" on the document above then I wonder if it might be worth writing to the Claimant pointing this out. Although again - you could do this within any defence.. which might grab their attention a bit quicker !!

 

I do think there is a discrepancy on the document, in view of the timescale, I think I should point this out on my defence, although I note the comment from GG:

 

Gaston Grimsdyke: Are you trying to argue that because some other signature appears on the agreement as well as yours somehow trhat invalidates the agreement? If so, drop it - its a non starter. As long as your signature is on it as well as the other statutory info, it doesn't matter what else is on it. As for the default notice, bear in mind that they might have sent you another one and you not receiving it is no defence. Or they might be restricting their claim to arrears only in which case they don't need to serve DN at all

 

The signature that isn't mine is beneath the Optional Cardholder Repayment Protector in the 'Signature of Customer' box. This is spurious surely? As for the DN, I'm sure I haven't received another one, also their claim is for "Part only of monies due under regulated CCA no..."

 

CitizenB: The original Default notice was invalid ANYWAY.. dated 4th July - remedy 18th July (only 14 days from date of issue to remedy ) there was no allowance for posting.

 

I believe this is the crux of my defence in that their POC focuses on the DN and agreement not being complied with. The DN is dated 4 July 2008 and payment to remedy the breach was demanded by 18 July 2008. You're right, no posting time allowance. I spoke to HSBC on receipt of the DN and they told me the payment could be collected from my HSBC current account on 1st August. It was and was received by them on 4th August. So, I didn't actually make the payment in time to remedy the DN, although if the DN is faulty, it helps.

 

Can you please let us know the date of issue which is in the top right hand corner of the claim form.

Was the claim issued from the Bulk Clearing centre - Northampton ? If so, you can submit your defence online.

It says on the PoC that the debt has been assigned - who are the claimants ?

 

The claim form is dated 10 April, it was issued at Northampton so can be responded to online. The claimant is Sigma SPV 1 Ltd and I have a letter from HSBC confirming this debt was assigned. All documents were sent to my old address (I moved recently).

 

I am very sure that I would have kept any subsequent DN as I've made a habit of not throwing such paperwork away. It'll be interesting to see what their claim documents throw up; if another DN was issued but not received, I wonder if it will also be invalid on the posting allowance issue...

 

Thank you all again, do you think the faulty DN should form the basis of my defence?

 

LL

 

The Claim is

[citizenB]

You need to submit your defence by Sunday , 13th May ?

 

You do need more than a faulty DN, however, despite the fact payment was made after the remedy date - It will be argued that it was remedied.

 

So, I rather suspect that this will be a non starter.

 

Did you then go into a default situation at a later date? and is this what they are claiming?

 

TBH, this is a little confusing.

[louloujs]

The POC is a little erroneous. I wonder if the claim is designed to prompt a payment that will settle a precedent for a further claim for the full amount? If this is the case and the CCA is indeed valid following GG's comments above about the signature (my reason for the dispute), I wonder if I should contact the OP and see if a payment arrangement can be agreed on before this results in a very unwanted CCJ.

 

Thanks for you advice, as always,

 

LL

[louloujs]

A little nudge on this as tomorrow is the last working day I have before my defence is due. I could get on the phone and start a dialogue with the OP if a defence is likely to fail.

 

Thanks again, LL

[citizenB]

Hi is the value of this claim under or over £5,000?

 

In respect of a question you asked me earlier. Despite the fact that you made payment AFTER the remedy date on the Default Notice - they will almost certainly argue that it was still remedied. Therefore it is irrelevant whether it was invalid or not. So IMHO, the fact that it WAS invalid at that time is now irrelevant.

 

There is no harm in your attempting to negotiate a settlement of some kind - if the claimant is agreeable then they would send you either a consent form that you would sign to agree the terms - I will find someone who has more knowledge in respect of this type of thing.

 

BRB.

[BRIGADIER2JCS]

HMCS small claims mediation service, can mediate by

phone, and no ccj is made.

[louloujs]

Thank you both. The total o/s to HSBC, now sold to Sigma SPV, is around £2500. I'm happy to discuss with them to avoid CCJ etc and associated stress, but will have to do so with Sigma not HSBC...

 

Will await your advice. LL

[BRIGADIER2JCS]

On the AQ there is a box to

tick to go for mediation, telephone

appointments are not stressful.

The mediator will phone you and explain

what will happen, the they phone the claimant

who then put their side of the story, which

the mediator the relates to you, you the have

your say and so on reach an agreement a consent

order is made and sealed by the court a Tomlin

order is then made stating how the debt is to be paid

and over how long.

 

You set up a standing order to pay the debt and as long

as you keep up the payment that't the last you will here

of it until they tell the debt is settled.

 

The order is binding on both parties,but if you don't pay

then the claimant can ask for judgement.

 

I have carried out mediations that have resulted in a

debtor paying £5.00 per month over 40 years and no CCJ.

[louloujs]

Hi Brig, thanks for this info. To get to AQ stage, I still have to file a defence don't I? I imagine even a 'loose' defence that touches on the strange calculation of figures, dubious DN, etc could enable this to proceed to this stage.

 

However, because this has been passed to a third party, I wondered if it would be easier/quicker to go direct to them as I'm sure they'd like my monthly payment. I'm not sure I'd get away with £5 a month for many years though, that appeals, but I guess they have to agree to mediation in the first instance.

 

Looking forward to further advice on this. LL

[citizenB]

Brig, loulou hasnt got that far yet.

 

She is wanting to negotiate sooner rather than later.

 

Andyorch will be looking in later on

[BRIGADIER2JCS]

Yes file the defence, yes they have to agree, but mediation

is cheaper for them.

 

HSBC are not very cooperative in things like this.

[BRIGADIER2JCS]

Brig, loulou hasnt got that far yet.

 

She is wanting to negotiate sooner rather than later.

 

Andyorch will be looking in later on

 

 

 

OK.

[AndyOrch]

Hi Lou

 

Lets bring the P.o.C forward.

 

"Part only of monies due under regulated Credit Agreement no. XX between HSBC and the defendant, the benefit of which was assigned to the claimant on 21/12/11.

 

The Agreement was terminated upon the defence failure to comply with the terms of the agreement and or the statutory notice of default served by HSBC Bank plc.

 

The claimant seeks interest pursuant to section 69 of the CCA 1984 at the rate of 8% per annum from the date of issue continuing at the daily rate of 0.07. "

 

 

As you have stated to enable mediation as per Brigs advice you will need to submit an holding defence to stop the clock., to proceed to the AQ.Split Claims are an abuse of process fortunately in the above SoC they have failed to mention that they don't wave any balance due on the same account number.I assume you have done all the necessary background work on this matter ie CCA requests CPR and simply need to submit a short holding defence by Sunday.You could make application to Strike the Claim out but on a value that is claimed is hardly worth it and is not an assurance to dispense with this matter.

 

I would assume that once a defence is entered the claimant may well Discontinue the claim in any event.I will try to find something suitable for you to amend to suite before the deadline.

 

Regards

 

Andy

 

PS I will also move your thread to the Legal Forums

[NewToTheFight]

Am I missing something?

I was of the opinion that the claim cannot be enforced without a valid DN

As the debt has been assigned the problem DN cannot now be rectified without the OP's consent

Therefore unenforceable

 

Just my 2p worth

[louloujs]

Thank you, Andy. I had misread the amount claimed as DN monies, not interest. I have done CCA, but not CPR or SAR. As proceedings have now started, should I issue CPR 31.14 request?

 

Split claims are new to me, but can see how they're seen as an abuse of process. Learning every day...

 

Thank you for your help, LL

[AndyOrch]

Hi Lou

 

You didn't misread it is " partial monies " £299.00 on a balance of £2.5k.Why or what this equates to is anyones guess, as you state the arrears were cleared unless a further DN was issued. Either way why not claim the full balance on an account that from their own admission within their statement of case has been terminated.

 

Ok here is a defence that you may use or edit.

 

1. The Defendant entered into an agreement with HSBC on or around xx th xxxx xxxx. The account reference number XXXXXXXXXXXX a credit card agreement.

 

2. The Defendant is bemused as to why the Claimant is only claiming " Partial Monies " on an account with a balance of £2500.00.It is a averred that this is an abuse of process if it is the claimants intention is to issue further proceedings on the remaining balance

 

3. The Defendant confirms that a Default Notice was served and received dated xxth xxxxxx xxxx for a breach allowing 14 days to rectify said breach.The claimant took payment from my current for the amount of £301.00 dated xxth xxxx xxxx.Therefore rectifying any breach within the terms and conditions of said agreement.

 

4. If a further Default Notice was issued the Defendant puts the claimant to strict proof that such a compliant Notice was issued.

 

5.On (insert date) by recorded delivery a request under the Consumer Credit Act 1974 section 78(1) for a true copy of the executed Credit Agreement. This was received by HSBC and signed for on (insert date).

 

6. On the (insert date) HSBC responded to my request by way of an application form,It is averred that the documentation the Claimant claims to be relying upon to bring this action does not contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482). 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 credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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

 

 

7. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 6 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3).

 

8. Notwithstanding point 6, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974.It is noted and brought to the courts attention that the signature in the customers signature is not the defendants.

 

9.The Claimant is therefore put to strict proof that such a complaint document exists

 

10. HSBC assigned all of its rights under the Agreement to the Claimant Sigma SPV 1 Ltd on the 21st December 2011 whilst still being in default of my section 78 request and it is averred that this is against the OFT guidelines.

 

11. The Defendant can not recall ever receiving notice of said Assignment and therefore puts the Claimant to strict proof that one was served and compliant with the LoP 1925 Act.

 

 

12. It is the Defendant’s contention that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons or the Claimants should be made to re plead and equate their total claim pursuant to CPR 16.4.1

 

 

 

 

Andy