Sigma SPV 1 (HSBC) v myself

[bh2362]

Hi All need some hand holding on this as this has been a while since i have had to do this.

 

right here we go.........

 

Claim for received from Sigma Today claiming part monies from an an agreement, this is an old bank account I used to hold.

 

the amount is like a 3rd of what I owed on the original Debt.

 

its come from MCOL so the POC are vague.

 

I have acknowledge it today and am sending the CPR request today!!

 

I havent heard of these part claims before it seems its a new trick by Sigma!

 

can anybody assist in what to do next???

 

thanks

[AndyOrch]

HI bh

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?353385-County-Court-Claim-Form-Sigma

 

Post 26 onwards

 

Regards

 

Andy

[sillygirl1]

There are a lot of these going around. A simple short split claim defence should do the trick, along with the CPR, you can mention in the defence about CPRing and not allowing them additional time for info.

 

This is obviously some bright spark trying to get a shedload of old debt reinstated - I think Sigma are going to be in for a shock having to fork out allocation fees - would love to see their faces once they realise how many people are finding CAG.

[marshmallows]

Hi BH.

 

So far these guys have been great!!

 

Keep your eyes peeled on all the Sigma threads, some great advice on here.

[bh2362]

Thanks Andy ill take a look, ive just posted the CPR today so timer starting.

 

 

 

HI bh

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?353385-County-Court-Claim-Form-Sigma

 

Post 26 onwards

 

Regards

 

Andy

[bh2362]

thanks Silly Girl is there any threads you know of that show a split claim defence?

 

 

 

There are a lot of these going around. A simple short split claim defence should do the trick, along with the CPR, you can mention in the defence about CPRing and not allowing them additional time for info.

 

This is obviously some bright spark trying to get a shedload of old debt reinstated - I think Sigma are going to be in for a shock having to fork out allocation fees - would love to see their faces once they realise how many people are finding CAG.

[bh2362]

Hi Andy,

 

im up to speed now, shall i send a CPR 18 now as well?

 

similar to the thread.

 

i know this is for an overdraft account so it should be fairly similar to marshmellows.

 

 

 

HI bh

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?353385-County-Court-Claim-Form-Sigma

 

Post 26 onwards

 

Regards

 

Andy

[AndyOrch]

Hi Andy,

 

im up to speed now, shall i send a CPR 18 now as well?

 

similar to the thread.

 

i know this is for an overdraft account so it should be fairly similar to marshmellows.

 

 

Yes bh they are all overdraft debts that they have purchased.Do you know when you last acknowledged or serviced the current account?

 

Andy

[bh2362]

it was middle of 2008 not sure the exact dates.

 

 

 

Yes bh they are all overdraft debts that they have purchased.Do you know when you last acknowledged or serviced the current account?

 

Andy

[AndyOrch]

Ok no problem just wanted to make sure it was not Statute Barred.

 

Andy

[bh2362]

CPR18 posted today!!!

 

can i have some advise on what the next stage is??

 

 

B

[AndyOrch]

Nothing really sit tight and wait for any response.keep your eyes on the time frame for defence submission.

 

Andy

[bh2362]

Thanks Andy I will do, ill let you know once things move.

 

 

Nothing really sit tight and wait for any response.keep your eyes on the time frame for defence submission.

 

Andy

[bh2362]

nothing from them at all, i got my defence ready can you take a look.

 

thanks

 

1. The Defendant entered into an agreement with ********** in or around the year ***. The account reference number ***************quoted in the Particulars of Claim relates to a current account with HSBC Bank Account that was held by the Defendant. This account was closed in 2008.

 

2. The Defendant is confused as to why the Claimant is only claiming "Part only of monies due...”. It is averred that this is an abuse of process if it is the Claimant’s intention to issue further proceedings on a ‘presumed’ remaining balance.

3. On ******** another request was sent by registered post under CPR31.14 asking for documents which are mentioned in the Particulars of Claim.

 

4. On ********** a separate request was sent by registered post under CPR18 for information and a true copy of the executed Credit Agreement mentioned in the Particulars of Claim

5. To date no further correspondence has been forthcoming from the Claimant. It is averred that the documentation the Claimant claims to be relying upon to bring this action does not contain the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) 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

 

6. 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).

 

Notwithstanding point 4, 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.

 

7. The alleged creditor has not provided any legible copies of the agreements referred to in the demand. I believe there are no properly executed signed Consumer Credit Agreements. If they had been able to supply these agreements then they would have done so already in order to avoid slipping in default under section 78 (1) of the Consumer Credit Act

 

8. The defendant has not been provided with any statements for the duration of the alleged agreement (it not being uncommon that some debts are made up entirely of charges)

 

9. The Claimant is therefore put to strict proof that such a compliant document exists. The alleged creditor has not provided any evidence of his claim as required by the Consumer Credit Act 1974 and is prevented from enforcing any claim until he does by the provisions of that Act.

 

10. The alleged creditor has provided no Default Notices in accordance with the Consumer Credit Act 1974 which states that in order for it to be valid; the Default Notice must be in the prescribed manner and be correct.

 

Notwithstanding the above, it is also drawn to the courts attention that no Default Notices required by s87 (1) Consumer Credit act 1974 have been attached to the Claim.

 

It is denied that any Default Notices in the prescribed format were ever received and the Defendant puts the Claimant to strict proof that said documents in the prescribed format were delivered to the Defendant.

 

Notwithstanding the above points, I put the Claimant to strict proof that any Default Notices sent to the Defendant were valid. It is noted that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

Service of a Default Notice is a statutory requirement as laid out in sections 87, 88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a Default Notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. Therefore without any valid Default Notices, I suggest the claimant’s case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

 

Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

 

11. The Claim states that HSBC assigned the benefits under the Agreement to the Claimant Sigma SPV 1 Ltd on the 21st December 2011

The Defendant denies that he is liable to the Claimant as alleged in the demand at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt.

 

12. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

The defendant requires sight of the Notice of Assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. The reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents, the defendant notes that if there are errors in the assignment it may be rendered ineffectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

The Defendant has not received any Notices of Assignment according in all respects with s136 of the Law of Property Act 1925

 

I respectfully submit to the court that steps to ensure service of a Notice of Assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

Since the claimant explicitly states the notices were “served” it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law of Property Act (1925) s196.

 

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

It is noted that the claimant has, at no time, provided evidence that the Notice of Assignment was sent via registered post, and if “sent” via any other method, the notice was not sufficiently served

 

I did not receive any Notices of Assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

To the best of my knowledge, any Notices of Assignment sent by registered post must, therefore have been returned to the respondent.

 

Consequently, I do not believe that any Notices of Assignment were properly served upon me at the date of the demand, and therefore any assignment has not been perfected in law.

[marshmallows]

I have had nothing back either bh. Maybe they do not have anything to send after all!

 

I am going to start doing my defence tonight.

 

Can i ask when you log on to MCOL what options do you have and can you see any reference to your AOS? MIne has nothing on it!

[bh2362]

i normally send mine through the post or fax as you have limited space to send over a long defence

[marshmallows]

When does yours have to be in by. It seems we are both in the same boat. Split claim, no reply to requests.

 

If it is acceptable to you can I base my defence around yours as it looks really good and i am struggling to be honest.

[knet2020]

Hi, both I have a small update as we are all in the same 'boat' I think I am a little further down the line than you but..

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?350139-HSBC-and-Sigma-SPV-1-Split-Claim&p=3896594&viewfull=1#post3896594

[knet2020]

@marshmellows

 

I posted a defence which was short and to the point, it's important to NOT get into the legalese. I also made sure I placed first 'As a litigant in person' this tells the court you are defending yourself. If you are a 'split' claim it's worth noting that 1st then any failure under CPR and CCA. I tried to list it as a simple list of points rather than a big legal thing. I was thinking if I ever get to court I want to be able to show I am not legally qualified but have taken the time to seek lay advice

[knet2020]

I have a small feeling you both may get letters like me once you have submitted defences...

[DonkeyB]

Be a weeny bit careful with using ‘split claim’ as a defence. It’s not really a defence, but a highlighting of a potential abuse of process. It’s only a split claim when they chase the balance or state they will chase the balance legally. They could argue they only want part of what is owed.

 

Even the arch inventor of split claims, Bryan Carter, has now admitted that split claims are ‘morally unethical’, but also claimed they had been advised by counsel that their methods were legal (they were legal until they went after the rest).

 

In other words, I think that was Carter admitting they split the claim to reduce claim costs and hopefully get a judgment, then rely on debtors’ ignorance and misleading practices to get the rest. Which is exactly what I believe Sigma is doing.

[DonkeyB]

Have a look at this thread, especially post #18.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?334544-Brian-Carter-Two-CCJ-s-one-debt-(same-account-number-on-court-records)-HELP!!

[AndyOrch]

Hi BH

 

Here is the proposed defence that Marshmallow will be submitting, Im not sure if you have submitted yours yet.

 

 

 

"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 defendant’s 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"

 

DEFENCE

 

1. Paragraph 1 is nether admitted or denied with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') the Claimant has yet to disclose any Agreement. Furthermore any claim for partial monies is averred Contrary to s35 of the county court Act 1984 s35 Division of causes of action.

 

2. Paragraph 2 is noted with regards to termination of the alleged contractual Agreement , the Defendant has no knowledge, therefore the Claimant is placed to strict proof there of.

 

3. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

5. On the alternative, if the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

6. By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Regards

 

Andy

[marshmallows]

I shall be a bit mad if it turns out this is for an overdraft. HSBC never agreed I could have an over draft in fact once I remember asking and they declined. They did however let me keep going into the red by applying charges every month. I so wish I had access to my old statements.

[bh2362]

Hi, mine has to be in over the weekend.

I'm looking to submit a defence like the one I have posted up, do you think it's to much I really need some advice on this before I send it in.

 

Ay suggestions

 

Thanks