Brothers HSBC/DG Stayed cLaim - credit Card - no Enforceable paperwork provided

[tifo]

This is an unusual situation ....

 

Two years ago HSBC took my brother to court for a credit card. At the time, we had a family problem and the bank's solicitors (DG) agreed to hold the claim for 3 months. However, he still had to submit a defence which I helped draft, asking for a copy of the agreement and default notice referred to in the POC and how the amount claimed is arrived at.

 

The bank did not respond to the defence. Previously they had said there was no agreement (well before the court claim) when default charges were disputed.

 

Now they have come back with a response to the defence, some 20 months later and apparently the claim was stayed for 3 months.

 

DG say they cannot locate an agreement (same as before then) and no copy of the default notice because it was system produced at the time of default. They also say the default charges are fair as per OFT report of 2006 and the test case of 2009 (which was about personal current accounts so what are they on about). They've sent a 'credit card request form' with the customer's name and address. The rest of it is not filled in. And some terms and conditions from 2002.

 

They've offered to reduce the claim by a few hundred and say settlement can be agreed by a Tomlin order.

 

I've to find out from the court what is happening with the claim. Should they not have struck it out many months ago?

 

It now seems an abuse of process. The claimant cannot produce the documents they relied on in their POC and have come back 20 months later.

 

Any help would be appreciated.

 

Thanks.

[slick132]

Hi Tifo,

 

Have you any info to suggest DG Sol'rs have applied to the court for the case to now continue.

 

Given the time the claim was left, they would probably need to apply to the court seeking permission to continue the claim now.

 

It sounds like they're lacking the key documents required to prove their claim, so they're making an informal approach to you in the hope you'll agree to a Tomlin Order rather than go to court.

 

Firstly, I'd contact the court to ask if anything has happened in the case since 2011 or thereabouts.

 

If the answer is no, I would definitely not agree to anything proposed by the Sol'rs.

 

Let them take it back to court and, if or when they do, deal with the matter as necessary.

 

[tifo]

We've heard nothing from the court or DG in 23 months (March 2011) since they said they'll hold action for 3 months. I submitted an embarrassed defence stating they have not provided any evidence and have no prospect of succeeding.

 

Letter's come at the weekend so I'll find out from the court. Wouldn't they simply lift the stay?

[slick132]

If DG Sol'rs apply for the stay to be lifted, that could be the time to apply yourself (N244) for the claim to be struck out on the basis of the missing key documents and the time elapsed since the Sol'rs last made any move on the case.

 

Hopefully, others will make their views known.

 

[tifo]

We've never been informed by the court or DG that the case was stayed. I assumed they hadn't replied to our defence so the court might have struck their case out. At the time until about the end of August 2011 we were very busy in an ongoing case (which was the reason for the 3 month relief from any action by DG).

[slick132]

Then you should start by checking the current status of the claim with the court, IMHO.

 

[nomorecrooks]

If DG Sol'rs apply for the stay to be lifted, that could be the time to apply yourself (N244) for the claim to be struck out on the basis of the missing key documents[9:18:08 AM] Mark Dingman: العرب لا تلعب لعبة الركبي.

 

Hopefully, others will make their views known.

 

 

I have a case with DG which was stayed at Northampton for 27 months after I filed my defense (the claimant failed to action its claim after I filed my defense).

 

You state that a possible grounds for a dismisal / strike out is the length of time since the solicitors actions the case. Are you certain that this is reasonable grounds? Can you provide a precedent (I've searched high and low on the web)?

[tifo]

I have a case with DG which was stayed at Northampton for 27 months after I filed my defense (the claimant failed to action its claim after I filed my defense).

 

My situation is similar. They don't have the agreement and confirmed this before their claim so they shouldn't have issued in any case by stating they had an agreement. That's a false statement.

[Old Cogger]

False Statement - DJs response well they made a mistake, never mind./ That is what I got, and I have a CCJ for HSBC card which after the case HSBC stated in SAR (late arrived) no agreement found, D.J. informed that FOS involved and that HSBC state no agreement found, yet she (DJ ) followed the CCJ and refused my set aside. HSBC now ask if I want to increase payment or offer a full and final, ignored them, a case soon will be rescheduled on this issue when I am ready.

Edited February 13, 2013 by Andyorch
Inappropriate language removed.

[slick132]

@ Nomorecrooks

 

I've moved your thread to the Legal Issues forum where I hope you'll get further input.

 

In my comments in post #4 above, I was suggesting that a Stayed case only remains Stayed until the claimant decides to progress it. However, if they have left it with no action, the Defendant can decide to be more pro-active and ask that the claim be struck out or dismissed.

 

It seems unfair that a case can remain dormant and then be revived, on a whim. This is covered by the CPR.

 

[nomorecrooks]

@ Nomorecrooks

 

I've moved your thread to the Legal Issues forum where I hope you'll get further input.

 

In my comments in post #4 above, I was suggesting that a Stayed case only remains Stayed until the claimant decides to progress it. However, if they have left it with no action, the Defendant can decide to be more pro-active and ask that the claim be struck out or dismissed.

 

It seems unfair that a case can remain dormant and then be revived, on a whim. This is covered by the CPR.

 

 

@Slick132: I agree with you entirely; the Claimant leaves the claim for 27 months then revives it over Christmas. Meanwhile I need to put my documents back together.

 

I had my first hearing on the case last week; the judge ordered the Claimant to supply various documents I had requested (but not received) under a SAR. I asked the judge about the 27 month stay: I said that I had been prejudiced since it required my rebuilding my case etc, the judge wasn't having it.

[tifo]

It seems unfair that a case can remain dormant and then be revived, on a whim. This is covered by the CPR.

 

Which CPR?

 

I've spoken with DG and they say the case is stayed until they decide to re-open it.

 

They still have no signed agreement and that the blank form with name and address and T's and C's from 2002 is an agreement as per Casey. I can't see any text linking the two together. One is from 2012/2013 and the other from 2002. I asked for all T's and C's including varied ones and they said it's unreasonable because of the time it may take.

 

They say one way costs can be claimed under contract law, i.e. they will get costs but we can't, even if under £5,000.

 

They also said the test case of 2009 on personal current accounts applies and their charges are fair.

[slick132]

Hi Tifo,

 

CPR covers all issues relating to claims, before and during the actual court process.

 

Specifically, CPR3.4 refers to an Application to Strike Out a claim - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03

 

I see no point in you talking to DG at all. They're not there to help you in any way. In fact, they'll do all they can to unnerve you and you certainly shouldn't rely on their opinion or advice.

 

Did you check with the court about the status of the claim, to see if there have been any recent moves.

 

[DonkeyB]

I've spoken with DG and they say the case is stayed until they decide to re-open it.

 

Is that what they actually said? If so, that’s rubbish, and therefore is a deliberate attempt to mislead you.

 

This is simply not the true situation. Reopening the case is not their sole prerogative – the progression of the case from a position of ‘stayed’ can also be influenced by you, as you have the option to apply for a strike out.

[tifo]

Is that what they actually said? If so, that’s rubbish, and therefore is a deliberate attempt to mislead you.

 

Yes, this is what they said. We declined their offer of a Tomlin order.

[tifo]

DG have written to say the account has been terminated previously but will be terminated again on dd/mm/2013 and the full balance will then become due.

 

Haven't they already terminated, taken to court, unable to supply an agreement, put the claim on stay for 2 years?

 

What does the new notice mean for the ongoing (stayed) court claim?

[DonkeyB]

Can we see exactly what they have sent please?

[tifo]

Can we see exactly what they have sent please?

 

I'll scan it ............

 

The agreement was terminated some years ago, they issued a claim in court, could not provide an agreement and default notice, stayed the claim for 2 years, wanted a Tomlin order signed for a settlement and now .....

 

They say:

 

Credit Card Agreement dated on, or around, dd/mm/2002.

 

We remain of the view that the above mentioned agreement has already been validly terminated ...............

 

However, we hereby provide you with a further notice served without prejudice to any previous notice, whereby the agreement will be terminated on dd/mm/2013 ..............

 

Upon termination we require immediate repayment of the full outstanding balance under this agreement.

 

How can they terminate again and again ask for full repayment when they have already taken the matter to court?

 

What if we refuse to pay upon the second termination? They obviously can't issue a court claim again for the same agreement against an ongoing court claim.

[Old Cogger]

WITHOUT PREJUDICE there is the the wording !!!! click on the wording above - they are trying it on stating you cannot produce letter in court!

 

others will comment also

[tifo]

WITHOUT PREJUDICE there is the the wording !!!! click on the wording above - they are trying it on stating you cannot produce letter in court!

 

others will comment also

 

The letter is not headed without prejudice in relation to court action .... only that the termination is without prejudice to the previous notice (and termination).

 

I'll contact them and ask if it's without prejudice in relation to court action or open correspondence.

[tifo]

Can they do the above though? (terminate again and ask for balance).

 

If not paid, what can they do? They can't take it to court unless the first claim is withdrawn, in which case they can't issue a second claim on the same matter.

[slick132]

Hi Tifo,

 

I would not bother to seek any confirmation from them about this.

 

It'll make it look like you're bothered or concerned, which you should NOT be.

 

Wait and see what ACTION they take, rather than threats of it. Then deal with it as necessary.

 

[DonkeyB]

Can they do the above though? (terminate again and ask for balance).

 

If not paid, what can they do? They can't take it to court unless the first claim is withdrawn, in which case they can't issue a second claim on the same matter.

 

As I think we’ve mentioned previously, their only option is to withdraw and reissue a compliant DN. They cannot switch horses mid-stream.

 

Can we see the new DN they have proffered?

 

I would suggest they are deliberately trying to bamboozle you as an LiP with legalese bullsh*t. Which is against the SRA code of conduct, as DG well knows, and is against the OFT’s debt collection guidelines.

 

Moreover, marking a letter or notice WP when it is already part of the case is futile. WP MUST be part of a genuine attempt to SETTLE a claim – not an attempt to bully and coerce you into doing something which may be the wrong thing to do.

 

You should complain to the court, the OFT and the SRA about this.

 

But the we know DG play dirty, so let’s be careful.

[DonkeyB]

...and as you know, they have already tried to mislead you regarding the stay.

[tifo]

Can we see the new DN they have proffered?

 

I would suggest they are deliberately trying to bamboozle you as an LiP with legalese bullsh*t. Which is against the SRA code of conduct, as DG well knows, and is against the OFT’s debt collection guidelines.

 

There is no new DN. Just the letter from which I quoted earlier.

 

They can try and bamboozle me, at the moment I'm not taking it to a solicitors firm but there's no problem if I need to.