County Court Claim Form - Loan From HSBC - MKDP LLP Claimant***Claim Struck Out***

[gettingthere]

As suggested starting new thread re Court Claim from MKDP LLP re HSBC Loan.

 

Claim Form dated 29th April 2013.

 

Particulars of Claim

 

The Claimant claims the sum of £1x,xxx.xx being monies due from the Defendant(s) to HSBC Bank Plc under a loan agreement regulated by the Consumer Credit Act 1974 which was assigned to the Claimant on xx/xx/xxxx. Notice of Assignment has been provided to the Defendant(s) . The Defendant(s) loan account number was xxxxxx/xxxxxxxx. The Defendant(s) has failed to make payments in accordance with the terms of the loan agreement. A Default Notice has been served pursuant to The Consumer Credit Act 1974 by HSBC Bank Plc. The Complainant claims the sum of £1x,xxx.xx and costs. The complainant has complied as far as is necessary with the Pre-Action Practice Direction.

 

No Default Notice or Notice of Assignment has been received.

 

Claim acknowledged and extra 14 days asked for submitting defence.

 

CPR 31.14 sent and received by them on 7th May 2013 asking for:

 

1. The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2. The assignment

 

3. The default notice

 

4. A statement of account showing how the amount claimed has been reached.

 

These letters were sent by Special Delivery and were received and signed for on 7th May by MKDP LLP.

 

In addition to this a SAR was sent to HSBC again by Special Delivery and was received also on 7th May.

 

This would not be Small Claims as I understand it.

 

This may be statute barred but until we can get access to relevant bank statements we cannot be certain.

 

Is there anything else we should be doing at this stage?

[gettingthere]

Reminder sent re CPR 31.14 by special delivery on 20.5.13 to MKDP LLP

[gettingthere]

Could do with a bit of advice here. We have managed to get a Duplicate Statement of Account for this loan from HSBC. It shows the last cleared payment which was made from their HSBC current account on 1st May 2006. However this payment was made from an account that was already running at twice its overdraft limit, all other debits were being returned unpaid except the one to themselves which just caused the overdraft to increase even more. Would this have been a legitimate payment?

Then at the end of statement of account it says 'Loan Early Closure' and the balance becomes Zero! The loan figure at early closure is an awful lot more than is claimed as well.

 

Anyone any suggestions?

[gettingthere]

Sorry above date should have read 1st May 2007!

[slick132]

Hi GT,

 

It looks like they managed to get this claim in at the last minute, before the a/c went Statute Barred (on 1st May 2013).

 

I suppose there's a theoretical argument that the payment made on 1st May 2007 was not a legitimate transaction. Even though the bank had the right to use the Set Off provisions to pay from one account to another, the payment should not have been taken from an a/c that was, in itself, delinquent.

 

However, the argument about this matter should have been made as soon as possible after the Set Off and not 6 years later.

 

Accordingly, I think you'll need to defend the claim on the basis of any documentary or procedural inadequacies.

 

[gettingthere]

Is there any mileage in the fact that the duplicate statement shows that the account number shown in the POC was in fact closed 5 and half years ago with a Zero balance?

[slick132]

Hi GT,

 

Can you explain more about the circumstances of the a/c being closed with a zero balance.

 

Did you pay off the loan in full or as a F&F Settlement agreement ?

 

Or are you saying they've quoted an incorrect a/c no. in the POC's.

 

If the a/c was sold or transferred to a collections dep't, the statement may well show a closing balance of nil as the a/c would then be pursued differently to a loan that was being repaid as required.

 

Edited May 23, 2013 by slick132
typo

[citizenB]

Your time scale is..

 

Date of issue 29th April 2013 + 5 days for service = 4 May 2013 + 14 days to acknowledge = 18 May 2013 + 14 days to submit defence = 1st June 2013.

[citizenB]

Small claim limit is now £10,000 so if over that sum, then yes it will likely go to the next track.

[citizenB]

You say this was a loan - was there any Payment Protection Insurance that might have been mis sold. Or, were there any default / penalty charges that could be reclaimed to take it back under £10,000 ?

[gettingthere]

We do not know how the loan was made up as we have no documentation at all - this belongs to a relative who at the time was about 19 years old - think he was told in branch to roll things up into one loan by the sound of it. There are no default charges showing on the duplicate statement we have that shows the history of the loan. It has an opening balance which I would assume would already have the PPI on it if there was any. They have not had a letter or anything from anyone as far as they can remember since the date of closure shown on the duplicate statement although on his credit file there is a default around the same date for the sum that is being claimed. The sum claimed is about £6000 less than the sum shown on the statement prior to it being cleared.

 

They are not aware that the loan was cleared although they say it was discussed with the grandmother as they knew they could never make the repayments. Unfortunately the grandmother is now dead but I think that is probably wishful thinking on their part!

 

The account no shown in the POC is their loan account number but as I say the last entry says Loan Early Closure and a Nil balance.

 

The closure date is 4 years before the date in the POC that MKDP say they they were assigned the loan.

 

I would just add that the relative lives in rented accommodation, has a partner and two small children and has just about enough money to live on month to month. They have no assets at all.

 

Sorry if I sound vague but they really do not have a clue about this loan apart from knowing that they did have one with this account number.

 

Can I just ask that if this debt was proved against them would it be included if he/she decided to apply for bankruptcy as they would never be able to pay it off on a monthly basis.

[gettingthere]

Would the defence need to be in on 31st May as 1st June is a Saturday?

 

They have also posted a S77/78 request to MKDP today.

[slick132]

Hi GT,

 

The CCA request is not really necessary, given that documents have already been requested under CPR31.14

 

It would be good to file the defence early rather than late.

 

However, CPR15.5 provides that you can ask the claimant to agree to extend the period for filing the defence by a further 28 days. See here - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part15#id3585775

 

If the claimant has failed to respond fully to your CPR31.14 request leaving you unable to file a proper defence, they have little choice but to agree to the extension.

 

Speculation at this stage about assets and bankruptcy if the claim succeeds is probably not useful. Better to concentrate on seeing what defence issues can be usefully used.

 

[gettingthere]

Thanks again or the above - I'm afraid panic mode is setting in. I have looked at some of the sample defences and it would probably be better for us to submit a defence instead of using CPR 15.5 at this time. The reason for this being that I am going away for 26 days shortly and I honestly do not think my relation is up to drafting a defence whilst I am away. I will discuss with them over the weekend and see what they think. We will obviously be quided by the experts on here at the end of the day.

[slick132]

Noted.

 

In these circumstances, you will have to mention that you are unable to make a full and proper defence at this stage due to the failure of the claimant to supply info requested in accordance with CPR31.14 on xxdate.

 

You can, of course, make as full a defence as you can using other info which IS available such as penalty charges or PPI, default notice faults, etc.

 

Edited May 28, 2013 by slick132

[gettingthere]

I have looked through various posts and have now come up with my first attempt at defence in this case. It would be appreciated if someone could have a look at it for me before I have to submit it which I would like to do on Thursday?

 

In the Northampton (CCBC) County Court

 

 

Claim number XXXXXXXX

 

 

Between

 

 

MKDP LLP

 

and

 

 

XXXXXXXXXX – Defendant

 

 

 

 

DEFENCE

 

 

1. I, XXX of XXXXXXXXXXXX am The Defendant in this action and make the following statement as my defence to the claim made by MKDP LLP

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in The Claimant’s Particulars of Claim and put The Claimant to strict proof thereof.

 

3. The Claimant’s Particulars of Claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the civil procedure rules. (Even allowing for the constraints of the bulk issue system)

 

4. No documents supporting the claim in the particulars have been offered which The Defendant needs to establish what agreement it is that this action is based upon and so The Claimant's claim appears without merit.

 

5. On receipt of the claim form The Defendant sent a CPR 31.14 request for a copy of the agreement, default notice, notice of assignment and a statement of account showing how the amount claimed has been reached which form the basis of this claim.

 

6. The Defendant also sent a formal request pursuant to s.77/78 of the Consumer Credit Act 1974 for a copy of the agreement.

 

7. It has been confirmed via the Royal Mail website that the above letters were received and signed for.

 

8. To date no response has been received from The Claimant.

 

9. As a result, the Claimants claim does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. I am at a disadvantage to respond to this claim. Consequently, I deny all allegations on the particulars of claim and put the Claimant to strict proof thereof.

 

10. It is denied that I have an agreement with MKDP LLP

 

11. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

12. Without admission that any cause of action is shown by The Claimant it is denied that I am indebted to The Claimant as alleged or at all.

 

13 It is alleged the Claimant has an agreement and there has been an Assignment. Within the proof of claim it was stated that there had been an assignment to the Claimant on 08/12/2011. It is contended that no such Notice of Assignment has been served pursuant to Section 136(1) of the Law of Property Act 1925. Without a Notice of Assignment, The Assignment is merely equitable and The Claimant is put to strict proof to disclose this and prove that this claim can commence in their own name.

 

 

14. AND the Defendant

 

Seeks an order that The Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

 

i. Alternatively if the court decides not to strike out The Claimant’s case, it is requested that The Court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

 

ii. The Defendant respectfully asks the permission of The Court to amend this defence if or when The Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

 

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

[slick132]

Hi GT,

 

Throughout the defence, you need to be consistent so you are either "the Defendant" or " I ". I suggest you use the former.

 

In 5. you can mention the date of the 31.14 request. Ditto with 7.

 

1. I, XXX of XXXXXXXXXXXX am The Defendant in this action and make the following statement as my defence to the claim made by MKDP LLP

 

2. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in The Claimant’s Particulars of Claim and puts The Claimant to strict proof thereof.

 

3. The Claimant’s Particulars of Claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the civil procedure rules (even allowing for the constraints of the bulk issue system).

 

4. No documents supporting the claim in the Particulars of Claim have been offered which the Defendant needs to establish what agreement it is that this action is based upon and so the Claimant's claim appears to be without merit.

 

5. On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxdate for a copy of the credit agreement, default notice, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim.

 

6. The Defendant also sent a formal request pursuant to s.77/78 of the Consumer Credit Act 1974 for a copy of the credit agreement.

 

7. It has been confirmed via the Royal Mail website that the above letters were received and signed for on xxdate.

 

8. To date no response has been received from The Claimant.

 

9. As a result, the Claimants claim does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant is at a disadvantage to respond to this claim and consequently denies all allegations In the Particulars of Claim and put the Claimant to strict proof thereof.

 

10. It is denied that the Defendant has any agreement with MKDP LLP

 

11. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. The Defendant does possess any such agreement and is unable to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

12. Without admission that any cause of action is shown by The Claimant, the Defendant denies being indebted to The Claimant as alleged or at all.

 

13. It is alleged the Claimant has an agreement and there has been an Assignment. Within the Particulars of Claim it was stated that there had been an assignment to the Claimant on 08/12/2011. It is averred that no such Notice of Assignment has been served pursuant to Section 136(1) of the Law of Property Act 1925. Without a Notice of Assignment, The Assignment is merely equitable and The Claimant is put to strict proof to disclose this and prove that this claim can commence in their own name.

 

 

14. AND the Defendant

 

Seeks an order that The Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

 

i. Alternatively if the court decides not to strike out The Claimant’s case, it is requested that The Court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

 

ii. The Defendant respectfully asks the permission of The Court to amend this defence if or when The Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

 

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

 

I'll also ask someone better qualified to take a look over the defence and comment.

 

[citizenB]

Looks fine to me slick, but will ask andyorch to also look in

[gettingthere]

Thanks it is appreciated - could they also look at the similar thread re the credit card as I have put a similar defence on there as well?

[Guest]

Thanks it is appreciated - could they also look at the similar thread re the credit card as I have put a similar defence on there as well?

 

here http://www.consumeractiongroup.co.uk/forum/showthread.php?391513-MKDP-LLP-Court-Claim-HSBC-Credit-Card

[AndyOrch]

The Particulars :-

 

 

The Claimant claims the sum of £1x,xxx.xx being monies due from the Defendant(s) to HSBC Bank Plc under a loan agreement regulated by the Consumer Credit Act 1974 which was assigned to the Claimant on xx/xx/xxxx. Notice of Assignment has been provided to the Defendant(s) . The Defendant(s) loan account number was xxxxxx/xxxxxxxx. The Defendant(s) has failed to make payments in accordance with the terms of the loan agreement. A Default Notice has been served pursuant to The Consumer Credit Act 1974 by HSBC Bank Plc. The Complainant claims the sum of £1x,xxx.xx and costs. The complainant has complied as far as is necessary with the Pre-Action Practice Direction.

 

 

 

1. I, XXX of XXXXXXXXXXXX am The Defendant in this action and make the following statement as my defence to the claim made by MKDP LLP

 

2. Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in The Claimant’s Particulars of Claim and puts The Claimant to strict proof thereof.

 

3. The Claimant’s Particulars of Claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the civil procedure rules (even allowing for the constraints of the bulk issue system).Not really vague quite particularised

 

4. No documents supporting the claim in the Particulars of Claim have been offered which the Defendant needs to establish what agreement it is that this action is based upon and so the Claimant's claim appears to be without merit.Not required to

 

5. On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxdate for a copy of the credit agreement, default notice, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim. Ok

 

6. The Defendant also sent a formal request pursuant to s.77/78 of the Consumer Credit Act 1974 for a copy of the credit agreement. Excellent

 

7. It has been confirmed via the Royal Mail website that the above letters were received and signed for on xxdate. Ok but requires dates as per Slick's comments

 

8. To date no response has been received from The Claimant. Accepted

 

9. As a result, the Claimants claim does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant is at a disadvantage to respond to this claim and consequently denies all allegations In the Particulars of Claim and put the Claimant to strict proof thereof.Not acceptable using none disclosure as a means of defence...you either know if you have paid £10K or still owe it?

 

10. It is denied that the Defendant has any agreement with MKDP LLP.... Pedantic...argumentative .... he is aware of the assignment and there must be a valid assignment to enable litigation

 

11. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. The Defendant does possess any such agreement and is unable to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.Again see above

 

12. Without admission that any cause of action is shown by The Claimant, the Defendant denies being indebted to The Claimant as alleged or at all. The cause is that unless he can prove he paid HSBC then he owes it to somebody and most likely MKDP

 

13. It is alleged the Claimant has an agreement and there has been an Assignment. Within the Particulars of Claim it was stated that there had been an assignment to the Claimant on 08/12/2011. It is averred that no such Notice of Assignment has been served pursuant to Section 136(1) of the Law of Property Act 1925. Without a Notice of Assignment, The Assignment is merely equitable and The Claimant is put to strict proof to disclose this and prove that this claim can commence in their own name. Again... see above

 

 

14. AND the Defendant

 

Seeks an order that The Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.You cant request an Order within a defence

 

i. Alternatively if the court decides not to strike out The Claimant’s case, it is requested that The Court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

 

ii. The Defendant respectfully asks the permission of The Court to amend this defence if or when The Claimant provides full disclosure of the requested documents and allows inspection of the original documents.Accepted and only fair

 

 

But if they do disclose all the required documents or the DJ accepts the claim on the balance of probabilities and this being in the Fast Track then the amount could end up as 25K

Edited May 29, 2013 by slick132

[slick132]

As per CitB's suggestion, Andyorch has made the above comments re the draft defence.

 

[gettingthere]

Well we thought we were getting somewhere but now if I am perfectly honest I haven't got got a clue what to do.

 

Can I just go through the points Andyorch has made and see if I can try and explain where we are and see if I can get any advice as to what to do next.

 

No3. Yes I can see that.

 

No.9 He hasn't a clue what he owes - pushed into loan to clear other debts as a young man with no financial experience and has heard nothing from anyone about it since mid 2007. On statement loan is shown with early closure October 2007 and a balance of zero - figure cleared was a lot more than sum being claimed. He did not clear it though.

 

No 10 He has had no paperwork regarding an assignment - does he just take MKDP's word that they sent one or HSBC did?

 

No.11 He has no copy of the agreement although he obviously would have had at some stage.

 

No.12 Without any paperwork again he hasn't a clue if and who he owes money to.

 

13. He has not had an assignment - he is 100% about that.

 

He is sure that when he took the loan out PPI was put on it but again without documentation we have no idea what amount it was.

 

Can I just ask an urgent question here? Is it worth trying to defend this or not? Yes he had a loan, not for this amount it was more. Last payment taken out of a delinquent bank account on 1st May 2007 (was well over its overdraft limit and nothing else was being paid).

 

I have asked this before but he cannot afford to pay anything as he lives hand to mouth now and he would probably have to declare himself bankrupt.

 

If he can defend can anyone suggest a defence that he we can send? I am now completely devoid of ideas and do not know hat to do next for him.

Edited May 29, 2013 by gettingthere

[AndyOrch]

You still defend it but not in the above fashion .....there is a knack to drafting defences and when you are defending claims of this amount it has to be watertight but even more..... credible.When you respond to a claim you simply answer what they have plead...no more.

District judges like honesty but they are not all are completely anti LiP they know these numpties are out for a fast buck and if you lead him he will make them disclose.

 

Cast doubt...I am simply playing devils advocate here.....my responses above are what could be thrown at you by the Claimant or thought by the District Judge...therefore you word it in a way that leaves no wriggle room for the claimant...dont expand as you are providing them with information they don't have.

All that they have is a name and address an account number and a balance......no history/statements or payments and in most cases no agreement or corresponding paperwork.

 

Example Only

 

DEFENCE:

 

1. Paragraph 1 is admitted with regards to the Defendant entering in to an Agreement referred to in the Particulars of Claim ('the Agreement') with XXXXXXXXXX Limited.

2. Paragraph 2 is denied with regards to the amount the Defendant owing monies to the Claimant and the Claimant is put to strict proof to:

 

(i) Show how the Defendant has reached the amount claimed for.

(ii) Show the APR and interest used to calculate the amount claimed for.

 

3. Paragraph 3 is not admitted with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach.

 

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

 

The claimant is also put to strict proof:-

 

(i) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

 

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. This defence will contend that under the Credit Consumer Act enables Section 140A and the court to make an order (under section 140B) if it determines that the relationship between the lender and the borrower arising out of a credit agreement is unfair to the borrower.

I will asseverate that under sec 140a CCA 2006 amendments CCA1974 that the assigned agreement was subject to an Unfair Relationship with XXXXXXX Ltd due to extortionate interest applied.

Also that the agreement was breached by XXXXXXX for failing to adhere to The UKCA guidelines once a payment plan arrangement is in place. The Claimant is "estopped" due to promissory estoppel the original Terms and Conditions agreed were varied.

 

7. Further, by reason of the fact that the Claimant is in default of a section 78 request dated 23rd May 2011, the Claimant has yet to comply with this request and until such time the Agreement cannot be enforced against the Defendant without an order of the Court, until such time they comply with my request.

 

8. 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

[gettingthere]

Thanks Andy - your help is really appreciated. I will sort the defence out again and hopefully get it off tomorrow.