Marlin Court Action on HSBC CC, HSBC already said they hold no CCA - help

[dx100uk]

posts regarding your HSBC case moved to this thread from your MBNA one

 

 

please keep to this thread for the HSBC issues

 

 

dx

[ZENTRIX9]

Thanks DX

[caro]

Caro, thats not what I meant.

 

 

I dont want to send a CCA request,

 

 

they didnt comply with the one I sent before it went to court.

 

 

What I was saying is that the T&C supplied are not the correct ones that go with the agreement,

 

 

so I am looking at the angle of not properly executed and the court ruled on it in my wifes case.

 

I am no expert by any means, and I certainly see where you're coming from. You should certainly make these very valid points clearly and concisely in your WS. Just be aware that if it gets to a hearing without settling first it will very much depend on the judge on the day. Ideally I would suggest that you need to let them see you have strong arguments so that they change their mind about going before the court. Others with better legal knowledge may see things differently but that's my perspective fwiw.

[ZENTRIX9]

Can someone help me on this calculation below?

 

I need to find out what monthly interest rate and APR rate is to be charged on the first statement recieved from HSBC when I had my credit card in 2002.

I am trying to check wether the T&C supplied as the original are the correct ones and the rates are the same if they arent then they are definately the wrong T&C.

 

 

Statement date is 14/08/2002

 

date Balance

05/08 35.00

12/08 25.00

14/08 Cardholder repayment protector 0.76

 

New Balance £60.76

Your credit limit £2500

Minimum payment £5.00

 

The interest charge for next month is estimated to be £0.69.

This is based on the minimum payment £5 credited

to the account by us on the due date. It will vary if either

the amount and/or payment date differs.

 

 

So based on the figures and that the £5 minimum amount was paid on time can I work it back to figure out the interest rates that were charged?

 

I will be posting up my reply to the court before I send it so everyone can have a look.

[ZENTRIX9]

Has anyone on CAG ever thought of trying to get a copy of credit card application forms from the printers who printed them?

Their name and document number should be on paperwork provided.

I might give it a try this week.

[ZENTRIX9]

This is what I have drafted so far as my argument to Marlin trying to get their claim reinstated and summary judgment. I will be adding more.

Can anyone add anything.

 

I believe that HSBC and the claimant Marlin have no valid case due to the fact that neither have followed CCA guidelines and also s61 has not been complied with. My reasons for this are set out below.

1. The terms and conditions supplied are not correct as the monthly interest rate and APR is incorrect. I also do not believe that at the time of signing there were no Prescribed Terms or terms and Conditions present when I signed the document.

2. The signed document is an application/credit card request form, not a credit card agreement. This is stated on the document in the words “I apply for a credit card to be issued to me” and “I understand you reserve the right to decline the application”.

3. The document was in the form of a booklet when signed and no Terms and Conditions were present or part of the document when it was signed. I remember the HSBC representative stating that they had run out of the Terms and Conditions (in the form of a booklet) and it would be sent to me. This makes sense that the T&C were in the form of a booklet so that when the rates changed HSBC would only have to get the T&C reprinted not all the other associated documents.

4. Under Personal Data the document refers to a padlock symbol overleaf where the Terms and Conditions should be. It states “ By signing this agreement you are confirming you have read the terms set out next to this symbol overleaf” There is no padlock present on any documentation supplied as part of the signed document or in any of the Terms and Conditions that have been supplied as a copy of the “Original”

5. At the top of the “Credit card request form” it states ”Once you have completed this form please take it back to your local HSBC branch or post it to HSBC Bank plc”. This also suggests that it is in the form of a booklet.

6. Under Optional Cardholder Repayment Protector it states “I wish to apply for Cardholder Repayment Protector”….. “I have read and understood the Terms and Conditions and understand that I can cancel cover in the next 30 days”

7. In the Carey vs HSBC case Judge Waksman stated “a signed document that states the terms were ‘supplied separately’ or contains phrases such as ‘I have received…’ and ‘I have read …’ would suggest the terms were in another document separate from and not contained within the signed document at the time of signing” supporting the fact that this is an application form and not an executed document.

8. As the alleged “Agreement” has been varied I quote Judge Waksman he discusses this as Issue 2:

 

[69]. “If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?”

 

and after lengthy argument, he concludes:

 

[108]. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

[citizenB]

I will alert andyorch for you, Zen

[ZENTRIX9]

Thanks B, if I can manage to convince the judge that I am right I might be able to get the decision on my wifes card reversed and get the CCJ and charging order removed.

This would mean we would be 16k better off as well

[ZENTRIX9]

Just looking at the agreement and at the side it says who printed it. Someone in Kent.

Looking at the Terms & Conditions it says they were printed in London.

 

So if they were part of the same contract wouldn't it be safe to assume that they would have been printed at the same place?

 

Should I bring this to the judges attention?

[citizenB]

Can we see a copy of their Witness statement in support of the application, Zen ? Apparently your WS should be a rebuttal / response to the application statement.

[ZENTRIX9]

I will have it posted in 10 minutes

[ZENTRIX9]

Heres the witnes statement from Marlin

[ZENTRIX9]

This is a draft of what I was working on as a reply, I would like too add something about s61 and stress that the terms and conditions were not part of the agreement when signed.

 

Background of the Claim

On or around the 17/07/2002 the defendant allegedly entered into a Credit Card Agreement with HSBC. A copy of the reconstituted agreement that was supplied is attached in the paginated bundle.

The defendant submitted a CCA request to HSBC and they did not fully comply with section xxxxxxxx so the defendant put the account into dispute and stopped payments as he is legally obliged to do until HSBC complied with the CCA request. HSBC ignored the defendants letters and issued a default notice ignoring his requests. The account went over the agreed credit limit due to the fact that HSBC kept adding missed payments to the account even though it was in dispute. It is not as the claimant states and was not caused because he drew funds from the credit card which caused the account to go over the agreed credit amount.

HSBC terminated the account on 18/01/2011

On 15/02/2013 HSBC assigned the account to the Claimant. A copy of the assignment was sent to the defendant on 27/02/2013. The defendant replied with a letter xxxxxxx

On 31/05/2013 County Court proceedings were issued against the defendant at Northampton County Court Bulk Centre.

 

The Defendants Position

With reference to the claimants witness statement

Pages 1 – 12. The defendant is unable to read pages 2 – 12 in their entirety, and in some pages not at all

Ref 12. I agree with the claimant, they are entitled to submit a reconstituted agreement. The Carey judgement clarifies the use of reconstituted agreements for the Information Purpose of s78 ONLY. Reconstituted agreements do not offer the Proof Purpose of properly executed agreements. As this agreement is pre April 2007 then the original is needed to continue with court proceedings and should have been obtained before court proceedings were started.

I have attached 3 documents from HSBC stating that they cannot find the Credit Card Agreement. I am at a loss how they can produce a reconstituted agreement when they do not have the original to make sure that it is correct. I also cannot confirm that what has been sent as a copy is in fact correct so I would put the Claimant to strict proof.

13. The defendant does not acknowledge any debt with Marlin.

14. The defendant was issued with a default notice by HSBC

15. The claimant has not been provided with sufficient documents to substantiate that a document was properly executed in accordance with the consumer credit act and therefore the claimant does not have a valid claim.

16 – 18. The defendant does not acknowledge any debt with Marlin

Settlement negotiations

The defendant has not discussed or entered into any settlement negotiations with Marlin and will not do so unless it is ruled by the court that the “agreement” is a valid agreement and has been properly executed in accordance with the consumer credit act

 

Summary

When the claimant originally started court proceedings a stay was put on court action obviously for a valid reason. To my knowledge the circumstances in this case have not changed. Marlin have supplied the defendant with the same paperwork that HSBC did, except that the copies from Marlin are degraded end even harder to read and illegible in some instances.

It is the defendants case that this credit agreement is not enforceable on the grounds that all of the prescribed terms within the meaning of the Consumer Credit Act 1974 were not contained in the document signed by the defendant. That the only document signed by the defendant was a HSBC application form signed with the date of 17/07/2002.

HFO Capital Limited v Roland Wegmuller

 

I submit that the claimant has failed to disclose any reasonable ground for continuing with the claim and the defence should, therefore, be struck out pursuant to CPR 3.4(2)(a) and/or in the alternative the claimant has no real prospect of the claim and there is no compelling reason why this case should be disposed of at trial.

I therefore invite the court to dismiss the claimants claim.

[AndyOrch]

Cant rely on a reconstituted version for enforcement purposes on a pre 2007 agreement so you need to attack all that Carey dross...draft your WS in response to their points raised and number the same...post up once completed Zentrix and Ill add a few bombshells to finalise it.

 

Regards

 

Andy

[ZENTRIX9]

Thanks Andy, you're the man!

[ZENTRIX9]

Hi Andy Yorch, I think I have my response done now. Could you have a look over it for me please and let me know if anything needs adding or changing please.

I will add it to the witness statement form so it has the case number etc etc

Here it is below.

The court date is the 19th so I need to get it off in the next couple of days.

 

Background of the Claim

1 On or around the 17/07/2002 the defendant allegedly entered into a Credit Card Agreement with HSBC. A copy of the reconstituted agreement that was supplied is attached in the paginated bundle.

2 A request was made under the customer Credit Act 1974,by way of a section 77/78 for a copy of the agreement, and on payment of the statutory fee of £1.00; the Claimant is and remains in Default of said s77/78 request. Any Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that both the Original Creditor and the Assignee remain in default by reason of Section 78 of the Act. HSBC did not fully comply. The defendant put the account into dispute and stopped payments as he is legally obliged to do until HSBC complied with the CCA request. HSBC ignored the defendants letters that they had not complied with the request and issued a default notice. The account went over the agreed credit limit due to the fact that HSBC kept adding missed payments to the account even though it was in dispute. It is not as the claimant states and was not caused because he drew funds from the credit card which caused the account to go over the agreed credit amount.

3. HSBC terminated the account on 18/01/2011

4. On 15/02/2013 HSBC assigned the account to the Claimant. A copy of the assignment was sent to the defendant on 27/02/2013. The defendant replied stating that the account should not have been assigned to them as the account was in dispute with HSBC and did not recognise their claim.

5. On 31/05/2013 County Court proceedings were issued against the defendant at Northampton County Court Bulk Centre.

6. The claim was stayed.

7. The claimant now seeks to get the stay set aside and wants the court to grant summary judgment.

8. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

9. A request was made under the customer Credit Act 1974,by way of a section 77/78 for a copy of the agreement, and on payment of the statutory fee of £1.00; the Claimant is and remains in Default of said s77/78 request. Any Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that both the Original Creditor and the Assignee remain in default by reason of Section 78 of the Act.

 

10. It is therefore not accepted 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 executed agreement with the Claimant; and

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

c) evidence any nature of breach and provide proof of any Default Notice and Notices of Sums in Arrears;and

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

 

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

 

12. On the alternative, as 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.

 

13. The Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that both the Original Creditor and the Assignee remain in default as set out above and by reason of Section 78 of the Act.

 

14. 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.

 

I believe that Marlin have not complied with s61 and also the requirements of s78 i.e. incipient T&Cs .

 

The Defendants Position

With reference to the claimants Witness Statement.

15. pages 1 – 12 supplied are not clearly legible. The defendant is unable to read pages 2 – 12 in their entirety and in some pages not at all! He is unable to read them properly so is unable to say conclusively that the documents are an accurate representation of the alleged credit agreement.

16. I agree with the claimant, they are entitled to submit a reconstituted agreement. The Carey judgement clarifies the use of reconstituted agreements for the Information Purpose of s78 ONLY. Reconstituted agreements do not offer the Proof Purpose of properly executed agreements. As this agreement is pre April 2007 then a copy of the original will be needed to continue with court proceedings and should have been obtained before court proceedings were started.

17. I have attached 3 documents from HSBC stating that they cannot find the Credit Card Agreement. I am at a loss how they can produce a reconstituted agreement when they do not have the original to make sure that it is correct. I also cannot confirm that what has been sent as a copy is in fact correct so I would put the Claimant to strict proof.

18. The defendant does not acknowledge any debt with Marlin.

19. The defendant was issued with a default notice by HSBC.

20. The claimant has not been provided with sufficient documents to substantiate that a document was properly executed in accordance with the consumer credit act 1974 and therefore the claimant does not have a valid claim.

Settlement negotiations

21. The defendant has not discussed or entered into any settlement negotiations with Marlin and will not do so unless it is ruled by the court that the “agreement” is a valid agreement and has been properly executed in accordance with the consumer credit act. It his is the case the defendant is more than willing to negotiate with Marlin to reach an agreement.

 

Summary

22. When the claimant originally started court proceedings a stay was put on court action obviously for a valid reason. To my knowledge the circumstances in this case have not changed. Marlin have supplied the defendant with the same paperwork that HSBC did, except that the copies from Marlin are degraded end even harder to read and illegible in some instances.

23. It is the defendants case that this credit agreement is not enforceable on the grounds that all of the prescribed terms within the meaning of the Consumer Credit Act 1974 were not contained in the document signed by the defendant. That the only document signed by the defendant was a HSBC application form signed with the date of 17/07/2002.

 

24. Where an agreement has been varied in accordance with section 82(1) of the Act, every copy of the executed agreement given to a debtor, hirer or surety under any provision of the Act other than section 85(1) shall include either—

 

(i). an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied; or

 

(ii). an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act”.

 

Judge Waksman discusses this as Issue 2:

 

[69]. “If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?”

 

and after lengthy argument, he concludes:

 

[108]. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

25. I submit that the claimant has failed to disclose any reasonable ground for continuing with the claim and the defence should, therefore, be struck out pursuant to CPR 3.4(2)(a) and/or in the alternative the claimant has no real prospect of the claim and there is no compelling reason why this case should be disposed of at trial. I therefore invite the court to dismiss the claimants claim.

[AndyOrch]

Needs a lot of work Zen...I lost interest at point 3....why have you put your defence in the middle of it?

 

Here is a recent one I have drafted...you respond to the points they make...dont over add your own.

 

 

BETWEEN:

LOWELL PORTFOLIO I LTD Claimant

-and-

Defendant

 

WITNESS STATEMANT OF MR XXXXXXXXX

 

I.Mr XXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1.It is admitted that I have held a current account with Lloyds in the past. The account was opened on or around xxx xxxx 19xx and used to facilitate the payment of my income and expenditure.

 

2.It is denied that I entered into an agreement on the 5th October 1998.It is admitted that I accepted a facility/service offered by Lloyds to be able to overdraw to a limit set and reviewed by Lloyds on the balance of the above current account.

 

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by Lloyds due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair Terms in Consumer Contract Regulations 1999 on this point.

 

4.It is denied that I defaulted on an “ agreement “ an Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which Lloyds failed to comply with.

 

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. If the debt was assigned to the claimant on 24th June 2013 why do they state within their Witness Statement they allegedly served me on the 10th July 2014 (12 months after assignment)?.

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

 

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

Again it is denied any Notice of Assignment was ever received.

 

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

 

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

 

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

It is totally unacceptable to suggest as per the Witness Statement point 12 that documents and T&Cs/statements were sent throughout duration of the account and purely an attempt to avoid its responsibilities in proving its claim or rather they do not hold any proof and not expected to validate their claim legally.

 

7. The claimant’s points at 13 & 14 are either an attempt to mislead the court or a lack of understanding of the CCA1974 legislation. You cannot request by way of a section 77/78/79 for copies of an Overdraft Facility arrangement, hence none was made. The claimant is still liable to disclose a copy of the facility arrangement confirmation and Terms and Conditions from that date pursuant to section 61B of the Consumer Credit Act.

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

 

8. Point 16 of the Claimants Witness Statement is irrelevant and nonsensical

 

9. Point 17 again is irrelevant, neither the claimant nor its Witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter and will have to disclose all documentation relied upon as the basis of their claim at trial.

As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

 

10. Point 18, it is the witness’s opinion only that my defense is not valid nor has prospect of success. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

 

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out under CPR 3.4 as having no basis.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed ……………….

 

Dated on the day ………………..2014

 

PS who is Andy Yorch?

[ZENTRIX9]

Thanks I will sort it out, I ama bit tired and have fat fingers too. Lol

[ZENTRIX9]

Is this any better andyorch?

 

I.Mr xxxxxx the defendant in this claim make the following statement believing it to be true will state as follows:-

 

2.It is denied that I entered into an agreement on the 17th July 2002. It is admitted that I signed a credit card request / application form for a credit card offered by HSBC.

 

3.It is denied that I exceeded the credit limit on the credit card due to drawing sums from the credit card. A residue created by HSBC due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed credit limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair Terms in Consumer Contract Regulations 1999 on this point.

 

4.It is denied that I defaulted on an “ agreement “ a credit limit is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which HSBC failed to comply with.

 

5. For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

 

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

It is denied any Notice of Assignment was ever received.

 

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

 

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

 

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

It is totally unacceptable to suggest as per the Witness Statement point 20 that documents and T&Cs/statements were sent throughout duration of the account and purely an attempt to avoid its responsibilities in proving its claim or rather they do not hold any proof and not expected to validate their claim legally.

 

7. The claimant’s points at 24 & 25 are either an attempt to mislead the court or a lack of understanding of the CCA1974 legislation. You cannot request by way of a section 77/78/79 for copies of, hence none was made. The claimant is still liable to disclose a copy of the facility arrangement confirmation and Terms and Conditions from that date pursuant to section 61B of the consumer credit Act 1974.

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

 

8. Point 19 of the Claimants Witness Statement is irrelevant and nonsensical

 

9. Point 15 & 20 is irrelevant, neither the claimant nor its Witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter and will have to disclose all documentation relied upon as the basis of their claim at trial.

As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

 

10. Point 18, the claimant is not in a position to assume that the assignment is legitimate, it must be proven that the assignment was carried out as pursuant to the Law of Property Act 1925 (sec136)

11. I submit that the claimant has failed to disclose any reasonable ground for continuing with the claim and the defence should, therefore, be struck out pursuant to CPR 3.4(2)(a) and/or in the alternative the claimant has no real prospect of the claim and there is no compelling reason why this case should be disposed of at trial. I therefore invite the court to dismiss the claimants claim.

[ZENTRIX9]

Just read something on the claimants application notice it says :-

 

Should the defendant wish to rely on written evidence at the hearing they should file such evidence with the court and serve a copy on the claimant not less than 14 days before the hearing pursuant to CPR part 25.5(1)

 

Does that mean my witness statement I am working on now?

[ZENTRIX9]

I have just had another look at the terms and conditions i was sent as the originals for the CCA request I sent and have only just noticed that there is a page missing! Thats how it was sent. Its also gt a page missing on the copies that Marlin have sent me. does this mean I have a very good poin to maket that the original and now the new claimant have not complied with my CCA request, thus proof that the debt shouldnt have been assigned?

[ZENTRIX9]

I have sent off my witness statement to Mortimer Clarke and the Court so just have to wait now till the court date.

 

Looking through everything I have written down all the points that I feel I need to bring to the Judges attention on the day if they are inclined to listed to the claimant if they try to sidestep the facts. If anyone thinks there is anything I have missed or there is something that may help, please feel free to comment. I will be at court on the 19th.

 

Terms and conditions validity argument

 

The signed document is an application/credit card request form, not a credit card agreement. This is stated on the document in the words “I apply for a credit card to be issued to me” and “I understand you reserve the right to decline the application”.

 

The document was in the form of a booklet when signed and no Terms and Conditions were present or part of the document when it was signed. I remember the HSBC representative stating that they had run out of the Terms and Conditions and a copy would be sent to me. This makes sense that the T&C were in the form of a booklet so that when the rates changed HSBC would only have to get the T&C reprinted not all the other associated documents.

 

3. At the top of the “Credit card request form” it states ”Once you have completed this form please take it back to your local HSBC branch or post it to HSBC Bank plc”. This also suggests that it is in the form of a booklet.

 

4. Under Optional Cardholder Repayment Protector it states “I wish to apply for Cardholder Repayment Protector”….. “I have read and understood the Terms and Conditions and understand that I can cancel cover in the next 30 days”

In the Carey vs HSBC case Judge Waksman stated “a signed document that states the terms were ‘supplied separately’ or contains phrases such as ‘I have received…’ and ‘I have read …’ would suggest the Prescribed Terms were in another document separate from and not contained within the signed document at the time of signing” supporting the fact that this is an application form and not an executed document.

 

As the alleged “Agreement” has been varied I quote Judge Waksman he, discusses this as Issue 2:

 

[69]. “If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?”

 

and after lengthy argument, he concludes:

 

[108]. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.

The Reconstituted Credit Card Request Form does not have the correct postal address, the postcode is wrong.

The Reconstituted Credit Card Agreement has been printed by “St Ives, Edenbridge” 01/02

The Agreement Terms as supplied as “original” has been printed by “Keldia Printing Co. London” 04/02

The reconstituted Credit Card Request Form on the rear under personal data states “ By signing this agreement you are confirming you have read and accepted the terms set out next to the symbol overleaf”. There is no symbol present on the terms and conditions supplied as “original”

Overleaf - Taken from the Oxford English Dictionary.

Definition of overleaf in English:

ADVERB

On the other side of the page:

an information sheet is printed overleaf

This makes me believe that the document supplied as “original terms” was not part of the original document because it is in the form of a booklet.

The terms supplied also have the “Cancellation Form” at the back of the document whereas on the “Credit Card Request Form” states ”Once you have signed this Agreement, you will have for a short time a right to cancel it. Exact details of how and when you can do this will be sent to you by us by post”. This wording would suggest that the cancellation form would not have been present in the original document.

Monthly rate stated on the terms and conditions supplied as the “original” is 0.945% for the first 6 months and 11.9% APR for this period.

55.76 x 0.945% = 0.53p (if the minimum payment has been made)

60.76 x 0.945% = 0.57p

The first statement issued shows that the interest charge for the following month will be £0.69 based on the minimum payment of £5 being paid. 60.76 – 5.00 = 55.76

This would suggest that the Monthly interest rate being charged is 1.245%

55.76 x 1.245% = 0.69p

 

The calculations above suggest that the monthly interest rates on the terms and conditions showing 0.945% are incorrect and again enforces the fact that the terms and conditions supplied are not the original.

The points set out above would suggest that the Agreement Terms supplied as “original” would substantiate my claim that they would not have been present at the point of signing.

I submit that the terms supplied as “original” is a generic booklet which has been substituted to legitimise the claimants claim.

If there are “original” terms and conditions, I submit that they should have been supplied to me with my CCA request, SAR request and by the assignee, but they have not. These facts coupled with the documents supplied from HSBC stating that they cannot find the original agreement would only enforce the case that the claimant has no real prospect of pursuing their claim.

[ZENTRIX9]

I'm in court on Monday, anyone have any suggestions on what to say to the judge, any quotes?

[ZENTRIX9]

UPDATE

 

Just got back from court. The Judge ruled in favor of the claimant, in part.

The amount that the assignee was chasing was not recognized as the amount that was payable so he granted only in part.

 

What I have to do now is work out what the correct amount is.

anyone got any pointers.

The account was missold PPI and I was paid out By HSBC after they sold on the debt so it wasnt taken off the balance.

They also refunded some bank late payments which they took off the balance before they sold the debt.

The amount being chased in court also includes interest payments that were missed when I put the account into dispute and stopped paying them.

 

So the question is where do I start?

 

I have 2 weeks to file at court but what I would like to do is work out the amount then make an offer so it doesn't go to trial.

 

I know I was refunded by HSBC for the PPI and that was after they sold the debt but does it mean that it can be applied to the balance being chased in court?

[dx100uk]

have you all the statements?

 

 

dx