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


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You're correct about the 14 days being invalid, it should be thrown out of court on this alone

 

However, on the "arrears only" issue there seems to be a fair amount of debate on this and it is not something I would try as a LIP, though others may disagree with me on this

 

How much is being claimed (dont give the exact amount as this may give clues to the other side, just say "in excess of" or "in the region of"

 

Is it likely to be Small claims (less than 5k), Fast Track (less than 15k) or Multi Track (15k+) - if its likely to go either fast or multi track (quite often it can be argued that even small claims value should go to fast/mult on the complexity of the case), it might be worth running by a no win no fee solicitor to see if they are interested?

 

Others may disagree but I would certainly consider legal representation if its likely to go to fast or multi

 

If it will stay in small claims you could probably get it argued out on the basis of the default notice being invalid (with the help of the good people on here), but you do need to read carefully

 

:|

omnia praesumuntur legitime facta donec probetur in contrarium

 

 

Please note: I am not a member of the legal profession, all advice given is purely my opinion, if in doubt consult a professional

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ncf355, thanks for that. The sum is somewhere between 3k - 4k with Santander, just over 10K with MBNA. I have other issues with MBNA, I have a claim with them for almost the amount outstanding for something I paid for and didnt get so I put in a claim and they have fobbed me off for nearly 2 years. I have been paid out by another card company for the balance of that purchase on their card without any problem at all. I am now sending the forms off to FOS as they wont talk to me on this matter anymore. Thats one of the reasons why I stopped paying them.

Either way I have to prepare a defense, will the court consider the above and that they havent complied with the refund or just look at the fact that I owe them the money?

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Don't waste your time pursuing a defence based on providing copies of the agreement. They only have to provide you with a copy of the original agreement, which it is permitted to reconstruct rather than be an actual copy. Seems they have complied - what you have asked for is not relevant, it's what they are obliged by the CCA to provide that is. Santander acquired GE's card business a few years ago so your relationship is with Santander now not GE. Not sure about whether the default notice is defective, but even if it is they are still entitled to sue you for the arrears. Suggest you make a part-admission for the amount of the arrears and dispute the remainder based on a defective default notice.

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I have been looking at my MBNA agreement (25/07/2005) that was sent to me with a CCA, scans are below. I havent dated the "agreement", I also see that my terms and conditions only 1 to 3 are present on the form and that the rest are on 2 sheets of A4 paper and on the top it states "Please refer to your Credit agreement for conditions 1,2 and 3. The back of the application form doesnt have the remainder of the terms and conditions on it either. As far as I can see it doesnt say anywhere on the application form that the missing part of the terms and conditions are on the reverse or any other attached documents. Does this make this document unenforcable in any way?

 

http://i911.photobucket.com/albums/ac318/zentrix9/MR%20VIRGIN%20MNBA/applicationfront.jpg

 

http://i911.photobucket.com/albums/ac318/zentrix9/MR%20VIRGIN%20MNBA/applicationback.jpg

 

I have also had a copy of my "agreement" when I requested a SAR and its the same exept that they have not attached the terms and conditions from 4 onwards but I have 6 A4 sheets titled "this is a copy of your agreement for you to keep" and its different? The terms dont match the agreement. Any thoughts?

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PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

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As I see it they have sent me paperwork from my CCA request that falls short of what I have asked for. They have sent me a copy of my CCA with terms and conditionslink3.gif but the APR rate has changed

 

If HC have referred to an agreement, and have quoted a specific APR on the POC. If the CCA they have provided has a different rate, then this is not the agreement they are referring to.

Have there been any other changes to this GE card. Is it a storecard ?

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I have today sent to Santander my letter of acceptance of their unlawful repudiation along with a copy of the faulty default notice. Howard Cohen Solicitors have also been sent a copy of the default notice explaining why it does not conform to the prescribed form as set out in the consumer credit act 1974. I have stated that if it continues to go to court that I will sue them for damages to my credit history and claim compensation.

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Is it still safe to accept repudiation anymore, i only ask in light of the harrison case the other week whereby the default notice can be resubmitted. Also, i am sure i read in another thread that someone lost their court case due to the fact that they had accepted repudiation and the judge had said that they therefore had been seen to accept the original debt.

 

Not sure of what thread that was as i have read so many lately but will link if i find it.

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I dont know really.

The way I look at it is if they are stating on the court form they issue that they are claiming under the consumer credit act 1974 that I have not paid them, then surely I can claim that they have not abided by the same rules and regulations set out in the same act and claim unlawful repudiation, thus making the debt non existant. If they are claiming using the Consumer credit act then they should be bound by its rules as well.

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I havent said that I dont owe them the original debt, as they have unlawfully closed the account then legally they are only entitled to any arrears that are due. However I have asked them to let me know what that amount is and that I may sue for damages.

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I have had a reply from Santander saying that they dont agree and that they gave me 14 days to rectify the default and I didnt, and that the Lewis group are now the legal owners of the debt. I called the court and chatted to a nice lady and told her that the amount they were claiming was pretty much the same as the amount that they had not refunded my credit card for a purchase I made and didnt get. I filled her in on the history and that they would no longer talk to me about the claim and that they said to contact the FOS. She said I could make a counterclaim which iswhat I will do. I have to put in the counterclaim by the 27th so would it be worth writing to Howard Cohen (santanders other half) with my intentions to see if they will look at offsetting their claim against mine?

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  • 2 weeks later...

I will be sending this letter to MBNA and Optima legal tomorrow. I have 6 days left to submit my defense. Can someone please tell me if the letter is ok to send.

 

Dear sir,

I write in respect of the claim I issued to you under section 75 of the consumer credit act 1974 for which I hold you jointly and severally liable for the breach of contract with “*********” and therefore seek the same resolution as requested to the liquidators of the above company (A full refund). I also require you to refund me any interest payments I have made for the purchase including statutory and compound interest. This amount equates to approx ********( just over 10k ).

You have recently filed a claim against me for the sum of ******** in regard to the account that you have not processed the above refund. This amount also includes charges and interest that you have added unlawfully while the account was in dispute as set out in the consumer credit act 1974.

If you abide by the rules set out under section 75 of the consumer credit act and refund me what is due then there will be no need to continue with the court claim as there would no longer be an outstanding balance. I find you at fault, you have not adhered to section 75.

Sending me a letter saying that you will no longer speak to me about the matter and to contact the F.O.S. as you don’t have the documentation asked for is not good enough and clearly shows that you have no intention of complying with my claim under section 75. I have supplied the documentation and have proof that you have had it. Telling me I have 6 months from the date of this letter to contact the F.O.S. if I am dissatisfied with the service and then issuing a court claim approx 2 ½ months later does not give the F.O.S. time to assess the case! Not giving the F.O.S. enough time to mediate an outcome before going to court I feel will also be seen as wasting the courts time on your behalf.

I am more than willing to talk to you about the above and come to a resolution as I feel that continuing with court action will only be seen as wasting the courts time. I have reported the situation to the F.O.S. and they are looking into the matter.

If the court claim continues I will submit a counterclaim for the non-compliance to the section 75 claim and sue for damages to my credit history, compensation and costs.

I formally ask you to supply me the following :-

Please supply me with copies of all documents (under CPR 31.14) mentioned within the court claim you have issued against me. i.e. Credit card agreement, default notice etc.

You have 7 days to facilitate the request as set out under CPR 31.15.

I also ask for an extension of time, 28 days, under CPR 15.5 to prepare my defence based on your reply to this letter as I cannot prepare a defence without the documentation you hold.

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  • 2 months later...

Update, I have had an extension agreed then submitted an embarrased defense as the Terms and Conditions supplied could not easily be read (microfishe copy). They have gone past the stipulated time to reply to my defence and a stay has been put on the claim.

My question is, do I go for a strikeout? If I do and its granted what can happen next?

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I forgot to mention that this account was in dispute. I read somewhere that while in dispute I am not obliged to make any payments to the account, the bank paying money off my credit card in my eyes is seen as me paying money off the balance, I did not authorise this. Can I make them reverse it and send me a cheque?

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Zentrix9 You will find with most banks/credit card companies that if a debt exists on the account in question and you claim back PPI or an error as in your case as well they will Ofset the amount to reduce the debt balance and they can do this.

 

I am sure some Cagers will be able to confirm they received a cheque even though a debt still exists,in general Ofset happens.

 

Very much like yourself I think this is wrong,certainly where mis-sold PPI is involved,because they are taking money that was never theirs( by their own admittance) in the first place.

 

If the account is in Dispute they should not be able to touch the money but they will

 

Regards FS

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What I cant understand is that if the account is in dispute how are they legally entitled to credit an alleged balance? surely they would have to prove that I owed it them in the first place by producing the agreement, and after they have admitted in writing twice that they have lost it! (even though its an application form with no prescribed terms within the 4 corners)

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The CC in dispute did you CCA HSBC in the first instance or is this a dispute in writing concerning the underpayment?

 

The CCA approach the banks are almost ignoring,as they are aware that in a court situation a Recon agreement or application plus proof you have used the money and made payments is sufficient to win any case they have pursued.There is to the best of my knowledge this year all CCA court cases have gone in favour of the banks

 

regards FS

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The CC in dispute did you CCA HSBC in the first instance or is this a dispute in writing concerning the underpayment?

 

The CCA approach the banks are almost ignoring,as they are aware that in a court situation a Recon agreement or application plus proof you have used the money and made payments is sufficient to win any case they have pursued.There is to the best of my knowledge this year all CCA court cases have gone in favour of the banks

 

regards FS

 

Yes I issued a CCA, they couldnt supply my agreement, then a SAR, still couldnt. They have been chasing approx 10 months now and still keep getting their debt collectors after me, however I got a letter today from their ****** collectors offering me an early settlement discount of 30% and if I couldnt manage it I could start paying off monthly for £50 if I wanted to and would be later reviewed again.

Do they think I am thick? They obviously have a problem on collecting or why else would they now start being nice?

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Not that I would stick up for the banks but what was the credit for?

 

Could it be said that they were not actually crediting the account, but removing a debit which should not have been there?

 

This is still unpleasant but understandable

 

If ya know what I mean.

HTH (Hope This Helps) RDM2006

 

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I purchased something a couple of years ago and never got the goods so I put in a claim for the money I paid out. They told me I could only claim back the interest I had paid from the day I had reported it (BULL!) which was about £550, now I know that they told me a load of BULL I have now had another £1700 ish. Thats what the credits were for, interest I had paid for goods not recieved.

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Did you claim for the goods that were not received?

 

Don't forget you can on a credit card. (even if you only charged a deposit to the card)

 

Can't remember the case history on it but i am sure someone can

 

(something about they are equally as responsible as the seller/provider if I remember correctly).

HTH (Hope This Helps) RDM2006

 

THE FORCE (OF CAG) IS WITH YOU

;)

 

We've Helped You To Claim - Now Help Us Remain

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All advice and opinions given by people on this site are personal, and are not endorsed by Consumer Action Group or Bank Action Group. Your decisions and actions are your own, and should you be in any doubt, please seek qualified professional legal Help.

 

However, if you have found any advice you have been given helpful.

Why not show your gratitude And

Click the * on the post you found helpful.

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Did you claim for the goods that were not received?

 

Don't forget you can on a credit card. (even if you only charged a deposit to the card)

 

Can't remember the case history on it but i am sure someone can

 

(something about they are equally as responsible as the seller/provider if I remember correctly).

 

 

Yes, done that, to be honest they paid me out without any problem and asked how I wanted it as well, credit the card balance, pay into bank account or a cheque. Thats why I am miffed that they reduced the balance on the credit card with the credit they gave me for the interest that I had paid out all the time that I had not received the goods I purchased. I will see what the FOS say.

Also when they credited the interest back they didnt give me a choice they just did it without telling me, then I got a letter so I wasnt even told what they were going to do until it was too late.

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