Claim received MKDP / HSBC Vs NTTF***Claim Dismissed***

[NewToTheFight]

I have received a claim form for a very old Access account. Despite a couple of requests, HSBC have confirmed they do not have the original agreement. On the S77 response they put my current address- not the one at the time of conception & there is no date of conception. DN is faulty - not enough time.

Is this enough to kill the claim?

My thoughts were to acknowledge via MCOL, 31,14 request to obtain agreement, DN & TN which they intend to rely on. Submit defence & application to strike as no realistic prospect of winning.

I'd appreciate any help or input.

[AndyOrch]

Sounds like a good plan NTTF...not sure about the application to strike out...on what legal basis would you request that?

 

Regards

 

Andy

[NewToTheFight]

My thinking was

a) They have not complied with a historic S77 request (can't of - address is wrong)

b) DN is faulty

They do not have the right to make a claim for sums not yet due as they have abused process

Once the claim struck out they can't come back on the same evidence

Also I have a letter from HSBC saying they don't have the original agreement, they did have but they don't now.

I was under the impression that is was a prerequisite of a claim to have the paperwork so was thiinking of using an N266 to get them to admit they have not.

As the debt has been assigned they would have difficulty in reissuing a DN or in bringing a new claim on the same evidence.

[AndyOrch]

Well if you have all that going in your favour then just submit your defence and attain success..then it cant ever re surface again.

Either party can use the N266 to request that the other party to the claim admits facts which are non-contentious or on which they both agree. The party receiving this request can use the same form to admit the facts, and it then becomes unnecessary for either party to produce evidence on these facts at trial.

I doubt very much MKDP would agree but by all means try.

 

Regards

 

Andy

[NewToTheFight]

I have sent S77 & SAR direct to HSBC

31.14 for documents to claimant, asking for copies of the agreement, DN,TN & NoA that they intend to rely on and to confirm the assignment is absolute

Also sent 31.15 request to view the original agreement which they intend to rely on.

I assume they will not be able to comply therefore frustrating my attempts to respond to the claim.

I believe the bad DN prevents them from issuing (which they have done) and the sale to a company which cannot supply credit means the account is now closed

This I believe prevents them from issuing a new DN but ass they have not issued on the grounds of a contractual termination I suggest they are in great difficulty

Do you think I am on the right lines?

[NewToTheFight]

Can anybody please advise when Access became MasterCard and Midland became HSBC please?

Many thanks

NTTF

[AndyOrch]

Can anybody please advise when Access became MasterCard ( 1996 ) and Midland became HSBC please? (1992)

Many thanks

NTTF

 

Regards

 

Andy:cool:

[goodatresearch]

Not quite true. I opened a Midland Bank student current account in 1996 in a Midland Branch (although midland was part of the HSBC at this time). They provided me with a Midland Visa and Mastercard account at the same time i.e. 2 cards but one limit. I have 2 credit card statements from 1997 which state "Midland combined Visa and Mastercard (Access) account." At some time after I was told that the account was closing and they would transfer the account to a new one and I was to tick a box stating whether I wanted a Visa or mastercard account - no new agreement signed.

[AndyOrch]

Midland joins the HSBC Group

 

The Hongkong and Shanghai Banking Corporation acquired a 14.9% equity interest in Midland Bank in 1987, and a strong working relationship developed. In 1989 First Direct was established and was at the forefront of telephone banking, with person-to-person service available 24 hours a day, 365 days a year.

In 1992, HSBC Holdings plc acquired full ownership of Midland Bank. At the time it was one of the largest acquisitions in banking history, and gave HSBC a major foothold in Europe, which it needed to complement its existing business in Asia and the Americas, when it had to move its Hong Kong-based headquarters to London in 1 January 1993, accepting primary banking supervision by the Bank of England. Midland Bank was renamed HSBC Bank in 1999 as part of the adoption of the HSBC brand throughout the Group.[1]

[goodatresearch]

Pointless nitpicking. I am well aware when Midland became part of HSBC. I was merely pointing out that I opened a bank account in a Midland Bank branch in 1996 and still had a Midland Credit Card account in 1997. I am looking at a 1997 Credit Card Statement now and it says Midland Visa and Mastercard (Access) Account. For the avoidance of doubt, it actually states Access although its dated 1997. Please read what I have actually stated, i did say it was part of HSBC Holdings at this time. I provided this information to assist anyone who has had HSBC trying to pass off a HSBC recon around this time when I have evidence that the recon should read Midland

[AndyOrch]

No nitpicking at all ...simply answering the posters question.....no one disputes that you may have of opened your account in 1996 under the Mdland Banner...i takes time to fully integrate a merger/takeover.

[NewToTheFight]

I have not received a reply to my S78 request, I telephoned to ask when I may expect my reply.

I was told they have requested the docs from HSBC & it may take 4-6 weeks, and they would give me 14 days after to submit a defence.

I have asked them to confirm in writing & to the court - they have yet to do this.

When I questioned them as to why they have issued without docs they told me they don't need them normally as they have written to me several times & I have not responded (they obviously think they will get a default judgement).

 

I called HSBC, the conception date of the account preccedes the HSBC merger and the mastercard rebrand (considerably) and my move to my current address

 

How best to play the situation?

They have no standing in court as they have not complied with 3 S77 requests (2 to OC)

They have no standing in court as they have not issued a compliant DN

The account has been sold to a company which cannot offer a running credit agreement so I believe the account is now closed therefore a DN which is compliant cannot be issued

They have no LoP compliant assignment delivery

And there may be unlawful charges but I am awaiting my SAR respose to check this

 

I am minded to compile a short defence using the above points, point out that the action is an abuse of process

Ask the court to strike out with costs in my favour (below £10k but yet to be allocated)- lots of research though, should be worth £4-500?

Ask for compensation (as per Mitchel Vs RBS I think) as I have repeatedly written to the OC's representatives askinng them for my S78 copy which I am entitled to

What do you think?

 

NTTF

[NewToTheFight]

Any comments on my thoughts?

I'm getting close to having to submit a defence

 

Bumping

NTTF

[NewToTheFight]

Bump

[AndyOrch]

Responding to your PM NTTF

 

I have not received a reply to my S78 request, I telephoned to ask when I may expect my reply.

I was told they have requested the docs from HSBC & it may take 4-6 weeks, and they would give me 14 days after to submit a defence.

I have asked them to confirm in writing & to the court - they have yet to do this. If you require an extension to your defence date it is done using CPR 15.5 and its your duty to inform the court ..not the claimants

When I questioned them as to why they have issued without docs they told me they don't need them normally as they have written to me several times & I have not responded (they obviously think they will get a default judgement). Yes and no they are not required to as the system can not facilitate it but they will require them at Standard Disclosure

 

I called HSBC, the conception date of the account preccedes the HSBC merger and the mastercard rebrand (considerably) and my move to my current address

 

How best to play the situation?

They have no standing in court as they have not complied with 3 S77 requests (2 to OC) Accepted

They have no standing in court as they have not issued a compliant DN (Mmm arguable they only have to produce a trace that one was issued)

The account has been sold to a company which cannot offer a running credit agreement so I believe the account is now closed therefore a DN which is compliant cannot be issued>They dont need to they have acquired your agreement they are now the legal owners and will rely on the original DN.

They have no LoP compliant assignment delivery They can soon produce a redacted copy of the NoA if they dont have the original

And there may be unlawful charges but I am awaiting my SAR respose to check this ...that's not a defence

 

I am minded to compile a short defence using the above points, point out that the action is an abuse of process

Ask the court to strike out with costs in my favour (below £10k but yet to be allocated)- lots of research though, should be worth £4-500? Not going to happen Small Claims Track

Ask for compensation (as per Mitchel Vs RBS I think) as I have repeatedly written to the OC's representatives askinng them for my S78 copy which I am entitled to Again not going to happen

What do you think?

 

NTTF

 

Apart from the none compliance to your section 77 request.....the rest is a" clutching at straws " proposed defence.You dont require the rest just defend on the none compliance...sounds more credible and less desperate.

 

Regards

 

Andy

[NewToTheFight]

It is very unlikely they can produce compliant docs.

a) A reconstituted original agreement has been provided on a couple of occasions - miles out

b) HSBC have confirmed they do not have the original agreement on 2 occasions in writing

c) The DN is faulty and a S88 compliant DN is mandatory to request sums not yet due

d) I have demands from them for the full amount which predate and postdate the faulty DN

e) If a compliant DN is not issued I thought the agreement had endured, therefore the Claimant needs to have a licence to offer a running credit agreement

f) I was under the impression that the Lop Act required service by recorded mail, nobody is arguing the assignment happened (scuppers (e) if it did not).

g) Unlawful charges would inflate the amount claimed therefore making the claimed amount incorrect

h) I thought as the claim was not yet allocated small claims rules did not apply (hence being able to use 31.14 requests - therefore surely costs are claimable?)

I) If costs are not claimable what is there to stop me issuing against all and sundry in the hope I can get a default judgement on 8 out of 10 cases? If I use the bulk system it seems I don't have to provide evidence to support the claim

 

I was going to deny ever having signed an agreement with HSBC on this account, I may have completed an application form but it would have been a simple one page advertising document from a magazine & it would have been with Midland. Would the account have to be assigned from Midland to HSBC?

 

My idea was to put as many heads of claim into my defence as possible as I do not wish to amend at a later stage (cost implications)

[AndyOrch]

You asked my opinion because you didnt want to draft a lengthy defence then have to alter it and if you was heading in the right direction. Thats my opinion but feel free to go with the above you are the defendant.

[NewToTheFight]

You are right Andy, I asked because I am not sure what I am doing & need help

But my reading tells me that if I only put the S78 compliance as a defence I will have to pay for any amendments or additions further down the line

As it's small claims... I can't even get a solicitor to draft my defence - even if I did have the money

[AndyOrch]

None compliance to a section 77/78/79 request can be the most ultimate defence...the further points you have raised can be got round and in court and would come across as frivolous IMHO.You shouldn't need to make any further amendments or additions...because that is the one main thrust of your dispute....

simple to argue and simple to defend.

[NewToTheFight]

MKDP have allowed me a time extension whilst they get the documents, I have it in writing & have written to the courts with a copy

[NewToTheFight]

I've received a response to my S77 - it's a blank app form with no T&Cs

Since then nothing at all

 

What should I do?

[AndyOrch]

I've received a response to my S77 - it's a blank app form with no T&Cs

Since then nothing at all

 

What should I do?

 

Thats a bit pointless...." here one that you would have signed and looks like the one we dont have "

 

Where are you up to with the claim timetable NTTF ?

 

Regards

 

Andy

[NewToTheFight]

Claim issued in June, acknowledged service within time limit.

No action since by either except S77 request

HSBC have stated they do not have my app form. The copy they have produced has no terms at all on it

I did not live at the address they have for me and I can prove it

And the DN was faulty

Is it time I put a defence in?

[AndyOrch]

What extension did you agree ? norm is 28 days so any defence should be now...check your claim date add 61 days.

[NewToTheFight]

I don't have the papers here but sounds right at 28 days.

I think their letter said something like it will take xx days to get the docs then we agree to you having a bit longer to submit a defence

But I think that's up by now