Advice on defence for old HSBC current account overdraft - now with MKDP LLP

[Flyboy583]

Hi Andy,

 

I recieved another court letter also from MKDP and from HSBC, this time it is for an overdraft. You mentioned there is a different CPR31.14 to be used for an overdraft. Would you terribly mind pointing me in the right direction so that I can send that off today?

 

Thanks in advance!

 

Flyboy

[AndyOrch]

http://www.consumeractiongroup.co.uk/forum/showthread.php?387483-LEGAL-CPR-31.14-Request-when-Claim-is-being-made-for-a-Current-Account

[Flyboy583]

Hi All,

 

In short received a court summonses for an very old HSBC overdraft.

 

Particulars of Claim reads as follow:

The claimant claims the sum of £1207.13 being monies due from the defendant to HSBC Bank PLC under a bank account facility regulated by the Consumer Credit act and assigned to the claimant on xx/xx/201. The Defendants account number was xxxxxxxxxxx. It was a term of the bank account that any debit balance would be repayable in full on demand. The defendant failed to make payment as required by the statutory default notice served by HSBC Bank Plc. The claimant claims the sum of £1207.13 and costs. The claimant has complied as far as necessary with the pre-action conduct practise direction.

 

With the help of Andy (thanks Andy) the following CPR request was sent:

 

Dear Sir or Madam,

 

Re: MKDP LLP v XXX XXX Case No: XXXXXX

 

CPR 31.14 Request

 

On 17 October 2013 I received the Claim Form in this case issued by you out of the Northampton county court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest and counter claim all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1: The agreement/ overdraft Facility confirmation and Terms and Conditions from that date. 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 Demand/Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974

 

3: Notices of Sums in Arrears under running account credit CCA2006 sec 86C

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence as required under CPR15.5.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

 

xxx xxx

 

I now need to file my defence. I am thinking of following the same defence from this case agains me (embarrased defence) http://www.consumeractiongroup.co.uk/forum/showthread.php?406225-Advice-on-Old-HSBC-Debt-%96-Now-with-MKDP&p=4372226#post4372226

 

Is there a template for an embarrased defence after filing a CPR request specifically for an overdraft? Any suggestions here would be most welcome.

 

Thanks Flyboy

[Flyboy583]

Hi Andy, I had a go at my defence and would appreciate your (or anybody reading this) feedback..

 

The original POC read like this

 

The claimant claims the sum of £4000 being monies due from the defendant of the claimant under a regulated agreement originally between the defendant and HSBC Bank Plc. The defendants account number was xxxxxxxxx and was assigned to the claimant on xx/xx/2011, notice of this has been provided to the defendant. The defendant failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant of the Consumer Act 1974. The claimant claims the sum of £4000 plus costs. The claimant has complied as far as necessary with the pre-action conduct practise direction.

 

I broke the POC donw as follow: Input on this would be appreciated

 

1) The claimant claims the sum of £4000 being monies due from the defendant of the claimant under a regulated agreement originally between the defendant and HSBC Bank Plc. The defendants account number was xxxxxxxxx and was assigned to the claimant on xx/xx/2011, notice of this has been provided to the defendant.

2) The defendant failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant of the Consumer Act 1974.

3) The claimant claims the sum of £4000 plus costs. The claimant has complied as far as necessary with the pre-action conduct practise direction.

 

My Draft Defence:

 

Paragraph 1 is accepted that I have had financial dealings with HSBC in the past I am not aware or ever been informed of any legal assignment of this account number to the claimant.

Paragraph 2 is not admitted with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach.

Paragraph 3 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.

 

On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx for a copy of the Overdraft facility agreement,Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim. This was signed for by the claimant on xxxxxxx. The claimant has yet to comply.

 

It is my contention that the claimant has acted this way to frustrate and confuse my submission date to enable themselves to attain a judgment by default.

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

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

© show Notice served under Sections 76(1) and 98(1) of the CCA1974

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

 

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

 

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.

 

Until such time the Claimant can comply with my request for a copy of the Overdraft facility agreement/Notice served under Sections 76(1) and 98(1) of the CCA1974 it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974

 

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]

 

Suggestions / amendments welcomed & thank you .

 

Rgds

 

Flyboy

[AndyOrch]

Oh try this :-

 

1) The claimant claims the sum of £4000 being monies due from the defendant of the claimant under a regulated agreement originally between the defendant and HSBC Bank Plc. The defendants account number was xxxxxxxxx and was assigned to the claimant on xx/xx/2011, notice of this has been provided to the defendant.

 

1) It is accepted that I have had financial dealings with HSBC I am not aware or ever been informed of any legal assignment of this account number to the claimant.

 

Assuming you have never received a Notice of Assignment?

 

Regards

 

Andy

[Flyboy583]

Thanks Andy,

 

No I have not had any letter from HSBC referring to the account being assigned or that matter from MKDP LLP.

 

I will amend paragraph 1. Other thna that do you feel the defence is acceptable? Any suggestions (if any) ?

 

Oh try this :-

 

1) The claimant claims the sum of £4000 being monies due from the defendant of the claimant under a regulated agreement originally between the defendant and HSBC Bank Plc. The defendants account number was xxxxxxxxx and was assigned to the claimant on xx/xx/2011, notice of this has been provided to the defendant.

 

1) It is accepted that I have had financial dealings with HSBC I am not aware or ever been informed of any legal assignment of this account number to the claimant.

 

Assuming you have never received a Notice of Assignment?

 

Regards

 

Andy

[Flyboy583]

Andy, I have had another go at amending my defense. I just was not happy with paragraph one. I haev now split the original paragraph one into two sections.

 

1) Please can you ahev a look at my amended defense for paragraph one and two and give me your comments.

2) Have a quick glans through the whole defence sand see if you woudl recomend amending any part?

 

POC

1) The claimant claims the sum of £4000 being monies due from the defendant of the claimant under a regulated agreement originally between the defendant and HSBC Bank Plc. The defendants account number was xxxxxxxxx and was assigned to the claimant on xx/xx/2011,

2) notice of this has been provided to the defendant.

3) The defendant failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant of the Consumer Act 1974.

4) The claimant claims the sum of £4000 plus costs. The claimant has complied as far as necessary with the pre-action conduct practise direction.

 

Defence

1) Paragraph 1 is neither admitted nor denied with regards to the Defendant entering in to an agreement referred to in the Particulars of Claim ('the Agreement') with HSBC Bank PLC, The Claimant is put to strict proof thereof.

 

2) Paragraph is denied with the defendant having no record of the account number being assigned to the claimant, The Claimant is put to strict proof thereof.

 

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) Paragraph 4 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.

 

 

5) On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx 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. This was signed for by the claimant on xxxxxxx. The claimant has yet to comply.

 

6) Further, the Claimant was sent a Section 78 CCA 1974 request dated xxxxxxx and signed for by the claimant on xxxxxxxx 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

 

7) Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

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

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

 

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

9) 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.

 

10) Until such time the Claimant can comply with my request for a copy of the agreement/Default Notice it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974

 

11) 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

[AndyOrch]

You just need to exercise a little patience FB we are all voluntary here on CAG with our own problems and day jobs...I will run through your defence later this evening...what date is due to submit?

 

 

Regards

 

Andy

[AndyOrch]

Prefer the one I advised.....neither admitted or denied wont wash ....the Court will consider it an avoidance defence and wont read past 1.

[Flyboy583]

Hi Andy,

 

Please accept my most sincere apologies, no offence meant. Sorry if my earlier post came across as anything but sincere. I realy appreciate all the help and input I have received on this site (mostly by yourself)

 

I have until the 18th to submit my defence for the overdraft. I was hoping to file the defence this Friday the 15th just to be on the safe side.

 

Kind Regards

 

Flyboy

 

 

You just need to exercise a little patience FB we are all voluntary here on CAG with our own problems and day jobs...I will run through your defence later this evening...what date is due to submit?

 

 

Regards

 

Andy

[AndyOrch]

No problem lets have a look at it later this evening.

 

 

Andy

[Flyboy583]

Ok and thanks Andy. I was concerned about the admittance of the financial link with HSBC , but then thinking about it this has been sold on to MKDP LLP so it probable does not matter.

 

I have been reading so much on CAG that I am getting a bit confused with all the different defence responses. Will amend to reflect your first suggestion.

 

 

 

Prefer the one I advised.....neither admitted or denied wont wash ....the Court will consider it an avoidance defence and wont read past 1.

[AndyOrch]

Ok and thanks Andy. I was concerned about the admittance of the financial link with HSBC , but then thinking about it this has been sold on to MKDP LLP so it probable does not matter.

 

I have been reading so much on CAG that I am getting a bit confused with all the different defence responses. Will amend to reflect your first suggestion.

 

[Flyboy583]

Morning Andy,

 

Hope you are well?

 

Sorry to bother you with this, but just wondering if you had an opportunity to look at my proposed overdraft defence?

 

Thnaks in advance and appreciate all your help so far!

 

Kind Regards

 

FB

 

No problem lets have a look at it later this evening.

 

 

Andy

[AndyOrch]

I will run through it shortly FB.

 

 

Andy

[AndyOrch]

My Draft Defence: (Edited)

 

Paragraph 1 is accepted that I have had financial dealings with HSBC in the past I am not aware or ever been informed of any legal assignment of this account number to the claimant.

Paragraph 2 is not admitted with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach.

Paragraph 3 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.

 

On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx for a copy of the Overdraft facility agreement,Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim. This was signed for by the claimant on xxxxxxx. The claimant has yet to comply.

 

It is my contention that the claimant has acted this way to frustrate and confuse my submission date to enable themselves to attain a judgment by default.

 

Therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

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

© show Notice served under Sections 76(1) and 98(1) of the CCA1974

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

 

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

 

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.

 

Until such time the Claimant can comply with my request for a copy of the Overdraft facility agreement/Notice served under Sections 76(1) and 98(1) of the CCA1974 it relies upon they are prevented from enforcing or requesting any relief as pursuant to the CCA 1974

 

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]

 

Suggestions / amendments welcomed & thank you .

 

Rgds

 

Flyboy

 

 

Andy

[Flyboy583]

Andy,

 

I can only but thank you again. The pure fact that somebody with your experience gave my defence the once over is extremely reassuring and I feel a lot more relaxed. I will submit my defence through MCOl this evening.

 

I just have one final question for you in relation to this comment in my defence:

 

It is my contention that the claimant has acted this way to frustrate and confuse my submission date to enable themselves to attain a judgment by default.

 

Not knowing the legal system extremely well I was wondering if this comment would be seen as to aggressive? What is your thoughts on it?

 

Kind Regards

 

FB

[AndyOrch]

Nothing wrong with that statement but perhaps a rephrase :-

 

Therefore the claimant in their none compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.

[Flyboy583]

Thanks Andy, I realy like your suggested amendment and have included in both my defences.

 

Right. I will file both defences shortly and then the waiting game starts. I will post back here once I have any new news.

 

Kidest Regards

 

FB

[Flyboy583]

Morning and happy new year to you Andy. Hope you have had a most enjoyable festive holiday.

 

So an update for you. I have received the directions questionnaire for the overdraft. I have not received anything for the CC so that is on the back burner for now.

 

I have completed the questionnaire and have selected the small claims track, also my local court. I have not received any response from them on my CPR request to date and assume they are not required to comply?

 

I have also selected mediation. Basically I have come to terms with the repayment. What I want to establish is the amount they are claiming for is indeed correct. I do not want a CCJ against me for £1000, but also don’t want to pay a penny more than I have to. Do you have any suggestions in how to get the documentation so that I can confirm that the amount claimed for is indeed correct and not just a bunch of added charges that are illegal…

 

I have to file the questionnaire by tomorrow, but will physically take the documentation to the court so still have some time.

 

Hope to hear from you soon.

 

Kind Regards

 

FB

[AndyOrch]

No they are not compelled to respond to a CPR request...but it wont assist their claim....and they probably cant respond because they have no documentation (overdraft).

 

 

If mediation happens demand statements of the amount and how its quantified before considering any agreement.

 

 

Regards

 

 

Andy

[Flyboy583]

Morning Andy and fellow CAG members.

 

My court case is now fast approaching (6 June) and after a CPR13.14 and S77 request, also contacted the mediation service and the mediation service contacted MKDP I still have no documents or proof of the debt owed.

 

This morning I phoned MKDP directly and had a civil discussion with them. They conformed all they have is copies of statements. No agreement ect. This they have agreed to put in the post first class to me today.

 

My question now simply is how will this hold up in court? All they have is statements no other evidence to support their claim. Is this enough and the judge will issue a CCJ?

 

Your advice as always is greatly appreciated

 

FB

[AndyOrch]

Stick to your defence you want them to disclose the documents that the claim relies upon ...the ones they state they cant (presently)

 

Andy

[Flyboy583]

Morning Andy,

 

I hope you are wella nd thank you for your reply.

 

I have had a look at the POC and they dont seem to refer to an agreement, but only to monies owed under the consumer credit act. MKDP LLP did mention that there will not be an agreement as this is an bank account with overdraft facillity...

 

They do mention a default notice in the POC but were unable to provide a copy of the default notice....

 

Interestingly I have also noticed that the account number they refer to in the POC is completely different to the account number on the bank statements.... I am no expert, but surely this cant hold up in court.... They only evidence they have and will reply on does not match up to what they stated in the POC.

 

Just interested in your opinion here?

 

Thanks again for your help.

 

Rgds

 

FB

 

Stick to your defence you want them to disclose the documents that the claim relies upon ...the ones they state they cant (presently)

 

Andy

[AndyOrch]

There is very little they can disclose on a current account...but statements are usually enough to convince the court on the balance of probabilities its your debt...you need to argue as to why its unjust.The account number may have been changed on assignment.

 

The bank does not issue a Default Notice on a overdraft its a termination recall notice .....Notice served under Sections 76(1) and 98(1) of the CCA1974

 

which hopefully you would have requested within your CPR 31.14 current account version:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?387483-LEGAL-CPR-31.14-Request-when-Claim-is-being-made-for-a-Current-Account

 

Regards

 

Andy