Old HSBC case taken up by MKDP LLP. When is a Default Rectified?

[colin21958]

It would be far easier for a court to enforce with no agreement than it would be for them to enforce this

 

 

Yes, that's quite true, thanks for pointing that out...

[colin21958]

Yes indeed, if this is all that the OP received in response to the section 78, I wold have thought that this was also none compliant as it does not include the necessary information.

 

Personally I would throw in none compliance with the copy regulations as well

 

 

Thanks, yes, I had already made that one of my arguments too...

[colin21958]

Hi Everyone,

I have compiled the following defence and would welcome any comments or suggestion with regard to it before I submit. Thanks.

Regards,

Colin.

 

 

 

1. The Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.

2. The Defendant admits that in or about 2005 they entered into an agreement with HSBC Bank plc (Herein after referred to as HSBC or the Creditor) and which was an agreement regulated by The Consumer Credit Act 1974 (CCA). The Defendant has no recollection of and makes no admissions regarding the precise purpose of the agreement or of its specific terms, conditions and other provisions or what would constitute a breach thereof other than those provided by The Consumer Credit Act 1974 which apply to all regulated agreements. The Defendant denies that the agreement was a properly executed agreement in accordance with the terms of The Consumer Credit Act 1974 and therefore denies committing a breach thereof.

 

3. The Defendant denies entering into any agreement with the Claimant MKDP LLP.

 

4. According to the particulars of claim the Claimant claims the amount of £XXXX plus court costs of £XX, giving a total of £XXXX. However only an account number has been offered in the particulars of claim in relation to the agreement referred to, the method by which the Claimant calculated any outstanding sums due, the details of any Default Notices issued, Notices of Assignment effectively served on the Defendant, or any other matters necessary to substantiate the Claimant’s claim have not been provided. Importantly no copy of any executed agreement was filed with the claim nor were any notices of any kind as they should have been according to the Civil Procedure Rules, the Claimant is therefore put to strict proof to produce such evidence and the case should be struck out or stayed until such time as the evidence has been produced.

 

5. The Defendant will produce documentary evidence to show that the Claimant has no legal right to bring this action on all of the following grounds:

The Creditor failed to issue a Notice of Assignment

to the Defendant as required under

The Property Act 1925

if an assignment of the account to the Claimant was made and therefore the Claimant is not legally entitled to bring this claim.

 

The Defendant will demonstrate that no valid properly executed regulated credit card agreement exists with the Creditor on which to base the claim. The Creditor previously provided a photocopy of an application form, purporting to be a true copy of the agreement. The form supplied by the Creditor could not represent a properly executed agreement under

CCA 1974 s61

, so the claimant will therefore require an enforcement order, but

CCA 1974 s127(3)

states that an enforcement order cannot be granted unless the requirements of

CCA 1974 s61

, "signing of agreements" are met. Prescribed terms must be contained within the document, being the interest rates, a statement relating to the credit available and the method and intervals of repayment, etc., as stated in the regulations,

these are given in

Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/SCHEDULE 6 Prescribed Terms for the Purposes of Sections 61(1)(a) and 127(3) of the Consumer Credit Act 1974.

 

The Defendant will demonstrate that the Claimant remains in default of a request for information made under Section 78 of

The Consumer Credit Act 1974

in a recorded delivery letter sent to the Creditor on 01/08/09

.

6. The Defendant will produce documentary evidence which will show that any agreement, either proved, demonstrated or assumed, to have existed, which was valid or otherwise and which would have had to have been a regulated agreement compliant with The Consumer Credit Act 1974, was in any case terminated illegally in breach of the terms of The Consumer Credit Act 1974, as no valid Default Notice, as required under CCA s87, was in force at the time that the Creditor terminated the account on 21/07/10.

 

7. On 18/12/13 the Claimant was sent a CPR 31.14 request by recorded delivery (which was delivered on 20/12/13) for copies of documents therefore relied on in their claim, such documents should consist of at least:

An original properly executed credit card agreement.

 

A valid Default Notice with proof of issue of such.

 

A Notice of Assignment between the HSBC Bank plc and the Claimant, together with proof of effective service and a Deed of Assignment between the Claimant and HSBC.

8. No response was received by the Defendant from the Claimant to their CPR 31.14 request dated 18/12/13. A further letter was sent on 31/12/13 indicating to them that they had failed to provide the required documents. Still no documents have been received and the Defendant therefore asks that the Court issue a Court Order for the Claimant to produce these documents.

 

 

 

 

[Mike_hawk]

Colin

 

Just an observation, but the way you've framed parts of your defence places the burden of proof back on yourself......... may be making a rod for your own back. Sometimes less is more

[colin21958]

Colin

 

Just an observation, but the way you've framed parts of your defence places the burden of proof back on yourself......... may be making a rod for your own back. Sometimes less is more

 

 

 

Hi Mike,

 

 

Good point. Thanks, I will amend those parts.

 

 

Regards,

 

 

Colin.

[colin21958]

Perhaps more like this...?

1. The Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Save where otherwise admitted, each and every allegation in the Particulars of Claim is denied.

2. The Defendant admits that in or about 2005 they entered into an agreement with HSBC Bank plc (Herein after referred to as HSBC or the Creditor) and which was an agreement regulated by The Consumer Credit Act 1974 (CCA). The Defendant has no recollection of and makes no admissions regarding the precise purpose of the agreement or of its specific terms, conditions and other provisions or what would constitute a breach thereof other than those provided by The Consumer Credit Act 1974 which apply to all regulated agreements. The Defendant denies that the agreement was a properly executed agreement in accordance with the terms of The Consumer Credit Act 1974 and therefore denies committing a breach thereof.

 

3. The Defendant denies entering into any agreement with the Claimant MKDP LLP.

 

4. According to the particulars of claim the Claimant claims the amount of £XXXX plus court costs of £XX, giving a total of £XXXX. However only an account number has been offered in the particulars of claim in relation to the agreement referred to, the method by which the Claimant calculated any outstanding sums due, the details of any Default Notices issued, Notices of Assignment effectively served on the Defendant, or any other matters necessary to substantiate the Claimant’s claim have not been provided. Importantly no copy of any executed agreement was filed with the claim nor were any notices of any kind as they should have been according to the Civil Procedure Rules, the Claimant is therefore put to strict proof to produce such evidence and the case should be struck out or stayed until such time as the evidence has been produced.

 

5. The Claimant has no legal right to bring this action on all of the following grounds:

The Creditor failed to issue a Notice of Assignment to the Defendant as required under

The Property Act 1925

if an assignment of the account to the Claimant was made and therefore the Claimant is not legally entitled to bring this claim.

 

No valid properly executed regulated credit card agreement exists on which to base the claim. The Creditor previously provided a photocopy of an application form, purporting to be a true copy of the agreement. The form supplied by the Creditor could not represent a properly executed agreement under

CCA 1974 s61

, so the claimant will therefore require an enforcement order, but

CCA 1974 s127(3)

states that an enforcement order cannot be granted unless the requirements of

CCA 1974 s61

, "signing of agreements" are met. Prescribed terms must be contained within the document, being the

interest

rates, a statement relating to the credit available and the method and intervals of repayment, etc., as stated in the regulations,

these are given in

Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)/SCHEDULE 6 Prescribed Terms for the Purposes of Sections 61(1)(a) and 127(3) of the Consumer Credit Act 1974.

 

The Claimant remains in default of a request for information made under Section 78 of

The Consumer Credit Act 1974

in a recorded delivery letter sent to the Creditor on 01/08/09

.

6. Any agreement which could be proved by the Claimant to exist was in any case terminated illegally in breach of the terms of The Consumer Credit Act 1974, as no valid Default Notice, as required under CCA s87, was in force at the time that the Creditor terminated the account on 21/07/10.

 

7. On 18/12/13 the Claimant was sent a CPR 31.14 request by recorded delivery (which was delivered on 20/12/13) for copies of documents therefore relied on in their claim, such documents should consist of at least:

An original properly executed credit card agreement.

 

A valid Default Notice with proof of issue of such.

 

A Notice of Assignment between the HSBC Bank plc and the Claimant, together with proof of effective service and a Deed of Assignment between the Claimant and HSBC.

8. No response was received by the Defendant from the Claimant to their CPR 31.14 request dated 18/12/13. A further letter was sent on 31/12/13 indicating to them that they had failed to provide the required documents. Still no documents have been received and the Defendant therefore asks that the Court issue a Court Order for the Claimant to produce these documents.

Edited January 5, 2014 by colin21958