court claim Marlin, on behalf of HSBC*** Claim Discontinued***

[bridgart]

Unfortunately not, I've turned all my drawers inside out since receiving the claim, I have a couple from shoos but they just refer to Marlin's own reference number.

 

Is it possible that the number in the brackets on the poc refers to something else?

[bridgart]

Ok the Mrs has just found that on the reply to my CCA from Marlin it states that the original creditor is HSBC and the original reference is as stated in the poc. This is completely different to the one on the statements?

 

Not sure if this is a good or bad thing? My head hurts!

[bridgart]

Finally home and have the statements In front of me, the account number is definitely different to the number on the poc. Also the amount asked for on the poc is less than the balance of the account at the time of closure? Is it normal that the amount would be less? Maybe because of interest?

[AndyOrch]

Then that statement is wrong and has no connection to their claim.

[bridgart]

I was thinking the same, would you suggest I inform either Marlin or shoos that I suspect this to be the case?

[AndyOrch]

No forewarned is forearmed we will retain that useful piece of information for your defence:oops:

[bridgart]

I was hoping you would say that so if they decide to carry on with the claim hopefully all their evidence (not that they have any) will about the wrong account.

[AndyOrch]

In a nutshell:-)

[bridgart]

Sounds like a plan. Thanks Andy! I'm off to have the best night sleep I've had for a while!

[AndyOrch]

Wish I could...... just another 25 threads to respond to:sad:

[bridgart]

Hopefully it's all good news!

[bridgart]

Got a letter from HSBC today in reply to my SAR. It apparently states that I have to fill in their application form (there is one enclosed) and that they then have 40 days to comply? Is this correct? Can they get away with this? Seams like more delay tactics to me!

[goodatresearch]

The 40 days are already running, you are not legally obliged to fill in a form. I didn't fill one in for my HSBC star, must me a new tactic. Tell them when they should respond and if they don't you'll complain to ICO.

[citizenB]

What application form ? If you have made it clear that your letter is a request made under the DPA / SAR and included the fee, then that is sufficient. There is absolutely no requirement to assist them in their stalling.

 

They are obliged to provide you with everything they have and within the 40 calendar days. I would send them a letter reminding them of their statutory duties under DPA at the same time remind them of the date by which you expect to either receive the information you have legally requested or a good reason as to why they are delaying.

[bridgart]

Thanks for the replies. I thought as much, this is the second SAR I've sent now too!! They returned the 1st one to me as the account I provided as a starting point was now closed. Even though I specified in my SAR letter that it was a request for any data they held on me for any account

[Old Cogger]

report them to ICO they have already been cautioned on delaying tactics( by me), also point out that the SAR request dated xxx is an official request and the 40 days time clock is running, let are the worlds worse for not sticking to schedules but have told the ICO that they have corrected their proceedure (if you can believe it)

[bridgart]

I'm going to send a letter reminding them that they have already failed to satisfy my 1st request and warning them that I will report them to the ICO if they fail to comply within 40 days of the second.

 

Unfortunately all the complaining in the world won't help me with my current legal proceedings. Hopefully the threat will get them to pull their finger out!

[citizenB]

Account numbers are pretty irrelevant, they should be able to find you on their system just by name and address. HSBC are notorious for stalling on SARs, so yes, report them to the Information Commissioner.

[goodatresearch]

I had the same problem. Their data controller said they had no details in any HSBC dept for a particular account, and when I pointed out their CCA dept had sent microfiched account copies of this missing account all went very quiet. A complaint to ICO will be lodged.

[bridgart]

Ok quick update, Marlin are going through with this claim even though they can't provide any signed credit agreement etc. I will be posting my directions questionnaire tomorrow in which I have agreed to mediation.

 

I have also recieved something like an effort from HSBC to send some information in response to my SAR. Not that I can see anything of any use from the hours I've spent sifting through the jargon! no signed credit agreements from them either. There is one area of interest though, there are at least 2 sub headings that have been blacked out with a note "information not requested" written next to it? I clearly asked for ALL DATA HELD? Hmmmmm never straight forward is it.

[bridgart]

hello all, its been a long time coming but I will be in court on 25/09/2014. I will be sending my witness statement this week and was hoping, before I do, you guys could give it the once over and make any suggestions. For example, do I need to detail my opinion of why I think the claim against me is wrong? Or do I just state the facts as bellow? I will include copies of the letters referred to in my statement and number them.

 

this is the start I have made

 

Witness statement

Claim No. *****

Marlin Europe I Limited vs ****

Witness: *********

Witness address: ****************************

 

1. 15/03/2014. I receive a claim form from Northampton CCBC for the above stated claim number. The Particulars of Claim state that the claimant claims the sum of **** being monies due to the claimant under a regulated agreement between the defendant and HSBC bank ****** and assigned to the claimant on 20/02/2013, notice of which has been served. The Particulars of claim go on to state that the defendant had failed to make payment in accordance with the credit agreement and that a default notice had been served.

 

2. 18/03/2014. I send an SAR to HSBC asking for all information they hold on me regarding an agreement ref: ******.

 

3. 18/03/2014. I send To Marlin, a request for a copy of the credit agreement referred to in the Particulars of Claim under the consumer credit act 1974.

 

4. 18/03/2014. I send to Shoosmiths (who are the solicitors acting on behalf of Marlin), a request for the disclosure and the production of all documents mentioned in the Particulars of Claim.

 

5. 24/03/2014. I receive a response from Marlin in regards to my request for a copy of the credit agreement. The response states that they do not hold this information, that they have requested it from the original creditor and that they will forward it to me upon receipt. As of today 06/09/2014 I am still yet to receive this copy.

 

6. 26/03/2014. I receive a response from Shoosmiths stating that they had requested the documents and would hope to be in a position to send them to me by 24/04/2014. I never received any documents.

 

7. 04/04/2014. I receive a response from HSBC stating that ******* is a closed account and that they are unable to find any information for it.

[AndyOrch]

Just try to incorporate the above bridgart in to the following style.......

 

In the ………County Court

 

 

Claim number ………….

 

Between

 

 

MKDP LLP

 

and

 

 

……………………..

 

 

Witness Statement of ……………………………………….

 

I am the defendant in the above case and appear before the court as a litigant in person.

 

1. Early in xxxx whilst I was still living at home with my parents at xxxxxxxx xx I was given a credit card to run along side my current account with HSBCicon. I cannot recall ever completing an application form to obtain this credit card or signing any agreement associated with it. At this time I was aged xx years old.

 

2. Early in xxxxx 2007 because of personal and financial problems I was unable

to continue making payments to this account. I have no original

documentation relating to this account..

 

3. To the best of my knowledge I have received no documentation since 2007

regarding this account in any form until xx xxxx 2013 when I received a

County Court Claim Form from MKDP LLP. Prior to this I had received no

correspondence from MKDP LLP

As a result of this claim I submitted my defence via MCOL. (xxxx refers)

 

4. On the 2nd May 2013 I sent a request to MKDP LLP under CPR 31.14. This

was sent by recorded delivery and was delivered to MKDP LLP on 7th May 2013. I refer to a copy of this letter and proof of delivery as xxxx.

 

5. On the 2nd May 2013 I sent a Statutory Access Request to HSBC Bank

with the appropriate fee requesting copies of all data that they held relating to

myself. ( xxxx refers)

 

6. On the 20th May 2013 I sent a reminder to MKDP regarding my previous request under CPR 31.14. This was sent by recorded delivery and was

delivered and signed for on the 21st May 2013. (xxxx refers)

 

7. On the 23rd May 2013 I sent a request to MKDP LLP pursuant to S.77/78

of the consumer crediticon Act 1974 requesting statutory information in relationship to the account in question. This was sent by recorded delivery and was delivered and signed for on the 24th May 2013. (xxxx refers)

 

8. I received a letter dated 28th June 2013 from HSBC Bank on HFC headed

paper stating that they were unable to action my request as my letter was unsigned and they were unable to locate any accounts with the information I had provided. (xxxx refers). HFC are a subsidiary of HSBC bank.

 

9. As a consequence of the letter in Paragraph 8 I sent a further Statutory

Access Request to HSBC Bank on 2nd July 2013 with the appropriate fee.

(xxxx refers)

 

10. I then received a further letter dated 16th July from HSBC Bank again

stating that they were unable to locate an account for me with the information I had provided. (xxxx refers).

 

11. Mediation regarding this claim took place on the 9th August 2013 with no

progress being made to settle the claim against me.

 

12. I had not received any correspondence from MKDP LLP in response to my

requests under CPR 31.14 (dated 2nd May 2013) and s.77/78 Consumer Credit Act 1974 (dated 23rd May) 2013 until xxx January 2014 when I received a package from them with a covering letter dated xxth January 2014 suggesting that I now withdraw my defence. The documents contained in the package are as follows:

a. Covering letter (xxxx refers)

b. Copy of a ‘reconstituted agreement’ which is in fact a copy of a

generic ‘Credit Card Request Form’ with only my name and an address on it. (xxxxx refers).

c. Copies of three sets of ‘Credit Card Agreement Forms’ (xxxxx refers).

d. A generic ‘Default Notice’ with no details on (xxxxx refers).

e. Copies of statements dated 29th May – 25th October 2007 (xxxxx refers))

c) Copy of letter on HSBC headed paper dated xx xxxx 2012

informing me that my account had been sold by HSBC to MKDP LLP.

(xxxxx refers)

 

13. I will now refer to my defence in this case (xxxx)

 

14. It is my belief that any agreement I may or may not have had with HSBC

Bank and latterly MKDP LLP is subject to Section 5 of The limitation acticon

1980 (xxxxx) refers. To the best of my knowledge in excess of six years have elapsed since the date on which any cause of action for breach

accrued for the benefit of the Claimant. To the best of my knowledge my last payment on this account was made on the 21st March 2007. The statements provided by MKDP LLP in relation to this account (xxxxx refers) only show transactions from 23rd May until 25th October 2007. It can be seen that there has been no activity on the account by me during this period. Without a full set of statements for the account it is impossible to see when the last acknowledgement of the account was in fact made and when the cause of action occurred.

 

15. Notwithstanding the above the Claimant has failed to show how I have

entered into an agreement with MKDP LLP (formerly HSBC Bank).

In response to my requests under CPR31.14 (xxxx refers) and S78 CCA1974 (xxxx refers) I have been sent a reconstituted agreement (xxxxx refers). This consists of a generic HSBC Credit Card Request Form with no details on it apart from the name xxxxx xxxx and the address xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx.

This address would not be correct as in 2003 when this account would have started I was still living with my parents at xxxxxxxxxxxxxxxxx. I think I moved xxxxxxxxxxxxxxxxxxxxxxxxx xx sometime in 2004.

 

S.127(3) of The Consumer Credit Act 1974 as amended by S.15 Consumer

Credit Act 2006 (xxxx refers) provides that a court shall not make an

enforcement order (i.e. a consumer credit or hire agreement will be

automatically unenforceable) where: prescribed requirements in relation to

the execution of regulated agreements (set out in section 61(a) of the 1974 Act)

(xxxx refers) were not complied with or a document containing all the

prescribed terms of the agreement was not signed by the debtor or hirer. The

reconstituted agreement that has been supplied to me does not meet the requirements and

without sight of the original agreement it is impossibe to know whether S61(a) has been complied with or not.

 

I also note that the interesticon rate shown on the ‘Credit Card Agreement Terms’ marked

Original Terms (xxxx refers) is 1.456% with an APR of 18.9% whereas the

interest rate shown on the statements sent to me is 1.527% with an APR of

19.9%.

 

I can find nothing in the documentation sent to me to show that the

interest rate has been increased suggesting that the ‘Credit Card Agreement

Terms’ marked as original terms are not the correct terms and conditions that

should have been supplied to me if and when an agreement was signed.

I am aware that S15 Consumer Credit Act 2006 repeals S.127 (3) to (5)

Consumer Credit Act 1974 but paragraph 11 of Schedule 3 of the 2006

Act (xxxx refers) states that this has no effect in relation to improperly

executed agreements made before the commencement of S15 of this Act.

This agreement would have commenced prior to 6th April 2007 when the

2006 Act became law.

 

16. With regard to the copy of the letter informing me that the account had been

sold by HSBC to MKDP LLP (xxxxx). To the best of my knowledge I have

not seen this letter before. I was unaware of the existence of MKDP LLP

prior to the receipt of the County Court forms.

 

17.As stated previously the statements sent to me by the Claimant (xxxxx) do

not show the history of the account and how the total has been reached.

In addition to showing the last date the account was used, sight of all the

statements relating to the account would also show the interest rate on the

account at its inception.

 

 

18.The copy default notice sent to me (xxxxx refers) is a generic copy

containing no details relating to this account. S.87(1) of The Consumer Credit Act 1974 (xxxxx refers) sets out the need for a default notice to be served in order for the creditor to be able to a) terminate the agreement b) demand earlier payment of any sum c) to recover possession of any goods or land d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred and e) to enforce any security. This notice must be in the prescribed form as per S.88 of the same act (xxxxx refers). To the best of my knowledge no such default notice has ever been served on me.

 

19. To date MKDP LLP have not provided me with any documentation to prove

their case against me.

 

 

 

I believe that the facts shown in this statement are true.

 

 

 

…………………………

 

Dated

 

 

Regards

 

Andy

[bridgart]

Cheers Andy, I don't think I'm too far off then.

[AndyOrch]

No but you need reiterate their none compliance to section 77/8 as the main theme of your argument.

[bridgart]

hello all, could I please get your input on the witness statement bellow. I hope to post it tomorrow. Thanks guys.

 

Witness statement

Claim No. ******

Between: Marlin Europe I Limited and ******

Witness statement by: *******

Witness address: *********************

 

I am a defendant in the above case and appear before the court as a litigant in person.

 

1. 15/03/2014. I receive a claim form from Northampton CCBC for the above stated claim number. The Particulars of Claim state that the claimant claims the sum of 4527.21 being monies due to the claimant under a regulated agreement between the defendant and HSBC bank ******** and assigned to the claimant on 20/02/2013, notice of which has been served. The Particulars of claim go on to state that the defendant had failed to make payment in accordance with the credit agreement and that a default notice had been served.

 

2. I cannot recall ever completing an application form or signing the credit agreement that is referred to in the Particulars of Claim.

 

3. To the best of my knowledge I have never received notice from HSBC bank that I had defaulted on any credit agreement nor did I know that any account had been assigned to Marlin Europe. Prior to this court claim I had never received any correspondence from Marlin. As a result I submitted my defence via MCOL (PAGE 3 refers).

 

4. 18/03/2014. I sent an SAR to HSBC asking for all information they hold on me regarding an agreement ref: ******.

 

5. 18/03/2014. I sent a request to Marlin pursuant to S.77/78 of the consumer credit act 1974 requesting statutory information in relation to the account in question.

 

6. 18/03/2014. I sent a request to Shoosmiths solicitors (who are the solicitors acting on behalf of Marlin) under CPR 31.14.

 

7. 24/03/2014. I receive a response from Marlin in regards to my request for a copy of the credit agreement. The response states that they do not hold this information, that they have requested it from the original creditor and that they will forward it to me upon receipt. As of today 06/09/2014 I am still yet to receive this copy (PAGE 4 refers).

 

8. 26/03/2014. I receive a response from Shoosmiths stating that they had requested the documents and would hope to be in a position to send them to me by 24/04/2014. I never received any documents (PAGE 5 refers).

 

9. 04/04/2014. I receive a response from HSBC stating that ****** is a closed account and that they are unable to find any information for it (PAGE 6 refers).

 

10. I will now refer to my defence in this case (PAGE 3 refers).

 

11. The Claimant has failed to show how I have entered into an agreement with HSBC bank. In response to my requests under section 77/78 of the consumer credit act 1974 and CPR31.14. I have not received any evidence of any agreement existing between myself and HSBC bank for the account in question. Nor have I received any evidence of a default notice or notice of assignment being sent to me as claimed in the particulars of claim.It is therefore contended that the claimant is unable to enforce any agreement and is prevented from requesting any relief pursuant to the CCA1974

 

12. The claimant has not provided me with anything to show how they have reached the amount that has been claimed for.

Not required stated above

 

13. To date Marlin Europe have not provided me with any documentation to prove their case against me. Again see 11.

 

I believe that the facts stated in this witness statement are true.

Edited September 8, 2014 by Andyorch
Tweaked point 11 ...12/13 not required