Claimform MKDP - for old HSBC debt

[I hate paying fines]

I have received a court summon from a debt collection agents for a debt they bought from HSBC bank.

I like to contest the proceeding on the grounds:

 

1. The amount was a disputed amount and I wrote to HSBC many time to sort it out before I can pay them the amount, but instead they sold the debt to a collection agent.

 

2.I do not recognise them as a creditor and Collection agent has no right to this debt, as I never had any agreement with them.

The agent's own stake in the debt. is probably 10% and they are claiming 100%.

 

3.HSBC has no right to sell my information/debt, to a company which is not regulated by a financial regulator.

 

I have read in the cag sometime ago that these debt. collection agencies cannot claim debt. successfully in the courts, is it True?

does any body have any information about this?

 

Can someone please help me file a defense for this case, or direct me to a link. highly appreciate it. I have about 10 days left to file a defense. Thanks

[dx100uk]

sadly all dca do hold a consumer credit licence so can issue a claim form

and HSBC do sadly have a right to sell things on

its in your org t&C's of the debt.

 

please name names and fill out the following:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.(1-Viewing)-nbsp

 

 

dx

[oleg]

You appear to be confusing a DCA acting "on behalf of" and a debt purchaser who have bought a debt by way of assignment. The latter inherit the rights - and obligations - of the original creditor.

The largely emotive grounds you proposed for a defence would carry no weight at all.

Do as d x has asked, then peeps may be able to offer more constructive advice.

[Conniff]

2.I do not recognise them as a creditor and Collection agent has no right to this debt, as I never had any agreement with them.

The agent's own stake in the debt. is probably 10% and they are claiming 100%.

If you look on your agreement you will see that you agreed and signed your consent for the original creditor to pass your details to third parties.

It is lawful to sell debts, the amount they paid (which you are guessing at) does not mean the value of the debt has to be reduced.

[citizenB]

Can you please let us know the date of issue - top right hand corner of the claim form.

 

Also, please have a read of the link provided by dx in an earlier post so we have all the information required to help you.

[I hate paying fines]

Name of Claiment: MKDP LLP

 

Date of Issue: 14th March 2014-03-26

 

Perticular of Claim:

 

The claimant claims the sum of £2083.00 being monies due from the defendent (s) to HSBC Bank PLC

under a bank account facility regulated by the consumer credit Act 1974 and

 

assigned to the claimant 0n 29/01/2013.

 

The defendent(s)’s account no..........

It was a term of the bank account that any debit balance the would be repayable in full on demand.

 

The defendant has failed to make payment as required by the statutory default notice served by HSBC Bank Plc.

 

The claimant claims the sum of £2083 and costs.

 

The claimant has compiled, as far as is necessary, with the Pre-Action Conduct Practice Direction.

 

Value of the Claim: £2083.00 + £75.00 (court Fee) =£2158.00, No mention of any interest any where.

 

Claim was the business facility overdraft. Started in 2001

 

The debt purchaser MKDP LLP issued the claim.

 

First the debt.

 

Were transferred to MKRR, who assigned to Raven Recoveries, who in turn assigned to Keynes Collections, and now MKDP LLP is the owner.

 

HSBC did not send me any assignment letter, only these companies kept sending me letters.

 

I will have to look for the default notice, which was sent a while ago, possibly 2 years back.

 

Never received any thing after that.

 

There was a dispute about the amount of charges added to the account,

which I repeatedly asked them to sort out before I can make the full payment, instead they sold the debt.

 

I did not mention any financial problems

but asked them to sort out the dispute so I can start making the payment.

Made CPR 31.14 request to MKDP LLP.

[citizenB]

Ok, you timeline is as follows :

 

Issue date - March 14, + 5 days for service = 18.03.2014 + 14 days to ackowledge = 01.04.2014 + 14 days to submit defence = 15.04.2014 (33 days from date of issue)

 

You can acknowledge online by using the MCOL gateway (you will need to register) and using the password which you will find buried a little way down the claim form on the right hand side as well as the claim reference.

 

I will ask one of the legal guys to look in on you as this is a business overdraft

[I hate paying fines]

Thanks a lot. looking forward to hear from you.

[citizenB]

It would appear that this will be no different to any other claim. So send your CPR31.14 request. As this is an overdraft, you will need to send the CPR version I have linked below.

 

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

 

Make sure you read the draft carefully / amend where indicated and send to the solicitor by Recorded delivery at the very least - Special Delivery if you can afford it.

[I hate paying fines]

Thanks CitizenB,

 

 

The CPR 31.14 was sent by e-mail to MKDP LLP on Friday,

 

 

If it is necessary, I can send it by post as well, if it does not cause any technical hitch.

 

 

Do we need the CPR response to file a defence?

 

 

or do I have to send the defence anyway within the timeline?

[I hate paying fines]

It would appear that this will be no different to any other claim. So send your CPR31.14 request.

[I hate paying fines]

Its been a long time but

 

 

I need fresh help from you guys,

 

 

I sent in the CPR31.14, MKDP replied saying as it is a small claim for a business overdraft,

Section 78 of the Consumer Credit Act 1974 Does not apply to the agreement.

They are not obliged to respond to CPR31.14.

 

We had a session in front of a judge in which MKDP did not produce any evidence but an unsigned copy of an agreement

with statements showing the amount at the last page as £0.00. but

before that the balance was showing the amount the MKDP claiming.

 

 

I raised the question of proof of service of assignment and judge was just short of giving decision in my favor but

than decided to adjourn asking them to provide the proof of service of assignment

the debt to MKDP and for skeleton argument in relation to its contention that section 78 of the Consumer Credit Act

does not apply to the agreement which is subject of the claim.

 

What I need to provide is an argument and any quotation to just the reverse that section 78 of the Consumer Credit Act does apply.

 

I also need to file in court office, the statements of all witnesses on whose evidence I rely (I have none),

attaching photo copies of all relevent documents, and serve a copy to other party.

 

the order was issued on 6th Sept.2014, giving 28 days.

 

Please help me with your expertise, Much appreciated.

 

 

Regards. Arif

[AndyOrch]

Section 78 does not apply to overdrafts ...personal or business.

 

Andy

[I hate paying fines]

If you look on your agreement you will see that you agreed and signed your consent for the original creditor to pass your details to third parties.

It is lawful to sell debts, the amount they paid (which you are guessing at) does not mean the value of the debt has to be reduced.

 

MKDP could not provide any agreement which was signed by me.

[I hate paying fines]

Section 78 does not apply to overdrafts ...personal or business.

 

Andy

 

The judge at the hearing was not convinced that Section 78 does not apply,

 

 

even after going through the law book.

 

 

that's why he asked them to provide hard copies of evidence.

 

 

with due respect to your opinion

 

 

can you send me a link or quote to that effect

 

 

or can Any Lawyer shed a light on it.

[AndyOrch]

http://www.legislation.gov.uk/ukpga/1974/39/section/61B

 

Overdrafts are covered by section 61b as per above not section 77/78/79

[I hate paying fines]

If MKDP cannot supply the signed agreement, than its not an executed agreement. what will happen in this scenario?

If its not an executed agreement than none of its terms and conditions is enforceable like selling any debt to a third party etc.

[I hate paying fines]

what is the significance of proof of service for assignment of debt ? as the judge was very particular to see it from MKDP.

[AndyOrch]

If MKDP cannot supply the signed agreement, than its not an executed agreement. what will happen in this scenario?

If its not an executed agreement than none of its terms and conditions is enforceable like selling any debt to a third party etc.

 

It isnt an agreement per se its a letter of facility ...overdrafts are a service provided by your bank attached to your current account on the understanding that you will service the account by making regular deposits to keep within the agreed overdraft limit each month...so there are no T&Cs bar that requirement.

 

what is the significance of proof of service for assignment of debt ? as the judge was very particular to see it from MKDP.

 

Notice of Assignments must be served by either the original creditor or the assignee pursuant to the Law of Property Act on the sale of an account.Under section 136 of the Law Property Act 1925 (“LPA 1925”) notice of assignment must be given to the other party to a contract (i.e. the borrower) expressly in writing. There is no prescribed time limit for giving notice but the assignment is only legally valid when the borrower receives the notice.

 

Until proper notice is given, only an equitable assignment has taken place. An equitable assignment differs from a legal assignment in that where there is a legal assignment the assignee can bring an action (e.g. for recovery of a debt) in its own name against the borrower. On an equitable assignment the assignee would need to join the assignor as a party to the action before an action could be brought against the borrower. Alternatively, notice would have to be served in the correct manner before an action could be brought in the assignee’s name.

[I hate paying fines]

Thank you very much for explaining ( Red Hot),

 

 

to my knowledge a court cannot enforce a debt. without any kind of signed agreement,

 

 

even if it is for a service linked to an account, like an overdraft.

Section 61b: "Duty to supply copy of overdraft agreement

 

(1)Where an authorised business overdraft agreement or an authorised non-business overdraft agreement has been made,

a document containing the terms of the agreement must be given to the debtor.

 

(2)The creditor must provide the document referred to in subsection (1) to the debtor before or at the time the agreement is made unless—........

 

The question is can I use it in my argument?

if MKDP do not come up with any signed agreement.

[dx100uk]

you need to read andy's post 19

 

 

dx

[I hate paying fines]

I had a personal experience when I went to court v a big bank, and after hearing the plaintiff the judge told me that "you have no defense and have u got any thing to say?"

I just mentioned that there is no signature on the agreement they are presenting,(it was a copy), The judge refused the application straight away.

 

Overdraft agreements are excluded agreement according to Sec.61A(a) and (b)(iii), and Section 62(2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.(its not been done in my case)

(3)A regulated agreement [F3which is an excluded agreement] is not properly executed if the requirements of this section are not observed.

 

I am only asking our advice as to which of the Section is best to choose to argue my case?

[AndyOrch]

I personally would be looking for more substantial reasons to base arguments on I Hate rather than loopholes in the paperwork. Overdrafts are excluded from the CCA1974 except for part V...as I have already stated.

 

However most courts /DJ would apply what is known overriding objectives and balance of probabilities in determining a case...for example copies of your statements with account numbers and sort code and the age of the current account...usage of account etc.

 

Try arguing disputes/unfair charges eyc instead....far more credible.

 

Andy