MKDP Claimform - Old HSBC Credit Card 'debt'

[Toots111]

Sorry, I was babysitting yesterday and last night, and I'm at work today, so although I'm desperate to reply, it's likely to be this evening before I can get back to you. SO glad you're keeping in touch Andy, and very grateful.

[Toots111]

Just on a quick lunch break, so time to send a swift reply.

 

Yes, I meant the holding defence - you kindly put it together for me when I needed help with the first claim that i received and I used it again, with the necessary adjustments, for this claim too. It was sent to Northampton Bulk Centre at the appropriate time.

 

The DJ in my local court ordered the Claimant to provide the documents I had requested from them in January, and in the process, gave me a date towards the end of June to submit an amended defence, based upon any documents the Claimant provided to me. Hence I now have 12 days left in which to submit an amended defence.

 

Does that make sense?

[AndyOrch]

Yes but you will need to post a copy here of what you submitted to enable advice on any alterations required Toots.

[Toots111]

I would have to try and borrow a scanner again Andy, which I will try to do if necessary.

 

Before I go ahead with that, based on the fact that the copy agreement provided is okay, do you believe that I have no possible chance of 'winning', or might the fact that to date no valid DN or Notice of Sums in Arrears have been produced, provide me with the reasons to alter my defence and stand a chance please Andy?

 

I'm back at work tomorrow, so Sunday would be the earliest day I could attempt to borrow a scanner again and I feel like time is running out ; sheer panic and terror taking hold, I know.

 

If you believe that the lack of a valid DN/ Notice of Sums in arrears gives me any hope with this claim, (it seems like my only hope), then obviously my defence will have to be changed and I will do everything in my power to try and get a scanner asap and hope that I can fathom out once again how to post a copy of my defence to you.

 

If you believe that I'm wasting your time, as I have no chance of winning on those grounds, do you feel that I should give up? (I'm praying you say no to that!!).

 

Thanks Andy.

[AndyOrch]

I cant really comment until I know what your original defence states Toots.

[Toots111]

Okay Andy, I'll do everything in my power to get hold of a scanner asap. Thanks.

[AndyOrch]

You could type it:-)

[Toots111]

Right, I've managed to borrow a scanner again and am going to have a go at posting my defence Andy!

 

Fingers crossed!!!!

[Toots111]

Hope this has worked?

 

This might be better???

[AndyOrch]

So where are the other 5 pages belonging to the agreement ? (1 of 6)

[Toots111]

Hi Andy. Which agreement??

 

I posted you all 6 pages of the credit agreement some days ago and you said you couldn't see any problems with it, so presumably you don't mean that agreement?

 

You asked me to post my the defence I'd submitted earlier this year, do that's what I posted on Saturday night. I'm confused, sorry!

[AndyOrch]

You did ...apologies....

 

So now you wish to amend the defence accepting the agreement but still stating your other points.No Default Notice nor Notice of Sums in Arrears?

[Toots111]

Yes, if that is my only hope Andy.

 

They have only supplied a reconstituted DN so far. I realise that I only asked for information regarding Notice of Sums in Arrears in my recent Part 18 request, but I believe you may feel that absence of these can be more of an aid to my defence?

[AndyOrch]

"I ceased payments to the original creditor due to a change in financial circumstance and mental health problems. I wrote to them about this and they eventually agreed to freeze the interest on the account and allow me to pay a token monthly payment. My circumstances then became worse some time later, due to my mental health and I was unable even to meet the token payment, which I again communicated to the lender in writing. I provided them with income and expenditure sheets, payslips and also proof of the medication I was taking for my mental health condition."

 

Toots what if any was the response to the above?

[Toots111]

I will go through all the papers I have and come back to you shortly Andy, thanks.

 

HSBC first wrote back to me, instructing me to complete a Personal Financial Assessment form within 14 days from the date of the letter and to cut up any cards I had. Also suggested I contacted CAB etc. I returned their form with a letter explaining my financial and health problems, asking if they would freeze the interest on the account, accept a token payment each month and supply me with a payment booklet.

They wrote back, stating that the token payment I had offered was not enough and that they wanted a higher amount, (£32 per month), and that interest would still accrue. I replied immediately, once again explaining that I could not afford £32 per month, referring them to the income/expenditure form I had completed for them ,showing my outgoings were more than my income. I also explained that the amount of phone calls and letters I was receiving from all of my creditors was adversely affecting my mental health and I feared another nervous breakdown would prevent my working at all, thereby not even being able to make even a token payment. To this letter, they replied and said that normal collection procedures would continue, that a DN would be issued and that the debt would be passed to a DCA.

I then received a Final Demand from them, giving me 14 days from the date of the letter to pay in full or come up with a satisfactory repayment plan. Action was to be taken against me if I failed to comply.

I don't think I replied at this point, as I was struggling to stay sane, so they wrote again soon after stating that they were prepared to accept a reasonable final offer and write off some of the debt, otherwise the debt would be handed over to a DCA.

I started to make payments of £5 per month against the statements they were still sending me, ( interest was still being added), and I also wrote to them again stating that other creditors had accepted my £5 per month offer, against much higher amounts of debt, and had also frozen the interest on my accounts. I explained that I lived in rented, furnished accommodation and had no assets of any kind. I asked once again if they would reconsider my offer of £5 per month.

They then wrote back accepting the £5 for a period of 6 months and also suspend interest payments. After 6 months of payments, HSBC wrote to me again to say that they were passing the admin of the account to Payment Services Bureau and would be issuing a DN.

I wrote to Payment Services Bureau asking for a payment booklet, as I had no method of paying them. I received no reply, so wrote again 2 months later. I then phoned them when I still receive anything and was told they would send me a booklet. I soon received a payment card, although by this time I had missed about 3 or 4 months payments, so I then received a Final Demand from Payment Services Bureau.

From a pile of payment receipts I still have, it looks as though I picked up monthly £5 payments again, but started to get Final Demands and other letters/phone calls from a company called Metropolitan Collection Services a few months later. I wrote to them, explaining that I was still making the agreed £5 payment and that the stress of all of my creditors chasing me had taken it's toll, and that all future correspondence should be addressed to MIND in my home town, as I had started to need help for my mental health problems again.

From this point on, the debt seems to have been passed from pillar to post, with my writing to some of them, but ignoring most of them, as I just couldn't cope.

It's eventually ended up where it's at now. (Somewhere down the line, I stopped making any payments, as I couldn't even afford the £5 any more, but HSBC were no longer in communication with me, just a succession of DCA's).

,

[AndyOrch]

Ok and takes a breath

 

Let me give this some thought toots...on one hand to accept that they have complied with your section 78 request and deny Assignment/Default/Notice of Sums is rather weak.... however there may be traits of Promissory Estoppal in the above.Do you have conformation or was the £5 payment of your own accord.?

 

Above you refer to Final Demands are you sure you are not confusing them with a Default Notice?

 

Regards

 

Andy

[Old Cogger]

HSBC first wrote back to me, instructing me to complete a Personal Financial Assessment form within 14 days from the date of the letter and to cut up any cards I had. Also suggested I contacted CAB etc. I returned their form with a letter explaining my financial and health problems, asking if they would freeze the interest on the account, accept a token payment each month and supply me with a payment booklet.

They wrote back, stating that the token payment I had offered was not enough and that they wanted a higher amount, (£32 per month), and that interest would still accrue. I replied immediately, once again explaining that I could not afford £32 per month, referring them to the income/expenditure form I had completed for them ,showing my outgoings were more than my income. I also explained that the amount of phone calls and letters I was receiving from all of my creditors was adversely affecting my mental health and I feared another nervous breakdown would prevent my working at all, thereby not even being able to make even a token payment. To this letter, they replied and said that normal collection procedures would continue, that a DN would be issued and that the debt would be passed to a DCA.

I then received a Final Demand from them, giving me 14 days from the date of the letter to pay in full or come up with a satisfactory repayment plan. Action was to be taken against me if I failed to comply.

I don't think I replied at this point, as I was struggling to stay sane, so they wrote again soon after stating that they were prepared to accept a reasonable final offer and write off some of the debt, otherwise the debt would be handed over to a DCA.

I started to make payments of £5 per month against the statements they were still sending me, ( interest was still being added), and I also wrote to them again stating that other creditors had accepted my £5 per month offer, against much higher amounts of debt, and had also frozen the interest on my accounts. I explained that I lived in rented, furnished accommodation and had no assets of any kind. I asked once again if they would reconsider my offer of £5 per month.

They then wrote back accepting the £5 for a period of 6 months and also suspend interest payments. After 6 months of payments, HSBC wrote to me again to say that they were passing the admin of the account to Payment Services Bureau and would be issuing a DN.

I wrote to Payment Services Bureau asking for a payment booklet, as I had no method of paying them. I received no reply, so wrote again 2 months later. I then phoned them when I still receive anything and was told they would send me a booklet. I soon received a payment card, although by this time I had missed about 3 or 4 months payments, so I then received a Final Demand from Payment Services Bureau.

From a pile of payment receipts I still have, it looks as though I picked up monthly £5 payments again, but started to get Final Demands and other letters/phone calls from a company called Metropolitan Collection Services a few months later. I wrote to them, explaining that I was still making the agreed £5 payment and that the stress of all of my creditors chasing me had taken it's toll, and that all future correspondence should be addressed to MIND in my home town, as I had started to need help for my mental health problems again.

From this point on, the debt seems to have been passed from pillar to post, with my writing to some of them, but ignoring most of them, as I just couldn't cope.

It's eventually ended up where it's at now. (Somewhere down the line, I stopped making any payments, as I couldn't even afford the £5 any more, but HSBC were no longer in communication with me, just a succession of DCA's).

,

 

Note:- Metropolian are HSBC in house DCA. monkeys.

[Toots111]

There are a few final demands from different companies Andy.

 

I have no idea what Promissory Estoppal means , but I offered the £5 per month, which was eventually agreed to( for 6 months, and then to be reviewed) by HSBC in writing. Is that 'conformation' Andy?

 

I have a SAR request underway and am hoping that if there is a DN in existence, it may turn up with whatever I get back from that.

 

I have written to the DJ to ask for a further extension of time in order to hopefully get the SAR stuff back before having to file my defence, but I'm probably clutching at straws.

 

Trying to correct something; ignore this please!!

 

Hi, thanks for your post; I thought that might be the case!!

[AndyOrch]

Particulars of Claim

 

1.The claimant claims the sum of £1561 being monies due from the Defendant to the Claimant under a regulated agreement originally between the Defendant and HSBC bank PLC.

 

2 The Defendant's account number was................ and was assigned to the Claimant on ../3/2013, notice of this has been provided to the Defendant.

 

3.The Defendant failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the consumer credit Act 1974. The Claimant claims the sum of £1561 and costs. The Claimant has complied , as far as is necessary, with the pre-action conduct practice direction.

 

Defence

 

1.The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is accepted having had credit facilities with HSBC in the past.

 

3.Paragraph 2 is denied I was unaware of any Assignment and was not legally served with a Notice of Assignment from either HSBC or MKDP.

 

4.Paragraph 3 is denied, HSBC was fully aware of my financial difficulties and mental health problems and permitted a reduced repayment plan.

 

It is denied a default notice has been served pursuant to the consumer credit Act 1974.The claimant is estopped from seeking enforcement.

 

5. On receipt of the above claim I requested a copy of the credit agreement by way of a section 78 request dated xxxxx.The claimant has partially responded but the the agreement is deficient of the true Terms and Conditions at the time of inception failed to account for the changes in the terms and conditions with regards to the amendment and failed to supply a statement of account.It is therefore contended that the request is still incomplete and that the claimant is still in default of the request and the Court directions dated xxxxxxx.

 

6.By way of a CPR 31.14 request dated xxxxxx I asked for disclosure of the Notice of Assignment/Default Notice/Notice of Sums in Arrears.To this date the claimant has provided a reconstituted version of a Default Notice which has no connection to any alleged default.

 

7.The claimant is prevented from adding interest or seeking any relief whilst in default of providing any Notice of Sums in Arrears pursuant to the CCA 2006 amendments section 11 86 D.

 

Therefore the Claimant is put to further strict proof to disclose :-

 

 

(a) show any breach and Default Notice in conjunction with Notices of Sums in Arrears

(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;

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.I have requested a copy of the agreement and T&Cs on the xxxxxxx but as yet the claimant has yet to comply.

 

5. 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.

 

6. 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 until such time they can comply with the above.

 

If you can check the above toots and edit to suit and complete the dates marked xxxxxx.Please post if you are unsure of any of the above.

 

Regards

 

Andy

[Toots111]

Hello Andy.

 

Huge apologies for not being able to get back to you sooner, but I've needed a lot of help with my mental health issues over the past week and am only just being able to pick things up again.

 

I need to inform you of some things that have happened during this time, mostly due to the help I've had.

 

1). Due to the fact that my credit file shows this debt listed separately to a HSBC debt, I have had all paperwork relating to them both bundled separately, believing them to be two separate debts. I've been told that they are in fact the same debt, although why they're shown separately on my credit file, (when none of my others appear to be), I don't understand.

 

Anyway, the result of being made aware of this means that I do in fact have a DN from HSBC, as well as a letter of assignment. The 'copy' of the letter of assignment that the Claimant recently sent to me is not a true copy of the one I've found; does that help me at all please??.

 

The DN does not allow the correct timescale for me to 'comply', there being only 14 days for remedy between the date on the letter and the date for remedy. I don't think you hold much truck with faulty DN's Andy, but I pray you feel that having this can help my defence and that you are able and willing to amend the defence you kindly put together for me recently, to incorporate this new information please? (The DN quotes the outstanding balance, the limit on the account, the overdue amount and a description of the breach. It states the action which may be taken against me if I do not remedy the breach, the breach being not paying the overdue amount by the date given).

 

I do not have any Notice of Sums in Arrears from HSBC or the Claimant.

 

2). In response to a hastily put together N244 application, which my mental health worker advised, ( requesting the DJ to order the Claimant to respond to the Part 18 letter and to also allow extra time for my defence), although I've had nothing back in writing yet, over the telephone the court has told me that a new date for my defence has been set for 11th July. Apparently, when I get the reply from the DJ in writing, it will state that I will need to ask for a hearing before he will consider ordering the Claimant to reply to my Part 18 letter.

 

SO, I now would please firstly like to ask you Andy, whether you feel asking for a hearing would help me at all, bearing in mind that I do now have a DN. I have no idea what a hearing would entail, who would have to be present etc, but I might be able to find out whether any Notices of Sums in Arrears were posted to me, should the DJ order in my favour. Is it worth going through more trauma in the hope of obtaining this information do you think please? Or, should I forget about a hearing and just incorporate the fact that I have a 'faulty' DN into any new defence please??

 

If you believe that the latter is the best way to go, I would be massively grateful if you could send me an amended defence as I don't know how much of the one you posted here for me will need to be omitted/amended/added to?

 

Sorry this is so long-winded, but whilst my brain is working, I'm trying to cover everything in one go!

 

In point 5 of the defence you sent, you say that 'the agreement is deficient of the true Terms and Conditions at the time of inception failed to take account for the changes in trems and conditions with regards to the amendment and failed to supply a statement of account'; they did not supply all of the pages of the original T's & C's, so I can understand that bit I think, but they did send some amendments to T's & C's and also four HSBC statements from the end of 2009, plus one from the end of 2013? ******(with regard to the copy of the statement dated the end of 2013, why would HSBC still be producing statements if they had sold the debt to the Claimant much earlier in the year to this Andy?? Also, on this 2013 statement , it states 'Your account is subject to a Fixed Payment arrangement of £5.00 . Please continue to make payments by the due date'. Why would HSBC still be producing such statements if the debt had been sold to the Claimant and the Claimant was the effective owner of this debt?

 

Really, really sorry for the amount of questions and new information in this post Andy, but it's taken my requiring help over the past week for so much to happen and for me to try and get my head round what this all means in terms of my defence.

 

A lot to digest I realise Andy!! I'm sure you will have new advice, which I desperately need again. I understand that my defence will have to be changed to, (although not as quickly if you believe I should ask the DJ for a hearing maybe).

 

I'm attempting work again today, for the first time in a week, so if you respond quickly and I can't answer you immediately, then I've succeeded in remaining there, fingers crossed.

 

Once again in your debt Andy. Many thanks in anticipation of you getting your head round everything here and being able to help again.

[AndyOrch]

Okay Toots so it just needs to be adjusted with regards the Default Notice...the rest still stands IMHO.I personally would not extend the date.... get it submitted and over with...there is nothing to be gained and it certainly wont help your health.

 

Regards

 

Andy

[Toots111]

Thanks for the speedy reply Andy, very much appreciated. I will not pursue a hearing then, just go with the filing of a new defence before 11th July.

 

Will you be willing/ able to amend my defence please, whenever you have time?

 

Also, if could shed any light on the questions I've asked in the bit about your point 5 in your previous defence, that would help me enormously, just so I can try and understand the points I've raised.

 

Cheers and HUGE thanks.

[AndyOrch]

Yes Toots I will clarify your points later....

[Toots111]

, off to work.

[Toots111]

Hello again Andy.

I'm just wondering whether you have had time yet to amend my defence and offer clarification on the points I raised please?

I'm sure I've become a thorn in your side, but I become panic stricken when dates are approaching and I know there are still things to do, or I need to understand, sorry!!