MKDP LLP Claimform - old HSBC credit card debt***Claim Struck Out***

[mwj2014]

Name of the Claimant ? MKDP LLP

Date of issue - 11th April 2014

 

What is the claim for –

 

1."The claimant claims the sum of £xxxx.xx 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 xxxxxxxxxxxxxxxx and was assigned to the Claimant on xx/12/2011, notice of this has been provided to the Defendant.

 

3.The defendant has 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 £xxxx.xx and costs.

 

The claimant has complied, as far as is necessary with the pre-action conduct practice direction."

 

What is the value of the claim? £xxxx.xx (between £1300 - £1500)

 

Has the claimant included section 69 interesticon (8%)within the total claim

or is it shown separate within the Particulars but not added to the debt? Nothing specified

Is the claim for a current or credit/loan account or mobile phone account? credit card account

 

When did you enter into the original agreement before or after 2007? Before 2007 (I think)

Has the claim been issued by the original creditor

or was the account assigned and it is the Debt purchaser who has issued the claim. Debt Purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? No,

 

Did you receive a Default Notice from the original creditor? Not that I recall

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Not that I know of

 

Why did you cease payments:-

I lost a massive job in 2009 after a perfect credit history and found myself in a spiral out of control with various creditors wanting more than I had left. I put priority debts first!

Was there a dispute with the original creditor that remains unresolved? No

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt managementicon plan? No

 

 

This is my first posting - I hope it makes sense

 

I've received a CC Claim Form with the Claimant being MKDP LLP for a historical HSBC credit card debt.

I've read the forums and extracted the following

(see below QUESTIONS/ANSWERS) which I've completed as appropriate (changed some values etc. to protect identity).

 

Since I was away working I missed the CC response time of 5+14,

I submitted an acknowledgement of service with intent to defend a few days late

and I've sent a CPR and CCA by Royal Mail (signed for)

and called the court to explain my timing, interesting they said no action had been progressed

and that I could do the acknowledgement on-line which I did.

 

Have I done the right thing?

 

Do I need to do anything else?

 

Are MKDP likely to win and drop a CCJ on me?

 

Thanks for your help on this - for forum is excellent.

MWJ

Edited May 5, 2014 by mwj2014

[ims21]

Thread moved to the legal forum

[AndyOrch]

Hi mwj and welcome to CAG...

 

If you could read and complete the following providing as much information as possible ....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**

 

You have 33 days in total if defending this claim ...19 to AoS and a further 14 to submit your defence.

 

In the meantime I would advocate you request a copy of the agreement using a section 78 request and also request anthing referred to in their particulars by way of a CPR 31.14 request.

 

Both template and how to use them can be found in the CAG Library.

 

Regards

 

Andy

[mwj2014]

Hi Andy,

 

Many thanks for your reply. Please find the answers below - thanks again for looking at my query - I'm extremely anxious about all this and concerned I've missed the deadline.

 

QUESTIONS / ANSWERS:-

 

Name of the Claimant ?

MKDP LLP

 

Date of issue -

11th April 2014

 

What is the claim for –

 

"The claimant claims the sum of £xxxx.xx being monies due from the Defendant to the Claimant under a regulated agreement originally between the Defendant and HSBC Bank Plc.

 

The Defendant's account number was xxxxxxxxxxxxxxxx and was assigned to the Claimant on xx/12/2011, notice of this has been provided to the Defendant.

 

The defendant has 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 £xxxx.xx and costs.

 

The claimant has complied, as far as is necessary with the pre-action conduct practice direction."

 

What is the value of the claim?

£xxxx.xx (between £1300 - £1500)

 

Has the claimant included section 69 interesticon (8%)within the total claim or is it shown separate within the Particulars but not added to the debt?

Nothing specified

 

Is the claim for a current or credit/loan account or mobile phone account?

An old credit card account

 

When did you enter into the original agreement before or after 2007?

Before 2007 (I think)

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.

Debt Purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment?

No, I've been swamped since my downfall in 2009 with various letters from various DCA's - I'm not aware of anything specific

 

Did you receive a Default Notice from the original creditor?

Not that I recall

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

Not that I know of

 

Why did you cease payments:-

I lost a massive job in 2009 after a perfect credit history and found myself in a spiral out of control with various creditors wanting more than I had left. I put priority debts first!

Was there a dispute with the original creditor that remains unresolved?

No

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt managementicon plan?

No

[AndyOrch]

Hi mwj

 

Okay here is your timeline....you have 33 days in total assuming you are defending in full...19 days from the date on the claim you must acknowledge service

(30th April allowing for Good friday) which you have completed.

 

You now have a further 14 days to prepare your defence and submit which should be done by the 13th May so you have a further 6 days.

 

Regards

 

Andy

[mwj2014]

Hi Andy,

 

Thanks for your reply and could I ask you to check the following please. I submitted the CCA Request and CPR Request by RM Special Delivery on Friday.

 

Since I was late sending my Acknowledgement of Service and given I've only 6 days left for defence does it leave the requests below useless?

 

What will be the basis of a defence?

 

I'm assuming they'll not provide the CCA in time however have I given them sufficient time to do so legally?

 

I'm also under the impression they do not have to comply with the CPR Request?

 

Sorry for all the queries - I'm getting worried

 

Thanks again.

MWJ

 

-----------------------------------

 

I submitted the following last Friday by Royal Mail Special Delivery.

 

CCA/cpr Request:-

 

 

[edit CCA and CPR templates removed - please read our rules - dx]

[AndyOrch]

Well in all honesty you should be telling me the basis of your defence...its your debt and your claim:wink:

 

Most defences that I draft are based on putting the claimant to strict proof to disclose ...that they have been fair...that they have followed pre action protocol and of course that any alleged debt is a true and correct reflection of any indebtedness.

That they have complied with the court directions and also that they have followed the CPR in being civil open and transparent in bringing their claim.

 

There are plenty of examples on the forum of defences that I have drafted for credit cards personal loans and current accounts.

 

Regards

 

Andy

[mwj2014]

Thanks Andy.

 

I feel I worded the above slightly wrong in that I was not asking you to write out a complete new defence for me. I was really trying to ascertain whether I'd so far completed the right requests and whether these could be relied on given the time left for me to submit a defence?

 

The defence I have very roughly put together is as follows:-

 

1. I've requested the CCA and CPR and assuming no reply by the time I submit defence I'll state these were requested and not received

 

2. Assuming no correspondence is received from MKDP I'll state there was no further contact following my requests & therefore will have to submit my defence without receipt of CCA/CPR

 

3. I'll state that I've not been provided with any true copy of the credit agreement relating to the original account and can therefore cannot deny or acknowledge the debt

 

4. I'll state that I've never received an assignment notice

 

5. I'll state that I've never received any copy of default notice from the original creditor

 

6. I'll state that I've never agreed any credit line with MKDP and do not acknowledge any debt with them or any other DCA

 

Does the above sound a reasonable defence?

 

Thanks

MWJ

[AndyOrch]

Hi mwj

 

Of course I understand...yes that's all you can request...but you wont be relying on them purely to draft a defence in fact the chances are they will not even respond in time if at all until standard disclosure post defence.

 

Therefore your defence must be drafted in a way that puts them to strict proof along with your attempts to seek clarification of the alleged debt and It must be CPR compliant.

 

Once that defence is set in motion you rely on the court to direct it and compel the claimant to prove their claim.

 

As already stated above there are plenty of examples on the forum of defences that I have drafted for credit cards personal loans and current accounts which will give you the general idea which you can edit to suit your particular claim.

 

Regards

 

Andy

[mwj2014]

Hi Andy,

 

Following my CCA and CPR 31.14 (2nd of this month) request which were received by MKDP on the 6th (recorded delivery)

I received the following letter (only important parts shown below):-

 

Claim Number: XXXXXXXX

 

"We write with reference to your recent request for documents relating to the claim above".

 

"Unfortunately at this time we are unable to fulfil your request. MKDP LLP takes great care to ensure that such matters are dealt with in a professional manner and as such we will need to liaise with the original creditor to request the appropriate documents."

 

"We will forward these to you upon receipt, please note that this may take up to 8 weeks. We can confirm we will not make any applications or seek to enter Judgment during this time."

The above reply seems to be in relation to the CPR 31.14 Request rather than the CCA Request

and therefore I've slightly modified the defence below which is one of your previous examples

- have I missed anything obvious at all?

 

The particulars of claim read as follows:

 

1. The Claimant claims the sum of £1xxx.xx 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 xxxx xxxx xxxx xxxx and was assigned to the Claimant on xx/12/2011, notice of this has been provided to the Defendant.

 

3. The Defendant has 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.

 

4. The Claimant claims the sum of £1xxx.xx and costs.

 

The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction.

 

Defence

 

Paragraph 1 is noted I have in the past had financial dealings with HSBC Bank PLC but deny any monies being due as alleged by the claimant MKDP LLP.

 

Paragraph 2 is denied I am unaware of any legal assignment between HSBC and MKDP LLP and the claimant is put to strict proof thereof.

 

Paragraph 3 denied the claimant has not provided a default notice as alleged has failed to respond to a CPR request to verify any breach nor has it served any Notice of Sums in Arrears since their alleged assignment of 2011 and remains in default of my section 78 request dated 02/05/2014.

 

Paragraph 4 is denied as yet the claimant has yet to provide any proof at all.

 

Therefore this claim is neither admitted nor denied with regards to the Defendant entering into an agreement referred to in the Particulars of Claim. The Claimant is put to strict proof as to the existence, execution and terms of any alleged agreement.

 

and 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

(d) show that they have served a Notice of Sums in Arrears

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

 

 

On receipt of this claim, I sent a CCA 1974, Section 78 request to the Claimant dated 02/05/2014.

This was sent via recorded delivery and signed for on the 06/05/2014.

The Claimant has yet to comply.

 

Furthermore, on the 02/05/2014 I requested copies of the documents referred to in the Claimant’s Particulars of Claim

by way of a Civil Procedure Request 31, PD 14.

This was also sent via recorded delivery and signed for on the 06/05/2014.

The Claimant has responded stating that "Unfortunately at this time we are unable to fulfil your request."

 

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

 

On the alternative, as 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. The Defendant has no recollection of receiving a notice of assignment.

 

Until such time the Claimant can comply with my request for a copy of the agreement and other documents relied upon in the Claimant’s Particulars of Claim, the Claimant is prevented from enforcing or requesting any relief as pursuant to the Consumer Credit Act 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 need to submit the above today and just wondered if:-

 

a. It looks okay, specifically the part The Claimant has responded stating that "Unfortunately at this time we are unable to fulfil your request." which I modified due to the recent repsonse from MKDP above?

 

b. Am I correct that they are in default of my section 78 request given the dates?

 

Thanks for all your help.

 

MWJ

[AndyOrch]

(a is ok b) 12+2 days and they are in default......

 

I have hi lighted red your post above on the defence...to which should not be included...wink:

 

Regards

 

Andy

[mwj2014]

Hi Andy,

 

Thanks for your reply.

 

Unfortunately because I was on the deadline I had to send the defence as set out above before your proposed change - does this land me in hot water?

 

I received the following from HM Courts & Tribunals Service:-

 

"I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor). The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen."

 

"Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay."

 

I've received nothing from MKDP other than the following which I noted in the defence:-

 

Claim Number: XXXXXXXX

 

"We write with reference to your recent request for documents relating to the claim above".

 

"Unfortunately at this time we are unable to fulfil your request. MKDP LLP takes great care to ensure that such matters are dealt with in a professional manner and as such we will need to liaise with the original creditor to request the appropriate documents."

 

"We will forward these to you upon receipt, please note that this may take up to 8 weeks. We can confirm we will not make any applications or seek to enter Judgment during this time."

 

Am I safe to assume that MKDP are in default as you point out and that the clock is also ticking towards the 28 day period in which effectively the lot is stopped unless overturned by a judge in the future?

 

What is the consequence of having the paragraph in the defence that you say I should of removed? Does it matter if the 28 day rule applies / they are in default etc?

 

Sorry for the queries, I'm just a little worried I've messed it up.

 

Thanks again for your help.

 

MWJ

[AndyOrch]

No you have not messed up...the claim is proceeding as expected.

 

Regards

 

Andy

[mwj2014]

Hi Andy,

 

Well things are moving on as last week I received a "Notice of Proposed Allocation to the Small Claim Track" saying:-

 

1. "This is now a defended claim - A copy of the defence has already been sent to you by the defendant."

2. "It appears that this case is suitable for allocation to the small claims track."

3. "You must by **date in July** complete the Small Claims Directions Questionnaire (Form N180) and file it with the court office and serve all copies on other parties."

 

I'm assuming this notice is for MKDP with a copy to me and that I do not need to take action or do I also complete N180 and select Small Claims Mediation Service as a possible first option??

 

Thanks for all your help.

[mwj2014]

Hi Andy,

 

I've also received a letter from MKDP with a copy of N180 completed by themselves with the following:-

 

Section A1 - Ticked for Small Claims Mediation Service

Section C1 - Ticked for Agreeing Small Claims is an appropriate track for the case

Section D1 - Hearing venue in Milton Keynes (close to them)

Section D2 - Ticked for not using witnesses

Section D3 - One witness will give evidence

Section E1 - Ticked No to Included Fee

 

I'm guessing applying for Mediation is a good start?

 

What generally happens from here & where do I stand given MKDP have not (as I understand it) complied with my requests for CPR/CCA as set out in my defence?

 

I'm really worried that I'm potentially getting deeper into this & could I be faced with a major debt if I'm probably going to lose that case. I cannot understand how these things get into a court situation when they've clearly not provided the information requested and information that I'm entitled to (I think I am). Is it likely to be a case me little me vs them with deep pockets and a good legal representation!

 

Thanks

MWJ

[AndyOrch]

You also need to complete and submit the DQ (N180) by the stated date mwj.

 

Regards

 

Andy

[mwj2014]

Thanks Andy,

 

I've sent back the forms indicating I'd like mediation and any hearing closer to home.

 

Just as a thought - I moved house a few years ago and did not update HSBC (assume any account was closed) or MKDP (the sharks) of a new address. They seem to have tracked me to my new address and have taken action my means of the initial CCBC and possibly chasing / enquiry letters beforehand. Does the Data Protection Act give me any fire power against them in that do they have the right to fish via post if they cannot be certain beyond all reasonable doubt that the address is my permanent residential one?

 

Additionally, they've not provided the information requested in the CRP/CCA letters - do I chase it / remind them? I'm assuming all correspondence has to be provided to the court at some point and does it look better if I'm reminding them?

 

What do you think are the chances this will just go away before a hearing?

 

Thanks & sorry for the queries, I'm getting very nervous

 

MWJ

[AndyOrch]

Hi mwj

 

In response no........ and no........and I have no idea...my crystal ball is in for sevice:wink:

 

Regards

 

Andy

[tiggrae]

Thanks Andy,

 

I've sent back the forms indicating I'd like mediation and any hearing closer to home.

 

Just as a thought - I moved house a few years ago and did not update HSBC (assume any account was closed) or MKDP (the sharks) of a new address. They seem to have tracked me to my new address and have taken action my means of the initial CCBC and possibly chasing / enquiry letters beforehand. Does the Data Protection Act give me any fire power against them in that do they have the right to fish via post if they cannot be certain beyond all reasonable doubt that the address is my permanent residential one?

 

Additionally, they've not provided the information requested in the CRP/CCA letters - do I chase it / remind them? I'm assuming all correspondence has to be provided to the court at some point and does it look better if I'm reminding them?

 

What do you think are the chances this will just go away before a hearing?

 

Thanks & sorry for the queries, I'm getting very nervous

 

MWJ

They won't have the documents you've requested so are basically looking at the Court Mediation process to obtain an Out of Court Settlement (known as a Tomlin Order) for you to agree to start making payments, a Tomlin Order will be binding on you and if you default they can return to Court for the full and Enforceable Order.

 

So you have a choice, go to mediation and agree a settlement or continue to defend your claim on the basis they haven't proved you owe them money.

[AndyOrch]

" So you have a choice, go to mediation and agree a settlement or continue to defend your claim on the basis they haven't proved you owe them money."

 

Not quite true ..you and the claimant are expected to participated in mediation...ADR (alternative dispute resolution) is used to to try to narrow any differences....(but if you can reach a settlement even better) but you can participate and reject and proceed to trial.

 

Any party refusing to participate can be sanctioned when costs come to question.

 

Regards

 

Andy

[mwj2014]

Hi,

 

 

Thank you both for your responses - it is much appreciated.

 

 

I did not receive a call from the mediation service to setup a mutual time for discussion and instead received a Notice of Transfer of Proceedings (N271).

 

 

Further to the above I've now received a General Form of Judgement or Order (N24) as below:-

 

 

__________________________

 

 

Before District Judge xxxxxx sitting at the County Court at xxxxxx,xxxxxxxxx,xxxxxx.

 

Upon reading the documents filed

 

And of the Court's own motion

 

IT IS ORDERED THAT:-

 

1. The Claimant shall within 28 days of service of this Order file and serve

 

 

- A copy of the agreement between the assignor (HSBC) and the Defendant

- A copy of the applicable terms and conditions of the agreement, if not contained within the same document

- A copy of the notice of assignment of the account to the Claimant, showing the date and manner of service thereof on the Defendant

- A full statement in respect of the material account showing all transactions relied upon in arriving at the balance claimed

 

 

In default the claim shall be struck out.

 

 

2. This Order has been made by the court of its own initiative, without hearing the parties or giving then an opportunity to make representations. Any party affected by the order may apply to have it set aside, varied or stayed. Such an application must be made not more than 7 days after the date on the which the order was served on the party making the application.

 

 

______________________________

 

 

If I'm reading and understanding this correctly I think this is good news for me in that it is very unlikely MKDP will provide the documents at this stage - am I understanding this? They failed to provide the documents within the timescales as discussed above and I'm guessing if this went to court I'd simply stick to my line of prove it?

 

 

Is there anything I should do now?

 

 

Thanks for all your help.

 

 

MJW

[AndyOrch]

Nice directions...trigged by a good defence:wink:

 

Lets see if they can disclose.

 

Regards

 

Andy

[mwj2014]

Hi Andy,

 

 

I'm assuming this is the best outcome I could hope for at this stage then?

 

 

Thank you for all your help and defence

[AndyOrch]

Yes ...proceeding to plan ...nicely

[mwj2014]

Hi Andy,

 

Given the N24 form above has now passed the 28 day mark (days not including the date issued by the court but including weekends) can I safely assume this is at an end? Do I need to do anything to ensure this is put to bed completely?

 

Thanks for all you help.

 

MWJ