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MKDP issued county court claim for HSBC overdraft


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So, this situation will soon come to a head. I have until next week to send off my witness statement and documentation bundle to the court, the hearing is towards the end of the month (I'm not posting exact dates in case anyone is snooping). I requested mediation and got an acknowledgement back, but nothing further was heard so it looks like MKDP don't want to do mediation.

 

 

The court isn't exactly filling me with confidence - received an order in January that the claim was going to be struck out in 7 days because MKDP hadn't paid their fee. That order was later rescinded because MKDP had paid the fee before the order saying they hadn't was sent out!

 

 

I received their documentation bundle today, most of it is the same as was in the documents they sent to me previously - statements printed from HSBC's system and 'letters' which are text from HSBC's system showing what was supposed to be in them, but not actual letters, these are a demand for payment and an earlier overdraft agreement but is neither the one in force when the account was closed or when the overdraft was first granted.

 

 

The two significant new things they've enclosed are:

 

 

Copy of Terms and Conditions in response to my claim that the amount is unfair due to charges - these however are dated 3 months before the account closed. This would cover only a short time before the account was closed and during that time only debit interest is added on. They have provided no copies of the terms and conditions in force for the bulk of the charges and interest.

 

 

What purports to be a notice of assignment from HSBC in response to my claim that they have demonstrated no legal claim over the debt. However it is not a true copy of the original - it is not on an HSBC letterhead and does not have a signature on (I'm also going to do some digging as to whether the writer of the letter - a 'Gary Jones, Head of Recoveries' actually exists). Any ideas on what the judge will make of that?

 

 

Can anyone confirm whether they do actually need originals for court or whether recons will do?

 

 

I'm going to put together my witness statement now, I don't expect anyone to write it for me but some advice on general themes to include would be greatly appreciated! Specifically is it appropriate to start pulling apart their witness statement in my witness statement or should I leave that for the court?

 

 

I'm also thinking of making a F&F offer to MKDP in respect of the balance less charges *if* they can provide a proper Notice of assignment. Could such an offer be used against me in court? If such an offer would be seen as positive action by the court, should I make a point of mentioning that I have made an offer in my statement?

 

 

The text of the their witness statement is below:

I, Deep Athwal of Fleming House, Seebeck Place, Knowlhill, Milton Keynes, MK5 8FR, Litigation Assistant, state as follows:

 

 

1. I am a litigation assistant in the employ of MKDP LLP, the claimant. I have the conduction of this action on behalf of the claimant. I am authorised to make this witness statement and the contents of this witness statement are true to the best of my knowledge, information and belief unless otherwise stated in which case I believe it to be true. There is now produced and shown to me in "DA1" various copy documents to which I shall refer by page number.

 

 

2. I also make this witness statement from my examination of the claimant's files and from my knowledge of it's procedures and also my knowledge of this claim.

 

 

3. This witness statement is made in response to the defendant's defence dated and in anticipation of the hearing listed for

 

 

BACKGROUND

 

 

4. The claimant is a debt purchaser in the business of purchasing consumer credit debt from various loan and credit card providers and is authorised and regulation by the FCA for accounts formed under the CCA 1974.

 

 

5. The defendant opened a bank account with HSBC bank PLC (The original lender) under (the bank account). As the debt relates to a bank account the provisions of s77-79 of the CCA 1974 do not apply and the court may enforce the bank account without a 'credit agreement'. A copy of the original lenders general terms and conditions effective from are annexed herewith at

 

 

6. The defendant received statements of account from the original lender for the bank account. At pages are statements from

 

 

7. A term of the agreement allowed the original lender to write to the defendant demanding immediate repayment of the overdrawn balance together with accrued interest, fees and charges. The claimant believes that a demand for payment was sent to the defendant which the defendant failed to satisfy. A copy of the reconstituted demand letter is annexed at of exhibit DA1

 

 

8. The defendants account was assigned to the claimant on by the original lender with a balance of . Notice of assignment was sent to the defendant on in compliance with s.136(1) of the law of property act 1925 (LPA 1925). A copy of the notice of assignement is at of exhibit DA1. S. 136 of the LPA 1925 requires that a debtor be 'given' notice rather than 'served' notice so the provisions of s196 of the LPA 1925 for service by registered post do not apply. The Notice of assignment was not returned as undeliverable by the postal service.

 

 

9. The claimant instructed it's servicing agent, MK Rapid Recoveries (MKRR) to attempt to recover the balance utilising letters and telephone calls. The defendant failed to respond.

 

 

10. In the absence of payment or a payment arrangement a letter before action was sent to the defendant at on in accordance with CPR Pre-Action Conduct.

 

 

CLAIM

11. In the absence of a response to the letter before action, payment, or a payment arrangement, claim was issued by the CCBC on for

 

 

DEFENCE

12. The defendant filed a defence and counterclaim to the claim dated A copy of the defence is annexed herewith at of exhibit DA1.

 

 

13 In response to the defendants defence, the claimant will respond below to each of the points raised in the defence.

 

 

14. In response to point 1, the claimant can make no comment as to the original lender's handling of the account and suggests that if the defendant has a complaint he should raise this with the original lender.

 

 

15. In response to points 2 and 3, the claimant repeats paragraph 8 above.

 

 

16. In response to points 4 and 5 it is confirmed the defendant wrote to the claimant requested documentation under CPR 31.17 a copy of which is annexed at of exhibit DA1. It is denied that the claimant failed to comply with the request and a response was sent to the defendant stating the claim fell under CPR 27 a copy of the letter is annexed at (this would be because they had not replied by the time I needed to submit my defence, however previous advice on this thread is that their response wasn't compliant anyway).

 

17. The claimant did provide a copy of the overdraft agreement, statements and demand for payment on , a copy of which is annexed at page 139 of exhibit DA1.

 

 

18. Finally, the claimant asserts that interest and charges are a term of the contractual agreement which the defendant entered into. When entering the agreement, the defendant agreed to the original lender adding the interest and charges which the defendant now disputes to be disproportionate.

 

 

SMALL CLAIMS HEARING

19. At the forthcoming small claims hearing, the claimant therefore seeks to recover the sum due. The claimant respectfully requests judgement be granted in its favour.

 

 

Statement of Truth - I believe that the facts stated in this witness statement are true and I am duly authorised to sign this witness statement.

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  • 3 weeks later...

Really need some help quickly on this one guys! The hearing is on Thursday. I appreciate my last post was a bit TLDR, but I went ahead and issued a witness statement where the main argument was that the fees and charges were disproportionate and almost entirely covered the amount borrowed (I found additional prior statements showing prior fees and charges). I also made an F&F offer to MKDP of about 30% of what they were claiming. The F&F was made without prejudice and was not an admission of liability. No response was received.

 

 

The date by which documents had to be served on the court and all parties passed 2 weeks ago, yet today I've come home to a further witness statement from MKDP where they have asserted that the overdraft agreement they provided (from shortly before the account closed) covers the entire term of the borrowing, and they have also mentioned that I have made an F&F offer, even though I made it without prejudice (so AIUI this can't be used against me in court) and explicitly did not admit liability in it.

 

 

Can they do this as the date for serving documents has passed?

 

 

Would I be better off rushing through a further witness statement of my own enclosing a copy of the letter (MKDP did not do that) or arguing in court that the later statement has to be disregarded?

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No they cant issue a supplemental witness statement....you should ask that it be disregarded by the court.

 

Andy

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No they cant issue a supplemental witness statement....you should ask that it be disregarded by the court.

 

Andy

Thanks Andy. I already submitted my own supplementary statement before I received the advice, I will explain that I submitted mine only because they did and ask that both are disregarded - how should I approach the judge with that?

 

 

Can anyone provide some general advice on how these hearings go and protocols etc I should follow - the only time I've ever been to county court before was an N244 hearing for a parking ticket. That hearing was entirely led by the judge, I didn't feel at any point that I could discuss anything she didn't want discussed (although I did win it)

 

 

Will this hearing be different in that we each say our piece, and if so who goes first? Do we also get a separate section to sum up or do we only speak the once?

 

 

Also, MKDP have advised that the witness in the witness statement will not be attending, but a 'representative' will. Am I right in thinking then that I can be cross examined by them, but I will have no opportunity to do the same back because their representative is not a witness?

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Thanks Andy. I already submitted my own supplementary statement before I received the advice, I will explain that I submitted mine only because they did and ask that both are disregarded - how should I approach the judge with that?

 

Well hold fire first until the DJ raises it ...if he allows it he must allow yours also.

 

 

Can anyone provide some general advice on how these hearings go and protocols etc I should follow - the only time I've ever been to county court before was an N244 hearing for a parking ticket. That hearing was entirely led by the judge, I didn't feel at any point that I could discuss anything she didn't want discussed (although I did win it)

 

 

Will this hearing be different in that we each say our piece, and if so who goes first? Do we also get a separate section to sum up or do we only speak the once?

 

This is Small Claims Track and is very relaxed...the Judge will start by running through the claim and your defence...then check that all directions have been complied with.

He will then address the claimant and then yourself...alternatively to determine if the claim is valid or your defence has merit.

 

Once all the details have been verified he will summarise and decide...if a judgment can be made ...it will or he may want the claimant to disclose something so it will be adjourned.

 

 

Also, MKDP have advised that the witness in the witness statement will not be attending, but a 'representative' will. Am I right in thinking then that I can be cross examined by them,NO but I will have no opportunity to do the same back because their representative is not a witness? see below

 

Claimant wont address you..only the judge...so when you get your opportunity to speak make the most of it and get your valid points across

 

Andy

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Just FYI, I lost this one. The reconned overdraft agreement from 2010 was deemed to be sufficient evidence that the interest & charges were justly applied even though it does not cover all of the borrowing, and no schedule of charges was provided anywhere to justify any charges. The late witness statements were both admitted on the basis that they did not fundamentally change the case.

 

 

The judge took some leniency in that she did not award any costs claimed apart from the issue fee & hearing fee (they also wanted a £210 'attendance fee' for the local solicitor they hired to represent them to save them the bother of sending someone in house down, and a £195 'admin fee' for their costs in preparing the case), apart from that they won.

 

 

An instalment arrangement was agreed at the time and will be written into the judgement, the claimant's solicitor (who to be fair was a perfectly decent chap) seems to think that this means I won't have the CCJ entered onto the register as long as I stick to it since I'm fully complying with the judgement - so in effect I have a CCJ without having a CCJ. Whilst I would love that to be true I thought a CCJ had to be satisfied in full within a month or judgement is entered?

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The CCJ will be registered chris...post up the Notice of Judgment on receipt....nice to see their costs were declined.

 

Andy

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The CCJ will be registered chris...post up the Notice of Judgment on receipt....nice to see their costs were declined.

 

Andy

MKDP today wrote to me under their alternative letterhead of 'Keynes Collections' (which apparently is a 'final escalation point' should 'Raven Recoveries' have been unsuccessful in getting payment...PMSL) and 'are pleased to confirm' that they have 'accepted' my settlement arrangement...as if they had any choice when it was in the judgement.

 

 

Anyway, the judgement came through from the court a few days ago. Quite basic and doesn't contain the detail the DJ went through:

 

 

IT IS ORDERED THAT:

 

 

1. There be judgement for the claimant in the sum of

 

 

2. The defendant shall pay the claimant's costs summarily assessed in the sum of £220 (just the court fees).

 

 

3. The total sum due of shall be paid by instalments of £50 per month, first payment due on 30/4/15 and on the last working day of each month.

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  • 7 months later...

New snag with this...

payments have been paid to MKDP exactly in line with the agreement and nothing was ever missed.

 

At the end of last month,

MKDP sold the account to Robinson Way,

who sent me a deed of assignment and new payment details.

 

My payment for last month was still made to MKDP

but this crossed with the communication and in fact was made a couple of days after Robinson Way owned the account.

 

Neither of them now wants to take responsibility for where that payment went

- MKDP said they have forwarded the payment to Robinson Way and as it's not their account any more I would need to raise any queries with them.

 

Robinson Way say they have not received any forwarded payments from MKDP,

I am now behind with my payments and need to pay £100 this month to bring the account up to date and then pursue MKDP myself for a refund of the £50.

 

Both parties essentially just want me to forget about this payment which will end up with me paying an extra £50 which I am absolutely not going to do.

 

In this case, who's fault is this,

and could the court get involved since the instalment arrangement was written into the judgement and so ordered by the court?

 

I don't think either of them can be considered to be acting reasonably since they are relying on a communication sent 2 days before the payment was due and which having been sent by second class post they know I would not have received in time to pay anyone else last month.

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MKDP then owe the money to Robinson Way...let them sort it out between themselves...you have proof that it was paid..MKDP says they received it and forwarded it to Robinson Way...

 

Andy

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  • 1 year later...

About 2 years ago, I defended and lost a court claim. An arrangement was agreed during the hearing, and the other side's costs were denied.

 

At the time, the claimant's solicitor said that judgement wouldn't be entered due to the arrangement being agreed with the court as long as I stuck to it.

 

Advice here (and elsewhere) is that this was rubbish, and judgement would be entered.

 

However, although the default account appears and updates, the CCJ has never appeared on my credit file with any CRA.

 

The account has been sold twice since then and has now ended up with Robinson Way.

I have always stuck religiously to the repayment arrangement,

paid on time every time without fail.

 

2 years later,

I'm now about 8 months from completing the arrangement

(and due to the age of the account, only 9 months till the default drops off my file anyway).

 

My credit rating in that time has improved,

 

I got approved for a bad credit credit card, used it sensibly and more recently got approved for a much better one from my bank,

 

I've been approved to rent a flat without needing a guarantor as I did previously and I was looking forward to only being months away to my bad credit history being behind me.

 

As I have recently come into a small amount of money,

I decided that the sensible thing to would be to use this to pay off this account and bring the matter to a close,

 

I've just been on the phone to Robinson Way to see what sort of lump sump settlement they would offer.

 

I got transferred to legals because they have a CCJ for the account who mentioned that after paying it off they would instruct the court to change the judgement as satisfied on by credit record.

 

I told him about the fact that it doesn't currently show anyway, and wanted to make sure that I didn't do anything to make my position worse.

 

The settlement offer made was derisory

(less than 5% of the remaining balance, considering I've already paid about 75% of the amount on the judgement at this point anyway)

and I hoped to push them for a better deal.

 

The conversation ended up degenerating and no reduced settlement was agreed,

and I told them I would just carry on with the existing arrangement.

 

At the end of the call the legals guy issued a (very) thinly veiled threat after I didn't accept their offer;

 

he said he would 'make sure the error on [my] credit file is corrected as regards to [my] unsatisfied judgement not showing'.

 

he's threatened to ruin my credit file,

after it is only months away from being clean.

 

Is this just standard DCA phone threats or can he actually get my credit file changed?

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Who took you to court..the claimant?

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Mkdp HSBC overdraft was it?

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Threads merged for history

 

Mkdp/hph2/hoist are all the same lot

 

Even if the CCJ were put on

Then its only there like the default for 6yrs regardless to paid paying or not

It like the default and the whole account..will vanish on its 6th birthday

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Thanks for the reply,

I understand the CCJ will only last for 6 years,

but at present it doesn't seem to have been entered or for some other reason doesn't show (for what reasons I don't know) even though I got the judgement 2 years ago.

 

The claimant's brief seemed very clear that it wouldn't show at the time,

I don't know if there was some reason they asked for judgement not to be entered at the time (although I can't think possibly why they would want to, or what advantage that would give them).

 

Either way,

at present I'm only 8 months away from repayment,

9 months away from the default disappearing

and by extension because the CCJ doesn't show,

 

the whole matter being closed and my getting a clean credit record to build up.

 

But AIUI, if the CCJ now gets put on,

I will then end up with a CCJ visible until 2021

(even if it will spend most of that time showing as satisfied).

 

Essentially they've threatened to punish me for not accepting their offer.

What I really want to know is whether Robinson Way are able to carry out their little threat and ask the court to 'correct' my credit file in this way

 

- or are you saying that even if the CCJ gets put on it will only stay there until the account falls off the end in 8 months time?

 

I wish I left well enough alone and kept quietly paying them now!

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Pitfalls of talking on the phone

You've been here long enough to know not to do that!!

 

The CCJ has not been sold

Every name you mention is simply differing trading names of members of the hoist group

 

Just keep paying..ignore their threats

 

About time you sent HSBC an sar

And got reclaiming

 

Bet this was a managed loan dumped into your OD anyway

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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About 2 years ago, I defended and lost a court claim. An arrangement was agreed during the hearing, and the other side's costs were denied.

 

So it doesnt show... But i have a query, are you sure this isnt a Tomlin Order if their costs were denied?

 

We could do with some help from you.

 

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As far as I'm aware it's not a Tomlin.

There was a brief discussion regarding settlement before the hearing but the claimant's solicitor couldn't get hold of them so the hearing proceeded.

 

Judgement was given for the claimant, but all the costs apart from the court fees were denied.

 

I asked the judge about agreeing repayment,

she agreed that if an agreement could be reached immediately she was happy to write that into the judgement.

 

The solicitor and I discussed the arrangement privately outside the court room.

 

He finally got hold of MKDP, they agreed the repayment plan,

details were left with the usher and the judgement when it came through (as posted in page 2 of this thread) included a repayment arrangement which I've stuck to ever since.

 

Their solicitor told me judgement wouldn't be entered unless I defaulted on the agreement.

 

Although every piece of advice I've got contradicts this, it has indeed never shown up on my credit file.

 

If it was a Tomlin order wouldn't this be agreed prior to the hearing and involve me admitting liability (which I never actually did, I simply lost the case?) or is there some sort of 'back door Tomlin' process which exists?

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correct

 

get that sar running offset the outstanding by reclaiming

 

ever heard of the phrase managed loan from HSBC?

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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I've not heard specifically of the term managed loan,

but I would assume this is an arrangement where they force you to convert your overdraft to a loan in order to get it paid off?

 

Would this end up being a separate loan account with a CCA attached to it or would it somehow still take place on the current account?

 

I ask because the amount claimed was far in excess of the overdraft limit,

but the reconned paperwork that was eventually provided supported the number through the application of a large number of fees and debit interest

(which seemed to be higher than fees that were charged when I was running the account).

 

This of course assumes that the recon statements were real and weren't just constructed by MKDP to reach a number,

 

I'd had no original paperwork out of HSBC since 2011.

If the former

, then it doesn't look like they did convert it

. If the latter

, then they may well have done.

 

MKDP's recon paperwork had holes like swiss cheese in it anyway.

I seemed to lose the case largely based on a reconned overdraft agreement which was undated and so couldn't be conclusively attached to any period of time

(and I would suggest couldn't be claimed as a true reconstruction when it was missing something as fundamental as the date it was made),

 

but crucially was neither the original agreement or the one in force when the account was closed.

 

The judge heavily grilled the claimant's solicitor over the shortcomings of this paperwork

(and used that as part of the reason why she denied their fees)

but ultimately decided it was all they needed to enforce the claim!

 

I'll bung a SAR off to HSBC then and see what comes back.

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Re managed loan...not quite but the right idea

 

Use our search CAG box of the top red toolbar

 

HSBC managed loan

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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