HSBC Claimform - card from 2002 'debt' ** CLAIM DISCONTINUED **

[zeek06]

Name of the Claimant ? HSBC

Date of issue Dec 2014

What is the claim for – the reason they have issued the claim?

 

The Claimant's claim is for the balance outstanding under a credit card agreement dated 30/09/2002

and numbered [my cc number] regulated by the consumer credit Act 1974.

The Defendant has failed to make payment by the Statutory Default Notice served by the Claimant dated 10/11/2010 AND

the Claimant claims

1. £2559.39

2. Interest pursuant to Section 69 of the county court Act 1984 at a rate of 8.000% per annum

from the date hereof at a daily rate of £0.56 to the date of Judgement or sooner payment.

 

Amount claimed: 2559.00

Court fee: 105.00

Solicitor's costs: 80.00

Total amount: 2744.00

 

What is the value of the claim? £2,500 + costs

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? Credit card

When did you enter into the original agreement before or after 2007? September 2002, allegedly

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. Original creditor (HSBC)

 

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

Not sure, it might have been assigned to Metropolitan... Have to check that though.

Did you receive a Default Notice from the original creditor? I did, in 2010.

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

I don't think I have, at least not every year.

Why did you cease payments?

HSBC started harassing me with letters - used to get them at least 2 times every month. Never responded to these though.

 

What was the date of your last payment? September 2014

Was there a dispute with the original creditor that remains unresolved? Don't think so.

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan?

I've made an offer to HSBC back in 2010 to pay them a nominal amount of £1 due to being unemployed for 4 years. They've accepted that then.

Brief history of the claim (answers to the questionnaire follow below):

 

1. In Dec/2014 I've received a claim from HSBC for my CC debt (around £2,500)

 

2. Responded to the claim filing an acknowledgement of service and sending CPR31.14 request to HSBC.

Received acknowledgement from HSBC's solicitors, but nothing else.

 

3. By 17/Dec/2014 no documents provided, filed N244 form with Northampton court to strike out the claim.

 

4. Order granted on 31/Dec/2014, however it stated that HSBC needed to comply with that order the week before (24/Dec).

 

5. HSBC appealed on the grounds that the order was impossible to comply with so needs to be struck out

and also provided me with a "reconstituted" version of the agreement and the default notice.

 

6. Case transferred to my local court for 1 hour hearing.

 

7. On that hearing (at the beginning of this month),

the judge accepted HSBC's arguments and ordered for the original order by NCC to be struck out.

He, however, also ordered HSBC to provide witness statement why they cannot supply me

with copy of the documents I requested under CPR31.14 and need to provide a reconstituted version of these.

In the same order, the judgement says that, provided HSBC respond to this request,

I am required to file a defence by the end of this month (in 10 days’ time).

HSBC responded with a witness statement and I am now required to file a defence.

 

This is where I am at.

 

A lot of questions,

but the main issue for me is to file a defence

 

- how can I get a defence based on "reconstituted" version of the CCA,

 

also given that I have no recollection of ever signing such agreement

(the credit card in question, as far as I remember, was given to me by HSBC

when I applied with them for a current account

and I was told at the time that HSBC offers such credit cards as "standard"

- never asked for a credit card specifically).

 

Another important fact to note is that the CCA, allegedly entered into, is dated in September 2002.

 

There is also a matter of costs

 

- I am of the understanding that if the case is allocated under the small claims track,

the most costs I am going to pay if I lose the case, would be around £280,

 

but I am hearing conflicting opinions that HSBC can ask me to pay their full costs t

hat could be 1000s of pounds worth.

Is that really the case?

 

Ideally, I am on the lookout for good solicitors out there (I am willing to pay, of course)

to review my papers/correspondence, advice and draft my defence, then, if it comes to that, to represent me in court.

 

Help very much appreciated, many thanks.

 

Questionnaire answers:

[dx100uk]

can we have the POC as written on the claimform minus pers info

 

and can you confirm the claimant noted on the claimform is HSBC and not a debt buyer

 

ps we do not recommend sols. no allowed and you don't need one either.

 

for an agreement from 2002 they WILL need the signed agreement or a true copy NOT a recon

[zeek06]

can we have the POC as written on the claimform minus pers info

Here goes dx...

 

The Claimant's claim is for the balance outstanding under a credit card agreement dated 30/09/2002 and numbered [my cc number] regulated by the Consumer Credit Act 1974. The Defendant has failed to make payment by the Statutory Default Notice served by the Claimant dated 10/11/2010 AND the Claimant claims

1. £2559.39

2. Interest pursuant to Section 69 of the County Court Act 1984 at a rate of 8.000% per annum from the date hereof at a daily rate of £0.56 to the date of Judgement or sooner payment.

 

Amount claimed: 2559.00

Court fee: 105.00

Solicitor's costs: 80.00

Total amount: 2744.00

 

 

and can you confirm the claimant noted on the claimform is HSBC and not a debt buyer

Indeed I can: Claimant HSBC Bank plc, 8 Canada Square, London E14 5HQ

 

for an agreement from 2002 they WILL need the signed agreement or a true copy NOT a recon

That's interesting. I am assuming HSBC also know that - if so, they know this is a dead-end, so why pursue it then - to scare me off?

[SabreSheep]

Any late payment charges, PPI or over limit fees on this account?

[dx100uk]

I would file the std holding/no paperwork defence

 

 

like this

BUT it will need adapting to THEIR POC

 

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 noted and accepted I have in the past held accounts with [original creditor]d..... (You can add and expand here)

 

3. Paragraph 2 is denied I am not aware of any assignment as stated above or any requests for payments.I have never received statements or Notice of Sums in Arrears given that the claimants plead they are the legal owner of any alleged debt.

It is my understanding and pursuant to the CCA2006 amendments that the claimant is prevented form any enforcement during this lack of service.

 

4.Paragraph 3 is denied I am not aware of ever receiving a Default Notice (you can add and expand here)

 

5.Notwithstanding the above on receipt of the above claim a request for information pursuant to the consumer credit Act (section 78) and CPR 31.14.The requests were made on xxth xxxxx 2015 by recorded delivery and signed for by the claimant on xxth xxxx 2015. To date I have received no response or acknowledgement from the claimant’s solicitor.

 

The claimant is therefore in default of the statuary 12 days.

 

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

 

7.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

 

It is denied with regards to the Defendant owing any alleged monies to MKDP. 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

© evidence any nature of breach and show service of a Default Notice and Notice of sums in Arrears.

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

 

8.By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

[zeek06]

SabreSheep, sorry I've missed your question - no, there aren't any as far as I am aware.

 

dx, regarding your draft above - I have a few concerns with this.

 

To me, it seems claiming the money is owed will be an easy one to satisfy - when HSBC's submited the appeal, they provided detailed statements of the account and during my hearing I didn't deny the debt is owed since I have indeed used this credit card (and spent the money, no doubt), so I fail to see how this is a good defence point.

 

If I tell the judge that I am disputing this debt I might look like a fool or worse.

 

As for the Default notice - I have received it, so this cannot be used in the defence either (paragraph 4 in your draft defence).

 

As for assigning of the debt - HSBC owes it, so that's also irrelevant.

 

At the beginning of this thread you mention that HSBC needs to present a true copy of the original signed agreement as per the CCA (prior to the ammendments in 2006). To me, that looks like a good point for basing my defence around, as HSBC can't prove that - they don't have it and cannot possibly present it (unless they forge it - something I won't put it past them). Provided they cannot satisfy the requiements of the CCA in effect when the contract was signed (allegedly!), am I right in assuming that this agreement is therefore unenforceable?

 

Shouldn't that be my main line of defence then, since their case would be dismissed, no? I read a lot about s.172(3) of the Act and that seems the best way to base my defence around as HSBC cannot possibly satisfy this requirement. What else in that line of defence can I use?

 

The fact that the agreement is based prior to the ammendments made to the Act in 2006 should be fully exploited, I think. What else is there which I could make a good use of with regards to the agreement? Thoughts?

 

Another issue which hasn't been addressed is the costs - I raised this above, but got no answers - am I right in assuming that, provided this case is allocated under the small-claims track, the most I can pay for costs is about £280?

[dx100uk]

that's why I said you need to adapt it

there are lots of variants here.

[AndyOrch]

7. On that hearing (at the beginning of this month), the judge accepted HSBC's arguments and ordered for the original order by NCC to be struck out. He, however, also ordered HSBC to provide witness statement why they cannot supply me with copy of the documents I requested under CPR31.14 and need to provide a reconstituted version of these. In the same order, the judgement says that, provided HSBC respond to this request, I am required to file a defence by the end of this month (in 10 days’ time). HSBC responded with a witness statement and I am now required to file a defence.

 

You cant use the above holding defence in this instance.

 

So have they complied and provided a witness statement?

 

Regards

 

Andy

[havinastella]

Their date of issue was Dec 2014, You posted for help in July 2015! Is this the case?

[zeek06]

Andy - thanks,

yes they did and in that statement it is more or less what they've said in their original statement prior to the hearing

- they "cannot find" it, therefore providing a "reconstituted" version of the agreement and the deault notice

(please note - they've said they "cannot find" the agreement, which makes me think that they leave the door open to "miraculously" produce one at the 11th hour,

hence why I wouldn't put it past them to forge one, somehow).

 

havingastella - yes, that's correct.

I didn't know about HSBC's appeal until I've got the papers from my local county court in mid-February

that the case has been transferred (I've got the original order from Northampton about the decision and, for me, the case was closed).

 

Since then, and because of the fact that my local court is quite busy, it seems,

the first available date for this 1 hour hearing was at the beginning of the month.

 

 

Up until then I could manage on my own (or so I thought) without seeking help with doing a bit of reasearch on the Internet

(including reading stuff on this very forum), but from now on I definitely need help!

 

Idieally, I'd love to get hold of decent solicitor, who know their stuff and the ins and outs of the CCA,

but it seems that these are like golden dust these days.

 

Anyone who could comment further on my queries in this thread?

[AndyOrch]

You dont need a Solicitor...100s of like wise threads here that argue on the same point.

 

Your biggest error so far was the following......

 

 

3. By 17/Dec/2014 no documents provided, filed N244 form with Northampton court to strike out the claim.

 

pity you didnt read a few threads here first to understand the process of defending a claim.

[zeek06]

Andy - point taken and rest assured I won't make the same mistake again, but there is little point in pulling my hair out now, is there? Are you able to offer any advice on the issues I raised in this thread?

[AndyOrch]

Sure...so basically you now have to submit a particularised defence in response to the claimants witness statement...you will have to scan or type out the WS (verbatim less any identifiable data) and post here.

 

REgards

 

Andy

[zeek06]

Thanks Andy.

Would you be able to assist with the preparation of the defence?

I am also particularly keen to find out where I stand with regards to 2 things,

 

 

as mentioned multiple times on this thread:

 

1. Whether HSBC should be allowed to rely on "reconstituted" version of the Agreement

(s.127(3) CCA 1974 says otherwise, but I am no legal expert)

or whether they should be providing the courts with a copy of the original agreement

(what happens if they don't - can I ask their claim to be dismissed?); and

 

2. Costs - provided this claim is allocated under the small claims track,

is there a limit (£280?) on the expences I have to pay HSBC if I lose the case;

 

Would you be able to advice on the above points?

[dx100uk]

As this is 2002 only the signed copy will win

 

Costs are in their poc

 

DX

[AndyOrch]

Thanks Andy. Would you be able to assist with the preparation of the defence? I am also particularly keen to find out where I stand with regards to 2 things, as mentioned multiple times on this thread:

 

1. Whether HSBC should be allowed to rely on "reconstituted" version of the Agreement (s.127(3) CCA 1974 says otherwise, but I am no legal expert) or whether they should be providing the courts with a copy of the original agreement (what happens if they don't - can I ask their claim to be dismissed?); and

 

In theory no...but then again depends on the DJ and how you present your defence.If they are unable to comply and the court agrees with you the court will dismiss it.

 

2. Costs - provided this claim is allocated under the small claims track, is there a limit (£280?) on the expences I have to pay HSBC if I lose the case;

 

Fixed costs only...but that depends on what happens along the way and how many applications are made and unnecessary costs incurred..(you already made 1)

 

Would you be able to advice on the above points?

 

Witness Statement please.

 

Regards

 

Andy

[zeek06]

Witness Statement please.

Typed in as I don't have a scanner.

 

I am also including the original judgement from the last hearing at the beginning of July. As time is running short (I need to submit my defence by 4:00pm on 31st July, which is this coming Friday), I'd need at least good pointers and whether I have a realistic chance of beating the case, otherwise I probably won't bother and try to settle since I don't want to be forced to pay (possibly astronomical) costs. So, here goes...

 

Judgement

 

Before District Judge at the

 

Upon hearing the Defendant in person and hearing the Solicitor for the Claimant

 

IT IS ORDERED THAT

 

1. With the Defendant's consent the Order of 31st December 2014 be set aside as it is impossible to comply with [N.B. I've never consented to that!]

2. The Claimant is to disclose to the Defendant by 04:00 pm 10th July 2015, if they still have them in their possession:

(i) The Credit Agreement entered into between the Claimant and Defendant dated 20th September 2002;

(ii) The Default Notice dated 10th November 2010.

3. If the Claimant cannot produce the document referee to at 2(i) above it shall instead by 4:00 pm 10th July 2015 serve on the Defendant:

(i) A reconstitution of the original document which may be from sources other than the actual signed agreement;

and

(ii) A statement verified by a Statement of Truth explaining why the original agreement is not available.

4. In default the Claim shall at 4:00 pm on 10th July 2015 stand struck out without further order.

5. If the Claimant complies with Clause 2 and 3 above then the Defendant shall file and serve his defence by 4:00 pm by 31st July 2015 and in default he shall be debarred from defending the claim and the claimant shall be entitled to enter judgement forthwith.

 

Dated 2 July 2015

 

Witness statement

 

I, , of HSBC bank Plc, 12 Calthorpe Road, Edgebaston, Birmingham, B15 1QZ will say as follows:

 

1. I am employed by HSBC Bank pls ("the bank") as a , . I make this witness statement from my own knowledge and from review of the Bank's records, documentation and Case Management System entries for this particular account and from discussions with colleagues. Where the matters referred to are within my knowledge they are true to the best of my knowledge and belief. I confirm I am duly authorised by the Claimant to make this Witness Stetement on its behalf.

 

2. I make this Witness Statement in compliance with the Order dated 2 July 2015.

 

Copy Credit Agreement

 

3. I can advise the Court that each particular credit card facility has a unique account number on its Case management System which also records when a particular account was set up. I am able to confirm that this account was set up on or around 30 September 2002. Exhibited at page 1 of SL2 is a screen shot of the Claimant's record showing the date on which the account was opened.

 

4. The Claimant could not locate a copy of the original signed Agreement. However, the Claimant has an extensive library of the historic Credit Card Terms and Conditions and agreement forms which allowed it to reconstitute the Credit Agreement subject to this claim. I can confirm that the Credit Card Terms and Conditions were subject to periodical changes and therefore, each edition applied to all agreements openened prior to new terms being released. By reference to the Claimant's records, I am able to validate that the Terms and Conditions published in April 2000 applied to all credit cards agreements opened between 1 April 2002 and 1 March 2003.

 

5. Exhibited to this Witness Statement at pages 2 to 9 of SL2 is a reconstituted copy of the Credit Agreement subject to this claim. It has been reproduced by the Claimant by using a template agreement form utilised during the relevant period for the same type of credit card facility. Details of the Defendant's name and address have been handwritten by an employee of the Claimant Bank - with the address details obtained from the Case Management System. The Claimant is therefore able to confirm that the attached reconstituted Credit Agreement is an accurate reconstitution of the Credit Agreement which the Defendant signed.

 

Default Notice

 

6. The Claimant's Case Management System shows that the Default Notice in respect of the account subject to this claim was served on 10 November 2010. Exhibited at page 20 of SL2 is a screen shot from the Claimant's electronic records showing the details which were endorsed on the Default Notice in question. I can confirm that this screen would not have been populated unless the notice was issued.

 

7. The Claimant does not hold a copy of the Default Notice as it was generated by the system once the number of missed payments triggered the requirement for service of the notice and it was subsequently dispatched to the Defendant on the same date. However, attached hereto at pages 11 to 12 of SL2 is a template Default Notice used by the Claimant in this case.

 

 

STATEMENT OF TRUTH

 

I believe that the facts stated in this Witness Statement are true.

 

I am duly authorised by the Claimant to sign this Witness Statement on their behalf.

 

Signed:...

 

Dated: 3 July 2015

[AndyOrch]

Particulars of Claim

 

The Claimant's claim is for the balance outstanding under a credit card agreement dated 30/09/2002

and numbered [my cc number] regulated by the consumer credit Act 1974.

The Defendant has failed to make payment by the Statutory Default Notice served by the Claimant dated 10/11/2010 AND

 

 

the Claimant claims

1. £2559.39

2. Interest pursuant to Section 69 of the county court Act 1984 at a rate of 8.000% per annum

from the date hereof at a daily rate of £0.56 to the date of Judgement or sooner payment.

 

###Defence###

 

I Mr xxxxxxxxxx of xxxxxxxxx am the defendant in this case and make the following response to the claimants claim dated December 2014 and Witness Statement dated 3rd July 2015.

 

This Defence is filed without prejudice to the Defendant’s position that the claim should be struck out and save insofar as the same consists of admission and save insofar as it is herein expressly admitted or expressed not to be admitted.

 

In response to the particulars of claim

 

By virtue of an application for current account services from the claimant dated around Sept 2009 it was the Creditors choice to offer a Credit Card facility in connection to my application for a Current Account.At no time did I ever request this nor did I ever sign any separate application form or accept any terms and conditions in connection to this agreement.

 

On receipt of the claimants claim which was acknowledged through the CCBC with an intention to defend all I requested by way of a CPR 31.14 and Section 78 request disclosure of the agreement which the claimant claim relies upon.The claimant failed to comply furthermore the claimant freely admits in its witness statement that that no copy can be located.

 

I therefore made application to strike out the claimants claim for the aforesaid reasons to which a General Order was issued by CCBC dated 1st December 2014 which compelled the claimant to comply with that order the week before 24th December 2014.

 

On the xxth xxxxx 2015 ? the Claimant made application to set a side this order as they knew it was impossible to comply and sought relief from sanctions from the court.This was granted at a hearing dated xxth July 2015 without my consent.

 

In response to the Claimants Witness Statement

 

It is not denied that a credit agreement may have been set up on or around 30 September 2002 under account number xxxxxxxxx.It is denied that any agreement exists that has ever been signed or legally executed by myself or the claimant,hence the claimant is unable to comply.

 

Any reconstituted version of any agreement must be an exact " True Copy " copy of the original executed agreement along with the terms and conditions from inception....along with the prescribed terms such as interest rate and credit limit etc.It is averred that what has been provided is impossible to be accurate given that no original ever existed.

 

The provisions of s127 (3-5) were repealed by the Consumer Credit Act 2006 but for agreements entered into before 6th April 2007 the provisions of s127(3 to 5) of the CCA1974 still have effect established in Santander v Mayhew.

 

S127(3)-(5) does not give the Court any discretion at all for an agreement executed before 6th April 2007 as if the agreement fails to comply with s61(1)(a) CCA 1974 then the Court has no power to enforce whatsoever as established in Harrison v Link, Dimond v Lovell, Wilson v First County Trust, London North Securities v Meadows etc.

 

Further to the above it is also brought to the courts attention the failure of the claimant to serve Notice of Sums in Arrears during any alleged default period. Pursuant to the CCA2006 86C/86D

 

(3) The creditor or owner shall not be entitled to enforce the agreement during the period of non-compliance.

 

 

It is therefore put before the court the Agreement cannot be enforced against the Defendant without an order of the court by the reason of the fact that it was improperly executed as set out above and by reason of Section 127 (3-5) and Section 65(1) of the Act.

 

Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6.

 

It is felt that by the action of the court set out at the hearing dated xxth July 2015 in which my application was set a side and also by the order dated 2nd July 2015 in which the claimant is allowed to proceed by offering either an original or reconstituted version of the agreement that I as Litigant defendant have been strenuously disadvantaged in defending this claim.

 

By reason of the facts and matters set out above, it is denied and requested that the Claimant is not entitled to the relief claimed or any relief.

 

 

One particularised defence...complete the dates and check edit for accuracy.

 

Best of luck

 

Regards

 

Andy

[zeek06]

Andy, just quickly read that - you are golden!!!

 

When I have more time tomorrow (and I am less tired) I'll digest the content properly and may ask some more questions,

 

 

but here are a few quick-fire ones:

 

1. Hypothetical scenario

- call me paranoid,

but if HSBC are "miraculously" able to produce some made up agreement at the hearing (they do have my signature as I was stupid enough to sign all my letters addressed to them),

what do I do?

I am thinking of

1) argue that I haven't signed any agreement with them (and also saying that this document is clealy forged

- would I get in hot water for saying that in court?); and

 

 

2) argue that the fact they were telling eveyone wishing to listen they don't have an agreement,

only to produce a forged one at the eleventh hour to muddle up the waters constitues an abuse of process.

Would that be the correct way of dealing with this?

Any other advice/direction?

 

2. In your draft defence above, paragraph with "copy of the original executed agreement along with the terms and conditions from inception....along with the prescribed terms" - what do I put in place of the dots, please clarify?

 

3. Notice of Sums in Arrears - what is that and what compels HSBC to serve me with this notice (is this a CCA requirement also)?

 

4. General question re: "prescribed terms" - I take it HSBC producing a "reconstituted" copy of the agreement and attaching the "standard terms and conditions" at the time they say were in force isn't enough to satisfy this requirement, correct? Only a true copy of a signed document, as well as the attached terms (also signed?) counts, am I right in assuming that?

 

I'll continue tomorrow - thanks a bunch Andy!

[dx100uk]

no bank would ever forge a CCA, DCA poss a bank no way.

 

as for a recon,

no dice, end of the matter

doesn't matter how much 'supporting paperwork' they produce

it wont help then in the recon dept... BUT..

 

the bottom line its a judge lottery.

[AndyOrch]

Andy, just quickly read that - you are golden!!!

 

When I have more time tomorrow (and I am less tired) I'll digest the content properly and may ask some more questions,

 

 

but here are a few quick-fire ones:

 

1. Hypothetical scenario

- call me paranoid,

but if HSBC are "miraculously" able to produce some made up agreement at the hearing (they do have my signature as I was stupid enough to sign all my letters addressed to them),

what do I do?

I am thinking of

1) argue that I haven't signed any agreement with them (and also saying that this document is clearly forged

- would I get in hot water for saying that in court?); and No its the truth...the court wouldnt want you to lie

 

 

2) argue that the fact they were telling eveyone wishing to listen they don't have an agreement,

only to produce a forged one at the eleventh hour to muddle up the waters constitues an abuse of process.

Would that be the correct way of dealing with this? They wouldn't dare

Any other advice/direction?

 

2. In your draft defence above, paragraph with "copy of the original executed agreement along with the terms and conditions from inception....along with the prescribed terms" - what do I put in place of the dots, please clarify? Nothing it just illustrates a pause...or replace with a comer

 

3. Notice of Sums in Arrears - what is that and what compels HSBC to serve me with this notice (is this a CCA requirement also)? Yes Google it CCA2006 86C/86D

 

4. General question re: "prescribed terms" - I take it HSBC producing a "reconstituted" copy of the agreement and attaching the "standard terms and conditions" at the time they say were in force isn't enough to satisfy this requirement, correct? Only a true copy of a signed document, as well as the attached terms (also signed?) counts, am I right in assuming that?

 

Having not actually viewed the reconstituted I have had to add lib and surmise what it probably consists of...but the above are the main points that a reconstituted version should contain along with both yours and their addresses at the time of inception.The T&Cs are easily attached and can be verified...they are not crucial in rendering it unenforceable...only section 127(3 - 5) and Sections 61(1)(a) can and do attain that.

I'll continue tomorrow - thanks a bunch Andy!

 

Regards

 

Andy

[zeek06]

Andy, dx - thanks for your input guys. Pity I can't quote your replies for some reason (had to use cut-and-paste)...Here goes my comments to your response and more questions, hope you don't mind...

 

2) argue that the fact they were telling eveyone wishing to listen they don't have an agreement,

only to produce a forged one at the eleventh hour to muddle up the waters constitues an abuse of process.

Would that be the correct way of dealing with this? They wouldn't dare

I hope so, but I wouldn't put it past them - I've had a similar running with them when I had to rescue my mortgage a while back (they were about to kick me out of the property) when they produced a completed questionnaire (a questionnaire they never sent me!) in order to show pre-action protocol compliance - all this at the date of the hearing and I had to argue my case in front of the judge and tell him that they never sent that document to me... they have previous and this is what I am afraid of. As I said, I won't put it past them.

 

2. In your draft defence above, paragraph with "copy of the original executed agreement along with the terms and conditions from inception....along with the prescribed terms" - what do I put in place of the dots, please clarify? Nothing it just illustrates a pause...or replace with a comer

OK, noted.

 

3. Notice of Sums in Arrears - what is that and what compels HSBC to serve me with this notice (is this a CCA requirement also)? Yes Google it CCA2006 86C/86D

Also noted, will do.

 

4. General question re: "prescribed terms" - I take it HSBC producing a "reconstituted" copy of the agreement and attaching the "standard terms and conditions" at the time they say were in force isn't enough to satisfy this requirement, correct? Only a true copy of a signed document, as well as the attached terms (also signed?) counts, am I right in assuming that?

 

Having not actually viewed the reconstituted I have had to add lib and surmise what it probably consists of...but the above are the main points that a reconstituted version should contain along with both yours and their addresses at the time of inception.The T&Cs are easily attached and can be verified...they are not crucial in rendering it unenforceable...only section 127(3 - 5) and Sections 61(1)(a) can and do attain that.

Damn, I wish I could show you - will see if I could get hold of a scanner to post a picture of both the form they produce as evidence, as well as the T&C...Basically, the form is a bog-standard one like when you are opening an account, containing text boxes for filling out personal details, but the T&C is a separate booklet altogether, containing everything - interest rate, charges and so on. The form they produce as part of their witness statement is partially filled in by a bank employee (they say as much in their statement) - so no "true copy". The T&C possibly are, but there is nothing to "link" the two documents (they are completely separate entities). I can't see how can they "link" them, given they don't have the signed form (they don't have the original, so can't claim it exists).

 

My questions, having reviewed the draft statement you created for me:

 

1. From the draft defence: "This Defence is filed without prejudiceic on to the Defendant’s position that the claim should be struck out and save insofar as the same consists of admission and save insofar as it is herein expressly admitted or expressed not to be admitted." Andy, could you explain, in layman terms, what does that mean (what is the purpose of including this)?

 

2. Coming back to the application for - should this document form an integral part with the T&C and not be produced separately (what does the CCA say)? I vaguely remember that CCA pre-2006 had a clause like this, requiring T&C to be on the same page as my signature or something? Do you know what I am on about?

 

3. Me not giving consent for the order (first part, when I disagree with consenting that the original order should be struck out) - if I say that in my defence, wouldn't I upset the judge, which could, in theory, be the same one who produced the order at the last hearing - he may turn round to me and say "I believe what I've said and it is your word against mine?"

 

4. What is actually a "True copy" in legal terms (in the context of this case and CCA) - copy with presenting the original? The reason I am asking this is because at the last hearing the judge allowed "reconstituted" copy to be produced, because he used some stupid argument that the original signed form might have been "lost in a fire" (as if), which I found rather biased approach to make. I disagreed, but he wouldn't listen.

 

5. In HSC's statement they say that the credit card T&C were periodically changed. What I'd like to find out (and confirm) is whether there is a CCA requirement for HSBC when they change these to present the old, as well as the new T&C? If so (what statute in CCA covers that?), they haven't done that either and I can put it as part of my defence as another nail in the coffin.

 

6. Am I right in asusming that the central plank in my defence of asking their case to be dismissed is non-compliance with s127(3-5) and s61(1) of the CCA, simply because this is a CCA agreement and not just "an agreement"? In other words, if they (HSBC) have said that in their POC that this was just "an agreement", not an agrrement governed by CCA, they would have had a better chance of success? For my part, all I have to prove in my defence is that under CCA, that agreement (governed by CCA) is either unenforceable or improperly executed, correct?

 

7. If HSBC decide to present a response to my defence or present additional documents at the last minute (at the date of hearing for example) - should I ask the judge to ignore it or adjourn the case to give me time to consider it and respond to it? They have previous with this - see my comments above re: my mortgage (which is still in arrears, but they cannot enforce anything - a conversation for another day, perhaps). I am thinking if they do that again to refer to Practice Direction 23A.9.3 (from the CPR) and/or “Overriding Objective” contained in CPR 1.1 and/or CPR 1.1(2)(d) and ask the judge to either ignore the documents produced at the last minute or adjourn the case in order for me to consider them?

 

8. Am I right in assuming that I have a 5-day "grace"/time-for-delivery period when producing the defence? In other words, if I date my defence 31 August, but I actually send it on, say, Saturday 1 August by special delivery (to be received by the court on Monday, 3rd August), would that be OK?

 

9. Finally, a bit of a daft question - how do I finish my defence statement - just sign it and date it or include the "statement of truth" malarkey in there?

 

Thanks again, Andy for the time and effort you put into this...

[AndyOrch]

My questions, having reviewed the draft statement you created for me:

 

1. From the draft defence: "This Defence is filed without prejudiceic on to the Defendant’s position that the claim should be struck out and save insofar as the same consists of admission and save insofar as it is herein expressly admitted or expressed not to be admitted." Andy, could you explain, in layman terms, what does that mean (what is the purpose of including this)?

 

It means that you are not admitting anything in your pleadings and will not prejudice your position...say for example the court should have stood by the order to strike out...its only because the court allowed the set a side that you have now had to submit a defence...when in reality you wouldn't have needed to...if that makes sense?

 

2. Coming back to the application for - should this document form an integral part with the T&C and not be produced separately (what does the CCA say)? I vaguely remember that CCA pre-2006 had a clause like this, requiring T&C to be on the same page as my signature or something? Do you know what I am on about?

 

3. Me not giving consent for the order (first part, when I disagree with consenting that the original order should be struck out) - if I say that in my defence, wouldn't I upset the judge, which could, in theory, be the same one who produced the order at the last hearing - he may turn round to me and say "I believe what I've said and it is your word against mine?"

 

Now you are over examining and complicating matters...you either agreed to the set a side or you didn't...or you wasn't asked...either way you didn't consent...why would you?

Let me out it to you from another angle...the Judge wasnt sure he should allow the set a side...but if he typed in the order you consented...then you consented his bad decision ?

 

4. What is actually a "True copy" in legal terms (in the context of this case and CCA) - copy with presenting the original? The reason I am asking this is because at the last hearing the judge allowed "reconstituted" copy to be produced, because he used some stupid argument that the original signed form might have been "lost in a fire" (as if), which I found rather biased approach to make. I disagreed, but he wouldn't listen.

 

You have stated from the very beginning there is no agreement because you never signed one...now if that's true then there cant be a reconstituted...there is nothing to reconstitute from?

Either way pre 2007 requires the original.....no reconstitutes...even if there was a signed original agreement... sec 127 (3--5) applies

 

5. In HSC's statement they say that the credit card T&C were periodically changed. What I'd like to find out (and confirm) is whether there is a CCA requirement for HSBC when they change these to present the old, as well as the new T&C? If so (what statute in CCA covers that?), they haven't done that either and I can put it as part of my defence as another nail in the coffin.

 

No requirement the latest supersedes the last one.

 

6. Am I right in asusming that the central plank in my defence of asking their case to be dismissed is non-compliance with s127(3-5) and s61(1) of the CCA, simply because this is a CCA agreement and not just "an agreement"? Correct In other words, if they (HSBC) have said that in their POCi that this was just "an agreement", not an agrrement governed by CCA, they would have had a better chance of success? No all credit card agreements are regulated by the CCA1974 end of For my part, all I have to prove in my defence is that under CCA, that agreement (governed by CCA) is either unenforceable or improperly executed, correct?

 

Kind of but as there is no agreement to enforce...no signed executed agreement by you and the claimant...anything else will fail...or should fail..providing you hammer it home and make the Judge follow the CCA1974

 

7. If HSBC decide to present a response to my defence or present additional documents at the last minute (at the date of hearing for example) - should I ask the judge to ignore it or adjourn the case to give me time to consider it and respond to it? Wont happen there is no agreement (is there?) They have previous with this - see my comments above re: my mortgage (which is still in arrears, but they cannot enforce anything - a conversation for another day, perhaps). I am thinking if they do that again to refer to Practice Direction 23A.9.3 (from the CPR) and/or “Overriding Objective” contained in CPR 1.1 and/or CPR 1.1(2)(d) and ask the judge to either ignore the documents produced at the last minute or adjourn the case in order for me to consider them?

 

Standard disclosure is done by list and exchanged 14 days pre trial..there cant be any ambushing

 

8. Am I right in assuming that I have a 5-day "grace"/time-for-delivery period when producing the defence? In other words, if I date my defence 31 August, but I actually send it on, say, Saturday 1 August by special delivery (to be received by the court on Monday, 3rd August), would that be OK?

 

You make sure it gets to the court on the date stated.....the claimants copy is your choice..but serve it.

 

9. Finally, a bit of a daft question - how do I finish my defence statement - just sign it and date it or include the "statement of truth" malarkey in there?

 

Statement of Truth and the defence requires an heading...claimant v defendant/ claim number/ court/ etc.

 

Thanks again, Andy for the time and effort you put into this...

[zeek06]

Many thanks Andy, yet again... Final comments from me, more for posterity than anything else (I am submitting my defence first thing tomorrow morning)...

 

1 - Got it, good explanation on your part.

3 - At the hearing I was asked a straight question: Would you agree that the (original) order is impossible to comply with? And I answered, "yes" (which is correct, right?). Then the judge assumed I am giving consent. I am thinking he was looking for an excuse.

4 - Good explanation, puts my mind at rest on that one.

5, 6 - same as above, thanks again.

7 - I was thinking more of HSBC submitting a response to my defence at the last minute - that is exactly what they did when they dragged me to court for my mortgage arrears. I don't want a repeat as it makes it difficult for me to examine it. That is what I meant. Your explanation si good-enough for me though.

8 - That's a bit worrying as I'd send my defence tomorrow morning via special delivery, which means it will be delivered on Monday (3rd August). I always assumed there is a standard 5 days for "servicing" allowed - at least that's what it used to be when I had to respond to the original claim form (sent "acknowledgement of service" back then).

9 - So, it is the standard heading (which I was going to put anyway), but no "statement of truth" at the end, just standard "Signed" and "Dated".

 

Thanks again Andy, you've been very helpful!

[AndyOrch]

Many thanks Andy, yet again... Final comments from me, more for posterity than anything else (I am submitting my defence first thing tomorrow morning)...

 

1 - Got it, good explanation on your part.

 

3 - At the hearing I was asked a straight question: Would you agree that the (original) order is impossible to comply with? And I answered, "yes" (which is correct, right?). No its not...why cant they comply...they issued the claim and have long enough to prepare and try to find the none existent agreement.....which is what you should have stated. Then the judge assumed I am giving consent. I am thinking he was looking for an excuse. A judge shouldn't require an excuse but apply the law

 

4 - Good explanation, puts my mind at rest on that one.

 

5, 6 - same as above, thanks again.

 

7 - I was thinking more of HSBC submitting a response to my defence at the last minute - that is exactly what they did when they dragged me to court for my mortgage arrears. I don't want a repeat as it makes it difficult for me to examine it. That is what I meant. Your explanation si good-enough for me though. Does not work like that in money claim...you both follow the Directions and submit what the courts tells you to and by the date directed...you cant ambush in small claims track..or any track

 

8 - That's a bit worrying as I'd send my defence tomorrow morning via special delivery, which means it will be delivered on Monday (3rd August). I always assumed there is a standard 5 days for "servicing" allowed - at least that's what it used to be when I had to respond to the original claim form (sent "acknowledgement of service" back then). You make sure the defence is at the court by the date stated...there is no service...you are past that remember...you issued an application and cocked the whole process up

 

 

9 - So, it is the standard heading (which I was going to put anyway), but no "statement of truth" at the end, just standard "Signed" and "Dated".

There is statement of truth as I have stated above.

 

Thanks again Andy, you've been very helpful!

 

Regards

 

Andy