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

[AndyOrch]

And don't forget to serve a copy on the claimant...its the standard procedure.

[zeek06]

OK, Andy, I've got one tiny bit of good news and one very bad news:

 

I've submitted my defence today very early in the morning (used the drop box at the court to post it - that gets checked by court staff every day on or around 9:30 I am told).

 

I also posted a separate copy to the courts address via special delivery later today as well for good measure, which will be received by the court on Monday, 3rd. Tomorrow morning I will post a separate copy to HSBC.

 

I've also got myself a scanner - borowed it from a friend, so any document you'd like to review, I can scan it, remove the "sensitive info" bits and post it in here (can I post pdfs - is there a limit on the size of this?).

 

Now comes the bad news - I didn't see your late addition/posts yesterday and neglected to include the "statement of truth" bit at the end - just "signed" and "dated". How bad would that be and, most importantly, is there anything I could do now, having passed the deadline?!

 

Here is the text of the final version of my defence (had to redact it a bit from the copy you provided to include accurate dates etc):

 

IN COUNTY COURT

 

CLAIM NO:

 

BETWEEN:-

 

HSBC BANK PLC

Claimant

 

-and-

 

MR

Defendant

 

DEFENCE

 

I, of am the Defendant in this case and make the following response to the Claimants claim dated 25th November 2014 and Claimant’s 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 September 2002, it was the Claimant's choice to offer a Credit Card facility in connection to my application for a Current Account. At no time did I ever request this Credit Card facility, nor did I ever sign any separate application form or accepted any terms and conditions in connection to this Agreement.

 

On receipt of the Claimants claim, which was acknowledged through the County Court Business Centre, Northampton (CCBC) with an intention to defend all, I requested by way of a CPR 31.14 request disclosure of the Agreement, which the Claimant claim relies upon. The Claimant failed to comply, furthermore the Claimant freely admits in its Witness Statements dated 16th January 2015 and 3rd July 2015 that no copy of such signed credit card agreement or default notice can be located.

 

I therefore made an application to strike out the Claimant's claim for the aforesaid reasons to which a General Order was issued by CCBC dated 31st December 2014 which compelled the Claimant to comply with that order the week before - 24th December 2014.

 

On the 16th January 2015 the Claimant made application to set aside this order, as they knew it was impossible to comply with and sought relief from sanctions from the court. This was granted at a hearing dated 2nd July 2015 without my consent.

 

In response to the Claimants Witness Statement dated 3rd July 2015

 

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

 

Any reconstituted version of any Agreement must be an exact "True 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. It is averred that what has been provided is impossible to be accurate given that no original ever existed.

 

The provisions of s.127 (3)-(5) Consumer Credit Act 1974 (CCA 1974) were repealed by the Consumer Credit Act 2006, but for agreements entered into before 6th April 2007 the provisions of s.127 (3)-(5) of the CCA 1974 still have effect established in Santander v Mayhew.

 

S.127(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) of CCA 1974 then the Court has no power to enforce whatsoever as established in Harrison v Link Financial, Dimond v Lovell, Wilson v First County Trust, London North Securities v Meadows and others.

 

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 Consumer Credit Act 2006 s.86C/86D 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 CCA 1974.

 

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 CCA 1974, 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 2nd July 2015 in which my application was set aside and also by the order dated 6th 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.

 

 

Signed:………………………………. Date: 29th day of July 2015

(Defendant)

[AndyOrch]

I would just send a further copy and add the statement of truth zeek just to be on the safe side...but your initial defence will have been received on time.

[zeek06]

Thanks Andy, here is what I did earlier today (I was in a panic mode a bit)...

 

Issued another copy with the added "Statement of Truth" bit at the end and altered the date to be 30th July (i.e the next day from the previous defence, but before the deadline), then sent that to the court (special delivery - will be received on Monday, 3rd I am told). At the same time I sent that copy to HSBC as well.

 

Did a bit of research beforehand and, according to CPR 17.1(1), I don't need to seek permission from HSBC to "alter" my defence as my defence wasn't served to them yet. I am now hoping the courts will replace the old copy with the new one as instructed in the cover letter I included with the new defence. Have I done the right thing?

[zeek06]

Quite a bit of an update and further request for help & advice, if possible...

 

I have filed a defence, which was later amended (before the deadline) as I've missed the "Statement of Truth" part.

 

On 2nd September I received a Notice that a Defence Has Been Filed (N152), but that notice had attached my old defence, so I wrote a complaint requesting a new notice to be issued with the correct defence attached and amended deadline to respond to and file a Directions Questionnaire.

 

No response was received. Three weeks later I have escalated this complaint to a 2nd stage (didn't complete/file my questionnaire).

 

In the meantime I received a copy of the filled in Directions Questionnaire by HSBC (I wasn't aware that they had to provide me with one).

 

On 2nd October I received a response to my 2nd stage complaint (see scanned copy - minus identifiable info - attached to this post). In the same letter, I've received a new Directions Questionnaire and a Notice of Hearing (Small Claims Track) dated the same day (see scanned copy - minus identifiable info - also attached to this post), already listing the case to be heard at my local county court on 1st December.

 

Also, contrary to what the complaint letter said, an amended request for Directions Questionnaire to be filed was not attached. That complaint also didn't have the details of the Communications & Customer Services Team to write to if I am not satisfied with the response (as is my intention to do so).

 

Another point to note is that the Notice of Hearing is incorrect as it states that the district judge "has considered the statements of case and questionnaires filed" (only one questionnaire was filed - my questionnaire was never considered).

 

So, as was always my intention after I filed my defence to move this case to another court (close to my place of work instead of my home), how do this turn of events alter my chances of this happening?

 

I have a feeling that I am forced into accepting the hearing venue to be my local court (with the same biased judge who implied that I've given permission to drop the previous court order - see previous posts on this very thread). Is it possible now to transfer the case to another court? What do I have to do and what are my chances of this happening right now, given what has happened?

 

Also, what is the point of completing the questionnaire if the case is already listed? For example, I won't be able to attend the court hearing on 1st December as I am going out of the country on that day?

 

What happens if I don't pay the fee of £170 as requested in the notice of hearing?

 

And what about the shambolic treatment I've received by court staff? Should I escalate the complaint and write to the Communications & Customer Services Team?

 

Many thanks!

[AndyOrch]

Quite a bit of an update and further request for help & advice, if possible...

 

I have filed a defence, which was later amended (before the deadline) as I've missed the "Statement of Truth" part.

 

On 2nd September I received a Notice that a Defence Has Been Filed (N152), but that notice had attached my old defence, so I wrote a complaint requesting a new notice to be issued with the correct defence attached and amended deadline to respond to and file a Directions Questionnaire.

 

No response was received. Three weeks later I have escalated this complaint to a 2nd stage (didn't complete/file my questionnaire). I personally wouldnt have bothered ...the court had accepted the first one without the SoT

 

In the meantime I received a copy of the filled in Directions Questionnaire by HSBC (I wasn't aware that they had to provide me with one).All parties are expected to serve a copy on each other

 

On 2nd October I received a response to my 2nd stage complaint (see scanned copy - minus identifiable info - attached to this post). In the same letter, I've received a new Directions Questionnaire and a Notice of Hearing (Small Claims Track) dated the same day (see scanned copy - minus identifiable info - also attached to this post), already listing the case to be heard at my local county court on 1st December.

 

Also, contrary to what the complaint letter said, an amended request for Directions Questionnaire to be filed was not attached. That complaint also didn't have the details of the Communications & Customer Services Team to write to if I am not satisfied with the response (as is my intention to do so).

 

Another point to note is that the Notice of Hearing is incorrect as it states that the district judge "has considered the statements of case and questionnaires filed" (only one questionnaire was filed - my questionnaire was never considered).

 

So, as was always my intention after I filed my defence to move this case to another court (close to my place of work instead of my home), how do this turn of events alter my chances of this happening?

 

I have a feeling that I am forced into accepting the hearing venue to be my local court (with the same biased judge who implied that I've given permission to drop the previous court order - see previous posts on this very thread). Is it possible now to transfer the case to another court? What do I have to do and what are my chances of this happening right now, given what has happened? Make application to move it to your preferred local County Court

 

Also, what is the point of completing the questionnaire if the case is already listed?Its a requirement of all parties For example, I won't be able to attend the court hearing on 1st December as I am going out of the country on that day? Then state that on your DQ

 

What happens if I don't pay the fee of £170 as requested in the notice of hearing? You dont pay it the claimant does

 

And what about the shambolic treatment I've received by court staff? Should I escalate the complaint and write to the Communications & Customer Services Team? I wouldnt ...you want the court on your side.

 

Many thanks!

 

 

All the above could have been avoided if you had posted regularly and requested advice.

 

Regards

 

Andy

[zeek06]

Many thanks Andy. Here are my comments/questions:

 

1. Moving courts: what do you mean by "make an application"? Apart from specifying that I need another court to look into my case (I guess I need to list the court name & address in the DQ) do I have to do anything else?

2. What are my chances that this request will be granted, particularly given that a case is already listed for hearing (without me completing DQ)?

3. Do I have to present evidence that I won't be able to attend the hearing on 1st December (i.e. that I'll be out of the country)?

4. Was the judge wrong to list the case for hearing and state in the notice that he received the questionnaires (where in fact he got only the claimant's questionnaire)?

5. As for wanting the court on my side - that particular horse has bolted long ago! My local court has been giving me nightmares from day one and the treatment of my case has been nothing short of shambolic, so I don't see why I should play it nicely with them - they've done enough damage to my case as it is.

 

Many thanks once again!

[AndyOrch]

Many thanks Andy. Here are my comments/questions:

 

1. Moving courts: what do you mean by "make an application"? Apart from specifying that I need another court to look into my case (I guess I need to list the court name & address in the DQ) do I have to do anything else? N244

2. What are my chances that this request will be granted, particularly given that a case is already listed for hearing (without me completing DQ)? Okay providing your reason sways it

3. Do I have to present evidence that I won't be able to attend the hearing on 1st December (i.e. that I'll be out of the country)? You can submit a witness statement...but you realise none attendance is devastating to your case

4. Was the judge wrong to list the case for hearing and state in the notice that he received the questionnaires (where in fact he got only the claimant's questionnaire)? Not really he can allocate with one DQ...in reality he could have struck out your defence and awarded judgment for none submission of your DQ

5. As for wanting the court on my side - that particular horse has bolted long ago! My local court has been giving me nightmares from day one and the treatment of my case has been nothing short of shambolic, so I don't see why I should play it nicely with them - they've done enough damage to my case as it is.Fair enough...well if they feel the same your application to transfer may be pointless

Many thanks once again!

 

Regards

 

Andy

[zeek06]

Thanks Andy. Further commens/questions:

 

1. Moving courts: N244 - OK, I have done this before, so I am thinking of filling that in, paying the fee (which was, I think £50) and also attach a draft statement, like:

 

IN

CLAIM NO: ...

BETWEEN:-

HSBC BANK PLC

Claimant

-and-

...

Defendant

 

ORDER

 

Before District Judge Sitting at ..., on the …………. day of ………….. 2015.

 

UPON reading the Defendant’s Application Notice dated ... 2015

 

IT IS ORDERED THAT:

 

1: The Case .

 

How dos that look?

 

When completing N244 I am thinking of giving the following reasons for asking for this transfer (let me know how good/bad/OK these are - feel free to add anything I've missed):

- continuous mishandling of my case by court staff (I've had 2 complaints upheld so far and the last time I've had to write to my local MP in order to get a response and that only came when my MP asked court staff what's going on - see more on this below).

- perceived bias (should I mention that?) in handling my case by the judge;

- new court location closer to my place of work, so I don't have to get a whole day off to attend (less loss of earnings and all that);

 

Another possible reason I could list after reading the guidance notes on the DQ:

Location: If your claim is a designated money claim the case will usually be transferred to the claimants preferred court or the defendants home court as appropriate. However, there is no guarantee of transfer to this court. For further information see CPR part 3, 12, 13, 14 and 26.

 

So, hypothetical scenario here: If am to, say, move to live (rent short-term) in the area where the new court location is, can I claim this as my "home court"? I don't mind doing it if it helps my application to move the courts.

 

Picking up on the rest of your answers above:

1. non-attendance being devastating to my case: Why? The reason I ask this is I am more afraid I will say something I shouldn't and wonder whether my attendance could do more damage to my case than good.

2. Judge statement on the case hearing note: He clearly states "questionnaires", not "questionnaire" as only one was received by the judge (mine wasn't). That's incorrect isn't it? Noted the rest of your answer re: striking my defence - I could then claim that because of the incompetence of court staff at my local court I've lost a case and then I'll have them on a plate!

3. Playing oit nicely with court staff - since the beginning of this case, nothing they have done was right, nothing!

 

Each time they were required to do something, they've messed it up and made a pigs ear out of it (whether intentional or not). The last time I've had to send an email to my local MP as I wasn't even getting answers from them anymore (they've stopped responding to my letters and emails, even though I have a "read email" receipts).

 

As soon as my local MP started asking them questions - voila! As if by magic, I've got 3 emails from them in the same day, assuring me that I'll have answers from them by mid-next week (bearing in mind that they've been ignoring my emails for more than a week).

 

Why do I have to go through all of this each time I need something done? Why? Do you now see why I want this case transferred to a different court and why I really don't care whether I should play it nicely with them?

[AndyOrch]

I would just submit the N244 without a draft order zeek.

 

Andy

[zeek06]

Thanks Andy, all noted.

 

What do you think about the reasons I've given? Any comments? What about the "home court"?

 

Any comments re: points 1 & 2?

[AndyOrch]

Well with regards to point 1 its always better to be in attendance...only you will safeguard your position best in person.

 

2...its probably a typo ...but a court can still allocate on one DQ...as stated normally the party that has not submitted can have their claim/defence struck out...so the judge has over looked that point and allocated irrespective.

[zeek06]

Thanks again Andy. What do you think about the reasons I've given above to use when completing N244? Any comments? What about the "home court" stuff?

[AndyOrch]

I wouldn't put any of them...just ask for the transfer as its closer to your place of work.

[zeek06]

So you think the argument of me moving places and claiming new "home court" won't wash?

 

As far as N244 goes: Q10 (What information will you be relying on, in support of your application?) - should I leave this blank?

 

Another query: I've got an email from my county court admin staff a couple of days ago (I haven't given them my email, but I suspect they've got it from their senior managers as I emailed my complaint to them), asking me to specify which dates I cannot attend the hearing, so that they can re-schedule it.

 

Cheeky, aren't they? Does that mean they do not want my DQ submitted anymore, which brings me to another question: if I am not allowed to submit a DQ and they go ahead with this (existing) hearing - a hearing I cannot attend, what then? Where does that leave me? If I submit N244, regardless of whether I send them DQ, I'd assume they are obliged to suspend the existing hearing and process my N244, right?

 

I haven't responded to county court email, nor do I have any intention of doing so as I'd like to move my hearing, not re-schedule the existing one with the same court.

 

Last query (sorry to be pestering you with this Andy): In my N244 if I state that I need the hearing rescheduled because it is close to my place of work, is this a strong argument do you think?

[AndyOrch]

Its a simple argument to use which does not inform them how bad they are and the real reason for wishing a transfer...you dont need to attach any evidence.....you can also inform them of the dates you are unavailable.

[zeek06]

Thanks Andy and apologies for this late response...

 

I have finally received a respponse to my complaint after my MP requested it.

 

 

Here is the text:

=============

Dear ....

 

I write further to your email sent to .... dated 6 October 2015 asking for a review of the complaint response received from .....

 

As previously advised, your letters dated 6 and 26 September were received, but unfortunately one was incorrectly misfiled

and the second was misplaced. Please accept my apologies for this error and for the delay it caused in receiving a reply.

 

Although it is accepted that the incorrect copy of your defence was sent out in error, there is no requirement to issue a fresh N152

as, previously explained, there was no detrimental effect on your claim.

 

The decision on where and when to list your case was a judicial decision.

However as a result of this review, I am advised that you were contacted on 16 October 2015 by ...

. requesting dates to avoid so your case can be listed at a convenient time.

 

I would like to apologise that the letter dated 2 October 2015 did not correctly signpost you to the next stage of the complaint process,

but I can assure you that it has been reviewed in line with HMCTS complaints procedure.

 

If you are not satisfied with this response, please contact Customer Service Team, 1st Floor (1.37), 102 Petty France, London SW1H 9AJ explaining why you remain dissatisfied.

=============

 

After further email exchange with them in which I requested a clarification on what the position with the DQ is,

I was told that completing DQ would be "beneficial" and another copy of it was sent to me through the post.

 

What does the "there is no requirement to issue a fresh N152" mean?

 

I remain dissatisfied with their response, so intent to escalate this to the Customer Services Team.

 

In the meantime, I'd complete both N244 and the DQ and send it over together with the appropriate fee - will do that possibly over the weekend.

 

I won't be available to attend the court throughout the whole of December until beginning of January 2016

as I will be abroad (I will state the dates only, but won't give the reason why I am unavailable) - would that be OK?

 

Also, I asked earlier what to put in Q10 of N244 - any advice?

 

 

Thanks again Andy!

[zeek06]

Andy? Anyone?

[AndyOrch]

Hi zeek

 

The N152 is purely notification that a defence /counter claim has been submitted......so no requirement to send another

 

Q10 on the N244 is self explanatory...what you intend to attach as evidence in support.

 

Regards

 

Andy

[zeek06]

Thanks Andy.

 

Q10: I know what that question means... What I was after is whether I have to attach any evidence, paticularly given what this application is for.

 

I say that I'd like the case transferred to another court, because that new court is closer to my place of work, so do I have to submit a copy of my employment contract, give name and address of my employer for example? Thoughts please?

[AndyOrch]

No need for that in this type of application...that (Q10) is for more complex applications.

[zeek06]

I've just received some nasty surprise through my letter box...

 

I've submitted my application, together with a postal order for £50 (payable to my county court, as I always do) and also attached the completed DQ.

This application was received the next day

 

 

I just received a reply stating the following (the letter is dated 05 October 2015, but the postal stamp is of yesterday):

 

Find enclosed your original paperwork and court fee.

 

Please note that the postal order should be made payable to HMCTS.

 

Civil section

 

In this "papework" is not only the N244 application with the postal order, but the DQ as well.

I am assuming they have disregarded everything I've sent them (including the DQ!).

 

Why?

Where does that leave me?

Is it too late to make another application?

What should I do?

 

You see what I am up against?!

Nasty or what?

 

Sorry, a mis-type - their letter was dated 05 November, not 5 October...

[AndyOrch]

Responding to your PM zeek

 

As the claim is now allocated your DQ is irrelevant as already stated previously......in most cases the defendants DQ is not as important as the cliamants...the only 3 points of concern are :-

 

Do you agree to mediation ...I assume you have stated yes

 

Do you agree to small claims track ...I assume you said yes

 

Location of venue ...county court...well your application deals with that.

 

Why do you consider that your DQ is imperative?

 

Andy

[zeek06]

Thanks Andy,

 

Because:

 

1. I stated the dates on which I won't be available;

2. I stated the court to which I'd like the case transferred;

 

What do I do now?! Is it too late to submit another application (the order states HSBC must pay the fee by 17th)?

 

If I make another application:

 

1. Do I get it posted to HSBC?

2. Do I get the postal order to be payable to "HMCTS" or "HM Courts and Tribunal Service"?

 

Can they consider this application on time and change the hearing?

 

What about the fact that I told them I won't be available for the hearing (this was one of the main points of the DQ)?

[AndyOrch]

Just send the N244 back with the correct payment method as requested....forget the DQ....put it all on the n244