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

[zeek06]

Thank you again Andy and apologies for rushing you with this yesterday, but I was in a state of a panic as I didn't expect my county court to stoop so low as to return my application for this. Absolutely ridiculous!

 

I've checked my records and they have accepted no less than 3 (yes, three!) postal orders from me in the past year alone where I put the name of my county court as payee, not "HMCTS". So, what's changed?

 

I'll tell you what's changed - they are determined to place all sorts of obstacles in my way because I complained and escalated matters to my local MP.

 

Is there really no coming back for what they did? How are they allowed to get away with this? It is an absolute disgrace!

 

I've sent everything today, but also enclosed a fresh copy of the DQ as well, because I thought that if the application fails, then the old court date stays and since I cannot attend court at that date what would then happen? HSBC will laugh all the way to the bank as I won't be present to defend myself. Win-win for them.

 

I am half-expecting the court staff to send my application back with some lame excuse that I have made a spelling mistake on my application or something.

 

A couple of questions though:

 

1. Would there be time for this application to be looked at, given that the court date, as it stays, is in 3 weeks time (01 December)? What is the latest possible date I could submit such an application?

2. I've submitted in my DQ the dates I cannot attend. How likely is it, that the court staff will simply ignore them in order to stuff me even more? What options do I have if they do that?

3. Provided they accept this applicaion (I very much doubt, given what they did so far), when is it likely for me to hear about the outcome, particularly given that the court date is in 3 weeks time (provided court staff also ignore the dates I have given them in DQ where I cannot attend)?

[AndyOrch]

The application should be fine...assuming you have completed it correctly...your DQ will be returned to you as I have already stated and advised...the claim has now been allocated and is therefore irrelevant.

 

" A couple of questions though:

 

1. Would there be time for this application to be looked at, given that the court date, as it stays, is in 3 weeks time (01 December)? What is the latest possible date I could submit such an application? 10/14 days

2. I've submitted in my DQ the dates I cannot attend. How likely is it, that the court staff will simply ignore them in order to stuff me even more? What options do I have if they do that? I told you to put it on your application n244 ..I told you to diregard the DQ now..so if its not on your N244 and they will return the DQ...all is lost and time and fees wasted

3. Provided they accept this applicaion (I very much doubt, given what they did so far), when is it likely for me to hear about the outcome, particularly given that the court date is in 3 weeks time (provided court staff also ignore the dates I have given them in DQ where I cannot attend)? Keep ringing the court and ask for a response to your application"

 

Regards

 

Andy

[zeek06]

Thanks Andy for the responses.

I have contacted them on Friday and was told that my standing order for £50 has been pocessed (it appears in the "pay log" whatever that means),

which I think is good news.

 

 

They couldn't tell me anything about the application as they don't have anything on their system yet (too soon)

and told me that what happens normally is that they get a stack of these in front of the judge.

I'll call them again on Monday to see what is going on.

 

Another comment following one of you responses above:

"I told you to put it on your application N244 ..I told you to diregard the DQ now..so if its not on your N244 and they will return the DQ...all is lost and time and fees wasted"

 

How so? They've explicitly asked me to send them one DQ completed and also asked me to tell them on which dates I won't be available.

 

I did exactly as they have asked - I completed the DQ they provided me with (that was done after the hearing was listed

- please read some of my posts above).

 

 

If they then choose to disregard what I've stated in the DQ they've asked me to complete (as well as state the dates on which I won't be available),

then I can't really help that, can I?

 

As for putting the dates I am unavailable on the application

- until your last post you never stated that it is absolutely crucial that I include these dates on my N244 application.

How am I suppose to know that?

 

Anyway, will see how it goes when I call them on Monday. Thanks again Andy for your responses.

[zeek06]

Called the court again today, but was told more or less the same as last Friday - huge backlog of applications to process, no news yet. They hope to get my application in front of the judge by Thursday.

 

Made them aware (yet again) that since the current court date is 01 December (a date which I cannot attend) I need to have an answer - one way or another. I was asked to call again on Thursday, which I'd do.

[zeek06]

Contacted the court today again, but with the same result. I think I know where this is heading - the court staff will stall as much as they can and at the end my application will be declined by the judge as "there is no enough time" or somesuch. Disgraceful!

 

If that happens what are my options?

 

I am placed in a really difficult position right now as I cannot attend the court on the date of the hearing and I cannot change anything. On top of this, I cannot settle either as HSBC have to inform the court 7 days before the hearing if there is settlement, which is this coming Tuesday.

[zeek06]

No joy today either. I was told they have a record of my application being submitted to the judge, but nothing else - no decision, nothing.

 

Where does that leave me? If they refuse the application, or, if the court staff keep stalling me and there is no decision on my application until the hearing, what then? I cannot attend on 01 December (the original date of the hearing), so what happens them? Am I stuffed?

 

If there is a decision on this application, but it is declined and I'd like to appeal what happens to the original hearing - is it postponed?

 

Could anyone clarify these issues for me please? Thanks!

[AndyOrch]

All courts operate different zeek so the only place to get the answers is with the court involved....have you asked them told them the application is time sensitive with regards a forth coming hearing?

[zeek06]

Thanks Andy. I do it every time I call them.

 

To repeat my questions posted above:

 

Where does that leave me?

If they refuse the application, or, if the court staff keep stalling me and there is no decision on my application until the hearing, what then?

I cannot attend on 01 December (the original date of the hearing),

so what happens them?

Am I stuffed?

 

If there is a decision on this application, but it is declined and I'd like to appeal what happens to the original hearing

- is it postponed?

 

In addition, if my only likely option is to settle with HSBC (I cannot get CCJ - that's not an option for me for various reasons!)

 

 

how do I go about doing that

- do I just call them,

ask them how much I owe and pay?

 

Is there a time limit by which I need to do that?

The order says HSBC need to inform the court if the case is settled 7 days prior to the hearing,

which doesn't leave much time at all.

 

What happens if I settle after that date (with less than 7 days prior to the hearing)? What then?

 

If I decide to go that route (settle)

 

 

do I need to do anything else? I don't think I'd have time to write anything to HSBC.

 

Thanks.

[AndyOrch]

Should the hearing proceed and lets say you lose in your absence you will have opportunity to challenge the outcome by way of the application/mix up in DQ,s that the court has failed to process on time.

 

Saying that ...most hearings will proceed and unless both parties agree to vacate...the Court will continue to try the claim.

 

As I have stated earlier in your thread ...its imperative that all parties attend hearings...I accept that you have maintained all along that you cant for that date and the mix up in DQs.

But it is normally expected that the absent party submits a witness statement to be considered in their absence.

 

Andy

[zeek06]

Thanks Andy, but in order to challenge the DQ decision (if it comes to that) I need to be present. I won't be able to attend any dates during the whole of December up until first week of January, so that isn't very useful option to have, hence...

 

What do I need to do if I'd like to settle? Pay up the amount I owe and ask HSBC to let the court know? What about the interest? I am asking this question for a 3rd time, because the judge's order says that HSBC needs to inform the court 7 days prior to the hearing if the case has been settled, which leaves me with only Monday to do anything. What happens if I settle after that date? Is it too late?

 

Another piece of news - I've just received HSBC's witness stement and paperwork through the post earlier today - some very "interesting" stuff, but I'll scan everything (it is a lot!) and post it here after removing the personal info - possibly in about 3-4 hours time.

 

A couple of things worth mentioning very briefly:

 

1. They consent with the case being moved and informed the court of that fact;

 

2. They don't have signed agreement, but enclose a copy of a form I alledgedly signed, asking for a credit card (don't have the original either!). "Alledgedly", because I never signed this! Funny how they suddenly came up with this "form", they didn't have it beforehand and they also don't have the original. The signatures on that form and the date are remarkably similar to the ones I used to sign a similar form when opening my current account with them.

 

3. They rely on Carey v HSBC and say that the same documents they have presented have been accepted in that case. To my understanding, the Carey case was very different (for once, HSBC were the defendants and that was a s78 case, not like mine).

 

4. They say they complied with s86C of the Act.

 

I will post their full witness statement and relevant documents they enclosed as soon as I scan them and remove the personal info.

 

Again, the important question for the time being (for me at least) is what to do if I'd like to settle and, most importantly, when is the last possible date I could do it (that is provided my application fails/is delayed). I am also assuming that if the case is moved, there will be a new (later) hearing date, not the one for 01 December, correct?

 

Thanks!

[AndyOrch]

If you wish to propose a settlement just ring the solicitor on Monday..you have time yet to agree a settlement /Consent Order.A consent order can be negotiated up to the day of the trial...but once the judge enters and presides you are then at the hands of the court.

 

You can submit a response Witness statement to be considered in your absence.

[zeek06]

Further to my previous post - see attached a zip file with the scanned pages of hsbc's witness statement (6 pages), as well as index page and pages 2,3 & 4 of the exhibit.

 

How does that affect my chances?

[zeek06]

Ah, Andy, just saw your response - thank you for that. So, if all goes awry, I could ring them, agree the amount, cough up, agree consent order up to the day of hearing. Good stuff - puts my mind at ease!

 

Let me know what you think of what I attached above...Thanks again.

[AndyOrch]

Take a look over the weekend zeek...not on a Saturday evening:wink:

[zeek06]

No problem Andy... What happened to the zip file I attached, containing the full witness statement and 4 exhibit pages?

[dx100uk]

it was 6.5mb and only held those 10pages I converted to a pdf in post 62

[AndyOrch]

Concentrate on points 7&8 of the claimants Witness statement ...they dont have an actual copy of the agreement...the rest is merely padding to impress the court

[zeek06]

"Concentrate on points 7&8"...

 

What does that mean?

 

I am no legal professional, so I can't really make any sense of it all, hence why I scanned and enclosed hsbc's full witness statement so that it could be analysed by someone who knows this stuff and then able to advice me, if possible.

 

Could you ellaborate further please? I need to know what I am up against and how hsbc's witness statement I attached affects my chances, but more importantly, where their weak points are so that I can attack them in my witness statement, if it comes to that. This is what I asked above in my previous post.

 

I've had very frustrating day today - the courts phone line was completely cut off (pressing option 1 which was for civil enquiries caused the line to be cut off, so couldn't get to anybody from their office), so couldn't find out what is going on.

 

Tried to get in touch with hsbc's sols, but got no luck there either - the person dealing with this "wasn't in the office" and leaving voicemail got me nowhere!

[AndyOrch]

" Could you ellaborate further please? I need to know what I am up against and how hsbc's witness statement I attached affects my chances, but more importantly, where their weak points are so that I can attack them in my witness statement, if it comes to that. This is what I asked above in my previous post."

 

That is their weak points...points 7 & 8 of the witness statement

[zeek06]

"That is their weak points...points 7 & 8 of the witness statement"

 

How exactly, please explain Andy!

As I already mentioned I am not a lawyer or legal professional so what might be too obvious to you isn't necessarily the same for me.

I really need to know!

Just by saying "that is their weak points" doesn't help me much.

 

A bit of an update:

Finally managed to get in touch with the court today and my application has been declined.

I was not told the reasons for it, only that the judjement will be posted "in the coming days".

 

I am at a loss as how a judge can refuse an application for which both parties have agreed

(I have the consent to move courts from HSBC).

Is there a comeback to this?

 

I am not sure where that leaves me right now?

I am not sure I can appeal as there isn't enough time and also don't know what to do with my court date.

 

The way I see it, either I settle with HSBC or fight until the end

(hence, Andy I need to know more about what do you mean by weak points in HSBC's statement - I reallt need that part explained!).

 

If I am to fight it, I'd probably need assistance with preparing a witness statement to submit to the court as well,

if it isn't too late (is it?). Any help with that?

[AndyOrch]

You type out points 7 & 8 and I will explain in layman terms what they state.

[shamrocker]

Zeek - what date is your trial hearing?

 

I note your point earlier re. Carey - the context of this case involved the debtor trying to have debts legally written off by the court due to breach of s.78. It determined, as I understand it, that creditors could supply a reconstituted agreement to the debtor for the purposes of satisfying s.78 request. It did not give creditors grounds to enforce agreements through the courts based on said reconstituted agreement - particularly pre-2007 agreements. The debt would still exist and the debtor would have every right to pursue collection and register a default on the debtor's credit file, but s.127(3) effectively put a bar on enforcement.

 

Have a read of Carey para 130ish to about 140 - think it starts at about p.134. It will give you something to think about. I would need to have another read through it myself in order to create an argument that might defeat the important points made in their witness statement, but I'm a bit pushed for time today. I'm sure Andy will focus in more effectively that I have, but hope it gives you something to hit back with.

 

Sham

[zeek06]

OK Andy, here goes...

 

7. The Claimant no longer holds a complete original signed Agreement, nor a complete photocopy thereof. However, exhibited to this witness statement at pages 4 to 10 of SL3 is a copy of the signature page from the original agreement together with a copy of the Terms and Conditions in force in September 2002 which have been obtained from the Claimant's library of terms and conditions. I can confirm that a set of Terms and Conditions would have been provided to the Defendant at the time of entering into the Agreement and attached to the signature page of the Agreement.

 

8. I can advise the Court that this Ageement was entered into at the Claimant's premises and the signature page of the Agreement would have been printed off by the Bank's system together with the Terms and Conditions applicable thereto. A separate copy of the Agreement would have also been provided to the Defendant in compliance with section 62 of the Act. I can confirm that the setup procedure for this type of facility was as follows:

 

i) The signature page would have been produced with the Defendant's details already on, for him to sign once his application had been processed at the branch and approved;

 

ii) The Agreement Form would be produced electronically and the relevant terms and conditions, including the prescribed terms and information, would have been printed off and attached to the form;

 

iii) The Defendant would have been invited to read the Agreement, consisting of the signature page and the attached terms. He would have subsequently signed and dated the signature page which would then have been countersigned by the Bank's employee.

 

shamrocker, the hearing is on 01 December (this coming Tuesday). I know of this assessment re: the Carey case and that is exactly the same argument I've had with the judge during my last hearing, but he was having none of it.

 

He invented some stupid argument that "what happens if the Claimant loses the original agreement in a fire and can't produce it?" I've had no answer to that, but during the whole of last hearing he was all argumentative, while the Claimant's solicitor didn't say a word throughout. That tells you all you need to know about how biased that judge is (it will also be the same judge for this hearing as well)!

 

That is why I wanted to transfer this case to another court as I am almost certain that I won't get anywhere with this judge - it is like Godfather 2...

 

Noted your comments re: paragraphs 130-140, will read through, thank you! When you have time, please read through and if you have more comments, please post them here - "every little helps"!

[AndyOrch]

7. The Claimant no longer holds a complete original signed Agreement, nor a complete photocopy thereof. However, exhibited to this witness statement at pages 4 to 10 of SL3 is a copy of the signature page from the original agreement together with a copy of the Terms and Conditions in force in September 2002 which have been obtained from the Claimant's library of terms and conditions. I can confirm that a set of Terms and Conditions would have been provided to the Defendant at the time of entering into the Agreement and attached to the signature page of the Agreement.

 

Okay its irrelevant that they have a copy of the signature page or the T&Cs...they must present the whole agreement to enforce..they openly admit " The Claimant no longer holds a complete original signed Agreement " therefore pursuant to section 78 (1) CCA1974 he has failed to comply with the request and his denied to enforce the agreement or request any relief.

 

8. I can advise the Court that this Ageement was entered into at the Claimant's premises and the signature page of the Agreement would have been printed off by the Bank's system together with the Terms and Conditions applicable thereto. A separate copy of the Agreement would have also been provided to the Defendant in compliance with section 62 of the Act. I can confirm that the setup procedure for this type of facility was as follows:

 

i) The signature page would have been produced with the Defendant's details already on, for him to sign once his application had been processed at the branch and approved;

 

ii) The Agreement Form would be produced electronically and the relevant terms and conditions, including the prescribed terms and information, would have been printed off and attached to the form;

 

iii) The Defendant would have been invited to read the Agreement, consisting of the signature page and the attached terms. He would have subsequently signed and dated the signature page which would then have been countersigned by the Bank's employee.

 

All irrelevant and bluster because of point 7 above and my response.

 

Regards

 

Andy

[shamrocker]

Zeek - do you have a copy of the terms they included in their WS? Could you post them up?