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

[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

[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.

[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

[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

[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

[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

[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...

[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

[AndyOrch]

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

[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.

[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

[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

[AndyOrch]

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

 

Andy

[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.

[AndyOrch]

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

[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.

[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

[AndyOrch]

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

[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

[AndyOrch]

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

[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

[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?

[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

[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.

[AndyOrch]

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