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

[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

[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

[AndyOrch]

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

[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

[AndyOrch]

Andy, following your response a few comments/questions if that's OK...

 

1. Am I understanding this correctly that they have to present the original of the agreement, together with the original of the signature page as one whole "entity", otherwise they cannot enforce, no matter what my local court (and the judge!) says? In other words, presenting only the original of the signature page or only the original of the agreement won't wash?

 

Correct ...if they go by the book/law..you cant presents bits of an agreement on Court...and as your agreement was dated 30/09/2002...they cant use a reconstituted either..it must be the full legible executed agreement...complete with T&Cs and a current statement....section 78(1) is quite clear...otherwise the claimant is prohibited from enforcing or requesting any relief whatsoever.

 

2. What about the "lost in fire" argument I posted previously? What happens then? You will have to bring me up to speed...what lost in fire?

 

Shamrocker - to answer your question as well - yes, I do have them (they were enclosed as part of HSBC's witness statement), but will have to scan everything up and post it - will do that sometime tomorrow if that's OK...

 

Regards

 

Andy

[AndyOrch]

" 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)! "

 

They rely on the back up systems...hard copies ...and microfiche.What a stupid comment from a District Judge...lets hope that the major financial operations never have a fire otherwise we will all be debt free

 

Andy

[AndyOrch]

" Would it be possible to move my case to another court now? if so, how? "

 

Already told you how to zeek...didn't they dismiss your application ?

[AndyOrch]

Andy, are you able to address my other queries I asked in my previous two posts (like whether I could appeal this decision), given what I already described? I need to know where I stand with this. No you cant appeal...I would ring them up and ask on what grounds you cant transfer?

 

I know the case has been moved to another date, but it is all irrelevant to me if this case is going to stay with the same court, with the same judge and so on.

 

Any help and advice from you or anyone is appreciated as always, particularly given that I am also pressed for time. Many thanks.

 

Andy

[AndyOrch]

Looks that way...if at had been at the other side of the country rather than the next town ...they would have granted the transfer.

[AndyOrch]

Some progress made on this...

 

Prior to going on my holidays I've written to the court making DPA request, enclosing the appropriate fee. When I came back, I've had a letter from them rejecting this request as I haven't provided any IDs. So, I've enclosed copy of my driving licence and recent utility bill. Oh, and guess what - my postal order was also rejected as I should have made it payable to HM Paymaster General - I could've put money on that one!

 

As for HSBC, given that my case is unlikely to be moved, the way I see it, with this judge I don't think I am going to get anything at all, so with that in mind, I've had a few email exchanges with HSBC's solicitors (without prejudice!) and they are willing to reduce the payment in order to satisfy the claim to only include the core 2.5k owed - no court fees, no interest and so on. They are asking if I am to agree, then to make a consent order - something I am not very keen on as my view is that if this claim is satisfied they will have to widthdraw the case completely (they have plenty of time). Am I correct?

 

Only if you are making payment in full otherwise no ...you can not have a consent order on a discontinued/withdrawn claim...as the consent is usually drafted/supported to a stayed claim.

 

So, my queries below are related to this... if I settle with HSBC and pay what they offer/agree/willing to accept to satisfy the claim - 2.5k, no court fees and no interest etc, then:

 

1. Would my other creditors (I owe another £30k to about 6-7 credit card companies!) use this setttlement with HSBC as a reason to ask/demand to pay them, given that I have settled with HSBC? Would they have a legitimate reason to do so? No because a Consent Order is confidential

 

2. Provided I pay the agreed amount, should I ask HSBC to widthdraw the case immediately (no consent order)? if so, how do I go about doing that? What if they don't comply?

 

The consent I assume is to support the deal reached...therefore they are still outstanding the costs and interest.....so they wont agree to withdrawing and any deal should be by way of consent...so unless you pay the full amount inc costs and interest...you get a consent order.

 

 

 

3. If agreeing a consent order is the only way in this case, what should that order include? Could anyone assist and provide the text on what I should I put in this consent order? I take it that order needs to be agreed/signed by myself and HSBC, then presented to the court, correct? Is there anything else I should be aware of? The Claimant prepares and drafts and seals the consent...not the defendant but we can check their schedule for you.

 

4. Is there any legitimate way that I could ask HSBC to drop the case completely (without agreeing a consent order) - like paying up what is on the claim form (the core £2.5k, plus the £180 court fee and the applicable interest)? Just pay it and in form the court.....paid and settled...end of claim

Thanks!

 

Regards

 

Andy

[AndyOrch]

Thanks a lot Andy for the comprehensive response. I have further 4 queries re: paying in full:

 

1. What is the latest date I need to pay (i.e. the money in HSBC's account) and inform the court - is it 7 days before the hearing at the latest (the re-scheduled hearing is on 19th Feb)?

No rush...if you wish to stop the process now the Claimant must inform the court 7 days pre hearing...or you can even let them get judgment and then pay by the time stated...the judgment is then erased

 

2. When calculating the interest (i.e. how much interest I owe HSBC), what period should I take into account - from the date on the claim form until the money reaches HSBC's account? If so, for the latter part there would be some guess work involved as I cannot predict how long would it take for the money to reach HSBC's account. What is your view on that?

 

Interest should be stated within their particulars...from the xxx date up until judgment date

 

3. Costs - I take it, I only pay the costs listed in the claim form, i.e. £180 court costs from what I remember. Is that correct? Yes Do I owe HSBC anything more than that? Depends if you go down the Consent route then there will be a further small fee...if you let the hearing proceed then there may be legal counsel fee. Can they then submit another claim for additional costs? I remember the judge during my last hearing saying something like there will be a separate hearing for the costs involved.

Well that will become part of your negotiation skills....if they want payment in full...but yes there could be a separate costs order if costs are outstanding and running as costs in the case

 

4. What is the procedure for informing the court, particularly given all the troubles I've had with them - how do I protect myself and prevent them from messing things up again?

 

The Claimant informs the court not you...only they can vacate the hearing.

 

Regards

 

Andy

[AndyOrch]

Thanks again Andy.

 

There is something fundamental that I am not getting - assuming I pay HSBC the full outstanding amount (that is, £2.5k + £180 court fee as stated in the claim + "interest") and do it, say, within the next 7 days (lets fix a date for that as well: HSBC get the money in their account by next Friday, 22nd January). So then:

 

1. Should HSBC inform the court the claim has been satisfied? Settled ...yes and there is nothing stopping you also informing them Following up on that, should the court drop the claim? Yes if there is nothing outstanding and its settled What if they don't and hearing goes ahead - without me as I am not going to be present? Then thats at their own costs because they failed to inform the court and as there is nothing to now judge that would look rather silliy

2. Can HSBC then submit another claim for costs? No because it was settled as at xxxxxxx unless there is previous costs still outstanding ? If so, how likely are they to succeed? Irrelevant if there is nothing to succeed on Since this is a smail claim track what is the maximum amount they should be entitled to - was that £280 maximum or am I mistaken? Fixed costs plus any costs from application hearings

3. Calculating the amount of interest I have to pay - this is the biggest mystery to me: say the claim form is dated 30 November 2014 and I plan to have the money in HSBC's account by 22 January 2016. What amount of interest must be included in my payment then, provided there is no "judgement date"? Is this interest calculated daily from 30 November 2014 until 22 January 2016? From what I remember the daily interest rate is £0.56. From claim date up until payment

 

4. Another question I haven't thought of before now: provided the claim with HSBC is "satisfied in full" - this, presumably, will be reflected on my credit profile and as soon as all other creditors see this (which, as I have stated in one of my previous posts above, are about 6-7 and I owe them about £30k) they will, I am assuming, stat going the same route as HSBC (until now I haven't heard anything from any of them - not a peep!). Could they then use the fact that I have the claim with HSBC now satisfied as a (legal) reason to seek settlement of their own, on the grounds that I have already satisfied a claim with another creditor? This is important for me to understand! How would they know ?

Thanks again!

 

Andy

[AndyOrch]

" I presume if/when I settle this claim this will be reflected in my financial profile (with Experian or similar agency) and the debt there will be shown as settled (or something along those lines). Correct?

 

If so, then all other credit card companies I have other debts with will, presumably, see this and would want to do the same thing and seek settlement of their own debts on the grounds that I already satisfied a claim/debt with another creditor. So, provided that is the case, my question again - can they (legally) have any reason to do so? Please explain as I'd like this aspect to be very clear to me. Many thanks once again."

 

I think you need to touch base with reality zeek...do you honestly think that DCA are going to check all their debts and debtors to see if they have satisfied debts ?

 

And even if remotely possibly...so what...what can they do ?

 

New thread please for the mortgage query...please do not mix threads.

 

Regards

 

Andy

[AndyOrch]

" Suppose they do. That wasn't my query though.

 

They are also unsecured creditors (like HSBCicon). I am paying HSBC's debt in full, while not giving anyone else a single penny.

 

What I'd like to know is whether they may have any (legal) leverage they might use as a result of this and seek settlement of the debt I have with them? Could you clarify this for me please? "

 

" They " have not issued court claims so until that day ever happens....so what ?

[AndyOrch]

Threads merged...I didn't realise it was still connected to this thread...as your posts are getting rather complicated now.

 

Andy

[AndyOrch]

" So, to repeat yet again, my query: is there any (legal) merit in the assumption I think I explained in great detail in my previous posts that the other unsecured creditors may have been treated "unfairly" by satisfying a claim in full with one creditor and completely ignoring the others? I don't want to hear arguments like "they won't notice", "they can't see your credit profile" and the like. Please! "

 

No legal merit....first past the finishing line has priory...unless you want a CCJ and wish to be fair to the others...Judgment Creditor has priority over any other debt /DCA.

 

I think you may be getting confused with securing the Judgment by way of a Charging Order...were they shouldn't have an advantage by way of a CO over your other creditors.

 

With regards to your payment dilemma...it would appear reading between the lines that the creditor is curious as to where this money is coming from to reach settlement on this debt....as you are in arrears with your mortgage and obviously this money is not in your account...so in line with money laundering regulations they have to query this payment source?

 

I think you have just been unlucky to have been served a claim form by the same company that deals with your mortgage

 

Andy

[AndyOrch]

Is there no schedule zeek06 ? That's just the Order.

 

Andy

[AndyOrch]

Yes I have seen it zeek...if thats all there is to it (1 page) then its fine to accept)

 

Regards

 

Andy

[AndyOrch]

Its just most Orders ..in particular Tomlin Orders ,the order you have uploaded is attached to a schedule...and the schedule lists the terms of the consent....the arrangements ..the finer details...which are separate to the order...the order just normally states that the claim has been settled subject to the terms and whether costs are to be waived.

 

But as yours is a short consent...they have included it within the main body of the order.

 

1. There will be no CCJ issued against me (provided I pay the money, of course)? Correct

2. The claim will be dropped and completely withdrawn (no traces in the local court and the hearing will be withdrawn)? Correct

3. The judge will have to issue this order without inventing stuff (I don't trust him one bit!)? He just seals the order

4. My local court can't do anything to mess this up even if they wanted to? The claimants Solicitor is responsible for concluding the claim with the court

 

Andy

[AndyOrch]

No....it will be Discontinued as per the Consent and no you do not need to attend but check that the court has received the consent for sealing....before the hearing date.

[AndyOrch]

No such legal process as withdrew... the recognised legal process is to Discontinue the claim using N292 ...particularly in Fast Track.....if they did not Discontinue then you would struggle to attain wasted costs..CPR 38

[AndyOrch]

2. Upon the Defendant making the payment in compliance with paragraph 1 above and upon the Claimant discontinuing the claim thereafter, each party shall bear down their own costs of this action.

 

 

As it states in your Consent Order.

[AndyOrch]

Andy, isn't that supposed to be confidential?!

 

Ignoring the consent order completely - my understanding is that if I pay this claim in full, including court costs and interest, the claim is no more. So what would happen to this claim - withdrawn, discontinued, dismissed? What?

 

Just settled....finito

[AndyOrch]

Delighted for you zeek that it is now resolved.

 

Regards

 

Andy