Claim form Moon Beever / 1st Credit HSBC overdraft debt

[AndyOrch]

Plenty of examples for you to edit in the Legal Success forum Nas...simply find a similar claim preferably same creditor and adapt to suit your claim...post here before submitting.

 

Andy

[nas2211]

Hello, I've drafted my defence based on others I've been reading in the forum, and would be grateful for any feedback.

 

I'm hoping this can be settled at mediation, ideally by way of a Consent/Tomlin Order. Am I being realistic with this do you think?

 

So here's my proposed defence...

 

Particulars of claim

 

1. The Claimant is the assignee of a HSBC Bank Plc debt in the sum of £3,072 assigned on xx/01/2015. Statutory notices of assignment were sent to the defendant.

 

2. The debt is for arrears on an overdraft facility first opened by the original creditor on or about xx/01/2008 under reference xxxxxx/xxxxxxxx. The defendant used the credit facilities.

 

3. On xx/01/2014 the account defaulted with an outstanding balance of £2,835. The claimant and its predecessors in title demanded repayment of the sum due. In breach of contract the defendant failed to repay the sums due.

 

The Claimant claims:

 

The sum of £3072.00

Costs

 

Defence

 

The Defendant contends that the particulars of the claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor HSBC Bank. It is denied that I am indebted for the alleged balance claimed.

 

2. Paragraph 1 is denied. I am not aware of ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

3. Paragraph 3 is denied. To my knowledge HSBC or the Claimant have never served me a notice pursuant to 76(1) and 98(1) of the CCA1974

 

Any alleged amount claimed could only consist substantially of default penalties/charges levied on the account for alleged late, rejected or over limit payments.

The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

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

 

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

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

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated XX February 2016 namely the Overdraft Agreement, Terms and Conditions relevant at the time of inception for the agreed overdraft, the Termination Demand Notice, Notices of sums in arrears, and Notices of Assignment inferred by the Claimant's Particulars of Claim.

 

The Claimant has failed to fully comply with this request.

 

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

Edited February 23, 2016 by Andyorch
Edit

[AndyOrch]

Just one slight addition nas...rest is fine.

 

Andy

[nas2211]

That's great thank you.

 

This might be a daft question, but when I submit the above defense, do I include the particulars of claim section, or is that just for this forums purposes?

[AndyOrch]

Just for our purposes to cross check you have responded to all pleadings.

[nas2211]

Great, glad I checked!

[nas2211]

I submitted my defence today, thanks again for all your help and guidance.

[nas2211]

I've just received an acknowledgement of my defence

 

now the waiting starts to see if they contact me to settle or if they want to proceed.

 

In your experience does the court tend to prefer Claimants to attempt to resolve it outside of court

in the first instance, or is it standard practice for them to indicate they want to proceed without contacting me?

[dx100uk]

or not as the case maybe

if they feel brave enough they might proceed

if not they might let it get stayed and not reply.

 

 

as it stands

and you've already eluded too this from post 16

their case is weak

 

 

you don't mediate or answer them

till/if it gets to the mediation stage

which as yet it hasn't

[nas2211]

Ah ok, right, I understand. So we wait...

[nas2211]

Letter received today from 1st Credit advising of a change of legal representative, and enclosing a notice of change (now represented by 1st Credit legal department instead of Moon Beever).

 

They have also enclosed a copy of the notice of assignment from both HSBC and 1st Credit (why have they left it until this point to provide it?!)

 

The letter states:

 

'We have read your defence as filed and can discern no defence from the contents. We will be applying for summary judgement under Part 24 CPR (Civil Procedure Rules) on the basis that you do not have a defence.

 

We will refrain from doing so for 14 days to allow you to make payment of the claim amount, interest and costs, failing which you may assume that our application is in preparation and will be served on you by County Court in due course.'

 

I'm not sure what my best move would be now they've provided these documents, should I try to negotiate a settlement figure now or wait until it goes to mediation?

[AndyOrch]

Let me just refresh myself with your thread nas....see where we are with it.

[AndyOrch]

What does the NoA look like...is it a recreation or the originals ?

 

If you were to hazard a guess what split would you say of the debt refers to unfair charges ?

[nas2211]

Hi Andy, difficult to say, but they have the appearance of an original with logos etc and dates match up.

 

I've looked through the statements, and I'd say the split on the original amount of c£2800 is probably about 20-30% charges from HSBC. Everything above that must be charges from 1st Credit.

[AndyOrch]

From their letter they don't appear to offer any kind of mediation or deal...they want the full amount.The fact that they raise Summary Judgment is a concern....it may be a bluff but it can have costs consequences for the defendant...above the normal SCT fixed costs.

 

Summary judgment(CPR 24.2) is a procedure by which any of the parties or the court can dispose of all or part of a case without a trial where:

 

• A claim or issue or a defence to a claim or issue has no real prospect of success and

• There is no other compelling reason for a trial.

 

Lets see if they do make that application before allocation.

 

Andy

[nas2211]

Thanks Andy, to be honest this has made me quite nervous now as I don't want to end up worse off.

 

 

I think I need to reflect on the situation for a few days as I always intended on settling,

 

 

I was just hoping to be able to negotiate the figure down.

 

 

I need to weigh up whether I'd be better off paying the extra now

to avoid the risk of it all escalating at the next stage

if they do go for summary judgement.

[AndyOrch]

Well don't dive in just yet.......as said it may be a bluff maybe not....what I would do is approach them within the given dates and suggest that you may consider a negotiation as the amount claimed does consist of mainly punitive charges and you are open to negotiation to reach a settlement....preferably by way of a Consent/Tomlin order...and possibly by way of a monthly payment plan...providing they let the claim stay.....with no CCJ.

 

This will distract them from the time limit and any application...they to are up against time limits...they either tell the court they wish to proceed or let it stay or they make application for SJ (the application is normally made pre allocation)...the fee would be £155....as opposed to a cheaper hearing fee to proceed.

 

Its worth a phone call..dont write...you will know straight away if they wish to consider from their reaction...and if they are not open to this then we can review a further strategy.

[nas2211]

Good advice, I will prepare and call them this week to test the water. Good to know the additional amount for SJ, I feared we could be talking about £1000's more in legal fees.

[AndyOrch]

Good advice, I will prepare and call them this week to test the water. Good to know the additional amount for SJ, I feared we could be talking about £1000's more in legal fees.

 

That's just the application fee...if they instruct counsel/barrister add another £1500.00:-)

[nas2211]

Oh...!

[nas2211]

I spoke to a lady at 1st Credit legal today who was actually pretty nice and human sounding!

 

 

She said they would absolutely be willing to settle,

and for a lump sum would accept £2600,

or for instalments under a Tomlin order, they would accept £3100 over anything up to 6 years.

 

 

However the credit file entry would remain in both circumstances and either be updated to say partial settlement in the first instance, or updated monthly with the monthly payments in the second.

 

I left it that I would think about things and come back to her tomorrow to indicate how I would like to proceed.

 

I was wondering if there's a way I can negotiate the removal of the entry in the credit file as part of the Tomlin order?

[AndyOrch]

Excellent so now you know they are open to negotiation...the balance and terms of any Tomlin can be negotiated to suit both parties...so you will have to give that some thought.

 

I doubt you will be able to negotiate any removal of the Default Marker..you may get it marked settled or satisfied.

[nas2211]

Thanks Andy, I'm in the fortunate position that I'm able to pay it off in a lump sum so I'm inclined to see if I can negotiate it a bit lower and clear it once and for all.

[AndyOrch]

Dont forget the unfair charges /interest applied also...start at say £2K...but keep in mind ...you really don't know if they were going to make application for SJ.

[nas2211]

Very true, I think the potential escalation panicked me, which I'm sure was their intention. I'll let you know how I get on.