Hoist Portfolio - claimform HSBC overdraft***Claim Discontinued***

[dpac123]

Background

- about 4 years ago we wrote a cheque but there were insufficient funds in our account.

Rather than bouncing it, HSBC paid it and this put us into overdraft for £350.

 

Long story short,

they have been chasing this through various debt collectors and the debt was sold to Hoist, who have issued a claim against us.

 

We filed a defence, which was that we don't have enough info to confirm or deny the debt and that we had sent a Subject Access Request to the creditor.

 

They responded with a notice of assignment and copy of the terms and conditions.

We decided against mediation so the matter got allocated to a small claims court.

 

We then received a CJR065C from the court saying:

"Unless the Defendant files and serves a detailed defence complying with CPR 16.5 by 28/09/16 the Defence shall stand struck out without further order and the Claimant be entitled to enter judgement forthwith".

 

we are trying to put together a defence and also see if we can negotiate with the claimant at this late stage.

 

The terms and conditions we were sent state, under the heading When payments will and will not be made by us

that payments will be made if there are funds in the account or if an overdraft is in place (there was no overdraft agreed at the time).

 

It doesn't say anything about making payments when there are insufficient funds or no overdraft in place!

 

We also haven't received an overdraft termination notice because no overdraft existed (until HSBC created one to make this payment).

 

Something doesn't seem right here - any advice appreciated!

[dx100uk]

please fill this out

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-December-2014**

[dpac123]

Thanks - and send to the claimant only or post here as well?

[Old Cogger]

Thanks - and send to the claimant only or post here as well?

 

on here its for our info in order to get a better idea of the problem = the Claimant knows the case!

[dx100uk]

FWIW hoist have issued lots of claimforms on old HSBC OD/loan debts

they must have bought a recent phishing list and are trying their luck to get loads of undefended default judgements.

 

 

most of these HSBC debts are somewhat sceptical merging ...of CC and Non CCA od's/and loans

[dpac123]

Name of the Claimant ? HOIST PORTFOLIO HOLDINGS 2 LTD

Date of issue – 26 APR 2016 (ACKNOWLEDGED 09 MAY 2016, DEFENDED 24 MAY 2016)

What is the claim for –

 

THIS CLAIM IS FOR THE SUM OF £349.99 IN RESPECT OF MONIES OWING PURSUANT TO AN OVERDRAFT FACILITY UNDER BANK ACCOUNT NUMBER XXXXXXXX

 

THE DEBT WAS LEGALLY ASSIGNED TO MKDP LLP (EX HSBC) TO THE CLAIMANT AND NOTICE HAS BEEN SERVED. THE DEFENDANT FAILED TO REPAY OVERDRAWN SUMS OWING UNDER THE TERMS AND CONDITIONS OF THE BANK ACCOUNT.

 

THE CLAIMANT CLAIMS

1. THE SUM OF £349.99

2. INTEREST PURSUANT TO S69 OF THE COUNTY COURT ACT 1984 AT A RATE OF 8% FROM 01/12/2012 TO THE DATE HEREOF 1243 IS THE SUM OF £102.01

3. FUTURE ACCRUING INTEREST AT THE DAILY RATE OF £.09

4. COSTS

 

What is the value of the claim? £565.14

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? OVERDRAFT

 

When did you enter into the original agreement before or after 2007? BANK ACCOUNT WAS OPENED AROUND 2010 BUT NO OVERDRAFT FACILITY WAS EVER AGREED.

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.

 

ASSIGNED AS PER LETTER DATED 01 DEC 2013

Were you aware the account had been assigned – did you receive a Notice of Assignment?

 

DON'T THINK SO BUT RECEIVED ONE FROM CLAIMANT RECENTLY AS PART OF RESPONSE TO SUBJECT ACCESS REQUEST.

Did you receive a Default Notice from the original creditor?

 

NO DEFAULT OR TERMINATION NOTICE (NO FORMAL OVERDRAFT ARRANGEMENT WAS EVER SET UP, SO THEY COULDN'T REALLY TERMINATE IT!

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? NO

Why did you cease payments?

 

LIKE I SAID, A CHEQUE WAS PAID WITH INSUFFICIENT FUNDS IN THE ACCOUNT, THUS CREATING AN UNAUTHORISED OVERDRAFT - NO PAYMENTS MADE BY US.

What was the date of your last payment? SEE ABOVE

Was there a dispute with the original creditor that remains unresolved? NO

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan? NO

[dx100uk]

so they [the OC] created an unauthorised OD on your behalf

nothing wrong there sadly .

 

 

and as the account was only opened in 2010 cant be statute barred either.

 

 

might have to swallow this one dpac. and go for a tomlin/consent order for a small monthly sum to avoid the CCJ being registered.

 

 

unless anyone else can see a viable defence?

[dpac123]

So bank's can create unauthorised overdrafts if they feel like it? I thought they needed the customer's consent to make it binding?

 

Do you think it would be a good idea to contact the claimant and offer £10 per month or even a lump sum? How much are they likely to accept as a one off payment? 50-60%?

[dx100uk]

yes, you'll see its in the accounts T&C's if you'd requested them via a CPR31:14

which you ideally should have sent the sols the day you got the claimform

 

 

as for the pay off

have you all the statements in the sar?

[dpac123]

have you all the statements in the sar?

 

No, all they sent was terms and conditions and notice of assignment. Should I ask for bank statements?

[dx100uk]

who did you send it too the fleecers or the OC?

[dpac123]

who did you send it too the fleecers or the OC?

 

Hoist

[dx100uk]

that's why

an sar should always goto the OC.

 

 

twould be useful for you to be able to identify what are penalty charges [late/over/letter failed DD etc] any fixed sum penalty fees

which are unlawful under FCA rules

removed in mediation etc to reduce the possible figure should you look toward tomlin/consent etc....

 

 

could you not pop into a branch and get all the statements

as an sar to them will be 40days away

[dpac123]

Are the bank going to give us statements same day given that they forcibly closed the account?

 

Any thoughts on a defence as we need to submit something even if we liaise with Hoist about a settlement?

[unclebulgaria67]

Are the bank going to give us statements same day given that they forcibly closed the account?

 

Any thoughts on a defence as we need to submit something even if we liaise with Hoist about a settlement?

 

They probably won't be able to print off statements in a branch for a closed account. You would need to find out from HSBC customer services phone line, the quickest way to get hold of them. There might be a way, you can order them and pick them up in a branch or have them sent to you, as part of an SAR.

 

Will leave others to answer the defence part

 

What was the value of the cheque they processed ? Was the cheque offered with a debit card guarantee up to a certain amount ?

[dx100uk]

Yes what was the value of that cheque?

[dpac123]

Yes what was the value of that cheque?

 

£350

[dpac123]

Account was standard with a debit card and no overdraft. Not aware that the debit card was linked to the cheque in any way.

[unclebulgaria67]

Account was standard with a debit card and no overdraft. Not aware that the debit card was linked to the cheque in any way.

 

The debit card used to act as a guarantee for a cheque up to an amount £50 or £100. Beyond the relevant amount, a Bank would not normally accept a cheque.

 

Think you need to look at the account terms and conditions. It might well be a mistake for the Bank to have accepted a cheque for £350. I suspect they should have bounced it and applied relevant fee for that.

[dpac123]

Does a potential bank error invalidate their claim?

[dx100uk]

Yes it could

Tell us about this cheque more

 

Did you think there was £350 in there?

 

Play along for now and answer silly q,s for the minute

[dpac123]

I don't recall as it was a while ago but I'm pretty sure we would have only written a cheque if we thought there was enough in there.

 

transactions don't always clear same day (as if the banks do it on purpose to trip people up) and we probably had a payment that hadn't fully cleared.

 

Sorry I can't be more specific

[dpac123]

Any further thoughts - need my defence done by Tuesday!

[dx100uk]

see if you can get all the statements from a branch take ID with you

 

 

if out how much of this debt is penalties

[dpac123]

Yes it could

Tell us about this cheque more

 

Did you think there was £350 in there?

 

Play along for now and answer silly q,s for the minute

 

What was the possible angle here?