Hoist 2 Ltd, claimform - HSBC overdraft debt.overseas

[HungaryJoe]

Name of the Claimant - H Cohen Solicitors, Hoist 2 Ltd. Original creditor MKDP LLp (Ex HSBC).

 

Date of issue: 12th September

Acknowledgement submitted.

 

What is the claim for – the reason they have issued the claim?

This claim is for the sum of £1089 in respect of monies owed pertinent to an overdraft facility under bank account number x.

The debt was legally assigned by MKDP (Ex HSBC) to the claimant and notice has been served. The defendant has failed to repay overdraft sums owing under the terms and conditions of the bank account.

The Claimant claim:

1. The sum of £1089

2. Interest charges persunt of the county court act 1964 at a rate of 8% from 24/09/12 to the date hereof 1436 is the sum of £343.06.

3. Future interest at the daily rate of .24

4. costs.

 

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?

 

Account set up in early 2000s

 

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.

Debt purchaser

 

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

No

 

Did you receive a Default Notice from the original creditor?

Not sure.

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

Not sure.

 

Why did you cease payments?

I didn't, I was a student conducting fieldwork abroad. The overdraft was within its limit, but not enough money was paid into it. Whilst away, HSBC closed the overdraft facility and demanded full payment. (OD Limit was £1500, amount in account was -£1090)

 

What was the date of your last payment?

Early 2012

 

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 managementicon plan?

Unsure.

 

 

 

Hello and thank you for any help.

I am a UK citizen but have been living and working abroad for three years - Estonia and Hungary.

This is making it very hard for me to deal with this...

I was unaware of being chased for this debt. I recently found out about a court summons as post was forwarded to a family member.

I called Cohen and Hoist about this debt asking for documents to prove to me the age and the fact it is mine and they said they did not have these.

The debt is from 2012, I tried to get access to my statutory C report but as I am a resident abroad this is very difficult and basically is not possible.

 

I have sent a CCA request and CPR 31.14.

These were only sent today. I have very little time to submit my defense.

I have a defense written - can I submit this even though the solicitors have not had the time to respond?

 

I basically want to say - I don't know what this is, I would like them to show me documentation.

 

 

1. I received the claim xxxxxx from the Northampton County Court on 12th September.

 

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

 

3: This claim appears to be for an overdraft agreement regulated under the Consumer Credit Act 1974.

 

4: The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

 

4.(a). The defendant is unable to reconcile the amount claimed with any account he may have had with the original credit and remains at a disadvantage not having access to relevant record.

 

5. The defendant is Litigant in and domiciled outside the UK requests for inspection of documents on which the claimant intends to rely have been made via the provisions of CCA 1974 and CPR31.4 and he awaits replies.

 

- I am well out of my comfort zone here, this process has caused considerable stress in the last week, please excuse any ignorance on my side! -

 

I am really struggling with this - is what I have written above logical?

Is there something wrong with this, should I be doing something else? What happens next - where does the process go from here?

 

Thank you very much for any help.

[reallymadwoman]

Where were the court documents served - your address abroad or a UK address? Are you now in the UK or still abroad?

 

Have you acknowledged receipt of the claim, and when you contacted Cohen and Hoist did you tell them you live/have lived abroad and/or where they already aware of this?

 

Your answers to these two questions are crucial as it may be that the UK courts have no jurisdiction.

[unclebulgaria67]

There was a box on the court claim about jurisdiction. They can only issue the claim to a UK resident. But you have acknowledged service now, so it might be a bit late to dispute jurisdiction.

[AndyOrch]

Hi Joe and Welcome to CAG

 

Firstly a CCA request is not applicable to an overdraft...and with regards to your CPR 31 request did you send the Current account version?

 

Here is an example of the standard holding defence for current accounts...edit to suit your particulars of claim

 

Defence

 

The Defendant contends that the particulars of 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. Paragraph 1, I accept that I have held a current account with HSBC Bank Plc. I have not serviced this account since **** due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. The amount claimed is far in excess of any agreed overdraft limit with Lloyd's Bank. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.

 

2. Paragraph 2 is denied that HSBC Bank Plc has ever served Notice pursuant to 76(1) and 98(1) of the CCA1974 and therefore the Assignee is prevented from seeking any relief for any alleged outstanding balance pursuant to the CCA1974.

 

 

3. Paragraph 3 is denied I have never been served a Notices of Assignment in accordance with s.136 Law of Property Act 1925.

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed before even considering adding section 69 interest which I understand is at the courts discretion.

 

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

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which 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 their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

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

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

 

5. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the *******. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.

 

6.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.

 

Regards

 

Andy

[HungaryJoe]

Where were the court documents served - your address abroad or a UK address? Are you now in the UK or still abroad?

 

Have you acknowledged receipt of the claim, and when you contacted Cohen and Hoist did you tell them you live/have lived abroad and/or where they already aware of this?

 

Your answers to these two questions are crucial as it may be that the UK courts have no jurisdiction.

 

Hi,

 

The papers were sent to my sisters address, I have my drivers licence registered there which is where I assume they got the address (I had not told them). She opened a mail addressed to the householder so fortunately realised this was happening before it was too late.

 

I am still a resident abroad, I am not in the UK and will not be for the foreseeable future (although I want the option of returning home in the future available!)

 

Yes I acknowledged receipt of the claim.

 

I called Cohen and Hoist following acknowledged receipt of the claim to the court,

 

 

I told them where I was living but they refused to take my address.

They wanted an address in the UK,

I didn't want to give them one as I don't want this responsibility falling on someone else.

I insisted they contact me where I currently reside.

 

Thank you for your help.

[HungaryJoe]

There was a box on the court claim about jurisdiction. They can only issue the claim to a UK resident. But you have acknowledged service now, so it might be a bit late to dispute jurisdiction.

 

Yes, it seems I missed that unfortunately.

[HungaryJoe]

Hi Joe and Welcome to CAG

 

Firstly a CCA request is not applicable to an overdraft...and with regards to your CPR 31 request did you send the Current account version?

 

Here is an example of the standard holding defence for current accounts...edit to suit your particulars of claim

 

Defence

 

The Defendant contends that the particulars of 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. Paragraph 1, I accept that I have held a current account with HSBC Bank Plc. I have not serviced this account since **** due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. The amount claimed is far in excess of any agreed overdraft limit with Lloyd's Bank. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue.

 

2. Paragraph 2 is denied that HSBC Bank Plc has ever served Notice pursuant to 76(1) and 98(1) of the CCA1974 and therefore the Assignee is prevented from seeking any relief for any alleged outstanding balance pursuant to the CCA1974.

 

 

3. Paragraph 3 is denied I have never been served a Notices of Assignment in accordance with s.136 Law of Property Act 1925.

 

4. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed before even considering adding section 69 interest which I understand is at the courts discretion.

 

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

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which 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 their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

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

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

 

5. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the *******. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.

 

6.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.

 

Regards

 

Andy

 

 

If there were no fees etc on the overdraft, would it be a lie to use that defense?

[AndyOrch]

If there were no fees etc on the overdraft, would it be a lie to use that defense?

 

Yes...as stated edit to suit but use the main format and body of the above.

[HungaryJoe]

Yes...as stated edit to suit but use the main format and body of the above.

 

Thanks,

 

What happens if the claimant has not had the required amount of time to respond to my document requests by the time I file my defense?

[AndyOrch]

Thanks,

 

What happens if the claimant has not had the required amount of time to respond to my document requests by the time I file my defense?

 

Makes no odds...they invariably cant disclose anything anyway for overdrafts..bar statements

[HungaryJoe]

Makes no odds...they invariably cant disclose anything anyway for overdrafts..bar statements

 

But presumably they still need to prove the debt has been assigned to them? If not, then what is it they take to court to prove I owe them money?

[AndyOrch]

Yes they will need the Notice of Assignment and also the Notice served under 76(1) and 98(1) of the CCA1974 Demand ...but normally they rely on statements and the balance of probabilities and a easy District judge...not that many actually get as far as court once a defence has been submitted

[HungaryJoe]

Hi, I submitted a defense and the case is proceeding on the small claims track.

 

The court didn't apply enough postage to get the letter to where I live so it has arrived 2 days before I need to have it back with them.

 

The solicitors did reply to my letter, but only to say they would not provide any documents to me unless the court orders it.

 

There seems very little I can do from my location abroad - is there?

 

Thanks

[unclebulgaria67]

Hi, I submitted a defense and the case is proceeding on the small claims track.

 

The court didn't apply enough postage to get the letter to where I live so it has arrived 2 days before I need to have it back with them.

 

The solicitors did reply to my letter, but only to say they would not provide any documents to me unless the court orders it.

 

There seems very little I can do from my location abroad - is there?

 

Thanks

 

What have you received from the court exactly ?

[HungaryJoe]

What have you received from the court exactly ?

 

It was the letter informing me the case has been assigned to the small claims track - the 'directions questionnaire' - also asking if I would like to consider mediation and to clarify details about the venue/witnesses and hearing.

[unclebulgaria67]

I would wait for advice about the directions questionnaire, but i wonder whether agreeing to mediation where they have to phone you abroad might be useful. Also ask the courts whether you can attend any hearing by phone or video conference, as the claimant is fully aware you are not resident in the UK.

[dx100uk]

Fill it in he's to mediation

Rest is obv

Send it back

 

Await mediation to call

Then tell them

You have no paperwork

[HungaryJoe]

Fill it in he's to mediation

Rest is obv

Send it back

 

Await mediation to call

Then tell them

You have no paperwork

 

Hi, thank you for your reply - I have received the 'mediation appointment offer' now and it specifically says in the mediation requirements (simple yes no, three questions section) I can confirm that I have enough information about the claim to allow me to enter into negotiations and that I do not require any further evidence from the other party before the appointment -

 

The answer would be no, as the company have not provided any documents to me - but should I continue anyway - if I do and say I have requested these docs and they have not been sent to me, will the mediator think I am wasting their time?

 

Thanks again.

[dx100uk]

Its only an offer

The service will ring you to arrange a time

Then as in post 17

[HungaryJoe]

Its only an offer

The service will ring you to arrange a time

Then as in post 17

 

Thanks -

I guess I am a little confused by Andy's comments earlier in the thread

 

- for an overdraft are they obliged to provide any documents at all?

 

If mediation fails (because they have not provided me with enough information)

and it goes to court (which I cannot attend due to not being resident in the UK)

 

I feel kind of helpless if there is no requirement for them to have provided me with anything except the summons.

[dx100uk]

pes I think they are on dodgy ground anyway

 

they purposefully issued a claim form when they knew you were not in this country

I wonder if there is any worth in that

 

p'haps andy might like to comment on what you stated at the end of post 5?

 

they will need the documents andy mentioned before

[AndyOrch]

You may find PD 6.6 and 6.8 of interest...especially when they were aware that you no longer reside within the UK.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part06