Chunky Linc Vs. HSBC

[lateralus]

fingers crossed for you cl, sometimes the court still accepts a late defence from them - hopefully not and you'll get your money. let us know what happens next.

[chunkylinc]

just a quick update...

 

I received a 'Notice of Judgment Entered' through the post from Northampton Count Court, saying "In accordance with your request, judgment was entered against the defendant on the 21st June 2007'

 

There was nothing to indicate the timescales of when they would actually make a decision and so I guess I just sit tight and hope the court doesnt allow a late defence!? I'll keep you posted...

[lateralus]

oooooh, the plot thickens -

just saw another one today - where they did the same - as the acknowledgment wasn't filed - and dg paid up - calling it an administration error - i say roll on admin errors!

[freakyleaky]

WoW! Is this just another way to pay in full without admitting fault? I mean they don't even have to pretend to be without blame this way!

It's great! dg if you are reading, keep it up!

[Castlebest]

I think DG are starting to loose the plot a bit and they are missing deadlines, read a thread on saturday where the defence was 2 months late !!!

 

Strike out time !!!

 

pete

[chunkylinc]

Ummmmmm, I thought this was going far far too well. Im now off for four days so wont be able to do anything and typically I got a letter thro from Northampton County Court this morning. It said "Upon the court noting that due to computer restraints Defence has been filed in time but not logged. It is ordered that :- 1) Judgment to be set aside. 2) Defence as filed shall stand. 3) No order as to costs.

 

So It looks like the sneaky b*ggers managed to get it in, in time, so it looks like im off to my local court...

[freakyleaky]

Well thats a shame! I was hoping for a win on this one.

Oh well chunky, you will have to join all the rest in waiting for your money.

The good news is........You WILL get it!

[chunkylinc]

Upon my return home I was un-surprised to find a "Notice of Transfer of Proceedings" letter from Northampton CC. It's now been moved to Norwich CC, but as of yet no date seems to have been set, it also appears that i do not have to complete the Allocation Questionnaire, which from reading other threads is pretty normal these days. I take it that Norwich CC will now write to me and let me know dates and timings etc? In the mean time i guess i simply start the old nudging letters with D & G?

[freakyleaky]

You got it. You will get directions from local court next. Even if the aq is dispensed with you will have to ring the court and see if the fee is still payable.

 

Just keep nudgeing for now.

[chunkylinc]

It appears D&G are somewhat on the ball, as i'd just written my first nudge letter and posted it during the morning, by the time i'd got back home my post had been received and in sure enough an offer letter from D&G had arrived. The offer was for £2,800 nearly sum £1,000 less than what would be due to me with 8% interest on both the charges and the overdraft interest, I also had the usual confidential and no further claims clause.... as well as the usual about HSBC was mindful of the management time and irrecoverable legal costs blah blah blah.

 

However...

 

Two things in the letter have caused me to have some concern.

 

Firstly, "By virtue of the Limitation Act 1908 you are prevented from reclaiming charges applied to your account more than six years prior to the date you issued your claim......." Is this correct? I mean most of us start this process by ordering statements and then it can be another two months before we actually get to the court and claim stage? Also as Pete and Pink Dutchess pointed out right at the very start of this I probably shouldnt have added the few pre 6 yrs charges.

 

Secondly, "We note your claim for overdraft interest and your claim that the calculation that you have used only relates to the cumulative charges within the overdrawn balance of the account at the point that the overdraft interest was debited. Interest passed to an account is for a period prior to the passing of the charge and depends upon the average balance during that period. It is totally independent of both the balance outstanding on the day it is passed and of any charge also passed on that day. In any event you will be aware that even without the charges applied to your account you would have incurred overdraft interest and it is a basic condition of borrowing that you should pay interest on monies borrowed. As such there is no question of our client refunding interest applied when your account was overdrawn"

 

I the used used one of the standard template declining offer letters, and rounded the figure down to the nearest £1 and despatched this along with another schedule of charges.

 

Then today I received another letter from D&G offering me exactly the same amount, again they brought up section 5 of the Limitation Act 1980 and said that should this proceed to court they would bring this to the judge's attention. Again there was the bit about overdraft interest, no other claims and the confidentiality clause, however it was this bit that got me!!!

 

" We consider that our client has made a most reasonable offer of settlement to you, blah blah blah... At this juncture we wish to advise that should you continue with your claim to a hearing, we reserve the right to bring this letter to the attention of the court when the question of costs arises. By this we mean that our client has made a reasonable offer of settlement which you have rejected. In the event the court concurs with our view then we will seek an order that you pay our costs in continuing with the claim from todays date until conclusion."

 

Anyone have any ideas where I go with this one from now on? Do i accept the offer or stick to my guns? What about If I was to remove the earlier charges from the schedule and also the overdraft interest and re-submit with a slightly lower offer? Can they make me pay their costs should I lose?

[Castlebest]

Hiya Chunky, right one thing at a time,

 

Limitations act, there is a clause (I forget which, have a look in the general forum there are generaly a few threads about the limitations act in there) that says something like you are allowed to claim if HSBC have consealed the nature of their charges, you need to find it and quote it in a reply.

 

Overdraft Interest, they always say this, the fact remains that their charges have added to the overdraft and therefore the interest charged and you want the proportion relating to the charges back.

 

do either of the letters have "without prejudice" on them ? if they do they are automaticaly barred from their evidence.

 

Make sure that you say you do not believe DG's client has made a reasonable offer at all, for the reasons stated above and you are sure the court will agree with you and you will be pressing for a judgement against HSBC and will file for a wasted costs order because of DG Solicitors lethagy and procrastination in this matter wasting your own and the courts valuable time.

 

or something along those lines

 

pete

[pinkduchess]

i cant understand how some people get their claim pulled apart and questioned like this while others get an offer in full (including OD interest)

[Castlebest]

I think its actualy down to indigestion PD, if they are feeling happy they will just rubber stamp it if they had a few day old sandwich for lunch they will take it out on the claims.

 

pete

[Castlebest]

Chunky, Ive just found this posted by a moderator talking about going over the 6 year limit.

 

As long as you have quoted section 32 of the Limitations Act you should be fine with the charges from over 6 years ago,

 

They were talking about an inclusion in a set of claim particulars but I dont see why you shouldnt add it in a letter as your charges are only just over the limit and the delay has been caused by HSBC and DG

 

pete

[lateralus]

and take a look at the last few postings on this oneMaangov V HSBC ***WON*** - it's very recent - he had to climb down on the contractual interest - but held on for the o/d interest - his was one of those they tried to pull apart - so look at how he wrote back - i think (not sure) if you address the issues a little - like pete's above on the 6 yr and like man. on the o/d intere. and then hang tough - you may pull it around - don't let them smell fear. crusher would say if you've done your claim correctly - no reason to settle for anything less than a full offer - they will come through with one (although i do know of a couple a few months back where they went back and forth and back and forth and eventually the claimant took the offer - but it's way too early for that) they don't usually pick them apart - just stand firm - and put a little back up into the letter. and yes, tell them (assuming they are) that the charges only fall outside of the six years because of their dilatory (i love that word) dealing towards your approach for information.

 

 

i think they pick yours up early because of the judgment thing -

ring the court to see when you will hear about court directions - and mention whatever you find out - in your letter to dg -

 

for now - stick to your guns - answer their letter with the points above and don't let them smell fear - they used to do this a lot - now they don't as they don't usually pick up your claim until near a court date - they got yours out early and are trying to needle you.

[chunkylinc]

excellent, thank you all for your help, that's exactly what I'll do.

 

Been away for a few days so not actually had the chance do anything further, but will crack on with my letter and also ring the court tomorrow and see what happens...

 

In the mean time I opened a letter from Norwich County Court this morning. it was a 'Notice of Allocation to the Small Claims Track' It appears and I quote "District Judge Royall has considered the statements of the case and allocation questionnaires filed (err hang on I never completed one????) and allocated the claim to the small claims track. Before the claim is listed for hearing, the judge has ordered that a preliminary hearing should take place:- to consider whether the claim can be disposed of because the defendant has no real prospect of success at a final hearing.

 

It then carries on with times, dates (7th Aug, 14:00) and the usual gubbins.

 

I might as well include that extract in my nudge letter to D&G, it can't do any harm can it?

[chunkylinc]

Oh and yes pete I've checked both the letters D&G sent me and they both have without prejustice marked in bold at the top of the letter.... would it be wise to also mention this to D&G in my letter so they realise that I know they cannot use those letters in court or would than then give the game away just incase my contact keeps putting that on the top of all the letters she's gonna send to me.....??

[Castlebest]

Hiya Chunky, Include the Judges directions in your nudge and yes note that they sent both letters "without predjudice" so they are inadmissable as evedence.

 

should be a good nudge letter

 

pete

[chunkylinc]

Well I'm still waiting for a response from DG.... surprise surprise, I hope my letter didn't p*ss em off too much?! Couldn't help including Steve's rather tongue in cheek and excellent bit about overdraft interest...

 

copy below for those that are interested...

 

Dear xxxxx,

 

xxxxxxxx Vs. HSBC

Claim No: xxxxxxxx

Date Issued: xx/xx/2007

 

Thank you for your letter dated 07/07/2007. I respectfully decline your client’s offer of £2834.78

as I do not believe this to be fair and reasonable at all and I will be pressing the court for a judgment against HSBC.

 

I notice that both of your previous letters have been titled ‘Without Prejudice’ so contrary to your letter you will not be able to submit these as evidence in court.

 

I also make particular note of the paragraph relating to your ‘costs’ and will file for a ‘wasted costs’ order because of your procrastination in this matter, wasting my own as well as the courts valuable time.

 

In your letter you refer to section 5 of the Limitation Act 1980, this I believe should have no real impact on those charges which are over the 6 year period as HSBC has still concealed the fact that these charges are unlawful, and hence I bring your attention to the following extract…

 

s32 Postponement of

limitation

period in case of fraud, concealment or

mistake

(1)

Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either--

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has

been deliberately concealed from him by the defendant; or

© the action is for relief from the consequences of a

mistake;

439

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant’s agent and to any person through whom the

defendant claims and his agent.

 

With reference to Overdraft Interest, it appears that your client is still somewhat confused as to what I am claiming. Perhaps if I could break it down with the following example it may help?

 

Example 1

 

If I was overdrawn then I would expect to be charged interest on my overdrawn balance - for the purposes of this example I'll use a rate of 20%.

 

If I was £100 overdrawn then I would therefore expect to be charged £20 interest over the course of the year. This is

NOT

the interest I am claiming.

 

If, however, I had incurred a penalty charge of £30 for exceeding my overdraft limit for example, my balance then becomes £130 overdrawn. At the same rate of 20% interest, I then incur an interest charge of £26, £6 of which is purely down to the penalty charge that has been made to my account.

 

That £6 is the "Interest on penalties" you refer to that is shown on my Schedule of Claim for Charges. The "Interest on penalties" on that Schedule is

NOT

an attempt for me to charge your client on the money owed to me. It is purely me claiming back the additional interest I have already paid out as a direct result of the unfair charges.

 

I hope that example makes my claim a bit clearer for you and your client. Please bear in mind that the figures used in my ‘example 1’ were only for the purposes of the example and are in no way intended to reflect the figures used in my claim.

As previously explained, these interest calculations have been based on a legitimate formula, which has calculated only the proportion of interest charged that is attributable to those charges. My claim does not include any interest charged against the remainder of my overdraft balance and I am confident that this will be seen as reasonable when presented to a judge.

 

At this juncture I would like to draw your attention to the ‘Notice of Allocation to the small Claims Track’ and especially to the preliminary hearing which District Judge Royall has ordered. The reason for the hearing is ‘to consider whether the claim can be disposed of because the defendant has no real prospect of success at a final hearing’.

 

I’m sure both parties would like to conclude this matter prior to Wasting District Judge Royall’s time on the 7th, so please feel free to discuss this matter further by contacting me on xxxxx xxxxxx, as I have tried to contact you several times by telephone and have been unsuccessful.

 

Alternatively, were yo

u to agree to offer me £xxx for this claim I would then be able to accept your offer as full and final settlement only for this claim of bank charges made on my account between xx/xx/xxxx and xx/xx/xxxx and specifically for those charges included in this claim. I reserve the right to claim for any other charges not specifically itemised in this claim.

 

I would accept this offer without prejudice and I would reserve the right to make any further claims should you apply future charges that may be considered unlawful under common law or in violation of the Unfair Terms in Consumer Contracts Regulations 1999 or Unfair Contract Terms Act 1977.

 

I will be willing to withdraw my claim upon receipt of unconditional full settlement of my claim.

 

I am also not prepared to agree to any confidentially clauses you try to impose, unless of course your client wishes to make an offer of due consideration in addition to the amount of £xxx in order to be afforded this privilege by myself.

 

Yours Sincerely

[chunkylinc]

Ummm, I've just read through the General Form of Judgment form which came with my allocation to the small claims track and im wondering about a couple of points...

 

4. Not less than 14 days before the prelim hearing, the defendant shall file with the court and serve upon the claimant details of any cases proceeding as a test case, the decision in which will determine the issues in this claim. Alternatively, the defendant shall file with the court and serve upon the claimant draft directions for this case to proceed as a test date.

 

(I've not seen anything from DG yet?)

 

5. The claimant may make representations to the court in writing provided these are received by the court and served on the defendant not less than 5 days before the prelim hearing. If either party is prepared to abide by the decision of the judge as to the directions to be iven, that party is excused from attending the prelim hearing.

 

What does that mean? Do i have to do some sort of mini court pack and submit this? Is it better to attend?

[Castlebest]

Did you tell us you had had this ?

actualy from the bits you have typed it looks ok, type the rest though just to make sure and tell us when your court date is

 

Ummm, I've just read through the General Form of Judgment form which came with my allocation to the small claims track and im wondering about a couple of points...

 

What does 1 to 3 say ?

 

4. Not less than 14 days before the prelim hearing, the defendant shall file with the court and serve upon the claimant details of any cases proceeding as a test case, the decision in which will determine the issues in this claim. Alternatively, the defendant shall file with the court and serve upon the claimant draft directions for this case to proceed as a test date.

(I've not seen anything from DG yet?)

Well they can now, the new OFT test case

5. The claimant may make representations to the court in writing provided these are received by the court and served on the defendant not less than 5 days before the prelim hearing. If either party is prepared to abide by the decision of the judge as to the directions to be iven, that party is excused from attending the prelim hearing.

 

What does that mean? Do i have to do some sort of mini court pack and submit this? Is it better to attend?

 

not a clue without the full directions so type them

 

pete

[chunkylinc]

cant believe I missed it... Just thought it was page 2 of the notice of allocation....

 

The 5min prelim hearing is on 7th Aug...

 

Points 1,2 and 3 as follows..

 

Upon review of the court file it is ordered that:

 

1) The cliam be allocated to the small claims track

 

2) The claim be listed for further directions only at a prelim hearing

 

3) At this hearing the court will consider either:

a) to stay the claim pending the decision in a test case involving the defendant, or

b) to give directions for this claim to be heard as a test case, and if necessary to reallocate the claim to the multi track for that purpose.

 

Ummm that's not good is it?

[Castlebest]

Right thats good, DG should have filed the information with the court and you on the 24th July, they havent so they are ignoring the judge and judges dont like that

 

You need to write a letter to the court stating this so the judge has a copy at your preliminary hearing, something along the lines of the lettter in post number 331 of this thead

 

http://www.consumeractiongroup.co.uk/forum/hsbc-bank/92696-oh-audacity-dg.html

 

see my comments on post number 340

 

copy it to DG too

 

pete

[lateralus]

dust it off a little - we were playing with another paragraph as to why it shouldn't even be considered for a stay - because that is the banks playing with the court - read through from those posts 331-340

[chunkylinc]

Thanks (agen) guy's. I've read the thread and I'll get a letter off on monday.

 

Sorry for being thick, but I dont know/understand what the whole 'stay' thing means?

 

Also Auburngreeneyes was also putting together some sort of mini court pack, with copies of letters and postage details etc, should I also do this?

 

Also, in the letter some cases from Lincoln crown court were referred to and said they were attached to the letter? are these cases somewhere on this site? any Idea where I can locate them?

 

Ta Dan