Advice on defence for old HSBC overdraft - now with MKDP LLP

[safferguy]

Hi All,

In short received a court summonses for an very old HSBC overdraft.

Particulars of Claim reads as follow:
The claimant claims the sum of £1207.13 being monies due from the defendant to HSBC Bank PLC under a bank account facility regulated by the Consumer Credit act and assigned to the claimant on xx/xx/201. The Defendants account number was xxxxxxxxxxx. It was a term of the bank account that any debit balance would be repayable in full on demand. The defendant failed to make payment as required by the statutory default notice served by HSBC Bank Plc. The claimant claims the sum of £1207.13 and costs. The claimant has complied as far as necessary with the pre-action conduct practise direction.

Sofar I have send a CPR request (below) with no response.


Dear Sir or Madam,

Re: MKDP LLP v XXX XXX Case No: XXXXXX

CPR 31.14 Request

On 17 October 2013 I received the Claim Form in this case issued by you out of the Northampton county court

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest and counter claim all of your claim.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1: The agreement/ overdraft Facility confirmation and Terms and Conditions from that date. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2: The Demand/Termination Notice (Notice served under Sections 76(1) and 98(1) of the CCA1974

3: Notices of Sums in Arrears under running account credit CCA2006 sec 86C

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence as required under CPR15.5.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully

xxx xxx

I now need to file my defence. and would realy appreciate some input as I have no idea how to approach my defence. I am busy putting a defence togeteher by using bits from other defences on thsi forum. I will post once completed, but just wondering if anybody knows of a good example . template I can look at / use? My defence needs to be in by the end of the week so any help would be greatly appreciated!

Appreciaet any help!

[safferguy]

Re: Advice on defence for old HSBC overdraft - now with MKDP LLP

Hi All,

I would realy appreciate any help here.. I am running out of time fast and would appreciate any help!I have to respond by Friday.

I have researched as much as I can and am really getting baffeled. Below is my defence that I have pulled together. I dont have any original documents to go on so am struggeling with a defence. I have send a CPR 31.14 request (see above) with no response. I know that oveerdrafts is not covered by a section 77/78 request so has not bothered.

This is my defence.. any help is appreciated!

Particulars of Claim reads as follow:

1)The claimant claims the sum of £1207.13 being monies due from the defendant to HSBC Bank PLC under a bank account facility regulated by the Consumer Credit act and assigned to the claimant on xx/xx/201. The Defendants account number was xxxxxxxxxxx. It was a term of the bank account that any debit balance would be repayable in full on demand.
2) The defendant failed to make payment as required by the statutory default notice served by HSBC Bank Plc.
3) The claimant claims the sum of £1207.13 and costs. The claimant has complied as far as necessary with the pre-action conduct practise direction.

***Defence***

1. Paragraph 1 is neither admitted nor denied with regards to the Defendant entering in to an agreement referred to in the Particulars of Claim ('the Agreement') with HSBC Bank PLC. The Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement with the Claimant; and
(b) show how the Defendant has reached the amount claimed for; and
(c) show how the Claimant has the legal right, either under statute or equity to issue a claim;


2. Paragraph 2 is denied with regards to the Defendant defaulting on payments and the Claimant is put to strict proof to evidence this breach.

3. It is denied with regards to the Defendant owing any monies to or that the claimant/original creditor served a valid Notice of Assignment the Claimant and the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement with the Claimant; and
(b) show how the Defendant has reached the amount claimed for; and
(c) show how the Claimant has the legal right, either under statute or equity to issue a claim;

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

5. On the alternative, if the Claimant is an assignee of a debt, 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.

6. On receipt of the claim form the Defendant sent a CPR 31.14 request dated xxxxxxx for a copy of the credit agreement, default notice, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim. This was signed for by the claimant on xxxxxxx. The claimant has yet to comply.

7. Further, by reason of the fact that there is no document which has been signed by the Defendant containing a correct statement of the amount of the credit under the Agreement, and by reason of Section 127(3) of the Act, the Court has no power to make an enforcement order in respect of the Agreement because a term stating the amount of the credit is a prescribed term for the purposes of Sections 61(1)(a) and 127(3), prescribed by the Consumer Credit (Agreements) Regulations 1983, regulation 6(1) and paragraph 2 of Schedule 6.

8. 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.

[Amethyst]

Re: Advice on defence for old HSBC overdraft - now with MKDP LLP

Hiya

Okay. You have had a county court claim for an old overdraft that's been defaulted. What is your defence ? (forget the template defence and legal stuff for the minute - what is the reason you are defending as opposed to making an offer to pay ? just as you don't have documents ? do you have old statements / have you asked for statement of account etc etc etc )

Then we can go from there.

Sharon
xx