mortimer clarke and HSBC

[gunslinger757]

I’m wondering if anyone could offer me any advice. I had my own firm 2000 – 2004, we were going along nicely until a customer defaulted on a payment of £35 000. We struggled on for a bit until we were forced to close. This left us with lots of debts, car repossesed etc. fast forward to 2008 where I lost my job in the construction industry due to the recession. In 2009 my wife was diagnosed with AS, a form of psioratic arthritis and has been forced to work part time. I’ve managed to sort most of the debt out, however a company called marlin have been pestering me for the last few months for a debt they say came from our bank, HSBC when we had the business.

I don’t have any paper work stretching that far back as it was taken by the liquididators sorting out our affairs. The debt I suspect is our agreed overdraft(300 at the time i think) and various charges for bounced DD and cheques. The account was in joint names and now we have both received a cc summons through Northampton bulk clearing centre from someone called phoenix recoveries through Mortimer Clarke solicitors. The debt is listed as the following The amount claim is £1257.63, court fee £65. solicitors cost £80.00 total £1402.

The actual summons states they’re claiming 867.12 and interest to sec 69 0f the cc act 1984, namely 390.51 and continuing until judgement or sooner at the rate of 0.19.

I earn £53.00 a week carers allowance while my wife works part time and gets around £150 per week plus mobility benefit and some tax credits. We have never really recovered financially from the collapse of the business, plus the ups and downs of the uk building industry over the last couple of years hasn’t helped.

We probably owe some of the money but I’m not sure as it was a pretty traumatic time and we literally lost everything. Any advice would be greatly appreciated as to what to do next.

[shamen]

Re: mortimer clarke and HSBC

Sorry to hear about the business My wife also has psioratic arthritis, not pleasant especially when cold.

Normally for a debt from so long ago they cannot force you to pay it, its called statute barred and that means that after 6 years of not talking to a creditor or paying a creditor regarding a certain debt, they cannot do anything about it - not even court. What they do have is a 'get out' clause which means if they can pressure you into making a token payment or even get you acknowledging the debt that 6 years clock starts over (though as i understand it, once the 6 years has finsihed, you could wave a placard infront of their building saying 'the debt is mine' and they cant start the clock again - perhaps someone can clarify?)

As these guys are taking you to court (issued) and you are pretty adamant the debt is from 2004, then unless you have admitted the debt is yours or made a payment, or the last acknowledgement/payment of any debt happened after august 2004 then they dont have much to go on.

Please can you clarify;
- Were you a limited liability partnership?
- Have you or your wife at any time admitted to the collections people the debt is yours
- When the last payment to the account in question was made (eg, was it before august 2004 or after?)

As this debt could be statute barred (before august 2004) or not (after august 2004) it seems the collectors have either
-got you to acknowledge a nearly statute barred debt and are now taking you to court as they have more time.
-or- are taking you to court for a statute barred debt (which would be rather silly on their part)
-or- are taking you to court right before the debt gets statute barred.

There could be other options i just dont know from the info given in your post.

Also as this has gone to court this actually gives you better insight into what the game is. You should issue on CPR 31.14, which basicly makes the other side who are taking you to court show you everything they have in their hands - documentation, the lot. They have 7 days to get you the information and it costs you nothing (other than the special delivery letter). You then have all of the cards they intend to use in court, containing dates, accounts, payments, times, etc etc.

See curlybens excellent post for the cpr 31.14 letter to send the people taking you to court. Special delivery is important as time is key here.

http://www.legalbeagles.info/forums/...5&postcount=11

Im sure the more senior beagles will have questions for you too

[B3rty]

Re: mortimer clarke and HSBC

Pheonix are based in Luxenbourg and use Marlin who's legal entity is called Mortimer Clarke.

My dealings with them which was similar to yours was due to a failed business loan-overdraft-credit cards all rolled into one and over £20k

For the legal side they have to have a registered solicitor and his name is Richard Mathias, but he's not part of the business decisions other than a signature font most of their work is automated letters and a paralegal.

There was a documentary last year by Dispatches when someone went undercover for a month and exposed that Mortimer Clarke is a desk at the top of the office where the agents sit from time to time and pretend to be phoning from a solicitors office.

Their POCs are poor,they add on their own charges and use Northampton for default judgements.....they don't like it when challenged and will probably misquote Ranking, Carey uncle Tom Cobbley and all but they are easily questioned on many counts however its important that you get the time line correct in order not to get a default judgement so...

#Log onto MCOL and acknowledge the claim on and ask for 14days extension to defend
#Phone the court and find the last date for the defence so this is clear
#Sent the CPR 31.14 letter or simular to Mortimer Clarke/Pheonix
#Put in a holding defence either upload if under 8000 characters or fax it the day before due.
#Call the court to make sure its received
#Keep this forum posted of the correspondence

Berty

[gunslinger757]

Re: mortimer clarke and HSBC

the account was closed around september/oct 2004, so the statue of limitations is just about up. it looks like they are taking me to court just before the deadline. they aint got a chance of getting anything because i haven't got anything to give them.

i have copied the letter and will post it recorded first thing monday morning. the business was in joint names with the liabilty of £1 each. however I had to sign a personal guarentee on our business account to get our overdraft of £25 000. They've tried to get that back and given up. This debt I believe is from our joint personal account. I have never admitted liability for it, nor made any payment towards it. the address for corrospondence on the court doc is MC, so i assume I send any letters appertaining to the case to that address.

thanks for all the feedback so far, you've all been really helpful.

[shamen]

Re: mortimer clarke and HSBC

Did you get the 34.14 request sent off? Be interested to see dates etc on what they send back.

[TomThumb]

Re: mortimer clarke and HSBC

Just to confirm the first reply you had, its correct. Once the 6 year period has been reached it can NEVER be unbarred by acknowledging the debt. They can ask for money but not proceed to court.

From the sound of it this debt will be stat barred by the time it reached full court, I'm not sure if that has any bearing or whether as action has started the stat barred is ignored?

S.
------------------------------- merged -------------------------------

the account was closed around september/oct 2004, so the statue of limitations is just about up. it looks like they are taking me to court just before the deadline. they aint got a chance of getting anything because i haven't got anything to give them.

i have copied the letter and will post it recorded first thing monday morning. the business was in joint names with the liabilty of £1 each. however I had to sign a personal guarentee on our business account to get our overdraft of £25 000. They've tried to get that back and given up. This debt I believe is from our joint personal account. I have never admitted liability for it, nor made any payment towards it. the address for corrospondence on the court doc is MC, so i assume I send any letters appertaining to the case to that address.

thanks for all the feedback so far, you've all been really helpful.

Be aware that if... when ready...... you file any defence with the solicitors it may get "lost" on way to the court. Personally I'd always reply to the court and copy in the opposing solicitors, we wouldnt want any mishaps that give them a default judgement now would we.

S.

[gunslinger757]

Re: mortimer clarke and HSBC

i sent off 34.14 request as advised, one for me and one for my wife, registered post and both were signed for on thursday and i faxed the acknowlegment of service off today as i beleive the 14 days is up on monday. so i'll just see what Mc send back and keep you informed. thanks for the replies so far chaps and chapess's.

[gunslinger757]

Re: mortimer clarke and HSBC

i recieved a reply today from mort clarke.

"we refer to the above matter and further to your letter recieved 18th aug.
we have noted your comments and con confirm we don't hold copies of all the documentation you have requested and therefore we will be unable to provide it.

in reference to your request for a copy of your agreement, we can confirm that your account originated from a current ac with HSBC. the account is not a regulated agreement because it provides no credit. the overdraft agreement provides the credit and this sits separatley from the current account agreeement.

The consequence of this is there is no executed agreeement for a current account overdraft and so section 78( the right to demand a copy of the executed agreement) does not apply.

please be advised that if you want to respond to our clients claim, you should use the response pack provided by the court.

yours faithfully

blah blah"

so what i can gather is either a) the don't have any paperwork on me, or b) they're saying that they won't give it to me. i don't have any paper work on this, due to the fact it was so long ago and being taken by the firm of liquidators. so how can i mount a defence? any further help would be greatly appreciated

[shamen]

Re: mortimer clarke and HSBC

Did you send the CCA s78 request or did you sent the CPR 34.14 request? It looks like they have given you a standard CCA 78 response. They are two different things. CCA s78 gives a creditor the right to see the documentation which says they are liable for credit

CPR 31.14 gives any person being taken to court the right to see the documentation the other side will use in order for you to prepare a defense. Did you follow Bertys steps?

#Log onto MCOL and acknowledge the claim on and ask for 14days extension to defend
#Phone the court and find the last date for the defence so this is clear
#Sent the CPR 31.14 letter or simular to Mortimer Clarke/Pheonix
#Put in a holding defence either upload if under 8000 characters or fax it the day before due.
#Call the court to make sure its received
#Keep this forum posted of the correspondence

If the prosecution is denying you your right to examine evidence to prepare a defense under CPR 34.14 you should notify the court. Re-send the CPR 34.14 letter (dated when the original was) along with a cover letter explaining that you are not performing a CCA request but a CPA 34.14 request and failure to comply will be brought to the attention of the court. Its possible they will do the same thing again, however this should then go in your favor. It also shows the court you attempted rationally several times to obtain details to prepare your defense but were denied by the prosecution.

Basically if you sent of a CPR 31.14 request and they said they dont need to give you anything (or mis read it and expected it to be a CCA request) then they are going to look like muppets in court. If you do not have the documentation of the prosecution then you can not file an adequate defense and they are disadvantaging you not to mention breaking the law - something which will go heavily in your favor in court.

Its also funny they say they dont have documents. On the forms you received from the court, who is the other party, the ones taking you to court? Is it Mortimer Clarke?

[gunslinger757]

Re: mortimer clarke and HSBC

this is the letter i sent them, from the link you gave.

" Originally Posted by Information Disclosure letter
REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES.

Dear Sir/Madam,

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the account to be provided forthwith. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. This letter supersedes the Data Protection request made to on the **DATE**. The information must be furnished by the **DATE**, which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.
2. All records you hold on me relevant to this case, including but not limited to:
a. A transcript of all transactions, including charges, fees, interest, repayments and payments and both the original amount of the loan and any repayments made to it the account.
b. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations
c. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with **CREDITOR**.
d. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.
e. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).
f. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.
g. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.
h. A genuine copy of any deed of assignment, or proof that you have a legal right to this money.
i. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998
j. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

3. Any other documents you seek to rely on in court.
4. A copy of your complaints procedure, as required by the Consumer Credit Act 2006.
5. Clarification of the date you acquired the debt, what organisation you acquired it from, their registered office, their company number (if any) and what legal title they had to this debt, and what credit license number they had at the time that the debt was purchased or entered into.

I will require this information within the next ten days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

I would appreciate your due diligence in this matter.

I await your rapid response.

Yours Faithfully,"

and the reply i posted earlier is the letter i recieved back. I filled in the ackowledement of service and faxed them both on friday as the last day for acknowlegement was yesterday. the party taking me to court is phoenix, but it says on the form, adress for all correspondence, mortimor clark, 3rd floor grafon road, west sussex. phoenix address is luxembourg.

[shamen]

Re: mortimer clarke and HSBC

Did you do these bits?

#Log onto MCOL and acknowledge the claim on and ask for 14days extension to defend
#Phone the court and find the last date for the defence so this is clear

Also it looks like they have shot themselves in the foot a bit. Basicly its time for you to have the court work for you - namely making an order that if they do not provide the documentation within 14 days, the case is dismissed. I can kind of see what they are doing - basically they are saying to the court 'all documentation and correspondence to us' but saying to you 'talk to the guys in luxembourg'

This is a good thread on the subject at CAG but ill pearoast the particulars here with a bit of modification http://www.consumeractiongroup.co.uk...ead.php?246431

A Defendant faced with a Claimant who declines to deal with his CPR 31.14 obligations promptly (ie within 7 days of the request) may file an application with the court in Form N244 for an appropriate order.


In box [3] of the N244 write:

'An order that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, which include [1] the agreement [2] the default notice and [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and the documents are required owing to [here add any special feature or requirement of the case] and to enable the proper preparation of a Defence.'

In Box 4 write: 'Yes'
In Box 5 write: 'Without a hearing'
Ignore Box 6
In Box 7 write: 'None'
In Box 8 write: 'District Judge'
In Box 9 write: 'Claimant'
In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write:

'On (date), following service of the Claim Form in this case, I wrote to the documentation and correspondence address of the Claimant specified on the Claim Form in this case, requesting inspection of documents mentioned in the Particulars of Claim pursuant to CPR 31.14. A copy of my letter of request is attached to this application notice marked 'A'.

The Claimant replied by letter dated (date) rejecting my request on the ground it had no obligation to comply. A copy of this reply is attached to this application notice marked 'B'.

The agreement relied upon by the Claimant is now very old. The documents sought by my request are essential for the proper preparation of my defence and the determination of the claim and CPR 31.14 afford me a right to inspect those documents.']

Sign the statement, attach the copies and complete the remainder of the N244 in the usual way applicable to your case.

On a separate piece of paper to be attached to your application notice, write this:

Claim No:
Draft Order

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request for example, [1] the agreement [2] the default notice and [3] the assignment,]
the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and
[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

[i]2 In the event that the Claimant shall comply with this order,
[i] the Defendant shall file and serve a Defence by 4:00pm on (date) and
[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]


----

The fee payable to the court on filing this application is presently £75.00.

[shamen]

Re: mortimer clarke and HSBC

Sorry, im assuming they actually mentioned documents in their particulars of claim on the claim form you got? Would also help if you could scan it and upload (removing personal details of course)

[gunslinger757]

Re: mortimer clarke and HSBC

no i transcribed the letter directly as it was written, there's no mention of document except with reference to a copy of the agreement. surely they can't just bool up to court, with a "he owes me 998 quid guv" defence?

[shamen]

Re: mortimer clarke and HSBC

No they cant. They have to go in with documentation. If its an overdraft then CCA doesnt apply, but they must have supporting documentation.

So on the original claim form (not their response to you, the one you got from the court) they are not showing any documentation at all? under 'particulars of claim' or anywhere? just 'he owes us this much' ?? Able to scan it up?

[gunslinger757]

Re: mortimer clarke and HSBC

No they cant. They have to go in with documentation. If its an overdraft then CCA doesnt apply, but they must have supporting documentation.

So on the original claim form (not their response to you, the one you got from the court) they are not showing any documentation at all? under 'particulars of claim' or anywhere? just 'he owes us this much' ?? Able to scan it up?

i'll try and get it scanned in.