HSBC Overdraft Court Claim - Help with defence and counterclaim

[tm166]

Hi

I received a court claim from a debt purchaser for the account I had with HSBC (current account). I had put the account into dispute in 2009 as I was treated unfairly by HSBC Bank and the balance was made up of charges and interest there on. I am in the process of drafting the defence and counter claim but need some help.

Have I drafted the following section correctly and what are my chances on this.

1. On 16-03-2009 and 18-03-2009 the defendant was sent a letter informing him that is direct debit for Egg credit card and Bradford & Bingley Home Insurance had been retuned unpaid. He was also told that
   
   “As this not the first time that we have returned an item we have cancelled this payment.”
   
   And that
   
   “Please contact the payee to make other arrangements to pay them in the future.”.
   
   
2. The defendant contacted HSBC Bank to see if the direct debits could be reinstated but HSBC Bank refused to reinstate the direct debits mandates.

Breach of Contract

1. HSBC Bank Plc in the test case OFT -v- Abbey National and Others (2008) went to great length to argue the fact that when a customer requests a informal overdraft that the customer is not in default or in breach. In the Amended Defence and Counterclaim the following was stated:
   
   Paragraph 37
   
   (2) That in connection with an informally requested overdraft (a) the customer has not at any material time committed and does not commit any breach of the HSBC and First Direct Relevant Terms and Conditions or any other terms and conditions, ….
   
   Paragraph 38
   
   (3) HSBC and First Direct expect, in the course of the normal operation of personal current accounts, to receive an informal request for overdraft and the bank operates system and facilities for handling such requests as an integral part of the personal current account service that it provides.
   
   (4) The informal request of an overdraft is not a beach of contract by the customer: it is, for example, expressly contemplated and permitted in the current HSBC Terms and conditions and in the First Direct Terms and Conditions that take effect on 1st October 2007 (HSBC Section 2 clause 7.3 …)
   
   
2. There is nothing within the terms and conditions that allowed HSBC Bank to cancel the direct debit mandate and then refuse to reinstate them. The terms and conditions only allowed them to return the direct debit unpaid and charge a return fee.
3. The letters sent to the defendant on the 16-03-2009 and 18-03-2009 contradict what is said above. It had lead the defendant to believe that he had done something wrong or was in breach of the terms and conditions. This had coursed the defendant considerable amount of distress and inconvenience. It had also coursed him some embarrassment as he had explain to Egg credit card and Bradford and Bingly Insurance why his direct debits had been canceled and to allow him to make payment by other methods.
4. As the Charges imposed by the Banks constituted part of the price or remuneration for the banking services provided and of which direct debits are an integral part. HSBC Bank had restrict and refuse to provide those services when they had received a significant price and continue to receive it.
5. The defendant contends that HSBC Bank Plc was in breach of their contractual obligations in providing the services as within the terms and conditions.
6. The defendant request damages for breach of contract, distress, inconvenience and embarrassment to be assessed by the court.

[tm166]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

Any help on this one

[leclerc]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

Why did it get to court stage?

Did you ever make a claim to the bank?

I need a bit more background to this one..

[nemesis45]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

I have one comment from just a brief read.

Although there is nothing in the T's & C's allowing for such cancellations there also appears
to be nothing to prevent such action.

nem

[tm166]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

leclerc thanks for your replay.

The account has been in dispute with HSBC Bank since 2009. The balance of the account was made up of charges and interest there on. Account was sold to debit purchaser in 2013 and they have now filed a claim.

I want to defend the claim and make a counterclaim and one ground is as stated in the first post.

I am a bit confused on what value to put on the damage and distress. If you leave the value for the court to decide then how do the court fees work.

[tm166]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

I have one comment from just a brief read.

Although there is nothing in the T's & C's allowing for such cancellations there also appears
to be nothing to prevent such action.

nem

Yes of course there is nothing to prevent them taking what action they like. You cannot force anyone into providing you a service, for example you can't force a builder into complete the job you have paid for. But what you can ask for is a refund or damage for the service not provided.

[stevemLS]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

To put my twopennorth in, I think you are conflating charges for unauthorised overdrafts/bounced payments with a fee for a service including direct debits.

I do not believe that is a valid link.

As nem has pointed out, there is equally no term obliging them to continue a DD.

They informed you that they had cancelled the arrangement so there was no need to incur any loss nor any embarrassment and so I believe that head of claim will fail.

The test case was about the fairness of charges in general, it doesn't really matter what was contained in the pleadings, it is the supreme court judgment that matters and I don't think it has any bearing on your case.

Even if I am wrong, the argument would be that the charge was payment for provision of service on that occasion and that there was no implication or element of the charge that related to the provision of the service (unauthorised overdraft) on a future occasion.

[tm166]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

stevemLS I am sorry but I disagree with you.

They had not cancelled the agreement, so was not in a position to cancel the direct debit with the reason given. And I am not alone in this thinking. Following was taken from the internet:

"Have you asked your bank where in their t&c's that they have the right to cancel
a d/d [in direct contradiction to your instructions] and that they have the right to refuse a new d/d mandate? Threaten them with OFT and see if they back down."

[Amethyst]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

Difficulty is that HSBC refusing to set up a replacement Direct Debit on your account will actually have helped reduce the amount of charges added to your account, as they were preventing you incurring more charges from repeatedly bouncing DD's.

When you had the row with HSBC about your Egg and other DD you ditched the account leaving it in overdraft and went to another bank, and the charges have continued to ramp up since then ?

You could have an argument that they knew you were in financial difficulty yet continued to charge you, but otherwise the stopping of the DD's will be viewed as a responsible preventative measure to stop you being charged more and more I think.

[tm166]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

Well I am sticking with this defence and counterclaim and it is for the judge to make a decision. As this is one part of my defence and counterclaim, I have nothing to lose by having it in and as this will be in the small claims court, costs will be limited.

[Amethyst]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

Ahh so that's only a small part of your defence. What is the main part of your defence ?

[Amethyst]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

stevemLS I am sorry but I disagree with you.

They had not cancelled the agreement, so was not in a position to cancel the direct debit with the reason given. And I am not alone in this thinking. Following was taken from the internet:

"Have you asked your bank where in their t&c's that they have the right to cancel
a d/d [in direct contradiction to your instructions] and that they have the right to refuse a new d/d mandate? Threaten them with OFT and see if they back down."

Think that is a bit out of date as the OFT haven't existed since 1st April 2014. It might help if you give a link to give a bit of context around the sentence you've posted.

[EXC]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

stevemLS I am sorry but I disagree with you.

They had not cancelled the agreement, so was not in a position to cancel the direct debit with the reason given. And I am not alone in this thinking. Following was taken from the internet:

"Have you asked your bank where in their t&c's that they have the right to cancel
a d/d [in direct contradiction to your instructions] and that they have the right to refuse a new d/d mandate? Threaten them with OFT and see if they back down."

Here?

http://www.consumeractiongroup.co.uk...ll=1#post42028

[stevemLS]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

Well I am sticking with this defence and counterclaim and it is for the judge to make a decision. As this is one part of my defence and counterclaim, I have nothing to lose by having it in and as this will be in the small claims court, costs will be limited.

You are, of course, perfectly entitled to disagree with me or anyone else - you asked for advice and opinions and you are free to accept or reject as you choose.

[Amethyst]

Re: HSBC Overdraft Court Claim - Help with defence and counterclaim

Think that is a bit out of date as the OFT haven't existed since 1st April 2014. It might help if you give a link to give a bit of context around the sentence you've posted.

ahh google... http://www.consumeractiongroup.co.uk...celled-by-bank ???? ( nb that is from 2006 and things were very different then)

Here?

http://www.consumeractiongroup.co.uk...ll=1#post42028

lol, I'm ten paces behind you