Court claim for overdraft

[pawlik]

Re: Court claim for overdraft

I would leave out the DN because it's an O/D, however, the bank should have sent you a final demand. There would be no certified copies or any details of service since all those letters are just sent by ordinary post and not by recorded delivery or using couriers or process servers; the bank wouldn't have obtained proof of postage.


You have already referred to the NoA under item 6.

Flaming Parrot. Thanks for your input. This has been quite hard as I broke my arm today . I have added a few extra lines in my defence and would be grateful for your feedback.

On a separate note since making a complaint to HSBC via FSA regarding the charges the closed record of the old HSBC account has been removed from Noddle???? Luckily I have the paperwork from the SAR

CASE SUMMARY- Defence

1. I am the Defendant in this case and Litigant in Person.

2. On 20/07/2015 the Claimant submitted a claim to Northampton County Court stating their particulars of claim.

3. The claim was acknowledged on 24/07/2015 using the MCOL website.

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

5. This claim is for a debt resulting from a Current Account agreement with HSBC Bank Plc

6. The Defendant also contends that terms of the agreement between him/her and HSBC Bank Plc were unfair pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.

7. It is admitted that the Defendant held a Current Account with HSBC Bank from 2004

8. The Current Account had an overdraft limit of XXXX

9. The Defendant suffered from a period of financial hardship from December 2010 until April 2013 due to redundancy. A debt charity contacted HSBC on behalf of the defendant to freeze interest and charges and accept lower payments during this time. This correspondence was ignored by HSBC. As a result interest and bank charges accrued and sent the account over the agreed Overdraft Limit. HSBC Bank had applied over £XXX in bank charges and interest to the Defendants account during this time before closing the account.

10. The Claimants statement of case states that the account was assigned from HSBC to Marlin on XXXXX 2014. The Defendant does not recall receiving notice of this assignment.

11. In order to obtain more information the defendant made a Subject Access request from HSBC. The original creditor were unable to provide copies of the contract/agreement referred to by the Claimant in the POC. Shall I put this here???

11. On 27/7/2015 I sent a request for further information mentioned in the claimants Particular of claims under Civil Procedure Rule 18 to Restons. I requested the Claimant provide copies of the Contract/Agreement, Deed of Assignment, Notice of Assignment, Default warning letter and Default Notice using recorded delivery.


12. Restons has not provided the documents requested in the CPR 18 letter


13. On 03/08/2015 I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Restons using recorded delivery.

14. Restons has not sent any of the documents requested in CPR 31.14 letter

15. I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5) using recorded delivery, but they have declined to respond.

16. It is denied that Termination notice was received from HSBC. The claimant should provide a copy of the Default Notice as the original creditor has been unable to supply a copy.

17. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore it is expected that the Claimant be required to prove the allegation that the money is owed as claimed. Should this still be here as I admit the debt??

18. At this stage without documentation I am unable to plead fully to the claim. I request the court orders the Claimants, to provide the necessary documentation in order to fully plead my case, else the claim should be struck out.


19. In the event that the relevant documents are received from the Claimants the Defendant will then be in a position to amend her defence, and would ask that the Claimants bear the costs of the amendment.




Statement of Truth

Dated

Signed

[FlamingParrot]

Re: Court claim for overdraft

11. It is denied that default notice/Termination notice was received from HSBC. The claimant should provide a copy of the Default Notice and Certified Copies of how this was served upon the Defendant as the original creditor has been unable to supply a copy.

I would leave out the DN because it's an O/D, however, the bank should have sent you a final demand. There would be no certified copies or any details of service since all those letters are just sent by ordinary post and not by recorded delivery or using couriers or process servers; the bank wouldn't have obtained proof of postage.

12. A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was served upon the Defendant as the original creditor have denied sending this information.

You have already referred to the NoA under item 6.

[FlamingParrot]

Re: Court claim for overdraft

Have you looked into disputing the amount owed as made up of bank charges ? Possibly have a look into Foster Burnell v Lloyds and include a paragraph about how the terms that allowed the bank to keep charging you when you were in financial difficulty and ramp up the debt until they chose to close your account were unfair under UTCCR ?

This is the case in question: http://www.legalbeagles.info/judgmen...August2014.pdf

I have recently made a complaint to the original creditor and FSA regarding the charges. Is it worth mentioning the charges in my defence?
The defence is due on the 18th. Do I need to send a copy of the letters to the court from Reston's by post? Or the OC confirming that they did not send NOA?

Hi Guys is it ok so far? Should I mention the interest/charges that took this account over the agreed overdraft limit and if so where in the defence?

This could give you an idea, see if any of it applies: http://www.legalbeagles.info/forums/...908#post500908

I have found myself the notice of assignment from the OC is not relevant

In my case i always received that notice of assignment and a welcome letter from a debt collection agency in the same envelope. All that is required is that you have been officially notified of the assignment. That is either by the OC or DCA and acknowledged in some way. That can be by a letter of phone call

Wait for more replies though

The NoA has to be in writing and does not need to be acknowledged by the debtor. In some cases you may receive a 'good-bye' letter from the OC and a 'hello' from the new owner, sometimes only the letter from the new owner saying they've bought the debt.

Do I need to send copies of the correspondence from myself, Restons and proof of postage to the court?

At this stage you only need to submit the body of the defence online, either on MCOL or by email if MCOL doesn't work. If the claim progresses, you'd present your evidence with a witness statement at a later stage so keep it all together in a safe place.

[nemesis45]

Re: Court claim for overdraft

Hi Guys is it ok so far? Should I mention the interest/charges that took this account over the agreed overdraft limit and if so where in the defence?

Do I need to send copies of the correspondence from myself, Restons and proof of postage to the court?

CASE SUMMARY- Defence

1. I am the Defendant in this case and Litigant in Person.

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

3. The Claim is a Bank account with an overdraft

4. On XXXXX the Claimant submitted a claim to Northampton County Court stating their particulars of claim.

5. The claim was** acknowledged ** on XXXXX using the MCOL website.

6. The Claimants statement of case states that the account was assigned from HSBC to Cabot on April 2014. The Defendant does not recall receiving notice of this assignment. ** NO bold or highlighted characters/text.

7. On XXXX I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Restons. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment using recorded delivery.

8. Restons has not sent any of the documents requested in CPR 31.14 letter

9. I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5) using recorded delivery, but they have declined to respond.


10. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.


11. It is denied that default notice/Termination notice was received from HSBC. The claimant should provide a copy of the Default Notice and Certified Copies of how this was served upon the Defendant as the original creditor has been unable to supply a copy.


12. A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was served upon the Defendant as the original creditor have denied sending this information.


11. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed..

Statement of Truth

Dated

Signed

Put para 10 after all the non compliance paras, and renumber.
Don't use bold or highlighted text.

nem

[pawlik]

Re: Court claim for overdraft

Hi Guys is it ok so far? Should I mention the interest/charges that took this account over the agreed overdraft limit and if so where in the defence?

Do I need to send copies of the correspondence from myself, Restons and proof of postage to the court?

CASE SUMMARY- Defence

1. I am the Defendant in this case and Litigant in Person.

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

3. The Claim is a Bank account with an overdraft

4. On XXXXX the Claimant submitted a claim to Northampton County Court stating their particulars of claim.

5. The claim was acknowledgement on XXXXX using the MCOL website.

6. The Claimants statement of case states that the account was assigned from HSBC to Cabot on April 2014. The Defendant does not recall receiving notice of this assignment.

7. On XXXX I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Restons. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment using recorded delivery.

8. Restons has not sent any of the documents requested in CPR 31.14 letter

9. I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5) using recorded delivery, but they have declined to respond.


10. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.


11. It is denied that default notice/Termination notice was received from HSBC. The claimant should provide a copy of the Default Notice and Certified Copies of how this was served upon the Defendant as the original creditor has been unable to supply a copy.


12. A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was served upon the Defendant as the original creditor have denied sending this information.


11. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed..

Statement of Truth

Dated

Signed

[FlamingParrot]

Re: Court claim for overdraft

If they cannot provide a copy of the default notice then they have problems. That needs to go into your defence. A Default notice served under 87(1) CCA 1974 will be needed containing all the statutory terms giving you the chance to rectify that default within 14 days. The OC cannot terminate and sell to a DCA without this statutory requirement

They might get away with it if their computer records show one was issued though

Overdrafts are a little different though, there was a recent discussion regarding DNs and O/Ds on this thread: http://www.legalbeagles.info/forums/...756#post566756

[judgemental24]

Re: Court claim for overdraft

If they cannot provide a copy of the default notice then they have problems. That needs to go into your defence. A Default notice served under 87(1) CCA 1974 will be needed containing all the statutory terms giving you the chance to rectify that default within 14 days. The OC cannot terminate and sell to a DCA without this statutory requirement

They might get away with it if their computer records show one was issued though

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

(c) to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

[nemesis45]

Re: Court claim for overdraft

From what I read above, they didn't argue about small claims, just that pawlik would have been provided with contractual terms, it was actually me who mentioned that they most often argue that Part 31 of the CPR does not apply to small claims. Perhaps pawlik would want to clarify whether they mentioned that fact on their letter. :mmph:

Very odd??

[pawlik]

Re: Court claim for overdraft

I have found myself the notice of assignment from the OC is not relevant

In my case i always received that notice of assignment and a welcome letter from a debt collection agency in the same envelope. All that is required is that you have been officially notified of the assignment. That is either by the OC or DCA and acknowledged in some way. That can be by a letter of phone call

Wait for more replies though

What about default notice? OC cannot provide a copy.

[judgemental24]

Re: Court claim for overdraft

I have found myself the notice of assignment from the OC is not relevant

In my case i always received that notice of assignment and a welcome letter from a debt collection agency in the same envelope. All that is required is that you have been officially notified of the assignment. That is either by the OC or DCA and acknowledged in some way. That can be by a letter of phone call

Wait for more replies though

[pawlik]

Re: Court claim for overdraft

Have you looked into disputing the amount owed as made up of bank charges ? Possibly have a look into Foster Burnell v Lloyds and include a paragraph about how the terms that allowed the bank to keep charging you when you were in financial difficulty and ramp up the debt until they chose to close your account were unfair under UTCCR ?

I have recently made a complaint to the original creditor and FSA regarding the charges. Is it worth mentioning the charges in my defence?
The defence is due on the 18th. Do I need to send a copy of the letters to the court from Reston's by post? Or the OC confirming that they did not send NOA?

[Amethyst]

Re: Court claim for overdraft

Have you looked into disputing the amount owed as made up of bank charges ? Possibly have a look into Foster Burnell v Lloyds and include a paragraph about how the terms that allowed the bank to keep charging you when you were in financial difficulty and ramp up the debt until they chose to close your account were unfair under UTCCR ?

[judgemental24]

Re: Court claim for overdraft

Just sticking my nose in on this one and any one give a definitive answer

I was under the impression overdrafts are classed as a running credit account. As such they will be covered under Section 10 CCA 1974

Even with a part five exemption from the act the bank customer has to be given a notice of contractual terms such as amount of credit, APR and cancellation rights

http://www.bailii.org/ew/cases/EWCA/Civ/2005/473.html

[pawlik]

Re: Court claim for overdraft

Hi Guys, Apologies but I am crap at this. :tinysmile_cry_t: This is what I have managed to write for my defence can you please provide me with some guidance.

CASE SUMMARY- Defence

1. I am the Defendant in this case and Litigant in Person.

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

3. The Claim is a Bank account with an overdraft

4. On XXXXX the Claimant submitted a claim to Northampton County Court stating their particulars of claim.

5. The claim was acknowledgement on XXXXX using the MCOL website.

6. The Claimants statement of case states that the account was assigned from HSBC to Cabot on April 2014. The Defendant does not recall receiving notice of this assignment. The Original creditor confirmed that they did not issue a Notice of Assignment.

7. On XXXX I sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Restons. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment using recorded delivery.

6. Restons has not sent any of the documents requested in CPR 31.14 letter

7. I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5) using recorded delivery, but they have declined to respond.


8. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.


9. It is denied that default notice/Termination notice was received from HSBC. A copy of the Default Notice and Certified Copies of how this was served upon the Defendant.


10. A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was served upon the Defendant as the original creditor have denied sending this information.



11. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed..

Statement of Truth

Dated

Signed

[FlamingParrot]

Re: Court claim for overdraft

Hello

I still have not had a response from the 2nd letter under CPR 31.14 requesting documents.

I am going to start writing my defence over the weekend and wanted to know if I should put historical information from the original creditor? Basically I was in financial difficulty as i was made redundant and a debt charity asked for interest and bank charges to be frozen. HSBC ignored this correspondence and charges/interest took the account over the agreed overdraft limit and account was then sold to a debt collector.

You may want to look at this post and see if anything could apply to you: http://www.legalbeagles.info/forums/...908#post500908