Court claim for overdraft

[nemesis45]

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.



1. I am the defendant of this case.
2. HSBC account was in dispute due to continued interest and charges despite being made aware of financial hardship
3 I received correspondence from Cabot that they have purchased account from HSBC
4. I did a Subject Access Request under Data Protection Act 1998 with £10 fee from HSBC. Copy of contract and Letter of default notice could not be provided.
5. Received a county court claim form which was acknowledged
6. CPR 31.14 request sent using recorded delivery. Restons have not to provide the requested documents for me to be able to defend

1. Non compliance with parts of a SAR will not help your defence.

Terry make it easier for yourself take a look at some other threads with defences it will give you a far better idea of wording and format.

Make a draft defence and post it here then someone can go through it with you.

nem

[pawlik]

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.



1. I am the defendant of this case.
2. HSBC account was in dispute due to continued interest and charges despite being made aware of financial hardship
3 I received correspondence from Cabot that they have purchased account from HSBC
4. I did a Subject Access Request under Data Protection Act 1998 with £10 fee from HSBC. Copy of contract and Letter of default notice could not be provided.
5. Received a county court claim form which was acknowledged
6. CPR 31.14 request sent using recorded delivery. Restons have not to provide the requested documents for me to be able to defend

[FlamingParrot]

Re: Court claim for overdraft

Thanks for the reply Flaming Parrot. I will post letter requesting copies of all documents in the Particular of Claim tomorrow. 

I need to start working on my defence now. Is there any guidance or template letters that can be used? 

There are example defences based around not having supplied you with any documents here: http://www.legalbeagles.info/forums/...t-Court-Claims

They need amending to suit your circumstances, i.e. for an overdraft you'd leave out the bits about sending a CCA request. Do post up when you start adapting it. :typing:

[pawlik]

Re: Court claim for overdraft

This is correct, when claims are issued electronically through MCOL there is no requirement to attach documents, however, we are not arguing about them not being attached, that's why you asked for them.

This is where they are wrong, their quote of rule 31.14 (which I made blue), is word for word, however, their interpretation (in purple), has nothing to do with the wording of the rule. You have the right to inspect a document mentioned in a statement of case, full stop. Note how the rule doesn't say anything about whether you were provided with a copy when the account was opened.
There is absolutely no mention of potential allocation to small claims so if I was writing to them, I'd leave that bit out, I wouldn't want to provide them with the only excuse they've not actually thought of in their letter.

I'd just say that rule 31.14 states you have the right to inspect the documents mentioned in their statement of case which is their particulars of claim, irrespectively of whether you were provided with a copy of the terms and conditions when you opened the account. Furthermore, they would have no way of knowing what you were supplied with at the time and they should have had the documents in their possession before issuing a claim even if there is no requirement to attach them to the claim form.

Thanks for the reply Flaming Parrot. I will post letter requesting copies of all documents in the Particular of Claim tomorrow. 😀

I need to start working on my defence now. Is there any guidance or template letters that can be used? 😊

[FlamingParrot]

Re: Court claim for overdraft

Here is the letter verbatim:

We would point out that the claim was issued via the county court business centre which is a procedure specifically provided for in the CPR. The procedure only allows a claimant to insert brief details of the claim and does not allow for the attachment of any enclosures. Paragraph 5.2A of Practice Direction 7E specifically states "the requirements in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particular of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separate in accordance with paragraph 5.2 of this practice direction".

This is correct, when claims are issued electronically through MCOL there is no requirement to attach documents, however, we are not arguing about them not being attached, that's why you asked for them.

We would also remind you that CPR 31.14 states:

"a party may inspect a document mentioned in -

a)a statement of case
b) a witness statement
c) a witness summary; or
d) an affidavit

You would have been provided a copy of the contractual Terms and Conditions at the time the account was opened and hence we see no reason why why you require an additional copy.

This is where they are wrong, their quote of rule 31.14 (which I made blue), is word for word, however, their interpretation (in purple), has nothing to do with the wording of the rule. You have the right to inspect a document mentioned in a statement of case, full stop. Note how the rule doesn't say anything about whether you were provided with a copy when the account was opened.

Although your letter states that you require the requested documents in order to file a Defence/Counterclaim, we would point out that the POC contains sufficient information in order for you to understand what the claim relates to:

a) the date the account was opened
b) the account number
c) the outstanding balance
d) the name of the original creditor; and
e) the fact the account has been assigned to the claimant when it was assigned.

I requested a copy of the contract and copy of the default notice letter as mentioned in the POC which have not been provided

There is absolutely no mention of potential allocation to small claims so if I was writing to them, I'd leave that bit out, I wouldn't want to provide them with the only excuse they've not actually thought of in their letter.

I'd just say that rule 31.14 states you have the right to inspect the documents mentioned in their statement of case which is their particulars of claim, irrespectively of whether you were provided with a copy of the terms and conditions when you opened the account. Furthermore, they would have no way of knowing what you were supplied with at the time and they should have had the documents in their possession before issuing a claim even if there is no requirement to attach them to the claim form.

[pawlik]

Re: Court claim for overdraft

From what I read above, they didn't argue about small claims, just that Terry 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 Terry would want to clarify whether they mentioned that fact on their letter. :mmph:

Here is the letter verbatim:

We would point out that the claim was issued via the county court business centre which is a procedure specifically provided for in the CPR. The procedure only allows a claimant to insert brief details of the claim and does not allow for the attachment of any enclosures. Paragraph 5.2A of Practice Direction 7E specifically states "the requirements in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particular of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separate in accordance with paragraph 5.2 of this practice direction".

We would also remind you that CPR 31.14 states:

"a party may inspect a document mentioned in -

a)a statement of case
b) a witness statement
c) a witness summary; or
d) an affidavit

You would have been provided a copy of the contractual Terms and Conditions at the time the account was opened and hence we see no reason why why you require an additional copy.

Although your letter states that you require the requested documents in order to file a Defence/Counterclaim, we would point out that the POC contains sufficient information in order for you to understand what the claim relates to:

a) the date the account was opened
b) the account number
c) the outstanding balance
d) the name of the original creditor; and
e) the fact the account has been assigned to the claimant when it was assigned.

I requested a copy of the contract and copy of the default notice letter as mentioned in the POC which have not been provided

[FlamingParrot]

Re: Court claim for overdraft

Reply to Reston.

Sir /madam

I refer to Your letter dated........... in response to my request made under the provisions of Civil Procedure Rule 31.14 foe inspection of the documents mentioned in the particulars of Claim No..............:

I am sure you are quite aware that CPR31.14 remains applicable to this claim until it is actually allocated to the small claims track therefore I will expect too receive the documents by return of post.

Restons is also reminded that it should have in its possession the documents to support the claim prior to issuing a claim.

Signed for post pawlik.

nem

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:

[nemesis45]

Re: Court claim for overdraft

Thanks for the quick response flamingparrot.... Where do I go from here then?

Reply to Reston.

Sir /madam

I refer to Your letter dated........... in response to my request made under the provisions of Civil Procedure Rule 31.14 foe inspection of the documents mentioned in the particulars of Claim No..............:

I am sure you are quite aware that CPR31.14 remains applicable to this claim until it is actually allocated to the small claims track therefore I will expect too receive the documents by return of post.

Restons is also reminded that it should have in its possession the documents to support the claim prior to issuing a claim.

Signed for post pawlik.

nem

[FlamingParrot]

Re: Court claim for overdraft

Thanks for the quick response flamingparrot.... Where do I go from here then?

If you've still got time before your defence is due, you may consider replying to their letter saying that you are entitled to inspect any documents mentioned in the particulars of claim and quoting the rule I mentioned above. I'd also say that they should have been in possession of the documents they intend to rely on before issuing a claim. You could also add that you need the documents to prepare your defence and, since they haven't provided them, you would like them to agree to a 28 day extension as allowed by CPR 15.5, to file your defence.

See what they say, if they still refuse to comply and your deadline approaches, you can submit the generic defence based around not having received any documents. :thumb:

[pawlik]

Re: Court claim for overdraft

It is true that a CCA request does not apply to current accounts, however, that's no reason to decline the CPR request which is not related to the Consumer Credit Act but the Civil Procedure Rules which say that a party may inspect a document mentioned in a statement of case. Requests are most commonly declined arguing it'll go to small claims. :mmph:


That's utter rubbish, the reason lies in the CPRs themselves: http://www.justice.gov.uk/courts/pro...s/part31#31.14

Although rather sparse, their statement of case mentions 'a contract' and 'assignment', therefore you have the right to inspect these documents as noted above.

Thanks for the quick response flamingparrot.... Where do I go from here then?

[FlamingParrot]

Re: Court claim for overdraft

I used to have a overdraft with a bank since 2004 which was closed down due to the bank charges taking me over the agreed overdraft limit. I agreed a payment plan via a debt charity with the bank but the account was sold on to a debt collector. For a few months I was paying them the debt collector agency, I stopped paying after making a subject access request to the bank to find that the notice of assignment with the bank letterhead was not issued by the bank. I then made a CCA request for the overdraft which the DCA have stated that it is not valid for current accounts. I made a request for letter of determination which was also rejected. Statements have been supplied

The debt collection agency have now filed a court claim against me which I have acknowledged to defend. I do not want to go to court as this default will drop off my credit file in 2 years time. Is there anything I can do?

My guess is Reston will attempt to decline the CPR request as this is an OD but they have stated contract so it's worth pushing this when they to respond.
nem

It is true that a CCA request does not apply to current accounts, however, that's no reason to decline the CPR request which is not related to the Consumer Credit Act but the Civil Procedure Rules which say that a party may inspect a document mentioned in a statement of case. Requests are most commonly declined arguing it'll go to small claims. :mmph:

I got the following response to the CPR request

You would have been provided with a copy of the contractual T&C's at the time the account was opened and hence we see no reason why you now require an additional copy.

That's utter rubbish, the reason lies in the CPRs themselves: http://www.justice.gov.uk/courts/pro...s/part31#31.14

Documents referred to in statements of case etc.

31.14
(1) A party may inspect a document mentioned in –
(a) a statement of case;

Although rather sparse, their statement of case mentions 'a contract' and 'assignment', therefore you have the right to inspect these documents as noted above.

The claimant claims payment of the overdue balance due from the Defendant(s) under a contract between defendants and HSBC bank dated on or about August 2005 and assigned to the claimant on March 2014.

[pawlik]

Re: Court claim for overdraft

I'll forward to hearing the response!!

nem

I got the following response to the CPR request

You would have been provided with a copy of the contractual T&C's at the time the account was opened and hence we see no reason why you now require an additional copy.

[nemesis45]

Re: Court claim for overdraft

Hi nem,

Thanks for your response. I will send the CPR end of this week and will wait for their response.

I'll forward to hearing the response!!

nem

[pawlik]

Re: Court claim for overdraft

.
My guess is Reston will attempt to decline the CPR request as this is an OD but they have stated contract so it's worth pushing this when they to respond.
nem

Hi nem,

Thanks for your response. I will send the CPR end of this week and will wait for their response.

[nemesis45]

Re: Court claim for overdraft

Hi Nem the word "contract", account number /sort code and default balance are the only things mentioned. Cabot are the claimants and Restons the solicitors. CPR request will be posted this week.

.
My guess is Reston will attempt to decline the CPR request as this is an OD but they have stated contract so it's worth pushing this when they to respond.
nem