Court claim for overdraft

[pawlik]

Re: Court claim for overdraft

I have actually already done all the above in regards to SAR and complaint to FOS to both DCA and OC. But this firm of solicitors are something else....

[sloane82]

Re: Court claim for overdraft

Oh right sorry to hear this. Which solicitors have ordered proceedings?.

[Kati]

Re: Court claim for overdraft

Oh right sorry to hear this. Which solicitors have ordered proceedings?.

....

Restons conduct so far has really tested my patience.

[pawlik]

Re: Court claim for overdraft

....

I have received a response to my defence. I would appreciate your assistance as I don't know what to do 😥. [MENTION=49370]Kati[/MENTION] can you please upload the picture I emailed you

[Kati]

Re: Court claim for overdraft

I have received a response to my defence. I would appreciate your assistance as I don't know what to do . @Kati can you please upload the picture I emailed you

of course x

[FlamingParrot]

Re: Court claim for overdraft

I cannot comment on points 1 to 3 but out of interest, what was the grounds for saying the agreement was unfair under UTCCR 1999?

Part 18 is a separate request for further information and not restricted to documents mentioned on the particulars of claim. Would be good to know what the nature of your Part 18 request was.

With regards to the documents on the particulars, they are as sparse as they get but they mention "contract", "assignment" and "default". The exact terminology can be open to interpretation but I should think you'd have a current account agreement with HSBC even if they choose to call it a 'contract'. There would have been a document relating to this current account whatever they choose to call it, even if it's not a credit agreement regulated by the CCA 1974. The requirement for a notice of assignment is not limited to regulated agreements, it applies equally to overdrafts, although the deed of assignment is not normally supplied to the debtor/defendant. Although a DN under s.87 of the CCA is not a requirement, there is a mention of 'default' and DNs are often issued for current account overdrafts. The particulars do not mention a final demand so you couldn't have requested it under CPR 31.14.

They are saying the charges were applied in accordance with the T&Cs of the account, yet we have no idea what they are since they've not provided a copy of the *document* (contract, agreement, whatever it may be called)

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.

Account number/sort code
Default balance
Total £3000

It is a bit of a dirty trick to threaten to apply for summary judgment and then suggest you complete and return Form N9a instead to avoid that, when N9a is an admission form and completion of such a form allows the claimant to request judgment by admission. :scared:

[pawlik]

Re: Court claim for overdraft

I cannot comment on points 1 to 3 but out of interest, what was the grounds for saying the agreement was unfair under UTCCR 1999?

Part 18 is a separate request for further information and not restricted to documents mentioned on the particulars of claim. Would be good to know what the nature of your Part 18 request was.

With regards to the documents on the particulars, they are as sparse as they get but they mention "contract", "assignment" and "default". The exact terminology can be open to interpretation but I should think you'd have a current account agreement with HSBC even if they choose to call it a 'contract'. There would have been a document relating to this current account whatever they choose to call it, even if it's not a credit agreement regulated by the CCA 1974. The requirement for a notice of assignment is not limited to regulated agreements, it applies equally to overdrafts, although the deed of assignment is not normally supplied to the debtor/defendant. Although a DN under s.87 of the CCA is not a requirement, there is a mention of 'default' and DNs are often issued for current account overdrafts. The particulars do not mention a final demand so you couldn't have requested it under CPR 31.14.

They are saying the charges were applied in accordance with the T&Cs of the account, yet we have no idea what they are since they've not provided a copy of the *document* (contract, agreement, whatever it may be called)


It is a bit of a dirty trick to threaten to apply for summary judgment and then suggest you complete and return Form N9a instead to avoid that, when N9a is an admission form and completion of such a form allows the claimant to request judgment by admission. :scared:

Interest charges were applied to the account when I was in hardship. Hence why I mentioned UTTCR 1999. Was this mistake? The OC offered me a full refund of interest/charges recently after I complained to FOS. The OC also are unable to provide me with any documents including T&C's at the time of opening the account.

[FlamingParrot]

Re: Court claim for overdraft

Interest charges were applied to the account when I was in hardship. Hence why I mentioned UTTCR 1999. Was this mistake? The OC offered me a full refund of interest/charges recently after I complained to FOS. The OC also are unable to provide me with any documents including T&C's at the time of opening the account.

Was your FOS complaint mentioned in your defence?

With regards to documentation about the current account, although you can't send a CCA request as such there is an unconventional request that can be sent for current accounts: http://www.legalbeagles.info/forums/...781#post376781

[pawlik]

Re: Court claim for overdraft

[MENTION=37786]FlamingParrot[/MENTION] below is a copy of the CPR 18 request. FOS complaint was made after I received a court claim and been offered money by OC before FOS investigate and was not included in defence. This is quite a stressful time as I have recently become unemployed. Can they get a summary judgement despite not providing a single document? Is it too late to amend my defence with FOS details without paying? Is it better to offer a F&F or Tomlin order?

CPR18 Request for further information.

On the 22 July 2015, 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 your entire claim.

Prior to the issue of proceedings I had delivered a request for the production of the Agreement referred to in the Particulars of Claim, and on which you intend to rely. That request was ignored.

Please treat this letter as my request made under CPR18 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim and is made by way of Service upon You:

1.The agreement, including the specific Terms at the point the alleged Agreement was made and any subsequent changes. 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 originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.
2. The deed of assignment
3.The notice of assignment
4.The default warning letter
5.The default notice

6. I deny any indebtedness to the Claimant but particularly deny they are due statutory interest on the alleged amount of £2988 and as such I request full disclosure of the amount the Claimant alleges to have paid for this alleged debt.

7. Also, your Particulars of Claim state the action is brought for Breach of Agreement, yet you have failed to identify the specific Statutory Instrument you have commenced proceedings under. Therefore, I would be request details of the Statutory Instrument under which you have brought proceedings.

You should ensure compliance with your CPR 18 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Failure to produce each and every document referenced within the Particulars of Claim (detailed above) will result in an Application to the Court for an Order of Disclosure.

Your CPR 18 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 versions to include an obligation to recover and preserve such versions, which are now in the possession of a third party.

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.

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.

[FlamingParrot]

Re: Court claim for overdraft

@FlamingParrot below is a copy of the CPR 18 request. FOS complaint was made after I received a court claim and been offered money by OC before FOS investigate and was not included in defence.

What happened here? Did you accept their offer? Did you receive the payment?

This is quite a stressful time as I have recently become unemployed. Can they get a summary judgement despite not providing a single document? Is it too late to amend my defence with FOS details without paying? Is it better to offer a F&F or Tomlin order?

Bear in mind if you did what they ask you to do, i.e. withdraw your defence and send back the admission form they can still request judgment, only in this case by admission, which means the court not having to look at the merits of your defence, since admission is the civil litigation equivalent of pleading guilty in criminal proceedings. :incourt: If they are so confident that the court would grant them summary judgment then why are they writing to you inviting you to admit the claim instead of just applying to the court for summary judgment? :mmph:

CPR18 Request for further information.

On the 22 July 2015, 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 your entire claim.

Prior to the issue of proceedings I had delivered a request for the production of the Agreement referred to in the Particulars of Claim, and on which you intend to rely. That request was ignored.

Please treat this letter as my request made under CPR18 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim and is made by way of Service upon You:

1.The agreement, including the specific Terms at the point the alleged Agreement was made and any subsequent changes. 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 originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.
2. The deed of assignment
3.The notice of assignment
4.The default warning letter
5.The default notice

A bit of a confusion here, a Part 18 request is for further information rather than documents mentioned on the particulars of claim, which is what CPR 31.14 is for. They didn't mention some of the above in the particulars anyway, and one they notably (perhaps deliberately) left out was the final demand, however, you didn't include it in your request above either.

I assume you downloaded that template letter from another site. :confused2: For future reference, it's always a good idea to post up a draft of any letters on here before they are sent. :typing:

6. I deny any indebtedness to the Claimant but particularly deny they are due statutory interest on the alleged amount of £2988 and as such I request full disclosure of the amount the Claimant alleges to have paid for this alleged debt.

I don't think you'd be entitled to that information.

7. Also, your Particulars of Claim state the action is brought for Breach of Agreement, yet you have failed to identify the specific Statutory Instrument you have commenced proceedings under. Therefore, I would be request details of the Statutory Instrument under which you have brought proceedings.

There is no requirement to identify a statutory instrument for a money claim, the breach of contract refers to the contract between you and the bank, not to a violation of a specific rule such as a traffic violation.

You should ensure compliance with your CPR 18 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Failure to produce each and every document referenced within the Particulars of Claim (detailed above) will result in an Application to the Court for an Order of Disclosure.

Not much use now you've filed a defence as Part 18 does not apply to small claims.

[pawlik]

Re: Court claim for overdraft

What happened here? Did you accept their offer? Did you receive the payment?
Bear in mind if you did what they ask you to do, i.e. withdraw your defence and send back the admission form they can still request judgment, only in this case by admission, which means the court not having to look at the merits of your defence, since admission is the civil litigation equivalent of pleading guilty in criminal proceedings. :incourt: If they are so confident that the court would grant them summary judgment then why are they writing to you inviting you to admit the claim instead of just applying to the court for summary judgment? :mmph:


A bit of a confusion here, a Part 18 request is for further information rather than documents mentioned on the particulars of claim, which is what CPR 31.14 is for. They didn't mention some of the above in the particulars anyway, and one they notably (perhaps deliberately) left out was the final demand, however, you didn't include it in your request above either.

I assume you downloaded that template letter from another site. :confused2: For future reference, it's always a good idea to post up a draft of any letters on here before they are sent. :typing:


I don't think you'd be entitled to that information.


There is no requirement to identify a statutory instrument for a money claim, the breach of contract refers to the contract between you and the bank, not to a violation of a specific rule such as a traffic violation.

Not much use now you've filed a defence as Part 18 does not apply to small claims.

[MENTION=37786]FlamingParrot[/MENTION] thanks your reassuring feedback. I was really worried and panicking that I messed up.

Yes I did accept the offer made from the OC and I am awaiting for the cheque J

I did indeed download the CPR 18 letter from another site before I found this site L bad move I know.

Is it too late to send a new CPR 18?

[FlamingParrot]

Re: Court claim for overdraft

@FlamingParrot thanks your reassuring feedback. I was really worried and panicking that I messed up.

Yes I did accept the offer made from the OC and I am awaiting for the cheque J

In that case this wouldn't be an argument in your defence as you are being reimbursed for the charges.

I did indeed download the CPR 18 letter from another site before I found this site L bad move I know.

Is it too late to send a new CPR 18?

Sadly it would be too late now, they would just argue that the claim will be allocated to small claims track and Part 18 of the CPR does not apply. Solicitors often use this argument even before a defence is filed but then it can be argued the claim has not yet been allocated. However, this doesn't mean they don't have to supply any documents. If it progresses to a hearing, the court would order them to supply you with the documents at least 14 days before the hearing.

With overdrafts the finally demand really comes into play when you argue the account is statute barred, as the clock starts to run from the date the demand is issued.

IMHO I'd just wait for their next move, anyone can write a letter threatening to apply for something or other and that doesn't mean they'll actually go ahead. :ranger:

[pawlik]

Re: Court claim for overdraft

@FlamingParrot It has been over a month now since I sent in my defence and I have still not heard anything from the court . I did send a letter to Cabot requesting more information about the overdraft using recorded delivery a few weeks ago but have had no response. I am assuming that they have written to the oc and are waiting for further information before contacting me. How long should I wait to get the case struck out and is there a fee involved? I am keen to avoid this claim being stayed for a few months and then they write back to me.

[nemesis45]

Re: Court claim for overdraft

@FlamingParrot It has been over a month now since I sent in my defence and I have still not heard anything from the court . I did send a letter to Cabot requesting more information about the overdraft using recorded delivery a few weeks ago but have had no response. I am assuming that they have written to the oc and are waiting for further information before contacting me. How long should I wait to get the case struck out and is there a fee involved? I am keen to avoid this claim being stayed for a few months and then they write back to me.

Check with court it's likely the claim has been stayed if Cabot has not filed a response ( you are not informed if this happens).
nem

[FlamingParrot]

Re: Court claim for overdraft

@FlamingParrot It has been over a month now since I sent in my defence and I have still not heard anything from the court .

Looks like they did not respond to your defence within 28 days in which case the claim will be stayed.

I did send a letter to Cabot requesting more information about the overdraft using recorded delivery a few weeks ago but have had no response. I am assuming that they have written to the oc and are waiting for further information before contacting me.

You are assuming correctly. :thumb: They wouldn't have any information themselves and are relying on the original creditor to supply it as and when. :

How long should I wait to get the case struck out and is there a fee involved? I am keen to avoid this claim being stayed for a few months and then they write back to me.

I'd give them a couple of weeks or so. There are various approaches here, you may want to look at this thread, although the wording would obviously need amending: http://www.legalbeagles.info/forums/...139#post494139 As that's a letter as opposed to an application, there would be no fee involved. If you need to make an application then there would be the usual application fee involved, currently £155.