Court claim issued by HSBC on a faulty DN & TN

[toomanycalls]

Re: Court claim issued by HSBC on a faulty DN & TN

I'm in a similar situation, have a faulty DN - full amount claimed and no time for service, followed by a termination letter 4 months later. Received a money claim 6 months after which is now. I've filed an AOS but still need to do my defence.

Any advice to what I should put as a defence? Sounds like I shouldn't go into too much detail beyond a faulty default notice or they will just re-issue it.

Really confused...

Edit: started my own thread http://www.legalbeagles.info/forums/...506#post194506

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Basa I can understand your anxiety and tying yourself up in knots trying to find the answers to your questions but............as PT has advised lets be patient and see what comes out from this judgment.

Once it is out I am sure that PT will answer any questions that are disturbing you and many others including myself, but as PT has said his hands are tied.

Hopefully things will be more clearer soon.

[basa48]

Re: Court claim issued by HSBC on a faulty DN & TN

As it is Section 87 that has been breached, I would think that no provisions within that section could thereafter apply. Section 89 is a no-going-back clause, forming a vicious circle for the OC; he cannot remedy his mistake without breaching s89. And, of course, it is s87 that provides for the OC's entitlement to claim the balance. If he attempts this, he cannot avoid the implications of s140.

(Have a look at s140, which applies to all ags (even pre-2006). If the OC has formed an unfair rel (which he clearly has - there can be little doubt), then the courts have the power to find very much in the debtor's favour, even to the extent of causing the OC to repay to the debtor everything paid!)

This is the bit I really can't get my head around.

Can the court not just say the agreement endures and the clock 'wound back' to the date of the (faulty) DN.

I don't see s89 as an insurmountable problem either - if the debtor satisfies the new DN then everything is as it was pre DN and 140A doesn't come into play. If the debtor fails to satisfy the DN then the whole debt becomes due.

The court can interpret these things in the best interests of the banks,

Can't you tell I'm not a lawyer!!!!

[jumper999]

Re: Court claim issued by HSBC on a faulty DN & TN

Blimey what a read. I have just read all the posts and they are terrific. Thanks to all who have put some very valuable information on my thread not only for me to read and learn but for many others too.
I have still not received a court date for my hearing since filing my defence and my case at the moment is stayed. My agreement was terminated on the back of a faulty DN......... and then action upon action was taken against me.

I do not know if this judgment will have any effect on my case personally but if it helps others then that will be real cool. LA you really do post food for thought LOL, hope your doing well.

PT has given many and DD a lot of excellent advice, I just wish I knew where I stood at the moment with my claim as at the moment I don't think HSBC know their head from their arse LOL.

Thanks to all

[Lord_Alcohol]

Re: Court claim issued by HSBC on a faulty DN & TN

Guys

I think PT's news is absolutely BRILLIANT....!!

He is bound to silence (of course!), but just consider the implications: the OC terminates via a duff DN, an action he has no entitlement to. If he realises his mistake quickly, no harm done.

BUT...if he has subsequently taken action, then he is in serious poo. By 'action' I'm not sure, but surely it would include anything done that is to the detriment of the debtor (stress/anxiety of threats of court, CRAs, etc). If the OC goes further and takes the debtor to court, that's even worse.

As it is Section 87 that has been breached, I would think that no provisions within that section could thereafter apply. Section 89 is a no-going-back clause, forming a vicious circle for the OC; he cannot remedy his mistake without breaching s89. And, of course, it is s87 that provides for the OC's entitlement to claim the balance. If he attempts this, he cannot avoid the implications of s140.

(Have a look at s140, which applies to all ags (even pre-2006). If the OC has formed an unfair rel (which he clearly has - there can be little doubt), then the courts have the power to find very much in the debtor's favour, even to the extent of causing the OC to repay to the debtor everything paid!)

We need to wait until PT can give us the full picture, but right now I can see all sorts of ways to use this to our advantage.

[diddydicky]

Re: Court claim issued by HSBC on a faulty DN & TN

Okay

I agree with PT that if the creditor takes me to court basing his case on an invalid DN followed by a termination/demand for sums not yet due – then his claim –if (as it usually does) it includes sums not yet due will fail- because without a valid DN – he may not take “the next step”

That has NOTHING to do with whether the debtor was prejudiced – it is written into the CCA and supported by a high court ruling.

WOODCHESTER
The consumers are the people the Act was intended to protect. The creditors with their vast resources and so forth are the people who are supposed to be able to get things right. And Kennedy LJ was not slow to criticise and slap Woodchester down when they got their DN wrong.

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffyd conveniently referred to as "the next step".

This leads me to amend what i have always previously advised.....- to write and confirm acceptance of the unlawful repudiation occasioned by the invalid DN

Instead it would clearly be better to ACT in accordance with having accepted an unlawful repudiation but not alert the creditor to the fact that his DN is faulty- the more so since most – if not all creditors do not keep a hard copy and therefore one should not alert them to the failing- lest they then attempt to serve a second DN

Thus the claimant is likely to start an action based- unknown to him........ on an invalid DN

However,even if the creditor does notice his mistake there is still a problem in the creditor attempting to serve a subsequent VALID DN

Going back to woodchester- and the underlined sentence- the creditor has committed to writing (and is therefore bound by his words) following the first invalid DN that the agreement is terminated and /or demands immediate repayment of sums not yet due

The hapless debtor can only take the creditor at his word- after all the OFT went to the trouble of enclosing a leaflet with the DN explaining its importance and need to comply- the debtor therefore can hardly take a subsequent termination letter as anything other than termination.

"... a person who signs a document, and parts with it so that it may come into other hands, has a responsibility, that of the normal man of prudence, to take care what he signs, which if neglected, prevents him from denying his liability under the document according to its tenor".
[per Lord Wilberforce in Gallie v Lee (1971)]

'.. a man cannot escape from the consequences, as regards innocent third parties, of signing a document if, being a man of ordinary education and competence, he chooses to sign it without informing himself of its purport and effect..'
[per Scott LJ in Norwich & Peterborough Building Society v Steed (1992)]


If, at the time of serving the first Dn the creditor was unaware it was invalid- how is the debtor supposed to work it out?

So, in this second DN which the claimant intends to be valid- he must state what the alleged “breach” is – and what the debtor must do to put it right.

So what figure will he claim is due in respect of arrears in the DN which- if the debtor remedies- will restore the status quo (s89)?

The claimants reason for serving a second DN would be that the agreement endured- since the DN preceeding the termination was invalid-so if he attempts again to claim sums not yet due under the agreement - then again he has served an invalid DN since until the DN is not complied with - there is no entitlement for the creditor to claim sums not yet due>

That leaves him with claiming that the debtor has breached the agreement by not making monthly payments (again the creditor maintains that the agreement endures) so what figure will the creditor put in the DN which can be accurate.?

If he claims arrears of payments due since he terminated following the first DN ..... he will be wrong – because at the time that he terminated he told the debtor that the agreement was terminated and all sums not yet due at that time (which would be those in the intervening period) were no longer due to be paid monthly but forthwith.

Is that the creditor “leaving the debtor in no doubt”?

how can the creditor claim that the debtor is in breach of the agreement in respect of monthly payments since the termination letter and the second DN - when the creditor had told the debtor that these payments were no longer to be paid monthly! If the creditor claims that the agreement endured- then at least his termination letter was an agreement between the two parties that no further monthly payments were payable and therefore the debtor would not have breached that "sub agreement"


alternatively perhaps the creditor will seek only to claim the arrears that were stated in the original DN (which might be correct but the DN was invalid for some other reason)...... but then what of the payments for the intervening months between the first and second DN’s- if the claimant claims the agreement is still live when he serves the second DN - demanding only the arrears accrued at the time of the first DN- and states that by remedying this default within the given time that (s89) it will be as if the breach had never occurred- it would be a lie because as soon as the debtor remedied the second DN he would still be in breach of the enduring agreement in respect of the months of payments in the intervening period between the termination letter following the first DN and the second DN therefore s89 cannot be acheived

It is true that in MOST cases there will be a considerable time frame between the first and second DN (usually at the point of legal action when the creditor realises his mistake) and this will be many months if not more than a year

However, the creditor has encouraged the debtor not to pay any more payments by telling him in the termination letter following the first DN that all sums due were no longer due monthly but forthwith............ therefore the debtor was totally unaware of any obligation to make any further monthly payments as he was told the agreement was terminated.

It is NOT the fault of the debtor that the creditor told him the agreement was terminated when it was not

It is not the role of the debtor to make an assumption that the termination letter might not in fact really be a termination letter but might be a mistake which he the debtor is supposed to work out whilst the sophisticated creditor and his legal and accounting muscle did not- that would be to turn the whole ethos of the CCA upside down.

Having (or so he thought) terminated the agreement - it is likely that the creditor would then be in breach of recent legislation as to regular statements of account - which if in breach he is again prevented from enforcement



It seems to me that a judge who would take the position of the creditor in such a situation, in addition to being immediately breathalysed........ would have to overrule much legislation pertaining to the creditor being bound by his word in a written document (house of lords). Woodchester and of course the intent and purpose of the CCA and in particular sects 77-89 not to mention turning the CCA upside down and making the debtor responsible for the responsibilities that the act firmly places upon the creditor


Jesus – thats one hell of step for judge kind and a huge leap for the poor old consumer

IMO

[basa48]

Re: Court claim issued by HSBC on a faulty DN & TN

i wish to fc uk i could tell you, but i cant

you would agree then if you saw the judgment, it is still draft and therefore not ready to be handed out.

I can tell you, the press want this story, the bbc want it, and all the legal databases have said they want it too.

So it is a huge victory and i cant even tell you what the outcome was other than we won

OK I guess I will just have to be patient.

It's just I have a creditor with a well duff DN and I've told him to shove the debt where the sun don't shine!

[Amethyst]

Re: Court claim issued by HSBC on a faulty DN & TN

March isn't that far off

[pt2537]

Re: Court claim issued by HSBC on a faulty DN & TN

I don't know how else to put it - I don't see how this is a good result??

Or am I not seeing something positive. I feel we can't have the whole picture here.

i wish to fc uk i could tell you, but i cant

you would agree then if you saw the judgment, it is still draft and therefore not ready to be handed out.

I can tell you, the press want this story, the bbc want it, and all the legal databases have said they want it too.

So it is a huge victory and i cant even tell you what the outcome was other than we won

[basa48]

Re: Court claim issued by HSBC on a faulty DN & TN

i give up

I don't know how else to put it - I don't see how this is a good result??

Or am I not seeing something positive. I feel we can't have the whole picture here.

Edit

Sorry = posts crossed.

OK I'll wait - but this is killing me!!!!!!!

[pt2537]

Re: Court claim issued by HSBC on a faulty DN & TN

I just cannot see how this is good news.

Anyone who ever receives a 'bad' DN cannot defend on the strength of it. The creditor just keeps issuing DNs until he happens to get one right then sues your ass off!!!!!!!!!!!

Long live the Creditor Credit Act

i give up
------------------------------- merged -------------------------------

I just cannot see how this is good news.

Anyone who ever receives a 'bad' DN cannot defend on the strength of it. The creditor just keeps issuing DNs until he happens to get one right then sues your ass off!!!!!!!!!!!

Long live the Creditor Credit Act

A case in the High Court was WON

i cannot say why without putting myself in contempt of court which im not prepared to do

you will have to wait and see what the judge said

[basa48]

Re: Court claim issued by HSBC on a faulty DN & TN

and for those who think its bad news

well, ask the person who went to court if he thinks its bad news, i bet he doesnt think it is, infact, i think he thinks its a darn corker of a judgment, i may ask him to pop in

I just cannot see how this is good news.

Anyone who ever receives a 'bad' DN cannot defend on the strength of it. The creditor just keeps issuing DNs until he happens to get one right then sues your ass off!!!!!!!!!!!

Long live the Creditor Credit Act

[Amethyst]

Re: Court claim issued by HSBC on a faulty DN & TN

Just a wee point, IE sheets and finding out peoples full circumstances, getting to know where people are coming from and what they can afford to lose (if indeed they have anything to lose) is all part of giving them the best advice possible. I know sometimes I come down on the conservative side of things but if someone is determined and have a chance they get support and as much help as we can give, and sometimes that does mean playing devils advocate because once you are in court you have to deal with arguments and fight your corner and if you don't know what you are talking about and get it across to the Judge you are pretty burgered. Also if I don't think someone does have a case but they are determined to go for it I will do everything I can to help and find out how to get their case to work and reduce the risk of adverse costs. Sometimes being negative is the best way of getting positives. JMO and tho a bit off topic I think it is only right I respond to the 'doomsayers' and other comments earlier in the thread.

[Lord_Alcohol]

Re: Court claim issued by HSBC on a faulty DN & TN

PT

This is very encouraging, and many many thanks for all your input. It is hugely appreciated!!

LA

[pt2537]

Re: Court claim issued by HSBC on a faulty DN & TN

absolute assignment

Definition



Assignment in which all (and not merely a portion of) benefits, liabilities, and/or rights are transferred by one party to another, without any pre-condition.

If so assigned how does the DCA amend a defective D/N especially in those instances with early 'agreements' where no agreement has been produced [or is ever likely to be]
The debtor cannot be bound to the terms of a non existent agreement.

the defective notice has no effect, it is bad, but there is enough case law to say a bad notice can be put right, Manni Investments vs Eagle star insurance for example.

the DCA has no need to amend the bad notice, it simply can issue a further notice detailing the breach and then go from there.

It may be wrong in peoples views, but then you need to speak to the High Court as the judge took that view not me

and for those who think its bad news

well, ask the person who went to court if he thinks its bad news, i bet he doesnt think it is, infact, i think he thinks its a darn corker of a judgment, i may ask him to pop in