Court claim issued by HSBC on a faulty DN & TN

[jumper999]

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

Since the banks are allowed to make reconstructed agreements since the Carey v HSBC case, does the recon agreement have to be exactly the same as the original or just similar?

[jumper999]

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

Thank you peter & Ame

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

Hi

Yes Ame.
It is not point scoring it is trying to give advice that is both realistic and proven, introducing unproven and unrealistic methods into a debte like this helps no one,least of all the OP.

There are actions that can be taken here that will help but the difficulty is getting them accross through a sea of frankly unhelpful and irrelavant legal speak

Peter

[Amethyst]

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

http://www.lendingstandardsboard.org...endingcode.pdf

I agree that Jumper has been treated poorly by HSBC and the lending code would seem to agree, and may add some weight to an unfair relationship argument.

However, legally, and undr the CCA, the terms of the agreement were breached in that the contractual monthly payment wasn't made, therefore a default notice is in order, though the bank should have given more time (breathing space if you look at the lending code) for jumper to get things sorted and back on track.

Far too many lenders jump into court as soon a FH is mentioned and refuse to accept a DMP voluntarily preferring to get it secured by a CCJ / Charging Order. I don't think they should be allowed to do this until a first voluntary arrangement is breached as if a voluntary agreement is kept up as a temporary measure till consumer is back of their feet again and able to resume proper payments, even taking a hit with additional interest added (thus more profit to the bank) they really have no need for a CCJ, and the consumer gets an arrangement marker on their credit file now anyway so the responsible reporting issue is a non issue.

(I havent read the whole thread so sorry if you already looked at it from the lending code angle - trouble is in court it is the law that counts, but it would be lovely to get a ruling on breathing space)

[jumper999]

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

Ah thanks LA,

Yes that is true, believe me I have never been the one to run from my debts, If there was a magic wand that we could wave and have our debts written off then hey who wouldn't..........but until that wand appears we are going to have to face reality.

[Lord_Alcohol]

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

LA

Brandon did not find that prejudice was necessary, HHJ Denyer found that there was no prejudice in failing to be given the 14 days and that was what he based his judgment on, wrongly,

There are protection mechanisms that could have been utilised, such as a time order, or an argument of unfairness, but there is no magic gem that is gonna pop up and write off this debt in my opinion, i just cant see it.


EDIT**

Also, i would add that each case turns on its own facts, if it is established that while the default notice shows less than 14 days, but you make no effort to remedy the breach, then you are unlikely to convince a judge that you have suffered prejudice of any kind.

Agree with you there pt.

A couple of questions: did Denyer make his decision using the fact that Brandon made no effort whatsoever to discuss/deal with Amex beforehand, and is jumper really trying to get the debt wiped?

I think with jumper's case the additional time that should have been stated could have been of real benefit; she was clearly trying to sort this out and may have had a chance to remedy with the full timescale clearly marked. Hence, IMHO, substantial prejudice directed against her.

I don't think it's jumper's aim to have the debt wiped, hence all the attempts to get HSBC to accept a temporary payment plan. It's clear to me that jumper is not in the Rankine camp, but just someone who's had hard times and is refusing to turn her back on her debts.

pt, do you think that s140 might help?

LA

[jumper999]

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

Thanks guys LA & pt,

Right here is why I feel that HSBC have been unfair.

I am not going to rely on the DN too much even though it is I believe 4-5 days short, if we can count the Bank Holiday that came in between the 14 days given to remedy, but my DN did not say within 14 days, its said I must pay by 2 June 09, guess it is the same thing hey?

After receiving my DN I was in negotiations with HSBC to reach a settlement to pay, and then at the end of June 09 they went and demanded the full payment and terminated my agreement. There was no need for them to have done this at all, and I was really upset when they did, because I had received a lot of advice from various agencies, cccs and national debt line that as it is unsecured debt you can offer token payments of £1 a month..........I was offering more than this , HSBC then passed mt debt to MSCL and then DG Solicitors,

What I want to concentrate on is the build up prior to getting served with a DN, I need to list the events that took place and what I did to remedy them, I have received a letter from my credit file people in writing and they have confirmed it to me when HSBC registered my debt and even though this may not be important but explains why the treated me like they did.
------------------------------- merged -------------------------------

how did you accept it?

i do believe that it needs to be communicated

did you write to HSBC?

Yes pt I did write it down and I received a reply, I will post it up, give me a few minutes please

[pt2537]

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

how did you accept it?

i do believe that it needs to be communicated

did you write to HSBC?

[jumper999]

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

Gordon Bennett, what a show down,

First I would like to thank you all for posting on my thread, I am not happy that any thread turns in a tit for tat arena. People post on forums like this as they need help and when things turn funny then they think they are in the Rocky movie.

We should have a thread just dedicated to have digs at each other, we can call it the getting it off your chest? or Want to blow off some steam? or Who do you not like today on here? anyways I have more important issues to address at present.

PT to answer your question after receiving the DN [faulty} I did not make any payment, and yes I did accept HSBC's unlawful repudiation.

Ed, I think that you have hit the nail on the head with the unfair bit. If I could some all of this up then I would say that HSBC have acted beyond reasonable and I will prove that. I do admit that I do like the idea of going to court, guess no one does but when someone feels that an injustice has been done to them then sometimes there is no choice.

I have never been one to run from my responsibilities, and have always taken them very seriously. Never did I have any intention of trying to get out of not paying, my record with HSBC will show that, though as it has been suggested that this will make no difference.

Regardless of what some posters opinions are and I appreciate the warnings, but I would be shocked if after hearing the full facts of my case that the judge will not turn around slap HSBC on the face.

I know all the horror stories that can go wrong, but I know and I believe that I have done nothing wrong.

I think if I defended on the unfair relationship case then HSBC will bottle out as they will not want this information to come out at all. I believe that I have been severely prejudiced, and slowly losing my mind with worry, one minute I am thinking I should agree and admit all, next minute I am thinking I need to defend.

The court will look at each case on their own merit and circumstances, and I do not believe that I need to be afraid. If I contacted HSBC prior to any hearing and said I would like to settle before court and agree to pay x amount each and yes say to the you were right all along and I was wrong but please would you agree............and then they turn around and say mmmmmmmmm naah, think it's better if we go to court, don't know if they work on commissions here , the more people they take the more payouts they get, sorry just being silly,

Then I will have no choice but to go to court and put a defence and my side of events in.

[pt2537]

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

LA

Brandon did not find that prejudice was necessary, HHJ Denyer found that there was no prejudice in failing to be given the 14 days and that was what he based his judgment on, wrongly,

There are protection mechanisms that could have been utilised, such as a time order, or an argument of unfairness, but there is no magic gem that is gonna pop up and write off this debt in my opinion, i just cant see it.


EDIT**

Also, i would add that each case turns on its own facts, if it is established that while the default notice shows less than 14 days, but you make no effort to remedy the breach, then you are unlikely to convince a judge that you have suffered prejudice of any kind.

[Lord_Alcohol]

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

On a slightly different tack having had my mind royally bent, would I be right in interpreting the issue of defective DNs (that do not offer the prescribed time) as being irrelevant after Brandon, as the judge found that "no prejudice" was suffered by the debtor?

If that simplistic interpretation is generally correct, and I think it is hence ed's remark about "bricking it" when years of comfortable assumption that one is right is thrown out of the window after Brandon, then is there mileage in finding that there was indeed prejudice caused by the defect in the DN?

The fact that the lender may not take action until after the prescribed time (not the stated time) doesn't really help a pro-active debtor attempting to put matters rights. He may have received instructions from the lender that the timescale is correct and that failure to abide by it will result in the dreaded next steps.

The debtor is also unaware of the apparent availability of additional time to remedy (ie, the difference in time between the date of the lender's next steps and the expiry date of the DN). If a court is saying that this extra time is available to the debtor to remedy, as the judge in Brandon implies, then that knowledge could dramatically alter the outcome of the situation. For example, the debtor would have more time to raise the money needed in any of a variety of ways (sale of assets, receipt of money owed from others, paid work, additional borrowing, etc).

I believe that the debtor does suffer prejudice where the time stated in a DN is deficient because it can have the effect of limiting the choices available to remedy the breach. Therefore, can an argument that prejudice is suffered 'get around' the Brandon judgement and allow a court to take a different view?

LA

[pt2537]

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

In other words given jumper is being encouraged to go into court 'because they didn't 'really' breach the contract' is it possible Mr Zilla to have more than an intelligent overview that maybe they can use ie proper argument. Short of a fantastic screed that in no way helps them formulate a defence or gives them any idea whatsoever how to argue?

I said earlier on the thread are we going into unfair rels....no answer.

You agree there is no caselaw here. There is no indication of this amazing silver bullet of a document introduced. I like left field arguments....even I have no grasp on what the hell you are purporting is a dynamite argument that will win.

Simple facts, and I know you not from PT or Bard.....can we stop with the inane, childish, 5 yr old bitching to point score and make ourselves look more self important than we think we are when we look at ourselves as we exit the shower ever morning and ACTUALLY give clear information.

This is people's lives we are talking about. It's not a playground. He said, she said crap helps no one.

Mr Zilla, if your argument is right, you don't need to betray confidence, you can inform jumper how to handle the defence by giving argument details. PT to start with concerned me because of claims with 'judgement is not available yet' posts.

The aim of sites like this is not to 'big up' egos. It's to help normal people. If folks who want their ego rubbed cannot provide proof or details for their claims then frankly it's time they unplugged the keyboard.

If a member is advised as here that they should defend the claim because they have a good chance of winning, then the member advising that should put the defence where their mouth is and not play a self important game where others should fill in the blanks, where they then act like the victim because 'due to the lack of any information' they are asked to prove it.

It's childish, it's pathetic and frankly I don't give a flying Angela Knight if I'm considered out of order for saying this.

If people can't provide the help or the proof necessary to back up their claims, then team up with Basil....stop running the risk that those with less education in these matters will follow blindly given the risks they run.

There's a place for interpretation and left field ideas....on a thread that could change somebodies life for the worse if they follow a pie in the sky idea 'because it sounds good' is not the place FFS.

And yes I am annoyed the last 5 CCA matter threads I've dealt with have resulted in the poster bricking it because the advice they've been given over the years no longer washes.

Idealism and realism.....it's not our life, it's not our argument....it's somebody else. Do the best for them, that's the bottom line.

ed.


Im not sure how to take that comment, i try to put forward my view on this topic and have taken time to carry out research on this point to see if i could find a slither of info which may assist.

I did not find anything.

Of course, one vital flaw is did jumper accept the repudiation? it seems not.

if you wish to rely upon repudiation, you must advise the party of this, you cannot act in a way which affirms the contract. Im slightly suspicious that this is what happened here.


I try to explain things in easy lay persons terms hence my analogy's if that caused offence then it was not intended to, i was merely trying to get the point across, you cannot come on here and start firing off that you have this golden nugget that will win the day and then not say what it is.


As for the comment about judgments not being available? what do you mean?

If you refer to the recent case where the hearing was the 30th sept and the judge reserved judgment til the 29th oct, then that judgment has been released exclusively to the site.


I shall keep my counsel on this subject, suffice to say, Jumper, if you want to run with this argument, good luck, but if Godzilla is suggesting there is a barrister involved, get a copy of counsels written opinion on the argument.

Law is all about applying the law to the individual facts of the case, what works for one maynot work for you

[ed.]

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

In other words given jumper is being encouraged to go into court 'because they didn't 'really' breach the contract' is it possible Mr Zilla to have more than an intelligent overview that maybe they can use ie proper argument. Short of a fantastic screed that in no way helps them formulate a defence or gives them any idea whatsoever how to argue?

I said earlier on the thread are we going into unfair rels....no answer.

You agree there is no caselaw here. There is no indication of this amazing silver bullet of a document introduced. I like left field arguments....even I have no grasp on what the hell you are purporting is a dynamite argument that will win.

Simple facts, and I know you not from PT or Bard.....can we stop with the inane, childish, 5 yr old bitching to point score and make ourselves look more self important than we think we are when we look at ourselves as we exit the shower ever morning and ACTUALLY give clear information.

This is people's lives we are talking about. It's not a playground. He said, she said crap helps no one.

Mr Zilla, if your argument is right, you don't need to betray confidence, you can inform jumper how to handle the defence by giving argument details. PT to start with concerned me because of claims with 'judgement is not available yet' posts.

The aim of sites like this is not to 'big up' egos. It's to help normal people. If folks who want their ego rubbed cannot provide proof or details for their claims then frankly it's time they unplugged the keyboard.

If a member is advised as here that they should defend the claim because they have a good chance of winning, then the member advising that should put the defence where their mouth is and not play a self important game where others should fill in the blanks, where they then act like the victim because 'due to the lack of any information' they are asked to prove it.

It's childish, it's pathetic and frankly I don't give a flying Angela Knight if I'm considered out of order for saying this.

If people can't provide the help or the proof necessary to back up their claims, then team up with Basil....stop running the risk that those with less education in these matters will follow blindly given the risks they run.

There's a place for interpretation and left field ideas....on a thread that could change somebodies life for the worse if they follow a pie in the sky idea 'because it sounds good' is not the place FFS.

And yes I am annoyed the last 5 CCA matter threads I've dealt with have resulted in the poster bricking it because the advice they've been given over the years no longer washes.

Idealism and realism.....it's not our life, it's not our argument....it's somebody else. Do the best for them, that's the bottom line.

[WendyB]

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

I hope it does, too. Can I just summarise, as a layman? Please feel free to correct, in layman's terms only please

A breach has occurred, this is not in question is it?
Jumper didn't intend to breach it,and tried to continue, but nonetheless a breach is what's happened.
But can it be construed as a repudiatory breach?
Who is repudiating whom?

So are you suggesting that Jumper defends as the (repudiated) breachee, or counterclaims(in effect) as the (repudiatory) breach -er? This is the part I don't get, although I have read the above about 27 times, it won't sink in, or it's not clear, one or the other but at this hour in the morning, who can tell?

And finally, is there any previous case law to support this defence (or attack, as the case may be, depending on which side of the fence it's looked at from. Wins or losses, either would be of use. I know there doesn't always have to have already been a precedent already set, but if there was then no doubt it would come in handy at this point. Whether we agree with the Judge's decisions in those cases or not, they have been made and currently stand, so our opinions as to the right or wrongness of them is neither here nor there.

Finally, another question which remains unanswered is the one asked by Jumper regarding possible costs to an LIP - tens, thousands, millions?

I know I have presented a very simplistic view, but I have called it as I see and understand it, which may or may not be right, or how others see it, but could well be how those of us less conversant with this complex area of law interpret it. And show that this whole area is a minefield and not for the fainthearted.

[Godzilla]

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

Hello again jumper

Well, as you know, your thread/case has become something of a battlefield, a clash of opinions. I fear that I must apologize to you jumper as it was never my intention to detract from the subject matter of your thread, not in the slightest was it ever my intention to have such a debate that would draw away from providing you with some sort or form of assistence and so I respectfully ask you to please accept my apology for any confusion or uncertainty that quite obviously has been caused to you.

I shall now set out to do what I intended to do when I first posted on your thread, or at least I am going to attempt to do that much for you.

I remain resolute in my position stating that you do have a defence against this action brought by HSBC.

This case of yours jumper is all about repudiation of the agreement/contract.

So the only real issue that needs to be determined by the Court before Judgment is awarded to either party is this:

Of the two parties in these proceedings, who is it that has repudiated the agreement/contract, that is the issue in your particular case.

So, the question to be asking first is, What is repudiation?

A party can terminate a contract at common law if the other party has repudiated (or renunciated) the contract. Repudiation refers to conduct that shows an intention not to be bound by the contract or to fulfill the contract only in a way that is substantially inconsistent with the party's obligations.

The test is whether the conduct of one party is such as to convey to a reasonable person repudiation either of the contract as a whole or of a fundamental obligation under it.

Repudiation entitles the innocent party to accept the repudiatory breach and bring the contract to an end (acceptance of the repudiation or 'recission') or to treat the contract as continuing (affirmation of the contract)

Acceptance of the repudiation by the innocent party entitles it to sue for damages suffered following the repudiatory breach.

The right to terminate a contract at common law for repudiation should be distinguished from the right to terminate for breach of an essential term (or condition) of the contract or a sufficiently serious breach of an intermediate (or innominate) term.

It is also important to consider whether the right to terminate at common law is excluded from the contract. The general presumption is that common law rights have been preserved and 'clear words are needed to rebut the presumption that a contracting party does not intend to abandon any remedies for breach of the contract arising by operation of law'.

Repudiation is not ascertained by an enquiry into the subjective state of mind of the party in default. It is to be found in the conduct, whether verbal or otherwise, of the party in default, which conveys to the other party the defaulting party's:

i) inability to perform the contract or promise; or

ii) its intention not to perform it; or

iii) its intention to fulfill it only in a manner substantially inconsistent with its obligations and not in any other way.

The touchstone here is, not the state of mind. There is no room to consider whether the party in breach held the honest belief that its action was justified by the contract. Therefore, the repudiator's state of mind is irrelevant. What matters is the character of the repudiator's conduct.

No doubt there are cases in which a party, by insisting on an incorrect interpretation of a contract, demonstrates an intention not to perform the contract according to its terms. But there are other cases in which a party, though asserting a wrong view of a contract even though it believes its view to be correct, is willing to perform the contract according to its tenor. Should an intention to repudiate the contract be attributed in both these instances?

For party A to merely assert, or argue for, a wrong interpretation of the contract will usually not be enough to justify party B drawing an inference of repudiation. The reason for this is that party A may be willing to perform the contract according to its tenor. It may be willing to recognize the error of its conduct once this is explained or to accept an authoritative view of the correct interpretation of the contract. In either event, an intention to repudiate the contract cannot be attributed to party A.

Thus the inference of repudiation should not readily be drawn where, for example:

i) party A makes 'contentious observations in the course of discussions or arguments'; or

ii) party A's conduct amounts to engaging in 'a bona fide dispute as to the true construction of a contract expressed in terms which are by no means clear'

The inference of repudiation can more readily be drawn when the interpretation relied on by party A is clearly or obviously untenable and party A:

i) acts (or threatens to act) unilaterally on the basis of the interpretation; or

ii) persists in the interpretation in the face of communications from party B pointing out the error.

Conclusion.

As a practical matter, contracting parties need to know what will - and will not - count as repudiatory conduct.

This grey area between patent repudiatory conduct and bona fide disputation of the construction of a contract is tricky to negotiate.

In helping to solve the conundrum of whether conduct demonstrates an intention to no longer be bound to the contract or whether conduct merely constitutes geuine disputation of the contract, parties should revert to the objective test of repudiation and consider what message the conduct actually conveys to the innocent party.

Finally, parties should be careful to note that if genuine disputation appears to be at issue, an innocent party should avoid reaching a hasty conclusion of repudiatory conduct. a notice purporting to rescind may constitute a repudiation in itself, thereby entitling the other party to accept the repudiation.

I hope that will help your case jumper.

Kind Regards

Godzilla