Court claim issued by HSBC on a faulty DN & TN

[jumper999]

I am trying to get as much as help as possible from as many places as possible with a court claim I received today from HSBC.

Details are similar to many of us who are in debt. I got in to debt and offered several times to come to an arrangement to pay HSBC in installments. All offers were refused.

Then in May 09 HSBC issued a DN, before the DN expired I wrote again making an offer to pay. HSBC refused again. Then a few weeks later they sent me a Final Demand letter requesting I pay the full balance within 14 days.

I tried my best to negotiate but no help at all from HSBC, sent 3 Financial Statements out lining my situation etc etc. I continued to received letters from DG Sols, MCSL, and a few other DCA's that HSBC had contacted.

I then placed a complaint with the FOS and they said my cca was enforceable and they did not say much else and that they had contacted HSBC and they were ready to accept £1 a month.........stupid wallys I was offering more than that and if they has accepted my first offer I would not be here tying out all this crap [pardon my language].

Anyway after all that palaver I found out that the DN I received from HSBC was faulty and I wrote to HSBC and accepted their unlawful rescission of my contract. Since receiving the DN I did not make any payments to HSBC.

I received a few letters from DG Sols who have requested I pay or they would apply to place a charge on my property, then today I received a claim form from them. I believe that the agreement that I have is a reconstructed one.

So there is my story, and now I need to get my defence ready. Not too sure if I could use the Woodchester argument and will need some help and advice, and I will have a good read of this too.

I know the Brandon case is up for appeal on the 6 Dec 10 and do not know what will happen there but believe that maybe HSBC are confident that they will win that is why they have been brave enough to issue me with this claim.

Any help will be appreciated, thanks to all in advance

Copy of my credit card agreement:


Just say I can't get away with using the not enough days to remedy the breach............but it says on the DN that I have breached the payment clause on the agreement......unless I have overloaded my brain with info can anyone see where on my agreement it says this please and what term I have breached?

[banker_rhymes_with]

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

This may help:

Banks criticised by Master of the High Court

Cheers,
BRW

[MIKE770]

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

RTE News:

[MIKE770]

Re: Rte News - Banks Critised By Master Of The High Court

[quote=MIKE770;212085]withdrawn[/quote

[pt2537]

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

would be if the link worked

[MIKE770]

Rte News - Banks Critised By Master Of The High Court

withdrawn

[diddydicky]

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

the other point in Brandon which the judge himself conveniently confirmed - is that a letter of termination means that the agreement is ended

he said this:-


35. What did happen was this. On 11 July 2007 American Express sent a notice of cancellation to Mr Brandon:
“This letter serves as notice of cancellation of your account and credit card account agreement with immediate effect. All monies outstanding on the account are now payable in full,”
And then it goes on to say that the account has been transferred to a debt collection agency.
“After a period of 28 days from the date of this letter steps will be taken to register the default status of your account with the credit reference agencies Experian and Equifax.”

36. So there is a termination on 11 July and further, providing that if nothing happens within 28 days, details of Mr Brandon would be supplied to the credit reference agencies.

37. On any view that letter seems to me to be an effective means of bringing the agreement to an end.

We all know that in the normal course of events- the creditor is blissfully unaware until after he has terminated (usually not until he goes to court in fact and is challened by the defendant) ........that his first DN is invalid.

he genuinely thought that he had terminated the agreement.

the judge in Brandon (from the above) clearly acknowledges that such a letter of termination does indeed end the agreement (and with it the requirement to make monthly payments)

So, 6, 9 12 months later (usually at the litigation stage) the creditor realises or is told the original DN was not valid and therefore he argues- neither was the termination and so attempts to serve a second DN

irrespective of whether his argument - that the TN due to the DN was never valid- he has nevertheless convinced the debtor- months beforehand- that the agreement is finished

It would seem to my mind therefore (apart from the practical difficulties of the second DN itself as discussed above) that for any right thinking person to suggest that the debtor has not been prejudiced in any way during this 6/9/12 month period- is purely fanciful.-- at the VERY LEAST the debtor has probably taken decisions in relations to other debts - based on the fact that his credit rating is trashed- in fact there are a myriad of transactional decisions that might flow from that event that the debtor may otherwise not have taken

If the CREDITOR thought the agreement was over, and a judge confirms that this is the effect of the termination letter- how exactly is the hapless debtor supposed to have a better understanding of what the situation is!

DN defences are IMIO very much still alive and kicking- and it is my belief that despite Brandon one could mount an argument in different circumstances that even if the creditor had not terminated for some time afterwards- and not withstanding that prejudice COULD in any event be shown - that a higher authority ( woochester) has ruled that that there is no requirement for the debtor to be prejudiced- in order for the creditor to be barred from taking that "next step"

if i have got the judgement in woodchester wrong - perhaps someone could enlighten me

[Lord_Alcohol]

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

i am not quite sure that the point wtih regard to making adverse entries on your credit reference files could be succesfully argued- since even had they not served a DN- those entries would after 6 months of non payment- have been put on your file noting a default on the account in any event.

You're right there diddy, but I was thinking more of the default record.

As the ICO requires 28 days notice of this to be given to the debtor and as (usually I think) the OC includes this in the DN, but if the DN cannot be complied with due to its inherent defect (eg, demanding too much money) or is recognised as unlawful by the debtor (?) who refuses to comply with it (on thin ice here!), then perhaps it could be argued that the notice indicating that the default will be recorded is also defective?

This might be supported by the fact that the OC may have to issue a new DN and therefore a new DPA default notice, otherwise he would have to serve "Special" DNs without the DPA notice to customers originally served a duff DN.

Just a thought, but agree that not much can be done about the 6 months missed payments showing on the file.

[diddydicky]

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

for those who beleive that Waksman ruled DN defences no longer useful- this is what he REALLY said in brandon :-

Now, somewhat theoretical though it is, had American Express taken enforcement action within 14 days of 19 June, it may well be that the validity of that enforcement action would have been open to challenge. I express no final view on the matter but I do understand the argument because, to go back to section 87, it must specify the nature of the breach and if the breach is capable of remedy what action is required to remedy it. The whole idea is that a debtor should have 14 days within which to redeem the position, in this case pay £275.80. So I understand the argument. As I say, I do not dismiss it as being unreal. But, the fact of the matter is no enforcement action was taken within 14 days of 19 June.

there are many instances where incorrect figures/termination too soon etc still make Dn defences valid .

even the judgement that he DID make- based on the fact that the creditor did not actually terminate for 21 days and therefore the lack of 14 days was not relevant- is deeply flawed because in his judgement he made an assumption that the debtor was possessed of foresight which enabled him to know that when the creditor told him (which he is required to do with precision) in the DN that he would terminated at such and such a date....he didnt really mean it- and it is left to the debtor to "guess" when the creditor would terminate-

i would not say that anyone of sound mind could say that this "left the debtor in do doubt" which is what the act requires of the creditors DN.

[diddydicky]

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

Yes, I think that could be the case, but I assume only if no significant collection/recovery activities have taken place and the debtor has not been troubled by the OC's mistake.

I would also think that issuing duff DNs, claiming they are compliant, and taking all those steps threatened in the DN when not entitled would come under S140.



I would say that there has only been one breach, and S89 requires that the OC allows the debtor to remedy so that "the breach shall be treated as not having occurred". But if there has been a period between the bad and the good DN in which the debtor has been seriously disadvantaged, I would think that S89 could never be satisfied, even if the new DN was fully compliant.

If Part VII of the Act is read as a whole, then this must mean that remedy could never happen because remedy requires that the breach is treated as never having occurred. The OC may have taken actions such as recording the default with the CRAs, and it could be that the debtor has had to put up with this for a year or more, incurring damages costs and more. Therefore the breach can never been viewed as "never having occurred"; there has been too much cr*p thrown at the debtor in the intervening period for that ever to be true.

I would also think that this type of caper by the OC would very definitely fall under the "unfair relationship" category, whether brought to court or not. The court's powers seem very wide under S140, and causing the OC to repay the debtor is one of them.

Just my view, of course. Hopefully PT will be able to enlighten us soon. In the meantime I still think this is great news...

i am not quite sure that the point wtih regard to making adverse entries on your credit reference files could be succesfully argued- since even had they not served a DN- those entries would after 6 months of non payment- have been put on your file noting a default on the account in any event.
------------------------------- merged -------------------------------

[jumper999]

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

Oh LA always love reading your posts............you make so much sense and I agree with all you say and if only things were as simple as you make them.............but unfortunately sometimes they are not.

I am playing the waiting game at present and ain't got a clue what is going on or what is going to happen. All I know is that my claim is stayed. Maybe HSBC are waiting for something before they decide what to do as I know the Brandon case appeal is coming up on the 3 Feb 2011 and also from what PT says too about this recent HC judgment.

If HSBC turned around and agreed to let me pay what I owed without applying for judgment and agreed to take off all the penalty charges trust me I would have been more than happy to agree to that. But I have exhausted all avenues to try and reason and have not got anywhere. This case of mine has been going on for so long and is really dragging me down as there are other things that I need to concentrate on.

Alas I have no choice but to continue to wait although reluctantly. All these sections....section 78 section 89 bloody hell I think by the time my case is finished I will need to be sectioned at a loony hospital LOL

Take care and fingers crossed we get this judgment PT has advised about soon

[Lord_Alcohol]

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

Just trying to think what this might mean for the creditor, and the only conclusion I have come to is that it must be a total nightmare!

Consider this...

A bank has terminated a credit card account on the back of a duff DN. There then follows a lengthy period (possibly a year or more - certainly in my case!) of collection activity, letter-writing, research into the CCA, loss of creditworthiness, stress.

The bank then realises its mistake (thanks to PT!!). But what now are its options?

It can just send a new DN that is compliant and which identifies the original breach (there can be no other) and just forgets about its previous harrassment of the debtor. The debtor could just pay and then the agreement would have to continue. The bank may then just terminate the agreement under non-breach rules, or allow it to continue.

But if it follows this route, it opens itself up to a claim under S140, because there can be little doubt that its actions prior to the compliant DN have formed an unfair relationship, and the unfairness is then compounded by conveniently forgetting about its previous mistake and pretending it never happened.

As the court's powers under S140 are very wide, I would argue that it is very unlikely that a creditor would risk this as it may open the floodgates for a raft of litigation.

Also, I think that the 2008 CPRs "come under" S140, so there is the additional bonus of looking at misleading trading practices; I would think it is highly misleading to claim that an entitlement to terminate is allowed through defective documention.

Alternatively, the bank might write to the debtor, apologising for its mistake, offer compensation and allow the agreement to continue as before. I think this would be extremely unlikely, given the stupidity and greed of our banks.

I reckon the most likely outcome is that the creditor would feel forced to settle in some way, fearing a S140 assault and being reluctant to reopen an agreement to what it must surely still consider a wayward customer.

I think that the only real downer with the HC result could be where there has been very little time between the bad DN and the good, so that the debtor suffers little or no detriment.

Bottom line is that the creditor will have to find some way to deal with the fact that he made a very big mistake, caused serious difficulty (probably) to the debtor, probably breached the T&Cs of the agreement itself, breached Principle 1 of the DPA (the need for fairness and lawfullness) and maybe even dragged the debtor to court; all of which when he had no lawful entitlement.

Some debtors may have been very seriously disadvantaged; for example, losing a car or even a house, when the creditor had no entitlement. I really cannot wait to see the claims about to be made against the banks in these cases.

One final point; let's not forget that a DN is a very, very simple document and very easy to get right first time, especially with all the resources available to the banks. The fact that banks get it wrong so often is, to me, deeply suspicious and I cannot help feeling that it is a deliberate ploy to get the debt sold to a DCA and/or transferred to court for a quicky judgement. After all, it's likely that many defaulters will not be best placed to easily defend on the basis of legal defects, so my view is that if the banks get a good kicking because of this then that is how it should be and it's made me very happy.

Oh, one more final point (), perhaps this might be a way to restrict banker's bonuses? Instead of paying out billions to the risk-takers, they could use a chunk of that to compensate all the poor sods they have unlawfully shafted over the years with their cavalier approach to the regulations?

Just a few thoughts...apologies if this is jumping the gun (which it is!), but patience isn't one of my virtues...



(and let's not forget S89...)

[Angry Cat]

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

Damage and distress, is very hard to prove (DPA)

[basa48]

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

Yes, I think that could be the case, but I assume only if no significant collection/recovery activities have taken place and the debtor has not been troubled by the OC's mistake.

I would also think that issuing duff DNs, claiming they are compliant, and taking all those steps threatened in the DN when not entitled would come under S140.



I would say that there has only been one breach, and S89 requires that the OC allows the debtor to remedy so that "the breach shall be treated as not having occurred". But if there has been a period between the bad and the good DN in which the debtor has been seriously disadvantaged, I would think that S89 could never be satisfied, even if the new DN was fully compliant.

If Part VII of the Act is read as a whole, then this must mean that remedy could never happen because remedy requires that the breach is treated as never having occurred. The OC may have taken actions such as recording the default with the CRAs, and it could be that the debtor has had to put up with this for a year or more, incurring damages costs and more. Therefore the breach can never been viewed as "never having occurred"; there has been too much cr*p thrown at the debtor in the intervening period for that ever to be true.

I would also think that this type of caper by the OC would very definitely fall under the "unfair relationship" category, whether brought to court or not. The court's powers seem very wide under S140, and causing the OC to repay the debtor is one of them.

Just my view, of course. Hopefully PT will be able to enlighten us soon. In the meantime I still think this is great news...

Well yes I didn't think of s89 in that way.

Of course I have defaults on my CR files and have been threatened and cajoled by several DCAs and solicitors over the 15 months since the DN date. I suppose I could claim damage to my credit status plus psychological stress, but no real pecuniary loss.

[Lord_Alcohol]

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

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

Yes, I think that could be the case, but I assume only if no significant collection/recovery activities have taken place and the debtor has not been troubled by the OC's mistake.

I would also think that issuing duff DNs, claiming they are compliant, and taking all those steps threatened in the DN when not entitled would come under S140.

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.

I would say that there has only been one breach, and S89 requires that the OC allows the debtor to remedy so that "the breach shall be treated as not having occurred". But if there has been a period between the bad and the good DN in which the debtor has been seriously disadvantaged, I would think that S89 could never be satisfied, even if the new DN was fully compliant.

If Part VII of the Act is read as a whole, then this must mean that remedy could never happen because remedy requires that the breach is treated as never having occurred. The OC may have taken actions such as recording the default with the CRAs, and it could be that the debtor has had to put up with this for a year or more, incurring damages costs and more. Therefore the breach can never been viewed as "never having occurred"; there has been too much cr*p thrown at the debtor in the intervening period for that ever to be true.

I would also think that this type of caper by the OC would very definitely fall under the "unfair relationship" category, whether brought to court or not. The court's powers seem very wide under S140, and causing the OC to repay the debtor is one of them.

Just my view, of course. Hopefully PT will be able to enlighten us soon. In the meantime I still think this is great news...