HSBC DG Solicitors

[Barton99]

In Oct 2010 Solicitors acting for HSBC sent me a county court order for £4321.00 plus interest at 8.000% per annum at a daily rate of 0.95%.

I sent a defence to the court. The last I heard was that it was transferred to Norwich. I understand now that the defence was not sound as it referred to the wrong act. I was unable to get hold of my friend at the time and this defence was recommended by somebody else.

I have just received a letter from HSBC Solicitors today saying that the defence is wrong and they intend to seek judgment.

They have offered that I can pay by instalments but they will still ask for judgement and interest.
I can negotiate but The agreement does not contain the prescribed terms in fact when a friend saw a copy he said it was one of the worst he had seen.


Can I submit a new defence if there is one or an amendment to my original defence?

Any help would be appreciated

[teaboy2]

Re: HSBC DG Solicitors

Yes simply contact the court and ask them about admending your defense and also inform them of the letter you received for the solicitors too as it clear they are trying to push you to accept defeat.

Also if you can provide us more details we can help you with the defence and what Acts of law you need to refer too. Please let us know what act you originally referred too as well as the solicitors maywell be lying out of fear of losing in court against your original defence.

[Gorang]

Re: HSBC DG Solicitors

Hi and welcome Barton99

Given the time that has passed since the claim was submitted (12 months assuming the
date above is not a typo and should read oct 2011) then making a guess here, I would say that the

POC will be very vauge and prob was submitted at a bulk centre
The claim is stayed
The bank has asked for the stay
They don't have naff all to enforce this with, ie. valid DN or an enforcable agreement
And a further guess would be the account was opened pre 2007

Would I be correct in guessing this? ?


If you could post up details of what has all happened so far with this account from when it was opened to present day, and if you can it would be helpful if you could post up a copy of the original POC also your defence you submitted then we could give you more detailed advice

[Barton99]

Re: HSBC DG Solicitors

Many thanks to both of you for your quick reply. The Claim is dated 27th October 2011.

The agreement was signed in 2000. And I have not paid anything since Sept 2009. I have loads of letters from different collectors in this period but it finaly landed with DG

I took some advice from someone as to my defence which they state was wrong. The claim was submitted at the Bulk Centre Northampton then for some reason transfered to Norwich (I live in Co Durham so would want it transfered there)

This is the defence I entered:

Under Section 61 (1 (a) of the Consumer Credit Act 1974 The Agreement with HSBC was not complied with as it did not contain all the prescribed terms of the agreement which was signed by the hirer and on behalf of the creditor.

The prescribed terms under the Consumer Credit (Agreement) Regulations 1983 Statutory Instrument 1983/1553
1/ A term stating the amount of the credit
2/ A term stating how repayments are to be made
3/ Rate of Interest
4/ Credit Limit


Like I say I think it was the wrong defence as it refered to a fixed term

I am attaching a copy of the signed agreement, default notice, court order and copy of the letter sent from DG solicitors

Many thanks for your help

[teaboy2]

Re: HSBC DG Solicitors

And where are the terms and conditions that they refer too?

By the way even though it is a credit card they MUST still state a credit limit it is only loans that a Credit limit is not applicable to, as you only get credit limits on credit cards.

What are the Prescribed Terms for an Unenforceable Credit Agreement?


For a credit agreement to be enforceable in a court of law it must contain a number of prescribed terms. If any contract is missing any of these prescribed terms then it can be deemed ‘unenforceable’ and the debt cannot legally be collected by the lender.
In section 127(3) of the Consumer Credit Act 1974 it clearly states;
(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).
Here is an overview of the requirements of section 127(3) of the Consumer Credit Act 1974. For a credit agreement to be enforceable it must contain the following prescribed terms;
1) Amount of credit
There must be a term on the agreement which states the amount of credit which has been issued
2) Credit Limit
The agreement must include regarding a credit limit or if a credit limit is not required (i.e. in the case of a loan)

3) Repayments
The agreement must contain information on how the debtor is to make repayments. This could be in the form of any of the following points;
a. Amount of repayments to be made
b. Date the repayments are to be made
c. Timing of payments
d. Frequency of payments
e. Total number of repayments (For instance, when a loan is required)
f. The power of the creditor to vary any of the above mentioned
f. The manner in which any of the above is to be determined.
4) Rate of interest
There must be a term referring to the rate of interest to be applied to the credit agreement
Credit Cards;
If you have a credit card then sections 2, 3, and 4 apply to you.

Loans;
If you have a loan sections 1 and 2 apply.
What if my credit agreement doesn’t contain any or one of these points?
You credit agreement does not comply with the Consumer Credit Act 1974 and is invalid. If you credit agreement was to be taken to a court the judge would not be able to make an enforcement order to enable to debt to be collected by the lender.
When this happens the debt effectively sits in ‘limbo’ as it cannot be legally collected and you are not obliged to repay it. Most lenders don’t want loose ends or debts sat in ‘limbo’ as it takes up more of their resources maintaining dormant accounts so in the majority of cases the lender will write the debt off.
Section127(3) also provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor. This basically means a lender needs to be able to supply a ‘true copy’ signed copy of a credit agreement, along with signed terms and conditions in order for it to be enforceable in a court of law. If a lender cannot supply this then the debt can also be rendered unenforceable.
Can I do this myself?
Anyone can take their case to a court and challenge your credit agreements for enforceability but you must make sure you know what you are doing. If you get to court and fail you could end up with a hefty legal bill to pay, just like what happened in the Rankine’s case in back in 2002, where the couple successfully wrote off over £100,000 but ended up with a legal bill which roughly equated to the same amount!

[Barton99]

Re: HSBC DG Solicitors

Teaboy

Thanks for the reply. The terms & Conditions are 14 seperate sheets which I have on my computer they are all small print but legible

Do you want me to post them on the forum?

Thanks

[teaboy2]

Re: HSBC DG Solicitors

No just confirm the terms they refer to in the letter they sent you and whether the agreement itself refers to the terms as over leaf and any dates on both the agreement and terms.

The terms and conditions MUST be contained within the same 4 corners as the agreement itself and usually refers to them as overleaf or below the agreement.

[Barton99]

Re: HSBC DG Solicitors

The Terms are in a seperate book I have attached the front cover the only thing I signed is the page I put on the earlier post The Terms are a seperate consisting of 14 pages including the attachment

Thanks

[Gorang]

Re: HSBC DG Solicitors

Barton

You have left the claim number on the N1 form and your card number on the default notice still visible can you edit that post and remove that 2 Jpegs for your own security as we never know who is looking in

Also I noticed the default notice is date 13/11/09 and is says you have until 27/11/09 to rectify which is only 14 days so it has not allowed for postage time so this may make the DN invalid

BUT

I can't remember when the rectify period changed (if memory serves me right it changed from 7 to 14 days)

Teaboy do you remember when this changed from the top of your head (sorry just thought I would ask instead of digging it out, if you can't remember then i will go digging)

barton if you can remove that jpegs in the meantime

If you can then just blank them out with the paint programme then reupload them just incase they could be of use later on for reference

[CleverClogs]

Re: HSBC DG Solicitors

Also I noticed the default notice is date 13/11/09 and is says you have until 27/11/09 to rectify which is only 14 days so it has not allowed for postage time so this may make the DN invalid

BUT

I can't remember when the rectify period changed (if memory serves me right it changed from 7 to 14 days)

2006 (link)

[Gorang]

Re: HSBC DG Solicitors

2006

Thanks CC

Barton thanks for taking off the POC and DN as you just never know who is looking in or what their intentions are

Could you just confirm that I had the dates on the DN correct the 13th and 27th (I was just gonna check them again to make sure I read them right the first time)

if they are right then that DN is invalid as you HAVE to get 14 clear days from the time it lands on your mat, in which to rectify the default (ie pay up) before they default you, they have not done this, they have only gave you 14 days with postage time included

The last I heard was that it was transferred to Norwich.

Is this your local court?
(If not then you can get the case transfered to your local court)

How did you hear it was transferred to Norwich?
Have you had anything else in from the court apart from the N1CPC? ?
If so, what? ?

Is this your complete defence you submitted or is there more that you just haven't posed up?

This is the defence I entered:

Under Section 61 (1 (a) of the Consumer Credit Act 1974 The Agreement with HSBC was not complied with as it did not contain all the prescribed terms of the agreement which was signed by the hirer and on behalf of the creditor.

The prescribed terms under the Consumer Credit (Agreement) Regulations 1983 Statutory Instrument 1983/1553
1/ A term stating the amount of the credit
2/ A term stating how repayments are to be made
3/ Rate of Interest
4/ Credit Limit

if there is more can you post up the complete defence and the POC again as well please minus the claim number (or just type up what it says)

I would also just keep checking with the court that they are not trying any sneaky moves to get the judgement against you, if there is any other movements on the claim let us know asap

[Barton99]

Re: HSBC DG Solicitors

Gordon/CC/Teaboy

Yes the dates are correct. The full defence is what I posted earlier there is no more.

I received notice of the transfer to Norwich by letter on the 7th Dec. I tried to contact them by phone and was told to phone back in the New Year. When I did speak to them in Jan they told me to speak to the claimant about the case.

Norwich is not my local court I am in County Durham.

I have a receipt of acknowledgement of defence on 15th Nov

I will re-post minus no's

[Gorang]

Re: HSBC DG Solicitors

So I take it that the case is stayed at the moment and HSBC asked for the stay

is this correct? ?

If it is correct what reason did they give for the stay? ?

When was the last time you checked with the court to find out the current status of the claim? ?

If it was not in the last 7 days then phone today and post up exactly what they say

O and one last thing

Have you ever addmitted the debt in any way since they submitted the claim? ?

[teaboy2]

Re: HSBC DG Solicitors

An invalid DN means they can not enforce the debt in court, so you need to add that to your defence.

[Gorang]

Re: HSBC DG Solicitors

Teaboy

That is the direction I was thinking of going
unenforecable agreement
invalid DN
sumbit N244 to amend the defence and also submit a unless order with it along the lines of

supply valid agreement and DN within 5 days or get the the claim struck out

I think chances are they will dismiss the claim if this is submitted

And if they think about submitting a new claim in the future then hit them wiith abuse of process and make them seek the couts permission to proceed with it

would you agree or can you see a better direction to go with this

Barton can you still answer the questions in my previous post first before we take this direction, as it may depend on the status of the claim right now, that could determine if we can go in this direction or not