CCJ pending for HSBC overdraft from 2007

pureangel

Apologies if I was meant to post in Bank accounts rather than here but not sure where to post

Please advise about big bad HSBC off-shoot companies:

I signed up to a HSBC bank account when 14years old, I then had a student account at university and a graduate account for my second degree. As an adult I have never signed any credit or finance agreement with HSBC but was given railcards and freebies when they changed my account each time- I still signed nothing direct.

In 2007 I had an overdraft of £2,500 and had never been over my limit. I enquired about a graduate loan and my problems with HSBC started as I did not agree to take it out but said I was going to pause studying for a year to look after my mother in hospital. I was -£2,200 in my overdraft, they cancelled my account for non use over a 3 month period, despite it being used and said there was no money going in. I put £300 in, to reduce it to -£1800 my student loan also went in, but they transferred my account to Metropolitan collections services whom called several times a day and said they were arranging bailiffs. I had to argue with them that HSBC still accepted my student loan term payment so it should be reduced to -£1100.They did this and I arranged a minimal payment plan which I kept being harassed to increase or they will add charges. I returned to finish my course and wrote to them not to harass me and I will change my £1 repayment to £50, please do not call. They called me and harassed me prior to exams which I failed.

I wrote to them saying I will be pursuing compensation for harassment and they wrote off my debt. I did not cancel my £50 monthly repayment until 2013 when I discovered I was still paying this. I called Metropolitan Collection services and DG Solicitors and was told I had no debts with them, my credit files showed no debts. So I wrote to them and HSBC credit services in triplicate pointing out as they have written off my overdraft (not debt) then I am no longer pursuing compensation.

In 2016 Cabot wrote to me asking for payment of £1800 and I wrote to them and asked them for credit agreement plus told them there was nothing. I heard nothing until 6 months ago, when Cabot wrote again and now Mortimer Clarke Solicitors are involved and are pursuing a county court judgement for £2000 inc. fees in Northampton, about a 100 miles away from either of us.

Do I just write to the court to say, I dispute the whole amount, there is no credit agreement and no payment / correspondence since 2013 which confirms the debt being written off in 2011? I will defend all this claim and I contest jurisdiction as it is deliberately in a remote place

sourcrates

Hi,

You don’t sign a credit agreement for a bank account, acceptance is by use of the account, which you don’t deny.
When in 2013 did you stop paying the debt ? as it may be statute barred now, however you have been writing to them, in triplicate, which counts as acknowledgement.

Its unlikely the debt was written off, even though that’s what you were told, the debt will have disappeared from metropolitan’s system, so the person you spoke to made an incorrect assumption, telling you it was written off, when in reality it was sold to Cabot.

If you have confirmation in writing the debt was written off, then you can use that as a defence, forget the other side shows, you don’t actually go to court, Northampton is a bulk processing centre for the major banks, have they sent you an actual claim form ?

pureangel

Hi Sourcrates,

Yes it does appear sold to cabot whom have sold it on to Mortimer Clarke Solicitors. I have no confirmation but a lack of response to my letters sent recorded delivery in 2013.

I have received a claim form for the County Court Business Centre, which says I need to reply within 14 days. There is also a counter-claim section which I am tempted to fill in.

Am I allowed to ask for a court in London, if it comes to attending.Do I write to the court to state it is statue barred. My letter to cabot denied any debt or responsibility and they went quite almost 5 years ago until 6 months ago and those letters were sent to my parents house so they were returned in the post.

CakeCrusader

You can try to fill in 'statute barred under the Limitations Act because...' as a defence, you need to be absolutely certain that you haven't made any payment or acknowledged the debt in writing for the past 6 years though (5 in Scotland). You can also request that any hearing is in a court that is closer to you too. Just make sure you do fill it in and send it off as they will be awarded a CCJ against you by default if you don't get it there in time or if you don't send it at all.



Companies like this just buy debts in bulk, they don't usually have a great deal of information about them so won't know that it was/wasn't written off etc. As far as they are concerned you're just like everyone else who won't pay their debt so they aren't going to take your word for this.

sourcrates

Mortimer clark are just acting on behalf of Cabot, they bulk process court claims for them, time is of the essence here, have you acknowledged service online ?
By doing so you extend the time frame to 28 days i beleive, to submit your defence.


Personally i would go down the statute barred route as my defence, the Legal Beagles site contains very good information on what your next move should be, i suggest you check it out for more advice :


https://legalbeagles.info/forums/forum/legal-forums/court-claims-and-issues

pureangel

wow, there is a whole website forum dedicated to them. I am slowly reading it and have put in a statute barred defence although Mortimer Clarke shisters have sent me a letter stating they will be applying for the court to give them a judgement in their favour, having recieved my defence plus they want me to give my personal details and finances to them - I don't think so.

Thank you for your response and to everyone who has responded. I feel happier as if I win I have nothing, and if I lose I can use their arguements to pursue money owed to me on my original HSBC account (I have never paid to a third party as in 2008 I refused to with DG Solicitors and they agreed as part of HSBC I can continue to pay back to HSBC account).

Just_Di

pureangel wrote: »

I signed up to a HSBC bank account . . . . and a graduate account for my second degree. As an adult I have never signed any credit or finance agreement with HSBC . . .

. . . In 2007 I had an overdraft of £2,500 . . .

In 2016 Cabot wrote to me asking for payment of £1800 and I wrote to them and asked them for credit agreement . . . I heard nothing until 6 months ago, when Cabot wrote again and now Mortimer Clarke Solicitors are involved and are pursuing a county court judgement for £2000 . . .

Do I just write to the court to say, I dispute the whole amount, there is no credit agreement and no payment / correspondence since 2013 which confirms the debt being written off in 2011? I will defend all this claim

I do hope you have ticked the box stating your intention to defend all of this claim.

Overdrafts are covered by s78 Consumer Credit Act.

I'm surprised that Cabot don't know that when they issued a claim against you since they lost on this specific legal argument in April 2019 when a Circuit Judged ruled against them in the case of MFS Portfolio Ltd v Phelan & West (Appeal).

I'll explain the relevance of this judgment here >


"The claim against our clients in this case was for monies owing under a personal Current Account Overdraft. We lost at first instance before a District Judge in Peterborough County Court and appealed the decision before HHJ Walden-Smith sitting at Cambridge County Court.

The Appeal was successful yesterday. This is an important case because it confirms that consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. In this instant case the Appeal court found the personal Current Account Overdraft agreement to be unenforceable pursuant to the Consumer Credit Act because of lack of evidence of compliance with the requirements of the OFT determination.

It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans. In this case the Appeal court did find that MFS Portfolio Ltd had complied with the S 78 Consumer Credit Act request. If they hadn’t complied with the statutory request then the[/I] personal Current Account Overdraft would have been unenforceable pursuant to s.78 (6) (a) Consumer Credit Act , which is contrary to the position creditors normally take.

The court also positively approved of the principle established in a European case ruling we put before the court that it is for the creditor to prove statutory compliance. The court did not appeove of the District Judge’s earlier decision in the lower court that our client not recalling something somehow reversed the burden of proof onto our clients and away from the Claimant.

The appeal court also found that MFS Portfolio Ltd had not proved the Assignment to it from the original creditor. "


My suggestion is you should send a formal s78 CCA Request to the Claimant (including the £1 statutory fee) asap unless you have already done that (and pleaded/referenced it in your Defence).

I hope this helps you to defend your claim

Di

WhenIam64

they lost on this specific legal argument in April 2019 when a Circuit Judge ruled

The appeal court also found that MFS Portfolio Ltd

What is the level of the judge that gave the ruling. You use appeal court in lower case which suggests the argument is persuasive but not binding.

Is there something moving along to a higher court or is this something in the pipeline?

Edit: Although you quote the ruling a judge may want a copy of a transcript to see the reasoning. Is there one available?

Just_Di

WhenIam64 wrote: »

Although you quote the ruling a judge may want a copy of a transcript to see the reasoning. Is there one available?

Only parties involved in the case (and their legal representatives) can obtain a transcript - so yes my firm has one.

Di

WhenIam64

so yes my firm has one

There is still the issue of how can a judge access the ruling, understand the ratio, and apply it to the facts of the particular case in hand?

This article (page 33) has the title "Good News for Debt Purchasers" and suggests debt purchasers can access the court. Makes interesting reading.

https://www.ccta.co.uk/wp-content/uploads/2018/06/CCTA-Magazine-Summer_12553_web-FINAL.pdf

Assume this is the one that went to the Circuit judge but no further?

Perhaps this may be the reason for the rush to issue GSO's so I'll go and check.