newcomer - glad I found out about you

[lochlisa]

hi all,

in Court next Monday

HSBC after me. Priority Application Form reconstituted being used. HSBC admit they have a copy of original on microfiche but it is not legible and they will not be submitting it.

Claimed agreement was signed 5 Jan 2005. I have asked for a Strike Out as they do not have any enforceable document to present to court. They are after a SJ on my defence saying that they will present case law at the hearing but will not divulge it before hand and that they will rely on the reconstituted agreement to obtain the SJ.

I entered defence of not owing what they are after as their POC's only mention an agreement, the date signed and quotes an account number that is A) nothing to do with me and B) different from the paperwork number they submitted

ANy late advice for me on here?

They claim that the original agreement (Priority application form) covers 4 pages and contains all the T's & C's. I believe that as the T's & C's are not contained within the 4 corners of a single document then they are not valid anyway PLUS they will not produce anything with my signature PLUS how can they have a valid reconstituted copy when they admit they cannot read the microfiche copy because of legibility issues?

Lisa

[Never-In-Doubt]

Re: newcomer - glad I found out about you

Thread moved to the legal section (unprotected) - best of luck, hope things go well for you...

Due to timescales not much help I can offer, however here's hoping Paul. makes an appearance.....

Niddy :niddy

[Undercover Elsa]

Re: newcomer - glad I found out about you

Morning Lochlisa,
Just giving this a bump for you.
I imagine they are going to try and twist round the Carey judgement. I asume as you've got to this stage you are familiar with this case?
Have a look at this thread by another member in similar circumstances.


As your case is tomorrow, If you get no further response by midday, I would hit the red triangle and ask the site team for help...
Hopefully though Niddy will see this and ask Paul to look in if he's available

kind regards,

Shepherdess x

[lochlisa]

Re: newcomer - glad I found out about you

Morning Lochlisa,
Just giving this a bump for you.
I imagine they are going to try and twist round the Carey judgement. I asume as you've got to this stage you are familiar with this case?
Have a look at this thread by another member in similar circumstances.


As your case is tomorrow, If you get no further response by midday, I would hit the red triangle and ask the site team for help...
Hopefully though Niddy will see this and ask Paul to look in if he's available

kind regards,

Shepherdess x

good morning.

yes I am aware of Carey and its implications. I have also discovered that the interest they have been charging since default and issue of 'summons' is not the interest detailed on the reconstituted agreement so I think I can show that the reconstituted is flawed and not accurate. The reconstitutes they have supplied are also different, one has my details typed, one has them written and both have different boxes ticked within them.

I am also in hope that the Judge roasts the other side for being so arrogant as to submit their paperwork and state 'we intend relying on case law that we will produce on the day' which is so against principles of fair justice and if I don't win my strike out then I shall be demanding an adjournment with costs against the other side for the way they have behaved.

I got a nice costs order from them yesterday morning and they will have got mine as well

Finger is ready for red triangle come 12 noon, thank you

Lisa

[Never-In-Doubt]

Re: newcomer - glad I found out about you

I'll ask Paul to pop in, in the meantime try not to worry too much.
Niddy

[Paul.]

Re: newcomer - glad I found out about you

couple of things come from carey firstly,

It seems to shift the burden onto the debtor to make an allegation that the agreement was never signed, or that the agreement signed was improperly executed in some way either cos of omission of prescribed terms or other statutory content.

So, one has to ask firstly what your position is here, are you saying that you never signed either

A) an agreement

or

B) an agreement which never contained the prescribed t erms and thus was unenforceable from its inception?

It seems to me from experience that the Courts are happy to find against debtors in the absense of such an allegation if the creditor is able to place on the table a document which it says the debtor would have signed and the creditor supports this with witness evidence.

i express no opinion on whether or not this is correct, only that this is what i have seen the Courts do.

I must pause for a moment before moving on to section 78 CCA 1974 and raise one other point of concern. If you have not pleaded the issues within your Defence then you may be denied the chance to rely upon them at the hearing, however, if the issues have become apparent after the defence was filed, then i would suggest apologising to the judge and asking him to consider granting you relief from any sanctions that he may impose per CPR 3.9 which allows him to allow you to rely on this late point, if of course it was not already in play in the course of these proceedings.


Now then,

Turning to the Recon,

If thhis has been provided by the Bank in reply to s78(1) CCA 1974, then you can see their Carey, and raise them Kotecha v Phoenix Recoveries Court of Appeal ruling.

If the recon is not accurate then you MUST highlight this to the Court especially if the Interest rates are wrong, and point the judge to Lord Justice Lloyds Judgment in Kotecha, as he says Interest is of central importance to the debtor and must be stated correctly, if the creditor has not then it cannot enforce the agreement and per Cabot v Bachellier the Claim ought to be dismissed.

I hope this assists, i cannot help further as my wife will divorce me if i spend any longer on the PC today

[lochlisa]

Re: newcomer - glad I found out about you

couple of things come from carey firstly,

It seems to shift the burden onto the debtor to make an allegation that the agreement was never signed, or that the agreement signed was improperly executed in some way either cos of omission of prescribed terms or other statutory content.

So, one has to ask firstly what your position is here, are you saying that you never signed either

A) an agreement

or

B) an agreement which never contained the prescribed t erms and thus was unenforceable from its inception?

It seems to me from experience that the Courts are happy to find against debtors in the absense of such an allegation if the creditor is able to place on the table a document which it says the debtor would have signed and the creditor supports this with witness evidence.

i express no opinion on whether or not this is correct, only that this is what i have seen the Courts do.

I must pause for a moment before moving on to section 78 CCA 1974 and raise one other point of concern. If you have not pleaded the issues within your Defence then you may be denied the chance to rely upon them at the hearing, however, if the issues have become apparent after the defence was filed, then i would suggest apologising to the judge and asking him to consider granting you relief from any sanctions that he may impose per CPR 3.9 which allows him to allow you to rely on this late point, if of course it was not already in play in the course of these proceedings.


Now then,

Turning to the Recon,

If thhis has been provided by the Bank in reply to s78(1) CCA 1974, then you can see their Carey, and raise them Kotecha v Phoenix Recoveries Court of Appeal ruling.

If the recon is not accurate then you MUST highlight this to the Court especially if the Interest rates are wrong, and point the judge to Lord Justice Lloyds Judgment in Kotecha, as he says Interest is of central importance to the debtor and must be stated correctly, if the creditor has not then it cannot enforce the agreement and per Cabot v Bachellier the Claim ought to be dismissed.

I hope this assists, i cannot help further as my wife will divorce me if i spend any longer on the PC today

thank you Paul and I hope the wife doesn't beat you up !!

I am not leaving the house until lunchtime monday so might have some time in the morning.

I have asked for a strike out as HSBC have not supplied any documentation that is enforceable. They have admitted that the copy on microfiche is not legible and they will not rely on this. The recon is a Priority Application Form that they say I signed in 2005. The APR on it is 9.9% but their POC is for the amount plus 19.8% interest and it refers to an account number that is different from that on their submitted paperwork.

My defence against them is very basic as I do not owe what they allege on the account number they have provided in their POC. That is all that is in their POC, nothing else. So, how can I defend anything else if it is not detailed in their POC?

In their SJ application they claim they will disclose on the day the case law that shows they are entitled to pursue the debt. The case law has not been disclosed prior to the hearing and they have also not supplied a witness statement either.

I have asked for a strike out as they have no enforceable document, have not complied with CPR's by not supplying the case law they intend relying upon, they have confirmed they do not hold a legible copy of the original agreement so how can they claim the recon is a true copy if they cannot read the copy of the original?

We have not even got to AQ as they submitted SJ before that point and that is why I submitted a strike out application.

Their recon is to satisfy s78 and they also intend using the recon to obtain judgment, they have admitted they intend relying on the recon as the original on microfiche is not legible.

I hope you get the chance to have a look at this before I go on Monday

thank you for all your help, Lisa

[Paul.]

Re: newcomer - glad I found out about you

The test for summary judgment is laid out in part 24 of the CPR

They must show that there is no real prospect of you defending the Claim at trail and there is no other compelling reason why there should be a trial.

The test you need to satisfy is the same almost, but set out in CPR .3.4(2)


ill have a ponder on this