Thanks very much this makes it much clearer. Ok, I have looked at the discontinuance notice, do I need to attach a covering letter stating why?

It wouldn’t hurt to put in a covering letter, but do put the claim ref number and parties to the action at the top right of the letter.

Also I think I need to send HSBC a copy of the form/and or letter is that correct?

Yes

Also do I then have to pay any costs after doing this? (I dont have to pay fees Im on income support)

Unfortunately it does look like costs could go against you, see: http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part38.htm

I rang the court up to ask but they couldnt answer any of my questions, they said just to send a letter in. Also the bit on the form where it says to enter the judges name confuses me. It says judge........ granted permission for the claimant to discontinue. do I need to write to the judge first to get permission before sending this form in?

I don’t think so in your case (there has not been any injunctions or undertakings made). Just leave that bit blank.

Thanks very much this makes it much clearer. Ok, I have looked at the discontinuance notice, do I need to attach a covering letter stating why? Also I think I need to send HSBC a copy of the form/and or letter is that correct? Also do I then have to pay any costs after doing this? (I dont have to pay fees Im on income support) I rang the court up to ask but they couldnt answer any of my questions, they said just to send a letter in. Also the bit on the form where it says to enter the judges name confuses me. It says judge........ granted permission for the claimant to discontinue. do I need to write to the judge first to get permission before sending this form in? http://www.hmcourts-service.gov.uk/courtfinder/forms/n279_0699.pdf

upferret:Thanks! I feel a bit less worried now. If I dont do a disclosure order and just sit it out what is likely to happen in the long run?

Not a lot, there will be phone calls, letters, empty threats (look for word like "may" and "might"), defaults, selling on then the merry-go-round starts over.

They get bored after a while, remember that all this harassment cost money and if the return is not forthcoming they will move on to easier targets (who, hopefully, find sites like this!)

S

upferret: ok, thanks for explaining. I do get this, I just want HSBC to admit they havent got an agreement,

They will never do this, if they have one they will stuff it up your nose, if they haven't, they will duck and weave to avoid confirming what should by now be obvious - the cupboard was bare!

upferret: or to confirm that the application form they sent is "agreement" and then I could prove that it was unenforcable.

By sending it they do this, this is what s172 is:

Statements by creditor or owner to be binding.

172. — (1) A statement by a creditor or owner is binding on him if given under—

section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)(c), section 108(1)(c), or section 109(1)(c),

upferret: As they didnt send it with the SAR does this mean that this will count as "my agreement" or could they just produce a valid one in court? (ie un-"reconstituted" one).

If the creditor intends to produce an agreement other than the one disclosed under s78 then they would need to disclose the document pre-hearing or it should be ruled inadmissible by the judge. Court is not a place of trickery and subterfugue (Basa will do the spell check, he usually does!). If the creditor intends a defence then they must provide you with all relevant documents prior to the hearing. The intent of court protocol is to allow the parties to resolve the dispute prior to a hearing. To withhold crucial evidence is malicious entrapment. They risk being censured by the court and the "evidence" dis-barred.

Remember that a re-constituted agreement has no legal value. The act clearly states that an agreement must have certain "prescribed" terms, one of which is your signature. Whilst a photoshop job is possible, court rules require the original to be available prior to the hearing to the parties to the litigation, and to the judge on the day. If they produce a copy which cannot be verified as a true copy (by direct comparison with the original) then its provenance is questionable.

upferret: So, could you explain what I need to do now then please? I havent got a court date yet, I sent the allocation form in at the end of October. I have got copies of all the letters I sent to them and all of their responses and postal receipts for the date sent /amounts of postage. how do I serve a notice of discontinuance to the court and defendant, as recommended? if this is what I need to do now.

Please, do as Basa suggests, get out of the current litigation, you are on a hiding to nothing.

DPA 1998

8. Provisions supplementary to section 7. — (1) The Secretary of State may by regulations provide that, in such cases as may be prescribed, a request for information under any provision of subsection (1) of section 7 is to be treated as extending also to information under other provisions of that subsection.

(2) The obligation imposed by section 7(1)(c)(i) must be complied with by supplying the data subject with a copy of the information in permanent form unless— (a) the supply of such a copy is not possible or would involve disproportionate effort, or (b) the data subject agrees otherwise;

As Huckster often states, these "agreements" are often filed in random order in file boxes in huge warehouses or on un-indexed microfiches. The effort of retrieval would be enormous, and it usually suits the creditor to be so.

All the creditor has to do is plead the above to be true (balance of probability - you cannot refute this as you would have no evidence with which to do so, and it is very likely to be accurate-ish) and your claim fails, they have complied with the DPA and you collect costs without furthering your true case.

S

Thanks! I feel a bit less worried now. If I dont do a disclosure order and just sit it out what is likely to happen in the long run?

Thanks for that. I will send a notice of discontinuance then first, I will look into a declaration order also as I know nothing about it yet.

They would need a lot more than just the agreement to turn up at your door.

Most of the "doorstep callers" are just debt collectors. They have no legal powers so should have the door slammed in their face.

You should not let them, talk to them, treat them with anything other than the contempt they deserve, agree to anything or discuss the debt. Some of them record the call on a phone or similar and that could constitute evidence.

They can only, legally, attend if they make a prior appointment, so don't.

S

First you need to send notice of discontinuance for the current claim.

See: http://www.hmcourts-service.gov.uk/courtfinder/forms/n279_0699.pdf

If you really want to go for a declaration you should first file an N1. This should prompt a defence then allocation then directions for disclosure prior to the hearing.

You can make an application for disclosure prior to proceedings using CPR 31:16 but have to show evidence that proceedings are likely to commence.

To be honest this is foreign waters to me at the moment and it is this procedural element of court action that I find most difficult.

You should really wait for Stubie or Huckster or CMK to advise further.

Thanks, I just wouldnt want baliffs appearing at my door if they actually do have a valid agreement hidden somewhere. How do I apply for a disclosure then?

Their reply to my letter was-

" with regards to you request concerning that the account be closed and the balance returned to 0, please be aware that the effect of unenforcability under the CCA, and such enforcability we aver does not apply in this case, is to prevent a lender from enforcing the credit agreement in court. It does not render the credit agreement void.

While I understand this may not be the response you were hoping to receive, I trust I have now clarified the banks final position on this matter. "

Any response to a request under CCA1974 s.78(1) is binding on the creditor as per s.172(1). Responses to requests under DPA would also be binding.

If you instigate proceedings against HSBC for a declaration you can apply for disclosure after allocation. If HSBC disclose a fully compliant agreement at disclosure you would have a good case for recovering costs and HSBC probably censured by the court for not providing it earlier. Unfortunately it would also mean your claim would then fail.

TBH I wouldn't go down this path, it is expensive and fraught with pit falls (the legislation and procedures are very complex). Unless you get adequate advice first.

I would stick (for now) with telling HSBC they have no mandate and you ain't paying a penny more!

Thanks! I have sent a letter asking them to reduce the debt to 0 , and basically they said no. I will quote the letter I sent tomorrow (after Ive had my beauty sleep too!) to see if its the same one you recommend. Thanks for all your help it is appreciated. I seem to have got into a bit of a muddle here!

ok, thanks for explaining. I do get this, I just want HSBC to admit they havent got an agreement, or to confirm that the application form they sent is "agreement" and then I could prove that it was unenforcable. As they didnt send it with the SAR does this mean that this will count as "my agreement" or could they just produce a valid one in court? (ie un-"reconstituted" one). So, could you explain what I need to do now then please? I havent got a court date yet, I sent the allocation form in at the end of October. I have got copies of all the letters I sent to them and all of their responses and postal receipts for the date sent /amounts of postage. how do I serve a notice of discontinuance to the court and defendant, as recommended? if this is what I need to do now.

upferret:I'm sorry I really dont understand! I am just trying to get my CCA, which they havent given me yet, Im not bothered about my costs , I just want the agreement. all Ive been sent in response to my SAR is an application form which was not filled out by me.

That's the whole point, it seems that HSBC don't have a Credit Card Agreement for your account!! Otherwise they would have sent it. They are trying to fob you off with this application filled in by them.

The further point being that in order to comply the various Acts allow almost anything to be sent in response to the DPA or Consumer Credit Act 1974.

Moving on from that you now have a credit account for which there appears to be no enforceable agreement. Which in turn means they cannot force you by way of legal action to make any more repayments to the account.

What you should have done is ask the court to rule on the rights of the parties to the 'agreement', i.e. to declare it unenforceable according to s.61, 127 and 142 of the CC Act.

You cannot continue with your current claim. It will fail - they have complied with your requests for an 'agreement'. You should file a discontinuance and start again with a new claim asking for a declaration as quoted above.

Don't just fire off another claim form without getting advice from here. This stuff needs to be carefully worded on the correct forms. A judge will only rule on EXACTLY what you ask for. He cannot and will not interpret what you want.

In fact I would first write to HSBC explaining the document (not agreement) does not constitute a properly executed credit agreement and they should reduce the debt to £0.

It's past my beauty sleep time now (I need it!) but will post up a suitable letter tomorrow.

I have just checked, they didnt send me this application form with the SAR, they sent it after two further letters, I dont know if this matters or not.