Hi, Ljovies The 1974 Consumer Credit Act made debts taken out before April 6th 2007 unenforceable (even by a court) if the original credit agreement did not contain certain details, known as the "prescribed terms". It is thought that a large proportion of credit agreements drafted before this date do not meet the stipulations as laid down in the Act, and that they are therefore unenforceable. The very basis of their validity in law is unsafe. This will give you extra ammo to get Cabot to remove the default from your credit file.

Could anyone offer guidance on if i should put the N244 form in because i want the default removed from my credit file aswell as all my costs back. Is there another route i could take as the default which is still on my credit file is unlawful as i never had the money from HSBC originally? I have found the below case law which awards alot more than i can claim on the small claims track for an unlawful default: Case Law Kapohraror vs Woolwich Building Society (1996) where the claimant was awarded £5,500, the amount being £1,000 for the damage caused by the default and £4,500 being the value of the default. Lord Justice Evans said at page 124 "The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in holding that what is in effect a presumption of some damage arises in every case in so far as this is a presumption of fact." In the above, damage is automatically assumed in every case of a default, therefore no further information from the claimant is required other than the proof of the default existing in the credit files. In today’s figure the awarded amount of £1,000 would be around 25% higher than in 1996, according to The Office of National Statistics. In King v British Linen and Co (1897) the loss to credit rating was valued at £100 where no specific damage could be shown. In 2008, this figure is equal to £9,975. In Wilson v United Counties Bank (1919) the award was £7,500 which would translate as over £17,000 with today's price index. The case was similar to the one above. Richard Durkin v DSG Retail and HFC Bank (2008) provides a more recent precedent with regards to the damage suffered as a result of a default and the claimant was awarded £8,000 plus an additional sum of around £108,000 for the loss suffered in not being able to use credit in a normal manner, loss of potential property and interest gains etc. What court form would i make this order on and what would the fee be? Cheers

I have uploaded the Points of defence i filed with the court and served to CL Finance which resulted in the case being discontinued by Howard Cohen/CL Finance. Hope this helps others. CLAIM NUMBER: xxxxxxxxxx CLAIMANT: CL Finance ACCOUNT: xxxxxxxxxxxx DEFENDANT: The Munksy DATE: 19/07/10 Points of Defence I The Munksy am the defendant in this action and make the following statement as my defence to the claim made by CL Finance. I The Munksy make application that the judgement is made in my favour and all costs as detailed in my Schedule of costs (document 2) are upheld and judgement given for an order of payment from CL Finance to myself as a single payment. I enter into the court (as document 1) a copy of a Statement for my account: xxxxxxxxx showing my account was closed on the 12/08/2008 with a balance of £0.00 showing no money is owed on the account. (the original of this document will be available at the hearing). I enter into the court (as document 2) a schedule of costs. I also enter an embarrassed plea as the claimant’s statement of case is insufficiently particularized. Due to the insufficient documentation from the claimant by way of their failure to provide documents I am not on equal footing and as such I cannot admit or deny any allegation made in the claimants particulars of claim. If it is stated that any money was paid into my current account xxxxxxxxxxx for an overdraft, withdrawals made by myself or for a Loan I put CL Finance to strict proof to provide an account statement to show these funds were ever paid to me or ever showed in my account. I request that this document is available at the hearing on the 04/08/2010, if this document cannot be supplied at the hearing I make application that the judgement is made in my favour as I do believe I never received the funds nor spent the funds but as no documentation has been forthcoming from CL Finance I cannot confirm or deny this. As the only document that has been provided by CL Finance is an incomplete badly reconstructed Credit agreement for a Loan for £2,610.00 which to my knowledge I never applied for this loan and never received the money. And due to the lack of documentation IE: a bank statement showing this money was paid into my current account which I believe cannot be provided by CL Finance because the loan was never applied for and the money never put in my current account. To date to my knowledge and documentation that I have been provided this amount of £2,610.00 has not been paid into my current account from November 2007 to the current day today 19/07/2010. No Credit agreement and full breakdown of the State of the account including the amount currently payable, dates and amounts of payments made notice of default and debt assignment to any third party has been provided by CL Finance. A written request with a £1 postal order was sent recorded delivery to CL Finance on the 09/11/2009 for these documents. As CL Finance has failed to supply these documents it has committed an offence under section 78 of the Consumer Credit Act. Under the civil procedure rules PRACTICE DIRECTION 16 I put CL Finance under strict proof that to provide a Credit agreement and request that the Original true signed copy is available at the hearing in court on the 04/08/10 as detailed below: Section 7.3 Where a claim is based upon a written agreement: (1) A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) be available at the hearing. The Assignment of the Debt I put CL Finance under strict proof that they have lawful assignment to this debt as detailed below: 1. If the Claimant was not HSBC Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court. 2. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:- 136. Legal assignments of things in action. — (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice— 3. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:- 196. Regulations respecting notices. (4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. 4. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery). 5. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action. 6. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824) 7. It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169). The Munksy STATEMENT OF TRUTH I, The Munksy BELIEVE THE ABOVE STATEMENT TO BE TRUE AND FACTUAL. SIGNED: DATE: Points of defence.doc

Howard Cophen discontinued the case 1 day before the hearing. But as i have incured costs during this i want this looked into. I complained to the court about this and the DJ said that if i wanted to pursue this further for costs or any other reason that i need to make this on an N244 form and pay another £75. Should i apply on an N244 form for the default to be put in my favour, the default to be removed from my credit file and for my costs to be awarded? All advice welcome.

A quick update, (as i forgot to mention this before) After the 10/05/10 came rolling around i rang the court asking if the CCA had been provided and if not is the Judge going to strike out and award costs to me? I was told no evidence had been supplied by CL Finance/Howard Cohen but that they had asked for another hearing. I sent a letter to the court stating i was putting in my Opposition to a hearing quoting the fact that CL Finance/Howard Cohen had still not provided the CCA. I rang the court for an update and was told the Judge had put an order in for another hearing but this would be for Small claims. Now as the CCA has still not been given to me so i can not defend this case how can another hearing be granted and should i ask for a strike out? Has anybody got an example stike out letter drafted? Thanks for all the help.

Ok i will send CL Finance a SAR and a covering letter requesting the copies of the paperwork they have submitted for this second hearing of small claims. Recorded delivery or course with a £10 postal order for the SAR. Anything else i should consider?

Ok i see what you were getting at now. So in your opinion this is the best course of action. Now if i send the SAR to HSBC can CL Finance/Howard Cohen claim in court that as i did not send it to them then this is not their fault and because i did not recieve any documents this does not affect the case? Should i send it yes/no and who should i send it to? Thanks for all your help.

Hi supasnooper, I don't think i have got it wrong, i paid them a £1 postal order for the CCA request to which they have not provided. All i was stating was i did not think it was a good idea to pay them £10 for the SAR as they have allready not provided the credit agreement for my CCA request. They have provided me with a copy of a 3rd credit agreement which they brought to court which was for an unknown account number which the CCJ is not given on, this what they claim HSBC provided them. On the CCA request as asked for proof of who they sold this on to and dates, which is another reason with the above that i don't think i would get any further with sending a SAR to either HSBC/CL Finance of Howard Cohen (any opinions on this are welcome). What i want clarification on is if the account number on the credit agreement is different to the one they applied for the CCJ on can they use that credit agreement in court? They applied for the CCJ on a current account, the Credit agreement is for a Loan account with a different account number. this is why the CCJ was set aside. I applied for a strike out on these grounds on the N224 but now it has gone for a second hearing for small claims after the first hearing the Judge set aside the CCJ. Thanks

Thanks for the reply Miss Muppet. No I never did a Subject Access Request mainly for the fact that i was unable to dispute the CCJ until after it was given (i had no evidence one way or the other). I eventualy found my bank statements for AUG 08 which is the time i closed my accounts with HSBC. My current account i closed with a zero balance, and the same for the loan account. This is why i sent the CCA request and not a Subject Access Request as it was the credit agreement i wanted to see as i knew i didnt owe the money. At this stage would it be wise to send an SAR paying them £10 as they have allready failed to comply after 8 months with responding to the CCA? I dont want to give them any money and as they cannot provide a true signed or complete credit agreement on any of my 2 accounts or this 3rd fictitious account i dont want to give them any more oppotunity to come up with anything else, if they have not given it me before the hearing they will be unable to rely on it in court (if i am correct). As for the CPR 31.14 they provided me with a copy of this 3rd account credit agreement in court so i dont think i need to do this. Am i right in thinking that if the CCJ was given on my current account number and that if the account number is not changed that any other account number they try to bring up in court or provide documents for has nothing to do with the case and cannot be used? As the court has said it will be 6-8 weeks before my small claims hearing i have a while to make my defence but do not know what else to do? Should i send the SAR to CL Finance without £10 stating that if they require a fee for this information then they will need to contact me in writing requesting this stating i have allready paid them a £1 postal order for the CCA request for which they have still not provided and give them the standard 40 days to respond to it? Thanks in advance for any help/advice. Consumeractiongroup has been my guiding light during this whole case donations a plenty if i ever get any money back.

Hi please can someone offer advise on the small claims track which my claim is now going down I admitted liability to the CCJ as i was unable to provide any evidence to dispute it. I then was able to dig up some evidence proving i had paid off my current account and loan with HSBC and closed the account with a zero balance. The account number that CL Finance applied for the CCJ is my current account and this account was as explained above closed with a zero balance. They then brought to the hearing a credit agreement with a third unknown account number which i have never had and this was a photocopy of a loan credit agreement which was unreadable in parts with missing pages. This 3rd account to which i do not have any idea about does not even show on my credit report. The Judge agreed this did not relate to the CCJ and set aside the judgement. To date CL Finance/Howard Cohen have not provided any evidence on the CCJ account number to me 8 months after i sent them a CCA request this was 3 months before the hearing which the CCJ was set aside. I completed the claims form which the court sent me after the set aisde had been given which had to be entered at the court by 10/05/10. CL finance have requested another hearing and the Judge has put in an order for this to be done as a small claims hearing. Please can somebody give me some guidance on the small claims hearing and what to expect? Is this the same as the previous hearing, should i just enter the same evidence as before. I would also appreciate guidance on claiming costs and the money i paid CL Finance due to the CCJ being awarded by the court. I have paid them monthly payments (5 payments) until i was awarded the set aside. All advice and guidance appreciated.

Hi please can someone offer advise on the small claims track which my claim is now going down I admitted liability to the CCJ as i was unable to provide any evidence to dispute it. I then was able to dig up some evidence proving i had paid off my current account and loan with HSBC and closed the account with a zero balance. The account number that CL Finance applied for the CCJ is my current account and this account was as explained above closed with a zero balance. They then brought to the hearing a credit agreement with a third unknown account number which i have never had and this was a photocopy of a loan credit agreement which was unreadable in parts with missing pages. This 3rd account to which i do not have any idea about does not even show on my credit report. The Judge agreed this did not relate to the CCJ and set aside the judgement. To date CL Finance/Howard Cohen have not provided any evidence on the CCJ account number to me 8 months after i sent them a CCA request this was 3 months before the hearing which the CCJ was set aside. I completed the claims form which the court sent me after the set aisde had been given which had to be entered at the court by 10/05/10. CL finance have requested another hearing and the Judge has put in an order for this to be done as a small claims hearing. Please can somebody give me some guidance on the small claims hearing and what to expect? Is this the same as the previous hearing, should i just enter the same evidence as before. I would also appreciate guidance on claiming costs and the money i paid CL Finance due to the CCJ being awarded by the court. I have paid them monthly payments (5 payments) until i was awarded the set aside. All advice and guidance appreciated.