CL/Cohen court claim form - old HSBC Loan debt need help

[aBitofaPickle]

So is SD the route I should go? Northampton court said it will only be transferred to my local court if Cohen wish to proceed after seeing my defence, but I have recently applied for SD for a different matter and I had to go to the court to swear an oath.

[aBitofaPickle]

Excuse me, fingers running away before brain. It's not a stat demand they've sent out, so can I still apply to set aside?

[ODC]

If its not a Stat Demand then what are you trying to get set asiode:confused:

[aBitofaPickle]

I think there has been some confusion in the responses.

I received a claim from Northampton court re Cohen. I have until 18th January to file my defence.

The claim they submitted is in my first post on this thread.

[pt2537]

ok, cool, now we have some clarity

 

it was a little confusing to say the least

 

so its the defence you need help with,ok cool,

 

not a problem im sure we can help with this,i will have a full read of your thread this evening when i get a minute and see if there is any help i can offer

 

regards

paul

[aBitofaPickle]

Thank you.

[ODC]

Apologies. I think we all got mixed up along the way.

[aBitofaPickle]

Is there any help available with my defence, it has to be in by the 18th.

[Docman]

here's a draft, for what it's worth.

 

Contributions from others gratefully received to improve.

 

IN THE XXXXXXXX COUNTY COURT CLAIM NUMBER XXXXXXXX

BETWEEN:

CL FINANCE LIMITED

Claimant

And

aBitofaPickle

Defendant

 

 

DEFENCE

 

 

1. On 17 December 2007 CL FINANCE LIMITED commenced proceedings against the defendant for £6145.89 plus interest, a debt allegedly incurred under an overdrawn bank account.

2. The Claimant states the debt was assigned them by a deed of assignment dated 28 September 2007.

3. The defendant does not admit or deny the debt, but puts the claimant to strict proof thereof.

4. The defendant has not received a valid notice of assignment for the alleged debt from the original creditor and therefore put the claimant to strict proof that privity of contract exists between the claimant and Defendant.

5. The defendant did enter into a regulated loan agreement with HSBC plc but has not maintained a bank account with HSBC plc.

6. The claimant’s solicitors were requested by letter dated xx December 2007 to produce the following various documents under Part 18.1 of the Civil Procedure Rules viz., a copy of the executed credit agreement, a true copy of the alleged assignment and any default notice from the original creditor together with some form of proof of postage that this notice was sent to the correct address and was served with the proper notice before this claim was submitted.

7. To date, the claimant’s solicitors have not acknowledged the request, nor responded in any way nor supplied the requested documentation.

8. The defendant has not received a copy of any default notice from the claimant, and asks that the claimant provides the court with a true copy of such a notice, and with some form of proof of postage that this notice was sent to the correct address and was served with the proper notice before this claim was submitted.

AND the defendant

9. seeks an order that the claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot be enforced following the claimant’s default in failing to supply a true copy of the executed credit agreement as required by S78 (1) of the Consumer Credit Act 1974.

10. In the alternative, the defendant respectfully asks the court to order the disclosure of the credit agreement, notice of default in the form required by the Consumer Credit Act 1974, and notice of assignment in the form required by the Law of Property Act 1925. [If charges are involved, include this, otherwise delete.]The defendant also requests that the court order the claimant to disclose a list of all charges made to the account and a list of the costs associated with each charge for the last 6 years in order for them to prove that the debt amounts to the amount claimed.

11. The defendant also respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant.

[If you think there may be unlawful bank charges applied, you could always counterclaim by including some words like the following:

COUNTERCLAIM

12. The Claimant has from xxxxx 200x to the present day applied various charges to the account totalling more than £xxxx in the period up to and including 17 December 2007. In addition, the Claimant levied additional interest on those charges totally at least £xxxx

13. The Claimant’s charges which have been applied to the account are unfair under Schedule 2(e) of the Unfair Terms in Consumer Contracts Regulations 1999, which state that ‘a term is unfair if it requires any consumer who fails to fulfil his/her obligation to pay a disproportionate high sum in compensation. In this case, the claimant has charged an amount that is not proportionate to the amount of any payment not made.

14. Further, or in the alternative, the claimant’s charges are a disproportionate penalty and therefore unlawful and irrecoverable at common law. (Dunlop Pneumatic v New Garage [1915] AC 79 and also Murray v Leisure Play [2005] EWCA Civ 963).

AND THE DEFENDANT COUNTERCLAIMS:

The sum of £xxxxxx and interest thereon. ]

[pt2537]

Right then

 

Abitofapickle,

 

i need to clarify something,

 

i have recently come accross a couple of CL threads where the bank had assigned the wrong account, where the original posters had paid off their bank account but had loans outstanding, then CL takes them to court for the wrong account and claims the bank account is the debt and not the loan,

 

Can i confirm, is this what has happened in this case? its just that the information is not sufficiently clear

[aBitofaPickle]

The account numbers in the NOA and Northampton claim form are matching. The debt I had with First Direct was for a loan., but the POC states that the account was maintained without sufficient funds to meet withdrawals made by the defendant.

I don't know if the account numbers provided on the POC or claim form match the loan I had, as I no longer have any paperwork.

Cohen have not responded to my letter for all information they hold.

[aBitofaPickle]

Thanks for that Docman, but I have had the NOA, could I submit it without those parts?

[pt2537]

The account numbers in the NOA and Northampton claim form are matching. The debt I had with First Direct was for a loan., but the POC states that the account was maintained without sufficient funds to meet withdrawals made by the defendant.

I don't know if the account numbers provided on the POC or claim form match the loan I had, as I no longer have any paperwork.

Cohen have not responded to my letter for all information they hold.

 

so am i right in thinking that you didnt have a bank account? or did you have a bank account and loan with FD.

 

im trying to ascertain if they have made an error aand are claiming on the worng account number

 

 

heres one of the threads i was refering to, http://www.consumeractiongroup.co.uk/forum/general-debt/124165-claim-issued-against-me-4.html#post1327029

 

i can help you amend the defence once i am sure i have the full facts

[tomterm8]

Hello, there, Paul has asked me to look in.

 

Can you confirm... have you had a normal bank account overdraft with HSBC?

 

If you did, can you check the account no in the claim against the account no of the overdraft?

 

Also, can you check the account no in the claim against the account no of the loan you took out?

 

all the best

 

tom.

[aBitofaPickle]

I had 2 accounts (with overdrafts) and a loan with FD.

I think the account number they have in the claim is for the loan, but I don't have any paperwork to confirm that.

I'm pretty sure my accounts were closed with no balance.

[aBitofaPickle]

here's a draft, for what it's worth.

 

Contributions from others gratefully received to improve.

 

IN THE XXXXXXXX COUNTY COURT CLAIM NUMBER XXXXXXXX

BETWEEN:

CL FINANCE LIMITED

Claimant

And

aBitofaPickle

Defendant

 

 

 

DEFENCE

 

 

 

1. On 17 December 2007 CL FINANCE LIMITED commenced proceedings against the defendant for £6145.89 plus interest, a debt allegedly incurred under an overdrawn bank account.

2. The Claimant states the debt was assigned them by a deed of assignment dated 28 September 2007.

3. The defendant does not admit or deny the debt, but puts the claimant to strict proof thereof.

4. The defendant has not received a valid notice of assignment for the alleged debt from the original creditor and therefore put the claimant to strict proof that privity of contract exists between the claimant and Defendant.

I have received this 5. The defendant did enter into a regulated loan agreement with HSBC plc but has not maintained a bank account with HSBC plc.

I did have a bank account 6. The claimant’s solicitors were requested by letter dated xx December 2007 to produce the following various documents under Part 18.1 of the Civil Procedure Rules viz., a copy of the executed credit agreement, a true copy of the alleged assignment and any default notice from the original creditor together with some form of proof of postage that this notice was sent to the correct address and was served with the proper notice before this claim was submitted.

7. To date, the claimant’s solicitors have not acknowledged the request, nor responded in any way nor supplied the requested documentation.

8. The defendant has not received a copy of any default notice from the claimant, and asks that the claimant provides the court with a true copy of such a notice, and with some form of proof of postage that this notice was sent to the correct address and was served with the proper notice before this claim was submitted.

AND the defendant

9. seeks an order that the claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot be enforced following the claimant’s default in failing to supply a true copy of the executed credit agreement as required by S78 (1) of the Consumer Credit Act 1974.

10. In the alternative, the defendant respectfully asks the court to order the disclosure of the credit agreement, notice of default in the form required by the Consumer Credit Act 1974, and notice of assignment in the form required by the Law of Property Act 1925. [If charges are involved, include this, otherwise delete.]The defendant also requests that the court order the claimant to disclose a list of all charges made to the account and a list of the costs associated with each charge for the last 6 years in order for them to prove that the debt amounts to the amount claimed.

11. The defendant also respectfully asks the permission of the court to amend this defence when the above documents are provided by the claimant.

 

Thanks so I did have a bank account and I have received the notice of assignment.

Would I be OK editing out 4, 5 and part of 10, and submitting this as a valid defence?

[Docman]

The Notice of Assignment you posted was from CL, not HSBC. You may owe something to HSBC but they haven't informed you that the debt has been assigned, CL have. All you are saying here to CL is prove to me (and the court) that you do own the debt by producing something from HSBC. I would keep Para 4 in.

OK, you have a bank account with HSBC. What state is it in? Is it active, dormant, or have HSBC defaulted you? The idea here is to knock on the head that this claim relates to a bank overdraft instead of the true loan agreement. Can you post up some details of the state of the bank account?

The reference to the Law of Property Act shows what governs the assignment and what should have been sent to you.

[aBitofaPickle]

Thanks I'll take a look at the Law of Property Act, as I did get a letter from HSBC in with the Assignment from Cohen.

All of my bank accounts were closed, I think they were in good order when they were closed but can't be certain of the status. I did already claim back on those accounts because FD wanted to apply the compensation to the debt and I refused.

[Docman]

If you did get a letter from HSBC, have alook at some of the threads which deal with valid assignments. I'm just coming off lunch now, but I'll try to find a couple of references.

 

with regard to the bank accounts, you will need to excplain that the accounts were closed in good order and that the claim relates to a regulated loan account. Did you get a default notice for the loan account? I ask to clarify whether it was the bank who have turned a loan into an overdraft or whether it is a mistake by Cl. Either way if they produce the documents, it will become claer. Finalyy, did you settle the compensation? If FD agreed a figure, but then didn't apply it to the loan but have assigned the full balance of the ooutstanding loan, then the assignment will be invalid anyway.

[aBitofaPickle]

I'd appreciate that, I've been searching since this morning for "law of property" to try and find what would constitute a valid assignment, but haven't turned up anything yet.

I am not certain that this claim does relate to the loan. I think it does, but I have moved 3 times since these accounts were closed and I can't find any paperwork or reference to these accounts.

I don't think I have had a default notice, I certainly haven't from CL Finance.

The compensation was settled, FD sent me a cheque.

[tomterm8]

Halsbury's Laws of England/CHOSES IN ACTION (VOLUME 6 (2003 REISSUE))

 

6. Legal choses in action.

Legal choses or things in action1 are those which formerly2 could be recovered or enforced by action at law, for instance, a

debt, a bill of exchange, or a claim on a policy of insurance3, or which are created by statute and can be legally owned4.

10. Modes of transfer.

The transfer of a chose or thing in action may be effected by a legal assignment in accordance with the provisions of the Law

of Property Act 19251, or by an equitable assignment, that is, an assignment which is effective to pass an equitable, though

not a legal, right to the chose in action2. In addition, assignment at law is possible under the three exceptions to the common

law rule, namely: (1) in the case of certain particular choses in action, by an assignment in accordance with the provisions of

special statutory enactments3, the most important being stock and shares in incorporated companies4; or (2) in the case of

certain negotiable instruments, by delivery of the document under the law merchant5; or (3) in the case of a transfer by or to

the Crown, under the special privileges the law allows in such a case

12. Provisions for legal assignment of debts and other legal things in action.

Provided certain conditions are complied with, any debt or other legal chose or thing in action1 may be assigned so as to vest

in the assignee the legal right to the same and all the remedies for it, with power to give a good discharge without the

concurrence of the assignor2.

The conditions which must be complied with are: (1) the assignment must be in writing under the hand of the assignor; (2)

the assignment must be absolute, and not purporting to be by way of charge only; and (3) express notice in writing of the

assignment must be given to the debtor, trustee, or other person from whom the assignor would have been entitled to claim

the debt or thing in action3.

Such an assignment takes effect from the date of the notice4 and will be subject to equities having priority over the right of

the assignee5.

The provisions described above do not affect the enactments6 enabling assignees of policies of life assurance granted by

assurance companies to sue on them in their own names7; nor do they apply to any transfer of title to uncertificated units of a

security8 by means of a relevant system9 or to any disposition or assignment of an interest in uncertificated units of a security

title to which is held by a relevant nominee10

13. General effect of statutory provisions.

The provisions relating to assignment1 did not create any new rights, but they enabled the legal right to a debt or other chose

or thing in action to be transferred to the assignee, together with all legal remedies, including the right to sue in his own

name2. They have not made assignable contracts which were not assignable in equity before3; nor, on the other hand, have

they impaired the efficacy of equitable assignments which would previously have been valid4. The statutory provisions

effected an improvement in the position of a donee of a legal chose in action by enabling him to sue at law in his own name

as assignee without regard to whether or not the assignment was for valuable consideration5. To be a valid assignment within

the provisions described above, an assignment must be of the whole debt or chose in action6.

14. Meaning of 'debts'.

To be within the relevant provisions of the Law of Property Act 19251, the debt must be a debt of a definite sum2. An

assignment of the balance which may remain after satisfying a third party debt order is effective and attaches to the balance

in the hands of the debtor after payment into court under the order3.

An absolute assignment of a specified future debt is within the Act4; as, for example, the balance standing at any time after

the date of the assignment to the credit of the assignor at a bank5, or future rents6, or a retention fund under a building

contract7.

Examples of debts within the Act include the following: a debt due on the covenant in a mortgage deed8; rent already accrued

due under a lease9; a judgment debt10; a balance11, or a deposit12, standing to the assignor's credit at his bank; the amount due

on a solicitor's bill of costs, even before the delivery of a signed bill13; a debt due from a solicitor to a town agent14; a debt

certified as due from a company in liquidation15; and the balance due to a legatee of his share in the residuary estate of a

deceased person16.

[Docman]

Have a look at a thread on "Deed of Assignment". Sorry I can't attach the link at present.

[pt2537]

Hi bitofaPickle

 

right then, i recieved your pm, what is it that you would like help with?

 

let me know and i will see what i can do to help

 

regards

paul

[master woody]

Was following this thread, any chance of an update?

 

 

Thanks

 

 

 

woody

[aBitofaPickle]

I sent back the defence through MCOL pretty much as docman wrote it (many thanks) I have not heard back yet.