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

[aBitofaPickle]

Thanks Steven, that helps me to understand how to set it out. I have not been directed by the judge to submit a defence. When I went to court for speeding, I was instructed to submit my defence. Is it different for financial matters?

[aBitofaPickle]

Reading a little further through the link you provided. I have not received any direction from the judge, only the date of the hearing. How will I know if he has ordered the directions I proposed in my AQ?

[steven4064]

You get the chance to submit a defence when you get the claim form from the claimant - you have 14 days to acknowledge that you have received the claim and, provided you acknowledge service, you have 28 days from the date of service to provide a defence. The statement of case gets sent to the court and claimant and outlines your argument and what is the significance of all the bits of evidence you send in and how they hang together. It is also a useful 'crib' for you to use in court. You don't have to have one, but they are very useful.

[aBitofaPickle]

OK, so I have already submitted my defence on MCOL and need to build on that with the statement.

Should the judge have directed on the proposals in the AQ?

[steven4064]

The judge can choose wherether to act on the drafy orders or not - they were only a suggestion after all If he has not, then so be it.

[aBitofaPickle]

mmm, understood, but in court will the onus be on Cohens to prove they can collect the debt

Edited May 25, 2008 by aBitofaPickle
wrong DCA

[steven4064]

Yes, so your SoC will major on that

[aBitofaPickle]

Trying to research for my SoC, would this be the same as a skeleton argument, I'm not sure how to format it.

Would it be advisable to submit an updated defence as there was no direction on the draft directions?

[aBitofaPickle]

Now I'm very confused, would there even have had to be a CCA for a bank account?

[car2403]

Now I'm very confused, would there even have had to be a CCA for a bank account?

 

Well, prepare to get more confused, as the answer is "yes" and "no"...

 

http://www.consumeractiongroup.co.uk/forum/formal-solutions/130621-can-you-cca-request.html

 

Here's my barclays default removal thread, which may help explain, but it is quite lengthy;

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

[aBitofaPickle]

I had a letter back from FD re my S.A.R - (Subject Access Request), they were refusing to send it as I hadn't signed the form, I sent one back with a digital signature, they refused this as it did not match what they had in file. So now I'll send with a shaded box, although I'm pretty sure they have my signature anyhoo.

I hope the S.A.R - (Subject Access Request) comes back before the court date, so that I can try to make some sense of it.

[car2403]

Right, ABOAP, (I have an interest now, as I might be attending the hearing with you ) can you post up the order from the Judge? It should be with the "Notice of Allocation to track" and should state what directions were given.

 

I need to know which track the claim is on, (assuming it's small claims track, as you haven't mentioned any fast track related directions) so we know what we need to do next.

 

Are you still working on that SOE? If so, can you post that up (what you have so far, anyway) and we'll see what we can do with that too?

 

Phew! We have some work to do on this one I feel...

[aBitofaPickle]

I have not received a Notice of Allocation to Track. I have only received a N24 Notice of Hearing which says.

 

TAKE NOTICE that the Hearing will take place on

11 June 2008

at Durham County Court

When you should attend

30 MINUTES have been allowed for the Hearing

Please Note: This case may be released to another Judge, possibly at a different court

That's all it says.

[aBitofaPickle]

I have been collating information from around the site for my SoE, but the more posts I look at the more confused I was getting.

The links you posted sent have been a big help in explaining CCA and overdrafts.

I hope the SAR comes back in time, as what has happened according to Howard Cohens is that my loan was paid off by my current account which was then sold

[aBitofaPickle]

I have to go out for the afternoon, but will post my SoE this evening, this is the same as a skeleton argument isn't it?

 

I really appreciate that you might be able to come along, especially great as you have had a similar case

[car2403]

I have not received a Notice of Allocation to Track. I have only received a N24 Notice of Hearing which says.

TAKE NOTICE that the Hearing will take place on

11 June 2008

at Durham County Court

When you should attend

30 MINUTES have been allowed for the Hearing

Please Note: This case may be released to another Judge, possibly at a different court

That's all it says.

 

Ok, but this is importnat - it looks like you haven't received the directions for the case.

 

In that case (pardon the pun) you need to call the Court on Tuesday at 10:00am and ask them to read the directions out to you over the phone and/or fax you a copy if they can.

 

My concern is that we don't know which track the claim is on, so if fast track we may have missed a deadline already. (I would have thought you'd heard already if that was the case)

 

If it's small claims track, we'll be ok, but you do have send your statements and exhibits 14 days before the hearing - that will mean posting them special delivery on Tuesday!

 

I have been collating information from around the site for my SoE, but the more posts I look at the more confused I was getting.

The links you posted sent have been a big help in explaining CCA and overdrafts.

I hope the S.A.R - (Subject Access Request) comes back in time, as what has happened according to Howard Cohens is that my loan was paid off by my current account which was then sold

 

You may be able to steal most of my Barclays skeleton argument, thinking about it - it's a little later in that thread of mine. You'd just need to remove the bits about the loan (I was suing Barclays for a CCA loan and an overdraft) to get it to make sense.

 

Actually, both bits of it may be relevant if you find out the loan has been paid off with the overdraft...

 

IMHO, we may need to ask for an adjournment if we don't get the information we need, as you can't defend the claim until you know what you're defending.

 

It would be worth ringing Cohen's on Tuesday as well and getting some verbal clarification - just tell them that you aren't willing to discuss the case, but you want to know some crucial pieces of information about where the debt has come from. If they can't give it to you, tell them you will seek a strike out of their claim as they can't substantiate it. (The Judge is more likely to adjourn than strike out)

 

I have to go out for the afternoon, but will post my SoE this evening, this is the same as a skeleton argument isn't it?

 

I really appreciate that you might be able to come along, especially great as you have had a similar case

 

"Skeleton Argument" / "Statement of evidence" = "Potato" / "Potato"

 

Ok, so that doesn't work on a forum, but you know what I mean. (No, there is no difference!)

 

[aBitofaPickle]

I am finding it really difficult to write my skeleton, because I have no information to go on.

I think the bank account they moved the loan into may have been opened after the loan was taken out. As I had joint accounts with my partner and when we split up they gave me a new account.

Their PoC simply says that they are claiming money for an overdrawn bank account which has been assigned to the claimant.

Until I get the SAR back I have no idea what happened or when.

[aBitofaPickle]

OK, this is how far I have gotten with the SoC. I know it's very messy and I will carry on working on it tomorrow, ready to send SD on Tuesday.

 

I would like something in there about how the debt was not even on this account but was moved to it from the loan without my agreement but not sure how to word that or where to put it.

 

Skeleton Argument

In X County Court

Between

CL Finance (CLAIMANT)

and

ABOAP (DEFENDANT)

 

 

1) This argument is intended to elucidate and clarify the issues that appear to the defendant to be hampering the speedy and equitable resolution of this court case, in order to expedite the directions hearing and management of the case. It is intended to be read in conjunction with the defence I have already submitted.

FAILURE OF THE CLAIMANT TO ABIDE BY THE PRE-ACTION PROTOCOL

2) No notice of the intent by the claimant to pursue a legal action was received before the claimant commenced such action, neither was adequate information to investigate the claim provided by the claimant. I respectfully request that the court considers these issues when it comes to awarding costs.

ISSUES SURROUNDING THE PARTICULARISATION OF THE CLAIMANTS CLAIM

3) I object that the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

4) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

5) The Defendant has served upon the Claimants solicitors by recorded delivery a letter (Exhibit A). dated 21 December 2007 requesting clarification and disclosure under the Civil Procedure Rules. This letter has not been acknowledged neither has the information been disclosed.

6) The defendant is therefore unable to file a fully particularised defence or a counter claim while this default continues.

7) A copy of the purported document or contract of assignment that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

8) A copy of the purported notice of assignment that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form, and neither has a copy of any proof of postage or receipt.

9) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

INVALID ASSIGNMENT

10) I note that in the claimants’ statement of case (paragraph 1) they state that their standing in this case is founded on an assignment. The Claimant has not served upon me or filed any document of assignment.

11) I would respectfully bring to the courts attention the provision of consumer credit act 1974 s176(1)

(1) A document to be served under this Act by one person (“the server”) on another person (“the subject”) is to be treated as properly served on the subject if dealt with as mentioned in the following subsections.

12) 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—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

ii) Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action; he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

(2) This section does not affect the provisions of the Policies of Assurance Act, 1867

13) The relevant provisions for service of notices under the act are set out in

s196. Law Of Property Act 1925.

Regulations respecting notices.

(1) Any notice required or authorised to be served or given by this Act shall be in writing.

(2) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

(3) 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.

14) 8 The claimant has not provided a certificate of service as required by the civil procedure rules, explaining how the notice was served. If served by first class post, I respectfully submit the notice of assignment was not sufficiently served.

FAILURE OF THE CLAIMANT TO DISCLOSE INFORMATION OF RELEVANCE TO THE DEFENCE

15) The Defendant sent a request for more information under CPR Part 18 to the Claimant, dated 21 December 2007. (“Exhibit 1”, attached)

16) The Claimant has failed to supply any information specifically referred to in the Defendants request.

FAILURE TO PROVIDE EVIDENCE OF OVERDRAFT AGREEMENT;

17) 33. The agreement was allegedly made before s.15 Consumer Credit Act 2006 came into force - therefore, by way of s.11 Consumer Credit Act 2006, those sections otherwise repealed by s.15 Consumer Credit Act 2006 remain in force.

18) 34. To help clarify these matters, this is an extract from a Court case (Coutts & Co v Gabriel Oscar Alan Sebestyen [2005] EWCA Civ 473.) and is part of the summing up by the Judge in relation to the effect on overdrafts and the function of the CCA in such circumstances;

i) “The Claimant provided an overdraft on the account;

ii) The agreement was a regulated debtor-creditor agreement within the meaning of s.8 and s.13© of the Consumer Credit Act 1974, providing for 'running-account credit' within the meaning of s.10(1)(a) of the Act (in effect, a revolving credit within an agreed credit limit); and

iii) That, as such, it was subject to the requirements of Part V of the Act (including the requirements as to documentation set out in sections 57 to 63 of the Act) save and in so far as it was excluded or exempted from such requirements.

iv) Section 65 in Part V of the Act provides that an "improperly executed" regulated agreement is unenforceable by the creditor without a court order. It is common ground that a regulated agreement is "improperly executed" for this purpose if the requirements of sections 57 to 63 have not been complied with.

v) Section 74 of the Act provides for the exclusion of certain agreements from Part V. It provides as follows (so far as material):

vi) "74. – (1) This part …. does not apply to –

vii) (b) a debtor-creditor agreement enabling the debtor to overdraw on a current account, …

viii) (3) Subsection 1(b) … applies only where the OFT so determines, and such a determination –

(a) may be made subject to such conditions as the OFT thinks fit …

ix) (3A) …. in relation to a debtor-creditor agreement under which the creditor is …. a bank …. the OFT shall make a determination that subsection 1(b) above applies unless it considers that it would be against the public interest to do so.

THE DETERMINATION:

x) The Determination (which is signed by the Director of Fair Trading) is made under section 74(3) of the Act. I set it out in full:

xi) "1. Under the powers conferred upon me by s.74(3) and (3A) and s.133 of the Consumer Credit Act 1974, I, the Director General, being satisfied that it would not be against the public interest to do so, hereby revoke with effect from 1st February 1990 the Determination made by me in respect of Section 74(1)(b) and dated 3 November 1983 and now determine that with effect from 1st February 1990 Section 74(1)(b) shall apply to every debtor-creditor agreement enabling the debtor to overdraw on a current account, under which the creditor is a bank.

xii) 2. This Determination is made subject to the following conditions:-

(a) that the creditor shall have informed my Office in writing of his general intention to enter into agreements to which the Determination will apply;

(b) that where there is an agreement between a creditor and a debtor for the granting of credit in the form of an advance on a current account, the debtor shall be informed at the time or before the agreement is concluded:

19) of the credit limit, if any,

20) of the annual rate of interest and the charges applicable from the time the agreement is concluded and the conditions under which these may be amended,

21) of the procedure for terminating the agreement;

i) and this information shall be confirmed in writing.

ii) © that where a debtor overdraws his current account with the tacit agreement of the creditor and that account remains overdrawn for more than 3 months, the creditor must inform the debtor in writing not later than 7 days after the end of that 3 month period of the annual rate of interest and charges applicable.

iii) 3. In this Determination the terms 'creditor' and 'debtor' shall have the meanings assigned to them respectively by Section 189 of [the Act]. The term 'bank' includes the Bank of England and banks within the meaning of the Bankers' Books Evidence Act 1879 as amended."

22) The Defendant avers that the OFT Determination applies in the current proceedings and that the Claimant has failed to satisfy the conditions laid down to benefit from such Determination, the effect of which is that the Claimant must be able to show that the agreement complies with the form and content requirement of Part V of the CCA 1974, specifically s.60 and s.61 of the Act.

23) The Defendant avers, therefore, that the Claimant is in default of the Defendant’s request to provide those details required by the OFT Determination. Accordingly, the Claimant is “in default” under s.78(6) CCA 1974 and the Defendant respectfully submits that this prevents the Court enforcing this debt until the default is rectified as per s.78(6)(a) CCA 1974. The Claimant has also committed an offence under s.78(6)(a) CCA 1974.

24) The Defendant, therefore, puts the Claimant to strict proof of;

i) The contractual agreement between the parties in relation to the Overdraft, which allows the Defendant to request overdraft facilities and which terms and conditions were included as part of that agreement; or

ii) Where no such agreement can be provided, the agreement between the two parties as to the overdraft facilities provided to the Defendant at the time of application of said overdraft; or

iii) Where no such agreement can be provided, copies of original signed and certified documentation sent to the Defendant that complies with the OFT’s Determination, issued in relation to overdrafts on Current Accounts, as outlined in paragraph 34, above; or

iv) Where no such documentation exists, the Defendant puts the Claimant to strict proof of the existence of an agreement that is in all ways compliant with the form and content requirements of Part V of the CCA 1974, as amended.

25) In addition to this, as no agreement has been provided that complies with the CCA 1974, the Claimant cannot seek to rely on enforcement in the form of a Termination Notice, Default Notice, or other, as the requirements of the CCA 1974 have not been met. The Default of this account is therefore unlawful and inaccurate. I’m not sure about leaving this in, as there is no default that I know of.

EFFECT OF FAILURE TO DEFAULT AND TERMINATE THE AGREEMENT CORRECTLY;

26) Failure of a Default or Termination Notice to be accurate not only invalidates such Notice, (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Defendant a claim for damages in the sum of £1,000. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

27) It is respectfully submitted that a debt rendered unenforceable by the express will of Parliament should not be enforced by any means whatsoever, and that the protections under the CCA 1974 should protect the Defendant against unfounded allegations of Default or arrears made by the Claimant. The attention of the court is drawn to Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch) thus:

i) “What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…”

28) The Defendant contends that the Wilson v First County Trust Ltd [2003] UKHL 40 ruling is intended to have the effect that Creditors, such as the Claimant in the present case, who does not have enforceable Consumer Credit Agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the Credit Record (and therefore, reputation) of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid, including both the principle debt outstanding and any interest due on it. The law lords further considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

29) It is the contention of the Defendant that at all relevant times each credit agreement has been improperly executed, and that there is not, nor has ever been, any lawful obligation to repay monies to the Claimant, and that as a consequence any allegations that such an obligation exists are unfounded, inaccurate and unlawful under Data Protection Act 1998 as a result.

30) The Claimant, having failed to fully comply with the Defendants s.77/s.78 CCA 1974 request, (as outlined in paragraph 9, above, in that; no statement or statements of account having been supplied at that time and in that the full requirements of s.78(1)(a), s.78(1)(b) and s.78(1)© having not been met at that time also) are in default of that request. The Claimant, therefore, is unable to enforce the alleged agreement against the Defendant (s.78(6)(a) CCA 1974) and has since committed a criminal offence due to its continued default in providing said information. (s.78(6)(b) CCA 1974)

31) I respectfully submit that while the default continues, the court is prevented from enforcing the debt under s77-79* of the consumer credit act 1974.

32) Further, the requirement of s127(3) of the consumer credit act 1974 is that unless the court is satisfied with that a document containing the debtors signature and all prescribed terms exists the court is precluded from enforcing this agreement. The Claimant has not filed with the court such a document. Do I leave this in or not, as it is for a bank account?

REQUEST FOR COURT ORDER

33) In view of the matters pleaded above, I respectfully request that the court determines the rights of the parties to each of the alleged Consumer Credit Agreements and seeks a declaration from the Court under s.142 CCA 1974 that the debts are unenforceable and that any application for an Enforcement Order under s.65 CCA 1974 will not be entertained, either now, or at any future time; and

34) gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

35) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph's 4 and 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

[car2403]

It actually looks quite good.

 

It's a shame we don't know what the court orders are regarding directions, as you won't know until Tuesday if this complies. Still, as it's most likely a small claim, you should be ok.

 

The only thing I would add is that you should ask for a stay of the claim until the documentation/information requested has been supplied. You can go on to say that, in the alternative to the stay being granted, you will continue to plead as follows, then put the rest of what you have already.

 

Good work though...

[aBitofaPickle]

Would it be a small claim when it is for over 6K?

[steven4064]

Normally a claim over £5k would be allocated to the Fasat Track. However the case management rules allow cases over £5k to be allocated to the Small Claims Track if both parties agree - you would have to pursuade the court (in the AQ) that it is a simple case relying only on matters of fact and will take less than one day. This is covered in CPR rule 26.7(3)

[car2403]

My concern here is that this is on fast track and key disclosure dates have been missed as the directions haven't been received - case statement disclosure and document inspection dates would all be involved on the fact track, none of which is evident here.

 

There's a possibility of turning up to this hearing and the Judge striking out the statement of case in defence, if he doesn't allow an adjournment and a re-issue of the original directions, (which should happen, if they weren't received, IMHO) which could be devastating in that it may allow Cohen's to seek Judgment without question.

 

An early call to the Court tomorrow morning to establish the situation is in order, IMHO.

[steven4064]

I agree with car - phone the court

[aBitofaPickle]

Thanks guys, I will do. I start a new job today and didn't want to start off making personal calls, but hey ho.

[aBitofaPickle]

Can you let me know what your opinion of no. 25 and 32 in my skeleton argument are?

 

I also wrote to Cohen with a letter before action for transferring the loan into an ovedraft without my knowledge. I've heard nothing back from them about that, and would like to include a copy of that letter in my bundle. Any advice on how to word it?