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

[car2403]

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.

 

Leave it in - whether you should have had a Default Notice (loan agreement) or Termination Notice (overdraft agreement) they still need to produce evidence of it to enforce under s.88 and s.97 CCA 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?

 

I'd leave it in. The onus is on the creditor to prove that they have a compliant document - whether that is a correctly executed credit agreement, (loan) or documentation showing that they complied with the OFT determination or a correctly executed credit agreement if they can't produce that (overdraft) is really up to them. They won't get any help from us on that front.

 

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?

 

Just make reference to it (the Defendant wrote, in specific terms, to the Claimants representatives to seek clarification on the legal basis on which this claim is brought and whether the debt been enforced is a credit agreement or an current account overdraft. No reply has been forthcoming) then put it in as an exhibit. The Court isn't daft, so let them infer their own conclusions on the lack of a response - with a little help from you in the actual hearing, of course!

[aBitofaPickle]

I've been trying the court all mornigm but there is no answer, think they must be closed day after public holiday.

I have the skeleton ready to send, but haven't included the information on the letter I sent about merging the accounts.

I've had some advice that the court may not adjourn if Cohens turn up with the CCA as I have no proof of having sent a request under scetion 78?

Any thoughts on this?

[car2403]

I've tried to ring 2 Courts today - I think they are closed as its a priviledge day for the Queen's Birthday.

 

If sent it, but have no proof, that is the danger. You will have to say you've sent it by first class post and it hasn't been returned to you, so must have been received.

[aBitofaPickle]

i do have a response from FD saying that they don;t recognise my siganture and to resend which i have done, would that be enough do you think?

[aBitofaPickle]

I was thinking the SAR was the section 78 request, if it isn;t what does section 78 request look like?

[steven4064]

I was thinking the S.A.R - (Subject Access Request) was the section 78 request, if it isn;t what does section 78 request look like?

See http://www.consumeractiongroup.co.uk/forum/general-debt-issues/20758-creditors-dcas-letter-templates.html#post162367

[aBitofaPickle]

oh dear, I've seen that before as i have sent one for my other thread with Egg. This debt was different in that the first I heard was a court application. I never sent off a Section 78 request.

[aBitofaPickle]

I spoke to the court and this is a "Directions Hearing". Is there anything i can do to specifically prepare for that?

If there are any 'buddies' available who could accompany me to court. i would appreciate that very much.

[car2403]

I spoke to the court and this is a "Directions Hearing". Is there anything i can do to specifically prepare for that?

If there are any 'buddies' available who could accompany me to court. i would appreciate that very much.

 

I can't make it, but I don't think you have anything to worry about with a directions hearing;

 

Court Date?; A Guide to the Different Hearings - Consumer Wiki

[aBitofaPickle]

OK, thanks for that i have everything ready to take on Wednesday. what if the judge should straight out ask me if I'm going to pay this back.

[car2403]

OK, thanks for that i have everything ready to take on Wednesday. what if the judge should straight out ask me if I'm going to pay this back.

 

What you really, really need him to understand is that your intentions to the outstanding balance is irrelevant to the fact that they can't enforce it against you.

 

The outstanding balance will remain, even if it's declared unenforceable, as the contract still exists, it's just that it can't be enforced against you by the Court as a result.

 

This isn't going to be easy, as you need to convince the Judge that you aren't avoiding a "debt", you are just trying to establish whether it is enforceable in Court under the CCA. The Judges bias either way may be what makes or breaks the result for you, unfortunately.

 

What you can say is that you would have to consider how to manage the debt if it was declared unenforceable. You could say that you would be prepared to discuss a short settlement with them if that happened, but the legal status of the outstanding balance needs to be determined before that can happen. Basically, anything that you can say that would be deemed as you "avoiding the debt" should be put forward, IMHO.

[pt2537]

What you really, really need him to understand is that your intentions to the outstanding balance is irrelevant to the fact that they can't enforce it against you.

 

The outstanding balance will remain, even if it's declared unenforceable, as the contract still exists, it's just that it can't be enforced against you by the Court as a result.My understanding is a declaration under s142, the court holds the power to discharge the debtor from their obligations under the Act and therefore the contract is terminated by the court and ceases to have any effect, this view is mirrored by Bradley Say a Barrister from Gough Sq Chambers who wrote an article in the Quarterly account on that very subject

 

This isn't going to be easy, as you need to convince the Judge that you aren't avoiding a "debt", you are just trying to establish whether it is enforceable in Court under the CCA. The Judges bias either way may be what makes or breaks the result for you, unfortunately.

 

What you can say is that you would have to consider how to manage the debt if it was declared unenforceable. You could say that you would be prepared to discuss a short settlement with them if that happened, but the legal status of the outstanding balance needs to be determined before that can happen. Basically, anything that you can say that would be deemed as you "avoiding the debt" should be put forward, IMHO.i would also tread carefully here , the court may view such a statement as acceptance of consensual enforcement. dont forget that the debtor can agree to the court enforcing the agreement, although it doesnt happen in most cases , after all you'd need to be a real mcmuffin to say to the court" i accept that the agreement is unenforceable but i want you to award judgment against me" but its always good to keep these things in the back of your mind so you dont put your foot in it

[Goldlady]

Subscribing. What time on Wednesday?

[pt2537]

OK, thanks for that i have everything ready to take on Wednesday. what if the judge should straight out ask me if I'm going to pay this back.

 

In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed

terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary

disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never

entitled to have them repaid; so there is nothing to engage the rights guaranteed by art 1 of the First Protocol. Nor, on that

analysis, does the creditor have any civil rights in respect of which it is entitled to a fair and public hearing by an independent

and impartial tribunal. Article 6 of the convention is not in point.

 

Keep that statement up your sleeve, its the judgment of Sir Andrew Morritt Vice chancellor and it is clear as to what that statement means

[aBitofaPickle]

Thanks for this, I was hoping to have a buddy with me, as it helps to get perspective and make sure i don;t put my foot in it.

I was quite surprised when I phoned the court to hear this was a hearing for directions, and feel i have shown my hand early by sending my bundle to the court and the claimant. i hope that does not go against me.

 

It's at 3pm Goldlady.

[aBitofaPickle]

I remember when I went to court for speeding I was advised to say (if the judge should ask outright if I was speeding). There is no admission of guilt now will there be one, but that seems a bit cocky. I expect it all comes down to the judge on the day, but I wasn't sure if they would want to hear that I will pay it back just don't want it enforced through court, or that I don't think I am liable for it as they can't enforce it?

[Goldlady]

I have a similar dilemma to yours with exactly the same claimant and solicitors - coming to a court near us on Thursday, although I am going to ring the court this morning to see if it has been listed as I have heard nothing from Cohens for about two months, even though I have done everything I was told to do;). I too have been trying to get my head round using the unenforceable CCA argument whilst not wanting to look as if I am trying to avoid the debt.

 

One thought that I had, bearing in mind that this particular debt is tiny compared to yours, was to offer the amount of money I actually owe them - ie remove all interest and charges on the basis that they cannot lawfully charge interest without a valid CCA, meaning in my case that I would actually owe them £100. How does that work in your situation?

 

I might be able to make it on Wednesday if you want me to - will confirm later today;)

[aBitofaPickle]

I don't know about the interest. I am hoping I get the paperwork from First Direct before I go. I probably can't do much with it in court, but I will understand the position slightly better. I still wouldn't be able to pay it off in a lump sum though.

It would be great if you could make it Wednesday. I'd really appreciate the support.

[car2403]

Bearing in mind this is a directions hearing, the Judge may ask you the question, but he can't decide that the agreement should be enforced against you at this stage - that won't happen until the final hearing - which is why I made my suggestion above.

 

If this question is asked in the final hearing, you will need to have your response ready - whatever that may be. Either way, it all depends on what the Judge considers your position is - regardless of what you say, he may still consider you're avoiding the debt or not, anyway.

[aBitofaPickle]

So what is the most likely scenario in the directions hearing? Is it that the judge will tell thwe claimant to prove the claim?

[car2403]

Well, that will be implied, but I don't think he will say the words.

 

The Directions Hearing is to agree what directions should be ordered to progress the claim in the most effective way - your job is to argue Paul's directions should be imposed, meaning full disclosure of the documents they intend to rely on are required. (and to reassure the Judge you aren't avoiding the debt, if he asks...)

[master woody]

My pre prepared answers going to be:

Around the time of the alleged loan I had multiply accounts with the HSBC I don’t remember ever having a loan with this figure or account number I’m unsure what the claimants accounts relates to, I have requested a copy of the loan agreement as required in English law by the consumer credit act 1974, so I can check the total sum borrowed, the APR, terms and conditions of the loan and indeed if I have ever agreed to these terms.

The CCA 1974 was created by parliament as a consumer protection measure, I looking to the court for that protection…..

Then get the Wilson house of lords judgment to hand.

[aBitofaPickle]

Nice one

[Goldlady]

Hi all, have read the whole thread and made a few notes:p.

 

I know this is a directions hearing, but one thing confuses me, that I guess cannot be clarified until you get the response to your SAR. If the charges on your two closed current accounts were refunded to you then the account that this loan was moved to must be a totally different account, or they would have refunded the charges against the o/s balance. Does the application form relate to this account, ie the one detailed in their claim, or to one of the accounts which has now been closed? And was the loan in arrears when you got your charges back?

[aBitofaPickle]

The loan must have been in arrears when I got the charges back. FD wanted to pay that money to the outstanding balance. I refused and they sent me a cheque.

AFAIK all of the accounts have been closed. I had joint accounts with my ex,I think FD gave me this account (the one Cohen are persuing) when we split up. It was the joint accounts I got the charges back on. The other (new) account was kept in good order.