Cl Finance/howardchoen Please Help**WON**

[la23hin]

Thanks Steven Your Help Is Really Appreciated When The Baby Gone To Bed I Will Prepare A Defence And Post It Up For Your Opinon

 

Thanks

[la23hin]

hi

would some be kind enough to look at my defence for poc which is in post 40 as im really strugling

 

[la23hin]

sorry here is the defence

 

IN THE XXXXXXXX COUNTY COURT CLAIM NUMBER XXXXXXXX

BETWEEN:

CL FINANCE LIMITED

Claimant

And

La23hin

Defendant

 

DEFENCE

 

1. I am the defendant in this action and make the following statement as my defence to the claim made by

CL Finace

2. On 3 March 2008 CL FINANCE LIMITED commenced proceedings against the defendant for £4033 plus interest, a debt allegedly incurred under an overdrawn bank account.

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

4. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

5. The claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed

6. 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.

7. The defendant did enter into a regulated credit card agreement with HSBC plc

6. Further to the case, on 06/03/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action..

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.

9. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act

exists

11. The Agreement number referred to in the particulars of claim relates to a Credit agreement regulated by the Consumer Credit Act 1974. Under the said act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

12. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553)

13. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

14. If the agreement does not contain these terms it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

15. Notwithstanding point 18, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order

16. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with 127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

17. The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

18. With regards to the Authority cited in point 21, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

19. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers

 

The Default Notice

20. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement

21. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

22. Notwithstanding point 25, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

23. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

The Assignment of the debt

24.I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the notice of assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the claimant to strict proof that the assignment has been carried out correctly

25. If no Deed of Assignment can be produced it is requested that the court strike out the claimants case as the claimant will not have a right to bring this action against me in their name

Conclusion

26. I respectfully ask the court to use its case management powers to order the claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim

27. I further ask the court consider striking out the claimants case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly

28. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

29. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 6 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularized defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

30. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx xx xxxxthe Consumer Credit Act 1974 is the relevant act in this case.

 

 

 

 

Statement of Truth

 

I, believe the above statement to be true and factual

Signed .....................

Date 02.04.2008

[citizenB]

bump x

[pt2537]

Hi

 

when does the defence need to be with the court, the latest that the court must have it?

 

regards

 

paul

[steven4064]

la

 

that looks OK to me - it has the main case:

 

1 they haven't sent you any of the documents you asked for and that you need to make a proper defence

2 they claim it's an OD when in fact it's a CC

3 given 2, they ought to have provided a CCA which they have not because of 1

4 because of 1 they have not demonstrated they have any right to collect this debt

5 because of 1 they have not demonstrted that the defauult was lawful

 

The other thing you could do would be to counterclaim:

 

Because there is no CCA they do not have your permission to share your personal information with any third party

therefore the default marker is incorrect and in cotravention of the Data Protection Principles laid down in the DPA 1998

therefore you request the court to use its powers under s14 of the DPA 1998 to compel the claimant to remove said default markers and to pay you compensation at its discretion under s13 of the DPA 1998 for the financial injury caused you in not being able to get credit at advantageous rates due to the erroneous default marker.

[la23hin]

hi pt2537

 

it has to be on by close of buisness monday 7.4.08

 

thanks

[pt2537]

If you are actually going to go for the CC then i would actually add a section 142 (1) Declaration as part of the CC too, you have nothing to lose on that

 

the numbering of the defence needs looking at as it doesnt run true and also the references to paragraphs need s attention

[la23hin]

well they are claming it an overdraft with the credit card number, when it is a credit card debt

 

sorry to be thick but where in my defence would i put that section you refer to, this is all way over my head and i feel like just given in, i cant even get my head round what i wrote so how anyone will i neaver know

[pt2537]

Ok well if you take a look around the DCA success section of this forum you will probably find that most of the threads entitled **WON** the OPs were feeling at some points exactly like you do now.

 

so you have a choice, roll over and die and let them win with their crap claim or FIGHT back

 

now i can help you if you wanna fight but i wont help you roll over and give up

 

it is difficult to comprehend at first, but you need to do some reading of the other threads to see how these things progress, there are some very useful threads in my signature that you could read, this one is very helpful http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

 

with the Consumer credit leigislation it is fairly straight forward, a credit agreement must have certain terms in it, if they arent then the court cant enforce it and further more if they cant even produce the agreement they cant do diddly squat

 

to be honest you need to address the issue that they are claiming a overdraft but infact it is a credit card a little better

 

but dont worry too much about that now

 

i will have a glance over it this evening and redraft it for you

 

Now you need to decide if you want to counterclaim as there is a fee payable for a counter claim so you would have to pay if you do most likely. i cant remember what the fee is off the top of my head but if you call the court they will tell you

[42man]

It is easy to point out that bank account numbers are 8 numbers long and credit card numbers are 12 numbers long....

[la23hin]

please help me i really do want to win what is a counter claim for ?

[42man]

Be strong la23hin...you're in good hands here....there are/were a lot of people in worse off positions than you....relax, grab a coffee, (have a cigar.cigarette if you smoke) or a small/large brandy, and have a read....

[la23hin]

42man

 

you just made me smile thankyou when i get all 3 kids in bed will sit down and read all the info suggested especially the success stories

[pt2537]

please help me i really do want to win what is a counter claim for ?

well i cant guarantee that you will win but i can say we will give it our best shot thats for sure

 

A counterclaim is basically a claim against the claimant its a retaliatory claim if you like,

[la23hin]

dont want to counterclaim,thanks again

[citizenB]

It is easy to point out that bank account numbers are 8 numbers long and credit card numbers are 12 numbers long....

 

 

umm arent Credit card numbers 16 numbers long ?

 

Chin up la23hin xx

[la23hin]

hi paul

 

did you have chance to look over the defence?

 

thankyou

[pt2537]

Hi,

 

No sorry i didnt get a chance last night, a few things came up and i couldnt get around to it

 

i will do my best to have a look today

[la23hin]

No problem i have till tommorrow to send it special delivery so it gets there on monday

 

thanks

[pt2537]

Hi, can i just check, to save me going back over the whole thread, what requests for information have you made,

 

im assuming that you would have filed a CPR request from their response but did you file a Data protection SAR and also a Consumer Credit agreement request (CCA) ?

 

it would be helpful if you could confirm this

[la23hin]

Hi, can i just check, to save me going back over the whole thread, what requests for information have you made,

 

im assuming that you would have filed a CPR request from their response

YES

but did you file a Data protection S.A.R - (Subject Access Request)

NO

and also a Consumer Credit agreement request (CCA) ?

NO

it would be helpful if you could confirm this

 

thanks

[pt2537]

Thanks for that,

 

Can i also ask have you ever received notice of assignment of this account? and can i just check , in theior claim they state that the account number is xxxxxxxxx but its an overdraft.

 

now then do you have a bank account that is overdrawn? i have to ask as they could apply to amend their POCs later so if you dont have an account which is in trouble we can kill this stone dead and ask the court to throw their ass out of court as it stands their claim is pooched and not worth a to$$

[la23hin]

back in november i recieved a letter from cl finace statiting they had brought the debt from hsbc and the payment i was making would not change and basically carry on paying,at the bottom of this letter was a box called notice of assignement if thats what you mean, but on this letter it says its for a credit card and has the credit card number.

 

in there poc they claim its an overdraft against the credit card number

 

i had a bank account , a CC and a loan

 

the bank account was closed in 2002 it had an overdraft facility of £1250 which i think i was using at the time just before it closed

 

someone one another thread suggesting writing to hsbc and asking them to confirm date it closed and what the balance was is this worth doing?

 

there would be charges on the acoount but as they were probably from october 2001 till it closed i cant get this info as its further back than 6 years

 

 

hope it all makes sense

[pt2537]

ok so in that case, they have already brought the claim against the Credit Card yes? so was the credit card number on that claim the same as in this claim?

 

if it is theyre stuffed