C L Finance and defaults on file.Help!!

[pj41]

Hi All,

 

I have been sat here reading various threads for most of the day and now could do with some help.

 

The situation is this ;

 

I have had a run in with HSBC to the extent that after a CCA request for a copy of the agreement they defulted, wrote back and said it didn't matter that they had no agreement and they would default me and take legal action etc.

 

About a week later I received a letter from Cl Finance saying they had been assigned the (alleged) debt. They didn't write alleged lol.

 

They have issued court proceedings and I have filed a defence based on information gleaned from various threads on this site. (I've done this all before and the other creditor discontinued).

 

I've recieved a letter from the court informing me of a directions/allocation hearing 1st Oct 08 (whats that all about?) No document no case I thought?

 

Anyhow, also on reveiving my credit file CL finance have filed a default dated 2006.

 

They, Cl finance, will be relying (according to one of their letters on the rules of evidence as used in these circumstances) to prove their case.

 

Is the default placed on my file lawful? Can I have it removed as the account is going to court?

 

And what the heck do I need to do for an directions/allocation hearing?

 

Any help greatly appreciated and a donation is on it's way.

 

 

pj41

 

 

 

 

 

 

 

(

[BankFodder]

I think that the debt question is more presing here and so I've moved the thread and alerted the debt mods

[fuzzybobble]

If you have that in writing that they admit no CCA but they're still going to take you to court, make sure you have that in your defense. Also report them to the OFT too, as it's a clear breach of guidelines.

 

I'll find a legal expert to take a look at this thread, as they will be more able to help you with what to do regarding the court claim.

[pj41]

Hi all,

 

Thanks Bankfodder,

 

I knew it was two "thread types" in the one question.

 

I was hoping you'd sort it out lol.

 

 

Cheers

 

pj41

[pj41]

Thanks fuzzybobble.

 

I have everthing, HSBC's letter stating they have no Agreement. Sent to the court with my 11 page defence. I now have also a letter from CL finance stating that they dont have the CCA agreement either but they will prove the debt "using the rules of evidence".

 

Also interestingly, there is no default on my credit file from HSBC but there is one dated 2006 from CL Finance some 2 years before their first letter to me.

 

That I would say is a bit unfair.

 

Cheers

 

Pj41

[fuzzybobble]

looks like you have them by the short and curlies.

 

Rules of evidence? who are they trying to fool? They both admitted no CCA, and without that they have no legs to stand on. I think they're trying to call your bluff hoping they can win by default. Stick with it mate.

 

I can imagine when the judge reads your defence and sees their letters admitting they have no CCA, he'll strike out their claim.

 

When that happens, go for a wasted costs order against them. As a litigant in person you can claim £9-25 an hour for researching (15 hours is about right) and costs of stationary , printing, stamps (for every letter you have had to send them), time off work if you need to turn up at the court travel expenses/parking. Make up a nice costs list. Keep it reasonably realistic, and hopefully you'll get a nice cheque out of them.

[pj41]

Hi Fuzzybobble,

 

Thats what I dont understand the District Judge has called an allocation / directions hearing.

 

Despite knowing that there is no CCA

 

Cheers

 

 

Pj41

 

ps I Like the idea of costs.

[fuzzybobble]

I think it's to decide what track to take. I'm sure if you phone the court tomorrow they will explain it to you.

 

I've not been lucky enough to have a DCA take me to court yet, but I'm looking forward to when one does, then I can learn a whole lot more. Then I can pass my knowledge onto others on here.

[slick132]

Hi PJ,

 

Can you tell us exactly what the Claimants POC (Particulars of Claim) said.

 

Can you also confirm the content of your Defence.

 

As a claim has been made against you, the court is bound to hear it. That is why the judge has scheduled a hearing to decide how the claim should proceed.

[fuzzybobble]

Thanks for popping along to help with this one slick132.

 

Be good to have an expert check everything over, just to make sure everything is done properly.

[pj41]

Hi Slick132,

 

The POC reads as follows:-

 

The claimants claim is for the sum of xxxxx being monies due from the defendant to the claimant under a regulated credit agreement between the defendant and \hsbc bank plc under reference xxxxxxxxxxxxxxxx and assigned to the claimant on 28th september 2007 notice of which has been given to the defendant

 

The defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the defendant pursuant to section 87(1) of the consumer credit act 1974.

 

The claimant claims the sum of xxxxxxxx

 

 

Cheers

 

Pj

 

I'll post my defence later on

Edited August 26, 2008 by pj41
speeling

[pj41]

Hi All,

 

Ok after a bit of cutting and pasting and removing personal information I defended like this.

In The Northampton County Court

Claim Number : xxxxxxxxx

Between

C L Finance Ltd- Claimant

 

and

 

 

PJ41 - Defendant

 

 

 

Defence

1. I PJ41 am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Ltd

 

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as 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;

 

a) 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, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement 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.

 

c) 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.

 

4. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof

 

5. In respect of that which is denied, on 22/06/2007 I requested that HSBC provide a true copy of the executed credit agreement, which they claimed exists between those parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter attached marked Exhibit PJ41 01. HSBC replied by letter on 31st August 07 confirming it was not possible to locate the agreement. Under the Act that the information was requested HSBC remain in default and I believe have committed a criminal offence as, to date, no documents requested have been delivered to me.

 

6. Section 78 (6) consumer Credit Act 1974 sets out the consequences of failure to comply with such request and states

s78 (6) If the creditor under an agreement fails to comply with subsection (1)-

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

7. It is drawn to the courts attention that the claimant has failed to comply with my request and is in clear default of its obligations under s78 (1) Consumer Credit Act 1974 and it is averred that the claimant has no right of action until such time as the default is remedied and the true copy of the executed agreement is produced before the defendant containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by the debtor and creditor

 

8. Therefore since the documents have not been supplied as requested pursuant to the Consumer Credit Act 1974 I draw to the courts attention that this case should not be brought before the court as facts stand an Act of Parliament, in this case the Consumer Credit Act 1974, plainly enacted to protect the Consumer precludes a creditor bringing an action before the court where they have themselves failed to discharge their obligations under the Act. Therefore I suggest that the only just action that can be taken is the claimants case be struck out forthwith

 

The Request for Disclosure

 

9. Further to the case, on 15/02/2008 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.

 

10. The Claimant responded to my request under the CPR suggesting that they are not obliged to provide this information. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person (a copy of the request and reply is attached to this Defence marked Exibit PJ41 02 & 03)

11. In respect of that which is denied, on 3/03/2008 I requested that CL Finance provide a true copy of the executed credit agreement, which they claimed exists between those parties pursuant to section 78(1) Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. Copies of the letter and proof of delivery attached marked Exhibit PJ41 04 & 05. It is envisaged that the Claimant will not be able to supply any such documentation as HSBC have previously confirmed that it does not exist.

The importance of a copy of the credit agreement and its production before the court

 

12. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts

 

13. Firstly, the agreement must contain certain Prescribed 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)

 

14. 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

 

15. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the agreement and not in a separate document

 

 

16. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

17. If the agreement does not contain these terms in the prescribed manner 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

 

18. Notwithstanding point 17, 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

 

19. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 12 to 18 of this defence to have any right of enforcement. I note that the claimant should also have provided this documentation prior to bringing this action and it is requested that the claimants case be dismissed until such time as they comply with the S78(1) request made on 03/03/2008 as laid out in point 5,6 7& 8

The courts power of enforcement

 

20. 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).

 

 

21. Further more 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

 

22. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

23. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed

 

24. Therefore I respectfully request that if the court does not dismiss the

claimants case as laid out in point 19, that the court order the claimant to produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances

 

25. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

 

Conclusion

 

26. The claimant's case cannot succeed as matters stand. It is averred that the claimant and its representatives have acted unreasonably when dealing with this dispute. HSBC transferred the alleged debt to CL Finance while the account was subject to a dispute, which is a clear contravention of the Office of Fair Trading Guidelines on Debt collection.

29. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

27. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

28. Should the court disagree with the suggestion to strike out the claimants case for the grounds set out. I respectfully request that the court allow me to amend my defence if the claimant produces the requested documentation and I am given sufficient time to inspect the documentation.

29. However, considering the ongoing defaults by HSBC and CL Finance in respect of my requests for a true copy of the alleged agreement all as detailed above I respectfully deduce that non compliance is a complete defence.

 

 

 

 

 

Statement of Truth

 

 

I PJ41 believe the above statement to be true and factual

 

 

Signed :

Date :

[slick132]

Your Defence seems well presented to me (although I'm no legal expert).

 

You should attend the hearing on 1st October taking your file on the case so far.

 

It will be up to the Judge to decide if and how the case is to proceed, but it looks like you've made a good case for their Claim to be Struck Out.

[pj41]

Hi Slick,

 

Thanks for that.

 

' Suppose all I can do is give it my best shot on the day!

 

 

thanks again

 

 

Pj41

[lookinforinfo]

I notice that you haven't claimed any damages for the unlawful default. Is there still time to do so-you should be in for at least a £1000 under the Khoprapor case, the other case would put you over £8000.

[2Grumpy]

If they are claiming rules of evidence, without the CCA, the only evidence they would have would be statements & payment records.

 

CCA 2006 says that you don't need the executed CCA for the debt to be enforcable, but yours would be governed by CCA 1974 where it is.

 

I have seen in some defences about the CCA 2006 not repealing the parts of CCA 1974 for the enforcability of the credit agreement without the CCA. It might be worth searching for that & adding it to yours.

 

Good luck

 

Grumpy

[pj41]

Thanks for that guys,

 

Thier POC states CCA 1974 so I would bring that to the attention of the DJ if they start spouting on about CCA 2006.

 

Nevertheless I'll hunt the site for the details just to be safe.

 

Thanks again

 

 

Pj41

Edited August 27, 2008 by pj41
spelling

[pj41]

Hi All,

 

Well Attended court today and guess what?

 

Cl finance didn't show up.

 

The DJ struck the case out after a few very basic questions. "You've asked for some further information? (CCA request).Yes

 

Had a response? NO

 

Have you paid money to CL finance. NO

 

This has been draging on since February 08 YES

 

You know what I'm going to strike this case out.

 

Did it cost you anything to attend today? I replied, have you a copy of my statement of Truth sir? No. I don't appear to have that. I gave him a copy, complete with a wasted costs order for his consideration. £475 (Thanks Fuzzybobble)

 

After a few second he said and did it cost you anything to attend today?

 

Only petrol sir, You know I'm goimg to award you £500.

 

Thank you sir.

 

Good-by

 

Good-by sir and Thank you

 

Good-by

 

 

A result I recon

 

 

Thanks everyone.

 

 

Pj41

 

 

ps: Donation on it's way

[humbleman]

pj41

 

Good result

 

What about the default

[slick132]

Hey PJ,

 

Excellent result and congratulations.

 

Thanks also for the donation which will help us keep helping others.

 

Time to get that default removed !!

[pj41]

Hi Humbleman,

 

Well to be fair I pressed the DJ after he said he was striking out the claim.

 

I said that the claimant had not issued a default notice but a default had been lodged with both experian and equifax on my credit file and I believed that that was unlawful.

 

His response was well "i cannot deal with that today"

 

I went further, and said that I had spoken at length with both experian and equifax and although they were the data holders a court order would need to be sent to CL Finance or the bank to have any default removed.

 

DJ responded...

 

I cannot deal with that now I think its a data protection issue.

 

I took that on board that as this was supposed to be an allocation/directions hearing that not enough time was allocated. I was in at 3:45 and the DJ's finish at 4:00pm. Also I think he didn't want to be bothered with it, like oh that will do for another day.

 

Just goes to show that the DJ's dont know it all. If there is a case about one thing they won't deviate into another issue. I spent hours putting my case together and it was not required on the day.Apart from my copy of my statement of truth and the wasted costs order.

 

Just to give you an idea ..........length of hearing 10 mins.

 

I'll deal with the default after I get the cheque from Cl finance as the DJ did say that they might resurrect the case. However, they will have to explain in detail why they didn't attend today and what documents they may have to support their case.

 

 

Cheers

 

 

Pj41

[42man]

Good result PJ, well done....!!

[angel_1]

Fab result PJ

 

really interesting as i have my battle with them too, and 42man kindly been helping me

 

i feel much better for the sequence of court action now, and rightly am only asking for my legal request of a cca to be given to me which i am legally entitled to like all of us

 

so very happy for you take care ciao for now MAZ

[pj41]

Hi All,

 

I thought I would update as to events after the hearing last October.

 

The DJ ordered that the £500 be paid in 14 days.

 

That didn't happen I wrote to CL Finance and threatend them with the baliffs or drag the cheif executive in for questioning or serve a third party debt order on their bankers. Royal Bank of Scotland (but it looks like they are nearly bankrupt !!)

 

I have done some research on this company as they have raised another claim for another unenforceable debt.

 

Just incase you want to know -- Cl finance is part of the Lewis group which in turn is owned by a company called Cattles

 

Cattles also own Welcome Finance who historically lend to the sub-prime market. About a month ago a load of people got made redundant at thier Hull Call centres.

 

Cattles are wanting to become a bank and the FSA have requested that they raise a £300,000,000 before they will consider anything further. Cattles are scurring around trying to raise the cash.

 

CL finance has no employees it is run by 8 directors and a company secratary they paid themselves £1.7million in dividends year ended dec 2007.

 

Have a look at Cattles | Home

 

So Welcome Finance lend it out and when people struggle, they have CL finanance to collect it. Quite a crafty loop there i thought.

 

Anyway today the 24th January I have recieved a cheque from THEM. for the costs awarded.

 

With regard to the other claim they have raised I got a letter from the court yesterday and the District Judge has ordered them to produce the original agreement the default notice and a breakdown of the money they are claiming. All by 4pm 2nd Feb.

 

What fun lol

 

Pj41

[slick132]

Thanks for the update on this and well done with the cheque now through.

 

Good luck with the on-going case and let's hope they fail to produce the doc'ts.