No CCA, being taken to court CL Finance - any help MUCH appreciated!

[Shinysprite]

Hello all,

 

Apologies if this is in the wrong place or if this is covered elsewhere - I'm new here so please be gentle with me! Here's a post I put on the Monesaving Expert forum, and someone there recommended I also seek advice here.

 

Firstly, some background to my situation:

 

To sum it up, I have three creditors, totalling debt of around £14,000 between them. I have no job, but some savings, which I would like (and have been advised) to realise in order to make reduced full and final settlement offers to them.

 

Requested CCAs from them at the end of May and have received mixed responses.

 

1 - HFC Bank. Sent me by recorded delivery, on day 12 after my request, NOT a copy of my CCA, but a statement of my account, accompanied by a letter which says:

 

'HFC Bank has been unable to provide a photocopy of your original agreement. However, please note that in accordance with Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 we provide a copy of the executed agreement that does not include information which it is permitted to exclude such as the signatures and signature box. Upon the original agreement becoming available, HFC Bank will forward this to you as soon as it is received. (NOT HOLDING MY BREATH FOR THAT! )

 

Whilst monthly payments to your account have been maintained in line with the terms and conditions, the payments that have been received have been submitted by you and it is reasonable to conclude that you acknowledge this debt. In summary, our records confirm that you have conducted the above account in a way which suggests you have a relationship with the bank. In view of this, HFC Bank holds you liable for the outstanding balance on the above account.

 

I trust the information I have provided to you is to your satisfaction but should you require anything further.... etc..'

 

I've since spoken to them and made a couple of token payments and told them that I hope to be in a position to make a f&f settlement offer shortly (no mention of savings - have said that a relative may be willing to lend me some money to help me out) and they seem fairly happy with the situation - although I am not sure how much I should offer. 50%?

 

2 - Egg - Received a copy of my signed CCA (some time after 12+2) but I'm not sure if it contains all required information and they have not chased me for any payments since I told them in May of my change in circumstances and that I could not keep up my regular monthly payments, so I'm not sure how to deal with them. Again, I'd like to make them an offer but not sure how much.

 

3 - This is the most interesting case. CL Finance - Have not received any response from them WHATSOEVER following my CCA request. Nothing requesting payment or anything until TODAY, when I received a letter in which they say:

 

'We refer to the above account and note that you have failed to make the agreed payments towards the concessionary arrangement on your account.

 

To allow the arrangement to continue, you must make an immediate payment of £xx.xx to reach us within 10 days of the date of this letter. You must continue to make all subsequent payments, as originally agreed as a condition of the concessionary arrangement. If your payment is not received, the arrangement will be cancelled and further action will be taken to recover the full balance.

 

Please treat this letter as formal notification that if you do not make the agreed payment, we will instruct our solicitors or a debt recovery agency to take further recovery action against you. This may include the issue of legal proceedings without further warning.'

 

They haven't provided me with a CCA, and I have also made them aware of my circumstances, i.e., that I am on JSA and unable for the time being to make repayments at my previously agreed rate. When I informed them of this, as soon as it happened, they were fine with it and agreed to hold the account until they heard from me. When they did hear from me, i.e., my CCA request, they obviously chose to ignore me.

 

Soooo - my question is, what happens now? Do I tell CL Finance that their debt is unenforceable and make a much-reduced offer of f&f settlement?

 

I've checked my Experian report and most of my defaults are due to expire next year and my credit rating is steadily improving, so I obviously want to avoid more problems in this area!

 

 

THIS IS AN UPDATE TO THE ABOVE:

 

I sent a letter to CL Finance over four weeks ago telling them that I'd requested a CCA, that they had not responded within 12 + 2 or 30 days, and that as a result, they were in default and the debt was unenforceable. I told them I would report them to the relevant authorities if they continued to chase this debt while in default.

 

I have heard NOTHING from them, until last Thursday, when I received court papers - they intend to take me to court to claim over £7,000. I have 14 days to respond to the claim, either by admitting it and paying in full, admitting it and asking for more time, or defending it, by telling the court that I had requested a CCA and that CL failed to provide me with any of the requested doumentation.

 

The point is, I don't even necessarily want to write off the entire debt as I have a small amount of savings which I can offer them in f&f settlement, but it won't be the full amount. I just wanted to ensure that I'd explored all avenues before making any offer and now it's come down to the principle - they are in default and acting illegally by not providing the requested CCA,and I didn't think they were legally able to take me to court while the account is in dispute. This is what I am thinking of defending - however, is there any point in my making an f&f settlement offer to the DCA before the time limit on responding to the court papers expires? Even if I do defend it and the judgement goes against me, CL Finance are in no better a position than they were as I will only either be making smaller instalment payments or looking for a much reduced settlement figure, so I would imagine it would be in their interests to accept any offer I might make now.

 

I intend to visit the CAB tomorrow to see what they advise, but is there anyone out there who might be able to advise me on my best course of action? I don't want to just roll over and pay it but equally don't want another CCJ as I've had one before which was settled two and a half years ago and my credit score has been steadily improving since then (after about 8 years of striving to get myself out of debt!). And I don't want to let them get away with not fulfilling their legal obligation to provide me with documentation to which I am legally entitled!

 

Help...!!!

[bongo boy]

Hi Shiny,

 

Don't despair ! Without a valid CCA i don't think they will have a hope of enforcing this agreement, I'm sure someone will be along soon who is more experienced, but as far as i know no CCa no win.... I wouldnt offer as much as 50% for any full and final, remember these people will buy debts at pennies in the pound not anywhere near the full value, anything over 10% i reckon is a bonus for them... start low, u can always go up, but it's harder to go down.... Good luck,

 

All the best,

 

Bongo

[BankFodder]

No.1 - probably not enforceable as they have not supplied you with a true copy.

 

No.2 - you would need to reproduce the agreement here.

No.3 No point in going half measure on this. Supply a defence saying that you do not admit the debt as alleged or at all. You have asked for a true copy of the CCA and they have been unable to supply it and that they are not in breach of their obligations under the CCA 1974.

 

Don't offer them any money or come to any deals or sign anything.

 

Wait until the matter is settled at court and then after they have lost you can make them an offer if you want to.

 

I'm afraid that a visit to the CAB is unlikely to be helpful as they will not be concerned to test the enforceablity of the agreements.

 

B aware that the CL claim is for £7k and is therefore likley to be on the fast track with the risk of limited costs if you lose.

However, as they have supplied you with nothing at all, ther doesn't even seem to be any debate over the validy or authenticiy of documents.

On that basis, they have to prove the agreement by producing a true copy of it and if they cannot then their case fails almost automatically.

 

They must know this but they have decided to bluff you

[BankFodder]

If it goes to court, you must simply stand by your argument. Don't waiver, be apologetic or offer part payments. you are entitled to the benefit of law.

[Shinysprite]

B aware that the CL claim is for £7k and is therefore likley to be on the fast track with the risk of limited costs if you lose.

 

Thanks for the help! Please excuse my ignorance, but what does this mean?

 

They must know this but they have decided to bluff you

 

This is exactly what I thought! Am sure they know they are in the wrong and are just trying to call my bluff. Have never been involved in a situation like this before, so am slightly scared by it all but do feel I have a strong case to defend.

[Shinysprite]

Btw, while looking around for other info/encouraging stories (!), I've come across this suggestion in relation to what I perceive to be a situation like mine:

 

Complete your acknowledgement of service form by answering all the questions and return it to the court indicating an intention to defend the entire claim. Then send [the claimant's solicitor] this letter:

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment

 

3 the default notice

 

Your client should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

 

Would this be any use to my situation (even though I've already made my request for documents)?

 

I know I can put my defence in online so am tempted to do this in the next couple of days - any suggestions?? Thanks!

[42man]

Hello Sprite.....can you please state what the Particualrs Of the claim are please ? What you have to do is acknowledge receipt of the claim within 14 days of the date on the claim form....if you wish to defend all (and if it was me and they were in default of a request for a copy of my agreement I would be defending this vexatious claim)....then do....you then get a further 14+3 days in which to submit your defence...BUT the first thing to do is issue a recorded delivery CPR letter....using CPR31.14 (have a read here - http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

 

Or possibly CPR18 but this depends on the particulars of the claim....

 

You might be interested in these threads too...

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/126111-cl-finance-ltd-recieved.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/178882-court-claim-received-cl.html

[42man]

You are picking things up quickly !!! can you tell me what the POC's are ?

[Shinysprite]

Particulars of Claim are as follows:

 

'The Claimant's claim is for the sum of £ being monies due from the Defendant to the Claimant under an overdrawn bank account originated with HSBC Bank plc under reference xxxxxx/xxxxxxxx and assigned to the Claimant on the 28th September, 2007, notice of which has been given to the Defendant.

 

The account was maintained without sufficient funds to meet withdrawals made by the defendant.

 

The Claimant claims the sum of £'

 

The total debt is a credit card, bank loan and overdraft (the overdraft forming the smallest proportion of the debt), which were all rolled into one - it was a First Direct account (part of HSBC), which has been through at least two other DCAs before ending up with CL Finance. There may have been a letter of assignment, if so, I can't lay hands on it but I understand that they should provide this along with all other required documents, is that correct?

 

Thanks all for your help!!

[42man]

Thats interesting, they seem to have rolled it all up into one......they seem to be avoiding their obligations under the Consumer Credit Act....

 

CPR-18 might be the best way to go..... - http://www.consumeractiongroup.co.uk/forum/legal-issues/148845-bryan-carter-received-summons.html#post1573418

 

Have a look here too - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/157114-c-l-finance-defaults.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/182623-please-help-i-have-2.html

[Shinysprite]

Thanks so much, 42man, all of that's really helpful and has given me lots of hope! I don't know why I'm surprised to learn that CL Finance do this so often...!

 

So - just to clarify my next steps, as I understand it from reading those other threads (sorry if any of this sounds dense!), I should:

 

1 - Send the Acknowledgement of Service back to the court, stating that I wish to defend the claim

2 - Send CPR-18 letter to Cohen's (CL's solicitors)

3 - Wait...?! At what point do I put my defence in?

 

One major problem I have is that I will be away on holiday when 28 days from date of service is up - I'd therefore like to get a defence in before I go but do I need to have a response from CL first?

[Shinysprite]

Oh - and just a small addition, I have received no Default Notice from CL, nor a Letter Before Action, which I understand they should have sent before issuing court papers?

[42man]

Hi Sprite....you could possibly write to the solicitors and explain that you have never had an overdraft of this amount, and that it was disputed with HSBC on (date) to provide a copy of your agreement. (along with a substantial amount of penalty charges) And that their particulars of claim are incorrect and attempt to avoid obligations under the Consumer Credit Act 1974

 

Is this Northampton ? As I think you can do it online......and yes state your intention to defend but it is too early to submit a defence BUT WATCH THE TIMESCALES.....

 

CPR - 18 goes to Solicitors....

[Shinysprite]

Thanks again, 42man!

 

Yes, it's Northampton CCBC and I've submitted the Acknowledgement of Service online.

 

It was HSBC's decision to consolidate the whole amount into one when they decided to close my account (a major change in my circumstances in 2001 is what led to my financial difficulties - long story!) and at the time I didn't question it. Should I mention in my defence that the claim is not just for an overdraft? It's so long ago that I can't remember all the exact amounts and it was a really stressful time for me so I just did everything they asked of me at the time.

 

Sorry if this muddies the waters somewhat...!

 

Either way, I am ready to send CPR-18 letter to H. Cohen if that is what's required next - but am still concerned that I'll need to send my defence in by next Friday as I'll be away for two weeks after that (although it's unlikely that I will hear from Cohen's before then).

 

Thanks!! SS x

[42man]

OK...send the CPR 18 off and a letter outlining their particulars and your request for a CCA and excessive penalty charges......do this today if you can....as for your defence, then you could possibly add a defence similar to this - http://www.consumeractiongroup.co.uk/forum/legal-issues/156156-help-mum-being-taken.html#post1665130 - this might help you also - http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/126111-cl-finance-ltd-recieved-4.html#post1350484 BUT do spend some time reading around this forum also - DCA Legal Successes - The Consumer Forums

[Shinysprite]

... and your request for a CCA and excessive penalty charges......

 

Sorry, what do you mean by this? There's been no mention of excessive charges, all I've done so far is request my CCA, which they have failed to provide, and have followed that up with the 12 + 2 + 30 default letter, which was the last correspondence I had with CL before they issued the court papers.

[42man]

OK I wasn't sure whether or not you had maybe queried any penalty charges or not previously.....you have asked for statements for everything in your CPR.....but it might be worth mentioning it in your letter....

[Shinysprite]

OK I wasn't sure whether or not you had maybe queried any penalty charges or not previously.....you have asked for statements for everything in your CPR.....but it might be worth mentioning it in your letter....

 

Sorry - do you mean I should query penalty charges in my CPR-18 letter as well?

 

Re: dates - the court papers state that I have 14 days from service date, but that the 14 days is taken from 5 days after the date on the papers. The claim date on the papers is 1st September, which by my calculations means that my initial 14 days is up on 20th September, and the 28 days (by which time I need to submit my defence) is up on 4th October. So, my next (and hopefully last, for now at least!) question is: how long should I allow Cohens to provide the requested documents? Especially gievn that I'd prefer to get my defence in before my holiday starts? My OH is thinking of taking his laptop when we're on holiday so I can do the defence online when we're away but I won't know whether or not any docs have been sent as I won't be here to receive my post!

[r&b]

hi shiny,

i make it 4th Oct as well but thats a Sunday so work on Friday 2nd Oct at the outside.

with CPR rqst u have to be seen as reasonable, however due to the constraints of the court timetable for your defence 7 days would be reasonable. but you may also have to send reminders if you get no response and you re not away.

i think what 42man is referring to is that charges can be a real thorn in their side if they get the issue wrong (lump them in with the rest of the account, charge interest on them, add them on Default Notices, etc) and you should therefore mention them and possibly ask for a full breakdown of ALL charges on the various accounts in your request.

id look out for a holding/embarrassed defence as well (42man prob given a link already i expect) and load it onto your laptop in case u need to put it in whilst away.

[Shinysprite]

Thanks!

 

Sections d & e of the CPR 18 request letter ask for:

 

Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

Which I guess covers everything, charges-wise?

So, seven days it is, then! Will be sending letter by recorded delivery this afternoon, so watch this space...!

Thanks all for your help so far, any other info meantime, very gratefully received!

SS xx

[Shinysprite]

Been a while, but just thought I'd update on this one... did manage to put my defence in while I was on holiday, with a good couple of days to spare! Received acknowledgement from the court that they'd received it and it had been passed on to the claimant's solicitors. Been counting the days, so I know the claimant's deadline has passed - just rang the court to check on the status and CL/Cohen have not responded, missed the deadline and the case was stayed yesterday. Woohoo!! Am VERY happy with this. I know it could be revived at any time, but I doubt very much that it will be - and if they do decide to pursue at a later date, I will just go through this whole process all over again, and again, and again - as many times as it takes for them to get the message that I'm not going to just roll over!!

 

So, a MASSIVE, MASSIVE THANK YOU to everyone who provided me with advice and guidance on this! You are all absolute gems!

 

SS xxx