HSBC CCA going to court

[nick20045]

Date was checked, happened to be the same as the other OP.

"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.

 

d) A copy of any termination notice served under section 76 and/or section 98 of the CCA, on the alleged account, has not been served attached to the claim form.

 

e) A copy of any notice of assignment compliant with the provisions of the Law of Property Act 1925, on the alleged account and proof of original service of said assignment to the defendant, has not been served attached to the claim form."

 

It was issued via MCOL so cannot have any attachments.

 

8. I respectfully request that the court consider striking out the claim under CPR 3.4.2(a) because it is not fully particularized nor offers any legal cause of action.

Read the particulars of claim. It is particularized. It particulars refer to CCA 1974, Notice of assignment having been served and Notice of assignment having been served. All three legal requirements to file a claim have been referred to. Only thing is no attachments as MCOL claim.

 

9. I respectfully request that the court consider striking out the claim under CPR 3.4.2© because, in light of the failure to respond to CPR 31.14 request, the Claimant is unable to substantiate their claim with documentary evidence.

Considering comments already made where it was said that (something similar but not exactly) it will most probably be a computerised system and a judge will not get involved at this time, then how is it that in a "Embarassed defence" you are asking for a 3.4.2 strikeout? To me it does not make sense.

 

Note: I have given my opinion. Others have as well. Up to you. IF you want to go for the ED route then MAKE SURE you check it so that it does not contradict the particulars of claim they made. Otherwise a Judge may think "he does not know what he is doing and is just using templates. No chance of success of defence. Claimant wins".

 

Should you wish to enter a simple defence then I would recommend going for a "Holding defence" same as Docman and gh2008 have advised. This will transfer it to your local County Court and then file a Full defence.

 

Remember one thing:

 

win = you do not have to pay, they cannot sell the debt on (so no harassment by other DCAs), they cannot claim in court again and if they have filed a default with CRAs you can then get it removed and and make a claim for compensation

 

lose = well......... I guess you know the score

 

So before you file, think, ask, post, repost and use your common sense. What you have to think is: Will this be in my favour or what are the mistakes in it.

[nick20045]

Is holding defence what I've posted above?

Section 3 the word "embarrassed" should tell you what it is.

[nick20045]

Nick - On the draft statement, under 24 - what date should this be?

 

Should a holding defence be a different statement then?

The date the bank told you that you have now defaulted as did not reply in time to the Default Notice. IF they never wrote such a letter then amend to read " The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case."

 

Remove the part " as it was terminated on XX/XX/XX"

[nick20045]

Holding defence

 

From: http://www.consumeractiongroup.co.uk/forum/legal-issues/157973-welcome-fianance-court-case-4.html

 

Post 78

 

So roughly yours would be:

 

IN THE NORTHAMPTON COUNTY COURT

 

Case No:

 

 

BETWEEN:

 

Welcome Financial Services Limited

 

 

 

Claimant

 

 

 

and

 

 

 

 

 

 

XXXXXXX

Defendant

 

 

 

DEFENCE

 

 

 

 

 

1 The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2 It is denied that the Claimant served upon the Defendant a default notice pursuant to section 87(1) of The Act and which was in prescribed form and compliant with the provisions of section 88 of the Act.

 

3 The default notice relied upon by the Claimant was a notice dated 16 July 2008. Save that the notice was served upon the Defendant on a date thereafter and that service was by post, the Defendant is now unable to recall on what precise date and by what precise means the notice was served upon him/her. The notice failed to specify a date being a date 14 days after service of the notice or any date after service by when the Defendant was required to comply with the notice. Alternatively, the date specified in the notice by when the Defendant was required to comply was 16 July 2008 which was not a date which was 14 days after service of the notice.

 

4 Without prejudice to the generality of the Defendant’s contentions set out at paragraph 1, the Defendant avers the Claimant terminated the agreement and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

5 Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

6 Further and in any event, by reason of the matters set out at paragraphs 2 and 3 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

7 In the circumstances neither the Claimant’s default notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

8 The Claimant’s claim to be entitled to £3,115.79 or any other sum is denied.

 

 

I BELIEVE THAT THE CONTENTS OF THIS DEFENCE ARE TRUE.

 

Signed:

 

Note: If you want to go for a holding defence will adapt the above to fit your case.

[Gemz]

Yes, let's go for holding defence, can you assist with editing the above pasted defence please.

[nick20045]

Yes, let's go for holding defence, can you assist with editing the above pasted defence please.

Will have a look at it. From the thread it seems to be ok as it was accepted.

 

In the meantime have a read of posts:

103

106

109

126

129

139

140

146

151

[nick20045]

You have to add the "heading"........

 

In the Northampton County Court etc etc (Writing is Arial Size 12)

1: The Defendant admits entering into an agreement with the Claimant and which was regulated by The Consumer Credit Act 1974 (The Act). No admissions are made as to the terms, conditions or other provisions of the agreement and the extent to which the Claimant may or may not have complied therewith and the extent to which the Defendant may or may not have complied therewith. Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part.

 

2: It is agreed that the Claimant served upon the Defendant a default notice pursuant to section 87(1) of The Act. It is on the other hand argued that the Default Notice is invalid, unenforceable at Law and is not in the prescribed form and compliant with the provisions of section 88 of the Act.

 

3: The default notice relied upon by the Claimant was a notice dated 1st February 2007. The notice was served upon the Defendant on approximatey the 7th February 2007 as, it was served by normal post. The notice specified the date to comply with the remedy of breach as the 15th February 2007 which was not a date which was 14 days after service of the notice.

 

4: Without prejudice to the generality of the Defendant’s contentions set out at paragraph 1, the Defendant avers the Claimant terminated the agreement and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

5: Incorporated within the sum demanded by the Claimant are sums claimed for administration fees, late payment charges and like provisions. It is denied (if it be alleged) that the Claimant has incurred any such fees and charges, alternatively that such fees and charges if incurred accurately represent sums lost by the Claimant by reason of any breach on the part of the Defendant. Alternatively, the Defendant avers the incorporation of such claims is penal and unenforceable at law.

 

6: Further and in any event, by reason of the matters set out at paragraphs 2 and 3 of this Defence and the requirements of section 87(1) of the Act, the steps taken by the Claimant and identified at paragraph 4 hereof were steps which the Claimant was not entitled to take.

 

7: In the circumstances neither the Claimant’s default notice nor its termination of the agreement gave rise to an entitlement to claim any of the relief now sought by the Claimant.

 

8: The Claimant makes reference to a Notice of Assignment having been served on the Defendant. The Defendant avers that no such document was properly served on the Defendant and seeks strict proof of said service.

 

9: The Claimant’s claim to be entitled to £xxxxxxxxx or any other sum is denied.

 

 

I believe that the contents of this defence are true.

 

 

 

 

Signed:

Defendant

 

Note: Above based on the original defence just edited to take different changes. Subject to acceptance, editing, modifying or as the OP may deem fit. It is subjected "as is" and it is the OP's perogative to decide what to do.

[gh2008]

again, just my opinion but I would at least mention that the claimant is not actually entitled to issue a claim whilst in default of an S78 request. Not entitled to issue = strike out full stop no arguing no further defence needed.

 

This is actually a really major point and shows clear 'abuse of process' by the claimant.

[nick20045]

again, just my opinion but I would at least mention that the claimant is not actually entitled to issue a claim whilst in default of an S78 request. Not entitled to issue = strike out full stop no arguing no further defence needed.

 

This is actually a really major point and shows clear 'abuse of process' by the claimant.

Feel free to amend it.

[Gemz]

Where is best to put that in? Could someone word it for me please?

[Gemz]

4: Without prejudice to the generality of the Defendant’s contentions set out at paragraph 1, the Defendant avers the Claimant terminated the agreement and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

Is this the correct word?

 

 

Is the amount including the solicitors fees / court fees on MCOL or the amount on the Claim Form?

[nick20045]

Where is best to put that in? Could someone word it for me please?

Read para 1. Last sentence: "Further and alternatively, it is denied that the agreement was properly executed and/or is now enforceable in whole or in part."

 

It says: "it is denied that the agreement was properly executed and/or is now enforceable in whole or in part".

 

To me, it is already there.

[Gemz]

Thanks nick, can you answer the questions on post 86 too please

[nick20045]

4: Without prejudice to the generality of the Defendant’s contentions set out at paragraph 1, the Defendant avers the Claimant terminated the agreement and pursuant to termination that the Claimant has since made demand of the Defendant for the payment of money the subject of this claim.

 

Is this the correct word?

 

 

Is the amount including the solicitors fees / court fees on MCOL or the amount on the Claim Form?

Avers means (you should use google if you do not know) to state formally avers - definition of avers by the Free Online Dictionary, Thesaurus and Encyclopedia.

 

Amount is as shown on the claim form.

[nick20045]

And just to make it clear:

 

Notice of Assignment not properly served = Strike out (or should be) but the DCA may try to take another shot at serving. Debt stays on record. Any default stays on record. Debt can be resold to another DCA. Game starts all over again.

 

Unenforceable agreement = Strike out (or should be) but the DCA may try to take another shot at serving if they find the agreement later on. Debt stays on record. Any default stays on record. Debt can be resold to another DCA. Game starts all over again.

 

Invalid Default Notice = Strike out (or should be). Debt is removed from record. Any default on a credit report has to be removed as now debt does not exist. Can sue Claimant for damage to credit rating. Debt cannot be resold to another DCA as it does not exist.

 

Which one is the best to go for?

[Gemz]

Invalid Default Notice would be best but default isn't really a problem as he has a few on record.

[nick20045]

Invalid Default Notice would be best but default isn't really a problem as he has a few on record.

Tell him after you get 3 they will ask for a DNA swab. :D:D

 

 

 

Just joking.

[gh2008]

And just to make it clear:

 

Notice of Assignment not properly served = Strike out (or should be) but the DCA may try to take another shot at serving. Debt stays on record. Any default stays on record. Debt can be resold to another DCA. Game starts all over again.

 

Unenforceable agreement = Strike out (or should be) but the DCA may try to take another shot at serving if they find the agreement later on. Debt stays on record. Any default stays on record. Debt can be resold to another DCA. Game starts all over again.

 

Invalid Default Notice = Strike out (or should be). Debt is removed from record. Any default on a credit report has to be removed as now debt does not exist. Can sue Claimant for damage to credit rating. Debt cannot be resold to another DCA as it does not exist.

 

Which one is the best to go for?

 

Can I just ask on what basis you are making these claims?

It's certainly not my experience or that of many others on here ......

[nick20045]

Can I just ask on what basis you are making these claims?

It's certainly not my experience or that of many others on here ......

In which one?

 

Notice of assignment?

Default notice?

Unenforceable agreement?

 

Or should I say which one do you not agree with and why? (Anybody can challenge. Question is why (or give your reasoning)).

[MandM]

Hi Gemz,

 

Cut and paste your defence up on here before you send it so some of the more experienced ladies and gents on Cag can have a look and comment before you send it.

 

Looks like there's been a fair few comments so best to make sure nothings been lost between the posts.

 

M

Edited January 13, 2010 by MandM

[Gemz]

My father did it on Tuesday, he didn't think it needed further checking. Am a bit worried now...

[nick20045]

Am a bit worried now...

Cannot see why. Go to post 79 and you have the link where it was taken from. Check that link and read the posts I refered you to which are the main ones unless you want to read the whole thread (if I remember correctly they are listed at the top of this page). You will see that it was accepted and is valid. Only few small changes were made between the defence in that thread to the one your dad has sent. Should be ok as long as you did add the "header" i.e. In the county court xxxxxxx, claim number, between CL Finance and XXXXXXX defendant etc etc.

[MandM]

gh's point in post 83. Is it in?

 

M

[nick20045]

gh's point in post 83. Is it in?

 

M

Have you bothered reading previous posts?

[MandM]

Have you bothered reading previous posts?

 

Yep. Can see the defence on post 82. Can also see gh2008 suggestion in post 83. Can't see anywhere where it was picked up!! Was it?

 

As pointed out, this could be "a major point". OP needs to leave as many angles open to them as is possible.

 

M

Edited January 14, 2010 by MandM
added in bold