Cl Finance sent court papers for a HSBC debt Help Please !!! *** Discontinued****

[consumeredge]

Hi TTS

I’ve no wish to place a damper on events, I’ve read all your thread and what stands out to me is your post 31, "would be grateful for advice really just want to avoid a CCJ at all costs and just continue with instalments feel that Howard Cohen are a bunch of Bullies."

 

Cohen will present a case against you, and whilst they are after a judgement to secure a regular monthly fixed amount, I will say now I deplore their methods and continual abuse of process.

 

The facts are these:

 

25th October 2007 HSBC Bank sent you notice your account had been sold absolute to CL Finance Limited the outstanding balance was £2300.43.

 

CL Finance Limited sent you notice they had been assigned the account, and to continue making payments to Metropolitan Collection Services in the usual way.

 

You continued to make monthly payments, these are classed as concessionairy repayments and recognised as such within the wording of CL Finance Limited’s "Notice of Assignment" the monthly amount paid being dependant on your financial circumstances at any given time.

 

From 29th February 2008 until 29th December 2010 you made payments of £10 per month,

 

October 2010 you sent notice you would increase your monthly payment to £18.99.

 

No payments were made for the months of January and February 2011, A notice was received from Howard Cohen & Co? Dated 22nd March 2011 informing you of impending legal action, no payment was made for the month of March 2011.

 

A payment of £18.99 was made on 5th April 2011.

 

No payment was made for the month of May 2011.

 

cohen then issued a summons against you the first week in June 2011 for the sum of £1944.44

 

The argument that cohen will provide to the court is the account was lawfully assigned and executed pursuant to Section 136 of the Law of Property Act 1925, surprisingly that is true.

 

cohen will be able to provide Statements of Account disclosing consecutive monthly payments of £10 from February 2008 until December 2010,

 

cohen in all probability will provide a copy of your letter last October stating you are going to increase your monthly payment, however, the 2011 Statement of Account will show only one payment of £18.99 was ever received (05/04/2011)

 

The court will rule on the fact you entered into agreement with CL Finance Limited by way of making payments to MCS from February 2008, the case will then centre on the non payments for January/Feb/March 2011, making a payment in April then missing Mays will only serve to strengthen cohens case.

 

In my opinion the way forward for you is to send a letter to cohen that you would consider settlement by way of a consent order, £10 per month, if cohen agrees at least that way you would be spared appearing at court and avoid a ccj. In any event this would show the court willing to settle on your behalf.

 

Again, in my opinion, the argument as to HSBC assigning both amounts from your loan account and current account as one, could be addressed separately afterwards.

[consumeredge]

Hi TTS

 

I've pm'd you a draft letter to email to Howard Cohen & Co, I would suggest you send this asap, you should receive a prompt reply.

 

Members of the Site Team, TTS is more than welcome to post up the draft letter, it's short and simplistic, howevr,in my opinion when considering all the facts of the claim against TTS, TTS needs to act fast, and in this instance, Howard Cohen & Co receive TTS's proposal without the benefit of having read it first on the forum.

[consumeredge]

Hi TTS

 

As I said, I’ve no wish to intervene or put a damper on events, I posted in good faith having read all the facts specifically of your thread, However, It is absolute folly to suggest a "Tomlin order" can be agreed on the day of the hearing.

 

Not withstanding trying to agree terms of settlement at the door of the court (which the court will frown upon) Howard Cohen & Co would be in no mood to then walk in and ask the Judge to adjourn the hearing.

 

Howard Cohen would have to submit an application to have the Consent Order sealed by the court, this costs them time and at least £40 when they know they can secure judgement on the day.

 

To explain, if you were in their shoes, would you honestly agree to an adjournment, or continue with the hearing if you were to asked for a Tomlin Order when knowing this?

Tomlin Order

If the parties agree terms of settlement that include matters outside of the dispute, or orders which the court has no power to make, the parties can record those terms and attach them as a schedule to the Consent Order, or refer to their existence in another document and apply for a stay of proceedings on the agreed terms.

 

Such an order is known as a "Tomlin order" after the name of the judge who first suggested it.

 

A Tomlin Order allows the parties to agree additional terms, such as a confidentiality clause, which the court has no power to order. The court will not approve the terms in the schedule but will make an order staying the proceedings to enable the agreed terms to be put into effect.

 

A Tomlin order is not a Consent Order, it is a separate entirety attached to the Consent Order, the court has no power to enforce a "Tomlin Order" Howard Cohen’s litigation assistant would laugh in your face and you would be made to look foolish.

 

The facts of this case are simple, any perceived concessionary agreement was broken when you missed 2 consecutive monthly payments, Howard Cohen & Co wrote to you, they phoned you, you ignored them, you made no contact or payment until 5th April, and then made no payment in May, what possible defence can be submitted?

 

Had you made token payments for the months of January and February 2011, even if only at £1, you would have had a defence sighting mitigating circumstances.

 

HSBC refunded charges of £688.97 27th June 2007, then sent notice 25th October 2007 the account has been sold to CL Finance Limited.

 

Metropolitan Collection Services Limited are the in house debt collection department of HSBC, it is normal practice for HSBC to pass the account to MCSL for them to administer when customers default on the agreement, usually, if payments are reduced whilst then being administered by MCSL, that is when HSBC sell the account. I would assume the decision was made to sell your account when bank charges were refunded.

 

It is not unusual for Howard Cohen & Co to deliberately delay filing and serving their witness statement, they ignore the 14 day rule.

 

To submit a holding defence allows Howard Cohen & Co to simply apply for a Summary Judgement, that will cost you another £75.

 

If you are in any doubt and my post worried you should seek the advice of a solicitor or your local CAB.

I apologise if my post appeared blunt, I do wish you well, I believed the purpose of your thread was to seek a settlement enabling you to resume a monthly payment of £10 and avoid a ccj, not to now play games in the hope CL Finance Limited will send a notice of discontinuance.

　

[consumeredge]

Hi TTS

 

some pointers, hopefully they may help buy you some time

 

 

1. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present.

 

2. The Claimants' particulars of claim disclose no legal cause of action and they are embarrassing to the defendant as the Claimant's statement of case is insufficiently particularised In this regard I wish to draw the courts attention to the following matter;

 

a) The Particulars of Claim are vague, no particulars are offered in relation to the nature of the written agreement referred to or the method the Claimant calculated the alleged outstanding sum due.

 

3. A copy of the purported written agreement that the Claimant cites in their Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served or attached to the claim form.

 

4. Not withstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the Claimant has a valid claim against the defendant.

 

5. It was agreed 22nd June 2011 between both parties a stay of 28 days to enable the Claimant to comply with the defendants CPR 31.4 request, and provide true copy of said agreement

 

6. The Claimant has failed to supply said documentation within the agreed timescale

 

7. As a direct result of the Claimants failure to provide said documentation, it is proving difficult to plead to the particulars of claim as matters stand. Without disclosure of the relavant documentation I am unable to assess if I am indeed liable to the claimant,

 

8. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim or stay until such time the Claimant files and serves said document.

The normal scenario is if the NCCBC think you have defence the claim will be sent to your local court, you will then recieve an Allocation Questionaire, cohens will complete theirs and return it to the court, they usually tick for 30 days to agree settlement (but never contact you) and will state in other information "Evidence by witness statement, deponent unknown" if the case does reach that far ask the court for a copy of cohens AQ, the court will then set a date for the final hearing, both parties will be obliged to exchange witness statements no later than 14 days before the hearing, cohen uses that period of time from being allocated the hearing date to the actual day to send occasional intimidating letters soley with the intention for you to withdraw your defence, hopefully you will receive their legendry "By Consent" under the pretex, "in an effort to bring the matter to a conclusion and not incur further costs" this can then be amended to include the correct wording and terms of settlement, not theirs! my concern is they could argue you signing a consent order is no guarentee monthly payments would be made and not even bother with it. in my opinion the odds are stacked against you, but I do genuinely hope you are successful.

Good luck, I shall watch with interest

One further point, the email from the court, did this actually come from the court, in my experince the wording and tone is remarkably like cohen's, it also has spelling mistakes?

[consumeredge]

Multiple Defendants

 

Where there is more than one Defendant, the Claimant may discontinue all or part of the claim against all or any of the Defendants (r38.2(3)). The Notice of Discontinuance must specify against which Defendants the claim is discontinued (r 38.3(4))

 

Think about it, if each indivual was issued with a seperate claim there would be no need for the above rule, it is not uncommon to issue a claim to multiple Defendants with one claim number

 

I wouldn't celebrate just yet, by your own admission 2 seperate claims were issued against you and your husband, accordingly Howard Cohen & Co have only served notice that your husband be discharged from the proceedings.

 

I have represented people in similar positions identical to yours,(HSBC/CL Finance/Howard Cohen & Co - 2007) the only difference being that they had not ceased any payments or breached the concessionary repayment agreement as you did, you may wish to read monyl's thread, Howard Cohen & Co served monyl a notice of discontinuance without even receiving a defence, possibly because they monitor the forum and where Howard Cohen & Co provide a standard POC (as with yours) they knew monyl's defence would be based on points of law.

 

I offered advice on a consent oreder as a way forward because you were not in a good position having written offering payments then not making any of them as you had stated.

 

That is evidence against you and I would imagine you signed them at the time, by and on your own behalf, acknowledging to full outstanding balance.

 

Howard Cohen & Co are not fools, you would be foolish to underestimate them.

 

 

Originally you wanted to just continue paying monthly and avoid a ccj, you appear now to believe you can walk away without paying anymore, unfortunately when you read all your thread, CL Finance Limited bought your account, HSBC sent you notice of assignment as did CL Finance Limited, the transaction was lawfully executed, you made payments to CL Finance Limited and received a PPI refund from HSBC, your now of the opinion you do not have to repay the debt on the strenght your husband was served a notice of discontinuance

 

Good luck

[consumeredge]

your misinterpreting CPR 38, the Claimant does not need the consent of the Defendant to serve a noticeof discontinuance nor do they have to give a reason why to the Defendant or the court. If anyones in any doubt google CPR 38 and then HMCS form N279