Cohens & CL Finance Claims...Please Help **WON Struck out

[kitchenboy]

Hi

Having a bit of a down day, I thought I might be able to deal with these claims but I am struggling at the moment. Received these claims recently, filed an AOS for both stating that I will defend the whole of the claims. Phoned the court and have to file the defenses by 25th Feb.

Brief history, recently I had to close my business mainly due to ill health and as such haven't worked since November and have been signed off work for the foreseeable future. Was on a dmp with cccs until I stopped working after which cccs couldn't help any further. Offered CL Finance token payments as well as outlining my position. They didn't respond cashed the cheques and sent a letter threating court action, this was in Jan. I thought this letter had crossed with mine so ignored it and then along come the claims.

These claims are for two HSBC debts they had bought. P.O.C for both are;

The Claimant's Claim is for the sum of
being monies due from the defendant
to the claimant under a regulated credit agreement
between the defendant and HSBC Bank PLC under
reference xxxxxx and assigned to the claimant on the
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

I have sent cpr requests which the PO website shows as being delivered on the 29/01/08. So far no response. I never received a default and I was also under the impression that by them cashing the cheques they were accepting the token payments and thus my position. I did receive a notice that they had bought the debts but this was around about november time and not september and as such the cccs were probably still paying hsbc. Also I know that there are penalty charges and if they have been taking ppi payments then as I am unable to work I should be able to claim thus disputing their amounts.

Sorry about the long winded post but any help with a defence will be much appreciated.

Thank you

[rory32]

Okay first question is that before you sent the CPR letter had you previously sent a S.A.R - (Subject Access Request) or CCA request? The defence will be quite straightforward, so don't lose any sleep over it and try to keep your chin up. The Notice of Assignment (the notice informing you the debt had been sold) did this come from CL Finance or HSBC? Are the two accounts credit card debts?

[kitchenboy]

Hi Rory32

Thank you for your reply, I hadn't sent a S.A.R - (Subject Access Request) or CCA request, as I had only managed to find this site after I had received the claims. Had no idea about such things before this. I seem to recall receiving a letter from hsbc about the assignment. Not too sure if it reflected both accounts though. One debt is a credit card the other a personal loan. Both were used for the business. I do think, that on reflection, that perhaps I was missold the loan and if you think that it will help the defense and won't be a shot in the dark to go down that road, I will post details as it was quite a complicated situation.

[kitchenboy]

Hi

I have just received this reply today from Howard Cohen;

Dear

re: CL Finance Limited v me

We refer to your letter of recent letter in which you have made a request for information under the civil procedure rules.

We are not obliged to provide this information, and would advise that the particulars of claim detailed in the county court claim form should be sufficient to allow you to respond accordingly.

Please respond to the claim form with either an appropriate defence or an admission and offer of repayment. Failure to do so will result in a judgment being entered without reference to you.

yours sincerely,
xxxx

Well I guess they are starting their scare tactics now, it has taken nearly 18 days for them to reply with this. You would however think that at least they could have run a spell check and checked their grammar. Letter aside, just judging by the rubbish paper and appalling print quality of this letter as well as other posts regarding them, it seems that Howard Cohen are just so unbelievably c**p.

Any advice on a response?

Thanks.

[MR2Phil]

Subscribing and wishing you luck. I received one of these from CL back in November and it's still dragging on. At least you had SOME reply from the d*ckheads to your CPR, I received nothing other than yet more scare tactics! To this date, I have received NOTHING other than a very dodgy looking Notice of Assignment on top of the claim form. I heard today that they have got their Allocation Questionnaire in (2 days late) so it's off to the judge.

The hilarious thing about all this is that I WANTED to pay it in the first place but GE Capital randomly sold the debt off to them whilst I was in the middle of a repayment plan with them (with no warning). I want to know how much of my debt is made up of goods purchased (which I'll pay) and penalty charges (which I won't) but they seem unable to help me to help them!

[kitchenboy]

Thanks MR2Phil

It's just annoying that we are trying to sort ourselves out, but these guys just don't want to play according to the rules and will try and break us down until we just give up. On the plus side if I didn't get the claims I wouldn't have found out about the CAG and my rights .

Now as I have a debt mountain and can't work and will be relying on benefits, the way I see it there are now two case scenarios, worst case I lose probably decide that bankruptcy is for me and these clowns don't get their money back, best case I win and these clowns still don't get their money back. Grrrrr why can't they just see sense?

[MR2Phil]

Absolutely fella! Amen to that! You'll see that I've been a member for a little while (not always active though). I first stumbled across this amazing site whilst researching on getting bank charges back...which I did. Won £2400 which went on other debts and allowed some more breathing space. Then I got cocky and started slipping back into bad habits again. Moving out from my houseshare into a place of my own which was stretching me didn't help either.

I was paying GEC £80 a month until one day they said they wouldn't accept it anymore. Next thing I know, claim form turns up. I phoned them (I know, broke the golden rule!) and offered to pay what I owed but could they spread it out. Hot sounding chick said "No. Pay either now or in 3 months", neither of which was an option. If they were simply able to tell me how much was for goods and what was (unlawful) penalty charges then we'd have a much better chance of reaching an agreement. As it is, I'd probably be in a position to pay them off in full at the end of this month but I'm not going to until I know what I'm paying!

[kitchenboy]

You know what I think these guys should start a careers advice centre; Have any morals-no, have any common sense unlikely, want to earn a commission from the suffering of others-yes. Well why don't you work for a DCA and sleep easy.

You should have seen the letter I got from Moorcroft, they actually wanted me to tell them how much I owed, this is after the usual we will be sending someone around, take you to court blah blah blah. Anyway that's another thread for another day.

Kinda cool these eureka moments, now that I have decided that I don't really have anything to lose, after working for myself for nearly 6 years, my mind has gone as is my health, my marriage is rocky and I am broke. I know now that I am in good company so I am going to go and have a drink and tomorrow I can start to make this as difficult as possible for them.

[rory32]

Any advice on a response?

You don't need to respond. In fact this plays exactly into your hands. Here is your defence. This is a holding defence and the judge will either order them to issue you with the documents you have asked for by a certain date or throw the case out.

In the xxxxxxxx County Court
Claim number





Between

xxxxxxxxxxx- Claimant

and


xxxxxxxxxxx- Defendant

Defence



1. 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.

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, it is proving difficult to plead to the particulars as matters stand

5. Further to the case, on xx/xx/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.

6. To Date the claimant has refused my request under the CPR (letter from CL Finance attached) and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested.

7. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 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



8. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 7 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

9. Notwithstanding points 7 and 8, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

10. The claimant is therefore put to strict proof that such a complaint document exists


11. 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.

12. Notwithstanding point 11, 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)

13. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

14. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

15. 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, and/or that it fails to comply with CPR Part 16.

16. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

17. 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/xxx the 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

Attach all correspondance - i.e the requests, replies, etc. and also attach this, an N266 notice to admit facts;

http://www.hmcourts-service.gov.uk/c.../n266_0499.pdf

I (We) give notice that you are requested to admit the following facts or part of case in this claim:

1. That the Defendant has submitted a request to the Claimant for essential information and/or documents (evidence), as detailed in paragraph 5 of the defence.

2. That the Claimant has failed to comply with this request.

Send everything to the claimant as well as the court with a short covering letter detailing whats enclosed.

[Ross-co]

Love it

Would you recommend that holding defence for any situation where the claimant is less than forthcoming with a CPR18 request?

[rory32]

We can't have a template holding defence because everyones circumstances are different, but the core of the defence would apply when the claimant refuses to disclose documents that are required in order to properly defend.

[MR2Phil]

Originally Posted by kitchenboy

You know what I think these guys should start a careers advice centre; Have any morals-no, have any common sense unlikely, want to earn a commission from the suffering of others-yes. Well why don't you work for a DCA and sleep easy.

You should have seen the letter I got from Moorcroft, they actually wanted me to tell them how much I owed, this is after the usual we will be sending someone around, take you to court blah blah blah. Anyway that's another thread for another day.

Kinda cool these eureka moments, now that I have decided that I don't really have anything to lose, after working for myself for nearly 6 years, my mind has gone as is my health, my marriage is rocky and I am broke. I know now that I am in good company so I am going to go and have a drink and tomorrow I can start to make this as difficult as possible for them.

You do that! Have one on me too!

I've already seen off those muppets Moorcroft. I had a laptop which I believed I had paid off. I had a direct debit set up and these automatically stopped coming out of my account on the end date. Then, some time later (months), I get a letter from them saying they've got this debt and I owe £220! Considering the whole laptop only cost me about £900 over three years, this was some portion!! So I simply asked them to prove how they got to this figure and to see the original docs etc. They never sent them...BUT...I did get a hilarious postcard from them saying "You were visited today, sorry you were out, we'll try again soon".....er....what....? You POSTED it you MUPPETS!!!!

Unbelievable. Never heard from them after I asked for the docs and nothing on my credit reports.

[car2403]

The important thing here is the documentation - definately need that S.A.R - (Subject Access Request) to go off, as the CPR request can be ignored legitimately (in the opinion of some) as long as the claim is allocation to the small claims track. (Only when ordered by the Court do they have to comply with a disclosure request in the small claims track)

Amend to suit;

Dear Sir/Madam,

Style Financial Services Ltd: ********
s.7 DATA PROTECTION ACT 1998 – DATA SUBJECT ACCESS REQUEST

I request that Style Financial Services Ltd provides me with all details held regarding my accounts, including, but not exclusively as I require access to all information relating to me as a Data Subject under the Data Protection Act;

§ Details of all default charges for unpaid items and fees charged for managing the above account, which I have paid in the last six years
§ Copies of all original Consumer Credit Act agreements for each account held in my name
§ Details of all assignments, whether equitable, absolute, legal or otherwise, of the account and documentary evidence of such assignment
§ Details of all manual intervention that has taken place on accounts held in my name, with documentary evidence of such.
§ Details of logic involved in any automated decisions you made about me, or my accounts with you.

Please note that this is not an exclusive list, as I require access to all information held by Style Financial Services Ltd regarding me, as a Data Subject under the Data Protection Act.

I understand that Style Financial Services Ltd is obliged to provide this information under the Data Protection Act 1998. I have enclosed a cheque for £10 to cover the statutory fee that can be charged for this service.

I look forward to hearing from you within 40 days from the date of this letter and before 1 January 2008, in any event.

Yours faithfully

[Ross-co]

Originally Posted by kitchenboy

I am in good company so I am going to go and have a drink and tomorrow I can start to make this as difficult as possible for them.

Do it, just do it and we'll all be here with you making it harder by the day.