Thread: Appeal against Default CCJ

Me vs CL Finance, a default Judgement was entered and I applied to have it struck off on the grounds that the debt included Bank Charges and PPI I was unable to claim against.

Debt originally with GE Money.

Sent SAR to both CL and GE on 18th January, both cashed £10 cheque (signed by my wife), but have not received any correspondence from either company.

Am I right to assume I have no alternative to enter an embarrassed defence?

Court hearing is 18th March, transferred from Northampton to my local court.

Have filed complaint with Information Commissioner regarding Data Protection (help line confirmed I should have had response).

Would the SAR also reveal the CCA (pre 2000) or do I need to take alternative/additional steps to get sight of that?

Re the PPI, GE told me as it predated 2003(?) it was not covered by FSA, is this true even if they continue to take payments for it in 2008?
My complaint is that I never saw a policy, and when I became unemployed I was unable to claim due to Self-Employment...

Thanks in advance

Thanks for the heads up on the DSAR procedure, I was aware the Information Commissioner was a little toothless, they had suggested getting a court to order disclosure but gave no further detail.

Does any one have any advice regarding the upcoming hearing I have please?

Thanks for the info on the hearing, makes me feel a little beter about it!

I will have a good read of the Multiple Agreements thread, thanks for pointing that out to me

Well today was the day of the hearing.

Other side were a no-show, which I had expected after reading here

Judge asked why I had not submitted defence originally, even though I had no good reason (a nervous Breakdown last year) he accepted that I had grounds for submitting a defence and that he would order the CCJ struck out.

I got told off for not taking Court Papers with me, except for the hearing papers for today, and was told that I was fortunate to get the hearing because I had delayed my application (CCJ was December 23 my application was February - it doesn't pay stick one's head in the sand).

I have now been given 14 days to submit my defence, so this I guess is where the fun starts.

I am considering the following defence:

1. PPI mis-sold therefore 10% of running credit balance fee should be removed.
My concern here is that CL have been unable to provide any statements at all, and GE (the OC) have failed to respond to a SAR, can I force GE to provide statements and in the time limit required?

2. The original CCA is un-enforcable on the grounds it is a multi-part agreement and does not fulfill the prescribed terms.

3. I have not received a NoA from GE, again their failure to respond to a SAR is exacerbating this.

I'm learning fast from reading here, but it does make my head swim a bit!
Really appreciate the time and effort all here give so freely, I will endeavour to share my experience an knowledge as repayment.

Great!

Thanks DocH, much appreciated.

I gather from the:

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with *********.(AMEND TO THE COMPANY NAME)

and:

h. Copies of statements for the entire duration of the credit agreement.

This is how I get the information that is/was held by GE that they are not releasing to me?

Warming up to this now, after the tiny (but significant to me nonetheless) victory today.

And SpecialD it will be.

Thank you again.

Got the order from court on Monday, claim struck out and defence to be in by 3rd April !!

Nothing at all heard back from other side in response to my CPR18.

Re-reading your post DocH I think I goofed seriously, I sent it to the plaintiff not their solicitor.

From what I have read of CL Finance and Cohen I thought they were pretty much one and the same, how significant is my mistake?

As it stands today I think my defence will be:

1. PPI charges for mis-sold insurance (I never got any T and Cs for it) so will dispute all of those.
2. Unfair charges, although the hold on the wider litigation for this may scupper that the judge indicated at the set-aside hearing.
3. The CCA is not properly executed and/or is un-enforceable.
4. I did not receive a copy of my cancellation rights.

Were you issued with default notice? The creditor (prior to assignment of the debt) must have issued you with a compliant DN – if not the whole claim is fundamentally flawed.

You admit nor deny that CL Finance have the lawful right of ownership of the debt and put them to strict proof that any assignment was absolute and in compliance with the Law of Property Act 1925.

Any chance of posting up the POC for more advice?

If I can find the POC I will post it for sure, not 100% confident I ever got one..

Will also scan and post the default notice I got from CL when I SAR'd them.

The POC:

The Claimant's claim is for the sum of 2196.99 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and GE Capital Bank Limited under reference xxxxxxxxxxx and assigned to the Claimant on the 15th October, 2008 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 Defendant pursuant to Section 87(1) of the consumer Credit Act 1974.

Persuant to clause 7 of the agreement, the Claimant also claims contractual interest at a rate of 26.478% per annum from the date of these proceedings to the date of judgment (sic), or sooner payment, accruing aat a daily rate of 1.70.

I will scan the assignment letter shortly, it came from Howard Cohen not CL, or GE Money...

Don't forget the DN - it could be very important to your defence.

My defence so far:

In the XXXXX county court
Claim number
XXXXX




Between

Dodgy Finance Ltd. - Claimant

and


HarriedGuy - 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 19/03/2009 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 failed to comply with my request under the CPR (copy 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

Not too sure about the bit in red, I have an alleged copy of the CCA so know the date of it and that the Consumer Credit Act 2006 does not apply, but their POC does not indicate any date of the original agreement with the OC, instead relying on the assignment date.
They do state "The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon Defendant pursuant to Section 87(1) of the consumer Credit Act 1974."

So I amend that last bit?

Originally Posted by palomino

I think you mean compliant ...

Nice spot!
Thank you