BB v CL Finance/H Cohen Defence Needed

[BeauBrummie]

Hi all,

 

A bit of background,

 

Had a current acc overdraft with First Direct and subsequently took out a loan circa Dec 2004 (Seperate to Current Acc). Various problems with finances-- passed on through MCS and DG Solicitors until :

 

Assigned from HSBC to CL Finance Jan 09

 

Litigation issued by H Cohen May 09

 

Sent CPR 31.14 and CPR 18 in June 09 ----Nothing returned by HC except to deny that they had to supply info.

 

Entered an embarrased defence to County Court

 

AQ sent Sept 09

 

Order for me to supply a defence or face default judgment as all info now supplied???

 

POC detail only contains Acc No for original Current account but the amount claimed is very obviously for the Loan amount as well--loan and current acc are amalgamated.

 

I appreciate that current account will not fall under the CCA but the Loan certainley does----do I have enough to defend this as it stands on a wrong POC amount?

 

Thanks

 

Beau

[postggj]

Clueless And Cohen

 

All Thats Missing Is Lewis

 

Have You Got An Agreement For The Loan

 

Had You Made A CCA Request Prior To Court Action

[BeauBrummie]

Hi Post

 

Searched hi and low and cannot find an agreement----suspect it was online.

 

I have not requested under section 78----does CPR 18 not cover this?

 

Thanks

 

Beau

[postggj]

Need My Eyes Testing

 

Hold On

[postggj]

Order for me to supply a defence or face default judgment as all info now supplied???

 

WAS THIS COHEN SAID THIS

 

HAVE YOU BEEN UP IN FRONT OF A JUDGE YET FOR DIRECTIONS

 

AT THE AQ HEARING

 

WHAT HAS THE COURT SENT SINCE THE AQ

[BeauBrummie]

This came from the Court :

 

Before DJ -----

 

The claimant having supplied full particulars of the claim

 

It is ordered that:

 

"Unless the defendant sends to the court and the claimant a defence (if any) By 4Pm -- December 09 the claimant be at liberty to enter judgment for the sum claimed, interest and costs".

 

Nothing from Cohen since June as post 1

 

Not been in court at all with this yet.

 

Beau

[PGH7447]

subbing

[someone_else]

What was the contents of your original defence?

 

Were Cohens ordered to supply anything after the AQ stage? and have they supplied any documents?

 

What's the wording on the PoC.

[BeauBrummie]

POC as follows:

 

The Claimants 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 (current acc number) and assigned to the Claimant on the (Jan 09), notice of which has been given to the defendant.

 

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

 

The claimant claims the sun of £----.--.

 

 

Defence Submitted as follows :

 

 

 

 

I, BB of ---------- make this statement as my defence to the claim brought by C L Finance Ltd

• The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system
  
• No documents supporting the claims in the particulars have been offered and despite a request to the claimant for further information none has been forth coming and as a result I cannot plead in defence to the claim
  
• Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.
  
• Further to that above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.
  

And followed by AQ draft order for directions on N149

 

Section G - other information

 

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer.

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further.

 

And then Section I :

 

Draft Order for Directions

 

 

 

 

 

The Claimant shall within 14 days of service of this order file and serve the following:

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon
  

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

 

 

 

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant
  

Thanks

 

Beau

Edited November 24, 2009 by BeauBrummie

[BeauBrummie]

Were Cohens ordered to supply anything after the AQ stage? and have they supplied any documents?

 

Not heard a single thing from Cohens or the court until the order from the DJ arrived

 

Beau

[BeauBrummie]

Just a bit more info,

 

I say that it is obvious that the Loan has been wrapped up in this because the OD was only less than 1/3 of the POC claim.

 

The amalgamation happened before the assignment and was done by Metropolitan Credit Services--- I have the original letter from them when 2 became 1 as the Spice Girls sang;)

 

Beau

[someone_else]

If they haven't supplied any further documents then you just may want to use one of the longer embrassed defences as your amended defence.

 

I'm not sure what's required for a bank account, but at the least they'd need to supply statements showing the balance and a valid notice of assignment - if they have merged your bank account and loan accounts then they'll have trouble supplying statements, which will make assignment bad.

[BeauBrummie]

I suspect I need a defence that refutes the amount claimed ie

 

I BB, admit an account number ------ with HSBC but deny that the account was for that much and put the claimant to strict proof of the amount claimed---------or words to that effect.

 

This will then invalidate the assignment one would hope.

 

Beau

Edited November 25, 2009 by BeauBrummie

[cymruambyth]

Hi BB, glad to see that aren't being left for a quiet run up to Christmas!!!

I haven't gone down this route......yet;)

Was it the same DJ?

I agree you need to point out that the amount is totally wrong. Are there charges on the original od? If so, today's result may have some bearing on how you word the od part of the defence.

Otherwise, I suppose you need to prepare a full defence refuting the points because you don't have documentary evidence.

These are just suggestions and I am sorry if this advice is not correct etc etc.

[BeauBrummie]

Hi BB, glad to see that aren't being left for a quiet run up to Christmas!!!

 

I haven't gone down this route......yet;)

Was it the same DJ?

I agree you need to point out that the amount is totally wrong. Are there charges on the original od? If so, today's result may have some bearing on how you word the od part of the defence.

Otherwise, I suppose you need to prepare a full defence refuting the points because you don't have documentary evidence.

These are just suggestions and I am sorry if this advice is not correct etc etc.

 

 

Hi Cyruambath,

 

This is the second of 3 cases I have on the go at the moment!! The third one is a Next agreement that does not exist, and I am in court with that Mid Dec!! It is also via Howard Cohen-----and yes all 3 of my cases are being heard by the same DJ:shock:.

 

So no it is not a quite run up to Christmas

 

Beau

[cymruambyth]

We have 3 sets of paperwork to be submitted on the same day:( early December. 2 are with the same DJ which Im not looking forward to.

[BeauBrummie]

Hi all,

 

I have found this and having read through adjusted to and beleive it is relevant to this case courtesy of pt2537---Thank You Paul,

 

 

 

Defence

 

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

2. 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.

 

3. It is admitted that I held a bank account with xxxx, which was opened in approximatley xxxxxx .

 

4. Notwithstanding point 3,the claimants' particulars of claims do not appear to disclose any 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 account number xxxxxxxx referred to, the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the claimant's claim.

 

b) 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.

 

c) No copies of statements relating to the bank account have been included with the claim form and no particulars have been offered supporting the claimants claims of my indebtedness to them

 

5. In considering the claimants particulars of claim, the claimant claims that there is a balance of XXXX but evidence is not supplied as to the arrival at this amount under the account number shown. It is therefore denied I am indebted to the claimant under HSBC account number xxxxxxx or the claimants own account number xxxxxxxxx and I consequently do not see what case there is to answer

 

 

 

 

6. Further to the case, on xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, and also on xx/xx/xxx which is vital to this case from the claimant. The information requested amounted to copies of the Bank Statements referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments made 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 Deed of assignment and Notice of assignment

 

 

7. The claimant has failed to comply with my request for disclosure entirely and it is suggested that such failure highlights that there is no case for me to answer

 

 

8. Since the claimant has failed to comply with the request for disclosure as outlined in point 6, it is requested the court consider striking out the claimant statement of claim as failing to disclose reasonable grounds for bringing the claim and there is no case to answer

 

 

9. I further ask the court consider striking out the claimants case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly

 

 

10. Alternatively, if the court is not in agreement with points 8 and 9,I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in point 8 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.

 

 

So what do you think people ? Bear in mind I have already asked for the info at the AQ stage but my draft directions have been ignored--so I am up against the court & CL in this one!!!

 

Thanks

 

Beau

Edited December 1, 2009 by BeauBrummie
Changes to reflect what was actually sent

[BeauBrummie]

Just a gentle bump ---- please

 

Beau

[BeauBrummie]

Anyone give me an idea if this defence will hold water??

 

Thanks

 

Beau

[cymruambyth]

Have you looked at r&b's thread about an LTSB od?

[cfs_too]

If they haven't supplied any further documents then you just may want to use one of the longer embrassed defences as your amended defence.

 

I'm not sure what's required for a bank account, but at the least they'd need to supply statements showing the balance and a valid notice of assignment - if they have merged your bank account and loan accounts then they'll have trouble supplying statements, which will make assignment bad.

 

I know I'm a bit late in this thread, but I too have had issues with FD rolling a CC into an overdraft. OD was a few hundred pounds, into which they placed over £10 from a CC balance. I have been back and forth to them with complaints letters, along with the delightful Metropolitan too.

 

What I did earlier in the saga, when I received my first calls from Metro, was a DPA request to FD, which they duly provided (after a lot of hoo-ha regarding 'we MUST have your signature', which I did not provide!).

 

Within this request, I received copies of computer print outs which detail the status of both accounts prior to the merge. I'm no expert, and have no legal training but surely this should prove to be quite critical documents in your defence? There would be no harm in getting a copy of this, as this would clearly prove their underhand tactics in trying to grab some money back.

 

I'm not sure if you have a true copy (ie not under a CCA) of your loan agreement, as I have only this past night been reading your 'adventures' with the DCA's.

 

If you have already done a DPA request I apologise, but if you haven't I would say this is your best bet, although a little too late to submit as evidence it might help you in the long term if you are now submitting another 'further embarrased' defence.

[BeauBrummie]

I have been thinking a bit more about the actual facts as CL Finance would have it

 

Can anyone tell me what the procedure is in a "Right of Set Off" and if that procedure would be relevant in this instance. I have never been informed by FD, MCS nor DG and obviously CL Finance that the two accounts were being used in this way----and therefore it is my assertion (to be put in the above defence somehow) that the assigment is illegal as it stands.

 

CL claim it to have an "Absolute" assignment and so I beleive they are trying to get round their resposibilities to the CCA in this instance or they may be totally oblivious the the fact that the amount of this claim is the sum of two accounts!!

 

Any thoughts anyone on this notion and my above defence.

 

Beau

Edited November 28, 2009 by BeauBrummie

[BeauBrummie]

I think I have found my own answer to the above---found the original current account T&C's and clause 5.2 states

 

Set Off

 

If any accounts you hold with us or HSBC bank are in credit, we may use them to repay or reduce any amounts you owe us including but not limited to sums due on any other accounts you hold with us in the same name including any card accounts and any joint accounts with us or HSBC bank if we decide to do this, we will tell you why and when it was done.

 

So clearly in this case "Set off" cannot apply

 

Beau

[BeauBrummie]

Update to this thread,

 

I have today submitted the Defence as in post 17.

 

Lets see what happens

 

Beau

[BeauBrummie]

Further update to this thread. WIN FOR THE LITIGANT IN PERSON

 

I received a copy of an order around 10th of Jan that if Cohen had not filed a hearing fee by end of January, the claim would be struck out.

 

It would appear that Cohen did not comply, so having waited a couple of weeks to be sure, I wrote to the court to confirm that I strike out was was the next move by the DJ. I also put forward my claim for costs.

 

I have a reply today that confirms that the Strike out has been confirmed, but it would be up to me to apply for an order for costs and then serve Cohen with the Schedule.

 

As this was only a small claim my costs are not huge, but the principle is the same as if I had lost this case Cohen would certainly be adding.

 

Anyone got any experience of this.

 

Just happy to get a victory over a badly handled case by Cohen on behalf of CL Finance - ultimately they could not prove the cause of action and so folded:p.

 

Site Team Do you think this could go into Legal Successes forum;).

 

Beau.

Edited February 24, 2010 by BeauBrummie