I have only received a claim form from Northampton court with the claimant as CL Finance. I entered my defence and now have an AQ. Ok so the case is proceeding

 

Therefore, I should have sent an SAR and not CPR18.No you send a CPR when litigation as comenced ie a summons recieved which you have and they have failed to reply which is invairably the case

 

So I need to send out an SAR to BC today. Why ? you can by all means at a cost to yourself and only if you need to to attain information in your case And write the following in my AQ;

 

The Claimants are deliberately frustrating these proceedings and preventing me from submitting a defence/counter-claim, by refusing to provide information first requested under a "CPR 18 - Request for Information" sent to them on the 7th Jan 2009. I also have sent a request to Barclaycard on the 7th Jan 2009 for a copy of the "Consumer Credit Agreement" that the Claimant refers to but they have only sent me a copy of some Terms and Conditions and have not provided a copy of a Consumer Credit Agreement that refers to my name or address.(delete)I believe this is entirely unreasonable behaviour and I will shortly request an Order from the Court compelling the Claimant's compliance, to enable me to file a defence/counter-claim. perfect

 

Is this correct for my circumstances? it is now

Should I send out a SAR to both BC and CL today to assist me later?

Regards

Andy;)

Andy - thanks again, I am unable to tell you what the merits of my defence are yet because I haven't received anything from the claimant or BC that proves this claim is valid or should even exist.

42 man - I have been looking at the following link that you provided and believe that this would be a better approach for my circumstance.

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

My understanding of this approach is that there is no case to be answered without the claimants proof. If proof is provided I will then submit my defence, and if not then the court should strike this claim out.

Is this a better approach for me?

Hi again

I submitted the AQ using the guide pointed to by 42man. Court came back saying Claim will be Stayed until defendent provides; copy agreement, default notice, copy of deed of assisgnement, notice of assignment, and copies of any statement or document to be relied upon. I have now received Howard Cohen's copy of the requested docs, as attached.

Can anyone advise if these are all authentic and meet the T&C's for each to be enforceable. Whats my next step?

Credit Agreement.pdf

Deed of assignment.pdf

Default.pdf

Assignment.pdf

Hi eddiepae,

To take the documents one by one.

The agreement does look to be enforceable.

With the default notice, unfortunately you have blanked out the dates - which are very important - could you tell us the date of the notice and the date by which you had to rectify the default?

In addition, the actual format of the DN notice may not be entirely correct.

With the notice of assignment, again you have blanked out the date in the box. This date needs to be the same as the date given on the document of assignment.

Can I ask, did you ever receive this notice of assignment in the first place? If you did it needed to have been sent by recorded delivery or hand delivered to your home. I presume that neither of those things happened.

At the moment you certainly have a clear defence in that you were not sent the notice of assignment properly (I assume you weren't).

It is also likely that the dates on the default notice are incorrect as well but we can't tell without looking at them.

Finally, the bit about sending a sar to BC was to get hold of all your statements from them to see what late and overlimit charges have been applied to the account as you will also be able to counterclaim for those and the interest applied thereon.

Hi nicklea

Thanks for your response. I amended the two attachments you refer to so the dates are shown. The date of the default notice was 4th April 08, and the date to rectify was 21st April 008.

The notice of assignment was dated 7th Nov 08. The deed of assignment is dated 28th Mar 08 (ie before the default notice).?? The schedule, enclosed in the deed, has no date on that page and the hard copy is of different quality than the deed itself so has clearly been slotted in later.

I did receive the notice of assignment, I think in the normal post but I can't be sure.

I have received a full set of copy statemens from BC, and only one copy statement from HC dated 6 Aug 08.

Hope this answers everything, look forward to hearing back.

Hi eddie,

Just had a quick look and boy are they stuffed on this one.

Your next step will be to submit an amended defence. The court order will have said that you have so many days after receiving the documents in order to reply - you need to make sure you do that within the timescale.

I don't have any time today but I can put something together over the weekend to help you.

Of course you should also carry on reading other threads so that you can understand some of the issues.

If you haven't already I would suggest you have a look at some of the posts that pt2537 has posted on the subject of default notices and the requirements for them being accurate

Hi nicklea

Thanks again for your help, was very pleased to hear your response. I've been reading all afternoon posts relating to DN's including some by pt2537 and one that mentions about the degree of bold, underline or prominance of certain words. Have gone into the Consumer Forum article Consumer Credit Act (1974) and related Regulations to get to the two pdf attachments; 4. Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004.pdf and 6. Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983.pdf . Having gone through these regulations and I can follow that there are issues with the DN but I have no idea how to translate this into a new defence, so yes please I am happy to wait for your assistance over the weekend. In terms of timescales this is a quick summary;

I submitted my AQ along with a 'draft order for directions'.

The court then wrote;

IT IS ORDERED THAT

The claim be stayed till 30 April, save that the claimant shall send to the defendant within 4 weeks the following:

1. Copy of the Credit Agreement

2. The Default Notice

3. Copy of the Deed of Assignment

4. Notice of Assignment

5. Copies of any statement or document to be relied upon.

Date Order Made: 19 March 2009

Order Drawn: 25 March 2009

So does this mean I already have my instructions of what to do next or will I hear from the court again first? How do I submit an amended defence?

Look forward to hearing back and thanks in advance for your time.

HI eddie,

Yes, you're dead right about the DN.

As well as pt2537 you might also want to have a search for posts by I've Got No Money. He (or she) is able to put points across in a defence, witness statement or skeleton argument very clearly.

Hi again

 

I submitted the AQ using the guide pointed to by 42man. Court came back saying Claim will be Stayed until defendent provides; copy agreement, default notice, copy of deed of assisgnement, notice of assignment, and copies of any statement or document to be relied upon. I have now received Howard Cohen's copy of the requested docs, as attached.

 

Can anyone advise if these are all authentic and meet the T&C's for each to be enforceable. Whats my next step?

Sorry Guys but what they've disclosed as the assignment is not enough

You want the whole document - I would write to Cohens tell them what they have disclosed is not enough - you want the whole document - how can you tell from what they have disclosed whether or not it is an absolute assignment. CPR 31.14 - its' a document referred to in the claim form you are entitled to have it. I would argue that the document they disclosed does not comply with the order.

You can make a CPR 31.14 request at any time in the proceedings but you already have an Order for disclosure so you don't need a 31.14 for the same material. If you want something not covered by the original order then yes you can do a new 31.14 request

I would write to them and tell them they're in breach of the Order and give them 7 days to comply if not you will apply for an Order that unless they comply that the claim will be struck out

HI eddie,

I have produced a draft of a defence for you. Well, when I say that I've done it, a large part of the work was done originally by pt2537 and Ive Got No Money - only parts of it am I to blame for.

There are two schools of thought on here as to how to do this.

Firstly, that the defence needs to be short and to the point and that all the references to case law and quotes from judgements etc should be contained in the skeleton argument. Several people have mentioned that judges have reffered to defences being overly long.

However, on the other hand, most people are not used to dealing with courts and when faced with a well prepared barrister or solicitor (however - not all of them are well prepared or prepared at all!) it can be very daunting so a defence that includes everything speaks for itself almost.

Anyway, I have gone the route of giving you everything which is effectively a combined defence and skeleton argument.

Have a read of it and if there's anything you don't understand then please shout.

It's always best to do all this on the forum so that others can give their point of view as well.

regards

nicklea

ps you might need to change the formating etc

Between

1) This amended defence is submitted following the disclosure to me of documents vital to the case by the Claimant as ordered by District Judge xxxx in an Order dated xx/xx/2009

2) It is not admitted that I am liable to the Claimant for the sum claimed or at all. Further, it is denied that the Claimant has any standing before the court.

3) In order to prove it's claim the Claimant must establish a number of matters. Firstly that a valid Default Notice was issued. Secondly it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Thirdly, that proper notice of any such assignment was given to myself (S196 Law of Property Act 1925). Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all times thereafter.

4) It is submitted that it is the obligation of the Claimant to prove all of the matters referred to above.

5) I submit that the Claimant has failed to satisfy all of the matters referred to at paragraph 3 above.

Valid Default Notice

6) Until the alleged Default Notice was disclosed to me under the Order dated xx/xx/2009 I was not in possession of any Default Notice in relation to this agreement. It is not admitted that I was ever served with a Default Notice pursuant to the Consumer Credit Act 1974 (“the Act”). The Claimant is put to strict proof as to the service of any Default Notice.

7) It is submitted that the alleged default notice served under s87 (1) of the Act failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) (“the Regulations”)

8 ) Sections 2 (5) and 2(6) of the Regulations set out the following

9) The notice fails to include the following statement in the form as shown

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH “

The notice does include this statement but the lettering in the notice is not afforded more prominence as is required by s2(5)(a) and (b)

10) Also the notice fails to set out the statement as set out below

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]"

Again, the notice does include this statement, but the lettering is not afforded more prominence as is required by s2(5)(a) and (b)

11) The statements referred to in points 9 & 10 are laid out in schedule 2 of the Regulations

12) For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) of the Act which states

13) I note the opening part of section 88(1) of the Act, which states

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue

14) I note that the regulations do not allow any variation in the form of these statements and therefore it is submitted that where the statements are not as laid down in the Regulations the default notice is rendered invalid as a consequence. It is submitted that the original creditor is subsequently barred from terminating the account or seeking earlier payment of any sum of money by way of s87(1) of the Act.

15) In any lawful assignment the Assignor can assign no greater or different right than he possesses following the nemo dat rule. It is submitted that the original creditor had no right to terminate the account or seek earlier payment of any sum and that if, which is not admitted, there was a lawful assignment, then the Claimant also has no right to terminate the agreement or seek earlier payment.

16) Further, it is not admitted that the amount of money referred to in the notice to rectify the alleged breach was accurate or lawfully owing. The Claimant is put to strict proof. It is noted that the notice needs to be accurate not only in terms of both the scope and nature of breach but also it must include an accurate figure required to remedy any such breach. Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339

17) In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Regulations it would render the default notice invalid:-

This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage. The contract is likely to be in standard form and relatively complex with a number of detailed provisions. If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take what Mr Gruffydd conveniently referred to as 'the next step'.

The Assignment of the debt

18 ) The Claimant has disclosed a copy of a Notice of Assignment that it alleges was sent to me. It is denied that this notice or any notice was sufficiently served on myself before court action was commenced and the Claimant is put to strict proof. Without proof of the serving of sufficient notice the Claimant has no standing before the court.

19) The Law of Property Act 1925 is the relevant act that deals with the assignment of debts.Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

20) Section 196(4) prescribes the requirements for giving sufficient notice by post:-

21) It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

22) For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action was commenced. The Claimant is put to strict proof that any valid notice of assignment was sufficiently served on me. Without this proof, the Claimant has no right of action.

23) Further, if, which is denied, the disclosed Notice of Assignment was sufficiently served on me it is submitted that the Notice is in any case invalid as it describes a non-existent or incorrect document. The Notice of Assignment states:-

“We hereby give you notice that ... by an Assignment dated 21 Oct 2008”

However, the alleged document of assignment that has been disclosed by the Claimant is clearly dated 28th March 2008. It follows that the Notice is not referring to this document and so is an invalid notice of an assignment.

24) I would like to draw the courts attention to the case of W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169 where Denning LJ confirmed that a Notice of Assignment was invalid if it was inaccurate in any way.:-

“ In Stanley v English Fibres Industries Ltd ((1899) 68 LJQB 839), it was held by Ridley J that, if the date given for the assignment was bad, the notice did not comply with the requirements of the Supreme Court of Judicature Act, 1873, s25(6)b. I find myself in agreement with that decision. Section 136(1) of the Law of Property Act, 1925 , shows that the written notice of the assignment is an essential part of the transfer of title to the debt, and the requirements of the sub-section must be strictly complied with. I think that the notice itself must be strictly accurate, in particular, in regard to the date which is given for the assignment. Even though it is only one day out, as in this case, the notice of assignment is bad.”

25) Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim.

26) The Claimant has disclosed the title page and the signature page of an alleged agreement of assignment. Without sight of the actual terms of the agreement, it is impossible to tell from what has been disclosed whether or not it is an absolute assignment. It is submitted that the Claimant has not complied with the Order to disclose the entire document of assignment.

27) It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful.

Sums Claimed

28 ) It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

29) Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty and so in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”)

30) It is submitted that this case, insofar as it relates to penalties, is not affected by the current appeal to the House of Lords following the case of Office of Fair Trading v Abbey National Plc & Ors [2009] EWHC 36 (Comm). Credit card charges differ from bank current account charges in that they relate to a clear breach of contract and this is shown in the original creditor's own terms and conditions. Furthermore, as there is a clear breach of contract, there is no question as to whether or not the UTCCR applies as it has already been held to apply to default provisions by the House of Lords in Director General of Fair Trading v First National Bank [2001] UKHL 52.

31) In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

Statement of Truth

I believe that the facts stated in this amended defence are true.

Signed

xxxxxxx

Defendant

Hello again

First thank you very much to Nicklea. I have been through the whole draft amended defence and now understand how all the comments in the draft work for my case. I have only made two changes to clarify why the DN wording is not in the presribed form, ie lower case. (apologies for delay, it has taken time to get my head around and then I was hit with some family issues last week).

I presume I should send this to the court by special delivery in the same form as shown as the Claim number will sufficiently identify me, or does it need my full name, address and date on it?

The defence should be headed as shown in Nickleas draft with the claim number on it - if you send it to court SD with a covering letter - you put your name/address etc on the covering letter

ok great thanks

Hi again

I have received a letter from the court saying following

"judge orders that this claim be further stayed until 1 June 09 to allow parties to continue their attempts to settle. On or before 15 June one of the following steps must be taken;

either - claimaint must notify court claim been settled

or - claimaint or defendant must wirte to court requesting a further stay period

or - all parties must file a completed AQ.

Date 7 May 09"

I was about to send my amended Defence, as per the one Nicklea has kindly drawn up for me, but then received this court letter. Does this change anything or shall I simply send my amended Defence as planned and then wait to hear from the court again?

thanks

No - what I would do is on the 2nd of June I would complete the AQ - in the AQ I would ask for permission to amend the defence and would attach the amended defence to the AQ.

I would also, on the second of June send a copy of my completed AQ and the amended defence to the other side

Hi, thanks for that. Ok, in that case I guess I simply print a new AQ off from the internet which I have found...yes? (form N149 - the same as previously sent to me and returned).

Then in Other Information of the AQ I need to write something like;

"I respectfully request the Courts permission to amend my defence which I attach to this allocation questionanaire. " Is that sufficient?

And send a copy to the claimant as you suggested.

Look forward to hearing from you.

Hi, as its been a while I thought I would post an up date in advance of something dropping through my door from the court. I sent a special delivery to the court on 2nd June that politely asked for permission to amend my attached AQ, the contents of which were Nickela's defence.

I received a 'statement of account' from CL on 6th July. And then received a copy of a litigation assistants Witness Statement from Howard Cohen on 14 July but have heard nothing else since. The witness statement containts the following;

1. I'm authorised to write this statement.

2. Defendent entered regulated credit agreement, exhibit 1.

3. "From time to time, the Defendent made use of the credit facilities provided under the agreement. There is now exhibited hereto marked 2 copy statement for Aug09. There was a balance of £12XX.XX outstanding upon commencement of these proceedings".

[note exhibit 2 is a only a one page statement and does not have this amount on it anywhere...the amount they are claiming is circa £39XX.XX. Has these been copied from someone elses witness statment without changing the amount?..if so any relevance?]

4. Under agreement Defendent was contractually bound to make monthly payment.

5. On date XX, Default notice was served, payment not made so agreement was terminated, exhibit 3.

6. Account assisgned to CL on date XX, exhibit 4 "Deed of Assignement". Notice sent to defendent, exhibit 5.

7. "Defendent alleges particulars of claim are vague, due to claim being issued a CCBC, the Particulars of claim are sufficient. The defendent alleges that there are no documents supporting the particulars of claim, we refer the courts to exhibits 1,2,3,4,5".

8. "I therefore contend that the Defendant has no valid defence to the claim and respectfully submit that the Defendant is liable to CL Finance Ltd for the the sum of £39XX.XX claimed in these proceedings, and request that there is judgement in favour of CL Finance Ltd in that sum, together with the sum of £165.00 cost upon issue of the claim form, £35.00 being the allocation fee. Along with any other fee the court deems fit".

Signed....

All of the exhibits are the same of those I have already uploaded. The witness statement merely summarises everything again and has made no reference to points raise in my amended AQ about the supposed DN, its proof of delivery, lack of contents of the Deed of Assignment and questining its date or proof that a Notice of Assignment was sent etc.

Does anyone have any comments about this witness statement, is there any relevance that the incorrect amount has been used, what might happen next? How long?

Thanks in advance for any comments.

Eddie thanks for the update.....was the default notice compliant ? termination notice ?

Hi 42man

In short - no the DN is not valid, and there is no proof of delivery for that or the deed of Assignment or Notice of Assigement, plus other issues.

I uploaded all copy documents received from HC on my post..

http://www.consumeractiongroup.co.uk/forum/legal-issues/178915-defence-required-claim-form-2.html#post2123455

Nicklea's then provided my amended AQ reponse pointing our that the DN provided was not compliant and that the Assignment of Debt was not complinat, as per post .....

http://www.consumeractiongroup.co.uk/forum/legal-issues/178915-defence-required-claim-form-2.html#post2128560

This new witness statement from HC is accompanied by new copies of the documents already uploaded in my post found form the first link above.

Regards.

Does anybody have any comments on my last two posts please?

I have not had the opportunity to read your entire thread.

But would say that if you are confident that you have a strong defence and can argue your case then not to worry.

Just curious though, in their witness statement they say:

There was a balance of £12XX.XX outstanding upon commencement of these proceedings".

and

for the the sum of £39XX.XX claimed in these proceedings

If you have a court date set, then I would concentrate on your skeleton arguement and court bundle and look at ways to discredit their witness statement especially considering the above as the witness appears to be trying to mislead the court .

Keep reading round the forum and ask any questions you have.

CL/Cohen are a pain but if they can't proove their case and you can show this then should go well. Just depends on the day and the judge sometimes.

Regards

Hi all - long time no hear on this one but we are off again and I am very rusty so am looking for assistance and guidance please. Thanks in advance.

I completed and sent my AQ in Jun09. Then in Jul09 Howard Cohen sent me a copy of their witness statement with exhibits. Then nothing until now when I received HC's 'reply to the defence' dated Nov10.

First question is how come they can wait this long before they bother to reply?

Second, do I have to digest all of their comments and respond again or do I wait to hear from the court first? this 'reply to the defence' contains lots of these two quotes throughout "claimant puts the defendent to stricy proof of his allegations" and "defendent quotes legislative facts. claimant puts defendent to strict proof as how this constitues a defence".

Third, I cant remember anymore - is a termination notice contained within the default notice or should it be an additional and separate notice? I'll start reading up again but a quick answer to this one would be appreciated as a reminder.

Whoa, need a step back!

So you completed the AQ and heard nothing else until you received their counter defence?

You should have had an acknowledgment from the court, as well as a hearing date for an allocation hearing.

I’m wondering if they failed to pay the fee with the AQ, or even if they’ve sent one in. Or it may have been late.

I’d call the court and ask what the status of the case is. From what you’ve said, it sounds like it should have been stayed – in which case they’d need the court’s permission to start sending you stuff and continuing the process.

Call the court and find out what the heck’s going on.

And putting YOU to strict proof is not what it’s about – it’s up to them to prove their case!

oooh lordy, Embarrassed defence no doubt