curiodeb/Howard Cohen **Case Struck out**

[Guest Alison82]

Hi Pinky69

 

I went to court with them for exactly the same thing just over a week ago, they didn't back down unfortunely (unfortunelty for them neither did I), they sent a rep to the hearing, I was claiming charges and ppi, the judge didn't agree on the charges part but did on the ppi, anyway we can to a agreement and I paid £250 out of £480.

 

My advice is If there are no charges or ppi then just pay up, as they seem to be prepared to go all the way and you could end up with a ccj on your file. I wouldn't normally say this but this time I do. I've done loads of these charges cases now and this was the final account and the only one to go to court.

 

Good Luck whatever you decide

[AndyOrch]

whos Pinky69?

[Guest Alison82]

Sorry I got the names mixed up I thout Pinky69 was the OP (they were the second poster) it chould be to Curiodeb

 

 

Also I should have said, they took me to cout and I put in a counterclaim

Edited June 27, 2008 by Alison82
additional info

[curiodeb]

Hi Andy!

 

Well put the CCA into CL recorded with £1 postal order and copy to SOLS, so lets see if they send us anything now??

 

Feel loads better about this now thanks to you!! At least we are having a good stab at them

 

regards Debs

[curiodeb]

Thanks CCM for input, also to Alison82 but I am not going to back down afterall they don't play fair!! Debs

[AndyOrch]

Ok thats Fine

 

"At least we are having a good stab at them" you sound a little disheartend Debs.I havent even started yet watch this space this will be over before you know it;)

 

 

Regards

Andy

[AndyOrch]

Debs and anyone else reading this post

 

The reality is if you are not making normal payments to an account be it P/loan or C/Card, at some point in time, a Court claim will be filed. These Companies as everyone knows, play rough, so why anyone would assume that they will be allowed to continue making nominal payments forever and a day, with the Bank's blessing, when and if they know you own a property is beyond me. More and more people are getting into difficulties with loans and credit cards, so the worse the situation gets, the more aggressive the banks and credit card Companies will become in enforcing debts. CL Finance is no savier than most and you only have to look at the detail in their P.O.C, hence the need to file via M.C.O.L

As far as I'm concerned, if you know how to deal with these situations to achieve the best possible outcome from day one, you stand a much better chance of getting rid of or stabilizing debts to an affordable amount and moving on with your life. This has to be preferable to finding yourself living with the constant uncertainty regarding what the creditor might do next, and unable to plan for any sort of future for you and your family.

With the help of the team on CAG I no doubt trust that everything possible will be scrutinized with an endeavour to finalize the best outcome with your defence. Yes there is the inclusion of the Invalid NOA/Default note and also contention of penalty charges, where you are challenging the legality of a Default Notice due to penalty charges being included in the amount that was claimed, said Notice therefore being legally unenforceable and would also be grounds for securing a stay, as it comes back to the legality or otherwise of penalty charges, which has yet to be established, which in turn could provide you with valuable breathing space in your case.

As I have stated before, Litigation involves mind games and serves no purpose in giving your opponents the heads up.

Fighting back takes courage, but it's a lot easier than you might think. If some people have opted to write to creditors and challenge what they're doing, this shows a determination to fight. A Court claim is no different, When ever you are questioning/challenging someone else's point of view, you are making an argument, so there's nothing to stop you doing this in front of a Judge, if you have to. Securing the best outcome and stopping them from gaining Summery Judgement, which lets face it is what they are out to achieve, to get their first foot on the ladder to gaining said Charging Order. If you had not intended to defend you would have allowed the above to be much more easily attainable

I trust the above is of help

Regards

Andy

[curiodeb]

Too right....Thanks Andy!

 

Graet advice as always. Not feeling disheartened, your experise has made me feel loads better about all this.

 

Kind regards Debs

[creditcardmug]

Agree with everything in post 57# andy well said, CCM

[curiodeb]

Hi Andy. Hope you had good weekend, mine was certainly more relaxed than previous weekends. Was wondering...in your exprience when should I file defence...is it better earlier or last minute, does it make a difference? Kind regards Debs

[AndyOrch]

Hi Debs I trust you are well

 

Was your deadline the 9th? If you can confirm I have drafted a defence for you which you need to check and obviously let other Cag users give input I will post shortly.

With reference to your question considering we were a tad late with our CCA request we really need to take this to the death ie on the Day if MCOL input or 2 days before G/D if its too long for input.8000 Characters is the maximum input on MCOL so need to do a final check.

 

 

Regards

Andy:)

[AndyOrch]

Hi Debs

 

Just checked your thread, Defence to be submitted by the 12th.Ok that being a Saturday we need to submit by Friday 4.00pm.Having checked the character count it is fine and therefore ok to submit on line.

I would not advocate leaving it till friday afternoon in case the system goes down or you have problems inputing said defence

Copy and paste the following into MCOL at such a time, subject to all being satisfied and no amendments and then print off your acknowledement of input.

If a reply is recieved to your CCA 1974 request then we will need to tweak it before submission.

 

 

Defence to follow shortly

 

 

Regards

Andy:)

[curiodeb]

Thanks Andy, look forward to reading it! Really appreciate you taking your own time in drafting this up for me. Time limit advice also sounds great- thanks.

 

kind regards Debs:)

[AndyOrch]

see below

Edited July 1, 2008 by Andyorch
Duplicate

[AndyOrch]

Hi Debs Here is your defence I hope it is ok for you

DEFENCE

 

 

The Defendant denies that she is liable to the Claimant as alleged in the Particulars of Claim, or at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, includes penalties charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied, that is inaccurate, W.F.Harrison & Co Ltd v Burke [1956].

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169

 

[

It is therefore averred that the Defendant does not know the case that has to be met and the Particulars of Claim neither disclose any cause of action with any reasonable prospect of success and/or are an abuse of the process of this Court and, in compliance with the Civil Procedure Rules can and should be struck out pursuant to part 3.4 of the same. Furthermore, the Defendant contends that the Claimant’s conduct in issuing this claim is vexatious and amounts to unlawful harassment, pursuant to section 40 of the Administration of Justice Act 1970.

 

Regarding that which is denied, on the 27th June 2008, a request was made under section 78, running account credit, of the Consumer Credit Act 1974, to obtain a copy of a credit agreement that the alleged debt refers to. It was sent by recorded delivery to the Claimant, with the statutory £1.00 fee enclosed. It was received on the 29th June 2008. The Claimant had twelve working days from receipt of the request, in which to furnish a credit agreement, as stipulated in Regulation 2 of The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983.

Regarding that which is denied, on 18th June2008 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. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, Claimants are in default of said request under section 78(6)(a) of The Consumer Credit Act 1974.

To Date the claimant has failed to comply with my request under the CPR 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, especially given that I am Litigant in Person.

The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale or at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

The Claimant, possessing no legal right claim monies allegedly owed, has acted unlawfully in issuing a Default Notice and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Furthermore, the Defendant avers, that the Default Notice is wholly unenforceable, given that the amount claimed regarding that which is denied, contains penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. It is the Defendant’s position that the Claimant’s claim is entirely spurious and without merit and should be struck out for the aforementioned reasons.

 

 

 

 

 

[curiodeb]

Wow! Andy that sounds amazing...thank you so much. I hope it is struck out after that. Will copy and paste into word ready for the day we submit. Will post up any replies we get in the meantime and keep you posted and in touch with proceedings through the week. You are a true good spirit!! Regards Debs;)

[AndyOrch]

Hi Debs

 

You are most welcome just check the dates and that nothing as been missed.

With regads to your penalty charges obviously if the claim is struck out a counter claim will not be requird .If however the claim is stayed you will need to have a figure ready.

Are you in possession of your statements? If not may I suggest a S.A.R to GE Money again no sigs and send recorded delivery.

I truly hope the aforesaid is not required however its better to be prepared for all scenarios

 

Regards

Andy

[curiodeb]

Hi Andy!

To true...will SAR them tomorrow anyway, as you say better to be prepared am I right in thinking that a £10 postal order should be enclosed for this? Will keep you up to speed as things develop! My best regards, Debs

[AndyOrch]

Thats correct £10.00 PO

 

Now lets see what developes as previously stated if you do recieve a reply to your CCA request i will tweak the defence but i dont think you will

 

Regards

Andy;)

Edited July 1, 2008 by Andyorch

[curiodeb]

Cheers Andy! Will be in touch as soon as I hear anything anyway, but like yourself I doubt I will receive anything original or true! Kind regards Debs;)

[curiodeb]

Hi Andy

 

Just an update...received letter from the court acknowledging receipt of my defence, so I just called the court to explain the letter we sent was not my defence but a complaint about the claimant not producing documents.

 

Court were very helpful told me to submit my defence next week, like yourself, based on lack of documentation and that if i still hadn't received anything from them that they would be penalised accordingly!

 

Regards

Debs

[AndyOrch]

Hi Debs I trust everything is ok

 

Excellent so you now have the complaint in your case files which will support your holding defence.Court are very helpful and friendly i dont know why people are so reluctant to seek advise when in doubt.Would ease stress levels considerably if other posters adapted your approach in these matters

Keep me updated if anything transpires

 

 

Best Regards

 

Andy;)

[curiodeb]

Hi Andy!

 

Thanks for kind words, yes will definitely keep you updated as to our friends replies...or lack of them. Couldn't have reached this state of mind without your expert advice and support though!

 

Kind regards Deb

[curiodeb]

Hi Andy,

 

Hope you are well? Just an update, am going to submit defence today as have to go away for a couple of days, still not received anything from our friends. Will submit online. Let you know what happens next week!!

 

Kind regards Deb;)

[AndyOrch]

Hi Debs

 

I am very well thanks a tad busy but such is life.Ok so no amendments.You need to calculate the default date ie on the CCA request if you are inputing your defence today.Make sure the dates marry up we would not want to imply anything in the defence that was not true.

I hope you enjoy your break:)

 

 

Regards

Andy

Edited July 10, 2008 by Andyorch
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