CCJ from CL finance (Howard Cohen)

[atwozee]

Have they supplied a copy of the Default Notice - without that they are going to struggle - also a copy of the NoA and you will need to see the deed of assignment in court to see if the NoA is valid.

 

I wouldn't say your case was hopeless yet.

[tendogs]

Thanks for having a look atwozee, do you think the agreement is contestable?

[Goldlady]

DDD, I think the agreement is debatable, would not say outright that is a non starter. But having said that I defeated this bunch three times in court because of breaches of civil procedure rules - ie they sent the court claim before they had notified me the debt had been assigned etc.

 

Can you give a chronological list of what they did when?

 

And what is the hearing on the 17th?

 

And what have you sent to the court so far?

[debtdebtdebt]

OK so far I have been sent 'General forms of Judgement or Order' to allocate this to the Small Claims Court, with an offer of mediation service.

Also attached is the 'Notice of Allocation to the Small Claims Track (Hearing) with dates and instruction.

 

Also claimant have sent their papers dated 10th March...I have submitted none to court or claimant (were due 2nd March)

 

But the 'bundle ' does not contain a copy of the Default Notice nor have I ever been informed of one nor seen sight of this, although it was requested several times previously. A missing document but how important, also is it a wasted effort composing a 'bundle' and submitting being way late.

In view of the fact that all the information I have clearly requested has never been made available?

Edited March 14, 2009 by debtdebtdebt
incorrect

[Goldlady]

Need to go back further. When did you receive the notice of assignment from CL Finance, the default notice and the Court Claim?

[debtdebtdebt]

Goldlady,

The order in which they came....

 

i) Letter advising NoA dated 22nd Aug 2008 - arrived 25/26th.

ii) Default notice never sent to this day (verbal + formally requested)

iii) Claim filed @ Northampton on 20th Aug 2008

 

 

Sorry for the delay - I have checked my documentation it is 100% correct

Edited March 15, 2009 by debtdebtdebt

[atwozee]

Not sure about the agreement and agree with goldlady – but I would want to know if the original creditor issued a default notice prior to assignment to CL and if that notice was compliant.

I would want to know if the assignment was an assignment of a debt or an assignment of a live account. If it was an assignment of debt then the account must have been terminated and that requires a compliant DN.

I would want to know if the date of the assignment as referred to in the NoA (if it was referred to) matches the date on the deed of assignment – if it doesn’t then the assignment is ineffectual and CL have no right to make the claim.

If the above documents were requested and haven’t been supplied then I can’t see how you can defend properly.

[Goldlady]

DDD - they issued the court claim before they even wrote to you about the assignment. I have posted the defence I used to kick CL/Cohens out - some of if might be relevant to your case, particularly the bits about assignment and about them issuing the claim too quickly:

 

 

In the xx County Court

Claim Number

Between

 

C L Finance Ltd

 

and

 

Goldlady

 

 

I am the defendant in this matter and I would firstly notify the court that I have received no documents whatsoever from the claimant in response to the court’s order dated April 2008. I am therefore preparing this amended defence without any of the further information I requested. I must draw the court’s attention to the fact that I first requested the documents listed in a CPR Part 18 Request for Information dated January 2008 .

 

To date the documents I have received are the application form dated November 2004, a set of terms and conditions dated July 2007, a substantially incomplete set of statements (July 2005 to June 2006, May 2007 and August 2007). I informing me that by an assignment dalso have a Notice of Assignment which has been sent by the claimant’s solicitors dated October 2007, ated October 2007 GE Capital Bank Limited had assigned the debt absolutely to CL Finance Limited. This same letter informs me that a claim had been submitted for the County Court. Additionally I have never received a default notice and the claimant has not furnished me with a copy or any proof that one was ever issued.

 

The first part of my defence concerns the application form. Under ss. 60(1) and 61(1) of the Consumer Credit Act 1974, for a credit agreement to be enforceable it must contain certain prescribed terms. If a credit agreement does not contain the required prescribed terms it is rendered unenforceable by s127 (3) Consumer Credit Act 1974, which states:

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

The prescribed terms are:

 

- A credit limit or a statement as to how this will be determined.

- An APR.

- A schedule of repayments

 

These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include:

 

- Details of default charges.

- Statements of protection for customers, including cancellation rights

 

 

None of these terms are included in the application form, which has additionally not been countersigned by GE Consumer Credit Services Ltd.

 

I would draw the court’s attention to the judgment of Lord Nicholls of Birkenhead in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul), paragraph 29.

 

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 and 63, section 127(4) precludes the court from making an enforcement order.

 

Further case law provides the following:

 

1.In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said , at page 1131:-

 

“Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.”

 

2.Sir Andrew Morritt, Vice Chancellor in Wilson v First County Trust Ltd [2001] EWCA Civ 633 said at para 26 that in the case of an unenforceable agreement:-

 

“The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid;”

 

3.When this case was appealed to the House of Lords on a matter regarding the Human Rights Act (Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40), Lord Nicholls of Birkenhead said:-

 

[49] The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan… when legislation renders the entire agreement inoperative, to use a neutral word, for failure to comply with prescribed formalities the legislation itself is the primary source of guidance on what are the legal consequences. Here the intention of Parliament is clear.

 

Additionally there is no section of the application form which permits the original lender to assign or share details of the defendant with persons other than credit reference agencies.

 

 

 

The second limb of my defence is based on the following statement from my original defence:

 

“Further, the claim was issued with no warning, nor any approach to the Claimant at all, which is in breach of the Pre-Action Protocols of the Civil Procedure Rules. The notice of assignment was received on the same day as the Claim form, thereby showing that the Claimant issued these proceedings before the Defendant had been notified of the assignment, and shows beyond any doubt that the Claimant made no attempt whatsoever to contact the Defendant prior to these proceedings being issued.”

 

I have since researched notices of assignment and the provisions of the Law of Property Act 1925. In a letter to the Claimant’s solicitors, copied to the court on 6 April 2008, I stated the following:

 

I now understand that the Law of Property Act 1925 (LPA 1925) sets out specific guidelines for the issue of a notice of assignment. Specific to this case is the fact that s136 of the statute states that the notice of assignment must be written by the assignor personally. The notice of assignment I received was from Howard Cohen & Co.

Secondly the assignment only operates under the Act as from the date of the notice, that is, the date on which it is received by or on behalf of the debtor (see Holt v Heatherfield Trust Ltd [1942] 2 KB 1, [1942] 1 All ER 404; Holwell Securities Ltd v Hughes [1973] 2 All ER 476, [1973] 1 WLR 757 (affd [1974] 1 All ER 161, [1974] 1 WLR 155, CA.

 

As I received the notice of assignment from the claimant’s solicitors by standard post on 24 October 2007, and not by any form of personal delivery as required by s196 of the LPA 1925, and the court claim was issued on 22 October 2007 I therefore believe that the notice of assignment I received is rendered ineffectual by the aforementioned provisions.”

 

The third aspect of my defence is that at no time have I been sent a default notice. The claimant has been unable to supply any such document or proof that one was ever issued, in spite of my requests and indeed the court’s request of April 2008.

 

A default notice should comply with s87(1) of the Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

 

87. Need for default notice.

— (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,

— (a)

to terminate the agreement, or

 

(b)

to demand earlier payment of any sum, or

 

©

to recover possession of any goods or land, or

 

(d)

to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)

to enforce any security.

 

In conclusion, I would reaffirm my original statement:

 

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 Claimants have commenced these proceedings unlawfully and vexatiously, for the reasons described in the foregoing.

 

 

 

[debtdebtdebt]

Thanks Goldlady, atwozee, tendogs....good responses and some hope...I will have to be sharp about sending this off - I guess doing nothing is nonsense so I will submit what I have...this helps a great deal guys appreciated.

 

If anyone else has a little sunshine to shed my way it would also be much appreciated also?

[debtdebtdebt]

bump?

[debtdebtdebt]

Had my day in court yesterday....seemed to go OK, to be honest didnt need to say much. A catalogue of incompetence, ...'so whats new?'...nothing just gives more us confidence to refuse to be harassed and mistreated on their terms.....feeding it all back at them until they choke on it.

[ncf355]

Ace

 

was that the final hearing?

[PGH7447]

Had my day in court yesterday....seemed to go OK, to be honest didnt need to say much. A catalogue of incompetence, ...'so whats new?'...nothing just gives more us confidence to refuse to be harassed and mistreated on their terms.....feeding it all back at them until they choke on it.

 

and was it Win Lose or Draw?

[debtdebtdebt]

ncf355 + PGH7447,

Hmm undecided is my opinion...my first actual court attendance... not sure if its final...how can I tell?

 

In short it went like so....

 

Initial actions requested by the court were not complied with

- CL failed to clarify case by filing at court and serving a written reply with all relevant documents to the defence as requested.

- Hence I was unable to comply by filing and serving the ammended defence, documents.

 

Most of the discussion was between CL legal and Judge - lack of preparation, how ill informed the CL Legal was and where were the documents requested?

 

So in spite of this Judge awarded CL more time to produce original document(s) + other(s) deemed relevant.

 

If document(s) are produced I need to decide to inform court defend or not. If no document(s) the Judge has said it will result in recommendation for this claim to be 'struck out'.

 

In real terms I will know more in 14/28 day.

Edited March 19, 2009 by debtdebtdebt

[blind-as-a-bat]

well looking at that copy its unlikely they will be able to produce the original of the CCA, and to be honest if it's small track and they had failed to provide the requested documents within the required time scale, or at least seven days before the hearing the judge could have thrown it out, but you need to understand the relavence of evidence in the samall claims, dont know if you have seen these, but they may be of intrest to you, and usefull if you have to go round again

 

PART 1 - OVERRIDING OBJECTIVE

 

PART 27 - THE SMALL CLAIMS TRACK

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part27.htm#id3585830

 

27.8(3) is one to keep in mind, and one a biased judge (towards the claiment) could use

 

Have to admit though its CL's pattern to pull out now, so lets hope thats the case and its done, fingers crossed:)

[debtdebtdebt]

Blind-as-a-bat,

Thanks and do you really think the poor copy of the CCA will bend it in my favour? Most of the previous comments were to the contrary...now I am confused as I understood a thought a signed copy was adequate:confused:

 

I'm trying to keep ahead of this, its all new (but very very interesting) territory:)

 

It would have been a proper result if the Judge had struck out but as the info you mentioned suggests they have to show balance. I could have argued stronger, but may have appeared over zealous and very pushy. My main concern was to get through the hearing unscathed without CL or Judge showering me with lots of relevant but very final points of law that would have sealed judgment in CL's favour.

 

Steady as we go and who knows what may happen.

Edited March 20, 2009 by debtdebtdebt

[wakieblue]

Subbing

[debtdebtdebt]

Formal confirmation of court hearing.

CL have 28 + 14 days from date of hearing to submit documents.

Failing this District Judge will reconsider suggestion of Judge who sat at the hearing.

[AMH]

Help , i have been given a judgement for the claimant CL Finance. as directed by Howard Cohen.

Please help

[PGH7447]

Help , i have been given a judgement for the claimant CL Finance. as directed by Howard Cohen.

Please help

 

you need to start your own thread otherwise it wil get tangled up with this one, then people can help better

[Gazza112]

Subbing

[GhostDebt]

Evening DDD,

 

What is the current status of your ongoing case with CL.

 

Regards.

[debtdebtdebt]

Well past date due....May 14th was end point....nothing from anyone

[Goldlady]

Just watch out cos the sneaky bergers got a judgment against my OH when we had heard nothing for over a year. Is now set aside and we are back in action again - defence due in tomorrow.

[Wonkey Donkey]

Hey Goldlady - what happened?