Howard Cohen & Co / CL Finance - v littlebert

[littlebert8]

I've been lurking here for a little while now and I think its time to start my own case thread.

 

I have two accounts with MBNA, one of them being a Virgin Money card and the other a MBNA branded product.

 

I sent separate CCA requests to MBNA which were delivered to them on 13/08. Last Friday (29 Aug) I received a response.

 

Dear Mr [littlebert]

Re Accounts: [VIRGIN] - [MBNA]

Thank you for your recent request. In accordance with s.78 of the Consumer Credit Act of 1974, we enclose copies of the credit card agreements, including applicable term and

conditions, and statement of accounts.

We are sorry we have not been able to send you a photocopy of the original for account [MBNA], but hope that you will find this copy clear to read and sufficient for your

purposes.

If anything needs clarifying please call us on freephone 0800 028 0690 Monday to Thursday 9am-9pm, Friday 9am-7pm and Saturday 9am- 1pm.

Yours sincerely

Compliance Manager

 

Essentially, MBNA have provided a facsimile copy of the agreement for the Virgin account only. This is an image of both sides of a small (roughly 3 inch) tear off slip. I'm pretty sure this doesn't contain all the prescribed terms. They also included a set of current T&Cs and a statement.

 

Here is the front of the "Agreement":

 

and here is the back:

 

They have failed to provide an image of the MBNA agreement and have simply provided the current T&C documents. In their cover letter they appologise for not providing a photocopy, but hope that the T&C document is sufficient for my needs! I'm pretty sure that they wont be able to get hold of the executed agreement, because MBNA are not the original creditor - the account was part of a portfolio sold to them in 2005. Even if they do manage to retrieve it, its almost certainly an application form rather than an agreement.

 

Despite not sending me what I asked for, their "Compliance Manager" did see fit to include a letter addressed to a different MBNA customer!

 

So, to sumarise, this is what I got back from my CCA s78 request:

 

Virgin - a likely unenforceable agreement

MBNA - no agreement, unlikely that its retrievable

Bonus - a letter intended for another poor MBNA customer.

 

I'm fairly clear in where to go next with the MBNA account, allthough any pointers will be gratefully recieved. Virgin is a little less clear - hopefully someone can advise when I post the scan?

 

In the meantime, any suggestions on what I should do about the letter - a clear Data Protection Act breach if ever there was one?

Edited May 11, 2009 by littlebert8

[littlebert8]

Here is the text of the letter meant for someone else:

 

MR [MBNA Customer]

[Address 1]

[Address 2]

[Postcode]

14 August 2008

Dear [MBNA Customer]

Account: [PAN]

As per your request, please find enclosed a copy of your current terms and conditions.

You can view your account and make payments online at [removed]. You can check your balance, recent transactions, review your last six months’ statements, set up a Direct Debit, pay your bills and much more. Enrolling is quick, simple and above all instant, all you need is your most recent statement and credit card.

Yours sincerely,

Sean Humphreys

Sean Humphreys

Director of Customer Satisfaction

MBNA Europe Bank Limited

 

Probably not enough info to commit a fraud on its own, but a good start.

 

Also begs the question - are the T&Cs they sent mine or Mr Customers?

[littlebert8]

need to get postcount up to post links

[littlebert8]

Please ignor - need to get postcount up in order to post links

[littlebert8]

please ignor - need to get postcount up

[Jipdog7]

In the meantime, any suggestions on what I should do about the letter - a clear Data Protection Act breach if ever there was one?

 

I'd be inclined to write back to MBNA pointing this out while at the same time forwarding the letter and covering note to the other customer so that they too can have a go at MBNA.

 

It does show just how many of these CCA requests they are having to deal with at the moment, which must be messing with their systems!

[hellhasnofury]

Hello,

 

The other customers letter, does it have their actual name and address and other personal details on,

 

If so report mbna for this breach of the dpa to the information commissioner office. Also inform mbna of ther error of their ways.:grin:

[littlebert8]

Hello,

 

The other customers letter, does it have their actual name and address and other personal details on,

 

If so report mbna for this breach of the Data Protection Act to the information commissioner office. Also inform mbna of ther error of their ways.:grin:

 

yep - it contains the Name, Addres and Account Number.

[hellhasnofury]

yep - it contains the Name, Addres and Account Number.

 

Oh how superb, get them reported asap. Maybe drop the other account holder a little note to make them aware, they mayl be able to ask for compensation as to this breach of the dpa and one more in the eye for the idiots at mbna:D

[littlebert8]

Oh how superb, get them reported asap. Maybe drop the other account holder a little note to make them aware, they mayl be able to ask for compensation as to this breach of the Data Protection Act and one more in the eye for the idiots at mbna:D

 

its a peach isn't it. I know that this is fairly common in automated/bulk mailings - either the automailer fails or the poor guy stuffing envelopes all day just looses concentration (or doesn't really care). However, you wouldn't expect a "Compliance Manager" to make the same mistake.

 

I'm going to do just as you suggest. I'm still not sure how to progress the Virgin account though. Hopefully someone will be along with some advice soon.

[littlebert8]

Hi All,

 

I have an update on my MBNA accounts. Both have now been sold onto DCAs and today I received a County Court Claim from CL Financial (represented by Howard Cohen and Co) - this relates to the Virgin account.

 

MBNA did supply an image of what they consider to be a CCA for the Virgin account - its at the top of this thread. Looking back through my correspondence I didn't actually reply to MBNA to dispute this account (although I did for the missing CCA), although I still don't think the agreement is enforcable.

 

Anyway, I've obviously not kept on top of this and now its bitten me on the backside. I now really need urgent advice on how I should deal with the County Court Claim.

 

My instinct is to defend the claim, but I'm not sure how best to construct a defense. I really need opinions on how to proceed with this. Claim was recieved today, so I guess I have until the end of next week to respond.

 

Update: I did receive a letter including a notice of assignment from Lewis Debt Recovery, but I haven't received a letter before action from Howard Cohen & Co

Edited April 28, 2009 by littlebert8

[littlebert8]

OK guys here are my thoughts:

 

1. The document is barely legible - it is very difficult to read - especially when viewing the paper copy supplied. The PPI section is definetly illegible and there are parts obliterated by the tear on the 2nd image.

2. The prescribed terms do not fit within the 4 corners of the agreement.

3. Notwithstanding point 2, the go-to interest rates are not explicitly stated on the second image - there is a table containing three different sets of rates for various credit limits - none of which is the one stated on the first image.

 

These are the potential problems that I have spotted. However, I really would like to have some other opinions on this as I'm now going to have to defend litigation. Can anyone help?

[littlebert8]

Anybody?

 

I've acknowledged service and indicated that I will dispute the claim in full. About to send a CPR31.14 to the claimant's solicitors tomorrow.

[toto003]

OK guys here are my thoughts:

 

1. The document is barely legible - it is very difficult to read - especially when viewing the paper copy supplied. The PPI section is definetly illegible and there are parts obliterated by the tear on the 2nd image.

2. The prescribed terms do not fit within the 4 corners of the agreement.

3. Notwithstanding point 2, the go-to interest rates are not explicitly stated on the second image - there is a table containing three different sets of rates for various credit limits - none of which is the one stated on the first image.

 

These are the potential problems that I have spotted. However, I really would like to have some other opinions on this as I'm now going to have to defend litigation. Can anyone help?

 

 

1. Regulation 6(2) of the Agreements Regulations requires the signed document embodying the regulated agreement to contain, apart from any signature, lettering that is easily legible if the agreement is to be properly executed.

 

[2. You are not clear about what you are saying here] I dont know what you mean.

3. The interest rate must be expressed in the manner required by Sch 1 para 10 if the agreement is to be properly executed. Regulation 6(1) of the Agreements Regulations requires the signed document embodying the regulated credit agreement to contain a term stating the rate of any interest on the credit to be provided under the agreement.

These are prescribed terms for the purposes of Section 61 (1) (a) and Section 127 (3) of the Consumer Credit Act.

 

If this is indeed going to court, and you need to defend a claim, you really need to say how/why and what regulations cover the agreement and how/why it is unenforceable.

 

also - what is the purpose of the cpr 31.14 ? you already have a copy of the agreement - and it is unenforceable.

 

There are other things wrong with your agreement too ... have you read steve4064's guide ?? It includes links to these regulations about how agreements need to be set out - you should read them carefully - note down and understand how else your agreement is defective.

[littlebert8]

Thanks Toto,

 

My comment about being within the “four corners” refers to whether the two images can be viewed as the same document. Having looked at similar agreements on the forum, I think this is what enforceability will hinge on.

 

The purpose of the CPR wasn’t particularly to get hold of a copy of the agreement – more generally to obtain all of the documents that the claimant refers to in their particulars so that I can formulate a fully particularised defence. As mentioned above, I don’t think it’s a straightforward case of the agreement being unenforceable - I may have to consider other options. In any case, I think it is likely that the claimants are fishing for an admission or default judgement - I doubt they are already fully prepared to take the matter to court.

 

To be honest, I’m kicking myself for letting it get this far.

 

Here’s an update on where I am…

 

This is the particulars of claim as filled by Howard Cohen & Co on the form served to me last week:

 

The Claimants claim is for the sum of XXXX.XX being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and MBNA Europe Bank Limited under reference XXXXXXXXXXXXXXXX and assigned to the Claimant on the XX XXX XXXX 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 the Defendant pursuant to Section 87(1) of the Consumer Credit Act 1974.

 

The Claimant claims the sum of XXXX.XX

 

I acknowledged this claim and indicated that I intend to defend it in full.

 

I also sent a CPR request to Howard Cohen & Co asking for the following documents:

the Agreement;

the Assignment;

the Default Notice and

a Statement breaking down the monies claimed.

 

They received this on Tuesday and I received the following brush off today:

 

Dear Mr LittleBert

RE: CL Finance Ltd - £xxx

We refer to previous communications in this matter.

We refer to your recent letter in which you have made a request for information under the Civil Procedure Rules.

 

As this matter is now subject to a County Court Judgment we are not obliged to provide this information, and would advise that the particulars of claim detailed in the County Court Claim Form were sufficient to allow you to respond accordingly.

 

Not withstanding the above, we have requested a copy of the original agreement from our clients’ predecessors and will forward this onto you on receipt. If you are in any doubt as to your position in this matter, please seek your own legal advice.

 

If you wish to discuss this matter please telephone 0870 75 1 3200.

 

Yours faithfully,

 

Howard Cohen & Co

 

From what I can see, this is standard practice for this firm. I believe the next course of action will be to enter an “embarrassed” defence – I should be able to research and draft this over the weekend. However, I’m interested in the phrase “this matter is now subject to a County Court Judgment”. Now, this could just be a poor choice of words, but I know from reading this forum that HC&C have previously tried to pull a fast one by telling defendants that a judgement had been made before the court has done any such thing.

[toto003]

From what I can see, this is standard practice for this firm. I believe the next course of action will be to enter an “embarrassed” defence – I should be able to research and draft this over the weekend. However, I’m interested in the phrase “this matter is now subject to a County Court Judgment”. Now, this could just be a poor choice of words, but I know from reading this forum that HC&C have previously tried to pull a fast one by telling defendants that a judgement had been made before the court has done any such thing.

 

That is very cleverly worded isn't it, specially designed to make you think summary judgment has been awarded against you.

 

Of course, if they are called to task on this matter, they will claim it means the case "subject to judgement" in the sense that it is now "under the remit" of the courts.

 

I am surprised you disagree on the subject of straight-forward unenforceablilty, but no problem there. I would suggest you add a draft directions order to your defence - asking the original be brought to the court under (I think it is under CPR 7.4. but I cant remember exactly, you will need to search for the correct number)

 

See post #53 in this thread.

http://www.consumeractiongroup.co.uk/forum/legal-issues/175378-nationwide-county-court-claim-3.html#post1986329

 

You might want to consider a chasing letter to your CPR 31.14 claim. (See Section C in post #56) you can add that they have been unco-operative.

 

 

hope this helps

 

toto

[littlebert8]

That is very cleverly worded isn't it, specially designed to make you think summary judgment has been awarded against you.

 

Of course, if they are called to task on this matter, they will claim it means the case "subject to judgement" in the sense that it is now "under the remit" of the courts.

 

I am surprised you disagree on the subject of straight-forward unenforceablilty, but no problem there. I would suggest you add a draft directions order to your defence - asking the original be brought to the court under (I think it is under CPR 7.4. but I cant remember exactly, you will need to search for the correct number)

 

See post #53 in this thread.

http://www.consumeractiongroup.co.uk/forum/legal-issues/175378-nationwide-county-court-claim-3.html#post1986329

 

You might want to consider a chasing letter to your CPR 31.14 claim. (See Section C in post #56) you can add that they have been unco-operative.

 

 

hope this helps

 

toto

 

Its not that I don't want to agree with you that the agreement is unenforceable, just that I've not yet been able to convince myself of this yet - I'm playing devils advocate at the moment.

 

I doubt that they will be able to produce the original - from what I understand, MBNA shred the originals after they are microfilmed.

 

I've seen a couple of template defences that look suitable. I'll get to work drafting one for myself.

 

Thanks again

[toto003]

They wont be able to produce the original. Which is means they will not be able to comply with the order.

 

you can then hit them with the relevant regs on electronic storage and dispute that the documents are linked and are in fact separate documents, no front and back.

 

You can contend that as they havent followed the correct guidelines and electronic document storage - then their "copy" should only be accepted as hearsay evidence.

[littlebert8]

I've found a template defence that I believe is fully suited to my situation.

 

In the Northampton County Court

Claim number xxxxxxxxxx

 

 

Between

 

C L Finance Ltd - Claimant

 

and

 

 

[LittleBert8]-Defendant

 

 

Defence

 

1. I [LittleBert8] of [LittleLand] am the defendant in this action and make the following statement as my defence to the claim made by C L Finance Ltd.

 

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. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claim 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;

 

d) The claimant did not send a Letter Before Action as required under the Pre-Action Protocols;

 

e) It is neither admitted nor denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof.

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 and 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 and Co Ltd v Burke and another - [1956] 2 All ER 169.

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, 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 would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008):

 

"11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act. "

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by.

 

 

The Request for Disclosure

 

9. Further to the case, on 01/05/2009 I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.

 

10. On 08/05/2009 I received notice that the the claimant has refused my request under the CPR (letter from CL Finance attached marked Exhibit B) 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 as I am a Litigant in Person.

 

11. 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 which 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.

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 14 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.

 

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document . I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.""

 

14. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

 

15. Notwithstanding points 12 and 13, 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.

 

16. The claimant is therefore put to strict proof that such a compliant document exists.

 

17. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal at para 26:

 

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

18. It is neither admitted nor 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.

 

19. Notwithstanding point 18, 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).

 

20. 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).

 

Conclusion

 

21. 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/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.

 

22. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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.

 

23. 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.

 

24. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 9 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.

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxx xxxxxxxxxxxx

 

Date xxxxxxxxxxxxxxxxxxxx

 

(Original posted by creditcardmug here)

 

As far as I can see, all of the points are relevant to my situation. Some questions I would like help with are:

 

1. I'm neither admitting or denying that a DN and Assignment have been received. I'll let you make of that what you will. How is this likely to play with the judge - I don't want to be seen as being awkward, but surely it doesn't matter whether or not I have these documents, as the Claimant is obliged to disclose copies of them anyway? I believe these two documents would be important, if, hypothetically, they were to contain conflicting dates?

 

2. Para 4.d states that a Letter Before Action was not sent. Should I reword this to deny that one was received, as this is all I can actually be sure of? Also, should I try to make more of this?

 

3. Para 10 refers to the fact that the claimant has refused my CPR request (the text of this letter is posted above). Should I make more of the fact that this is a flat refusal rather than simply ignoring my request - surely it could be argued that the claimant is being more than uncooperative and is actually deliberately attempting to mislead me by asserting that:

a) they dont have any obligation under CPR;

b) they have already obtained a judgement?

 

Of course, any other suggestions or observations are most welcome.

Edited May 14, 2009 by littlebert8

[toto003]

I am not sure on answering those questions just yet, but;

 

 

 

1. I suggest you get this thread moved to the legal section now - as there are more ppls there that can help.

 

2. read thread below - especially post #101

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-6.html#post1828910

Edited May 11, 2009 by toto003

[littlebert8]

Could a Mod please move this thread to Debt Action Group/Legal Issues and change the title to "Howard Cohen/CL Finance Court Claim"?

[littlebert8]

Thanks to CitizenB for moving the thread.

 

I acknowledged service on 29 April, so I make it that I have until the 27 May to submit a defence - is this right?

[citizenB]

You are very welcome. I think you should think seriously about looking for a holding defence that is a slightly less complicated.

 

I will have a look round and see what I can come up with for you.

[citizenB]

The following link contains a few more links that might help. Look for posts by creditcardmug for holding defences, and other useful information.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2123156.html

 

HTH

[littlebert8]

The following link contains a few more links that might help. Look for posts by creditcardmug for holding defences, and other useful information.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2123156.html

 

HTH

 

I've had a look for defences by creditcardmug and, as it happens, the draft I posted was cribbed from one of his. I tried to PM him, but his mailbox is full.

 

I can understand your suggestion of a simper defence, as I presume that there will be an opportunity to put forward some of the more detailed arguments at a later stage. I'm also concerned that it may be seen as pre-empting disclosure of the documents.

 

On the other hand, perhaps a strongly argued defence at this stage will make the claimant think twice about proceeding.

 

Either way, I'd like to get Creditcardmug to have a quick look through the thread and post any comments he might have.

 

Aside from the defence itself, I'm also concerned about what happens after its filed - specifically the timing. I intend to file at the end of next week, but am set to be away from home for the most the first three weeks in June. I'm concerned that documents may be served and deadlines expire during this period. Is this likely, what is the risk of prejudicing my case, and can I do anything to avoid it (aside from staying at home)?