Help with cca?/GE money.

[blind-as-a-bat]

I know, I wish the law could be changed whereby they have to use a postal service that date stamps the wretched envelopes or recorded delivery.

 

 

But that would thwart there evil plan (insert evil laugh:p)

[guzzleguts]

Hi all

 

I received a claim form in the post yesterday morning from C L finance via Cohen's, I would like some cagger's to check my DN out on post 35 i am sure its invalid but just to have it confirmed again would be good.

 

The claim form is dated 30th march and i only received the NOTICE OF ASSIGNMENT today its from COHEN'S so its not correct!

 

I know mak71 has a very similar agreement and has had it confirmed that they do not hold a original copy just microfiche so i dont think we are going to see what was on the back.

 

Any thoughts or advice would be great.

 

Thanks GG

[guzzleguts]

Please could the site team move this to the legal issues, thanks

 

POC's

 

The claimant's claim is for the sum of ***.** being monies due from the defendant to the claimant under a regulated credit agreement between the defendant and GE capital bank limited under reference 88888888888 and assigned to the claimant on the 25th march 2009notice 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 defendant pursuant to section 87 (1)of the consumer credit act 1974.

 

Pursuant to clause 7 of the agreement the claimant also claims contractual interest at a rate of 26.478% per Annum from the date of these proceedings to the date of judgment, or sooner payment accruing at a daily rate of 0.49.

 

That's the POC's any help would be good

 

Thanks GG

[blind-as-a-bat]

Is it me or is there no date on that agreemant anywhere

[guzzleguts]

Hi BAB

 

There is no date on the agreement anywhere.

 

GG

[blind-as-a-bat]

Got your PM What date should be on it allegadly:p

 

Just need to look something up, but it may be date dependant so need to be sure im looking at the right version

 

Just finishing of tea, will respond as soon as i get a little piece to concentrate:rolleyes:

[guzzleguts]

Early 05

[blind-as-a-bat]

Can i read that as before the 31st of May 05

[guzzleguts]

Sorry yes well before, thanks for your help

[maroondevo52]

Thread moved.

[blind-as-a-bat]

Right this is the exact wording from the The Consumer Credit (Agreements) Regulations 1983 (non-amended) so applies to pre may 2005, have not checked if it was amended after that as it does not apply.

 

A word of warning though , even though the act states

 

 

61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner

 

So to comply with the statement the agreement must be signed AND dated, most courts may see the signature as enough

 

Signing of agreement

6.--(1) The terms specified in Column 2 of Schedule 6 to these Regulations in relation to the type of regulated agreement referred to in Column 1(and no other terms) are hereby prescribed for the purposes of section 61(l)(a) of the Act (the terms which must be contained in a document ifa regulated agreement is not to be improperly executed) and of section 127(3) (the terms which must be contained in a document before any enforcement order can be made under section 65(1), if section 6l(1)(a) was not complied with).

 

(2) The lettering of the terms of the agreement included in the document referred to in section 6l(l)(a) of the Act, containing all the prescribed terms of the regulated agreement, and of the information contained in that document for the purpose of conforming to these Regulations shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the colour of the paper.

 

(3) The signature of the said document shall be made in the following manner

 

(a) by the debtor or hirer, or by or on behalf of the debtor or hirer in the case of a partnership or an unincorporated body of persons, in the space in the document indicated for the purpose, and, subject to subparagraph © below, the date of the signature shall be inserted in the space in the document indicated for the purpose;

 

(b) by the creditor or owner, or by a person on his behalf, outside any signature box in which the debtor or hirer may sign and, subject to subparagraph © below, the date of the signature shall be inserted outside any such signature box;

 

© in the case of a regulated agreement which is not a cancelable agreement, the date on which the unexecuted agreement becomes an executed agreement may be inserted in the document and in such a case any other date specified in paragraphs (a) and (b) above need not be inserted; and

 

(d) Nothing in this Regulation shall prohibit the inclusion in the said document, near to any such signature, of the signature by any witness outside any signature box in which the debtor or hirer may sign.

 

(4) In Scotland any provision in paragraph (3) above requiring the said document to be signed shall be complied with by a body corporate if the document is properly executed in accordance with the law of Scotland.

 

 

In theory the fact it is not signed AND dated, means it is not signed in the prescribed manner, BUT sec 127 3 states

 

(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).

 

So how much mileage you will get out of it not being dated is anyone’s guess, but its one to add to the list

[guzzleguts]

Thanks great info BAB, it hasnt got the prescribed terms anyway, unless they produce the original and that has them on the back which i doubt, the DN states remedy this within 21 days of receipt of this notice i dont think that is valid.

 

So im hopeful i have enough in my corner to fight them.

 

Thanks again BAB

 

GG

[blind-as-a-bat]

Thanks great info BAB, it hasnt got the prescribed terms anyway, unless they produce the original and that has them on the back which i doubt, the DN states remedy this within 21 days of receipt of this notice i dont think that is valid.

 

So im hopeful i have enough in my corner to fight them.

 

Thanks again BAB

 

GG

 

Just be warned, as in my case and as highlighted in others, the acts and the regs dont always make the case, swat up on the oppropriate CPR to the track your on/get as well, as that can give the court room to ignore the facts as WE see them;)

[blind-as-a-bat]

Thanks great info BAB, it hasnt got the prescribed terms anyway, unless they produce the original and that has them on the back which i doubt, the DN states remedy this within 21 days of receipt of this notice i dont think that is valid.

 

So im hopeful i have enough in my corner to fight them.

 

Thanks again BAB

 

GG

 

I agree that is clearly an archived copy of the rear of some agreement, but again its a question on how the judge re-acts on the day.

[guzzleguts]

But if they can not supply an agreement with the prescribed term's on the judge can not enforce, that is right isnt it?

 

GG

[blind-as-a-bat]

But if they can not supply an agreement with the prescribed term's on the judge can not enforce, that is right isnt it?

 

GG

That depends on your defanition of supplying an agreement with the prescribed term's on it:rolleyes:

 

our judge did not bat an eylid at the poor, incomplete Photo copy of the agreemant, but was intrested in there attempt to re-construct the default notice, which did not match the original. we never got as far as the copy of the agreement in the witness statement for the claiment that was a totaly differant agreemant to the poor photo copy

 

So i dont know if he would have judged against us, and as the other side did not turn up i never got to find out.....which is a good thing for us......but does not help me help you, sorry:-(

[guzzleguts]

I did read your thread that was unbelievable of the judge, unfortunately it does come down to the judge on the day, i was lucky last time she knew what she was doing but i might not be next time.

 

Thank you for your time on this

 

GG

[blind-as-a-bat]

Our judge kept going on obout CPR (as you probebly have read) and is the reason i have been quiet of late, as i have been trying to make sense of his comments.

 

The worrying thing is i can, and everything he said could be justified, in regards to the small claims track, which now has me worried

 

I dont know what track you have been allocated, but in the small claims track the rules of evidence are not strictly enforced, that is the bit that wories me as it gives the judge too much lee-way:(

[guzzleguts]

Well cohen's have refused to comply with my CPR request, what a shock!

 

Just surprised by their prompt reply.

 

GG

[creditcardmug]

Can you post up your defence again here?

[guzzleguts]

Thanks CCM il post it tommorow

 

Thanks

 

GG

[creditcardmug]

A tick no

 

B tick yes (if it has already been transferred to your local court) if it has write that in the box, if not write that you are unable to travel etc.

 

C tick yes

 

D write none

 

E tick no to the first question, leave the rest blank

 

F self explanatory tick yes and fill in if there are dates you cant attend if not tick no

 

G in the big box write “please see attached section G”

 

H leave blank

 

I sign and date etc

[creditcardmug]

Other Information

 

Section G

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

 

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it, the original document must be brought to the hearing.

(b) the default notice together with proof of service

© notices of assignment together with proofs of service

(d) the deed of assignment must be brought to the hearing

(e) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(f) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the small claims track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

[creditcardmug]

In the directions above don't fill in the dates the judge will do that, just fill in the xxxxs.

 

Please note, you may not get these directions, unless you change it to Fast Track, its your decision on how you want to play it.

 

With fast rack you are liable to much greater costs, should you lose, however you get better disclosure.

[guzzleguts]

Thanks CCM

I really appreciate your time, on the pm the only part not showing was the statement of truth and where you sign.

 

GG