what do I do next-Barclaycard/Cohen Court date

[corbeta]

signed up but no idea how i get this image from photobucket onto here! i am rubbish with computers:(

[corbeta]

any good now?

Edited January 23, 2009 by corbeta

[DocH]

It is, but you've left your details on there. Best to blank them out and re-post it.

[corbeta]

ok, will do

[corbeta]

http://i702.photobucket.com/albums/ww28/corbeta/scan0001.jpg

 

blanked out version

[DocH]

I can't see any prescribed terms on there, but it is extremely difficult to read. What does that bar code sticker cover? Is your unscanned copy any more legible?

[corbeta]

Unscanned copy is not much better.

 

under the barcode is fuzzy black on all copies. the bottom bit for bank use only is the bit they fill in in branch about ID and stuff, but the barclays signatory bit is also black and fuzzy.

 

they have sent me a terms and conditions sheet, that is nothing to do with the credit agreement and is undated

 

i cant find any prescribed terms anywhere in the document, mainly cause its illegible!

[caro]

Well if it's illegible how can it be enforced?

[corbeta]

well that was my thinking caro, however there seems to be an increasing trend that judgments are being awarded that fly in the face of the CCA, which is my biggest concern.

 

i am in court on the third (feb) but still have no bundle or witness statement from Cohens, because i guess of the mess up with me not receiving the initial letter from the court.

 

whats more, they have sent me some paperwork in response to my CPR request and i need some advice on the following:

 

Application form relates to old student barclaycard. terms and conditions they have supplied are a seperate sheet and undated. I applied for this in 1997, however statements date from 2002, for what is a normal barclaycard, not a student one. whats more interesting is that the account numbers change twice between 2002 and 2008-is this a valid point to use.

 

further, the default notice says if action is not taken in respect of breach then debt will become payable in full. if the debt is not paid in full we may pass to DCA or take legal action.

 

does this mean that thye should have issued some kind of termination notice before passing the debt on? (even though they shouldnt have anyway as they were in breach of a CCA request)

[DocH]

Application form relates to old student barclaycard. terms and conditions they have supplied are a seperate sheet and undated. I applied for this in 1997, however statements date from 2002, for what is a normal barclaycard, not a student one. whats more interesting is that the account numbers change twice between 2002 and 2008-is this a valid point to use.

 

Is this the application form we've already looked at or a different one?

 

further, the default notice says if action is not taken in respect of breach then debt will become payable in full. if the debt is not paid in full we may pass to DCA or take legal action.

 

Can you scan a copy of the Default Notice and post it on the thread please. Worth taking a look to see if it is compliant with the Act.

[bazaar]

Hi Corbeta

'i am in court on the third (feb) but still have no bundle or witness statement from Cohens, because i guess of the mess up with me not receiving the initial letter from the court.'

 

No, they are most likely delaying until you submit your stuff, thats why its important to leave it until latest possible time so they cant amend anything they have wrong.

Its all part of the game really

[corbeta]

Cohens wrote to me today via email, they are going to request an adjournment as they wont have time to prepare witness statement andsubmit bundle to court, as hearing is in a week.

 

i agreed this as to be honest, it will suit me to get more prepared. default http://i702.photobucket.com/albums/ww28/corbeta/scan0002.jpg

 

http://i702.photobucket.com/albums/ww28/corbeta/scan0003.jpg

 

notice wont scan well but have a look...if i didnt receive a formal demand after this default notice does this mean they have failed to comply with their own course of action?

 

did anyone pick up the points about the acount numbers changing

[corbeta]

Since becoming an avid fan of this forum I have noticed that CL Finance/Howard Cohen seem to be very busy!!

 

they instigated court action in my case without a letter before action.

 

i have complained as suggested in numerous other threads, as suggested to the senior partner but guess what-no response!!

 

has anyone managed to get a response out of them or taken the lack of response to the next level?

[DocH]

Default Notice is pooped. Section 88(2) of the Act requires the creditor to give you 14 days + 2 days for service, to remedy any breach. They've only given you 13 days + 2 days.

 

You should have had a Letter Before Action.

[bazaar]

Be Careful Corbeta,

They could be trying to make you drop your guard, keep an eye on the courts times for you to submit, I wouldnt trust these idiots. Keep the e-mail, just in case they dont do as they have suggested, be prepared to show it in court,

[bazaar]

Report to SRA, and copy them to ensure you were expecting a reply, this can then all be brought up on any court proceedings

[DocH]

It might also be an idea to give the court a ring the day before the case is due to see if the opposition have indeed applied for an adjournment, if you have not heard from the court in the meantime.

[corbeta]

Well the default notice is a bonus!

 

no letter before action is another bonus!

 

their Barrister said a strange thing via email today-they were applying for an adjournment but that I should attend on the 3rd in case they dont get one, or in case the judge hasnt looked at it in time.

 

What should i do if this is the case-they havent submitted a bundle to me or the court and should have done so by today. if the case goes ahead what do i then do? also an adjournment will allow me time to beef up my witness statement so i really dont want to submit it if i dont have to yet.

 

interestingly enough the court order does not ask me to send anything to the court at all-only the claimant. should i be worried?

 

anyone point me to a good bit to use in my witness statement about the dodgy DN and the legislation they have failed to comply with

[caro]

3 threads merged. Makes it easier for people to follow your progress on one thread.

[DocH]

I've nicked this from something 42man wrote. So all credit to him:

 

31. Section 87 clearly sets out that a default notice is a prequsite before a creditor can become entitled to take any action in respect of a regulated credit agreement. For the avoidance of doubt I have included the relevant sections of the Consumer Credit Act 1974 below

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.

And further more section 88 states

88. Contents and effect of default notice

.

- (1) The default notice must be in the prescribed form and specify-

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection

(1) must not be less than fourteen days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those fourteen days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

32. The defendant puts the claimant to strict proof that a default notice which is fully compliant with the requirements of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as to its form and contents, was served upon the defendant

 

33. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance. Therefore if the claimant cannot produce proof that a compliant default notice has been served, the defendant requests that the court strike out the claimants claim on the grounds of having no reasonable prospect of success especially when considering points 4,5 & 6 above

 

Failure of the Claimant to supply a sufficient letter before action

 

34. The claimant has in the defendants opinion failed to conduct themselves in accordance with the Civil Procedure Rules insofar that they failed to issue a letter before action compliant with the CPR preaction protocols which state

4.3

The claimant's letter should -

(a)

give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

 

(b)

enclose copies of the essential documents which the claimant relies on;

 

©

identify and ask for copies of any essential documents, not in his possession, which the claimant wishes to see;

 

(d)

state (if this is so) that the claimant wishes to enter into mediation or another alternative method of dispute resolution; and

 

(e)

draw attention to the court's powers to impose sanctions for failure to comply with this practice direction and, if the recipient is likely to be unrepresented, enclose a copy of this practice direction.

Not sure on this, but I think you should give the court a ring as soon as possible to clarify if they are expecting anything from you:

 

interestingly enough the court order does not ask me to send anything to the court at all-only the claimant. should i be worried?

[corbeta]

thanks guys!

 

had an email from cohen's with the application for adjournment attached. have a telephone conference on Friday for the court to decide whether to grant the adjournment-any ideas on this?

[DocH]

What does the application for adjournment give as the reasons for seeking the adjournment.

[corbeta]

well in a nutshell because of my late disclosure(cause i didnt receive the courts letter) they cannot prepare a witness statement in time, even though i offered to have mine done by 26th of Jan, despite the fact that they have failed to comply with my CPR request or acknowledge my complaint about not receiving a aletter before action!!

[DocH]

I would be inclined to point out to the judge that the CCA that they have supplied does not relate to the claim being made and the DN is not a true copy of the original and that you will asking permission of the court for the court to issue an order seeking compliance with your CPR request.

 

I wouldn't mention the complaint about the letter before action, keep it up your sleave for the moment.

Edited January 28, 2009 by DocH

[caro]

I don't think you should set too much store by the LBA issue. I don't think it's a show stopper.