Defence required for Claim form - Barclaycard / CL Finance / Howard Cohen

[AndyOrch]

For a start, that person making that WS has absolutely NO KNOWLEDGE of the facts. It is all hearsay, based on info provided to them. The statement of truth is worth diddly squat.

 

 

Never underestimate the cleaner Donkey:-)

 

 

Andy

[DonkeyB]

The cleaner would have done a better job. That WS is inadmissible, IMO.

[consumeredge]

Judges summary 2, " I don’t see anywhere in writing that the Assignor has to give notice to the debtor in writing as opposed to the Assignee for an absolute assignment to take place."

 

correct me if I'm wrong but the act states:

 

"Any absolute assignment by writing under the hand of the Assignor of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the Assignor would have been entitled to claim such debt or thing in action, is effectual in Law to pass and transfer from the date of such notice"

 

CL finance sent notice they purchased the debt, without proof from Barclaycard to that effect, Barclaycard are free to continue assigning the debt to whoever they like.

 

I would be inclined to seek a redetermination and offer £1 a month, then make the payments to Barclaycard

 

It appears when dealing with CL Finance and cohen the Defendant has to provide courts with pictorial exhibits so the judge can clearly understand Section 136 of the Law of Property Act, ie a sample copy of a letter from a lender to a debtor stating the account has been sold to joe bloggs, and then a copy of a letter from joe bloggs to the debtor stating they have bought the account.

 

This judge has set a dangerous precedent, the purpose of the hearing was to determine who is the lawful owner of the debt, the judge failed to act in a fair and just way, I would have thought it simple to apply to have the judgement set aside purely on the grounds the judge made a mistake in law by not understanding the Law of Property act which the claimant relied upon.

[DonkeyB]

There is case law which says that practically anyone can give notice of assignment, provided that the notice is clear and unambiguous. This is a blind alley.

[sev67]

If the claimant says they can't find the DoA dated 21 Oct 2008 am I able to insist on a copy being provided by OC as they are the assignor so must have a copy themselves for their own records. How do I force them to provide their copy, or at least the important pages (front, schedule, and signature page with date). Am I able to insist they provide the Debtor with proof that an absolute assignment took place. Perhaps I could call OC and ask them if they have absolutely assigned the debt and when and to whom, without mentioning the case? Is this an opportunity to move forward with grounds for appeal?

[consumeredge]

Hi Donkey can you give more details about the case law, with ER36's sister Santander were the OC, ER36's sister recieved a "notice of assignment" from cohen and a demand from another firm of solicitors both claiming they owned the debt, and both within a month of each other, a letter was sent to Santander stating no Notice of Assignment had been received from the OC and that two DCA's were claiming the debt as owed to them. Santander never replied. cohen issued a summons, At the crucial stage, days before the hearing ER36's computer broke, ER36 had no access to the net, I've no idea how the case went and have never heard from ER36 since, the case was to be heard in the Linclon County Court.

 

I've originals of Default Notice and NOA's sent by HSBC to debtors and notice's to the debtor from CL Finance they have bought the debt from HSBC, completely different paperwork to what is posted on the forums, although CL Finance title their letter of purchase, Notice of Assignment.

 

I've also copies of citi cards Default Notice, Notice of Assignment, capquest's letter to the debtor they have purshased the debt, letter before action, summons and witness statement.

 

last year cohen had been playing games, when an order was sought they provide copy and proof the OC (MBNA) sent the Defendant Notice of Assignment, cohen went for Summary Judgement, a defence was prepared and submitted against the Summary Judgement, The Judge stated to cohen that without proof Notice of Assignment was sent to the defendant from the OC the court would never rule in favour of the Claimant, the Judge stated the case will go ahead (14 days later) this is what cohen then submitted on their application to have the hearing adjourned.

 

1. The Claimant made an Application for Summary Judgement before District Judge Darbyshire on 10 September 2010. The Applcation was dismissed but the aforementioned District Judge made valuble suggestion to both parties to progress the claim at the next hearing. The District Judge noted that the Claimant's predecessor in title should provide further documentation.

 

2. The District Judge stated that this does not deny the Claimant's right to pursue the debt but noted further documentation would assist both parties when discussing the technical points at a later hearing.

 

3. The Claimant has contacted the predecessor in title to obtain further documents. We advised that these additional costly searches would take between 4-6 weeks to supply us. The Claimant contacted the Defendant by telephone on the 17 September 2010 to agree a potential adjournement. The Defendant refused our request without any substantial reason mentioned

 

**Actually, the telephone call was recorded, cohen lied, they called the Defendant first at work where the Defendant said no, call me at 1pm, when they called, the person just gave his name and said they are applying to have the hearing postponed, that is the purpose of this call... the defendant never spoke, all over in less than 60 seconds**

 

4. We therefore, respectfully request that the Fast Track Trial listed for 23 September 2010 at 10:30 am be vacated for the next available date after the 8 November 2010 in order for further documents to be supplied to the court and the Defendant in the interest of saving the courts cost and time.

 

cohen eventually submitted a "letter" in November claiming it to be the NOA to the Defendant from MBNA, the letter started "To whom this may concern" the judge was no fool and struck the case out.

 

cohens Litigation Assistants must be instructed to play dumb if asked about NOA from the OC to the Defendant, however when genuine examples of NOA from OC to the Defendant, and letter of purchase from CL Finance are waved in front of their faces they have no where to hide.

 

Sev, if you are still wishing to challenge the judgement I would be looking to have set aside, your application can include points of law and where the judge failed, it is heard by a higher level of Judge, an appeal is directly against the judge, they join ranks!

 

If Donkey could provide me with the case law details he has said about I would like to look at it and view a transcript of the hearing, there is a clause where if you can prove the cost of the Judges transcript would cause severe personal hardship, the court can rule the cost be met from the public purse.

Edited June 30, 2011 by consumeredge
Spelling error

[sev67]

Hi CE, thanks for this, couldn't follow you at first but I think I've got it - struggling a bit at the mo!! Yes very much wish to challenge as don't believe this is absolute assignment (they would have produced the correct DoA if it existed instead of relying on a witness statement). On reflection I should have submitted an N244 for strike out back in Aug09 after the claimant failed to comply with the court order to reply to the amended defence by July09 (is this right? - useful for others). I thought everyting being quiet mean't the court would stay or strike it out automatically themsevles, instead I left it and left it and eventually 21 months later I got a hearing date out of the blue. Never mind.

 

Ok, head down. Called court about transcript and told them I qualify for Remission1 in relation to court fees but they said transcript not court fee so you have to pay them direct. There was no mention of other financial assistance so I'll ask local court approved transcript company when they call me back. Court did say I could always get a transcript of the summary judgement which is only about 10+mins so I could afford that. If needed would that suffice? Or are you confident I can get help for full hearing transcript (how if court doesnt know about it?).

 

What you describe above is fast track whereas I'm small claims (hence the judge decision to proceed without originals and instead relying on witness statement as substitute DoA - I know you know this, I'm just putting it down). I can't belive they can get away without providing a physical copy of the correct DoA for Oct08 - I think that is disgraceful.

 

I know you're waiting for more info from others so sorry if being impatient, just keep wondering if in meantime I should be sending Part 18 request to OC asking; have you assigned account number xxx, if so when did the DoA take place, and does the deed transfer full rights or not etc. I realise I cannot use Part 18 to get a copy document and CPR31.14 is no good as they aren't claimant - is there anything I can use to get OC to provide a copy DoA for Oct08? Shall I send a Part18?

 

Cheers.

Edited June 30, 2011 by sev67
one sentence didnt make sense

[sev67]

I've just thought, the OC is named in the Particulars of Claim, doesn't that allow me to send them a CPR 31.14 for the DoA even thought they aren't the actual claimant. I have never sent them a CPR31.14, only a Section 78 and subject access request. (Sorry if I'm confusing things).

[consumeredge]

Hi sev

 

A transcript of the judges summary will be fine for an application to have set aside, until then, I would hold fire on making any requests to the OC at this point in time.

[DonkeyB]

I think it’s CPR 31.17 for use against those with a bearing on a claim but no direct involvement.

 

Orders for disclosure against a person not a party

 

31.17

(1)This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings2.

 

(2)The application must be supported by evidence.

 

(3)The court may make an order under this rule only where –

 

(a)the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

 

(b)disclosure is necessary in order to dispose fairly of the claim or to save costs.

 

(4)An order under this rule must –

 

(a)specify the documents or the classes of documents which the respondent must disclose; and

 

(b)require the respondent, when making disclosure, to specify any of those documents –

 

(i)which are no longer in his control; or

 

(ii)in respect of which he claims a right or duty to withhold inspection.

 

(5)Such an order may –

 

(a)require the respondent to indicate what has happened to any documents which are no longer in his control; and

 

(b)specify the time and place for disclosure and inspection.

[sev67]

Quick update. Just to let you know I've only just got the transcribing invoice today, which needs paying before they do the work. The court took a week to send the tapes and the transcriber took several days before they could give me an invoice. I was aware of this delay coming as I rang the court to chase. The clerk said it was normal practice and once transcibed it can still take 2-3weeks for the DJ to approve it bit not to worry as I could submit a holding appeal whilst we wait for approval and a copy. So, as last date to file an appeal is next Tues19Jul I need to work out how I do that. Any pointers to give me head start on reading about it tomorrow would be appreciated.

[sev67]

Ok, spoke to court and they said the transcript delay is normal and to just get the Appellants Notice in on time and send the transcript later. Problem is I'm not sure on my grounds of appeal yet without it...as discussed with consumeredge.

 

Any chance of some help with the Appellants Notice please.

S2. Which track was claim allocated? Options are Fast Track, Multi Track or Not allocated to a track. (it was small claims track but no option for that - should I just write small claims track down?).

S5. Are you making a stay of execution of any judgement against you? (don't think so?)

Are you making any other applications? (don't think so?)

S6. Please state in numbered paragraphs on a separate sheet the Grounds of Appeal why are you saying the judge was wrong. (I don't know what my grounds of appeal are? Are you there Consumeredge...??). And then tick box for;

The skeleton argument will follow in 14 days (giving me time to draw it together once I have the transcript)

S7. I'm asking the appeal court to; Order a new trial. (yes?).

S9. In support of my application(s) in Section 8, I wish to rely upon the folowing evidence:

(I have ordered a transcript from XXX of the Procedings and Judgement and will be using those as evidence. is this right, anything else..?).

S10. Documents to be supplied in bundle.

(I've read in the appeal advice on Eversheds/Nationwide by citizenB that all I need to enclose are; Appellants Notice and N24 Order which includes permission to appeal by judge on the basis of possible test case. Should I still explain in this section that all the other documents will follow later, do I have to deal with each in turn listed and answer in the boxes the reason they aren't supplied?)

...

[sev67]

hi, is anyone able to assist please with my last post?

[AndyOrch]

Hi Sev the appeals process can be very arduous , digest Robinways thread here http://www.consumeractiongroup.co.uk/forum/showthread.php?212396-Trying-to-set-aside-judgement-Round-2-Case-dismissed&highlight=robinway It will give guidance to the process.

 

Regards

 

Andy

[sev67]

Been reading PD52 and come across this;

Limited permission

4.18 Where a court under rule 52.3(7) gives permission to appeal on some issues only, it will –

(1) refuse permission on any remaining issues; or

(2) reserve the question of permission to appeal on any remaining issues to the court hearing the appeal.

 

The N24 states;

permission 2 appeal on basis of possible test case granted.

Does this restrict the grounds of my appeal then?

[sev67]

Ok i was looking at wrong Appellants Notice, I need N164 for small claims track.

Have completed;

S1. S2. S3. all ok.

S4. No to issues arising from human rights act. No to stay of execution. Yes to appellants notice within 21days. No to any other applications.

S5. Grounds for appeal - to include points of law and where the judge failed (as per consumeredge post #81).

S6. I'm asking the appeal court to: set aside the order.

S7. Nothing for other applications.

S8. Evidence in support. No further evidence so blank.

S9. to include copy of order.

Signed and nothing else needed.

 

Now this is completed I can concentrate on grounds of appeal. Right?

[sev67]

Hi - hope somebody is reading this that can help.

I have my first paragraph for grounds of appeal so whilst I work on the next I'd appreciate someone having a look over it please as this has to be in today by 4pm.

1. It is averred that the District Judge was wrong to accept the Witness Statement para 6 dated 14 July 2009 as proof that an absolute assignment took place on the 21 October 2008. Under CPR 3.4 (2) © the Respondent did not comply with a Court Order, dated order made 19 March 2009 and order drawn 25 March 2009, to send to the Defendant (3) A Copy of the Deed of Assignment. What they did supply was an Account Sale Agreement dated 28 March 2008 which the District Judge accepted would make the assignment equitable. The witness refers to this document as XX4 purporting to be the absolute assignment dated 21 October 2008 so the Witness is confused and therefore their Witness Statement para 6 dated 14 July 2009 cannot be relied as proof an absolute assignment exists, or in fact that it took place at all. This is an appeal under CPR 52.11(3) (a).

 

?

Edited July 19, 2011 by sev67
last line added & changed claimant to respondent

[consumeredge]

Hi Sev

 

Initialy you were looking for grounds to have set aside, not appeal? the transcript would prove central to set aside as in my opinion the Claimant's solicitor, nee litigation assistant, and judge made errors on points of law, I still would not comment until seeing the actual transcript, at this stage I would notify Howard Cohen you are awaiting the transcript where upon you intend to submit an application to have set aside

[sev67]

Hi CE, good to hear from you, I'm in a panic now with 3hrs to go. I have to do something today as I should be avoiding PITA apparently. I thought therefore I had to take appellants notice to court today by 4pm so have been trying to complete that without the judgement transcript. How do I notify the court I am appealing on time without having to give grounds for appeal, and how do I notify howard cohen, just call them? I cant think straight with this 4pm deadline looming today.

[sev67]

Ok, I think I have two choices.

First; I complete N164 as follows, basically changing from set aside to stay of execution;

S1.S2.S3. all ok.

S4. No to issues arising from human rights act. YES TO STAY OF EXECUTION. Yes to appellants notice within 21days. No to any other applications.

S5. Grounds for appeal.

I am awaiting a transcript of the judgement to be approved by the judge and forwarded to me by the transcript service. Please excuse the abscence of my grounds of appeal however I do not want to prejudice myself by completing this section without first reading the full judgement transcipt. As soon as I receive this I will forward a fully completed appellants notice along with the transcript.

S6. I'm asking the appeal court to: set aside the order.

S7. Part A. I apply for a stay of execution becuase: I am waiting for the transcript of the judgement which I will forward to the court as sooon as I receive it.

S8. Evidence in support. No further evidence so blank.

S9. to include copy of order.

Signed and nothing else needed.

 

Or second; I do nothing and appeal out of time.

 

Please could someone respond.

[consumeredge]

Hi sev

 

because of the shift patterns at work I was not available or able to respond, did you submit anything yesterday?

[consumeredge]

bump

[caro]

Hope you managed to sort this.

[sev67]

No not sorted anything out yet. Unfortunately no-one was around to offer any guidance, I tried PM'ing a couple of people but no success (I realise there are only limited people available for experience on appeals). I therefore decided not to submit anything in case I did more harm than good. Will need to do out of time appeal.

 

Ok - judgement transcript has arrived, is it normal to post it up or just PM it to those that can help?

[caro]

Post it up but remove anything that identifies you. The more people who see it the more chance you have of getting advice.