CL Finance - Court defence by 2nd Feb HELP!!

[Stevel1959]

Hi

 

I’m hoping that someone can help me please. I am helping a friend of mine who suffers from ME/CFS and is finding this very difficult to cope with. I have offered to help but am struggling with what to do next. She received a court claim form that was instigated by CL Finance. We asked for a 14 extension to the court which was granted and this runs out very shortly.

 

We sent off a CPR 18 to CL Finance and received the usual reply from Howard Cohen stating that they “we are not obliged to provide us with the information and the particulars of the claim on the Count Court claim form should be sufficient to allow you to respond accordingly”.

 

I understand from reading the threads we should be putting in a ‘holding’ defence. We are not sure what this is and what to say. Please can someone help as the defence has to be in by 2nd Feb. We know this is short notice but my friend was dealing with things but has got overwhelmed and is now quite poorly.

[SomchaiSomchai]

I think you need to tell a little bit about the particulars of claim ( without identifying too much about yourself) eg is it "credit agreement with xxxx, assigned to yyyy... deafult notice issued zzz claiming amount aaa", or something different.?

 

General holding defence would be "neither admit nor deny, frustrated in pleading..". etc (see other posts, such as CreditCardMug's excellent thread).

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/152183-barclaycard-lewis-cl-finance-1.html

 

Whatever you put in defence, nothing happens until the next stage (AQ) when each side has to state what they are asking the court to do next. As long as you put in any defence now, it automatically moves to the next step - either gets stayed (put on hold) or CL/Cohen pay more to go to AQ stage. At that point, you canthen state that without the further info you can't enter a detailed defence, and you thus request the court to order the Claimant to provide the info you already asked for in the CPR.

 

 

 

I am currently at AQ stage with this mob

 

I'm sure others other have more detailed help, this is just to get you going & provide support / direction.

 

Good luck. Don't give in to this bunch of chancers blasting out garbage through Northampton.

[Stevel1959]

Many thanks for your reply. It was a credit agreement with Barclaycard Mastercard which was initially passed to Mercer's - they issued the Default Notice of £3XXX. She then received a letter from Lewis Debt Recovery who said they were acting on behalf of their clients, CL Lewis, with a small box giving a notice of assignment. 10 days after this (New Years eve) letter the court claim arrived.

[Stevel1959]

One more question. My friend, with my help, sent a CPR 18 (Request for Information) which prompted the reply stated above from Lewis Debt Recovery. The letter was dated and sent recorded delivery. It also stated that we required the information in 14 days, however we did not include the date that we required the information by - does this render her CPR 18 invalid?

 

Thank you for any help.

[Von Greenbach]

Can you post up the default notice so it can be checked (remove personal details)

[supasnooper]

Hi there,

 

Please can you type up, or scan and post, the Particulars of Claim you've received from the court. Don't post personal details and be vaguish with the amounts.

 

Was the claim issued from Northampton or another court ?

 

If from another court, were there any documents attached ?

 

Also, as VG has suggested, could you scan & post the Default Notice you've received from Mercers.

[Stevel1959]

Hello Everyone,

 

Thanks for all your help. Am attaching the scans now( from ChasedbyAgencies)

 

PLEASE NOTE will be posting in future from Chasedby Agencies - this is the account of my friend. I am at work and ChasedbyAgencies will be posting the scans shortly. to save confusion all further posts will be from ChasedbyAgencies. Hope no-one is now confused!

[ChasedbyAgencies]

Hello All, Just wanted to say thanks for all the advice so far, it really is appreciated. I am the lady concerned and we will now just post under my user ID,

 

The Court claim from was from Northampton (CCBC) and no documentation other than the admisison, defence and counterclaim forms was atttached to the court papers. Have scans below of Default Notice and the POC. First time I have posted here, so hope they come out ok. If you need to know anything else, just ask away.

Scan Defaultnotice0001.PDF

Courtclaim0001.PDF

[42man]

The default notice is a joke....

 

i quote the following from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Quote:

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

 

As for your defence, have a look here

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/144007-help-amex-no-cca-3.html#post1549360

[42man]

This defence looks useful too - http://www.consumeractiongroup.co.uk/forum/legal-issues/156156-help-mum-being-taken.html?highlight=birkenhead

[ChasedbyAgencies]

Hello 42Man, Thank you for the info and the links, very useful and interesting reading. There is a lot of legal issues/technicalities to go through and understand and I have to admit that I am struggling to know which bits to include, as I think I need to look up the different laws and statutes. Am off for a bit to do some serious reading and note-taking as am finding this hard to understand. Now before you write me off as a nimpomcoup, part of my condition with ME is that I suffer from mental confusion/fatigue which is how I came to be in such a mess. Assimilating information is not very easy for me, and I have to do it in small bytes

 

Thanks Goodness for people like you, pointing me in the right direction.

[supasnooper]

Don't worry about asking questions or being judged by others - it just doesn't happen here on this forum.

 

42man has given you excellent threads to read, which should cover most of what you need to know.

 

Finally - Don't be afraid of asking about something you don't understand.

[creditcardmug]

Hi, can you say what date is on the Default Notice, and what date it gives you to remedy by?

 

Also, is there a page two to it, and can you post that up?

 

As Supa says ask Anything you need, no-one judges anyone one here, were all friends in the same boat.

 

Regards

[ChasedbyAgencies]

Hi CCM, hope you dont mind, is it OK to use some of your defence? Have been reading your thread as well as others, and think I need to use bits here and there, although still fuzzy about what

 

Default Notice was sent by Mercers on 26 June 2008 asking for a payment of £XXX.00 before 13 July 2008. However it is CL Finance that have done the Court Claim! 2nd page of Cr**py Default Notice below. Not sure at mo how much of legal stuff to include on default notice in defence - hopefully will become clearer the more I read.

 

Did you get judgment against yours in the end, or still waiting?

 

Thank you

DefaultnoticeP20001.PDF

[Stevel1959]

I am acting on behalf of a friend of mine who was slapped with a court claim by CL Finance on New Year’s Eve just gone. We are preparing her defence and would like to submit a counter-claim. She suffers from CFS / ME and this caused her to become unemployed and this obviously cut her income drastically. This had the effect of my friend falling behind on the payments on her Barclaycard MasterCard bill. After several phone calls from Barclays Bank the account was then passed to Mercer’s who bombarded my friend with countless phone calls - up to 10 daily. She stated to them every time they rang that she suffered from ME / CFS all to no avail. This eventually led to my friend having her worst ever relapse. I would like to ask some questions;

 

1. In her holding defence can she mention that she wants to put in a counter-claim for harassment?

2. I read in a case that someone wanted to reclaim late payment fees – do we mention this at this stage?

3. Is there a connection between Mercers, Lewis Debt Recovery and CL Finance?

 

Thank you for your help in advance.

Edited January 28, 2009 by Stevel1959
Update

[ChasedbyAgencies]

Bump??

[creditcardmug]

The DN hasn't been done in the prescribed form, so is invalid, no problem using defences found on here.

Yes reading as much as you can is the best advice.

[ChasedbyAgencies]

Cany anyone help with this question? I am just about to claim back charges with Barclaycard, and read somewhere here, that if you are claiming back charges you need to put it in the defence. However as it is CL Finance taking me to Court, am not sure whether I should be doing a Counter Claim for my defence. Can anyone please help clarify this for me and what to do?

 

Still in process of compiling my defence and hope to get it up tomorrow, for some kindly person to check it for me.

[ChasedbyAgencies]

Bump

[rory32]

Could you please post the Particulars Of Claim.

 

Also if you could let us know when roughly the account was opened and any information/documents that she has requested from CL Finance (or if indeed she has done so) to support her counter claim/defence.

 

Did she receive a Notice of Assignment when the account was transferred to CL Finance?

 

Did she receive a default notice?

 

Did CL Finance send her a Letter Before Action informing her that legal proceedings were about to be commenced against her?

 

What sort of percentage of the balance claimed does she think is made up of charges e.g. late payment fees, overlimit fees?

 

Have CL Finance applied any charges to the account?

[corbeta]

this lot seem to be making everyone miserable at the moment. common trend is Barclaycard pass to mercers and then out of the blue CL finance, however in my experience i have never even been contacted by them, only their dodgy solicitors Cohen's, who just instigate legal proceedings without any sort of protocol at all!!

 

keep an eye out on here, loads in the same happy boat!!

[ChasedbyAgencies]

Hello, Well this has certainly been a crash course over hte last few days with very little sleep. this is what I have put together, have kept it quite short as due to time pressures will probably have to submit it online (max 8,000 characters).

 

Please can someone take a look, as I am literally running out of time to send Special Delivery if it needs to include more info. Comments in red are for guidance, and/or attachments to send if it goes in post.

 

Barclaycard was opened well before 2006, so have inclued what I think is relevant!

 

Hope I have covered everything, please let me know, Thank You, Thank you.

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

C L Finance Ltd - Claimant

and

xxxxxxxxxxxxxxxx- Defendant

 

Defence

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx 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 claims 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) Without fair warning the claimant brought this action in what appears ignorance of the Civil Procedure Rules as as required under the Pre-Action Protocols Para 4.3, as no letter before action was received.

 

5. Consequently, it is proving difficult to plead to the particulars of the claim as matters stand, and I put the claimant to strict proof thereof.

 

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.

Do I need to include relevant section?

7. 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

 

8. Further to the case, on 11/01/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules 18 (attachment?), which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. Accordingly, having failed to produce a credit agreement within the requisite timescale or at all, the Claimant is in default of said request under section 78(6)(a) of The Consumer Credit Act 1974.

 

9. To Date the claimant has refused my request under the CPR (letter from CL Finance’s solicitor’s Howard Cohen attachment Exhibit C) 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.

10. 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 assess 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).

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

The Need for a Default notice

 

12. 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.

 

13. Notwithstanding point 21, 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)

 

14. 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

 

15. The Defendant denies that there has been any failure to make payment in accordance with the alleged agreement. 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.

 

16. 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

 

17. 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.

 

18. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 8 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 xxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

[Stevel1959]

Rory 32,

Hi thanks for your help, and moving the messages over to one thread,

 

Account was opened well over 6 years ago, not sure how long before that as dont have paperwork.

 

Have requested CPR 18 from CL, they replied that they are not obliged. Defence claim has to be submitted by tomrorow night if not done online.

 

Had something that looks like notice of assingment from Lewis Debt saying assigned to CL Finance, but don't know if in order. No pre-action letter before Court Claim which arrived pretty soon after told it was now with CL Finance. default Notice received from Mercers prior to this, but apparently it is in breach.

 

Not sure of the amounts yet, but probably 10% has been added in late payment fees and the interest that has been charged on that. Not sure how much if anything CL have added yet as not had anything from them. All I know is that the total on the Court Claim Form is getting near to £900 above what the balance was when stopped payments 8 months ago, the bulk seems to be interest charged over this time, although they were asked to freeze interest in offer of a small payment, and they refused, even though the reason for non payment was ill and on incapacity benefit. If we had found this site then, things would have been so different

[ChasedbyAgencies]

Help, Please can someone take a look at my defence. (a few posts above this) I have to get it in Special Delivery tomorrow morn in the event that my defence needs to be longer than what is allowed online, am getting very stressed now as have been up most the night. Thanks

[creditcardmug]

Hi, what date is on the claim form(so i can work out when this defence must be filed).

 

If you are doing it on MCOL, you dont need the statement of truth.

 

Also you cant include any attachments.

 

Ill have a look for a shorter defence, but get back to me, i need to know how much time you have, keep bumping the thread.