C L Finance - Awaiting Court Action. **WON**

[creditcardmug]

Hi shredder, your a bit behind with the times mate, they have already reformed themselves into a new company, there's a thread on here about it somewhere, only in the last few days so should be easy to find

[shredder10]

OK thanks what they called now then, ok found them HOWARD COHEN & CO

Edited March 7, 2009 by shredder10

[GhostDebt]

Hello everyone

Howard Cohen & Co. now called Cohen Cramer as per the information on the thread CCM refers to.

What I am wondering at the moment is if this changes the validity of the claim form in any way?

Also, since they have not replied to the CPR request, is it worthwhile to do an SAR as well. AQ's have to be filed mid month and any hearing date should be after the required time period has elapsed to respond to the SAR. If they fail to provide info it can only help to support our case?

Will come up with the AQ responses and post later on, along with the POC as well.

Many thanks to all

Cheers

[ncf355]

I think they are OK to do this as they state Howard Cohen is now a trading name (though this is based on limited knowl;edge of that area)

 

Have you asked the court to enforce the CPR request?

[GhostDebt]

Hi,

 

Not yet but wiil do in AQ

 

Many thanks

[GhostDebt]

Evening everybody.

Detailed below are the POC and our proposal for filling in the N149 AQ

Any comments or help you can offer is greatly appreciated.

Note, must reply before 19th March.

POC.

The claimant's claim is for the sum of £.... being monies due from the Defendant to the Claimant under a regulated agreement between the defendant and GE Capital Bank Ltd under reference xxxx and assigned to the claimant on the 13th Dec 2006 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 £......

AQ – N149.

A - No

B - No (already being held at local court)

C - Yes

D - Leave Blank

E - No

F - No

G -

In the xxxxxxxx County Court

Claim number

Between

xxxxxxxxxxx- Claimant

and

- Defendant

Defence

 

1. I xxxxxxxxx of xxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxx

 

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 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.

 

5. Consequently, I deny all allegations on the particulars of claim and 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.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from .../content.aspx?LegType=All+ Legislation&title=consume r+credit+act++2006&search Enacted=0&extentMatchOnly =0&confersPower=0&blanke t Amendment=0&sortAlpha=0&T YPE=QS&PageNumber=1&NavFr om=0&parentActiveTextDocI d=2459360&ActiveTextDocId =2459451&filesize=643

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 xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, 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,.

 

10. To Date the claimant has ignored my request under the CPR 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 given that I am Litigant in Person (a copy of the request is attached to this Defence marked XXXXXX).

 

The importance of a copy of the credit agreement and its production before the court.

11. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

12. Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

 

13. 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.

 

14. 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.

 

15. 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."

16. 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.

 

17. Notwithstanding point 13, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.

 

18. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 10 to 16 of this defence to have any right of enforcement.

 

The courts power of enforcement

 

19. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with

127(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).

20. Further more 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.

 

21. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor.

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

22. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

23. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

24. Further more the defendant requires clarification on the status of the original agreement, the defendant requires the claimant provide a certified copy of the original agreement. If the document is no longer in existence the defendant requires certification of destruction and furthermore the defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document and also require written clarification that any copy document produced is authentic.the defendant notes that the Civil procedure rules also require the original documents to be made available under practice direction 32.

 

25. The defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss original or destruction of the credit agreement was central to the case and the defendant is under the belief that the outcome of the case was that where the original agreement could not be produced the claim could not succeed and that the appeal was successful.

 

26. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

The Need for a Default notice

 

27. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

28. It is neither admitted or 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.

 

29. Notwithstanding point 27, 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).

 

30. 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 give me a counter claim limited to the value of the default notice plus damages - Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

 

Further Information

31. The claimant has failed to follow the correct pre action protocols by failing to provide a letter before action as required by ….. additional help here please

32. The claimant is in breach of the Office of Fair Trading Debt Collection Guidelines – Final Guidance on Unfair Business Practices July 2003 (Updated December 2006)

Specifically.

False representation of authority and/or legal position

Section 2.4 (d)

Falsely implying or stating that action has been taken when it has not, for example that civil action has been taken or that a court judgement has already been obtained. – Refer to evidence exhibit xx

Section 2.6(h)

Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment – As evidenced by these court proceedings

Section 2.8(i)

Failing to investigate and/or provide details as appropriate when a debt is queried or disputed, possibly resulting in debtors being wrongly persued. – As evidenced by these court proceedings.

33. Furthermore the defendant requires clarification on the ownership of the alleged debt. The defendant requires the claimant to provide an original or certified copy of the notice of assignment indicating the claimants rights and duties under the law of property act 1925. If the document is no longer in existence the defendant requires certification of destruction and furthermore the defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document and also require written clarification that any copy document produced is authentic. The defendant also requires the original deed of assignment to be presented before the court.

Failure to provide these documents, would give me a counter claim limited to payments mistakenly paid to date plus contractual interest at 8%.

Conclusion

 

 

34. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4

 

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

35. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial.

 

36. As laid out in point 23 the defendant requires that the claimant provide the requested information and proofs and authenticities. The defendant requests that the court order that the claimant supply the information requested.

 

37. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

38. I respectfully ask the permission of the court to amend this defence and/or counterclaim when the claimant provides full disclosure of the requested documents.

H - No

I - Can we do a signature that is not our normal or modified in some way, in case the documents are passed to CL Finance? To stop photoshopping?

 

Best regards

[GhostDebt]

p.s is the AQ the right place to say this, or do we get to file a full defence later?

Also should we list the counterclaim for harrassment info too.

I noticed from Goldlady's threads if she had entered a counterclaim she would have been able to obtain judgement herself when they failed to provide the documents, hence my reason for including it.

Also, the copy of the agreement sent does not include the information on the back of the agreement, hence I can state they haven't complied with CCA request by not providing a true copy. Although how to word this is going to be tricky without admitting we have a copy.....!!

 

Thanks for all your help.

Hopefully, can get them on abuse of process/failure to comply with a rule or court order, assuming the court agrees to order them to provide the documents.

 

Best regards

[ncf355]

Hi bit confused here

 

Have you filed a holding defence already?

 

AQ should only contain general info to the judge, certainly not the amount of detail here

[ncf355]

Just gone back over your thread and can see you have entered a holding (?) defence

 

I would advise just filling out the AQ as I detailed above, but in the G) "further info for judge" section state the fact you have sent the CPR that they failed to comply with and ask if the court would enforce it (with an "unless" order - e.g: unless the claimant provides the information within 14 days, the claim be struck out without further notice) and allow you to enter a revised defence once you receive the details

 

Attach a copy of your CPR request to the AQ

[GhostDebt]

Sorry for the confusion ncf355, not filled one of these in before so still learning..... thanks for your patience.

 

Modified answer in response to section G.

 

On the xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to file a full and complete defence against the case from the claimant. A copy is enclosed for the courts reference.

(Proof of postage and confirmation of delivery is available)

 

To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested.

As a litigant in person i respectfully request the court to enforce this request for information (with an "unless" order - e.g: unless the claimant provides the information within 14 days, the claim be struck out without further notice) and allow me to enter a revised defence/counterclaim if the claimant successfully provides all the information requested.

 

Does this sound ok now? presumably we get the chance to file a full defence later if/after the information is provided

[Goldlady]

Modified answer in response to section G.

 

On the xx/xx/2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to file a full and complete defence against the case from the claimant. A copy is enclosed for the court's reference.

(Proof of postage and confirmation of delivery is available)

 

To date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a litigant in person I respectfully request the court to enforce this request for information, and, if the court considers it appropriate, the issue of an "unless" order to ensure the proceedings are not delayed further.

 

 

Amended slightly. In my experience the courts can be a bit tetchy about being told what to do. And yes you could amend your defence IF they ever come up with anything.

[GhostDebt]

Thank you goldlady and ncf for the help and comments.

 

Kind regards

[ncf355]

That sounds spot on

[GhostDebt]

Hi all,

The AQ has been completed and will be posted on Monday along with a copy of the CPR request.

Thanks for all the help.

Best regards

[Goldlady]

Best of luck.

[UnmoderatetheNet]

Keep us posted because this strategy could be used time and time again to force court decisions and prevent the limbo that DCA's like to create

[GhostDebt]

Update,

Still awaiting a response from the court.

Will keep you all posted.

Many thanks.

[GhostDebt]

Evening all,

 

Phoned the court today, apparently they have submitted their AQ as well, so just waiting for it to be processed and a response from the court.

 

Regards to all

[GhostDebt]

Still waiting a response. May ring court for an update.....

 

Best regards.

[GhostDebt]

Still waiting a response. Court say judge is making his decision, but there is a backlog. So still playing the waiting game....

 

Best regards

[GhostDebt]

Finally we have received some info from the court as follows:

 

Before District Judge ......

It is ordered that,

The claim is stayed until the claimant files in court and serves on the defendant copies of

the consumer credit agreement

the deed of assignment redacted if necessary

the notice of assignment

if paragraph 1 is not completed with by th July the claim is struck out.

any party affected by this order may apply to have it set aside, varied or stayed such applications must be made within seven days after the date when this order was served on the party applying.

 

 

Comments would be greatly appreciated, do we sit and wait to see what happens? I guess so..... or can we apply to get it set aside based on the fact that they have had since our initial cpr letter to provide the documents and haven't to date so they are just wasting time...

 

many thanks

[creditcardmug]

You can either wait, or make an application to the court to have their claim struck out, for obvious reasons, at a cost to you of £75, which, if you win you can claim back, along with all your other costs in the matter.

[GhostDebt]

Hi ccm,

 

Is there a particular form for this or is the n245 the right one.

obvious reasons being they have not sent the documents in five months so why give them more time to produce them.

 

Thank you

GD

[creditcardmug]

N244 from the HMCS website, you will have to do a witness statement to go with it

[GhostDebt]

Would it be appropriate for this thread to be moved to the legal issues part of the forum by a site team member?