C L Finance (GE Store card) - Failure to comply with CPR request.**SETTLED BY CONSENT**

[hunni2006]

subbing and good luck!

[GhostDebt]

Thanks hunni2006.

 

I have been doing a little reading around and found this:

 

Assigning A Debt Or Benefit Of Contract?

It is important to first provide the debtor with a notice of the assignment!

Other points and issues that should be borne in mind:

· In principle, the benefit of a contract can be legally assigned without consent, provided there is no express prohibition on assignment or, for example, a requirement that consent is obtained.

· Where there is no restriction on assignment, the usual way of assigning the benefit of contractual rights is by statutory assignment. The assignment must be in writing, signed by the assignor, absolute (not purporting to be by way of charge only) and notice in writing must be given to the other contracting party (section 136, Law of Property Act 1925).

· If a contract is not effectively assigned under statute, it may still be assigned under common law by an equitable assignment. An equitable assignment may exist where the requirements for a statutory assignment are not satisfied. The main practical consequence of an equitable assignment is that the assignee cannot bring an action in its own name against the third party, but must fall back on the rules governing equitable assignments and join the assignor as a party to the action.

It is, in any event, desirable for notice of an assignment to be given to the third party because the third party will otherwise be entitled to continue to make payments to the assignor. Notice will give the assignee priority over any other assignee that has failed to give notice, provided there is no knowledge of such prior assignment.

· The burden of a contract cannot be assigned. It is therefore necessary to novate, rather than assign, certain contracts. Novation is, in effect, the rescission of one contract and the substitution of a new contract in which the same acts are to be performed but by different parties.

· On the sale of a business, the asset purchase agreement may specifically assign the benefit of the seller's contracts to the purchaser. Assuming that there is no restriction on assignment, this amounts to a statutory assignment, provided that notice is also given to the other contracting party. If assignment is not possible, or only possible with consent, the asset purchase agreement may provide that such contracts are held on trust pending the obtaining of formal consent to assign or novate.

 

This confirms what nicklea has posted above, however what I am thinking about at the moment is where the DCA has provided an alleged copy of the agreement, but not provided the reverse of the document or the terms and conditions can I claim that the assignment is questionable because the parties do not have all the information and without this information it cannot be prooved that the debt can or cannot be assigned.

 

I have other more appropriate arguements in my defence, but was just looking for another string to my bow....

 

Any comments?

[GhostDebt]

Also,

 

I have drafted the letter below which I am going to hand deliver to the court this afternoon.

 

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For the Attention of the Court Manager,

Dear Sir.

A Case Management Conference in this case is listed for [time] on [date].

Further to the order made by [judge] sitting at the [area] County Court dated [date].

 

I note that the Claimant has now failed to comply with paragraph [x] and paragraph [x] of the above mentioned order.

The Claimant has had every opportunity to file such documentation and considering the size of the organisation, it is not unreasonable for them to have filed such documentation on time at the first opportunity.

The result of this failure, is that the Defendant is embarrassed in attendance at the case management conference and placed at a severe disadvantage, as I am a Litigant in person.

 

With a mind to saving costs, I would therefore request that pursuant to the order made by [judge] and CPR part 3.4, 2© that due consideration be given at the case management conference for the Claimants statement of claim to be struck out and for judgement to be entered in favour of the Defendant.

 

If this is not acceptable, then please refer this letter and the file to [judge] to highlight [Claimant]'s non-compliance with the order dated [date] and for further directions to be issued.

Yours faithfully

Signed ……………………………. (Defendant)

 

Date: …………………………….

---

 

Any comments before I go?

[GhostDebt]

Letter above, delivered to the court yesterday afternoon.

[GhostDebt]

I have drafted a new Witness Statement and Skeleton for the case management conference.

 

Since the claimant has failed to provide directions and a case summary, is it appropriate for me to write my own??

 

Any comments?

 

Regards

[andymanx]

subb

[GhostDebt]

Bump for response to post #130.. please

[GhostDebt]

Was thinking of providing the following directions for the case management conference...

 

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Draft Order for Directions

 

1 The Claimant shall explain to the court why they did not comply with the Pre Action Protocols and the requirement to provide a letter before action.

 

2. The Claimant shall explain to the court why they persist in failing to comply with requests for information.

 

3. The Claimant shall explain to the court why they have failed to comply with paragraph 6 of the order made by * dated *.

 

4. The court shall give due consideration that 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.

 

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

 

---

 

Any comments?

 

Regards

[GhostDebt]

CMC Outcome.

 

Further directions/order issued and new CMC to be listed for a later date.

 

Fed up... given them more time again ...

 

At least have now got permission to file an amended defence.

 

Just dragging on a bit.

 

Regards

[MAGDA]

CMC Outcome.

 

Further directions/order issued and new CMC to be listed for a later date.

 

Fed up... given them more time again ...

 

At least have now got permission to file an amended defence.

 

Just dragging on a bit.

 

Regards

 

I know the feeling, it's the same with the claims I am currently doing battle with. The court is so tolerant of them, and yet if we were a day late complying with something, that would be it. Keep fighting the good fight, I'm sure it will all work out in the end. Magda

Edited August 11, 2009 by MAGDA
typo

[GhostDebt]

Thanks for your support Magda..

 

Regards

[GhostDebt]

Brief update.

Below is a copy of the Order made at the CMC.

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1. The claimant shall by 4pm on ... file and serve a copy of the original agreement together with the terms and conditions attributable to that agreement.

2. The defendant will if so advised file and serve an amended defence by 4pm on ...

3. The matter is listed for a CMC on ... with a time estimate of 30mins

4. The claimant will at least 7 days prior to the CMC file and serve a case summary, schedule of issues and draft directions to be agreed if possible.

---

[GhostDebt]

Also received today from the Claimant:

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Dear Mr...

We refer to the above matter and in particular the order made at the hearing on ...

Please find enclosed for filing a copy of the credit agreement along with the original terms and conditions of the account which were incorporated on the reverse of the credit agreement. Also enclosed are the subsequent amended terms and conditions of the account.

We can confirm the same have been served on the Court.

We trust this is in order.

---

Have spotted a few problems with the docs they have provided

[MAGDA]

Hi Ghostdebt, sounds positive if you have spotted something wrong with the agreement. If you can post it up it, it's worth letting other people view it to get some other opinons as well - you neve know, they might find even more discrepancies in it:) Magda

[GhostDebt]

Hi Magda,

Will post up end of next week as need to wait for a date to pass. Then will let you in on what I am thinking.

 

Regards

[wakieblue]

Subbing

[hunni2006]

Also received today from the Claimant:

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Dear Mr...

We refer to the above matter and in particular the order made at the hearing on ...

Please find enclosed for filing a copy of the credit agreement along with the original terms and conditions of the account which were incorporated on the reverse of the credit agreement. Also enclosed are the subsequent amended terms and conditions of the account.

We can confirm the same have been served on the Court.

We trust this is in order.

---

Have spotted a few problems with the docs they have provided

 

Hi GhostDebt, was reading this thread and thought you might find it useful

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/162535-documents-court-civil-evidence.html

 

hunni

[GhostDebt]

Evening all,

 

As mentioned previously the order from the CMC was for the claimant to file and serve a copy of the original agreement together with the terms and conditions attributable to that agreement. (see post #137.)

 

Below are the terms and conditions they have provided:

 

Terms and Conditions picture by shann15 - Photobucket

 

Terms and Conditions picture by shann15 - Photobucket

 

Terms and conditions picture by shann15 - Photobucket

[GhostDebt]

My opinion of the documents is as follows.

 

The first document has an interest rate of 29% and 31% APR so is not attributable to the original agreement, as this has lower APR figures on it, so I can only assume it is an amendment.

 

The second document appears to be a leaflet type document which refers to an amendment to the minimum monthly payment from £5/5% to £4/4%

As the agreement already has £4/4% as the minimum monthly payment, I can only assume that this pre-dates the agreement.

 

The only document which appears to be attributable (i.e the back of the agreement) is the third document, which appears to be in the correct layout and orientation.

However, the alleged agreement dates from 2000 and the third document refers to the use of the card in ATM's (section 2) and PIN numbers (section 3). As this is for an alleged storecard and the company in question didn't introduce the use of cash machines and PIN numbers for the cards until 2003 I am sure this is not attributable either.

 

I am currently trying to contact the original provider for confirmation.

 

Any other comments greatly appreciated.

 

Regards

[Gazza112]

Evening all,

 

As mentioned previously the order from the CMC was for the claimant to file and serve a copy of the original agreement together with the terms and conditions attributable to that agreement. (see post #137.)

 

Below are the terms and conditions they have provided:

 

Terms and Conditions picture by shann15 - Photobucket

 

Terms and Conditions picture by shann15 - Photobucket

 

Terms and conditions picture by shann15 - Photobucket

 

 

Hi Ghostdept

 

Is that all the supplied, if so i don't think they have a leg to stand on.

Poor Howard Cohen don't he ever learn/

 

Gaz

[GhostDebt]

Evening Gaz,

 

They supplied other documents under the disclosure order which the first defence was drafted around.

 

But now having permission to file an amended defence the above will add to it quite nicely.

 

Regards

[Gazza112]

Hi Ghostdept

 

Yes, that's brill but i with the would send something to me.

Not had a thing from them which the Court order asked for/

 

Gaz

[GhostDebt]

Updated defence has been filed and served today.

 

Now just waiting for the next CMC and to see if they comply with the other part of the courts order.

[Gazza112]

Hi Ghostdept

 

Just wanted to ask, in my case do i have to submit anything to the Courts. As i've still not received any papers from Howard Cohen, and the last date to submit papers is on Monday the 14th. The only thing i submited was a bemused defence with my AQ's. Just that on Monday i've got to go into Hospital for an op, and will be in there for a couple of days.

So if i need to submit anything will need to do it on Friday.

Any iders what i should do with this matter.

 

 

Gaz

[GhostDebt]

Evening all,

Quick update on the interesting developments going on...

 

Letter from HC received.

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Manchester CC Claim ...

Funny that so far its been held elsewhere so maybe they got a little confused or have had it moved without telling anyone?

 

Part 18 Request for further information.

We refer to the above matter.

In particular we refer to the defence and supporting documents the contents of which have been noted.

In order to narrow the issues before the hearing due to take place on .. we require further information to clarify the case.

It is noted that despite providing you with a copy of the original credit agreement, statements, default notice, notice of assignment, and deed of assignment, we note that in your amended defence dated .. your comments remain "that you neither admit nor deny the allegations made in the claimants particulars of claim".

We now formally request the following information to investigate your allegations further.

1. Evidence of your signature, either on a driving licence or passport. To prove that it is not your signature on the copy agreement.

2. If it was not you who made the purchases and repayments on the account, who did make the transactions, and who entered into the agreement with the cccs under their reference no. ... on your behalf.

We also request that you provide a full breakdown of your claim for general damages of £10k and provide evidence of the harrasment and anxiety caused by the Claimant.

We reserve the right to disclose this letter to the court.

We trust this is in order and look forward to receiving your reply by return.

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Any comments on whether we have to comply or not?

 

Many thanks.