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    • Hermes lost parcel.. Read more at https://www.consumeractiongroup.co.uk/topic/422615-hermes-lost-parcel/
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    • I came across this discussion recently and just wanted to give my experience of A Shade Greener that may help others regarding their boiler finance agreement.
       
      We had a 10yr  finance contract for a boiler fitted July 2015.
       
      After a summer of discontent with ASG I discovered that if you have paid HALF the agreement or more you can legally return the boiler to them at no cost to yourself. I've just returned mine the feeling is liberating.
       
      It all started mid summer during lockdown when they refused to service our boiler because we didn't have a loft ladder or flooring installed despite the fact AS installed the boiler. and had previosuly serviced it without issue for 4yrs. After consulting with an independent installer I was informed that if this was the case then ASG had breached building regulations,  this was duly reported to Gas Safe to investigate and even then ASG refused to accept blame and repeatedly said it was my problem. Anyway Gas Safe found them in breach of building regs and a compromise was reached.
       
      A month later and ASG attended to service our boiler but in the process left the boiler unusuable as it kept losing pressure not to mention they had damaged the filling loop in the process which they said was my responsibilty not theres and would charge me to repair, so generous of them! Soon after reporting the fault I got a letter stating it was time we arranged a powerflush on our heating system which they make you do after 5 years even though there's nothing in the contract that states this. Coincidence?
       
      After a few heated exchanges with ASG (pardon the pun) I decided to pull the plug and cancel our agreement.
       
      The boiler was removed and replaced by a reputable installer,  and the old boiler was returned to ASG thus ending our contract with them. What's mad is I saved in excess of £1000 in the long run and got a new boiler with a brand new 12yr warranty. 
       
      You only have to look at TrustPilot to get an idea of what this company is like.
       
      • 3 replies
    • Dazza a few months ago I discovered a good friend of mine who had ten debts with cards and catalogues which he was slavishly paying off at detriment to his own family quality of life, and I mean hardship, not just absence of second holidays or flat screen TV's.
       
      I wrote to all his creditors asking for supporting documents and not one could provide any material that would allow them to enforce the debt.
       
      As a result he stopped paying and they have been unable to do anything, one even admitted it was unenforceable.
       
      If circumstances have got to the point where you are finding it unmanageable you must ask yourself why you feel the need to pay.  I guarantee you that these companies have built bad debt into their business model and no one over there is losing any sleep over your debt to them!  They will see you as a victim and cash cow and they will be reluctant to discuss final offers, only ways to keep you paying with threats of court action or seizing your assets if you have any.
       
      They are not your friends and you owe them no loyalty or moral duty, that must remain only for yourself and your family.
       
      If it was me I would send them all a CCA request.   I would bet that not one will provide the correct response and you can quite legally stop paying them until such time as they do provide a response.   Even when they do you should check back here as they mostly send dodgy photo copies or generic rubbish that has no connection with your supposed debt.
       
      The money you are paying them should, as far as you are able, be put to a savings account for yourself and as a means of paying of one of these fleecers should they ever manage to get to to the point of a successful court judgement.  After six years they will not be able to start court action and that money will then become yours.
       
      They will of course pursue you for the funds and pass your file around various departments of their business and out to third parties.
       
      Your response is that you should treat it as a hobby.  I have numerous files of correspondence each faithfully organised showing the various letters from different DCA;s , solicitors etc with a mix of threats, inducements and offers.   It is like my stamp collection and I show it to anyone who is interested!
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C L Finance (GE Store card) - Failure to comply with CPR request.**SETTLED BY CONSENT**


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Bump for further comments.

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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I am considering responding to the Claimants part 18 request as follows:

---

 

Covering Letter

 

Dear Sir,

 

Please find enclosed the response to your Part 18 Request for Information.

 

In response to your request for a full breakdown of the claim for damages, your attention is drawn to: Richard Durkin (Pursuer) v DSG Retail Limited & HFC Bank Plc (Defenders). In this case, injury to credit is actionable without evidence of any specific loss.

 

Please note, copies of these documents have also been sent to the court, for inclusion in the case file.

 

I trust these documents are in order,

 

Yours faithfully,

GhostDebt

 

---

Part 18 Response.

 

In the ** County Court

 

 

Claim No. **

 

 

 

Between

 

 

(Claimant)

 

 

and

 

 

(Defendant)

 

 

 

Response to Request for Further Information and Clarification under CPR Part 18

 

 

This is a response made on the ** by the Defendant, to the Claimant's CPR Part 18 request dated **.

 

1.

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

 

Response.

The request is not relevant to the issues in dispute.

The Claimant has yet to provide any evidence in their case, which substantiates their claim that they have an absolute assignment of both rights and duties required to bring these proceedings in their own name.

 

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 number ** on your behalf.

 

Response.

The request is not relevant to the issues in dispute.

The Claimant has yet to provide any evidence in their case, which substantiates their claim that they have an absolute assignment of both rights and duties required to bring these proceedings in their own name.

 

 

  • Statement of Truth

 

I GhostDebt, The Defendant, believe the above statement to be true and factual.

 

Signed ..................... Date .....................

 

---

Any comments or guidance greatly welcome.

Edited by GhostDebt
changes

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Hi Ghostdebt, did CL disclose the Assignment when they did their disclosure list? If so, did you request a copy of the assignment in its entirety (not just any generic deed that they may so far have provided?) I think if I were responding to their part 18 request, which I agree, I think you probably should do, I would not refer to anything specific, but would simply state that you have already provided adequate information relating to their queries in your defence given the limited information available to you (as a direct failure on the claimant's part) to date.

 

I am not an expert by any means, but I am in a similar situation, and I think I would probably go for something along the above lines and play them at their own game. They are very good at holding back information when you need it, but they expect you to play balll at all times, and i'm beginning to learn you need to be just as sneaky as they are.

 

Hope you get some more help/replies on this,

 

Magda

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Hi Magda,

They did not disclose the deed of assignment with the original disclosure but when I asked them for a copy of it, they sent it to me.

However what they provided were 4 pages. 3 of which can be linked by their reference no's but do not mention me and 1 which mentions me but cannot be linked. So all a bit vague really, probably a generic one and is mentioned in my defences.

I think I should reply even if it is to state it's not relevant as whilst it would be nice to play their games I want to do all I can to show compliance for the courts

Many thanks.

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Share on other sites
Hi Magda,

They did not disclose the deed of assignment with the original disclosure but when I asked them for a copy of it, they sent it to me.

However what they provided were 4 pages. 3 of which can be linked by their reference no's but do not mention me and 1 which mentions me but cannot be linked. So all a bit vague really, probably a generic one and is mentioned in my defences.

I think I should reply even if it is to state it's not relevant as whilst it would be nice to play their games I want to do all I can to show compliance for the courts

Many thanks.

 

when they did their standard disclosure, they had to mention everything which they currently hold, (documents which affect their case in either a positive or a negative way) and documents which they previously had, but which are no longer in their control, so the Deed should have been disclosed anyway, otherwise they are witholding documents, which of course they shouldn't do, unless they are privileged, and if that's the case, then they must say.

 

I actually do think you should respond to their cpr 18, as I mentioned in my post above, but I just don't think you need to provide the further info they have requested, if these points have already been covered in your defence, which I would imagine they have. I think at the end of the day CL are probably just trying to undermine your defence.

 

Hope this all goes well for you.:)

 

Magda

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Hi Magda,

Yes I agree I should respond if only to tell them it isn't relevant.

I think they are hung up on one particular aspect of the case and think they are doing a bit of fishing so will send a response off but without clarifying any further information. Just stating its not relevant.

Regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Share on other sites

Sent my reply as indicated in post #153, but I removed the parts in red as didn't feel it was necessary.

 

Do I need to do a new skeleton arguement for the next cmc or can I just rely on the last one as it hasn't changed really.?

 

Regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

Link to post
Share on other sites

Now really confused..?

 

Received an annual statement from CL, any comments on the following greatly appreciated.

 

In the disclosure from the Claimant the statements they provided say.

sept 08 bal. 73**.**

oct 08 bal. 73**.**

nov 08 bal. 73**.**

 

Now, in the annual statement it says oct 08 bal. 70**.** increasing to sept 09 bal. of 78**.** due to charges and, costs, court fees, solicitors costs, post judgement fee.....

Now something is not right here....

case isn't finished and costs haven't been awarded to either party so how can they add post judgement costs and solicitors fees?

Also, why is the amounts different.....

 

Any comments?

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

Link to post
Share on other sites

I have drafted the following letter to send to the court and to copy to the claimant.

---

Dear Sir,

The Defendant has received the attached Statement of Account dated * from the Claimant (Document exhibited hereto marked *) after the submission of the consequentially amended defence dated *.

The Defendant believes that disclosure of the document is required to all parties, in accordance with part 31 of the Civil Procedure Rules.

The Defendant makes the following statement regarding the Statement of Account received.

1. In response to paragraph * of the Order made by * dated * for standard disclosure of documents, the Claimant provided statements relating to the alleged account (Documents exhibited hereto marked * and *).

The information contained in documents * and * does not *correspond with the information contained in * and raises doubts * regarding the validity of the claim.

2. In consequence, the Defendant avers that the information contained in the Particulars of Claim does not satisfy the requirements of CPR Part 16 and requests the Court gives due consideration to striking out the claim in accordance with CPR Part 3.4(2)©.

3. In consequence, the Defendant avers that the Default Notice provided by the Claimant is defective. The opening part of Section 88(1) of the Consumer Credit Act 1974 states:

88. Contents and effect of Default Notice.

(1) The Default Notice must be in the prescribed form.

The terms of the Statute are mandatory, a defect renders the Default Notice invalid. (Woodchester Lease Management Services Ltd v Swain & Co. [1998] All ER (D) 339)

4. In consequence, the Defendant avers that the alleged assignment is ineffectual at law and that the Claimant has no legal rights or duties to the alleged account. It is accepted that for a Notice of Assignment to be valid it need not contain the date of an assignment or indeed the amount of any alleged debt.

However, if these matters are contained in an assignment it is submitted that, for the notice to be valid, they should be accurate. (W F Harrison & Co. Ltd v Burke 1956 [2] All ER 169).

5. In consequence of points 3 and 4, the Defendant avers that the information contained in the Particulars of Claim does not satisfy the requirements of CPR Part 16 and requests the Court gives due consideration to striking out the claim in accordance with CPR Part 3.4(2)(a).

If this is not acceptable, then please refer this letter to the case file for consideration at the Case Management Conference listed for * on the *.

A copy of this correspondence has also been sent to the Claimant's solicitor, Howard Cohen & Co.

I trust these documents are in order,

Yours faithfully,

---

 

Any comments?

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Share on other sites

Hi Ghostdebt, your letter seems fine, but I don't think a court will strike out the claim on the basis of that. They may strike out for something such as the claimant not making standard disclosure following an unless order, or not providing a document requested under cpr 31.14 mentioned in their statement of case and therefore disclosed, etc, but I think the court would want to consider the points you raise at an actual hearing - you have the CMC soon I believe? Just wondering if it would be better to submit what you have drafted as a skeleton argument again to be considered at the CMC. With regard to the statements, has CL provided a complete set of statements, showing penalty charges for the duration, or just the odd statement here and there, from when CL acquired the debt? If it is the latter, then you should push this point as they cannot prove the debt without all of the statments, or at least a very significant amount of them and the discrepancy in their figures also casts doubt. Link has just discontinued a claim they had against me, ex GE also, and they could not provide detailed statements as GE no longer had them. Also, is the agreement definitely enforceable, I couldn't see it posted here. I noticed that you requested sight of the original agreement following disclosure, did CL allow you to inspect the original? or do they only have a copy?

 

Hopefully you will get some other opinions on this, but the comments above are just from my own experience.

 

Magda

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Now really confused..?

 

Received an annual statement from CL, any comments on the following greatly appreciated.

 

In the disclosure from the Claimant the statements they provided say.

sept 08 bal. 73**.**

oct 08 bal. 73**.**

nov 08 bal. 73**.**

 

Now, in the annual statement it says oct 08 bal. 70**.** increasing to sept 09 bal. of 78**.** due to charges and, costs, court fees, solicitors costs, post judgement fee.....

Now something is not right here....

case isn't finished and costs haven't been awarded to either party so how can they add post judgement costs and solicitors fees?

Also, why is the amounts different.....

 

Any comments?

 

It looks as if they've already made up the Judge's mind for him, and I don't think he'd be too happy if you showed him this. I'm surprised you've also not got a letter from Cohens stating that "as Judgement has been made against you etc.," still there's Monday's post to look at !!!!

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Hi GhostDebt

 

I have also recently received a statement from CL Finance including costs.

 

Brief summary

 

CL Finance / HC issued an N1 against me.

Sent CPR 31.14 request to HC – No response

Issued N244 for delayed Defence and Unless Order for supplying documents (plus costs if they do not comply)

Still no response from HC

Court strikes out claim

HC send cheque for my costs

 

Statement from CL now has Court and Solicitors Fees and the Costs paid to me all added on!!!!!!!!!!!!!!!!

 

Regards

SC

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i ghostdebt

 

i saw off mortimer clark/marlin ref the deed /notice of assignment

 

judge ordered that mc deliever absolute proof of the assignment.

 

mc just dent a basic contract between arrow global and mbna.

 

NOTHING TO LINK THE CONTRACT BETWEEN THE DEFENDANT AND ARROW GLOBAL OR MBNA

 

IT WAS LIKE I SAID

A BASIC PURCHESS CONTRACT.

 

judge had none of it,

failed to act on the judges instructions, game over for mc/marlin

 

if there is nothing that links you on a deed of assignment to the dca

 

game over

 

follow the paper trail

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Thank you for the replies.

 

Magda,

They haven't provided all the statements which has already been included in the skeleton arguement.

I think as you say, a new skeleton for the CMC would probably be best.

They don't have the original agreement, only a copy which we have been discussing in earlier CMC's but I think it is posted on here near the beginning.

 

MightyAcorn,

I don't hold my breath on getting anything in the post but you never know. Did have a letter in our other case though.

 

StayingCalm,

So where do you stand, now that it was struck out?

 

Hi Postggj,

Trying to follow the paper trail, but as you know often depends on the judge on the day and the paperwork you get from them.

 

Have drafted a Skeleton for the CMC, any comments greatly appreciated.

It has changed only slightly from the one drafted for the original CMC.

---

Skeleton Argument.

1. Permission is Sought for the amended defence dated * to be submitted.

2. Permission is Sought for the defence to be further amended, should the Claimant provide any outstanding information required.

3. The Defendant apologises to the court for the lateness of this skeleton argument as new information disclosed by the Claimant has raised doubts over the Particulars of the claim.

4. The Claimant has provided a statement of account dated *. The information contained within this statement does not correspond with the information contained in statements disclosed previously and raises doubts over the information contained within the particulars of claim, the Default Notice and the Assignment of the alleged debt.

5. The original Defence was originally filed on the basis that the defendant did not have sufficient information to form a proper view as to whether the Defendant was indebted to the Claimant as alleged or at all. The Defendant therefore put the Claimant to strict proof of the claim

6. The Claimant has provided the Defendant with some documentation which the Claimant appears to believe, establishes an unanswerable claim and that consequently that the test in CPR 3.4(2)(a) is satisfied.

7. The Defendant does not accept that this threshold has been reached and submits that in order for this to occur that the Claimant must prove its’ case on the basis of the evidence that it has served upon the Defendant.

8. It is submitted that this case involves matters of consumer credit law which require due consideration prior to the completion of the case management conference and issue of further directions.

9. This case relates to an agreement which the Claimant asserts was entered into on the * with *. That agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). The Claimant further asserts that the Benefit of the agreement was assigned absolutely to it on the *.

10. In order to prove its’ claim the Claimant must establish a number of matters. Firstly it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Secondly that proper notice of any such assignment was given to the Defendant (S196 (1) & (4) Law of Property Act 1925. Thirdly it must establish that a valid Default Notice was served upon the Defendant. Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all times thereafter.

11. It is submitted that it is the obligation of the Claimant to prove all of the matters referred to in point 10 above.

12. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid Default Notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the Act.

13. The Claimant asserts that it sent a Default Notice to the Defendant on the *. That Default indicated that the Defendant was in breach of a payment arrangement and that in consequence of that breach the whole outstanding balance became payable, the sum claimed included account charges which were unlawful.

14. The Defendant has no recollection of being served with such a Default Notice.

15. Consequently the Default Notice was invalid in that the sums claimed therein were incorrect in that not only did the Default Notice contain unlawful default charges but it also required repayment of the whole of the balance outstanding.

16. The Defendant notes the opening part of section 88(1) which states: 88. Contents and effect of Default Notice. (1) The default notice must be in the prescribed form.... The word 'must' makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue. Where the term De Minimus refers to an abbreviated form of the Latin Maxim de minimus non curat lex, "the law cares not for small things". A legal doctrine by which a court refuses to consider trifling matters.

17. The terms of the Statute are mandatory, a defect renders the Default Notice invalid. (Woodchester Lease Management Services Ltd v Swain)

18. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ:- "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted was set out to offer protection to the consumer.

19. The failure to serve a correct Default Notice invalidates not only any subsequent Termination Notice but also any litigation Proceedings.

20. For the avoidance of any doubt, in the event of an alleged breach by the Debtor the alleged agreement remains at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

21. The Defendant does not admit receipt of a Termination Notice and in any event avers that in view of the defects in the Default Notice that any Termination Notice must be invalid

22. Further the Defendant avers that, at the date upon which the Claimant asserts service of a Default Notice that the Defendant had not been served with a valid Notice of Assignment and consequently that the Claimant was not the Creditor and consequently had no legal interest sufficient to allow a Default Notice to be served.

23. The Defendant therefore avers that the claim brought by the Claimant is fatally flawed

24. If, which is not admitted, there was an agreement, enforceable or otherwise, in existence the Claimant has not proved that there has been a lawful assignment.

25. The Defendant does not admit that a lawful assignment has taken place. The Defendant has requested on several occasions disclosure, pursuant to the CPR 31(14)(1)(a) of the alleged assignment on the basis that it is a document referred to in a claim form etc. The Defendant asserts that he is entitled to inspect the alleged assignment to satisfy himself that the assignment is valid. The Claimant has, as part of it's’ application for Summary Judgment disclosed what it asserts is an extract of the Original Assignment.

26. The Claimant has disclosed insufficient of the document to allow the Defendant to form a view as to whether the alleged Assignment was valid.

27. Further of the documents disclosed, the first three pages appear to be connected but make no reference to the Defendant. The fourth page which does refer to the Defendant has nothing on its’ face which links it to the other three pages of the document submitted.

28. The Claimant asserts that the agreement was absolutely assigned to it. The document disclosed, refers to a further company Lewis Group Holdings Limited yet does not identify what role this company has in the agreement.

29. The Defendant cannot therefore be satisfied, without production of the whole document as to whether there is indeed an absolute assignment to the Claimant as alleged.

30. The overriding objective in CPR 1.1(2) requires the court to, as far as possible, place the parties on an equal footing. The fact that the Claimants have in their possession a document which is determinative of one the major issues as between the parties should in my submission require disclosure to enable the Defendant to form a view as to whether there has been a lawful assignment. It is with respect the position that not only do the interests of justice require disclosure but that the Claimant cannot prove its case without producing the alleged Assignment to the Defendant.

31. It is further submitted that, in any event, the Defendant is entitled to, as a matter of law, be provided with a copy of the alleged Assignment (Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824)

32. If, which is not admitted, an Assignment has taken place for that Assignment to be effectual, written notice of it must be served upon the Defendant in accordance with Section 136 (1) Law of Property Act 1925.

33. Section 196 of that Act provides that service must be effected by registered post.

34. The Claimant has produced a Notice of Assignment and asserts that it was served upon the Defendant. The Defendant had never seen, until after these proceedings were commenced, the Notice referred to by the Claimant. The Notice is therefore invalid for want of service.

35. Further and in any event the notice referred to identifies a balance outstanding. That balance includes default charges imposed pursuant to an unfair contract term and/or a penalty clause.

36. It is accepted that for a Notice of Assignment to be valid it need not contain the date of an assignment or indeed the amount of any debt. However if those matters are contained in an assignment it is submitted that, for the notice to be valid, they should be accurate. (W F Harrison & Co LTD v Burke 1956 [2] All ER 169)

37. Consequently any Notice served by the Claimant which referred to the alleged balance outstanding would be inaccurate and therefore invalid.

38. The Defendant does not know how all of the sums claimed have arisen

39. The Claimant has also disclosed copy statements however these statements have an opening balance of £*. They do not show how that earlier amount has been calculated. Further the statements show “Late fees”, and/or "Collection costs” for which there would appear to be no contractual basis. Consequently those fees are unlawful. Further the Defendant has no means of ascertaining whether the earlier sums have been validly accrued.

40. The Defendant avers that the clause in the alleged agreement under which the account charges have been imposed is, at common law, a penalty clause in that it does not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred.(Dunlop Co Ltd v New Garage Ltd [1915] AC 79)

41. The Claimant has not disclosed a copy of the original terms and conditions under which the default charges have been imposed. It is averred that before the court may assess whether the charges imposed are pursuant to a penalty clause that it must consider the position of the parties and indeed the agreement at the date of its’ inception) “The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of making the contract, not as of its’ breach” (per Lord Dunedin in Dunlop v New Garage)

42. The Charges referred to relate to a “late payment fee”, which is a standard fee of £15.00 imposed regardless as to whether the payment is one day late, or three weeks late or indeed never arrives. It is averred that in any event the claimant suffers no detriment in late payment in that it continues to charge interest at its’ contractual rate.

43. The second charge is a “collection cost” which is again charged as a standard fee, this time of £12.00. Again the fee is charged irrespectively and is punitive in nature and does not give a genuine pre estimate of the costs incurred by the claimant. Accordingly the Claimant must prove that the charge made is valid and lawful and is not penal in nature.

44. The determination as to whether a clause is penal in nature is not appropriate for a case management conference.

45. Further the Defendant avers that the clause under which the charges were imposed was an unfair term in a consumer contract and in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and by virtue of regulation 8(1) not binding on the consumer.

46. The Defendant refers to the Office of Fair Trading guidance issued in April 2006 in this regard and notes that following an OFT investigation into credit card default charges that the OFT concluded that many credit card charges were unreasonable.

47. The determination as to whether a charge is imposed pursuant to an unfair contract term is not appropriate for a case management conference.

48. The Defendant notes that at the date that the Claimant issued a Default Notice, that it was aware that the default charges were unlawful and notwithstanding that knowledge proceeded to include the same in the Default Notice.

49. The Claimant has relied upon a defective Default Notice allegedly issued under the terms of the Consumer Credit Act 1974.

50. The Claimant has registered the issue of that Default Notice in consequence of which the Defendant has suffered injury to credit.

51. Injury to credit is actionable without evidence of any specific loss - See Richard Durkin (Pursuer) v DSG Retail Limited & HFC Bank Plc (Defenders) – Aberdeen Sheriff Court 26th March 2008 which whilst a Scottish Case is directly based upon English Law and reviews the relevant authorities.

52. The Defendant therefore counterclaims for damages for injury to credit.

53. With regard the Witness Statement dated * received from the Claimant, it is unclear if the new Witness Statement replaces that dated * or is in addition to it.

54. With regards paragraph 2 of the Witness Statement dated *, due consideration should be given to the following paragraphs: According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (Section 222 (5)(b)). As a credit agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be 'live' until the account is paid or terminated - thus the full file should be retained for at least six years after the termination.

55. This interpretation is repeated by Inland Revenue Legislation that requires prime documents to be retained for six years - After the end of the relevant accounting period. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6).

56. In addition, key documents/application forms etc must be kept until five years after that business relationship has ended. This is a requirement of the Money Laundering Regulations 1993, 2003 and 2007.

57. With regards paragraph 3 of the Witness Statement dated *, the Courts attention is drawn to Practice Direction 32 and 33 and the requirements of the Civil Evidence Act 1995 Sections 2 and 8.

58. The Claimant has indicated that they do not have the Original documentation and has made no attempt to adduce hearsay evidence in accordance with the correct procedures referred to in 57 above.

59. In addition, the copy document which has been provided clearly states "on the terms set out below and overleaf". The 'overleaf' proportion of the alleged agreement which the Claimant has disclosed following the Order made by *, does not appear to correspond with the Document requested for the reasons outlined in the defence.

60. Should the Claimant aver that receipt of payments is an acknowledgement or admission of the debt, the Courts attention is drawn to paragraph 26 of the Judgement of Sir Andrew Morritt Vice Chancellor in the Court of Appeal Ruling of Wilson v First County Trust Ltd [2001] 3 All ER 229.

61. For the reasons outlined above the Court is invited to issue further directions or Orders in this case and to order that the Claimant pay the Defendants costs, to be summarily assessed in accordance with CPR 48.6.

I *, The Defendant, believe the facts stated in this document to be true.

Signed ..................... Date .....................

 

 

Regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Any comments on my Skeleton Arguement?

Going in the post tomorrow lunch....

 

Regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Thanks for your comments Magda.

 

Regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Hello StayingCalm,

 

If yours has been struck out, then I wouldn't worry too much at the moment. Just keep an eye on what comes through the post.

 

Regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Quick update.

 

Skeleton was sent in the post the other day.

 

Have today received a case summary from HC as follows. (so much for at least 7 days before the CMC)

---

The Claimant's claim is for the sum of £....

 

On .. the Defendant entered into a regulated agreement with .. for the provision of a .. storecard, agreement no....

 

On .. the account was assigned to CL Finance Ltd, notice of which was sent to Mr .. on ..

 

The Defendant had made a concessionary arrangement through the .. and payments were received until ...

 

On .. the Defendant was served with a Default Notice as he failed to pay in accordance with the terms and conditions of the agreement pursuant to Section 87(1) of the CCA 1974

 

The Defendant has stated in his amended defence that he neither admits nor denies the allegations made in the particulars of claim. On .. the Claimant's solicitors issued a request for information in accordance with Part 18 of the CPR, however Mr .. has in his witness statement dated .. failed to provide the information required. A copy of the documents are attached.

 

The Claimant contends that the Defendant is liable for the amount claimed.

 

The Defendant has failed to provide evidence detailing the reasons why he can neither admit nor deny ownership of the account. The Defendant has failed to quantify his counterclaim.

---

 

Any comments?..

 

Also see my earlier posts for the Skeleton and the reply to their CPR request.

 

Many thanks.

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

Link to post
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Any comments will be greatly appreciated

 

GD

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

Link to post
Share on other sites

Hi Ghostdebt, wouldn't take too much notice of their Case summary - you have countered their points in your skeleton argument anyway. The only point I would mention is your claim for damages (£10k?). The court will probably expect you to support this figure with some kind of breakdown (statement) showing how you arrived at this figure - has anything been given to the claimant along these lines, or just the overall figure? So might be worth drafting something and providing it as an attachment to the skeleton argument, which you can hand to the judge/solicitor on the day, or fax beforehand. Just a thought.

 

Apart from that, I guess it will all be down to the judge on the day now - hopefully you will get a good one.

 

Good luck with the CMC.

 

Magda

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Hi Magda,

 

Thanks for the reply. The counterclaim in the defence is worded as "not to exceed 10k". This amount is based on the fee to enter the counterclaim and also based on points 50/51 in the skeleton as repeated below.

 

50. The Claimant has registered the issue of that Default Notice in consequence of which the Defendant has suffered injury to credit.

51. Injury to credit is actionable without evidence of any specific loss - See Richard Durkin (Pursuer) v DSG Retail Limited & HFC Bank Plc (Defenders) – Aberdeen Sheriff Court 26th March 2008 which whilst a Scottish Case is directly based upon English Law and reviews the relevant authorities.

 

In Durkin v DSG they awarded over 8K and also refers to other cases such as Kpohraror v woolwich in which they awarded 1k+the amount of the default which in our case would be over 8k anyway.

 

Do you think it would still be prudent to send something to them explaining this or is it sufficient to rely on the statements in the defence and skeleton and the results of the cases referred too?

 

Many thanks

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

Link to post
Share on other sites
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