CL finance issue court claim after 6 days? on disputed account

[angel_1]

hiya mak71

 

continued good luck with this,,,, im learning from your thread

 

keep positive laters angel x

[creditcardmug]

The latest date to file is 2nd May, you need to send it by 27th April IMO.

[creditcardmug]

Hi, can you post up the POC please?

[mak71]

Heres the assignment notice which arrived the day after the court claim,and the poc

 

 

[Dorabell]

hi mak im reading your thread with interest good luck:)

[meerkatsmimm]

Hi,

 

I'm really interested in this as I CCA'd GE for my 3 accounts on 4th March - got a letter from them on 26th March saying that i no longer owed them any monies and as such they did not have to provide me with a CCA. If I wanted a CCA to contact CL Finance. Didn't say why I would need to contact CL just give me their address.

 

I've been away from home for a week or 2 - visiting family 600 miles from home for easter. I'm going back on Sunday and am now thinking I'll have a few court cases awaiting me!

 

Good luck and keep us up tp date when you get a chance.

 

meerkatsmimm xx

[mak71]

Hi, bump the thread over the weekend, i will sort out a defence, just remind me whats the date on the claim?

 

Hi again CCM, tried pm ,but your inbox is full, im hoping to get this defence in ,in tomm or Tuesday

still no response from Cohens re cpr request,

is a simple straight forward embarrassed defence letter now or do i have to raise the defence points in the poc as well,?

any help much appreciated

 

Mak

[creditcardmug]

Its ok im on it now, sorry had to work this weekend unexpectedly

 

How old is the account roughly?

 

Did you ever send a CCA request to GE, did you get a reply?

Edited April 19, 2009 by creditcardmug

[mak71]

Its ok im on it now, sorry had to work this weekend unexpectedly

 

How old is the account roughly?

 

Did you ever send a CCA request to GE, did you get a reply?

 

Thanks CCM,much appreciated

 

Acc roughly 5 years old,

yes got a cca request and sars from asda/ge,

only front page of an agreement containing no prescribed terms ,same document supplied in sars request too,

said on front page of agreement finacial details overleaf, however after chasing up the overleaf terms and conditions page they then sent a generic set of terms and conditions instead ,

On chasing up again for the copy of terms and conditions from my actual agreement not a generic set,asda admitted over the phone that they no longer had the original agreement just a copy of the front page

 

Defaulted the account, DN, gave 21 days to rectify insteaed of specifying date,

and then the recent assignment which Cohens started court action with before i even received the letter of assignment,no contact or LBA was made by cohens to me prior to issuing court proceedings which i believe breaks pre court protocol,.

and now they have failed to reply to my crp request,

 

Mak

Edited April 19, 2009 by mak71

[creditcardmug]

Hi, have a read of this, see what you think...you may wish to put a little more meat on the bones of 9/10/11

 

 

 

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxxxx - Claimant

 

and

 

 

xxxxxxxxxxxxx - Defendant

 

 

Defence

 

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

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

d) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

e) It is denied the claimant may claim contractual interest since the claimant has failed to produce any valid contract

 

 

f) ) The claimant did not send a Letter Before Action as required under the Pre-Action Protocols. Indeed the claimant has embarked on this action just 6 days following the alleged assignment

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

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 Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

 

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 build up to this action

 

9. In the build up to this action, on the DATE I wrote to xxxxxxxxxxxx requesting a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

( letter attached marked Exhibit A)

xxxxxxxxxxxxxxxx replied to my request on the DATE supplying an Application Form without any prescribed terms. ( letter attached marked Exhibit B)

 

10. I wrote to xxxxxxxxxxxxxx setting out the facts that the document supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and requested that they supply the required documents.

 

11. On DATE I wrote to the claimant requesting information pursuant to CPR 31.14 to date the claimant has failed to respond to my request

 

12. The courts attention is drawn to the fact that the without disclosure of the documentation the claimant appears to be relying upon, I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). 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

 

 

13. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 12 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). 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

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

 

14. 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."

 

15. 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

 

16. Notwithstanding points 12 and 13, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

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

 

 

18. . Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal

 

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

19. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

 

20. Notwithstanding point 19, 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)

 

21. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

Conclusion

 

22. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

23. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

24. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

25. Alternatively, Should the court order the claimant to produce the nessecary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

 

 

 

 

 

 

 

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................

 

Date

Edited April 19, 2009 by creditcardmug

[mak71]

CCM, looks great thanks,

just 2 queries, 4(d) says i deny any assignment notice has been served,

But i have had an assignment notice,it came the day after the court claim, and cl finance/howard cohen are aware of this,and admitted they sent it standard post,

 

 

Also do i just print it off once ammended with my personal details, dates etc and send to northampton county court bulk centre,

Is there any other official forms i have to attach,?

 

Thanks

Mak

[creditcardmug]

I would leave 4d as is...they should have served it by registered post...and you need strict proof of service..you would also require one from the original creditor as well IMO

In any case in the next stage AQs, we will require sight of the "deed" of assignment as well.

 

yes fill in the dates and xxxxs etc, print it off, send it by SD to Northampton court, with the attachments, you can just attach the form in the claim pack which you would have written your defence on, (just put see defence attached), although you dont have to send it.

 

Dont bother sending a copy to the other side

 

Keep updating with further developments

[Gazza112]

Hi mak & CCM

 

CL Finance done the same with me with the Assignment.

I only received one assignment letter from the original creditor.

They must do this with everyone.

 

Gaz

[mak71]

I would leave 4d as is...they should have served it by registered post...and you need strict proof of service..you would also require one from the original creditor as well IMO

In any case in the next stage AQs, we will require sight of the "deed" of assignment as well.

 

yes fill in the dates and xxxxs etc, print it off, send it by SD to Northampton court, with the attachments, you can just attach the form in the claim pack which you would have written your defence on, (just put see defence attached), although you dont have to send it.

 

Dont bother sending a copy to the other side

 

Keep updating with further developments

 

Thanks CCM, will do:)

Mak

[mak71]

Sent my defence in early last week, been confirmed as delivered by royal mail,

 

However on Friday, i received a letter from Cohens,with a copy of my agreement, (yes the same unenforcable one asda/ge sent me, which is a pre contractual application form with no prescribed terms):Dand which asda/ge have already confirmed is not the original, just a copy from computer as they cant locate the original;)

 

And also a another letter in the same envelope from cohens saying when the default notice was issued,

Its not a copy of the actual default notice, just a typed letter,And bizzarly both the date and amounts are wrong,as i still have my copy of the original and they dont match ?

 

Is this cohens idea of a cpr request,?

Does their mistake with date and amount on the alledged DN dig an even bigger hole for them now?

 

Mak

Edited April 26, 2009 by mak71

[creditcardmug]

Hmmm, well its not going to do them any good that's for sure...the main point is they haven't complied with your request.

So its a waiting game now to see if they want to take this any further

[guzzleguts]

Hi mak

 

They treated my Cpr request as a CCA request, sending me a copy of the microfiche application form and a statement of account, they are a complete JOKE!

 

GG

[mak71]

Still not heard nothing from howard clowns & co

 

My defence was submitted end of April, I have not heard a dicky bird since, and still no cpr response

checked the online court claim status via the court site, no update there either,

Tried ringing the court, does anyone ever answer the phone there?

Ive tried about a dozen times the last 2 days and all i get is the silly pre rec orded message, we know your waiting blah blah , after 10 mins i end up putting phone down in frustration,

 

How long does it take the court to update the online status of a claim?

Do cohens have 28 days to state their intentions + 5 for service?

[Gazza112]

Still not heard nothing from howard clowns & co

 

My defence was submitted end of April, I have not heard a dicky bird since, and still no cpr response

checked the online court claim status via the court site, no update there either,

Tried ringing the court, does anyone ever answer the phone there?

Ive tried about a dozen times the last 2 days and all i get is the silly pre rec orded message, we know your waiting blah blah , after 10 mins i end up putting phone down in frustration,

 

How long does it take the court to update the online status of a claim?

Do cohens have 28 days to state their intentions + 5 for service?

 

Hi Mak

 

If anything to go by on mine you wont hear anything from them, on replying to your cpr.

I know it's hard but it's just a waiting game and i wouldn't worry to much.

At the end of the day its they that need to prove they own the dept not you.

I've got two Court claims going on at the moment with these morans.

But did receive a letter today trying to bribe me into taking a 50% discount on one of the claims.

But they can go to Hell, they brought the case to Court lets see what they do when there in Court.

 

Gaz

[creditcardmug]

It will be automatically stayed by now, you can either play the waiting game, or make a formal application to the court to have their claim struck out

[angel_1]

Gosh mak and all

 

so this is where you are now,,,,hope you get the best result keeping everything crossed:lol:

 

keep positive laters angel x

[diddydicky]

precisely - if they try to take you to court without having sent you the NOA by recorded or special delivery then they won't have a leg to stand on - they don't have locus standi

 

 

 

Absolutely nothing to stop them from assigning the debt to another creditor whatsoever.

 

There are some guidelines about not using debt collection agencies (or their own debt collection depts) while a debt is being disputed but there is absolutely nothing against them selling the debt to another company at any stage whatsoever

 

personally i would make no reference whatsoever to this telephone call- as far as the court is concerned (if it gets that far) you were totally unaware of any notification from your creditor that the debt had been sold

 

in general any tom dick or harry could write to you and tell you that they have purchased a debt from one of your creditors- it means diddly squat

 

as does the suggestion that the assignee has informed you on the permission of the assignor (since you didn't get told by the assignor that he gave the assignee permission to contact you on their behalf)

[diddydicky]

Hi Mak

 

If anything to go by on mine you wont hear anything from them, on replying to your cpr.

I know it's hard but it's just a waiting game and i wouldn't worry to much.

At the end of the day its they that need to prove they own the dept not you.

I've got two Court claims going on at the moment with these morans.

But did receive a letter today trying to bribe me into taking a 50% discount on one of the claims.

But they can go to Hell, they brought the case to Court lets see what they do when there in Court.

 

Gaz

 

A Defendant faced with a Claimant who declines to deal with his CPR 31.14 obligations promptly (ie within 7 days of the request) may file an application with the court in Form N244 for an appropriate order.

 

The following text is fom a post I made in wakeywakey's thread entitled: 'Marlins/Arrow Global have no CCA-Now what?' and deals with the completion of the N244 for an appropriate order folowing a Claimant's failure to comply with a CPR 31.14 request.

 

In box [3] of the N244 write:

 

'An order that unless within 14 days of the making of an order upon this application the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [1] the agreement [2] the default notice and [3] the assignment, the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court with the costs of this case to be paid by the Claimant to the Defendant to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

The application is made because of the Claimant's refusal to comply with the Defendant's CPR 31.14 request and the documents are required owing to [here add any special feature or requirement of the case] and to enable the proper preparation of a Defence.'

 

In Box 4 write: 'Yes'

In Box 5 write: 'Without a hearing'

Ignore Box 6

In Box 7 write: 'None'

In Box 8 write: 'District Judge'

In Box 9 write: 'Claimant'

In Box 10 tick the box marked 'the evidence set out in the box below' and beneath it write:

 

'On (date), following service of the Claim Form in this case, I wrote to the Claimant requesting inspection of documents mentioned in the Particulars of Claim pursuant to CPR 31.14. A copy of my letter of request is attached to this application notice marked 'A'.

 

The following is the text taken from my wakeywakey post but hopefully will assist with a gist of the sort of thing to say:

 

[The Claimant replied by letter dated (date) rejecting my request on the ground it had no obligation to comply. A copy of this reply is attached to this application notice marked 'B'.

 

The agreement relied upon by the Claimant is now very old. The documents sought by my request are essential for the proper preparation of my defence and the determination of the claim and CPR 31.14 afford me a right to inspect those documents.']

 

Sign the statement, attach the copies and complete the remainder of the N244 in the usual way applicable to your case.

 

On a separate piece of paper to be attached to your application notice, write this:

 

Claim No:

Draft Order

 

1 Unless by 4:00pm on (date) the Claimant complies with a request made by the Defendant on (date) pursuant to CPR 31.14 by the provision to the Defendant of documents mentioned in the Particulars of Claim, namely [here list the documents sought in the CPR 31.14 request for example, [1] the agreement [2] the default notice and [3] the assignment,]

the claim shall stand struck out and the Defendant shall be at liberty to enter judgment against the Claimant without further order of the court, and

[ii] the Claimant shall pay the Defendant his/her costs of this case to be assessed on the standard basis and pursuant to the provisions of The Litigants in Person (Costs and Expenses) Act 1975.

 

2 In the event that the Claimant shall comply with this order,

the Defendant shall file and serve a Defence by 4:00pm on (date) and

[ii] the Claimant shall pay the Defendant his/her costs of this application [in any event] [assessed in the sum of £130.00]

 

The fee payable to the court on filing this application is presently £75.00.

 

Hope this helps.

 

x20

[mak71]

Thanks guys/girls,

Is there any benefit in getting their claim struck out rather than just waitng ,?

Am i pretty safe of getting my £75 fee back if i take the route of striking their claim out?

 

Mak

[diddydicky]

from my (unqualified) research (in preparation) it seems that courts are VERY reluctant to issue strike out orders and even after an unless order they quite often give the offending creditor even more time

 

take it one step at a time and apply for the unless order first is my advice