Urgent - need to file defence for CL/Howard Cohen Claim

[miss trollope]

Apologies for starting a new thread but the other one is being ignored. I need to file my defence by next Tuesday and as I am new to all this I would appreciate it if someone who knows what they are doing could spare a few seconds and let me know if this is ok.

 

Many thanks

 

Miss T x

 

1 Miss Trollope of Trollopeville 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 claimant's Particulars of Claim and put the claimant to strict proof thereof.

 

3. It is denied that the Claimant served upon the Defendant a default notice pursuant to section 87(1) of The Act and which was in prescribed form and compliant with the provisions of section 88 of the Act.

 

4. The Claimant's Particulars of Claim do not appear to disclose any 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 with CPR part 16. In this regard I wish to draw the court's 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 required for the Claimant to have a legitimate right of action under the purported written Agreement 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 the purported Default Notice cited in the Particulars of Claim, and as required by s87(1) Consumer Credit Act (1974), has not been attached to the claim form;

 

d) No copies of statements relating to the Agreement have been included with the claim form and no particulars have been offered supporting the Claimant's claims of my indebtedness to them.

 

5) It is not admitted that the alleged debt was lawfully assigned to the claimant. The claimant is put to strict proof that such alleged agreement was lawfully assigned.

 

6) The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor. Section 196(4) prescribes the requirements for giving sufficient notice by post.

 

7) It is denied that a valid Notice of Assignment was sufficiently served on me using a registered postal service pursuant to s196(4) before court action was commenced. The Claimant is put to strict proof that any valid notice of assignment was sufficiently served on me. Without this proof, the Claimant has no right of action.

 

8. Further to the case, on 29 April 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.

 

9. The claimant has failed to comply with my request for disclosure entirely and it is suggested that such failure highlights that there is no case for me to answer.

 

10. Since the claimant has failed to comply with the request for disclosure as outlined in point 4, it is requested the court consider striking out the claimant statement of claim as failing to disclose reasonable grounds for bringing the claim and there is no case to answer.

 

11. In view of the matters pleaded above, the Defendant respectfully requests that the Court gives consideration as to whether the Claimant’s Particulars of Claim should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

12. In the alternative if the Court decides not to strike out the Claimant’s case, in order for the Defendant to determine that the documents the Claimant claims to be relying upon are properly executed and contain the required prescribed terms and correct figures as to make such an Agreement enforceable by virtue of s.87 Consumer Credit Act (1974), the Defendant respectfully requests that the Court orders full disclosure of the following documents pursuant to the Civil Procedure Rules:

 

a) A copy of the executed Agreement as referred to in the Particulars of Claim, containing the prescribed terms under Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and signed in the prescribed manner by both the debtor and creditor;

 

b) A copy of the terms & conditions as referred to in, and in force at the time of, any such executed Agreement;

 

c) A full breakdown of how the sum claimed has been calculated;

 

d) A copy of any Default Notice as referred to in the Particulars of Claim and issued under the terms of any such executed Agreement;

 

e) Any other documents the Claimant seeks to rely on.

 

13. Alternatively, if the Court is not in agreement with point 11, I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in point 12 above or until the Court orders its compliance with the same. I will then be in a position to file a fully particularised Defence and Counterclaim and will seek the Court's permission to amend my statement of case accordingly.

 

Original thread is here http://www.consumeractiongroup.co.uk/forum/legal-issues/196793-county-court-claim-form-2.html

[mandyjayne]

Bump for Miss. T!

 

Sorry not at liberty to comment on weather this is ok! but..

 

I am looking for a defence at the mo ..this could be for me also..good luck will keep looking for update

[diamondgirl]

It looks ok to me but I'm not that up on defence (still learning a lot) I had a lot of help from everyone when I did mine (WE managed to get it struck out)

The more you say in your defence on things they haven't supplied you with the better.

At the end of the day it depends on the judge.

Being the bank holiday the advice may be bit on the slow side.

I'll sub on your other thread in a minute and have a read through.

DG:)

[creditcardmug]

can you post up or type the POC?, and what date is on the front of the claim form?, who is the claimant as on the claim form?

[miss trollope]

Hi sorry for the delayed response not been up to much the last few days

 

the POC is:

 

Particulars of claim:

'The Claimant's claim is for the sum of 1703.82 being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and GE Capital Bank Limited under reference **************** and assigned to the Claimant on the 19th February, 2009 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 1703.82.'

 

and the date on the form is 27 April 2009

[creditcardmug]

I take it you havent filed a defence yet?, you have until friday by my reckoning

[miss trollope]

No not yet, it is still open on the online form so I would like to do it today if poss.

[ncf355]

Hi,

 

looks spot on perfect to me, I would just add a request that the court order disclosure of the deed of assignment/sale agreement between GE and CL

 

Get it in!

[miss trollope]

Thanks it's already gone, so I can't get that bit added now

 

Oh well let's see what happens!

[miss trollope]

Got a letter from HC today:

 

Dear Miss Trollope,

 

We refer to the above matter.

 

In particular, we refer to the defence which you have filed in this matter.

 

Find enclosed statements, default notice and original agreement forwarded from our client.

 

Therefore, we now invite you to withdraw your defence and contact the above office within ten days from the above date to discuss repayment of the outstanding debt by way of monthly instalmenmts (sic).

 

If you fail to do so, we will have no alternative but to progress this claim to a small claims hearing where a District Judge will determine the outcome and you may become liable for further costs.

 

We trust this clarifies the position and look forward to your reply.

 

Aren't they a card! The agreement is completely illegible so there is no point in even scanning it in here. As if I am going to unwittingly contract with them by offering to pay! I got the following letter off 'getoutofdebfree.org' so will be sending it off, if anyone has any other suggestions all will be gratefully received. I left off the bit about contacting me by phone as they haven't done that yet.

 

Dear Howard Cohen & Co,

 

Thank you for your recent letter dated 29 June 2009.

 

Please provide verification of your claim, including a lawful contract (that is legible); a hand signed invoice in accordance with The Bills of Exchange Act 1882 and proof of agency within ten (10) days from the above date so that I may settle any financial obligation I might lawfully owe. Your said failure to provide verification of your claim constitutes your agreement to the following terms:

 

• that you are a third party interloper;
  
• you have no legal standing;
  
• no first-hand knowledge of this matter;
  
• your claim is fraudulent;
  
• any damages I suffer, you will be held culpable;
  
• that any negative remarks made to a credit reference agency will be removed ;
  
• you will no longer pursue this matter any further.
  

Should you provide sufficient evidence that I owe your organisation or your client any outstanding amount and that you can provide proof that they have assigned you agency, I should be happy to pay any verified claim in full.

 

Miss T x

[miss trollope]

Just noticed it's been 32 days since I submitted my defence - does that mean they are out of time?

[miss trollope]

And another thing - the claimant is allegedly CL Finance yet the agreement is between myself and Debenhams.

Edited June 30, 2009 by miss trollope
CL is allegedly the claimant not the defendant - doh!

[AndyOrch]

And another thing - the claimant is allegedly CL Finance yet the agreement is between myself and Debenhams.

 

Hi Miss T

 

The debt was assigned to to the Claimant 19th Feb your agreement was with Debs who are infact GE Capital.Did you ever recieve a NoA (Notice of Assignment from your Creditor or CL Finance?

Did you make reference to this in your CPR or defence?

 

With regards to your other point once you submit a Defence the Claimant as 28 days to respond failure will lead to the claim being stayed untill such time the Claimant pays to revive the claim and proceed.At his time you will recieve a AQ (Allocation Questionnair) this transfers the claim to your local CC and the claim proceeds.

 

Regards

 

Andy

[creditcardmug]

Just noticed it's been 32 days since I submitted my defence - does that mean they are out of time?

 

Phone the court for an update

[I've got no money]

Just noticed it's been 32 days since I submitted my defence - does that mean they are out of time?

 

 

It just means that the case will be stayed, put on hold, until they tell the court that they want to proceed...