Court Case #4 - CL Finance (GE Money) **WON - CASE THROWN OUT**

[Luxxinterior]

What date was the claim issued.

What's the date on the NoA?

 

Do you remember which arrived first?

 

Did you ever recieve a letter informing you the account had been sold to Santander? The letter from Viking references GE Money and that's dated 11/05/09 - so some time after that it was sold to Santander and then sold to CL Finance. (and court claim issued all in the space of a month).

 

Termination doesn't really matter as CL Finance don't hold a Consumer Credit License so if the account isn't terminated they have committed a criminal offence.

 

Ok...

Claim was issued on the 8 June

 

NOA was issued on the 5th June by Howard Cohen, it also stated on the same document that a Claim was also submitted to the County Court on the 5th too

 

Back in the day GE money did inform us that they were being replaced by Santander...but that was last year sometime.

 

Now that you mention it...I have no idea who CL Finance are??? I certinly have no letters from them :O

 

All the Viking letters refer to GE MONEY...not Santander and certainly no mention of CL Finance until I received the Claim form...

 

So who the Hell is bringing me to Court and why? lol

 

Sweet!!! ...How the hell am I supposed to build a defence on those apples?

[Luxxinterior]

Hmm abuse of cpr process there, a notice of assignment which combines with a county court claim at the same time... whatever happend to the good old letter before action? anyway:-

 

Agreement will be enforceable

 

default notice very questionable on the days to rectify, any unfair charges on the account making the amount suspect?

 

I would ask where clause 7 is on the agreement they have sent you... without it how can they say they are entitled to contractual interest on the balance.

 

NofA, not normally my thing.. surprised on the combo NofA and court claim notification at same time, as I said above normally they should give you a warning before taking you to court. Should bugger up any application they make for costs anyway.

 

S.

 

Hi Shadow.... Here is Clause 7 ... I dont really understand it, so cannot say whether it is correct?

 

26.478% interrest? ...no mention of that on there :O

Clause7.pdf

[the_shadow]

Hi Shadow.... Here is Clause 7 ... I dont really understand it, so cannot say whether it is correct?

 

26.478% interrest? ...no mention of that on there :O

 

Cheers, can see what they are attempting to do here..

 

You'll need confirmation but I dont think they are entitled to that interest. You signed a contract with GE for the card and to pay interest, they sold a bulk debt to CL finance not an ongoing account hence any contractual terms should only bind you to GE not CL finance.

 

S.

[Luxxinterior]

Ok this is just my opinion,

 

I dont think you can class the agreement as illegible, I can clearly read the prescribed terms and if its your signature on the page 1 then I class it as enforceable although :-

 

1) Was this signed for on the business address or did you post it back to them, there is no right to cancel box which whilst not a prescribed term its prejudicial against you.

 

2) It looks like microfiche and the court might not give the same weight to it or even accept it (down to judge lottery)

 

3) The Default Notice as you say doesnt contain a rememedy date, it alludes to a date, again this will be down to judge lottery

 

4) NofA from DCA and claim, this is a clear abuse of the court process but I dont think they'll be sanctioned for it, most that will happen is if they apply for any type of court costs you state they didnt forewarn you about court action and hence have gone against CPR where clearly a LBA should have been issued.

 

5) No NofA from Santander, this is worth arguing about as far as I'm concerned, you had a debt, it was sold and you were not advised, the other firm came asking you for money. It could have been anyone, you werent to know the debt had been sold. by the law of property you should have been told. Are you SURE you received no letter stating your account was migrated?

 

6) The POC's claim that you had an agreement with Santander UK, this is factually incorrect as I see it and it should mention that the agreement was made with GE Money. You could possibly apply for strike out on this basis but the claimant can adjust the POC's with the courts permission.

 

As ever just my opinion.

 

S.

 

Just Realised, I never actually answered any of the questions lol

1) This Storecard agreement was signed on the premises...

 

5) I kept every letter as I knew I would need them...deffo no notifice of assignment from Santander

 

So from what I can make out, the following are my main points

 

1) Default Notice - Invalid

2) Termination Notice - Did not receive one

3) No NofA from Santander to CL Finance

4) Howard Cohen - NofA combined with Claim Notice not giving me any time to rectify the situation

5) POC is innaccurate as it states Agreement was with Santander when it was actually with GE.

 

Where does VIKING fit into all of this? They kept sending me letters too lol...

 

I am a bit confused, and I need to get this off on Friday latest to get to Northampton on Monday.

 

Oh Yeah...#

6) then theres the bit about the interest right?

 

Regards

[the_shadow]

Just Realised, I never actually answered any of the questions lol

1) This Storecard agreement was signed on the premises...

 

5) I kept every letter as I knew I would need them...deffo no notifice of assignment from Santander

 

So from what I can make out, the following are my main points

 

1) Default Notice - Invalid

2) Termination Notice - Did not receive one

3) No NofA from Santander to CL Finance

4) Howard Cohen - NofA combined with Claim Notice not giving me any time to rectify the situation

5) POC is innaccurate as it states Agreement was with Santander when it was actually with GE.

 

Where does VIKING fit into all of this? They kept sending me letters too lol...

 

I am a bit confused, and I need to get this off on Friday latest to get to Northampton on Monday.

 

Oh Yeah...#

6) then theres the bit about the interest right?

 

Regards

 

Viking's address is the same as GE Money, I'd say its possibly an internal DCA?

 

Why they are chasing you for monies when a claim has been put into court and supposedly assigned to CL Finance god only knows. Complaint to the OFT possibly

 

S.

[someone_else]

Where are you upto with this case?

 

Have you sent off a CPR request for documents?

 

If you are at the initial first defence stage (before the AQ) it might be best to just submit an embrassed defence.

[Gazza112]

Subbing with Interest

[the_shadow]

Ok this is very confusing...

 

Personally I'd say your defence needs to basically deny the debt is owed to CL Finance and therefore they have no standing before the court or right of action, they state an agreement with Santander was allocated to them, you have no knowledge of any agreement with Santander.

 

Whats confusing me is why is the GE Money internal DCA chasing you for payment at the same time I assume they instructed? the DCA CL Finance to chase you with legal action?

 

I'm going to go back to the docs and take another look.

 

S.

[the_shadow]

Ok so to clarify for everyone, timeline is:-

 

Original agreement with GE Capital

Default from GE but not giving a date to rectify, "21 days from receipt of letter"

NO notification of new owner of cards (Santander)

CL say assigned debt from Santander cards on 3rd June

CL Own debt and issue NofA combined with notice of legal action

CL instructed HC & Cohen to issue claim

Viking Direct continue to chase for debt (even though sold to CL Finance)?

 

 

Is that about the size of it?

 

S.

[Luxxinterior]

Ok so to clarify for everyone, timeline is:-

 

Original agreement with GE Capital

Default from GE but not giving a date to rectify, "21 days from receipt of letter"

NO notification of new owner of cards (Santander)

CL say assigned debt from Santander cards on 3rd June

CL Own debt and issue NofA combined with notice of legal action

CL instructed HC & Cohen to issue claim

Viking Direct continue to chase for debt (even though sold to CL Finance)?

 

 

Is that about the size of it?

 

Hi Shadow...

I have being trying to simplify this in my head as much as possible...heres what i have so far

 

1) the POC

-They claim the agreement was between myself and Santander.

We know that is not true, but GE changed hands to Santander...not sure if that is a major deal?

 

- They state that the account was assigned to CL Finance on the 3rd and that I was notified.

Rubbish!! Howard Cohen letter dated the 5th was the first I heard of this. There could not have been a NOA in 2 days before the Solicitors took over... So I have never heard from CL Finance EVER!!!

 

2)The Default Notice

- Issued on the 16/2/09.. invalid due to not stating a date etc

 

no TERMINATION NOTICE ever received

 

3)Various letters from Viking between the 21/4/09 and the 11/05/09

- No NOA from GE Money this was happening (Santanderhad not taken over at this stage)

 

4) First I heard from Santander was on the 28/05/09 responding to my request for my CCA which they sent me.

- It appears to be enforceable

 

5)Howard Cohen - 05/06/09

- NOA - States that on the 3rd (2 days earlier) Santander assigned the account to CL Finance. I did not receive andy NOA from them directly, this NOA from Cohens was the first I heard of it.

 

They also announced on the same NOA that they had submitted a claim to the Court...No chance to remedy the sitaution...just straight for the jugular!!

 

 

NOTHING FROM VIKING SINCE 11/05/09

 

That is as much as I have so far!

 

Regards

[Luxxinterior]

Ok so to clarify for everyone, timeline is:-

 

Original agreement with GE Capital

Default from GE but not giving a date to rectify, "21 days from receipt of letter"

NO notification of new owner of cards (Santander)

CL say assigned debt from Santander cards on 3rd June

CL Own debt and issue NofA combined with notice of legal action

CL instructed HC & Cohen to issue claim

Viking Direct continue to chase for debt (even though sold to CL Finance)?

 

S.

 

I have been looking around and found the following from 42man... I was going to include it in my defence as it seems quite apt! It is about the Default Notice and the NOA

 

DEFAULT NOTICE

 

The Need for a Default notice

 Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

 It is 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

 Notwithstanding the above points, 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)

 Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

 Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim, /at all. It is averred that the Claimant has failed to serve a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt. The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. 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 notice 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

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was "sent" it is assumed that this was done via the postal service.

 

The requirements for service via the post are

 

Law Of Property Act (1925) s196

.

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if "sent" via any other method, the notice was not sufficiently served

 

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

 

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

 

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the claim, and therefore any assignment has not been perfected in law.

 

 

By the way...

Thanks for all your help... and thanks for taking such a keen interest great to know that there is help out there.

Edited July 8, 2009 by Luxxinterior

[Luxxinterior]

Ok so to clarify for everyone, timeline is:-

 

Original agreement with GE Capital

Default from GE but not giving a date to rectify, "21 days from receipt of letter"

NO notification of new owner of cards (Santander)

CL say assigned debt from Santander cards on 3rd June

CL Own debt and issue NofA combined with notice of legal action

CL instructed HC & Cohen to issue claim

Viking Direct continue to chase for debt (even though sold to CL Finance)?

 

 

Is that about the size of it?

 

S.

 

Hi,

I have tried to formulate a defence as best I can ...here it is. Can you take a look when you get a chance please?

If anyone has any more ideas or contributions, that would be great ..or if it is just plain ****, please tell me lol

I need to send this off first thing tomorrow so hopefully its ok.

 

IN THE XXXXXX COUNTY COURT

CLAIM NO. XXXXXXX

 

Between

 

CL Finance Ltd

Claimant

and

 

XXXXXXXXXX

Defendant

 

 

 

_________________________ _________________________ _

 

DEFENCE

 

_________________________ _________________________ _

1. I XXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Ltd

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. The Particulars of Claim are Inaccurate

a. The Claimant Claims that there is a "regulated credit agreement between the Defendant and Santander Cards UK."

This is incorrect as the Claimant will know that the regulated Credit Agreement exists between the Defendant and GE Money.

b. As no agreement between Santander and the defendant exists, there is no case to answer.

c. The Defendant puts the Claimant to strict proof that there exists an agreement between Santander Cards UK and the Defendant as cited in the Particulars of Claim.

d. Should the Claimant be unable to provide proof such an agreement exists, the Defendant respectfully requests that the case be struck out.

e. The Claimant also claims "Contractual Interest at a rate of 26.478%". As any alleged Contract should now have been terminated, the Claimant is not entitled to Contractual Interest as a result

4. 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;

The Need for a Default Notice

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

a. Notwithstanding the above point, 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)

b. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

c. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

5. A copy of any Termination Notice as required by s98(1) Consumer Credit Act (1974), has not been attached to the claim form;

The Termination Notice

It is denied that the Claimant has ever served upon the Defendant a Termination Notice pursuant to s98(1) of the Act.

s98.

Duty to give notice of termination

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination.

(2) Subsection (1) applies only where—

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1), but so applies

notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such

steps as may be necessary to make the restriction or deferment effective.

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the

agreement

6. A copy of any Notice of Assignment as required by 136(1), of the Law of Property Act 1925 has not been attached to the claim form;

The Notice of Assignment

a. It is denied that the Claimant has ever served upon the Defendant a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt which occurred between the original Claimant, GE Money, and Viking Collection Services LTD

b. It is denied that the Claimant has ever served upon the Defendant a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt which occurred between Viking Collection Services LTD and CL Finance LTD

The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. 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 notice 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

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was "sent" it is assumed that this was done via the postal service.

The requirements for service via the post are

Law Of Property Act (1925) s196

 

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if "sent" via any other method, the notice was not sufficiently served

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the claim, and therefore any assignment has not been perfected in law.

 

 

The defendant respectfully requests that the claim is struck out as there are no grounds for bringing the case before the court.

I XXXXXXXX, believe the above statement to be true and factual to the best of my knowledge

 

 

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

 

Date : 09/07/09

[Luxxinterior]

Where are you upto with this case?

 

Have you sent off a CPR request for documents?

 

If you are at the initial first defence stage (before the AQ) it might be best to just submit an embrassed defence.

 

Hi I have just posted what I have for a defence so far

[guzzleguts]

Hi L

 

I am little further down the road than you, on your terms around 17 or 18 does it say that this agreement is only binding when signed by you and GEMONEY or something like that. I know the judge can still enforce the contract but it shows what a bunch of incompetent idiots they are.

 

Exactly the same DN as mine totally invaid in CCM's opinion which is good enough for me. Here is a link to my thread it may help.

 

GG

 

Help with cca?/GE money. (1 2 3 4 5 ... Last Page)

guzzleguts

[someone_else]

I don't think the Termination Notice bit (s98 ) applies as that is only for cases where the account isn't in default. (If in default it's a DN under 87/88 if not in default its a TN under s98 ).

[Luxxinterior]

I don't think the Termination Notice bit (s98 ) applies as that is only for cases where the account isn't in default. (If in default it's a DN under 87/88 if not in default its a TN under s98 ).

 

Hi Someone else,

Can it be in default if the default notice is invalid? Im not sure it can be.

 

I am just amending my defence to include invalid CCA too. Although they have provided a nice microfiche of the front of the agreement, the copy of the back... t&c's is not from the original agreement at all!

I do not believe they have the original, otherwise they would have produced it right?

 

Regards

[Luxxinterior]

Ok so to clarify for everyone, timeline is:-

 

Original agreement with GE Capital

Default from GE but not giving a date to rectify, "21 days from receipt of letter"

NO notification of new owner of cards (Santander)

CL say assigned debt from Santander cards on 3rd June

CL Own debt and issue NofA combined with notice of legal action

CL instructed HC & Cohen to issue claim

Viking Direct continue to chase for debt (even though sold to CL Finance)?

 

 

Is that about the size of it?

 

S.

 

Hi Shadow,

Would you be free to check out my amended defence?

Any last minute advice would be appreciated

 

 

IN THE XXXXXX COUNTY COURT

CLAIM NO. XXXXXXX

Between

CL Finance Ltd

Claimant

and

 

XXXXXXXXXX

Defendant

_________________________ _______________________ _

 

DEFENCE

_________________________ _________________________ _

1. I XXXXXXX am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Ltd

 

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. The Particulars of Claim are Inaccurate

a. The Claimant Claims that there is a "regulated credit agreement between the Defendant and Santander Cards UK." This is incorrect as the Claimant will know that the regulated Credit Agreement exists between the Defendant and GE Money.

 

b. As no agreement between Santander and the defendant exists, there is no case to answer.

 

c. The Defendant puts the Claimant to strict proof that there exists an agreement between Santander Cards UK and the Defendant as cited in the Particulars of Claim.

 

d. Should the Claimant be unable to provide proof such an agreement exists, the Defendant respectfully requests that the case be struck out.

 

e. The Claimant also claims "Contractual Interest at a rate of 26.478%". As any alleged Contract should now have been terminated, the Claimant is not entitled to Contractual Interest as a result

 

f. Clause 7 which the Claimant cites in the Particulars of Claim, which is supposedly contained within the terms and conditions upon which the Claimant relies on to support the claim for contractual interest, is inaccurate. The Claimant has supplied a copy of terms and conditions which do not form part of the original agreement, therefore their claim for interest should be ignored by the court, and the Credit agreement therefore unenforceable.

 

4. 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;

 

The Need for a Default Notice

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

a. Notwithstanding the above point, 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)

 

b. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

 

c. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

5. A copy of any Termination Notice as required by s98(1) Consumer Credit Act (1974), has not been attached to the claim form;

 

The Termination Notice

It is denied that the Claimant has ever served upon the Defendant a Termination Notice pursuant to s98(1) of the Act.

s98.

Duty to give notice of termination

(1) The creditor or owner is not entitled to terminate a regulated agreement except by or after giving the debtor or hirer not less than seven days’ notice of the termination.

(2) Subsection (1) applies only where—

(a) a period for the duration of the agreement is specified in the agreement, and

(b) that period has not ended when the creditor or owner does an act mentioned in subsection (1), but so applies notwithstanding that, under the agreement, any party is entitled to terminate it before the end of the period so specified.

(3) A notice under subsection (1) is ineffective if not in the prescribed form.

(4) Subsection (1) does not prevent a creditor from treating the right to draw on any credit as restricted or deferred and taking such

steps as may be necessary to make the restriction or deferment effective.

(5) Regulations may provide that subsection (1) is not to apply to agreements described by the regulations.

(6) Subsection (1) does not apply to the termination of a regulated agreement by reason of any breach by the debtor or hirer of the

agreement

 

6. A copy of any Notice of Assignment as required by 136(1), of the Law of Property Act 1925 has not been attached to the claim form;

The Notice of Assignment

a. It is denied that the Claimant has ever served upon the Defendant a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt which occurred between the original Claimant, GE Money, and Viking Collection Services LTD

b. It is denied that the Claimant has ever served upon the Defendant a Notice of Assignment in accordance with section 136(1), of the Law of Property Act 1925, in respect of the alleged debt which occurred between Viking Collection Services LTD and CL Finance LTD

 

The amount detailed in the Claimant’s claim, which is likely to include penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable. 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 notice 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

2 -Perfection of the assignment.

 

2.1. I have never received a notice of assignment according in all respects with s136 of the Law of Property Act 1925

 

2.2 I respectfully submit to the court that steps to ensure service of a notice of assignment are only adequate if the requirements of s196 of the law of property act 1925 are complied with regard to either (a) personal service or (b) postal service.

 

2.3 Since the claimant explicitly states the notice was "sent" it is assumed that this was done via the postal service.

The requirements for service via the post are

 

Law Of Property Act (1925) s196

Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned by the postal operator (within the meaning of the Postal Services Act 2000) concerned undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

3.2 - It is noted that the claimant has, at no time, provided evidence that the notice of assignment was sent via registered post, and if "sent" via any other method, the notice was not sufficiently served

3.3 -. I did not receive any notice of assignment in the format prescribed by law and served in the prescribed manner from the respondent, and I have asked the other members of my family if they signed for such a document; they have assured me that they did not.

3.4 - To the best of my knowledge, any notice of assignment sent by registered post must, therefore have been returned to the respondent.

3.5 - Consequently, I do not believe that any notice of assignment was properly served upon me at the date of the claim, and therefore any assignment has not been perfected in law.

 

7. A copy of the purported Consumer Credit Agreement cited in the Particulars of Claim, upon which the Claimants case relies on has not been attached to the claim form;

 

The Consumer Credit Agreement

It is denied that the Claimant has ever served upon the defendant despite a request under section xxx of the Consumer Credit Act 1974, a valid or enforceable copy of the said Agreement.

a. The "Copy" of the agreement received from the Claimant is of poor quality and is incomplete as the terms and conditions supplied are clearly not from the original agreement.

 

b. The Defendant puts the Claimant to strict proof that they hold in their possession, a true, legible and complete Consumer Credit Agreement.

 

c. The Claimant is reminded that they must present the original documents to the Court that they strictly rely on

 

d. It is suggested to the Court that without the production of the complete original Credit Agreement, there is no case to answer.

 

e. The Defendant puts to the Court that the Claimant is not in possession of a complete original Credit Agreement, and should it arise that they do have in their possession such a document, then the Defendant should be informed of the reasons why they have not supplied the complete agreement as per the Defendants request under the Consumer Credit Act 1974 s77(1)

s77. Duty to give information to debtor under fixed-sum credit agreement.

 

— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [F1 £1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

 

(3) Subsection (1) does not apply to—

(a) an agreement under which no sum is, or will or may become, payable by the debtor,

 

or

 

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

f. As the supplied "copy" of the agreement does not contain the original prescribed terms, the Defendant puts to the court that the agreement is unenforceable

 

 

The defendant respectfully requests that the claim is struck out as there are no grounds for bringing the case before the court.

 

I XXXXXXXX, believe the above statement to be true and factual to the best of my knowledge

 

 

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

 

Date : 09/07/09

There is not a lot of case law in there...does it matter?

 

Regards

[Luxxinterior]

Hi L

 

I am little further down the road than you, on your terms around 17 or 18 does it say that this agreement is only binding when signed by you and GEMONEY or something like that. I know the judge can still enforce the contract but it shows what a bunch of incompetent idiots they are.

 

Exactly the same DN as mine totally invaid in CCM's opinion which is good enough for me. Here is a link to my thread it may help.

 

GG

 

Help with cca?/GE money. (1 2 3 4 5 ... Last Page)

guzzleguts

 

Hi Guzzleguts...

That was very very interesting reading...thanks so much for that

 

Its amazing how similar these cases are.

 

After checking my CCA too, I have the same microfiche copy, and the larger geeneric terms and conditions

 

I have now added invalid CCA to my defence too.

 

I hope it works out well for you... I have just posted my defence and am sending it off tomorrow.

 

If your about, your opinion would be great

[Luxxinterior]

Hi Guzzleguts...

That was very very interesting reading...thanks so much for that

 

Its amazing how similar these cases are.

 

After checking my CCA too, I have the same microfiche copy, and the larger geeneric terms and conditions

 

I have now added invalid CCA to my defence too.

 

I hope it works out well for you... I have just posted my defence and am sending it off tomorrow.

 

If your about, your opinion would be great

 

 

By the way...cant remember, do I send the asswipes a copy of the defence too? Or does the Court do that?

 

Regards

[guzzleguts]

Hi L

 

Defence looks good, i put another N244 into the court today to have their claim struck out, because of no proof of service for the DN. The DN gives you 21 days from when you receive it, they need to prove you received it when they say you did otherwise this particular type of DN invalid as it is, never expires, if you never received it the 21 days havent started yet.

 

Best of luck to you too, shout if you need any more info, i will help if i can.

 

GG

[guzzleguts]

Send them nothing, court will serve them a copy

[Luxxinterior]

Send them nothing, court will serve them a copy

Thanks GuzzleGuts

Is that something I need to do at this stage? or wait until later like you?

 

Many thanks for your opinion

 

Regards

[guzzleguts]

I am further down the line than you, file your defence on time, and see how they respond to that, if they continue your receive AQ's then you will be able ask the court to order them to file all the document;s they havent sent and ask for the originals to be produced in court. I think the directions that go with the AQ's are on my thread along with how to fill out the AQ's, so sub to my thread so you dont lose it.

 

RE the N244 see what the judge ask's them to file at court, then if they dont comply on time you could go that route.

 

GG

[Luxxinterior]

I am further down the line than you, file your defence on time, and see how they respond to that, if they continue your receive AQ's then you will be able ask the court to order them to file all the document;s they havent sent and ask for the originals to be produced in court. I think the directions that go with the AQ's are on my thread along with how to fill out the AQ's, so sub to my thread so you dont lose it.

 

RE the N244 see what the judge ask's them to file at court, then if they dont comply on time you could go that route.

 

GG

 

Thanks again matey..

I have a pain in my (_)_) now filing defences and AQs etc... I have 4 on the go at the minute, all happening one after the other. Possibly another 4 on the way too.

 

I never have time to do anything else these days lol

I am gonna sign off now and for once enjoy the rest of the night.

 

Thanks for the help, and I will keep an eye on your thread. I still have the link in this one.

 

Regards

[Luxxinterior]

Hi All,

An update from the court Cohens have not responded to the court since my defence was submitted. We have passed the 28 days now and are in the final 5 days service time....Hopefully they will not respond at all