Howard Cohen/C.L Finance / **DISCONTINUED**

[batman1956]

My wife has had her first day in court with this lot. Briefly she knew nothing and then all at once they are demanding full repayment. She quickly fired off a cca request and got a reply stating that due to the age of the account this document was not available, they still proceeded with action. At the hearing last week they did not turn up and my wife under direction from the DJ has been told to submit a defence. This has been done using a lot of digging on this site and hopefully will blow them out of the water. I wish to thank the original poster for their help. And also the people on this site who give their time freely to help others. The defence that was used is copied below but point 5 has been changed to show that Howard Cohen can not supply the agreement. What do you think caggers?

Claim number: INSERT CLAIM NUMBER

Between:

 

NAME OF CLAIMANT(Claimant)

 

and

 

NAME OF DEFENDANT(Defendant)

 

 

Defence

 

 

 

1. This defence is submitted following the order of District Judge INSERT NAME AND DATE

 

2. I am at a considerable disadvantage in preparing this defence in that I have not had sight of the Particulars of Claim so I do not know what has been alleged or claimed.

 

 

3. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and INSERT NAME OF ORIGINAL CREDITOR secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made there under) both at the date of inception and at all times thereafter. Thirdly it must establish that INSERT NAME OF ORIGINAL CREDITOR complied with all of the provisions of the Consumer Credit Act 1974 (“the Act”) in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings. Fourthly, if the Claimant was not INSERT NAME OF ORIGINAL CREDITOR then it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925.) Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

 

4.It is submitted that it is the obligation of the Claimant to prove all of the above matters.

 

5.It is accepted that I applied for a credit card with INSERT NAME OF ORIGINAL CREDITOR and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

 

6. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

7. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

8. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

 

Valid Default Notice

 

 

9. 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.

 

10. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

11. It is noted 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 (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is Further laid down in the 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 2006 (SI 2006/3094).

 

12. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

13. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

14. I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

15. I further refer to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

“The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.”

 

16. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

17. For the avoidance of any doubt, in the event of an alleged breach by the Debtor this is 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.

 

 

The Assignment of the Debt

 

 

18. If the Claimant was not INSERT NAME OF ORIGINAL CREDITOR then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

19. 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:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

20. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. 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.

 

21. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

22. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

23. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

24. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

Sums Claimed

 

25. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

26. Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”)

 

27. In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

28. In case the Claimant included a claim for interest which is pleaded pursuant to section 69 of the County Courts Act 1984. The Claim for interest pursuant to the County Courts Act is by virtue of County Courts (Interest on Judgment Debts) Order 1991 is denied. Paragraph 2 (3)(a) of the Order states that Interest shall not be payable under this Order where the relevant judgement is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

29. In case the Claimant also claims interest from judgement date until payment. It is not admitted that there are any contractual terms that allow the Claimant to claim this or any interest after judgement.

 

30. It is denied (if it be alleged) that the Defendant is seeking to find “technical loopholes” to avoid alleged liability to the Claimant. on the contrary, in the cases and authority quoted within this defence, it has been confirmed that a lender who wishes to enforce a term of it’s contract before the court should first make sure that the contract strictly complies with the requirements of the law – in this case the Consumer Credit Act 1974 and associated Regulations.

 

31. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

 

Statement of Truth

 

I, INSERT NAME OF DEFENDANT The named defendant believe that the facts stated in this Defence are true

 

 

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

 

Dated:

[batman1956]

Polite bump

[zazen.warrior]

How did it get to court if she did not defend?

[batman1956]

As far as i am aware the first inkling that she had was when the letter confirming the court date arrived.

[zazen.warrior]

Normally if you don't defend, the claimant would win by default. It's one of Howards' favourite pastimes. Unsure why this had a court date unless service of the claim was acknowledged and a defence submitted. Perhaps you could check with your wife?

[harrassed senior]

The fact that the judge allowed for a defence to be entered at a later date seems to me that due process was not followed and could therefore explain the above? Perhaps he had knowledge that the Summons was never sent/received?

[batman1956]

My wife had informed the court that she is disabled and would find it difficult to attend. Cohens then got a default judgement and she wrote to the court to explain her circumstances, on the second date my wife did attend but the other side did not so the DJ advised her to write in a defence and send a copy to both the court and Cohen hence the long post #1. That at the moment is how things stand

[batman1956]

Today a letter has arrived from the court confirming that the defence has been filed and the Allocation Questionnaire which must be completed within the next 2 weeks. Could anyone please help? how should the AQ be filled in and is there anything else to do in the meantime? Is there anything else that should be added to help the judge manage the claim? Feeling a little nervous now.

[batman1956]

Anyone?

[zazen.warrior]

Take a look at this

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/131499-directions-n150-n149-allocation.html

[batman1956]

Thanks, I have had a read and now need to get my head around it would it be ok to give you a shout if i need further help?

[postggj]

cohen

cl finance

 

this is not welcome finance is it

[batman1956]

No it is royal bank of scotland and apparently it is statute barred (1997) but hey ho they still want to make themselves look stupid. I dont want them to win by default hence the long defence in post #1 and I dont want my lack of knowledge to benefit them so all help will be gratefully recieved.

[postggj]

cohen will allways go to the final furlong then withdraw

stick at it

[batman1956]

Just called the court and have been informed that an allocation hearing has been scheduled, what is this for?

[postggj]

to go to fast track if over five grand

or small claims if under

 

cohen will also have to pay 200quid

[batman1956]

Thanks for that. We need to be proactive, so is there anything that we need to do? Up to now we have no paperwork from Howard Cohen other than a letter stating that "Due to the age of the debt it is not possible for them to supply the CCA."

[postggj]

you mean to tell me cohen is aware of no cca and is still trying for a ccj

[postggj]

sorry

lost for words

 

the judge should throw cohen out of court but knowing cohen

 

he will withdraw at the last moment

[batman1956]

Yes both Howard Cohen and the court are aware that no CCA is available. A copy of the letter from the claimant was sent with the defence to the court and the following was included as a point in the defence

 

The claimant has sent to the defendant a letter stating that the written agreement is not available due to the age of the alleged account. For ease of reference this letter is dated xxth xxxxxxxx 2009 and the claimants reference is xxxxxxxxxx

 

Any suggestions how to proceed would be gratefully recieved

 

 

 

[postggj]

well i would put forward a skeleton argument to the court and ask for a direction from the judge to throw out the claim

the debt cant be enforced as they are in default of your cca request

 

thats a defence on its own as its in the cca

no enforcement can be taken while in default

 

may i ask when the last payment was made or the debt acknowledged in writing

[batman1956]

It has never been acknowledged at all and the last payment which was shown on photocopied statements shown at the hearing was in 2002. There were apparently 2 pages of statements shown at the hearing which Cowards were ordered to send to my wife which have not been forthcoming. I am of the opinion that this may well be a phishing trip. The only thing we have from them is the letter stating no CCA is available no NOA no default notice nothing.

What would be the best way to put a skeleton arguement? Is there a proper document to use?

[postggj]

ill have a nose this evening when i get in from work

2002

 

this debt will also be statute barred

[batman1956]

Thanks again, we are aware that it will be statute barred and it is a point that was missed in the original defence. From what my wife tells me it would appear that the statements that they produced could be a photoshop job but as Howard Cohen have failed to supply a copy of them (as ordered by the court) it is impossible to scrutinise them and get any information..i.e dates amounts etc. and also their admission of no CCA makes it almost certain that they are trying it on.

[batman1956]

Bump anyone. How do I do a skeleton argument? Would it be similar to the defence except just the most relevant points? i.e lack of cca, statute barred, etc.etc.