Andy Manx -v- CL Finance/Howard Cohen & Co (GUEST STARRING: Aktiv Kapital/Appleton Massey)**WON**

[surfaceagentx20]

As I read Appleton's letter, the benefit of the agreement/judgment is still with Aktiv. They say there are arrangements to reassign (back to CL) but that is not the same as saying it has already been re-assigned. Besides, you are entitled to notice of assignment. You don't yet have that.

 

x20

[citizenB]

When I asked for advice from the site team previously I was advised that they arent allowed to give advice.

 

:confused: Who said we arent allowed ?

Edited August 20, 2009 by citizenB

[andymanx]

:confused: Who said we arent allowed ?

This is part of an email I got from one of the admins when I asked for help:

 

"This is where we hit a legal problem ourselves.

 

The Consumer Action Group has a dispensation from the Ministry of Justice

that allows us to facilitate legal discussions on the forum. However, we

are not allowed to give direct legal advice, or to suggest where people

may get that advice."

[andymanx]

As I read Appleton's letter, the benefit of the agreement/judgment is still with Aktiv. They say there are arrangements to reassign (back to CL) but that is not the same as saying it has already been re-assigned. Besides, you are entitled to notice of assignment. You don't yet have that.

 

x20

So what should I put in the Section G in the AQ? As I dont have the funds to afford to make an order to the court, as previously suggested.

 

As the court have said I can fax my AQ on Monday, then I will have the weekend to put my AQ together, instead of rushing to get it down for tomorrow.

[surfaceagentx20]

Leave section G blank.

 

x20

[andymanx]

Leave section G blank.

 

x20

And then what should I do?

[andymanx]

HAHAHAHA I WON!!!!!!!!

 

Just spoke to the court who said CL Finance subbed a AQ late and I had to contact them for a copy of it and rang Howard Cohen & Co who advised they are discontinuing and will be sending a Notice of Discontinuance to the court!!

 

So how do I claim for the £75 back from CL Finance, which I had to pay for the set aside order?

[Guest janensteve]

andymanx,

 

perhaps you should let sleeping dogs lie............

 

my case against me by CL finance was dismissed by the judge due to CL Finance failing to respiond to 3 seperate court orders. The cheeky gets have now issued me a staement and chucked on £200 post judgement fee !

 

They can go forth and multiply !!!!!

[citizenB]

Oh well done:D Have amended your title and moved you to the success forums.

[citizenB]

Had to edit out the front part of your title in order to get the **WON** on.

[citizenB]

HAHAHAHA I WON!!!!!!!!

 

Just spoke to the court who said CL Finance subbed a AQ late and I had to contact them for a copy of it and rang Howard Cohen & Co who advised they are discontinuing and will be sending a Notice of Discontinuance to the court!!

 

So how do I claim for the £75 back from CL Finance, which I had to pay for the set aside order?

 

I would however check with the court to make sure that discontinuance notice does get to the court. I will ask about the return of your fee.

[PGH7447]

send em a bill, or better still send it to howard cohen, hes their puppet solicitor, hit him where it hurts

[Guest janensteve]

if it were me, i would refrain from claiming £75 costs, remeber, if they wish to re-apply to the court in the future with a fresh claim, they will need the permission of the court and this will need to consider whether your costs have been paid.

 

At this time, you have not calculated or put on notice your LIP costs. You might want to think about bringing that up should they re-issue a new claim in the future as a further point of frustration for them.

 

asking them for £75 at this stage will merely antagonise and assist them in overcoming the costs issue should they re-issue claim.

[citizenB]

If you choose to go ahead, you can adapt the following.

 

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/143-wasted-costs-order

[andymanx]

andymanx,

 

perhaps you should let sleeping dogs lie............

 

my case against me by CL finance was dismissed by the judge due to CL Finance failing to respiond to 3 seperate court orders. The cheeky gets have now issued me a staement and chucked on £200 post judgement fee !

 

They can go forth and multiply !!!!!

Thanks for your advice but I need the £75 back and cannot afford to lose it.

[andymanx]

if it were me, i would refrain from claiming £75 costs, remeber, if they wish to re-apply to the court in the future with a fresh claim, they will need the permission of the court and this will need to consider whether your costs have been paid.

 

At this time, you have not calculated or put on notice your LIP costs. You might want to think about bringing that up should they re-issue a new claim in the future as a further point of frustration for them.

 

asking them for £75 at this stage will merely antagonise and assist them in overcoming the costs issue should they re-issue claim.

Thanks for your advice but I need the £75 back and cannot afford to lose it. I doubt they will re-issue the claim as the reason it was discontinued was as they didnt have a leg to stand on as page 1 of the copy of the credit agreement was illegible and page 2 which had part of the terms on was missing.

[andymanx]

Had to edit out the front part of your title in order to get the **WON** on.

Thanks.

 

The things I put in my AQ obviously did the trick and scared them away! lol This is what I put in my AQ:

 

ALLOCATION QUESTIONNAIRE – SECTION G.

 

Since submitting my defence, I have been informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital and who are not a party to these proceedings) in a letter to me dated 4 August that CL Finance sold the account to Aktiv Kapital on 11 August 2008 (Appleton Massey’s letter is annexed to this Allocation Questionnaire, marked AKW Exhibit 1 – pages 1 and 2 and my reply is annexed to this Allocation Questionnaire, marked AKW Exhibit 2 – pages 1 and 2).

 

The letter also made reference to these Court Proceedings and after further investigation, it transpires that the account that I had been corresponding about with Aktiv Kapital and their Solicitors: Apple Massey were the one and the same account. Prior to this new information, I was under the impression that the account I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money.

 

Therefore, as CL Finance were no longer the legal owner of the account, they shouldn’t have been the Claimant in these proceedings any longer and Aktiv Kapital should have been the new Claimant in these proceedings. However, I have also received a letter dated 19 August 2009 from Appleton Massey (annexed to this Allocation Questionnaire, marked AKW Exhibit 3) advising that they are now re-assigning the account back to CL Finance, which I believe has been done at such a late stage to further frustrate these proceedings.

 

As it is now not known if CL Finance or Aktiv Kapital are the legal owner of the account, neither should be the Claimant in these proceedings, due to:

 

a) As 4 months have passed since the Claim Form was issued and as CL Finance, or Aktiv Kapital haven’t re-served the Claim Form, then the prescribed timescale of 4 months has passed, as per CPR 7.5;

 

Service of a claim form

7.5

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

 

b) Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 (annexed to this Allocation Questionnaire, marked AKW Exhibit 4) but it is however invalid and unenforceable, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the Agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing.

 

Therefore, this has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £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,—

 

Reason 2) the one and only page of the Credit Agreement that was provided (the front page) is illegible, despite being enlarged by myself on a photocopier.

 

 

Therefore, as the Credit Agreement is illegible, this has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment:

 

9. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

2) Furthermore, to-date CL Finance have still not provided me with a copy of the Credit Agreement, nor the other documents requested which they relied upon in their Claim Form and in which these proceedings have been based upon and I have had to rely on the one that Aktiv Kapital provided me with, therefore CL Finance have failed to comply with my CPR 31.14 Request.

 

3) On the basis of the afore-mentioned, it is respectfully requested that:

 

a) This case is striked out as there is no case to answer by the Defendant

 

b) The Defendant is awarded costs from the Claimant, which have been incurred as a result of defending this case.

[andymanx]

Oh, I just realised I have asked for costs to be awarded in the last paragraph of my AQ lol.

[andymanx]

If you choose to go ahead, you can adapt the following.

 

 

http://www.consumerforums.com/resources/templates-library/48-bank-templates/143-wasted-costs-order

Thanks.