Howard Cohen/CL Finance Court Case

[bongo boy]

Hi, got a friend with some issues with the above, was paying thru the CCCS for ages when suddenly CL Finance decided to take legal action. This I think was prompted by their CCA request.

 

No agreement was sent and the next thing they know Court papers appear with charges meaning the alleged debt (which was nearly paid off) had now doubled in size.

 

They defended the action on the basis that no CCA was recd and the CL didnt respond so the case was stayed.

 

This week they have received a letter from Cohens with a supposed copy of the agreement. It looks like an application form to me.

 

They have said that the defence should be withdrawn, a copy of expenditure and income provided, then their client may allow payments in instalments.... if not then they will proceed to small claims where a district judge will decide the outcome...

 

i'll add scans of the two, can anyone have a look and see if this is enforceable and give an opinion on the whole thing ?

 

Ive altered the stuff to remove identifying details and so on..

 

Cheers Bongo

Edited September 10, 2009 by bongo boy
misspelt

[bongo boy]

Hi Guys,

 

Hopefully these are ok? let me know your thoughts, cheers Bongo. obviously no good so have removed them and reattched them as word docs

Edited September 11, 2009 by bongo boy

[bongo boy]

These images are huge on my pc, why are they so small on here ? i can't read em now, what have i done wrong ? HELP !!

[bongo boy]

trying again !

Edited September 10, 2009 by bongo boy

[bongo boy]

help !!!

[bongo boy]

Trying again maybe 3rd time lucky ? to save confusion ive removed the other ones hope these work !

CL HC TP Agrmnt.doc

CL & Cohen Sols let.doc

Edited September 10, 2009 by bongo boy
additional info included

[bongo boy]

can anyone help please ?

[GhostDebt]

Bump,

Will comment shortly.

[bongo boy]

Thanks Ghost ! if this does turn out to be an enforceable agrmnt i have noticed that they took out PPI on it and looking at some of the statements there are numerous charges added too, is there any merit in pursuing these points ?

[GhostDebt]

Hello Bongo,

 

Can't read the agreement, either as the thumbnail or the doc file.

The letter is pretty much standard for HC.

 

If you add images I believe you have to untick the thumbnails button so they are put in the proper size.

 

Can you post up a copy of the Particulars of Claim and also the defence that was used, minus personal details.

 

Have you had a notification from the Court Allocating the claim to a track yet?

 

If it hasn't been assigned a track yet, then I would suggest a CPR 31.14 request letter. They usually don't comply, but it gives a paper trail to show their behaviour to the court.

 

The allocation questionnaire is going to be the best opportunity to try to get documents, which is what you will receive from the court if HC decide to proceed.

 

To form a proper defence there are many documents you need them to disclose in addition to the agreement.

 

Do not miss any dates or deadlines set by the court.

 

Send all documents recorded/signed for and keep proof of postage and delivery.

 

Keep a paper trail, keep all envelopes, keep the postage receipts

 

Regards

[bongo boy]

Hi Ghost, thanks for your reply will upload the info as soon as i can work out how, i've looked again but there is no option i can see to disable the thumbnail option ?

 

Do you have any idea where it is ? there is nothing on the manage attachments or insert image buttons they only give options to upload, not alter, an image or attachment

:confused:

Cheers

Bongo

 

Update... have found the thumbnail thing in user CP but it makes not one jot of difference.. if i click on the word docs here it gives very large images so im not sure what ive done wrong ? There is no option i can see to tick when uploading re thumbnails tho only one which removes or inserts them afterwards ?

Edited September 11, 2009 by bongo boy
update

[mkb]

BB - as someone who has also had trouble uploading stuff, you have my sympathies

 

I use Imageshack now & find it's very straight-forward.

 

1st I scan my letter into Paint then edit out all the personal stuff. including barcodes.

 

Open up Imageshack & upload to there then under the image details, I copy the direct link & paste into here. Easy peasy.....

 

Click here to go to site:

 

You should probably delete all the other versions you have saved in case you inadvertently try to upload the same again but I'm a novice at this so am happy to be wrong

[bongo boy]

thanks MKB ill give that a go !!

[bongo boy]

hi all don't know what i'm doing wrong but think i'll have to give this up, i cant get it to work, don't know what i'm doing wrong but when i upload the images from those altered in paint as eith TIF JPG or GIF none of them are readable !!

 

What i dont understand is when i open the word docs that i added they are all clear and readable?? why is it so difficult ? seems i'm not alone in this as MKB has said?

[mkb]

Hiya

 

Dunna what's happening but I had loads of trouble when I first started using it so maybe it's a case of trial & error until you suddenly get it to work - I have sooo much trouble using photobucket but most peeps do it with no probs

 

I can read your word docs but they're only clear enough when I enlarge but you defo have an application form there & I'm guessing it was signed in store!

 

What is the date on the sigs?

[bongo boy]

Hi MKB they were signed in march 03 originally thank heavens someone can read the docs ! i'm slowly going mad here trying to get them to work !!

[bongo boy]

Hi Ghost, I have already sent them a CPR 31.14 request in June, they replied saying they were not obliged to provide this info and that the particulars on the court form should be sufficient to allow you to respond accordingly.. I have not as yet recd anything from the court about the stay being lifted, the 28 day period after submitting my defence has long since elapsed (this was in early june) so the case has been stayed and no application to lift it has been submitted as far as i am aware. Cohens want the defence withdrawn, why would they want this? will post a copy of the defence submitted in a tic.. many thanks for your input... cheers bongo

[mkb]

http://img7.imageshack.us/img7/1374/bbhowardcohen.jpg

 

http://img33.imageshack.us/img33/9688/bbtopshop.jpg

 

BB - I have uploaded them for you & hopefully, you will get a bit more help now

 

My own feeling is that it is unenforceable. There are no T's & C's for a start & the Financial Details section is barely legible on the copy they have sent you.

[bongo boy]

defence as submitted with claim particulars to follow;

 

Defence

 

The Defendant has, for some time, utilised the services of a debt management

charity, namely The Consumer Credit Counselling Service (CCCS). Payments to the

Claimant have been made, on behalf of the Defendant, by the CCCS on a regular basis since date 2005.

 

On date 2009 the Defendant exercised his right, under the Consumer Credit Act

1974 (sections 77-79,) to request a copy of the credit agreement referred to in this

claim.

 

As the Court is doubtless aware the act requires this to be supplied within the

prescribed time period of 12 working days. After this period has expired the account

enters a default status, and the creditor is neither entitled to ask for, nor the

debtor obliged to offer, any payment, until the breach or default, is remedied by

the creditor.

 

The request was sent by recorded delivery, ref DWblah blah etc, and received by the

Claimant on date 2009. To date no copy agreement, nor any correspondence

relating to the request for this account, has been received by the Defendant.

 

In addition, whilst the account is in default, the Claimant is not permitted to take

ANY enforcement action, nor instigate legal proceedings such as these. The Claimant

is in breach of the CCA 1974, and also the debt collection guidance issued by the

Office of Fair Trading (Updated December 2006). This may render the Claimant unfit

to hold a credit licence and therefore unable to trade.

 

The Defendant feels that he is in an unfair position as a result of the action of the Claimant. He is at a disadvantage being unable to ascertain the validity of the

agreement, and feels he is being unfairly treated by the Claimant.

 

Considering the Defendant has been making payments through a recognised debt

management charity to the Claimant, and has only paused these whilst the proof is

provided by the Claimant, (as determined by the Consumer Credit Act 1974). It is not

his intention to avoid his legitimate debt or responsibilities, merely to establish

the same.

 

It appears that the Claimant is disregarding the requirements of the aforementioned

act, and the guidelines issued by the Office of Fair Trading. The guidelines specifically prevent a creditor using deceptive or unfair methods. Specifically this

applies to contacting the creditor directly and bypassing their appointed representative, namely in this case, the CCCS.

 

More importantly the requirement to investigate and provide details, as appropriate, when a debt is queried, or disputed, and not ceasing collection activity whilst

this investigating the same. In addition, in this case, adding charges that are

disproportionate to the main debt. This is evident in the costs the claimant is

seeking to add to a debt of some £etc.

 

The costs and court fee will increase the debt by some 26%. This would seem unfair

given the circumstances, the Defendant is attempting to resolve his current situation with his creditors, yet this creditor is seeking to add further costs merely, it would seem, as a result of his request for a copy of the agreement upon which the Claimant seeks to rely.

 

In summary the Defendant feels that the action instigated by the Claimant is unlawful and vexatious, the Defendant is unable to establish, without a copy of the correctly executed credit agreement, that the agreement is valid, no able to establish that any charges levied thus far are similarly valid.

 

A CPR 31.14 Request has been sent to the Claimant.

 

The Defendant is fully prepared, on production of a correctly executed agreement, to reinstate the payments made to the Claimant as before. However in the absence of the same, as detailed in the CCA 1974, and subsequent rulings detailed below, it is apparent that in the absence of any correctly executed agreement the situation is somewhat different; The following examples are from high court and the court appeal case law which backs up any legal defence, or counter claim under Consumer Credit Act 1974 s.142.

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed,

then subject to the enforcement powers of the court, the debtor should not have to pay.

In view of the foregoing it is the request of the Defendant that the claim be struckout and the Claimant ordered to produce the requested document. On production of a correctly executed credit agreement the Defendant undertakes to reinstate payments as before through his appointed agent, namely the CCCS.

The Defendant thanks the Court for it’s consideration, it is the wish of the Defendant to avoid further County Court Judgements to his detriment, but without question will respect the decision of the Court.

Edited September 11, 2009 by bongo boy
removed dates etc

[bongo boy]

Particulars are as follows;

 

The claimant's claim is for the sum of xxx.xx being monies due from the defendant to the claimant under a regulated credit agreement between the defendant and GE Capital Bank Ltd under ref blah blah etc and assigned to the claimant on date 2006, notice of which has been given to the defendant.

 

The defendant 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 xxx.xx

[bongo boy]

thanks MKB you are wonderful, what was i doing wrong ? ive posted the last defence and particulars of the claim so hopefully this will help too...

 

main thing is what do i respond to cohens with ? i don't have long it seems...

[bongo boy]

ive tried too, is this any better ? cant get image shack to work at all !! http://i909.photobucket.com/albums/ac294/ism68/hcltopmapagrmnt1.jpg

[GhostDebt]

Bongo,

 

Before any further comments please remove the agreements that have been posted and remove your personal details.

 

Then repost them.

 

Regards

[GhostDebt]

Document has;

 

APR, Credit Limit, Right to cancel, minimum payments so contains some of the prescribed terms, but need further comments to confirm.

[bongo boy]

they dont have my details, ive blanked them out with made up ones !!