HELP PLEASE Howard Cohen/CL Finance vs. Me

[Mockenrue]

OK; understood. Would you be so kind as to point me in the direction of a link to this if possible? I would look myself but I'm at work so 'browsing time' is severely limited at the minute.

[consumeredge]

"Just picked up on one point. A NOA does not have to come from the OC it can also come from the assignee and be valid

R"

"I really haven't got a clue what you are talking about. What is "things in motion"? a car springs to mind!!"

 

"I hope this post is helpful mockenrue and consumeredge, I would suggest you do some more reading.

R"

 

I do, shame you don't, the NOA is not from the assignee, and if you've forgotten what "things in motion" are, and only remind you of "car springs" I suggest you read your appeal! where you went into great detail about Notice of Assignment sighting , October 2009 wasn't that long ago

 

When dx100uk was prompted the error was discovered, the "notice of assignment" was not sent by the assignee.

 

I only asked questions about the witness statement, again in one of your posts you stated you had not posted it up for fear of the other side seeing it............

 

And for the record, what I suggested to the author of this post (as you put it) this morning was to write to the court and ask for a 30 day adjournment, cohens do it, they asked for 90 days, and if he was in any doubt about the notice of assignment to make an appointment with either the CAB or a civil litigation solicitor.

 

Thank you again for slagging me off, I really appreciated you WTF!

 

Google capquest pdf, "witness statement of me in responce", looks to me where most of your words came from.

 

This is not a sport, interesting again that Docman states one of the 3 elements Mockenrue needs to cover is the assignment to CL Finance

 

I'll leave you to answer that.

[Docman]

Mockenrue

 

I have attached a link to a .pdf file of the Carey v HSBC case. It is a red herring as you are correct that “signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order.” - Per Nicholls of Birkenhead LJ in the case of Wilson v First County Trust Ltd [2003] All ER (D) 187 (Jul).

 

You mentioned a witness statement earlier. I noted you have filed a holding or ‘embarrassed’ defence (as it is sometimes called on the Forum) but I didn’t appreciate that you had also filed a witness statement. Did you do so or are you referring to the defence? As I think you know, matters have now moved on with the witness statement from CF Finance, so you need an updated witness statement of your own. It would help in suggesting advice if you could post what you put in your witness statement.

 

Consumeredge,

 

I am not going to try and understand your ranting in this thread. You have said twice now on other threads that you are leaving the Forum. I think it may be time for you to do just that. And by the way, the phrase you have been quoting from S 136 of the Law of Property Act should be “things in action”, not motion.

Carey v HSBC.pdf

[someone_else]

A couple of notes - first you need to ensure you read and understand the Carey and Rankine cases at it looks like they are going to twist them to show they don't need to produce the original agreement when they do - satisfying a s78 request and having an enforceable agreement are two different things.

 

With regards to the Default Notice it needs to contain the name and address of the Creditor, so it should really have come from Barclaycard not Mercers. In addition for it to be valid the arrears need to be accurate.

 

With regards to the assignment it should have been sent recorded delivery, the only other thing it needs to do is to accurately reference the deed of assignment (have they disclosed that or not?) - if the notice contains a value and a date they need to be accurate otherwise the assignment is invalid. I'd double check the amount on the notice of assignment as in our case CL had claimed the assigned debt was higher than the amount claimed by the OC (looked like CL had charged us for some thing and added it onto the amount they had claimed to have purchased, rather than adding it as a charge later).

 

Also am I right in saying they have been unable to produce full statements for the account? So the statements start with a balance owing if so that could cause problems for the Default, Assignment and amount claimed - as they'll be unable to prove what ever amount isn't in the statement.

[RobinWayRobinme]

Harrison v Burke and Van Lynn will answer your question. I will not waste any more of my time.

"Just picked up on one point. A NOA does not have to come from the OC it can also come from the assignee and be valid

R"

"I really haven't got a clue what you are talking about. What is "things in motion"? a car springs to mind!!"

 

"I hope this post is helpful mockenrue and consumeredge, I would suggest you do some more reading.

R"

 

I do, shame you don't, the NOA is not from the assignee, and if you've forgotten what "things in motion" are, and only remind you of "car springs" I suggest you read your appeal! where you went into great detail about Notice of Assignment sighting , October 2009 wasn't that long ago

 

When dx100uk was prompted the error was discovered, the "notice of assignment" was not sent by the assignee.

 

I only asked questions about the witness statement, again in one of your posts you stated you had not posted it up for fear of the other side seeing it............

 

And for the record, what I suggested to the author of this post (as you put it) this morning was to write to the court and ask for a 30 day adjournment, cohens do it, they asked for 90 days, and if he was in any doubt about the notice of assignment to make an appointment with either the CAB or a civil litigation solicitor.

 

Thank you again for slagging me off, I really appreciated you WTF!

 

Google capquest pdf, "witness statement of me in responce", looks to me where most of your words came from.

 

This is not a sport, interesting again that Docman states one of the 3 elements Mockenrue needs to cover is the assignment to CL Finance

 

I'll leave you to answer that.

[Mockenrue]

You mentioned a witness statement earlier. I noted you have filed a holding or ‘embarrassed’ defence (as it is sometimes called on the Forum) but I didn’t appreciate that you had also filed a witness statement. Did you do so or are you referring to the defence? As I think you know, matters have now moved on with the witness statement from CF Finance, so you need an updated witness statement of your own. It would help in suggesting advice if you could post what you put in your witness statement.

 

Yes, I filed a witness statement. Here it is:

 

In the *** County Court

Claim number ***

 

 

Between

 

C L Finance Ltd - Claimant

 

and

 

 

*** – Defendant

 

 

Date *** March 2010

 

 

1. I, ***, am the Defendant in this case and a litigant in person.

 

2. I make this Witness Statement in opposition to the claim made by C L Finance Ltd.

 

3. Except where otherwise mentioned in this statement, I neither admit nor deny any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.

 

4. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

5. The Claimants' particulars of claims disclose no 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 or even attempt to 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 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 any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

d) It is denied that any Notice of Assignment was served by either the Claimant or the original creditor and I put the Claimant to strict proof thereof.

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 deed 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.

 

e) I put the Claimant to strict proof of how the balance was accrued so that I may assess the balance for unfair and/or unlawful charges.

 

6. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the Claimant has a valid claim against the Defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

7. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the Court’s attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for Agreements made before s15 came into effect. Since the Agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

8. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008.

 

The repeal by this Act of:

 

(a) the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b) subsections (3) to (5) of that section, and

 

© the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly executed Agreements made before the commencement of section 15 of this Act.

 

9. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this Agreement and the Consumer Credit Act 1974 is the Act which this Agreement is regulated by

 

The build-up to this action

 

10. In the build up to this action, on *** March 2009 I wrote to CL Finance formally requesting a true copy of the original signed and executed Consumer Credit Agreement and other information under the Consumer Credit Act 1974 (sections 77-79) relating to the account in question. To date this request has not been complied with and the Court papers were issued whilst the claimant was in default of this request. The required fee for this information of £1 was enclosed with the request.

A copy of this letter is included in the Disclosure List.

 

On the *** July 2009 a letter arrived from CL Finance Ltd. in response to the above request. Included with the letter were the following:

 

a: A barely legible copy of copied pre-contractual application form

b: A copy of copied conditions

c: A copy of statement of account

 

Copies of these documents are included in the Disclosure List.

 

On *** September 2009 I received the Claim Form in this case issued by the Claimant out of the Northampton County Court Bulk Centre. A copy of this document is included in the Disclosure List.

 

My Acknowledgment of Service was received by the Court and processed on *** October 2009.

 

On *** October 2009 I submitted an embarrassed Defence which was received by the Court and processed on the same day.

 

The case was transferred on *** December 2009 to *** County Court.

 

The Request for Disclosure

 

11. Further to the case, on *** December 2009 I requested the disclosure of information pursuant to the Civil Procedure Rules 31.14. A copy of this letter is included in the Disclosure List.

 

12. Howard Cohen & Co. Solicitors sent in response to my CPR 31.14 request a letter dated *** January 2010 stating “We can confirm that our client is not the original credit provider, therefore, the said documents have been requested from Barclaycard. We will furnish you with copies upon receipt of the same accordingly.” A copy of this letter is included in the Disclosure List.

 

Since then the Claimant has not complied with my CPR 31.14 request by supplying said documents.

 

13. The Court’s attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the Claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the Agreement and A term stating how the debtor is to discharge his obligations under the Agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

14. The Court’s attention is drawn to the fact that where an Agreement does not have the prescribed terms as stated in point 13 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The Court’s attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the Agreement cannot be enforced.

 

15. It is submitted that if the Credit Agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the Agreement then the Court is precluded from enforcing the Agreement. The prescribed terms must be with the Agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the prescribed terms must be contained within the body of the Agreement and not in a separate document.

 

16. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299:

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated Consumer Credit Agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

"(33):In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the Agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the Court is whether they are, on a true construction, included in the Agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

17. If the Agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by Court order.

 

18. Notwithstanding points 13 and 14, any such Agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974.

 

19. The Claimant is therefore put to strict proof that such a compliant document exists.

 

20. Should the issue arise where the Claimant seeks to rely upon the fact that they can show that the Defendant has had benefit of the monies and therefore the Defendant is liable, I refer to and draw the Court’s attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal at para. 26:

 

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid."

 

The need for a Default Notice

 

21. 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.

 

22. Notwithstanding point 21, 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).

 

23. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

Conclusion

 

24. The Claimant has failed to produce a copy of a compliant Credit Agreement in the requisite timescale/at all, and in the absence of such an Agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no Agreement has ever existed for there to have been any failure to make payment. The Claimant has failed to respond adequately to my reasonable requests for documentation to substantiate their Particulars of Claim pursuant to CPR 31.14, leaving me unable to file a fully particularised Defence.

 

 

25. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the Claimant, nor am I able to assess if the alleged Agreement is properly executed, contains the required prescribed terms, or correct figures to make such an Agreement enforceable by virtue of s127 Consumer Credit Act 1974.

 

26. In view of the matters pleaded above, I respectfully request that the Court gives consideration to whether the Claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

27. Alternatively, should the Court order the Claimant to produce the necessary documentation, 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.

 

Statement of Truth

 

I, believe the above statement to be true and factual

 

Signed etc.

[Docman]

Hi Mockenrue

Ok thanks for posting the witness statement. I appreciate you would have filed this in response to CL Finance’s application. However, if you filed a holding or ‘embarrassed’ defence, this document is really an Amended Defence which has been filed without the permission of the court. It is therefore possible that the court would dismiss the document as a defence and thus ignore it.

That said, the statement does contain all the elements of a defence, a bit like ‘belt & braces’. But this means that it is very large. IMO its about twice as long as it should be. For comparison, a defence filed on line is limited to 8,000 characters. Your statement is over 14,000.

You need to start again with another witness statement. Where you need to quote a section or case in detail that you have already mentioned in the first witness statement, then you can cross refer but otherwise I would try to start with a clean sheet.

You need to deal with every point in the CL Finacne witness statement, starting with paragraph 2. Main points for you to make are

1. this is an application not an agreement. Then outline the brief requirments under the CCA. Point out that the deponement, SJH can’t state ‘The original terms & conditins including the prescribed terms would have been on the reverse’. She wouldn’t know and her statement is pure fiction. Also point out that terms that have been presented as SJH2 could not fit on the reverse of the document and any way refer to ‘copy conditions’ State the form is an application form that was blank as far as you remember.

Then rubbish their reference to Carey. They have elevated the case to an Act of Parliament!!

As for paragraph 4, quoute Lord Hoffman’s words in Diamond v Lovell.

Point out the DN is from Mercer’s, not Barclaycard and therefore does not comly with the requirements of the Regulations.

Finally, I would just say you note the comments in paragraphs 6 & 7. Bringing S78 just invites another go with Carey v HSBC, which you do not need.

BTW, how long have you got before the next hearing?

[Mockenrue]

A couple of notes - first you need to ensure you read and understand the Carey and Rankine cases at it looks like they are going to twist them to show they don't need to produce the original agreement when they do - satisfying a s78 request and having an enforceable agreement are two different things.

 

I'm working my way through the Carey file Docman provided now.

 

With regards to the Default Notice it needs to contain the name and address of the Creditor, so it should really have come from Barclaycard not Mercers. In addition for it to be valid the arrears need to be accurate.

 

The arrears amount on the Default Notice (from Mercers) tie up with the arrears amount on the statement for the month in which it was sent.

 

With regards to the assignment it should have been sent recorded delivery, the only other thing it needs to do is to accurately reference the deed of assignment (have they disclosed that or not?) - if the notice contains a value and a date they need to be accurate otherwise the assignment is invalid. I'd double check the amount on the notice of assignment as in our case CL had claimed the assigned debt was higher than the amount claimed by the OC (looked like CL had charged us for some thing and added it onto the amount they had claimed to have purchased, rather than adding it as a charge later).

 

Also am I right in saying they have been unable to produce full statements for the account? So the statements start with a balance owing if so that could cause problems for the Default, Assignment and amount claimed - as they'll be unable to prove what ever amount isn't in the statement.

 

I've never received anything via recorded delivery from Barclaycard, Mercers, CL Finance or Cohens. They haven't disclosed a deed of assignment either.

 

I'm glad you mentioned checking the amounts. Firstly, the amount claimed matches what's on the NoA but differs from the outstanding amount on the latest copy statement they've sent (it's higher). Secondly the sum they're referring to in section 4 of the witness statement ("There was a balance of £xxx outstanding under the agreement") does not appear on any of the statements. It's close to the correct amount, but not the same.

 

You're correct that they haven't provided full statements. The first one is from several months into the agreement and has an opening balance. It refers to a 'closing balance of last statement' which is missing.

[citizenB]

Here you go mockenrue.. the Carey judgement and the sections that you need to be aware of, courtesy vint1954.

 

[attach]18524[/attach]

 

Be sure to note points: 95 - 105, 112, 116 and the conclusions

[citizenB]

I'm afraid I dont know about the Rankine judgement. I would suggest you contact vint1954 and diddydicky. They are more aware of that one.

 

Just shout if I can help further:)

 

HTH

[RobinWayRobinme]

Rankine v American Express attached

R

Rankine v American Express Services Europe Ltd.pdf

[Mockenrue]

You're both absolute stars. Sincere thanks!

 

Who needs a book at bedtime when you have CAG?

[citizenB]

Yes, thank you Robin. I have now bookmarked that.

[Skins08]

Subbing with interest - just had an SJ application chucked out

[tosh1]

how did this one end?

[Mockenrue]

Badly, and I ended up with a CCJ and several hundred pounds of costs added to the balance as a result. The judge couldn't see past the end of his nose, and although aware of the Carey case he clearly wasn't up to speed on it (he more or less said as such himself) and pretty much believed everything the HC guy told him. He accepted that a 'reconstituted' agreement was sufficient and that was that - all the other instances of HC misconduct (e.g. non-compliance with CPR request etc.) were dismissed or overlooked, as was most of my Witness Statement. Whenever I tried to dispute anything all I got from him was "on what authority?" and being LiP I found it difficult to articulate my replies convincingly. It was my first time in court and I didn't anticipate having to explain stuff to the judge I expected him to know about. The Carey case is reams and reams of legal jargon I can only begin to get my head around, and I suppose that in hindsight I left it far too late to ask for help on here. After reading multiple threads I was left with the impression that HC would bottle it at the last minute as several people implied that this is standard practice for them, but not so in my case. I'd advise anyone in a similar position who's expecting HC to not bother turning up after reading threads on here to take such suggestions with a very large pinch of salt.