HELP PLEASE Howard Cohen/CL Finance vs. Me

[Mockenrue]

** UPDATE **

 

I now have a 'Notice of Allocation to the Small Claims Track (Hearing)' so it looks like Cohens have filed an AQ and are going ahead. postggj, you pointed out earlier in the thread that you felt 99% sure that Cohens would withdraw, but they haven't so in your opinion and experience - and in view of the fact that the case is proceeding - what is your opinion now? Is this still what you would expect to be happening? Should I be worried that they have a good case against me?

 

The hearing is near the end of April, but in the letter it says the following:

 

Each party shall deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than 21 days before the hearing. Witness statements must be included in the documents filed and serve.

What documents are they referring to - the ones I've posted above? How am I supposed to present them? Sorry for the daft questions but I've never been to court before and all this is very bewildering.

 

Lastly, Cohens have not complied with my CPR request. They wrote to me in January stating:

 

We refer to previous communications in this matter.

 

In particular, we refer to your request for copy documentation relating to your account.

 

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.

 

We trust blah blah...etc.

 

Nothing has turned up.

 

Your advice and assistance is, as always, very much appreciated.

[Mockenrue]

BUMP - can anyone on here help?! I can really do without a CCJ. Thanks.

[Mockenrue]

Is there no one who can help me with this?

[Wolfy]

Ok you haven't had much help here so lets see what we can do. When you filed you AQ did you apply for an order which would force them to supply the documents mentioned in their SOC? You should have appended this to the AQ. If not then all is not lost but you will need to submit form N244 requesting an order now.

[Mockenrue]

Hi Wolfy and thanks for your reply. No, I didn't apply for such an order and if I'm honest I don't recall seeing any reference to this on the AQ despite reading it thoroughly. Stupidly I haven't kept a copy of it.

 

Presumably I can download an N244? Cheers.

[Mockenrue]

Right, an update to my situation with HC. My small claims hearing took place in April and and HC turned up. No documents were sent to me or the court from HC until the very last minute - the court receiving them by fax on the morning of the hearing. We'd barely sat down when the DJ started tearing strips off the HC rep and berating her for blatant disregard of the CPR, pointing out the obvious fact this placed me at a significant disadvantage as I'm LiP. Flustered and apologising profusely, she started making excuses and insisted that the documents had actually been posted and that I should have received them. The DJ adjourned the case on these grounds and that was that.

 

On the way out the HC rep confronted me and tried to intimidate me by saying that if I didn't admit this debt, I would end up with a CCJ. This was right in front of all the people in the waiting room, which I thought was very out of order. She then stormed off, making a call as she went.

 

Sure enough, when I got home there was the paperwork from CL Finance. The hearing was first thing so I'd left the house before the post arrived (not that it would've really mattered as I wouldn't have had time to examine the contents anyway.) From reading threads on here this seems to be standard practice with HC.

 

Here is the Witness Statement I received from CL Finance. Note that in point 2 they are saying that they don't have the original T&Cs with the prescribed terms, and in point 3 that they are relying on the Carey vs. HSBC Waksman case:

 

 

Also note that in point 7 they intend to rely on the Rankine case.

 

The document referred to as 'SJH1' is the application form I posted above ('Low rate or no rate') in post #1;

 

The documents referred to as 'SJH2' are a copy of the "reconstituted" agreement mentioned in point 3; here it is (five pages):

 

 

'SJH3' refers to copy statements spanning a period of four and a half years, although there are none for the first year of the agreement. There are £20 penalty charges on several of these.

 

The document referred to as 'SJH4' is the Mercers default notice application form I posted above in post #1. Although the content is identical, the character spacing and fonts are different.

 

'SJH5' refers to the NoA from Lewis Debt Recovery, again posted above in post #1.

 

I would very much welcome some opinions, assistance and guidance from the experts here as to how I should now proceed. I've heard nothing from either HC or the court since the initial hearing and the adjourned hearing isn't far off. Somehow I don't think I can rely on them just not turning up (which often seems to be the case).

 

I can post up scans of my court docs (embarrassed defence, witness statement, disclosure list, N149 etc.) if necessary.

 

Thanks.

[consumeredge]

have you still the envalope the witness staement came in, check the date of posting, sure the DJ would be interested in that.

 

Who was it at the court, HC rep or the collections manager from CL Finance limited?

 

If it was not the collections manager (after all specific witness statement based on that persons knowledge, says so?) was notice sent to the court 7 days before the hearing and to all parties they would not be attending?

 

A default notice in my opinion is not a termination notice, this would be by way of a letter stating, having failed to remedy the breach by the said date -- September 2008 the account has been terminated and will be sold to a debt collection agency.

 

Enter the notice of assignment, worthless, unless the original creditor has sent notice to the debtor the account was sold to CL Finance limited on --January 2009 the balance £x and the date this balance was calculated on.

 

Law of property act 1925 Section 136 assignment of things in action.

 

Default notice was not returned, who's to say it was actually posted? the collections manager from CL finance Limited??

 

"I believe the contents of this statement are true" if you knew civil procedure costs, the collections manager would know when assigned to the small claims track, the "no costs rule applys" costs are only awarded for unreasonable behaviour, therefore to claim fixed commencement, allocation and hearing fees, is a bit of a stupid gamble...............

 

the witness statement is a carbon copy of other witness statements issued by "Howard Cohen" termanology SjH1-4 = initials of the person.

 

JPM 1-7 John-Paul Murphy ie Howard Cohen!!!!!!!!!!!

 

Sjh = collections manager? I very much doubt it.

 

When's the next hearing date?

[citizenB]

Just a little contradiction from me...

 

The original creditor is under no obligation to advise the account holder that the account is being assigned.

 

That would normally come from the new owner. Apparently there is also no statutory format for the Notice of Assignment, but if sent it must be accurate in detail. It must also be sent via registered (now recorded delivery) post.

 

IMHO it would be a matter of courtesy and prevent a lot of ambiguity if both the OC and the new owner were to advise of assignment.. but courtesy and common sense does not appear to sit well with creditors

[Mockenrue]

Thank you both for your input.

 

have you still the envalope the witness staement came in, check the date of posting, sure the DJ would be interested in that.

 

Yes, but annoyingly the post mark on it is barely legible and the 'key' digit in the date is very hard to distinguish. However, the witness statement itself is dated only four days before the actual hearing and this was a Friday - the hearing took place the following Tuesday.

 

Who was it at the court, HC rep or the collections manager from CL Finance limited?

 

HC rep. One person.

 

If it was not the collections manager (after all specific witness statement based on that persons knowledge, says so?) was notice sent to the court 7 days before the hearing and to all parties they would not be attending?

 

Not that I'm aware of, no. I certainly wasn't notified.

 

A default notice in my opinion is not a termination notice, this would be by way of a letter stating, having failed to remedy the breach by the said date -- September 2008 the account has been terminated and will be sold to a debt collection agency.

 

I don't recall receiving such a letter.

 

Enter the notice of assignment, worthless, unless the original creditor has sent notice to the debtor the account was sold to CL Finance limited on --January 2009 the balance £x and the date this balance was calculated on.

 

Law of property act 1925 Section 136 assignment of things in action.

 

 

The OC did not give me notice of this, no.

 

Default notice was not returned, who's to say it was actually posted? the collections manager from CL finance Limited??

 

It certainly wasn't sent via SD; just ordinary post.

 

"I believe the contents of this statement are true" if you knew civil procedure costs, the collections manager would know when assigned to the small claims track, the "no costs rule applys" costs are only awarded for unreasonable behaviour, therefore to claim fixed commencement, allocation and hearing fees, is a bit of a stupid gamble...............

 

the witness statement is a carbon copy of other witness statements issued by "Howard Cohen" termanology SjH1-4 = initials of the person.

 

JPM 1-7 John-Paul Murphy ie Howard Cohen!!!!!!!!!!!

 

Sjh = collections manager? I very much doubt it.

 

When's the next hearing date?

 

You have a PM, cheers.

[Mockenrue]

It looks like I can't send you a PM. The hearing is next week.

[RobinWayRobinme]

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

[RobinWayRobinme]

Sorry CB just noticed you stated same earlier

[RobinWayRobinme]

The WS states they rely upon p.113 of Carey. You should be reading and understanding Carey at least from p.110 to rubbish the WS as carey and in particular this part of it relates to s.78 information requests, not creditor enforcing agreement.

R

[consumeredge]

Hi Mockenrue

 

I'd advise you have a read of skyblue2

 

I'd also be wary, you have been positively identified with the witness statements references to SJH 1, they could be watching.

[RobinWayRobinme]

WTF. Are you trying to frighten mockenrue out of getting help from the forum

 

Hi Mockenrue

 

I'd advise you have a read of skyblue2

 

I'd also be wary, you have been positively identified with the witness statements references to SJH 1, they could be watching.

[consumeredge]

RobinWayRobinme

 

You might just want to read you post again, then read Skyblue2's and then check the NOA mockenrue recieved.

 

You obviously haven't.

 

After that I would suggest you read section 136 of the Law of Property Act 1925 assignment of things in motion, together with the Bill of Sales Act 1878,

 

To see the format you then need to access AD 1882 Form of Bill of Sale.

 

mockenrue if you want to pm me contact Davetherave.

[consumeredge]

mockenrue my pm facility is now active again

[MARTIN3030]

mockenrue if you want to pm me contact Davetherave.

 

 

And why does he need to be doing that ?

 

Not for the first time recently have concerns been expressed about pm and email dealings.

[consumeredge]

Re: HELP PLEASE Howard Cohen/CL Finance vs. Me

It looks like I can't send you a PM. The hearing is next week.

 

Ask mockenrue not me!

[RobinWayRobinme]

My post is correct. You have not put a link to Skyblue2 and if you post it up I will have a read when/if I get time.

 

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

 

I do not need to read s.136 of the LPA and from memory S.136(1) states something like "Any absolute assignment by writing under the hand of the assignor" there is no requirement that the NOA must be under the hand of the assignor. For the correct interpretation I suggest you read the Judgment of Widgery LJ in Van Lynn Developments v Pelius Construction [1968] 3 All ER 824. If you are suggesting the author of this thread goes into court next week spouting only OC can send NOA, Bill of SAles Act 1878 etc it could severely damage their chances of success.

 

mockenrue, I can't see clearly the actual wording of the NOA (I did look at it the first time consumeredge), but if it has described the account sufficiently for you to identify it and if a date of the assignment is stated, that must be accurate, if not stated it does not invalidate the NOA. If it includes all that, NOA appears to be valid.

 

The only issue you may have is service of the NOA as the assignment only becomes effectual in law at the time of service (see p.196 LPA 1925)

 

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

R

RobinWayRobinme

 

You might just want to read you post again, then read Skyblue2's and then check the NOA mockenrue recieved.

 

You obviously haven't.

 

After that I would suggest you read section 136 of the Law of Property Act 1925 assignment of things in motion, together with the Bill of Sales Act 1878,

 

To see the format you then need to access AD 1882 Form of Bill of Sale.

 

mockenrue if you want to pm me contact Davetherave.

[Docman]

Mockenrue

 

RWR is correct. Whilst S136 of the Law of Property Act does require an absolute assignment to be in writing, what constitutes NOTICE OF ASSIGNMENT is determined by case law and in particular by the Van Lynn case referred to by RWR. I have attached a copy if you can't find the link.

 

But don't get too hung up on the assignment itself. It is but one element of your case. Right now you need to put together a witness statement in response to the one from CL Finance. In my opinion there are three elements you need to cover.

1. The lack of a signed credit agreement

2. The validity of the default notice

3. The assignment to CL Finance

 

Strictly speaking, as a litigant in person, and provided you are not exhibiting any documents of your own, yo can make a verbal statement to the court. However, that isn't for the faint-hearted and most judges want to be able to read what your case is about, so it is usually best to file a written witness statement. If you do so, you should do so as soon as you can and also send a copy to CL Finance.

 

I'll have a look at your earlier posts and get back to you later with some suggested paragraphs.

 

Doc

Van Lynn Developments Ltd v Pelias Construction Co Ltd.doc

[Mockenrue]

Thanks all.

 

RWR - I'll PM you the original NoA as soon as I can so that you can read it better.

 

Docman - the lack of a signed agreement is what I've always believed to be the main focus of my case. I'll dig out my original witness statement from the initial hearing. Thanks again.

[RobinWayRobinme]

I would prefer you to re-post noa here with any comments I make being open for others to see and benefit from. I'd agree with doc that the noa is only one strand to your defence and that agreements proper execution and dn are bigger issues.

R

Thanks all.

 

RWR - I'll PM you the original NoA as soon as I can so that you can read it better.

 

Docman - the lack of a signed agreement is what I've always believed to be the main focus of my case. I'll dig out my original witness statement from the initial hearing. Thanks again.

[RobinWayRobinme]

Also as advised in my post 38, you should read and try to understand why they can't use carey and that needs to be include in your ws

R

[RobinWayRobinme]

Also as advised in my post 38, you should read and try to understand why they can't use carey and that needs to be include in your ws

R