Casperlady and Howard Cohen in court next week for SJ hearing. - help?!

[casperlady]

Hi Ida,

 

I'm having real problems with that. I scanned them to my pc as jpeg but they were illegible. I have them scanned as pdf files on my computer now but photobucket won't let me upload PDF files?

[ScabHunter]

Hi Ida,

 

I'm having real problems with that. I scanned them to my pc as jpeg but they were illegible. I have them scanned as pdf files on my computer now but photobucket won't let me upload PDF files?

 

You can attach a PDF file to your post. When you make a post, you should see an icon like a black paper clip below the title field. Click that and add your attachment.

 

SH

[casperlady]

Thank you scabhunter! Ok - this should have the first page of the CCA attached then..

CCApaper.PDF

[Pinky69]

OK - what else do you have?

[casperlady]

Here is the copy of the default notice

Defaultpaper.PDF

[casperlady]

And here is the copy of the notice of assignment.

 

They also included copies of all statements and my bank details that the direct debit used to be paid from.

Defaultpaper0001.PDF

[havinastella]

I think Pinky means 'What else that proves you owe the debt'

 

What has your signature on?

 

What has the terms and conditions?

 

Jogs

[havinastella]

The default notice is $hit, so if you got a judgement against you, the most they can claim is £290!

 

JOgs

[casperlady]

Well I thought everything they sent proves I owe the debt. The package is their 'witness statement' sent to the court.

 

Very interesting point about the default - I wondered why it only had £290.50 on it while I was scanning it. The actual total on the notice of assignment is over £5k.

 

Nothing has my signature on it. On the CCA where it says 'Signature of Customer' it says 'Please type your name' undeneath. My name is printed there, not a signature. It was an online application.

[ScabHunter]

When was that agreement taken out?

 

I'll be back tomorrow - got to get some kip because I've got a busy couple of days, but I don't think you are dead with this one yet.

 

I do wish Jogs would say what he thinks of the default notice, though. I can never understand people who aren't forthright in their opinions.

 

SH

[casperlady]

It was just under 2 years ago, the end of 2007. In an attempt to rejig finances before everything fell to pieces. I made regular payments on the account until October 2008 then a token payment at the beginning of this year.

 

Thank you so much to everyone who is looking at this for me. It really helps. If I still might have a case then even better. Time is short though, court is the beginning of next week. To decide the track.

[Pinky69]

First of all, the Default Notice must have their name and address on it and your name and address on it. Secondly, it does not conform to the format laid down in the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. The words underlined must be made "more prominent yet". They are LIKE THIS - they should be LIKE THIS to make them stand out from the rest of the text. Thirdly, they cannot say this or that "may" happen if you don't remedy the breach - they must state specifically what will happen and when it will happen. Everything must be "clear and unambiguous." Fourthly, if they say the balance will become payable if you don't remedy the breach, they must state what that balance is - it must be stated as a sum of money. Fifthly, and this is contentious, but in my opinion a date for remedying the breach must be given as a specific date, not within 21 days. The CCA 1974 mentions that it must be a date no less than 4 times and it is stated as a date in the Regulations above. There is no provision in the regulations for it being given as a number of days.

 

So the DN is unlawful. It's how you use that information that counts. Did they terminate the account? Did they specifically send you a letter saying the account was terminated or sell it on to someone else before it got to Howard Cohen?

 

More tomorrow and a closer look at the agreement.

[IdaInFife]

the agreement has no rights to cancel that i can see

 

and pinky has pointed out all that is wrong with the DN and that is one one the best defective dn's that has everything wrong on it

 

ida x

[itsamomentintime]

should the amount of credit (or credit limit) be mentioned on the CCA? if so, I cant see it

[IdaInFife]

first paragraph under key info

[the_shadow]

Hmmmm, the CCA isnt really a CCA, its just what they would supply in response to a s78 request currently imo.

 

An online application should store your signature as a tickbox and in reality they should need to show the court the screenshots of both your application and the terms and conditions that you were shown when you took the card out.

 

What muddies the water somewhat is the timing of the application, as its post april 2007 the agreement gets watered down somewhat by the CCA2006 and the fact that even without an agreement the court can enforce if it feels just.

 

Areas to attack are the default notice and the notice of assignment and methods of postage of both imvho.

 

S.

[casperlady]

Thank you so much for your replies. I was a bit concerned because the agreement was so recent.

 

So.. default notice not compliant then. And I've only defaulted on £290 and not the whole lot.

 

Any idea on how I would go about defending this bit?

 

Thank you again!

[Pinky69]

It was assigned to CL Finance by absolute assignment - and an agreement of absolute assignment between both parties (only the court can ask for a copy of this as it is a business transaction) shows the amount that CL Finance paid Santander for the debt. We are now cooking on gas! Absolute assignment transfers the rights and title to the buyer ie CL Finance. Now, this account was sold to CL Finance by Santander without prior issue of a lawful DN and that means it was terminated at the point of sale and unlawfully rescinded. Rescission puts you back in the position you were in before you had the agreement. They cannot issue another DN because the agreement no longer exists. In other words all Howard Cohen can claim in court is any arrears.

 

I'll have to go out for a couple of hours but I will string together the law and case law for you when I return.

[Deb T]

Not sure what you mean by defaulting on £290? If I'm right the default notice needs to show the amount the account is in arrears from when the normal payments stopped ..as in your £290, it should not ask for the full amount owing as in the 5k+ What else you should be looking for if it's available is a termination notice sent after the default. If the default notice is defective and the termination notice then closes the account then the only amount they can ask for is the amount shown on the default notice (faulty or not) in essence they closed the account down on the back of a faulty default notice which is there problem not yours.

 

A faulty DN accompanied later by a termination notice is the ideal situation for you, a faulty dn on it's own is also good but seems to be dependant on how the judge feels on the day.

 

I would look for some case law (there is a thread here on the tale of a faulty dn) and take them with you if you're going to court.

[citizenB]

I think you might have attracted more help had this been in the legal forums, so will be moving you there..

 

Right, what have you said so far in either defence or witness statements.

 

IMHO, the CCA is just generic terms and conditions. I think they would need to provide a copy of the electronic application / agreement to be taken seriously.

 

When was this account supposedly opened ?

 

The DN, I think as jogs and pinky say is wishful thinking on the part of GE money/CL finance...

 

Some questions in order for us to be able to help you properly.

 

What date are you actually in court ?

 

What is on the Particular of Claim.?

 

What defence have you put in so far.?

 

Have you prepared a witness statement?

 

any other information you think might help and dont panic:)

[citizenB]

Casperlady, I have pm'd you regarding this..

 

I have merged the allocation questionairre thread and this one. You have also been moved into the legal forums in order to get you some more attention. If you can answer the questions in the post above this one.. that would help.

 

I think from reading your threads this hearing might just be to establish what is going on because it looks as though when you completed the AQ you put yourself on the wrong track and you were also wanting more information at that stage. I believe you might be given the opportunity to provide either an amended defence or a witness statement in view of the documents you have now received.

 

So if we proceed with that in mind all might not be lost.

[casperlady]

Thank you both. DebT sorry I misunderstood that about the default notice. I'm not very good at this you might have gathered!

 

I don't recall receiving a termination notice. And I haven't received a copy of a termination notice within this pack either. I do remember receiving a termination notice for my topshop store card, at the same time I got into trouble with this one. As they were both with GE Capital they just closed my accounts. So I'm wondering if I missed receiving this one at the same time?

 

Pinky69 your post is very interesting.. I look forward to hearing from you again later, and thank you everyone SO much for your help so far.

[casperlady]

I think you might have attracted more help had this been in the legal forums, so will be moving you there..

 

Right, what have you said so far in either defence or witness statements.

 

IMHO, the CCA is just generic terms and conditions. I think they would need to provide a copy of the electronic application / agreement to be taken seriously.

 

When was this account supposedly opened ?

 

November 2007

 

The DN, I think as jogs and pinky say is wishful thinking on the part of GE money/CL finance...

 

Some questions in order for us to be able to help you properly.

 

What date are you actually in court ?

 

Tuesday 27th October, a few days time!

What is on the Particular of Claim.?

 

The Claimant's claim is for the sum of £5585.53 being monies due from the Defendant to the Claimant under a regulated credit agreement between ne the Defendant and Santander Cards UK Limited under reference XXXXX and assigned to the claimant on 17th June 2009 notice of which has been given to the claimant.

The Defendant has failed to make payment in accordance with the terms of the agreement and a default notice has been served upon the Defendany pursuant to Section 87 (1) of the Consumer Credit Act 1974.

Pursuant to clause 7 of the agreement the claimant also claims contractual interest at a rate of 15.600% per annum from the date of these proceedings to the date of judgment, or sooner payment, acrruing at a daily rate of 2.44

 

What defence have you put in so far.?

 

Attached to this post

 

Have you prepared a witness statement?

 

No! I don't know what I'm doing really!

 

any other information you think might help and dont panic:)

 

Thank you so much for your help so far, and for merging the threads. I'm sorry I posted in the wrong place.

CohensdefencetocourtCAG.doc

draftorderfordirectionsCAG.doc

[Pinky69]

This is the Act covering DN's. You will need to go through the Act bit by bit and list what is wrong with the DN - I gave you a brief precis above. It isn't very long.

 

CC-En-D-T-Notices1974-SI1983-1561.pdf (application/pdf Object)

 

Section 87 (1) of the CCA 1974 tells you what they cannot do without a DN and try to enforce an agreement is one of them.

 

Relevant case law is Khoparor V Woolich (1996) which you can get on the net.

 

I'll leave you now in Citizen B's capable hands for court procedure.

[casperlady]

Thank you for the link Pinky..

 

Ok, so from what I can tell going through the list.

 

1. Details of Agreement - just gives account number. This seems to be ok.

 

2. Parties to agreement. This isn't set out formally in the DN, but my name and address is at the top of the letter and GE capital at the bottom. Will this make a difference?

 

3. Terms of agreement to be enforced - tells me I am in breach of payments clause - ok?

 

4. Action intended to be taken. A clear and unambiguous statement indicating the action he intends to take. Here is not clean and unambiguous as the DN states that they 'MAY' close my account and issue legal proceedings if I do not pay the arrears within 21 days of receipt of the DN?

 

5. Demanding earlier repayment of any sum. Not applicable?

 

6. Time Order. This part seems to be on there.

 

7. General Statment. This also seems to be on there.

 

8. A statement 'Important you should read this carefully'. That's also on there.

 

The DN was sent in October 2008. Notice of Assignment states was assigned to CL Finance in June 2009.

 

Looks like I'm missing something again, as I can't really see how the DN is faulty - and I don't know the date my account was terminated. Is it just because they weren't clear in their intentions?