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

[Pinky69]

Can you scan and post the documents? We would really need to look at the credit agreement to see if it is enforceable and also to examine the DN.

[Pinky69]

Cover over all your personal details.

[Pinky69]

I am not familiar with the English court system as I am a Scot but I have asked site admin to send someone along to help you. It may be tomorrow before you get advice so be patient and try not to worry. No court will make you pay more than you can afford and that is the bottom line.

[Pinky69]

OK - what else do you have?

[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.

[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.

[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.

[Pinky69]

I gave you the reasons above why the DN is unlawful. What you have to do is go through the Act and list the Sections against the reasons so you know what part of the Act to quote in court. The addresses bit would probably be accepted in court but all the other reasons stand.

 

There are 2 ways to terminate an account. One is by termination letter, which they don't seem to have given you, the other is by action, and in your case the date of termination is the date they sold it to CL Finance. In doing so they rescinded the account because they didn't issue a lawful DN first.

[Pinky69]

The part of Khoparor you need is this:

 

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 gives a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Forget the damages bit. It's the unlawful rescission that prevents them enforcing the debt.

[Pinky69]

OMG - I am so sorry. Talk about a biased judge!! Where did the thousands of pounds in legal fees come from?? I would have told him right back that it was my right to defend myself and that is what I was there to do. Cheeky B! And to order you to bankrupt yourself without giving you a chance to make a payment arrangement is not justice. Ask the court who you complain to about the judge and make a formal written complaint about both the proceedings and the judge. As it is I would now ask for a set aside of the judgement on the grounds you were not given a fair hearing at court.

[Pinky69]

Yoo Hoo Hoo - CAGGERS and Casperlady - what a team!