Howard Cohan claim for CL Finance please help

[tonny]

Hi everyone,

I have recently joined consumeractiongroup forum and found it very useful. Please help me to deal with Howard Cohan and CL finance who I found are very inconsiderate people. I have a few credit card debts and the credit card agreements done in approximately 2002/ 2003. I was caught very badly in the stock market down turn and had huge losses but I was managing to pay everyone and set up a debt management plan with pay plan which was accepted by all the creditors. As I am so unfortunate that I lost my job a few months ago. i wrote to all the creditors and explained my situation and offered to pay each creditor £1 until I get a job. This was accepted by most of the creditors. But C L Finance is the only one who sent me a claim form via Northampton County Court.

The debt was assigned to them in Feb 2009 by MBNA with whom I had dealings since 2003.The debt is about £10000.

Since Feb 2009 neither did I receive any statements nor any default notice or any other correspondence from C L Finance.

On receiving this form 11th Nov I wrote to CL Finance to send me a true copy of the agreement followed by another letter requesting the same but via recorded delivery enclosing £1 postal order on 18 Nov and quoted them my right under their obligation to supply me a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1)

 

To date I have not received any reply. I had acknowleded the form online within 14 days and want to file my defence. I was already under so much stress due to my financial situation, losing my job and H Cohan have given me more stress. The form is dated 9 Nov and I believe I can file the defence in 28 days. I think by 7th Dec. Please correct me if I am wrong. Please help and guide me to write the defence. Thanks a lot and I wil appreciate any help you can give me.

Edited December 3, 2009 by tonny
corrections

[hungrybear]

At this point you should be using CPR 31.14 and 18 to get them to send you all the required documents, a cca request wont get you very far at this stage.

 

Have you filed a holding defence?

[tonny]

Thank you hungrybear. I have not filed any holding defence yet. This is the letter I had written to CL Finance

 

1. Regarding your claim on this agreement via Howard Cohen and Co. in the County Court, you must supply me with a true copy of the agreement. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit) - your obligation also extends to providing a statement of account. I enclose a £1 postal order in payment of the statutory fee, PO Serial Number .......

 

2. A signed true copy of the deed of assignment of the above referenced agreement.

3. You are notified that you are obliged to supply these documents, whether you are the original creditor or not.

I understand a copy of any credit agreement along with a statement of account should be supplied within 12 working days.

 

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

I understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act.

 

I look forward to hearing from you.

.....................................................

Please tell me what other documents I should ask them and what should I write in my holding defence.

 

[hungrybear]

OK you want notice of assignment from MBNA to the claimant compliant with the law of property act 1925.

 

The original defualt notice issued by mbna compliant with 87(1) of the cca. Any subsequent DN's

 

A termination notice under 76/98 of the cca.

 

And this should be under CPR 31.14/18

 

Read these:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/184213-cpr-18-cpr-31-a.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/234830-cpr-31-14-request.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their-4.html

 

and the links in them

 

WHAT IS THE SITUATION WITH THE COURT? YOU HAVE ACKNOWLEDGE / DEFEND IN FULL / PUT HOLDING DEFENCE IN?????

 

- dont fall foul of the court deadline dates

[tonny]

Thanks hungrybear. I have acknowledeged the claim form dated 9 Nov, defending in full, intend to put my defence by 7 DEC. as below

1.The Claimant CL Finance Limited has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation

2..Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no reference to any account number, no date of alleged agreement, no date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information.

 

3.The Claimant has failed to (a)attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer credit act 1974.(b)notice of assignment from MBNA to the claimant compliant with the law of property act 1925.©copy of the original defualt notice issued by mbna compliant with 87(1) of the cca.(d) A termination notice under 76/98 of the cca.(e) a copy of original credit agreement.

4.No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon.

5.Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

6. The defendent requested true copy of the agreement, A signed true copy of the deed of assignment of the agreement, statement of account on 16 Nov 2009 but the claimant has failed to comply with their CPR 31.14 obligations.

7. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

 

8.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

.................................................

Please advise any corrections or modifications to the above. Thanks for your help.

[hungrybear]

I'm not the world's expert and suggest you seek out and try and get a site team member to take a look.

 

in 2, you need to be more specific about cpr, cpr 16 and practice direction 16 presumably is what you're after? So in 2 you are suggesting no cause for action in the POC?

 

in 3 you are suggesting breach of practice direction 16 I think?

 

It looks OK to me but I would like a more experienced opinion if I were you as well.

 

It it were me I would put it in tomorrow

[tonny]

Thanks Hungrybear

[kimberley6]

Hi tonny.

Have a look at my thread,its a bit long but I've had some good advice.

http://www.consumeractiongroup.co.uk/forum/legal-issues/197970-howard-cohen-help-needed-14.html#post2622554

[kimberley6]

hungrybear has given me some good advice recently,your in good hands.

[hungrybear]

hungrybear has given me some good advice recently,your in good hands.

 

 

Thankyou:D

 

Yes tonny read that and maybe PM citizenB off that thread to offer some help and advise.

[tonny]

Thanks Kimberley. You'r right I'm in good hands. The more I read this forum the more confident I 'm becoming to fight with these inconsiderate h Cohan/ CL finance.

[kimberley6]

You're welcome tonny.

Yes,this site has given me so much help and advice and the more you help you receive the more chance you can help someone else.

[kimberley6]

Like to give credit were its due hungrybear.

[tonny]

Hi again everyone. I have rewritten my defence which I'm going ti file it may be later today online. Could you please check and give me any suggestions. much appreciated.

 

• The Claimant has failed to follow the pre-action protocols in so far as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols. Instead they launched into immediate litigation.
  

• The defendant neither admits nor denies any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.
  

• The defendant is embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure Rules, in particular practice direction 16, in particular paragraph 7.3 where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. The Claimant has failed to supply a copy of the written document which forms the basis of this claim.
   
   
  
• No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon. The Claimant has failed to attach a copy of the original credit agreement, Default Notice which they claim has been served under s87 (1) Consumer credit act 1974, a signed true copy of the deed of assignment of the above referenced agreement and a copy and proof of posting of default notice.
  

• The defendant made a request to Claimant on then via recorded delivery on xx November 2009 requesting a signed true copy of the consumer credit agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1), a signed true copy of the deed of assignment of the above referenced agreement and statements.
  

• The defendant has received no reply from the claimant. The claimant has failed to comply with their CPR 31.14 obligations and puts this account into dispute for the right reason that is failure to supply CCA.
  

• Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.
  

• The defendant further ask the court consider striking out the Claimants’ case as it fails to comply with part 16 and practice direction 16 in so far that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.
  

• If the Claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by Debtor and Creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the Claimants case accordingly.
  

Edited December 3, 2009 by tonny

[hungrybear]

That reads pretty good to me. just a suggestion or two in red

 

 

Hi again everyone. I have rewritten my defence which I'm going ti file it may be later today online. Could you please check and give me any suggestions. much appreciated.

 

• The Claimant has failed to follow the pre-action protocols in so far as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols. Instead they launched into immediate litigation.
  

 

• The defendant neither admits nor denies any allegation made in the Claimants Particulars of Claim and put the Claimant to strict proof thereof.
  

 

• The defendant is embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure Rules, in particular practice direction 16, in particular paragraph 7.3 where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. The Claimant has failed to supply a copy of the written document which forms the basis of this claim.
   
  
  
• No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon. The Claimant has failed to attach a copy of the original regulated credit agreement, Default Notice which they claim has been served under s87 (1) Consumer credit act 1974, a signed true copy of the deed of assignment of the above referenced agreement compliant with the Law of Property Act 1925 and a copy and proof of posting (I would put service rather than posting - 87(1) says 'serve') of default notice.
  

 

• The defendant made a request to Claimant on 11 November 2009 and then via recorded delivery on 18 November 2009 requesting a signed true copy of the consumer credit agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1)??? - wot that for?, a signed true copy of the deed of assignment of the above referenced agreement and statements of account.
  

 

• The defendant has received no reply from the claimant in response to their CCA 78(1) request sen on 11/11/09 and avers that this places the matter in 78(6) dispute until such time as they comply. THIS POINT IS QUITE MEANINGLESS DURING COURT ACTION BUT I SEE NO REASON TO TAKE IT OUT
  
  

 

 

• The claimant has failed to comply with their CPR 31.14 obligations and has not produced any documents referred to in the Particulars of Claim. The defendant is severely disadvantaged in his ability to formulate an appropriate defense.
  
  

 

• Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.
  

 

• The defendant further ask the court consider striking out the Claimants’ case under CPR 3.4.2©. In that the claimant as failed to reply to a CPR 31.14 request and the Claimants' case fails to comply with CPR part 16 and CPR practice direction 16 in so far that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.
  

 

• If the Claimant cannot produce a regulated credit agreement in the prescribed form signed in the prescribed manner by Debtor and Creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the Claimants case accordingly under CPR 3.4.2(a).
  

 

 

Power to strike out a statement of case

 

3.4

 

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

 

(2) The court may strike out(GL) a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

 

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

 

© that there has been a failure to comply with a rule, practice direction or court order.

 

 

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate.

 

(4) Where –

(a) the court has struck out a claimant’s statement of case;

 

(b) the claimant has been ordered to pay costs to the defendant; and

 

© before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,

 

the court may, on the application of the defendant, stay(GL) that other claim until the costs of the first claim have been paid.

 

(5) Paragraph (2) does not limit any other power of the court to strike out(GL) a statement of case.

 

(6) If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit –

(a) the court’s order must record that fact; and

 

(b) the court must at the same time consider whether it is appropriate to make a civil restraint order.

[tonny]

Thanks a lot Hungrybear. It is making more sense now. Cheers. I'm going to file the defence tonight just to make sure that the court gets it within 28 days.

[tonny]

Hi, The good news is that the case was dismissed by the court as Howard Cohen could not produce the proper CCA. Can someone please advise me, should I stop payments to them now and what are the possible repercussions if I stop paying them. Thanks for help.

[twoman]

Hi tonny,

Who represented Cohen in court?

[tonny]

Hi twoman, It was their barrister, an English guy. I was also represented by a barrister.