H Cohen / Cl Finance MBNA - CCJ Set Aside help needed

[The GodMother]

did they send you a letter terminating the account?

[Guest dvdriley]

did they send you a letter terminating the account?

 

 

No, I have only received a letter from a DCA who act for CLF, which advices of a noa from MBNA to CFL.

 

Also CLF,s sol said I must send my defence to Howard Cohen and not CLF even though clf is the claimant??????

[Guest dvdriley]

I am so confused here, if the hearing iwas for ccj to be set aside because of cpr failure why is the dj ordering me to put in defence for the claim, would that not me a defence for a strike out. ???

[supasnooper]

I've merged the relevant 5 threads for this case.

 

I would again ask that ALL the relevant details of this case are posted on this thread to make it simpler for everyone.

[Guest dvdriley]

sorry, Supersnooper.

 

How can i get some more help here please?

[Guest dvdriley]

on leaving court the solicitor said to send my defence to Cohens and not CLF, but CLF are the claimant,surely i should send it to them

[Nagasis]

on leaving court the solicitor said to send my defence to Cohens and not CLF, but CLF are the claimant,surely i should send it to them

 

cohens are clf's solicitors and representatives, you would send to cohens who should be named as theirs sols.

cohens and clf are part of the same group.

[supasnooper]

Have you received a Notice from the Court about the decisions made on 26th February 2010 ?

If you have the please do post up the details.

 

If not, ring the court and ask them has anything been typed up and ask them for the details so you can post them up here.

 

As your earlier post is rather vague and very unclear on what was decided at the hearing on the 26/02/10, I am going to make a presumption.

 

My presumption is that you achieved getting the CCJ set aside.

My reason being is that the Judge has told you to submit a defence.

 

Please get some clarification from the Court and come back here.

[Guest dvdriley]

The application for judgement to be set aside has been adjourned for me to submit my defence. I phoned the court and there is a back log but she read the order out

 

" The defendent to file and serve a defence statement in support of application for judgement to be set aside specfically in regard to defeault notice and relevant provisions on the cca act 1974 upon which you seek to rely by 16.00 on 12th march "

 

" the claiment, if so instructed file a reply by 23rd March ".

 

Then she just nodded to claiment and said dont forget to send him a copy of the dn.

 

The sol told me to send my defence to cohens and not clf, but clf is the claiment.

 

the hearing is listed for 45 mins

[Guest dvdriley]

can i have some help please

[Nagasis]

with reference to post 1, what was your submitted/lost defence you sent.

[Guest dvdriley]

i sent an embarassed defence saying CLF had failed to comply with my cpr request. judgement was then entered as court said they never received it. CLF sols said at hearing if i have the original dn why did i try to get another one through cpr to which the judge agreed with her!!!

[supasnooper]

Not an order I've ever come across before or anything similar for a Set Aside.

 

So have you pursued Cohens for the CPR 31.14 request ?

 

If you do and they don't comply, then apply for an order for compliance and ask for a 28 day adjournment as per pt2537's thread I've posted the link to earlier.

 

 

You must understand the advice given and read the links given as they contain the correct course of action and advice.

CAG is set up as a self-help site which you should use as a research tool to understand your case.

I say this as it will be you facing the Judge and having to convince them of the arguments that you use.

I would suggest starting to read some of the threads in here - DCA Legal Successes - The Consumer Forums and also seek out some threads featuring Cohens to see how they operate and what pitfalls to look out for when dealing with them.

[citizenB]

Okey dokey, have been asked to pop in by BRW..

 

First things first.

 

Do you have access to a scanner, if so, please scan in (minus and personal details) the Default Notice and the Notice of Assignment.

 

Can we also know exactly what was on the oriignal Particulars of Claim Probably not important now as you already have the CCJ, but it will also be useful to know what you said in your original defence.

 

There is a total defence in respect of a dodgy Default Notice and that follows. At the moment it is purely for information... it will need to be amended to suit your particular circumstances.

 

The assignment will also play an important part of your defence if it was done incorrectly so we will need to know the date it was assigned (in particular was it assigned prior to the remedy date on the Default Notice).

 

If you can provide the information requested above, then we can help you put together a defence. .. Ok ?

 

PS.. do you still have the recorded delivery slip and proof of receipt of your defence that was sent to the court.. and was this sent to Northampton Bulk Centre or a local court ?

 

 

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also 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).

 

6. The 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

[Guest dvdriley]

please see attached dn and claim form.

 

My cpr rrequest was ingnored but on day of court hearing the sol handed me copy of ca and assignment. she confirmed that dn had not been sent. judge did not include intstruction in the order but just told the sol to make sure one was sent. I HAVE not yet submitted a defence. I thoughjt if my cpr was ignored i would submit an embarrasse defence which i did. Court said they did not recive it. It was sent again with mu application to have ccj set aside.

 

All the above seems irrelevent now as the judge has made the order as per my post 19.

 

I dont have proof of sending my first embarrassed defence but the judge does not seem bothered about that. For the first 5 mins of the hearing she thought i was talking about a ccj default notice, she has never heard of a cca dn!!!

[Guest dvdriley]

see attached should be bigger

[Guest dvdriley]

sorry try again

mbna assign 2.pdf

mbna dn 2.pdf

mbna claim2.pdf

[Mightyacorn]

Very similar to my thread:-

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/175074-mbna-let-battle-commence-8.htm

 

This will be anoher instance where Cohens do not have the documents in their possession when making the claim.

 

You'll get the usual replies from Cohens over document requests.

Edited March 4, 2010 by Mightyacorn

[Guest dvdriley]

Thanks, iwonder if someone could cast an eye over this defence

MBNA DEF CF.doc

[citizenB]

The application for judgement to be set aside has been adjourned for me to submit my defence. I phoned the court and there is a back log but she read the order out

 

" The defendent to file and serve a defence statement in support of application for judgement to be set aside specfically in regard to defeault notice and relevant provisions on the cca act 1974 upon which you seek to rely by 16.00 on 12th march "

 

" the claiment, if so instructed file a reply by 23rd March ".

 

Then she just nodded to claiment and said dont forget to send him a copy of the dn.

 

The sol told me to send my defence to cohens and not clf, but clf is the claiment.

 

the hearing is listed for 45 mins

 

Yes, you need to send a copy of the defence to the Solicitors, not the claimant.

 

The defence looks fine to me. Just a couple of points though.

 

7. The notice of default also states that the breach must be rectied “BY”, therefore still giving me enough time to receive the document and rectify the matter. (should read rectified)

I am not sure what you are saying here if enough time is being allowed for you to rectify the matter then there is no dispute !. Should that be, not allowing you enough time !

You may need someone else to comment on the Assignment. I wonder if there is any mileage in the fact that Lewis Debt Recovery has notified you and not CL Finance who are apparently the assignees. Might be worth having a word with

DonkeyB and/or vjohn82.

Edited March 5, 2010 by citizenB

[Guest dvdriley]

Thanks

[DonkeyB]

Don't believe this... just did a detailed reply and my connection went bang... let's try again...

[Guest dvdriley]

looking forward to it!!!

[DonkeyB]

I'll cut it down to a single question, to establish whether there's any chance of unlawful rescission. In the claim form, what date did the PoC say the account was assigned from MBNA to CL? Was it 22 January or 18 February? You've blanked it out.

 

22 Jan = good news.

[DonkeyB]

Woo hoo!

 

I've just fiddled in Photoshop - it's 22 January. Therefore the account was terminated by sale to CL before the DN could be remedied.

 

You are ONLY liable for the arrears, therefore. Need Vint on this one! However, you need to be, er, sure that you have written to MBNA and accepted the rescission. I'm absolutely sure you have a copy of that letter to MBNA somewhere...

 

What was the date on the termination notice they handed to you?