Mrs Ski vs Howard Cohen / CL Finance

[ski1382]

OK, a brief rundown of events upto now:

 

• N1 claim form received for a debt owed to GE / Santander, purchased by CL Finance and legal proceedings issued through H Cowen on same day (November 09)
  
• No DN received
  
• No notice of assignment from either the original creditor or purchaser
  
• CPR31.14 sent to Cohen demanding copies of
  
  • the agreement
    
  • the default notice referred to in the N1
    
  • notice of assignment
    

   

  [*]Letter received (eventually) from Cohen stating that they do not hold the documents but were obtaining them

  • Also offered us to 'grant a further 14 days to file a defence' once they had supplied the documents (suspect this was an attempt to make us go over the time limit for submitting a defence thus granting them a judgement by default).
    

   

  [*]Also sent an SAR to the original creditor

  • full (almost) set of statements received
    
  • list of correspondance
    
    • included in this list was a default issued in 2007
      
    • this default was subsequently settled and 'removed from collections' as stated in the list of correspondance
      

     

    [*]informed in the letter that 'DNs are issued automatically'

   

  [*]Court demand sent to Cohen's to supply the documents requested in our draft directions

  • Agreement
    
  • T&Cs
    
  • Default notice (with proof of service)
    
  • Notice of assignment (with proof of service)
    
  • Deed of assignement
    
  • Set of statements showing all payments & charges from the date of account opening to commencement of action
    

   

  [*]Cohen's subsequently requested more time which was granted.

  [*]Day after second time limit passed documents were delivered

  • agreement
    
  • T&Cs (although not obviously linked to the account)
    
  • Deed of assignment
    
  • Most statements
    
  • No proof of delivery for any documents
    
  • Default notice dated late 2007
    

   

  [*]Telephone call to Santander to clarify points in their SAR to which they responded by letter

  • The default issued in late 2007 was settled and the account returned to normal state
    
  • It is not possible to obtain copies of default notices as they are generated automatically - it is only possible to print the skeleton of the notice, there will be no dates or values in the copy.
    

   

Based upon all of this, I believe the main thrust of our defence is that as yet no relevant default notice has been served as the only one supplied was settled more than two years ago.

 

The default notice supplied is (I strongly suspect) a reproduction as there are many differences between it and one which I know to have been issued by GE five months later (on a different account). It is also very different in layout and wording to the skeleton notice I was sent by the original creditor in their letter.

 

I have not heard from the court as yet that the documents have been delivered - not sure if I will receive notification of this or not.

 

I have to submit a WS by 25th May and do not know where to start with it - so any help would be greatly appreciated!

Edited May 1, 2010 by ski1382

[foolishgirl]

Witness statements have to be set out in a certain format as dictated by

CPR 32 and CPR PD 32.

 

You must refer to each document you will use as evidence as an 'Exhibit' & accompany each exhibit with a seperate sheet as below:

 

Format of the witness statement

The top right hand corner of the first page should contain:

·The party on whose behalf the statement is made;

·The initials and surname of the witness;

·The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

·The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

·The date the statement was made.

The witness statement should be headed with the title of the proceedings.

The witness statement should:

·Be produced on good quality A4 paper with a 3.5cm margin;

·Be fully legible and should normally be typed on one side of the paper only;

·Be bound securely in a manner which would not hamper filing;

·Have consecutively numbered pages;

·Be divided into numbered paragraphs;

·Have all numbers, including dates, expressed in figures; and

·Give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement, for example [at page14 “ABC1”]

It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with. Each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.

Content of the witness statement

·The witness statement must, if practicable, be in the witness’s own words and should be expressed in the first person;

·The first paragraph generally sets out the “who, what and why” of the statement maker:

oWho the witness is – name, residential address (or business address if he is making the statement in a business or professional capacity, together with the position held and the name of his firm or employer)

oWhat the witness’s connection with the proceedings is

oWhy the witness is making the statement;

·Witness statements should deal with facts known to the witness. To demonstrate that this is the case, words such as: “Save where I indicate to the contrary, the matters set out in this witness statement are known to me personally.” Where a fact is not within the direct knowledge of the witness, it can be included but should be preceded by, for example “I am informed by [ ] and believe that ...”.It is important to state the source of any matters or information or belief;

·Witness statements in support of or in opposition to an interim application should contain only facts relevant to that application;

·Witness statements of lay witnesses should not contain legal argument. If it is necessary to refer to the legal position, a phrase such as “I am informed by my solicitor and believe that ...” maybe used;

·Witness statements must contain a statement that the witness believes the facts in it are true;

·Witness statements should be signed and dated.

Exhibits

Documents referred to in a witness statement should be produced to and verified by the witness and remain separate from the witness statement.

Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top.

Each exhibit should have a front page attached identifying its exhibit number and details of the statement to which it is exhibited.

The top right hand corner of the exhibit sheet should contain:

·The party on whose behalf the statement is made;

·The initials and surname of the witness;

·The number of the statement in relation to that witness, e.g. 1st, 2nd, etc.

·The identifying initials and number of each exhibit referred to in the statement. For example, if it is the witness’s first statement and it refers to three exhibits, these should be referred to as “ABC1” to “ABC3”. In a subsequent witness statement in the same proceedings, further exhibits would start at “ABC4”;

·The date the statement was made.

The exhibit sheet should be headed with the title of the proceedings. A centre-heading should state the exhibit number.

 

Each exhibit must be numbered consequentially & accompanied with a sheet thus:

 

 

On behalf of: Defendant

Witness: [Initials and surname]

Witness Statement 1

Exhibits: [sKI 1]

Date:

IN THE XXX COUNTY COURT Claim No:

 

 

 

BETWEEN

[________]

Claimant

and

[________]

Defendant

 

EXHIBIT “SKI 1”

 

This is the exhibit marked “SKI 1” referred to in the witness statement of [Mrs Ski] dated xxxx

[ski1382]

Hi all,

 

All been a bit quiet of recent, was supposed to be in court a couple of weeks ago but we all agreed to an adjournment as we could not make it on the set day, then out of the blue, a letter arrives from Cohen's.

 

They have offered a 'Consent Order' for an amount considerably less than their original claim (though still more than I feel is appropriate). They state that this would prevent further court action being necessary and would avoid the risk of a CCJ being registered against us. I don't doubt that this is true but do wonder if some sort of negative information would be placed on the credit file by accepting this.

 

On the face of it this seems like a fairly good deal, less that their original claim, repaid at a VERY LOW monthly amount over a term of more than six years.

 

A big part of me wants to accept it as it strikes me as being a 'win' for us, but this also means that Cohens expect to lose if it gets to court and we should go for that - completely torn, but leaning towards acceptance.

 

I also wondered about the possibility of contacting Cohnens about this and suggesting a compromise as I feel that the settlement amount is too high considering the PPI and charges on the account. Was thinking about suggesting a value of half of what they have requested but paid over one year as opposed to spreading it out over the more than six that their proposal would take.

 

What do you all know about these Consent Orders? Is this a good thing, should we go for it or does it come with a sting in the tail? If we should go for it, should we suggest the lower amount over a shorter period?

 

Looking forward to your responses!

[letsgetitsorted]

Hi Ski

 

my thoughts on this.

1)they offereing a good deal/reduced amount to pay back, you accept, you think thats it, they carry on filling the claim and win by default.

2) they say you accept the consent order thus admitting liability you end uppaying they costs as well,

3)they offered me a consent order, dated 30th february 2010 which ment if i had signed it i was admitting the debt and they could have continued to pursue it, but i dug in deep and they ended up discontinuing their claim as they didnt have a leg to stand on.

 

thats my take sorry if its not much in they way of advise, buts thats the way i see theese people playing the game..

 

you decission in the end though..

cheers

[ski1382]

Thanks for your comment, hadnt really considered that possibility as in the letter they have stated that all further action will be terminated, however I know that they are pretty unscrupulous and will be taking this on board!

 

Anyone else got any thoughts?

[foolishgirl]

letsgetitsorted is correct to be wary of consent orders & the costs issue, ski. However if a consent order is signed & put beofre a DJ for recording as part of your case, they cannot obtain a CCJ unless you default on the terms of the consent order. In practice that means that if you are even a day late in a payment being received, HC will apply immediately to the court for that CCJ & any further enforcement they consider necessary.

 

Could you post up what they have sent you as a draft CO please? (minus personal details)

[AndyOrch]

Hi Ski

 

my thoughts on this.

1)they offereing a good deal/reduced amount to pay back, you accept, you think thats it, they carry on filling the claim and win by default. Not true and not possible a CO or TO stays litigation unless either party breaks the terms.Once a CO/TO is agreed it is sealed by the Court and confirmed with a general form of judgment or order (N24)

2) they say you accept the consent order thus admitting liability you end uppaying they costs as well, Again not true signing of a CO does not admit liability and you can request within the consent no order as to costs

3)they offered me a consent order, dated 30th february 2010 which ment if i had signed it i was admitting the debt and they could have continued to pursue it, but i dug in deep and they ended up discontinuing their claim as they didnt have a leg to stand on. See point 2

thats my take sorry if its not much in they way of advise, buts thats the way i see theese people playing the game..

 

you decission in the end though..

cheers

 

letsgetitsorted is correct to be wary of consent orders & the costs issue, ski. However if a consent order is signed & put beofre a DJ for recording as part of your case, they cannot obtain a CCJ unless you default on the terms of the consent order. In practice that means that if you are even a day late in a payment being received, HC will apply immediately to the court for that CCJ & any further enforcement they consider necessary. Not quite FG within any Consent/Tomlin order correctly drafted within the schedule, a missed payment option is included and usually allows notice to be given, a default and then a further 14 days to get the payment back on track.If payment is still not made then the Claimant shall be at liberty to apply to lift the stay and enter judgment.Again with recourse of the Court and both parties present to present the reason as to why payment was missed.So not that cut and dry.Any CO/TO is quite protective of both parties and neither have the upper hand once one is consented to.

Could you post up what they have sent you as a draft CO please? (minus personal details)

 

Regards

 

Andy

[consumeredge]

Typical Cohens Consent Order

 

 

In The XXXXXXX County Court Claim Number XXXXXXXX

 

 

 

Between: CL Finance Limited Claimant

 

And: Defendant X Defendant

Before an Officer of the Court

BY CONSENT

1. The parties having agreed the terms of settlement in the

schedule attached hereto, all further proceedings in this

action be stayed save for the purposes of carrying into effect the

terms in schedule hereto.

 

2. There be no order as to costs.

 

3. Liberty to apply.

Schedule

The Defendant do pay the Claimant the sum of £XXX.XX by monthly instalments of £XX.XX commencing one month from the date of this order.

 

Signed………………………………………….(Solicitors for) Claimant

 

Signed………………………………………….(Solicitors for) Defendant

 

Dated: 10 August 2010

 

The court office is open from Monday to Friday 10:00 am to 4:00 pm.

 

(Ref: 7836/001399-D6)

 

 

 

Cohen will send a defendant 3 copies (never signed by themselves) asking these be signed and returned immediately, what puzzles me is that the defendant then has no copy for his records? nor is the defendant advised to have a solicitor examine this to valid if the consent order complie with CPR 40.

[consumeredge]

Typical Cohens Consent Order

 

 

In The XXXXXXX County Court Claim Number XXXXXXXX

 

 

 

Between: CL Finance Limited Claimant

 

 

And: Defendant X Defendant

 

 

 

Before an Officer of the Court

 

BY CONSENT

1. The parties having agreed the terms of settlement in the

schedule attached hereto, all further proceedings in this

action be stayed save for the purposes of carrying into effect the

terms in schedule hereto.

 

 

2. There be no order as to costs.

 

 

3. Liberty to apply.

 

 

Schedule

The Defendant do pay the Claimant the sum of £XXX.XX by monthly instalments of £XX.XX commencing one month from the date of this order.

 

Signed………………………………………….(Solicitors for) Claimant

 

Signed………………………………………….(Solicitors for) Defendant

 

Dated: 10 August 2010

 

The court office is open from Monday to Friday 10:00 am to 4:00 pm.

 

(Ref: 7836/001399-D6)

 

 

 

Cohen will send a defendant 3 copies (never signed by themselves) asking these be signed and returned immediately, what puzzles me is that the defendant then has no copy for his own records? nor is the defendant advised to have a solicitor examine this first to valid if the consent order complie with CPR 40.

[consumeredge]

Apoligises for the layout, copied pasted original then even tried to line it up, all to no avail

[sleepy jean]

Hi consumeredge, I have had one of these faxed to me via my place of work to sign and fax back. Can these faxes hold up in a court of law.?????.

[consumeredge]

Hi sleepy jean

 

A Defendant (Lip) is prohibited by the Civil Procedure Rules to sign a "by Consent" order.

 

So how does cohen get round this?

 

Sophisticated [problem], cohen ask for you to sign and return the "By Consent", many people I’ve seen receive 3 copies, cohen ask for all these copies to be signed and returned.

 

Signed……………...…….(Solicitors for) Claimant

Signed...A Defendant...(Solicitors for) Defendant

 

Ask yourself why cohen never signed on behalf of the claimant, and then ask for all copies to be returned, so that no incriminating evidence can be left behind.

 

The defendant unknowingly signs and returns all copies, cohen cross out the (Solicitors for) on the defendants line, then signs as Solicitor for the claimant, cohen if they wish can return the "By Consent" to the defendant.

 

Having admitted to the claim, should the defendant fail to make a payment, cohen will produce the "By Consent" document

 

Deleting the defendants (Solicitors for), the "document" reads as though the defendant signed of his own free will.

 

email a reply, whilst retaining for future reference I decline and dismiss document received purporting to be a "By Consent" order.

[ski1382]

Hi guys, sorry its all been quiet on here but I thought I would share the end result of this case with you.

 

Having initially ignored the consent (Tomlin) orders from Cohen they eventually made contact with us again shortly before it was due to go before the court. They were prepared to accept a settlement of about half of the alledged outstanding balance over a period of just shy of 7 years. Considering in the first instance we were prepared to pay the full amount demanded over 4 months which they refused (3 months was the maximum they would be prepared to accept) we considered this to be a pretty major back down on their part.

 

We asked for them to send through the new consent order for us to consider along with a letter stating that neither they nor any other entity may make a claim on the account. Also that no negative information be recorded on credit files and any negative information already stated on the file be removed. All incurred costs to be met by themselves and a guarantee that should we choose to pay the outstanding balance earlier than the agreement that they would not continue to demand the monthly installment even though the full amount had been paid (very suspicious on my part I know but, better safe than sorry!) This all arrived the following day and a some serious soul searching ensued over the next few days.

 

We contacted a solicitor friend who put us in touch with a litigation specialist who believed that the consent order was a better deal for us than cohen's (especially with the written guarantees already received). He also pointed out the incredibly poor wording of the order which would go against Cohen's should this case ever come back before a court. I won't go into the major details here as I would rather they didn't become aware it and correct it in future. Needless to say though if anybody receives an order with the same wording os this one then you are being given an additional advantage - message me for details.

 

In short, the litigation specialist felt that the offer was good enough for us not to risk having a judge on a bad day go against us and find in favour of Cohen's.

 

As an additional safeguard we asked Cohen's to sign the documents first and send them to us by post which be duly obliged. We made several copies of the agreement (both prior to and after signing) and returned it to them. In due course the courts contacted us informing us that further action had been cancelled and that all costs had been met by Cohen's.

 

Not exactly the result I would have wanted in an ideal world but certainly it has saved us several hundred pounds and cost Cohen's a dammed sight more than that. For that reason I am considering this a victory (as certainly I don't think that Cohen's could claim it to be the outcome they desired!!)

 

Cheers everyone for your help and if I can be of assitance to anyone please let me know

[AndyOrch]

Well done SKi

 

 

Regards

 

Andy

[sleepy jean]

Hi CL finance have sent a copy of one of these to me for my court hearing on Friday but there is a line across under schedule and it is showing no signatures at all.

It looks like it may have been tampered with and the bottom part removed ???? I have posted my problems with them on a legal issues forum, but any help will be greatly appreciated. Many Thanks

[Ganymede]

Hi sleepy jean

 

A Defendant (Lip) is prohibited by the Civil Procedure Rules to sign a "by Consent" order.

 

So how does cohen get round this?

 

Sophisticated [problem], cohen ask for you to sign and return the "By Consent", many people I’ve seen receive 3 copies, cohen ask for all these copies to be signed and returned.

 

Signed……………...…….(Solicitors for) Claimant

Signed...A Defendant...(Solicitors for) Defendant

 

Ask yourself why cohen never signed on behalf of the claimant, and then ask for all copies to be returned, so that no incriminating evidence can be left behind.

 

The defendant unknowingly signs and returns all copies, cohen cross out the (Solicitors for) on the defendants line, then signs as Solicitor for the claimant, cohen if they wish can return the "By Consent" to the defendant.

 

Having admitted to the claim, should the defendant fail to make a payment, cohen will produce the "By Consent" document

 

Deleting the defendants (Solicitors for), the "document" reads as though the defendant signed of his own free will.

 

email a reply, whilst retaining for future reference I decline and dismiss document received purporting to be a "By Consent" order.

 

 

It is standard practice for the Defendant to sign first and then once the Claimant has it back they sign and date it. Copy documents always go to the Court in triplicate so that is why 3 copies need to be signed. You should always make a copy yourself just in case.

 

Does CPR 40.6 (2)(b) apply if a DJ seals the Order and not an Officer of the Court?

[sleepy jean]

Hi Ganymede, Thanks for taking a look for me I only signed this 1 copy I have and they asked me to fax it to them which is what I did and why I still have it. Is it worth me sending a SAR just to try and see what they have on me. Have you seen the letter CL sent me stateing enforcement action will not be taken against me while my CCA req was still outstanding ????

[sleepy jean]

Hi CM Just noticed (how thick am i) the form that I signed and sent back says Before an officer of the court, Well thats not true to start with because yesterday was the first time I have been to court

[Guest]

.......Does CPR 40.6 (2)(b) apply if a DJ seals the Order and not an Officer of the Court?

 

good point. an LiP is not 'prohibited' from signing a con order. 40.6 2 b means that if there is an LiP, then it would not be for the 'Court Officer' to '..seal' the order. Practice Direction 40b para 3.3 then applies.

if an LiP is signing a con order, then it should be made clear that it is signed by the LiP and not a legal rep.?

imo

Edited May 18, 2011 by Ford
typo

[consumeredge]

Hi Ganymede

 

After my post, Sleepy Jean sought additional advice from a Solicitor who guided her to a Litigation specialist, If a DJ seals a Tomlin Order, nee, By Consent, the order must first contain a box/space for the DJ to sign and include his judicial title.

 

cohen hasn't so Sleepy Jeans cannot be a Tomlin Order in the meaning of the Act

 

cohen always issue summons then send a "By Consent" purely to intimidate the person into signing so as not to have to face the trauma of a court hearing.

 

I beleive Consent Orders are good things, but only if they comply with the Law. cohens don't.

 

I think the Solicitor and Litigation expert thought cohen willing to accept £5k for the outsatnding balance owed, was a good deal for Sleepy Jean, with the knowledge if it went wrong cohens "By Consent" was flawed

 

Quote:

 

"We contacted a solicitor friend who put us in touch with a litigation specialist who believed that the consent order was a better deal for us than cohen's (especially with the written guarantees already received). He also pointed out the incredibly poor wording of the order which would go against Cohen's should this case ever come back before a court. I won't go into the major details here as I would rather they didn't become aware it and correct it in future. Needless to say though if anybody receives an order with the same wording os this one then you are being given an additional advantage - message me for details.

 

In short, the litigation specialist felt that the offer was good enough for us not to risk having a judge on a bad day go against us and find in favour of Cohen's.

 

As an additional safeguard we asked Cohen's to sign the documents first and send them to us by post which be duly obliged. We made several copies of the agreement (both prior to and after signing) and returned it to them. In due course the courts contacted us informing us that further action had been cancelled and that all costs had been met by Cohen's."

 

I've no wish to enter any arguments, Sleepy Jean pm'd me I've replied

 

Edge

[Guest]

... If a DJ seals a Tomlin Order, nee, By Consent, the order must first contain a box/space for the DJ to sign and include his judicial title. as per CPR Practice Direction 40b para 3.3.

 

 

Edge

 

imo

Edited May 18, 2011 by Ford
typo

[Ganymede]

imo

 

 

 

For the record a DJ never signs a Consent Order/Tomlin Order. The PD you refer to means that the dratf order should begin "Before................." and have a space for the DJ's title and name to be inserted but that is it.

 

Nonetheless this will not be fatal and can be easily circumvented as the Order approving the draft will say which DJ it was before and the date etc before referring to the attached schedule/draft order/consent order etc.

[Guest]

For the record a DJ never signs a Consent Order/Tomlin Order. The PD you refer to means that the dratf order should begin "Before................." and have a space for the DJ's title and name to be inserted but that is it.

 

Nonetheless this will not be fatal and can be easily circumvented as the Order approving the draft will say which DJ it was before and the date etc before referring to the attached schedule/draft order/consent order etc.

 

 

 

 

yes, PD 40b 3.3 is self explanatory. and applies where a party is LiP.

for ease of reference:

'Where a consent judgment or order does not come within the provisions of rule 40.6(2):

(1) an application notice requesting a judgment or order in the agreed terms should be filed with the draft judgment or order to be entered or sealed, and

 

(2) the draft judgment or order must be drawn so that the judge’s name and judicial title can be inserted.'

justice.gov.uk

 

 

CPR 40.6(2)(b) prevents a 'court officer' from sealing (an order) where a party is a LiP.

 

not quite sure what you're getting at!

 

imo

[Ganymede]

yes, PD 40b 3.3 is self explanatory. and applies where a party is LiP.

for ease of reference:

'Where a consent judgment or order does not come within the provisions of rule 40.6(2):

(1) an application notice requesting a judgment or order in the agreed terms should be filed with the draft judgment or order to be entered or sealed, and

 

(2) the draft judgment or order must be drawn so that the judge’s name and judicial title can be inserted.'

justice.gov.uk

 

 

CPR 40.6(2)(b) prevents a 'court officer' from sealing (an order) where a party is a LiP.

 

not quite sure what you're getting at!

 

imo

 

 

I was commenting on the actual make up of the Order and how it should be worded etc.

[Guest]

ed

Edited May 19, 2011 by Ford
correction :)