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Mrs Ski vs Howard Cohen / CL Finance


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Can you check the date your defence has to be in? 2 January is, I think, a Saturday.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

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DonkeyB, you are quite right, the 2nd is a Saturday, but that is the 32nd day after the notice was served. Does it have to be in on the 31st December then? Or maybe the 4th Jan?

 

Kim, no, not even the standard "get f****d" response!

CAG - Power to the People

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Just make sure your defence gets to the court before that date.

Make sure you send it guaranteed next day delivery.

I was in court with cowards yesterday.

The Barrister they sent had no defence from me,no witness statement from me,they had sod all.

The judge was not pleased.

So don't give the judge any ammo.

Just follow the rules.

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Presumably the barrister did not have a copy of your defence as Cowards had not given it to them rather than you not sending it?

 

Do I need to do a awitness statement now too, or does that come later??

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What is happening now with your case K6? I know it has been stayed, but what will the next step be?

 

Thanks for the reassurance, was a little bit panicked then!

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Hi guys,

 

Received a letter from Coward's today (Saturday), it seems that this is a different letter than others have received so would appreciate your collective take on it!

 

Letter2anonymised.jpg

Obviously they have immediately admitted that they do not posess any of the documents they are referring to which I take as a good start. Surely the copy of the letter before action that I requested (that I believe they are obliged to send me before commencing court proceedings) must be in their posession?????? :confused: Surely they haven't lost it like Royal Mail did the first time??? :shock:

 

Anyway, what do you all think we should do now??

 

Thanks in advance for your much anticipated valuable advice!

Edited by ski1382
Scanner fixed!

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Seems to be thier standard response of late.

No doubt caggers well up on this subject will be abel to best advise you on what if anything to do with this.

 

I had exactly the same response from them, i didnt need thier generous offer of 14 days to submit my defence as i stuck to the timescales and submitted an embarrassed defence in before the letter landed.

My bite is worse than my bark

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Get your embarrassed defence in - Cohen's are in no position to give you an extension! They would go for a default judgment straight away. You must report this attempt to deceive you to the court.

 

Do not miss your deadline for getting your defence in! And keep that ludicrous letter safe - a few others have had it, and it is complete and utter nonsense.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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Thanks guys,

 

That was my impression. Didn't understand how they could issue her an extension when they were the ones required to provide information.

 

Will post up a draft of our defence tomorrow, will probably need some help as they have not refused to co-operate.

 

Thanks again!

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Stop being nice to them - they have taken you to court without having the requisite documents available. My instinct is to say f*ck 'em and cause them as much trouble as you can.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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Evening,

 

Stick to your original timescales and submit the embarressed defence as previously mentioned.

I agree they may be looking to get a win by default.

 

DonkeyB

 

Could you expand a bit on your comments in post #22 about the no LBA and costs issue please...

 

Regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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Stop being nice to them - they have taken you to court without having the requisite documents available. My instinct is to say f*ck 'em and cause them as much trouble as you can.

 

LOL! :D Didn't mean to give the impression that I was being nice to them! What I meant was that all the other embarrased defences I have seen so far have made the point that they refused to co-operate rather than that they stated they were trying to obtain the documents. Will post up my draft in a few minutes (once appropriately anonymised!)

Edited by ski1382

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The embarrased defence as it stands. Comments welcome and appreciated, particularly on point 10!

 

 

In the Northampton County Court

 

Claim number xxxxxxxxx

 

 

 

 

Between

 

 

 

C L Finance Ltd - Claimant

 

 

 

 

 

and

 

************ - Defendant

 

 

 

 

 

Defence

 

1. I ************** of ***************, am the defendant in this action and make the following statement as my defence to the claim made by C L Finance Ltd

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

d) ) The claimant did not send a Letter Before Action as required under the Pre-Action Protocols.

 

d) ) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof.

 

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

 

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. Since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Excerpt taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 18th December 2009.

 

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

 

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

8. Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

 

The Request for Disclosure

 

9. Further to the case, on ***DATE*** I sent a letter by recorded post requesting the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.

 

10. To date, the claimant has replied only to confirm that they do not have the documents requested in their possession and to inform the defendant that once they have provided the documents they will grant a fourteen day extension in order to formulate a defence (letter attached marked Exhibit B).

 

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 11 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

 

13. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) of the Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

 

14. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

15. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order.

 

16. Notwithstanding points 11 and 12, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974.

 

17. The claimant is therefore put to strict proof that such a compliant document exists.

 

18. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal.

 

at para 26

"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

 

The Need for a Default notice

 

19. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. And that the said notice gave the prescribed period of time to remedy any breach

 

20. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. I 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)

 

21. 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 would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

 

 

Conclusion

 

22. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

 

23. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

24. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

25. Alternatively, Should the court order the claimant to produce the necessary documentation. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

 

Statement of Truth

 

 

I, believe the above statement to be true and factual

 

 

Signed .....................xxxx xxxxxxxxxxx

 

Date xxxxxxxxxxxxxx

CAG - Power to the People

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PostGGJ, I saw this post of yours in another thread and it worried me a bit!

 

Its 14 Days After Acknowleging The Claim To Put In Defence

Watch The Time Frames

Cohens Like To Get A Ccj By Default

 

You Have Till The End Of The Month

If Mcol, Its Instant

 

I thought I had 28+4 days in order to file a defence (essentially meaning 30th December), I believed it to be 14 days to aknowledge service and then an additional 14 days to file a defence. Can someone please clarify this or do I need to get that filed yesterday???!!

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It's 28+4 from the date on the claim form.

 

Just a thought...

 

As well as the defence, you might want to consider an application for a strike out on the basis that the claimant has brought the action and has admitted it is unable to provide any evidence of its claim within the required timescale. It's an abuse of process, surely? Hopefully others with more knowledge can advise on this.

 

Re the LBA/costs issue - hi Ghost Debt - Cohens issued this claim without ever contacting the defendant to ask for payment or reach an agreement. Therefore it can be argued that no CPR has been followed and the claim is an abuse of the court system, ie. no intention to reach any kind of settlement.

 

This could be the subject of a mass complaint to the SRA and the OFT regarding CL/Lewis/Cohen's behaviour. However, as HC is a bulk issuer, might the court service be rather too fond of the revenue?

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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as an issuer of proceedings they have a duty of care to make sure they are in a position to back up their POC - it does not matter if they issue one N1 a year or 200 a minute. If they do not have documents they they are not entitled to rely in the fact that they MAY exist.

 

This letter is total bull. Ignore totally. Stick to the timescales as said above.

 

This type of condescending letter really annoys me.

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Thanks both for your advice, it is reassuring that others have also received this letter. Think this may well be the most useful site on the internet.

 

Any thoughts on the defence published above?

CAG - Power to the People

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Hi DonkeyB,

No LBA seems to be standard fare for Cohen & Co. so am going to add something about it to my skeleton arguement plus a few other things I have read recently.

 

Hi Ski

Are you posting the defence or submitting it on MCOL?

There is a character limit on MCOL which you may or may not be ok with using what you have posted earlier.

Also,

I think point 10 could be expanded to say something about the relevant CPR parts for bulk centre claims issue and whether the documents should be filed at the same time.

Not sure of the exact details but am sure seen something on here somewhere so hopefully someone can point you in the right direction.

 

Regards

-

PLEASE NOTE - I am not a legal expert, my comments are based on information learnt or

obtained and from my own experiences.

-

Case 1 - C L Finance - Court Case 'Stayed' :-). Stay Lifted - N149 AQ Received & Filed. Case Struck Out :grin:

-

Case 2 - C L Finance - Defence Filed. N150 AQ Received & Filed. Case 'Settled by Consent' :)

-

Case 3 - EOS Solutions - No Agreement - Account Closed ~£3500. :grin:

-

Advice & opinions offered freely but informally, without prejudice & without liability.

Use your own judgment and seek advice from a qualified and insured professional if you have any doubts.

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With bulk claims or MCOL-claims, documents do NOT have to be attached as they should be with claims issued through a County Court. However, that doesn't mean the documents should not be available when the claim is made.

“The industry is rotten to the core, whether it is in-house recovery and collection, or where agents are used, or where the debt has been sold.” Andrew Mackinley MP, House of Commons, 22 April 2009

 

If a Cagger helps you, click their star. Better still, make a donation however small, so that CAG can continue to help others.

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