URGENT HELP needed with Howard Cohen

[Midas029]

Back in July 2007 I bought a sofa through DFS.

Due to financial difficulty I stopped making payments for it in approx Jan 2009 to CL Finance.

 

I recieved a letter from Howard cohen dated 18/12/09 as a notice of assignment. It was not recieved as recorded delivery.

It also stated that a claim has been submitted to the county court.

 

On the 29/12/09 i recived another letter from HC saying that I should have recieved a county court claim in this matter (it came the next day)

 

The reason why it has taken me so long to post is because my Father suffered a massive heart attack on the 30/12/09 and is still critically ill.

 

I submitted my Acknowldement of service to the court today and that I intend to defend the claim.

 

I presume I need to ask for a cca first?

 

What do I do then as I know have another 14 days to submit defense and have absolutely no idea what to do or send to HC other than a cca request.

 

any assistance greatly appreciated.

[PGH7447]

you need to send cohen a cpr31 request it is too late for a cca and anyway the cpr will cover this

 

also take a look in the legal forum for threads on cohen

[postggj]

Dear Sir,

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 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. Further, that any general conditions incorporated in the contract should also be attached.

2 the assignment*

3 the default notice*

4 the termination notice*

5 [any other documents mentioned in the Particulars of Claim]*

* delete if not mentioned in the Particulars of claim.

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

# delete if claim for a sum exceeding £5,000.00

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

[Midas029]

Thankyou for your replies.

 

I will a browse on the legal threads and also get the letter kindly provided, by recorded delivery.

 

Once again thanks and I will of course update.

[themagician]

Back in July 2007 I bought a sofa through DFS.

Due to financial difficulty I stopped making payments for it in approx Jan 2009 to CL Finance.

 

I recieved a letter from Howard cohen dated 18/12/09 as a notice of assignment. It was not recieved as recorded delivery.

It also stated that a claim has been submitted to the county court.

 

On the 29/12/09 i recived another letter from HC saying that I should have recieved a county court claim in this matter (it came the next day)

 

The reason why it has taken me so long to post is because my Father suffered a massive heart attack on the 30/12/09 and is still critically ill.

 

I submitted my Acknowldement of service to the court today and that I intend to defend the claim.

 

I presume I need to ask for a cca first?

 

What do I do then as I know have another 14 days to submit defense and have absolutely no idea what to do or send to HC other than a cca request.

 

any assistance greatly appreciated.

are you sure you received the notice of assignment as not recorded delivery !

are you sure you did.??????????????????????? really sure you did your honour.?? if you went to court you would have to prove all correspondance with these peopl so it must work the other way ,

 

 

mustnt it ???

[UnmoderatetheNet]

All that will be revealed in the response to the CPR 31.14 Request....................of course assuming HC reply.

[DonkeyB]

All that will be revealed in the response to the CPR 31.14 Request....................of course assuming HC reply.

 

I wonder what will come next... the flat refusal to supply, or the generous granting of an extra 14 days to file your defence while they look for the documents they don't have (and sneak in a default judgment in the meantime)?

[Midas029]

Okay the letter is going off tomorrow by recorded delivery (haven`t had chance to do sooner because of my Father being so ill)

Do I just send it to hc or to the courts as well?

[DonkeyB]

No, CPR request only goes to HC. Remember to send it recorded.

[Midas029]

Okay, Do I need to do anything else like contact the court?

[Midas029]

Bump

[DonkeyB]

What was the date on the claim form? It's not clear from your posts. You MUST defend it and I'm worried about your timings - you need to acknowledge service asap stating that you will be defending the claim. This gives another 14 days to get the documents from HC and prepare your defence.

[Midas029]

thanks Donkey b, yep I have sent the acknowledgment of service saying I am defending the claim in full and that gave me another 14 days from the 12th of Jan, I am posting letter today recorded to HC so it gets there before the 26th.

I don`t know what to do from there?

 

thanks for your help.

[DonkeyB]

If HC don't respond, you'll have to post an embarrassed defence. However, as pt2537 states in his excellent thread (link below), you may want to be more proactive and insist on the documents and ask for extra time to file your defence. Have a good read of the whole thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

[Midas029]

thanks Donkey B, had a good read and prepared the following letter seen below, let me know of any changes that may apply. ta

 

A couple of questions though.

 

Once sent do I ring the court and let them know that I have asked hc for CPR31.15 and wish for an exstension to file my defence?

 

Also how long do I give hc to respond before putting in an embarresed defence?

 

Thanks

 

Dear Sir,

 

 

Re: Howard Cohen & Co Solicitor v Case Number

CPR 31.14 Request

 

On 26th Dec 2009 I received the Claim Form in this case issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 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. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment*

 

3 the default notice*

 

4 the termination notice*.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

 

 

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[DonkeyB]

I think pt2537 said that once there is an AGREEMENT to an extension, you must remember to inform the court of this. Keep everything recorded!

 

As for an embarrassed defence, I imagine it's needed once they're out of time on your request - at the latest by the final date for your defence to be submitted. Those dates will be very close together anyway.

[Midas029]

Thanks again DonkeyB, will send the letter recorded today and inform the court.

[DonkeyB]

Hopefully someone can confirm what I've said is OK - want to be sure we get it right!

[postggj]

dont pussyfoot around

 

if after the embarrassed defence has gone in, if after 28 days coward still has not given the info, go for strike out, you dont want a stay

[DonkeyB]

Thanks - spot on as usual!

[Midas029]

Thanks for the replies and help.

 

Letter gone recorded to hc. I`ll call the court tomorrow and wait the seven days to see if they reply and what with and report back with any news.

[Midas029]

I`m a bit confused. I sent the letter to hc and then I rang the court a moment ago.

 

They aren`t very helpfull but I have to submit a defence today online.

 

I don`t really know where to go from here?

 

Do I paste the CPR 31 request that I sent to hc as my defence?

 

Help

[DonkeyB]

As postggj says, you need to file the 'embarrassed' defence. No, don't paste the CPR request - I'll see if I can find a suitable defence. They're all over the forum in Cohen cases.

[Midas029]

Thanks DonkeyB

[DonkeyB]

OK Midas, this is a straight cut and paste - there are things need sorting in it, but you can cut and paste it and start to personalise it. Can you repost your version (with personal details omitted) then we'll start the edit!

 

 

In the Northampton County Court

Claim Number: XXXXX

 

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 not replied to the defendant's valid request.

 

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)

 

Notice of assignment

 

22. The claimant has failed to supply a notice of assignment, be it the assignment being absolute in bringing legal action against the claimant

23. The notice of assignment supplied by the claimant has been

supplied on the claimants solicitors headed paper, being a third party.

24. The notice of assignment has not been actioned by the creditor, only the creditors agent, so the defendant maintains the claimant has no justification in bringing this action.

 

25. the defendant quotes the legislation contained under section 196 of the law of property act 1925.

 

196 Regulations respecting notices paragraph 4

 

(1)Any notice required or authorised to be served or given by this Act shall be in writing.

(2)Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be sufficient, although only addressed to the lessee or mortgagor by that designation, without his name, or generally to the persons interested, without any name, and notwithstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained.

(3)Any notice required or authorised by this Act to be served shall be sufficiently served if it is left at the last-known place of abode or business in the United Kingdom of the lessee, lessor, mortgagee, mortgagor, or other person to be served, or, in case of a notice required or authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for the lessee at the office or counting-house of the mine.

(4)Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

(5)The provisions of this section shall extend to notices required to be served by any instrument affecting property executed or coming into operation after the commencement of this Act unless a contrary intention appears.

 

26. The defendant puts the claimant to strict proof that the notice of assignment was served on the defendant by registered mail and that the claimant serve proof of this by the royal mail track and trace system and bar code numbers.

 

 

 

 

 

Conclusion

 

27. 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.

 

28. 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

 

29. 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.

 

30. 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