URGENT HELP needed with Howard Cohen

[Midas029]

Been having a nosy through some other threads and have come up with this to submit as defense.

 

Any comments?

 

DEFENCE

 

 

 

1. The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence. The Defendant has made a request for disclosure, pursuant to Part 31 of the Civil Procedure Rules, to the Claimant to allow him to properly respond to the claim. The Claimant has failed to respond to the Part 31 request.

 

2. It is Not admitted that the Defendant signed an agreement with XXXX . If, which is not admitted, such an agreement exists the precise terms and date of any such agreement are not admitted. The Defendant does not have in his possession any such agreement and is not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

3. It is averred that if any agreement existed that the aforesaid agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). It is not admitted that any such Agreement is enforceable within the terms of the Act. The Claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its' inception.

 

4. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice.

 

5. Further and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

 

6. Further and in any event in view of the failure to comply with the CPR Part 31 request it is denied that the Claimant is entitled to costs as claimed or at all.

 

7. In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all.

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

 

I am the Defendant.

 

 

XXXXX

 

 

Date

[Midas029]

Sorry DonkeyB i was posting same time as you, I`ll go through it and come back to you.

 

Thanks once again.

[DonkeyB]

Most of what I posted you won't need! But you need some important bits, such as the right to enter an amended defence. Have a read through and edit!

 

Donkey

[Midas029]

I am going through and have come across the part in point 6 about cca2006.

 

The deal was done in may 2007 so I need to remove that.

 

Does that have any relevance to the rest of the doc?

[Midas029]

Okay how does this look?

 

Thanks in advance

 

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 Request for Disclosure

 

6. 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.

 

7. To date, the claimant has not replied to the defendant's valid request.

 

8. 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, 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

 

9. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 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

 

 

10. 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

 

11. 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."

 

12. 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.

 

13.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.

 

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

 

15. 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

 

16. 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

 

17.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)

 

18. 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

 

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

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

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

21. 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.

 

 

 

22. 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

 

23. 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.

 

24. 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

 

25. 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.

 

26. 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

[Nagasis]

Hi midas, i am hopefully wrong (and anyone shout up to prove it) but isnt your defence too long to enter online?

 

I don't know the size limit (if any), might be worth checking out.

[Midas029]

Hi midas, i am hopefully wrong (and anyone shout up to prove it) but isnt your defence too long to enter online?

 

I don't know the size limit (if any), might be worth checking out.

 

You were right, I trimmed it right down and filed online.

 

Will update when news arrives.

[postggj]

White Flag From Coward

[DonkeyB]

Sorry Midas, head buried in research on another thread. Only if your account was opened after 6 April 2007 is there any issue.

[Midas029]

Sorry Midas, head buried in research on another thread. Only if your account was opened after 6 April 2007 is there any issue.

 

 

I submiited this to the court, the account was opened in approx may 2007

 

 

 

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

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.

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.

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.

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.

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

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 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.

It is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Further to the case, on 21st Jan 2010 I sent a letter by recorded post requesting the disclosure of information pursuant to the CPR 31., which is vital to this case from the claimant.

To date, the claimant has not replied to the defendant's valid request.

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 any power of the creditor to vary what is payable

The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3).

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.

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.

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

The Need for a Default notice,. 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.

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

The notice of assignment supplied by the claimant has been

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

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.

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.

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.

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

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.

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.

 

What is likely to happen now?

[Midas029]

Well yesterday was the last day that hc could have replied.

 

I spoke to the court earlier and they have heard nothing from hc.

I have been told that the case is now stayed but hc have 6 months to respond.

What does stayed mean?

 

Is there anything more to do or just leave it be and see what happens.

[Midas029]

I receieved the following letter from hc dated the 5th of march even though my request was by recorded delivery on 21st Jan 2010.

 

letterdated5thmarchj2010.jpg picture by midas029 - Photobucket

 

Today I recieved a allocation questionaire dated 9th March 2010.

 

I rang the court to ask what should be done as I have recieved no documentation from hc ref my cpr request.

 

I think from reading other threads that hc were suppose to respond within 7 days? Is that right?

 

Also that they legally have to supply me with documentation on which they are basing their claim under my cpr request.

 

Really its what to do now.

 

Can I apply for it to be struck out and if so how do I do that?

 

Thanks

[Midas029]

Bump

[Midas029]

sorry bumped again, could do with some advice on this. Ta

[Midas029]

Bump, help

[Midas029]

bump

[new-me2010]

Bumping for you midas

[Midas029]

Bump

[ashmk]

My go, Bump

[Midas029]

Bump. Anybody help with this I need to get a defence together.

[Mightyacorn]

Midas,

I take it that you have not yet received an Allocation Questionnaire ?

[Midas029]

Midas,

I take it that you have not yet received an Allocation Questionnaire ?

 

 

Yes I have. It has to be in by the 26th March. I been looking through older threads to try and work out how to fill it in.

 

hc haven`t responded to my cpr request so I am in a bit of a quandry.

[Mightyacorn]

Some useful threads when needing help filling out Allocation Questionnaires.

 

Link Financial county court Summons - N150

 

Directions for N150 or N149 allocation questionnaire - PT2537's guide to N149 & N150 aq's

 

Allocation Questionnaire ...Urgent help needed please!!! - N150

 

Court papers received- what now??!!**WON**CASE dismissed - N149 (with draft order for directions)

 

upto the eyeballs v CL Finance No CCA IN COURT ** Help ** - N150

 

The dreaded court claim came today... - N150

 

 

(With thanks to Supasnooper)

[Midas029]

Someone help with this it has to be in by the 26th.

 

I have looked at the threads ref filling in the AQ what do I attach with it if anything ref my defense?

 

Thanks

[DonkeyB]

Bumping for you - alas tied up in my own legal (corporate) mess for today!