Notice of Allocation received from court - not sure what to do now

[foolishgirl]

Hi Rainbow - looking in as requested.

 

I agree with Mercyblue. You just need to comply with the AQ directions at this stage. Print the N265 off & send the docs with it. If the court wish you to send an amended defence or WS prior to the hearing they will let you know.

 

It is rare to receive such explicit directions on an AQ. Maybe this court's judiciary have wised up to Cohens tactics & will review the case after 3 Feb with a view to a strike out. However if they don't & Cohens don't supply your docs or discontinue of their own volition, I would put in an application for a strike out yourself. It's easy & the costs can be recovered from Cohens.

[foolishgirl]

Phone the court & see if they have received the AQ. More than likely the court will send them a reminder.

If a copy arrives from them on your mat, it will be a bonus.

[foolishgirl]

Can you post up exactly what the court ordered on the Allocation Notice following submission of your AQ & draft directions please?

[foolishgirl]

That's the one Rainbow - sorry, must get specs

 

OK, I think I would wait until 15 March, check with the court the hearing fee has not been paid (let them truly bury themselves!) & then apply for a strike out immediately. It will cost you £75.00 but is reclaimable from the claimant if it is granted. Have it all ready to go for the 15th

 

The application has to be done on a N244. You can get the form here:

http://www.hmcourts-service.gov.uk/courtfinder/forms/n244_e.pdf

 

If you need help with the wording, shout...

[foolishgirl]

Well they should have paid the hearing fee already. As your case is on small claims the fee must be paid within 4 days of the dispatch of the trial date notice.

 

Rainbow will confirm but I think they have been given until 15/03 to pay

[foolishgirl]

Check with the court again in another couple of days to see if the reminder has been sent out. If not you could consider putting in an application for a strike out yourself but this would cost you upfront although the cost could be reclaimed from HC if you get your order.

[foolishgirl]

just wondered though if this does get a strike out, what happens to the court costs already applied? Thanks again

 

Which court costs rainbow? Yours? If so you would need to apply for a wasted costs order.

[foolishgirl]

Rainbow, you should be able to walk this!! No wonder the clerk thinks Cohens won't bother turning up, they must know that unless they get an exceptionally poor DJ & a dumb LIP (which you clearly are not) they are on a loser on this one.

 

1. Right at the top of your thread the AQ states that the following docs. must be supplied to you

(a) copies of the agreement & T&Cs etc.

(b) DN compliant with S87

© contract of deed or assignment

(d) NoA with proof of service

(d) statement of account

 

In addition originals must be produced at the hearing.

 

2. As I said in my pm & by others on your new thread, the WS is rubbish.

 

So dealing in order of relevance:

 

1. No originals, court order not complied with - case should be struck out

 

2. Where are the original Deeds of Assignment GE to Santander, Santander to DCA? If they can't be produced how do you or the court know that the claimant has a legal right to action? Plus the court has ordered their production.

 

3. NoA - proof of service please!

 

2. If original of agreement produced in court,

(a) does it comply with the CCA1974 re. prescribed terms?

(a) who put on the interest figures at the top of the agreement & when????

(b) where's the witness who wrote the WS? Can she swear she was responsible for these markings?

© if she isn't there, why were you not given opportunity to summon her to court? ('course we know why - it was submitted so late!!)

 

3. Where is the DN compliant with S87?? The copy you have is not compliant. If you are not sure how to explain this in court, shout.

 

4. Last, but by no means least, the AQ states that 'the court may disregard any docs. not served in compliance with these directions/or may srtike out the defaulting parties statment of case'. There is therefore no excuse for the court not to do so on the information that has not been supplied either to you or the court.

 

Finally, make sure you have your costs to hand for approval when you win. Do not let them get away with claiming 'small claims' disposal, point the DJ to the provisions of CPR 44.3 (5)&(5) ;-) Strictly speaking your costs should have gone in 24 hours in advance of the hearing but you may be ablet to crave LIP indulgence; after all the claimants have been granted more than their fair share of indulgence!

 

Also, just in case it comes up, be sure to have an appropiate answer to the question ' you've had the money, why shouldn't you repay it?

[foolishgirl]

Rainbow, I've posted on your other thread...

[foolishgirl]

You definitely should make notes rainbow & also take copies of the relevant acts & judgments with you plus copies of all corresp. etc. Make extrta copies of these for the DJ in case he doesn't have them (courts do lose them ) I've put links to the Acts etc. below.

 

As stated above your defence (such as it is with no documents supplied by Cohens!) IMO should refer to the following:

 

1. Cohens have not complied with the court order so your defence is by necessity, incomplete & you find yourself in the embarassing situation of not having full knowledge of the allegations you have to defend.

 

2. You applied for further info. under CPR31.14 to which Cohens produced an unacceptable reply. (show the DJ your letters).

This is a company of sols. that seemingly does not have knowledge of the CPR & is not prepared to comply with either those rules or the directions of the court!!

 

3. Cohens have not produced a DoA from either GE to Santander or Santander to CL. Anybody could send you a NoA stating that they now owned the debt! Under the Law of Property Act an assignment can only be lawful if a DoA is signed by the parties to the assignment(s) (& it also has to be by a director of the companies concerned, not just Joe Bloggs in Admin!)

 

4. The agreement supplied does not comply with CCA1974, in particular S 60(1) CCA 1974 where the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

(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 )

The agreement they have produced does not contain an interest rate albeit something is scrawled across the top. By whom, when, where??? To what does it refer? How do you know if it is an interest rate?

Also refer to judgment: Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 if you have to.

"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

The court’s attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in above, it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore it is not enforceable by the court under S127(3) of the same Act.

 

5. The DN is not compliant with S87 (1) of CCA1974 that states:

"Service of a notice on the debtor or hirer in accordance with section 88 (a ´default notice') is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,

(a) to terminate the agreement

The Claimant is also put to strict proof that any Default Notice sent to the Defendant was valid. 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).

 

The DN supplied does not specify the actual date by which the default is to be remedied & therefore does not comply with the Regulations. Furthermore the Claimant has not produced Proof of Service as required under the above court order.

 

6. The Claimant has supplied some very poor copies of statements so it is impossible to assess if the sum claimed or that stated on the DN is correct.

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)

 

 

7. The Claimant has claimed for interest at some inexplicable rate. It is not referred to in Clause 7 of the agreement as stated & is not applicable anyway under The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974.

 

8. Costs - You should claim for any costs incurred in forming a defence to this claim. That includes photocopying, postage, tel. calls, time to attend court, travel to court, time to write corresp & research time. Your time is charged out at £9.25/hour LIP rate & as long as you don't claim more than 2/3 of what a sol. would charge, the DJ should permit it. Write it all down tonight. Take 2 x copies with you & a copy of the relevant CPR 44.

 

Links:

Results within Legislation - Statute Law Database

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998)

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1925/cukpga_19250020_en_1

PART 44 - GENERAL RULES ABOUT COSTS - Ministry of Justice

 

 

 

[foolishgirl]

Re. 'what if the judge says...' IMO your posting will not cut it. See here for ideas:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/191353-what-if-judge-asks.html

Edited March 29, 2010 by foolishgirl
typo

[foolishgirl]

Can't believe it rainbow!!

 

You seem to have really fallen foul of the DJ lottery. Was this a Deputy DJ by any chance?

 

Anyway good on you for not flailing under this onslaught & you have another chance to bite so let's make the most of it...

 

IMO, besides the company registration numbers that your DJ is obviously preoccupied with, maybe you can get a bit better grip of the illegible agreement argument (seeing as our good judge couldn't read it without a magnifying glass!) & then go for the S127 unenforceability issue. As it is pre-2007, it definitely applies & he clearly has no proper idea of its impact.

 

You may even be able to pull him back from misdirecting himself to the CCA 1974 i.e. on points of law that can be appealed. However you are going to have to do a lot of research & make sure you are absolutely solid on your knowledge of the law yourself, pointing out previous appeal judgments etc. aswell as the contents of the Acts.

[foolishgirl]

 

"Sir, with all due respect, there is a mountain of case law that can be referred to in order to assist you with your decision on this. The points I am disputing are points where High Court Judges have made rulings on and I would urge you to consider these to save the courts time and prevent costly appeals."

 

 

Excellently put!!

 

That's exactly how I would suggest Rainbow proceed but only if she can acquire all the judgments & background knowledge to present them confidently at the next hearing.

 

As her time is limited, perhaps subscribers to this thread could pitch in with examples of the relevant case law & quotes she could use?

 

She also needs to establish that GE Bank & GE Consumer Credit are 2 x separate companies & demand that Cohens produce a DoA to identify which one was responsible for the agreement & which one actually assigned them the debt.

[foolishgirl]

Well done vjohn.

 

Now, according to the DJ, it's up to Rainbow to decide who she thinks she had the agreement with!! Maybe she should tell him she thinks it was with Father Christmas. There can be no 'think' about it; when you have deciphered the illegible document, Rainbow, let us know who it actually states the agreement is with & who Cohens have stated it was with.

[foolishgirl]

Well none of those numbers seem to tie up with vjohn's info do they? Think you may have to do some more research on those on the Companies House website.

 

Do you think the 1983 regs comment could be something to do with the prescribed terms or legibility issue? (There was no interest rate added in the body of the agreement)

 

Think hard, rainbow...

Edited March 31, 2010 by foolishgirl
addition

[foolishgirl]

I would be inclined to write a letter to the Judge PRIOR to the next hearing to set out in clear terms the case law for the respective flaws in their case explaing why they prevent the Claimant's case from proceeding.

 

At least this way you have on file the case law that the Judge is clearly ignoring it and should make any appeal (if needed of course) stronger.

 

A Judge misdirecting himself (accidently or deliberately) is a bugbear of the High Court... but they allow it because it keeps the money flowing around.

 

 

I think I would also get him to look again at the precedents set by case law in respect of the DN issues he wants to wave away & point out in the nicest possible way that if he does not apply them to your case you will require him to set out his reasoning for disregarding these precedents as part of his judgment so that it forms part of the record for appeal purposes.

[foolishgirl]

As long as SOMEONE gets paid the courts don't care in my view because they are making their own money.

 

You have to ask yourself why ALL courts are registered as businesses... why do they have credit profiles... surely the courts are there for justice???

 

Nope... only to make money.

 

Ironic then that as the Courts service is the poorest man of our esteemed bureaucracy they're not doing any better at making the business pay than they are at getting justice done.

[foolishgirl]

How you doing with this one rainbow?

[foolishgirl]

Have I read this right - he's not asking you back to court?

 

Unusual but if correct, I think the approach vjohn suggested would be appropriate:

 

I would be inclined to write a letter to the Judge PRIOR to the next hearing to set out in clear terms the case law for the respective flaws in their case explaing why they prevent the Claimant's case from proceeding.

 

At least this way you have on file the case law that the Judge is clearly ignoring it and should make any appeal (if needed of course) stronger.

 

Perhaps you could draft something up along the lines discussed on your thread (not too wordy!!) & post up for comment?

[foolishgirl]

With all due respect rainbow, IMO, although your statement contains the correct info, the DJ may find it a little confusing. We know he seems already confused by the correct application of the CCA.

 

I would suggest amending as follows. Just check para 2 reflects the correct facts.

Don't forget to put the claim details at the top & I suggest you also put a statement of truth at the end.

Write out all abbreviations (eg CCA) in full

 

 

Further to the hearing on at xxx County Court, I, rainbow, submit the following statement in accordance with the directions given by DJ xxxx at the said hearing:

 

1. C L Finance have stated in their witness statement dated xxx that I entered into an agreement between myself and G E Capital Bank.

 

2. The copy agreement that the claimant has produced as evidence clearly states that the agreement has been issued by G E Consumer Consumer Credit Services (Company Registration No: xxxxx) This Registration Number does not concur with the records I have been able to find listed at Companies House for G E Consumer Credit Services or GE Capital Bank, either as a current or historic record. I therefore believe that GE Capital Bank & GE Consumer Credit services are, & always have been, two separate Companies & registered as such for the purposes of conducting their respective businesses.

 

3. C L Finance were ordered by DJ xxx on xxxxx to supply me with a copy of the Deed of Assignment in respect of this account in order to clarify who was responsible for this agreement & in order to identify the assignor & assignee of the debt. As of (todays date) this order has not been complied with & I have received no documentation from C L Finance.

 

4. Before passing judgment on this case, I respectfully ask that the court reconsider a specific aspect of the copy agreement that does not comply with S60(1) of the CCA 1974 & that would prevent the court enforcing this agreement by virtue of S127(3) of the same Act of Parliament.

 

5. S60(1) states that the form & contents of regulated consumer credit agreements are subject to the regulations referred to as the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Schedule 6 (4) of those regulations states that the following prescribed information should be included:

 

Rate of interest

4. Agreements for

(a) running-account credit; and

(b) fixed-sum credit falling within the exceptions

-- A term stating the rate of any interest on the credit to be provided under the agreement.

 

6. The rate of interest has been omitted from this agreement (i.e. a prescribed term) making the whole agreement unenforceable under S127(3) which states:

 

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

7. This provision of the Consumer Credit Act 1974 is further underlined by case law, for example that of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299 which states:

 

"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.

 

8. For the avoidance of doubt, 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.

 

For convenience the relevant section of the 2006 Consumer Credit Act is:

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 befor``e the commencement of section 15 of this Act.

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.

 

9. In assessing the enforceability of this agreement I request that the court take particular note of the above legislation & case law. If it is decided that this agreement is enforceable, I would be grateful if the court would supply its reasoning for so doing as part of the judgment in order that this information may be available at any future appeal.

 

10. It is noted that the Claimant has claimed for interest at some inexplicable rate.

 

(a) It is not referred to in Clause 7 of the agreement as stated in the Particulars of Claim.

 

(b) The agreement produced does not contain a Clause 7.

 

© This rate of interest has therefore not been proved, is not applicable to this agreement & is denied.

 

(d) Statutory interest of 8%p.a. is not applicable under The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974.

 

Edited April 15, 2010 by foolishgirl
typo

[foolishgirl]

Sounds like they are struggling, rainbow.

They have obviously asked for an extension to produce proof of company identities. So you both now have until 7 May although I think you have sent your statment in, haven't you?

So you just have to sit tight...

[foolishgirl]

Congratulations R a i n b o w !!

 

Excellent news! Now get that wasted costs order in. Small claims or not, they have behaved unreasonably in bringing a case when their documents didn't match up (not to mention the CCA issues!)

 

It costs you nothing, a template to amend is here:

http://www.consumerforums.com/resources/templates-library/48-bank-templates/143-wasted-costs-order-

 

Claim EVERYTHING - photocopying, postage, letter writing & research time at £9.25/hour. If you need help with the wording, shout.

 

[foolishgirl]

when I asked about costs it was mainly the court fees I was bothered about, I know I would have had to pay them if I had lost - just wondered if cohens have to pay them now that they have lost? I am perfectly happy to let the other costs go really

 

Yes, Cohens are liable for all costs. Don't let anything go! These people have given you hell, make them pay!! You can bet your sweet life they would be after you straightaway if the boot was on the other foot.

 

It's a simple process, costs you nothing but a bit of time to put the application together. If you need hlep shout...