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

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Thank you both for your replies, HH I so hope you are right and they don't pay - just wondered though if this does get a strike out, what happens to the court costs already applied? Thanks again Rainbow x

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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.


Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Thanks you all for your replies, I still haven't had anything back from the court or cohens - I have been trying to ring the court to see if the hearing fee has been paid but the court phone system has been down for the last three days :-x:-x:-x I am going to have to go in and see what is happening as the court date is Tuesday. Really fed up with this now. Rainbow x

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After weeks if not months of waiting for Cohens to supply me and the court with their defence, today they have sent me a letter which they say is their defence and claim has been sent to court along with the hearing fee and a copy of the credit agreement. I have managed to get through to court this morning but it looks like there is nothing there but, the hearing is still on for tomorrow, I have to ring back to speak to the section manager at 10 to get more details. They have not sent me anything that I had asked for except and poorly printed out page that looks like a copy statement and my dn which I had sent to them (I know it's my copy as I had written on it when I had received it!). The lady at court said I may be able to send in a fax letting them know I haven't received anything but thinks I may be better just turning up tomorrow as she knows Cohens more often than not don't bother - how do they keep getting away with this?

 

This is the link to my thread with all the details already posted and below is the letter received today

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/242273-notice-allocation-received-court.html

 

 

25rpims.jpg

 

6i7bpy.jpg

 

I am worried though that the judge may just take one look at the agreement which is ok and ignore the dn and the fact that Cohens told me that the account had been transferred to them - nothing came from GE :(

I will update when I have spoken back to the court but would really welcome any input. Thanks Rainbow x

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Update, I have just rung the court and cohens have sent their defence in and the hearing fee today - the clerk says it will be date stamped as having been received today so the judge will know how late they have left it - don't know if it will help my case :( Any help especially about what I should take in would be really helpfull. Thanks Rainbow x

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Thank you for that link blue cat, I did receive a noa from cohens through the normal post but never received one from ge/santander telling me they were passing it on to cohens. I am sure I have read somewhere though that once you admit to having received a copy the post thing doesn't matter anymore? I would be very interested to know if cohens were allowed to send one of their own though. Thanks you for your reply Rainbow x

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It's something that i'm going to be using myself but i don't know much about it. It does state though that if sent via post it must be sent and signed for via registered delivery.

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Para 2 states that the agreement has been 'upgraded'. Should there not be a modifying agreement that goes with this 'upgrade'?

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The first para 2 states all this is from her knowledge.

 

It cannot be. She did not open the account for you. Nor did she administer it. Nor was she party to the issuing of a DN. And so on. The WS is rubbish.

 

You should skin these idiots in court.


“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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I agree... it cannot be from her knowledge. She does not know these facts to be true. I could pass her a drawing of Spiderman, say it was sketched by Mozart and is worth £50,000.

 

She would have to put it down as true to the best of her belief (because that is what she has seen).

 

But knowledge would require her to witness both Mozart drawing the picture and it being valued by an independent valuer.

 

fighting0056.gif

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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?


Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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


Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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I've merged the threads to keep everything in one place for ease of reference. ;)


 

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Thank you guys for all your replies I am trying to get my head around what will happen tomorrow

Foolish girl thank you for your pms and post, I will go through it now

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 aqlink3.gif states that the following docs. must be supplied to you

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

They have sent me a copy of my agreement, I did sign it instore and believe that the apr rate was put on by the lady who signed me up after she had checked over the phone about opening the account. I do not have anything else and there is certainly no clause 7 that cohens have claimed on the court claim form. The account number has also been changed, the agreement number is on the dn.

 

(b) DN compliant with S87

 

I believe this is invalid due to not specifying a date to rectify just 21 days

© contract of deed or assignment

Never had one

(d) NoA with proof of service

The only noa was received AFTER the court forms were sent and were from Cohens not GE/Santander. This was sent by normal post

(d) statement of account

 

They have sent some very badly printed so called statements

 

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 DCAlink3.gif? 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 interestlink3.gif 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.

I am shouting :) I just want to make sure I say the right thing - is it ok to write things down and refer to them? I don't think I will remember everything if not :rolleyes:

 

4. Last, but by no means least, the aqlink3.gif 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.

I did say this to the lady on the phone as it did state this on the letters, I was banking on them sticking to this and throwing it out already :(

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) :wink: 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!

I will have to look that one up as I have no idea what it is, Are the costs the ones shown on the moneyclaim online form? Sorry I have not done this before, I am hoping as I am on benefits that I will be able to claim them back anyway?

 

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?

 

Crikey, I have been thinking about this one a lot, I would appreciate some pointers - I know my gut feeling is that I wanted to pay it but I don't want the ccj which will be hurtfull when we come to move to a new rented house later - I know I can't tell the judge that so any help again would be very welcome

__________________

Thank you all for your help

 

Rainbow x

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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

 

 

 


Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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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 by foolishgirl
typo
  • Haha 1

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Foolish girl, I can't thank you enough for all the help and support you have given me on this case. I am now trying to get to grips with all the info you have supplied and hope I can do us both proud tomorrow - just wish I could go now and get it over with :rolleyes: Thanks you again and I will let you know how I get on in the morning. Rainbow x

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Good luck rainbow... will be thinking of you :)

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Go get em! Be confident - you know your arguments! Don't be scared to insist on putting them forward - it's your right.

 

Good luck.


“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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Well back from court and what an interesting couple of hours. Cohens solicitor did turn up so was prepared for a battle, she asked if she could talk to me prior to the hearing so I said yes, she said she just wanted to intoduce herself and tell me what would happen in the court room which she did, then she asked me if I had any questions for her - I just asked if she had brought the originals with her as asked for on the court order - she said no so I thought hey this is going my way so far. We went into court after being told the judge was going over the papers first, as soon as we went in, he spoke to solicitor saying that for my benefit, not being in the legal prof, he would go over what would happen explaining he would talk then the solicitor then I would get a chance but we were not to talk over each other at any time. He then said after looking at the papers he was of the opinion that one of us was in the right and one of was wrong. I then had to listen to what the solicitor said waiting for my turn. Have to say I went in confident with all the ammo and within the first few moments of the solicitor speaking it was obvious that they were closing ranks. Everything I said, he dismissed, the fact that the originals had not been produced yet had been asked for on the directions his answer - they can't produce the originals if they don't have them can they? I noted that it did say if they couldn't produce them then the claim may be struck out - his reply may not will.

I queried the validity of the dn re days not dates, he said his understanding of the law meant that this was acceptable and get this - in his eyes, as I owed the money in the first place a dn wasn't needed it just speeded up the process of recovering the money :eek: I questioned them about the deed of assignment from g e money to santander and then to cl finance, he said it wasn't needed from ge, I have received the one from cohens - I said with all due respect without the proper procedure being followed how did I know they have a legal right to collect this debt - his best line yet - this is a firm of solicitors you are dealing with and you can trust that they will not lie to you :eek::eek: . Then came the agreement which had been supplied a s a copy again, when I asked for the original he said most companies don't keep originals so a copy would have to do. Then he tried to read the small (really small and illegible) print on the copy so I thought I have got them on this point - if it is illegible then surely that means it is enforcable? The judge asked us if we could read certain things on the agreement as he couldn't, he asked the usher to find a magnifying glass at one bit. This is how it went on all through every point no matter how I tried to push referring back to the credit acts was dismissed. BUT then the judge spotted something on the agreement, the agreement says it is an agreement between me and ge consumer credit services but the companies registration number on the agreement has never belonged to ge consumer credit it belongs to ge capital bank ge consumer credit has a completely different number. This put cohens solicitor into a panic as the judge pointed out that as it stood cl did not have the right to sue me on the agreement. Now comes the hard bit, he has given us both 21 days to send a submission to court - me to inform them of who I thought the agreement was between and the solicitors the time to place a link between the two companies which would make the agreement enforceable. They have to send me a copy of whatever they come up with and he will then make a judgement based on these findings. I feel like it is hanging by a thread as it is obvious as he is one of the you have had the money and I don't care with whatever info you come up with you will pay, so would really appreciate any help with this. He did mention to the solicitor if the agreement was unenforceable it maybe wort trying for an enforcement order but as the agreement was taken out before section 127 and before 2007 he didn't know if he could make one - advice needed on that please as I have no idea. The solicitor did try and play for extra time citing kids and easter hols meaning I would probably need more time - so sweet and caring I thought - I smiled sweetly back and said no :p . Sorry it is such a long post but thought it would help others soon to go through the process just what you are up against - other than the delayed outcome and judge the waiting was the worst part and it isn't as scarey as I thought it would be - any pointers on what to submit back to the court would be most gratefully received. Thanks again Rainbow x

Edited by rainbow moon
added a bit

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Ouch...

 

The Judge can rule on a faulty company registration number but NOT the other errors which actually have case law supporting them?

 

Wierd... the judiciary make me laugh sometimes.

 

Are you able to submit anything else to the court on that point?

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Well done for standing up for yourself in court in front of a non-lying solicitor!

 

The response should (a) address the issues raised by the judge and (b) reiterate the facts, laws and case law that he has ignored.

 

My first thought is to stuff 'em on what the judge mentioned. Let's get researching!

 

I'd say there's more than one way to skin a cat, but my dear moggie is sitting on my desk...


“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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Sounds like the judge is only interested in the company name / number discrepancy, so I'm not sure that raising other issues is going to help. But maybe its possible to bring other things in to it - such as whether the default notice and assignment notices have the correct company details on them or not and whether that makes them invalid.

 

But as its maybe not looking too good, isn't it time to start preparing for an appeal? I'm thinking the submission to the court would be a good time to use the County Courts Act section 80 to get the judge to document his final ruling fully.

 

I feel for you though - I won my case recently solely on a faulty DN, for you to have the judge say it isn't relevant nor a requirement is crazy.

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