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

[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.

[vjohn82]

I really think it is time for LIPs to go on the offensive. Too much is made of telling the Judge that they are wrong. Why not simply say...

 

"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."

 

It's only slightly better than throttling the Judge over the bench admittedly but if you are looking at losing the case I feel it's best to speak my mind... politely of course ;-)

[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.

[vjohn82]

Here's what I can find on the Data Protection Register:

 

Registration Number: Z874789X

Date Registered: 13 September 2004 Registration Expires: 12 September 2010

 

Data Controller: GE CAPITAL EUROPE LIMITED

 

Address:

30 BERKELEY SQUARE

LONDON

W1J 6EW

Other Names:

GE CAPITAL

GE COMMERCIAL FINANCE

GE CONSUMER FINANCE

GE SHARES SERVICES

CORPORATE PAYMENT SERVICES

 

Registration Number: Z812661X

Date Registered: 20 August 2003 Registration Expires: 19 August 2010

 

Data Controller: GE MONEY CONSUMER LENDING LTD

 

Address:

53-61 COLLEGE ROAD

HARROW

MIDDLESEX

HA1 1FB

This register entry describes, in very general terms, the personal data being processed by:

GE MONEY CONSUMER LENDING LTD

 

Registration Number: Z9071663

Date Registered: 27 May 2005 Registration Expires: 26 May 2010

 

Data Controller: GE CORPORATE FINANCE BANK SAS

 

Address:

30 BERKELEY SQUARE

LONDON

W1J 6EW

Other Names:

CFS TRANSACTIONS

CFS EUROPE

[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.

[rainbow moon]

Hi Guys and thank you for your replies so far, I am feeling a bit deflated today, it took a lot to stand up to them yesterday and for the judge to completely dismiss all my evidence was a bit of a slap in the face after all my and your hard work. I am under so much pressure with everything else here I was just hoping that this would be one less thing as it seemed such a good case against them.

The copy of the agreement is on the first page of this thread, it does state the agreement if between ge consumer credit and myself, the problem came about as the judge spotted that the witness statement provided by cohens on the second of their paragraph 2 (don't think they can add up either it stated I entered into a credit agreement between g e capital bank ltd. Where it gets interesting is that on the agreement, just below the signature in the box headed use of personal information it states signed on behalf of g e consumer credit svs - reg in england then the number which after much searching we managed to make as 1456283, this number has never been g e consumer credit but was ge capital. G e consumer credit is 3927500. I have scrawled on my notes non compliant of 1983 regs but can't remember exactly why I put that must have been something the judge said at the time. Cohens solicitor tried to bluff her way around it stating she could help the judge and clear this up as one of the photocpied statements she had states G E money is a trademark of general electric company and a trading name of g e capital bank reg ind england 1456283 - the judge said no this did not help. After leaving the hearing the solicitor came flying back to me with a fresh fax from cohens to state that g e consumer credit was a trading name of g e capital - she asked if I was willing to go back in so the judge could maybe sort it, I said yes knowing full well that this didn't explain the company numbers being different which for once the judge agreed with me and said it wasn't good enough. Cohens really have shot themselves in the foot by offering a copy of a certificate of incorporation on change of name that g e capital is now incorporated under the name santander cards signed at companies house on 27/5/09 but the number is 1456283 - crikey hope that lot makes sense to you guys.

Thank you all for sticking with me I do appreciate it so much

Rainbow x

[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

[rainbow moon]

foolishgirl, I think the reason he mentioned the 1983 regs was that capital bank and cohens/cl finance could not collect on the agreement if they hadn't actually got the right to do so. If I decide the agreement is between me and g e consumer credit which is what is states, then they do not have the correct paperwork in place to claim the debt as theirs. I think he would try to help them out as much as he can but he is struggling with the agreement being before the regs changed. Knowing cohens they are going to try and find a way of gelling the two together somehow As far as the numbers are concerned, there is no way these companies have ever been linked to one number - the agreement is wrong, it is just how I manage to get that across to the judge. Rainbow x

[vjohn82]

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.

 

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. So don't feel too downhearted if the Judge rules against you in this case. It's simply to keep the cashflow going.

[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?

[rainbow moon]

Hi guys, thanks for sticking with me, I haven't done anything about this yet other than a lot of thinking - not that thinking about it has done much good :-| I have another week and a bit to go before I have to take anything back to the court, I have heard nothing at all from cohens surprise surprise. The judge did say he would look at both our paperwork and we would not need to attend again - he wanted to keep the costs down for cohens - he will make his decision and let us both know this by post. I feel hopeful that on the day he would not let cohens try and pull the wool over his eyes so to speak trying to con him into believing the company and the number were ever connected - I don't know how they are going to get around that one, other than that I am really stuck at the minute. I can understand him asking cohens to prove the link just not how I go about backing up my defence - may need some help with this if you have any advice I would be really grateful. Rainbow x

[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?

[gh2008]

totally agree with FG & VJ

 

If it were me - I'd still turn up as well .... just in case any points need 'clarifying'

[rainbow moon]

Thanks for the replies, yes it is right he has told both of us to send in all details - no need to go back to court - he did stress to cohens sols though that they must send correspondance to both the court and me. I will have a go at drafting something in the next few days and will post up for you to have a look at/correct. Thanks again to all of you. Rainbow x

[rainbow moon]

Right guys, this is what I have come up with so far, let me know what you think and please be gentle You may notice it contains a lot of your supplied threads for which I truly am thankful. Rainbow x

 

Further to the hearing on at County Court

 

C L Finance state on their witness statement that I entered into an agreement between myself and G E Capital Bank, this is untrue, the agreement clearly states that the agreement has nothing to do with G E Capital Bank, but, G E Consumer Consumer Credit Services. The company registration number shown on the agreement is also incorrect. At no time has this registration number ever been known as G E Consumer Credit Services. Indeed after checking Companies House, I am of the belief that these are two separate Companies. I would ask that C L Finance have to produce a correct Deed of Assignment to identify who is responsible for the agreement and also who actually assigned the debt. As of (todays date) I have received no paperwork from C L Finance despite strict instructions from the judge that this should take place so can only take this to show that C L Finance have no right to persue this debt.

The copy agreement provided by CL Finance at court does not comply with CCA 1974, in particular S60(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 that has been produced does not contain an interest rate although a figure has been handwritten on the top of the document. I have no idea what this figure is or to what it refers. I refer to the judgment 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. 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.

 

The Claimant has claimed for interest at some inexplicable rate. It is not referred to in Clause 7 of the agreement as stated in the poc. The agreement produced does not have a clause 7 & 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.

With regard to the Default Notice, I would respectfully ask if you would take a look at the precedents set by case law in respect of the validity issues raised. If it is felt that they do not apply in my case I would be grateful if you could set out your reasoning for me so that I may use this record should I decide to appeal.

 

 

[rainbow moon]

Hi again guys,

Having thought about what I have done up to now, I am struggling on the last paragraph as to what to close with or should I just leave it as is? Does anyone think it would be a good idea to include copies of case law with this submission as my judgle did not seem to know much about it although he claimed otherwise:( Thanks for any replies Rainbow x

[gh2008]

Hi Rainbow

 

really busy today

 

but as I understand interest and CCA - they are not allowed to claim S69 interest HOWEVER they may be able to claim contractual interest. This is the interest in the agreement.

 

This can only IMHO be claimed up to termination.

 

If there is any query about how the sums claimed have been arrived at then obviously that is something that needs to be clearly and concisely brought to the DJ's attention.

 

If you do not know which interest is being claimed then say that and then put in about the s69 not being applicable, if that's what they are trying to claim, and that you deny they are entitled to contractual interest.

 

good luck

gh

[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

[rainbow moon]

Thank you both for your replies and thank you so much foolishgirl for making my ramble appear much more straightforward and easier to read . I will get it all sorted and take it into court tomorrow to make sure they receive it in time for Monday. I really hope all your hard work pays off and we can sink these clowns

Thank you again Rainbow x

[rainbow moon]

duplicate post

Edited April 28, 2010 by rainbow moon
posted twice

[rainbow moon]

Hi guys, just an update, I did receive the first court letter the day after I took into court but hey ho at least I had my stuff in by then anyway. The second has arrived today - would love to know what Cohens put in their letter to court and why I never received a copy! Just noticed the letter mentions the agreement dated 2010

 

 

 

 

 

Any advice on what to do next or just wait and see would be really helpful. Thank you Rainbow x

[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...

[rainbow moon]

Thanks fg, I did sit tight and I have now got a letter from Cohens saying that they are discontinuing the claim :-):-):-). I am so happy and could never have done this without all your help on here, a massive thank you to all. Do I need to do anything re court costs or will this be a bill that cohens now have to pick up? I haven't heard anything from the court just a letter from cohens. Thanks again Rainbow x