Debenhams Store Card-defence - **SUCCESS - CLAIM STRUCK OUT**

[MONTY]

I got home this evening to find an invoice from CL Finance. This is a first as I have never had any direct contact from CL Finance before - not even a Letter Before Action.

 

Have a look at the letter

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=070910-CLFINANCEPAGE1.jpg

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=070910-CLFINANCEPAGE2.jpg

 

Of particular note is the transaction 'Post-judgement Fee' of £35.00. Not bad considering the case will not be heard until the end of October.

 

I am tempted to forwarded this to the Court as it is quite clearly malicious and in my opinion vexatious. Any thoughts?

 

Monty

[citizenB]

I am not sure they can add those fees to the account ? Surely they are subject to a costs claim at the end of the hearing. By adding them to the account statement, they have assumed the claim is won.. IMHO.

 

I would wait for other opinions but I would agree with you it is rather intimidating.

[foolishgirl]

 

Of particular note is the transaction 'Post-judgement Fee' of £35.00. Not bad considering the case will not be heard until the end of October.

 

I am tempted to forwarded this to the Court as it is quite clearly malicious and in my opinion vexatious. Any thoughts?

 

 

Cheeky beggars!! Post judgment costs my left foot!

They are not only assuming that they have got judgment but also that you will not pay up on time & this is their app. fee.

 

Plus CB's right - they can't add costs to your account when they are claiming them thro' the courts.

 

Keep it for your WS Monty!! And when this is all over, send a complaint to OFT.

 

BTW, they have to send yearly statement of accounts now so this is prob. what this is & not specifically aimed at unnerving you.

[workaholic duck]

Hi,

I got one of those, same date.

 

Mine actually got dismissed in court in June and I claimed costs (only £42 but better than them having it). They did pay up though.

 

At first glance I was furious because it looked as though I still owed them - then 5 mins later decided to ignore and file with court stuff (the judge advised me to keep it all). Suggest you do the same.

 

I suspect it's their interpretation of some new law, twisted in their perverted way, to intimidate and harrass.

[foolishgirl]

(only £42 but better than them having it).

 

Suspect Monty's costs bill is already beyond that but well done WD.

 

I suspect it's their interpretation of some new law, twisted in their perverted way, to intimidate and harrass.

 

This would be the law according to CL, would it then?!

 

 

FG

[debbbbsy]

Defenitely CL clutching at straws.....but why if they believe there case is so strong, they are demanding payment.......& not the solicitor .

[MONTY]

Cheeky beggars!! Post judgment costs my left foot!

They are not only assuming that they have got judgment but also that you will not pay up on time & this is their app. fee.

 

Plus CB's right - they can't add costs to your account when they are claiming them thro' the courts.

 

Keep it for your WS Monty!! And when this is all over, send a complaint to OFT.

 

BTW, they have to send yearly statement of accounts now so this is prob. what this is & not specifically aimed at unnerving you.

 

Time to start puting my witness satement togethter - I have until the 14th October to submit all I will be refering to - any tips, links and/or guidance will be much appreciated

 

Monty

[foolishgirl]

A WS is basically a statement of the facts presented as how you see them. The eg below is one I have on file, you are welcome to amend for your personal circumstances & use:

WITNESS STATEMENT

1. I, xxx, am the defendant in this action and make the following statement in opposition to the Claimant’s Case.

2. I deny having signed any agreement between me & the Claimant, Santander Cards (UK) Ltd for a credit card. However I do not deny having made an application for a store card underwritten by GE Capital Bank Ltd for the provision of a Debenhams account card.

3. On xxx I issued a request to xxxx under CPR31.14 for information relating to the claim but received no response.

In response the Claimant has supplied:

(a) a copy of an Application Form for a store card with Debenhams

(b) no copy default notice

© no copy of a Deed of Assignment between Santander Cards (UK) Ltd & the Claimant

(d) no copy of any Notice of Assignment

The Agreement

 

4. The Claimant has supplied a copy of an Application Form for a Debenhams Store card but has failed to provide any agreement for a credit card with either GE Capital Bank Ltd. or Santander Cards (UK) Ltd.

 

5. The Claimant claims that the store card was ‘upgraded’ to a credit card on xxx but has failed to provide the evidence of this.

6. There is a significant difference between a store card & a credit card. The former restricts the use of credit facilities to Debenhams stores, the latter can be used in shops and businesses anywhere that accept credit cards. Furthermore, the credit limits and interest rates for the 2 cards differ, as do other terms & conditions. Therefore, in order to ‘upgrade’ as the Claimant puts it, from one card to the other, it requires a new agreement to be issued by the creditor & signed by the applicant. The Claimant has not supplied an agreement issued by Santander Cards (UK) Ltd & signed by me. Any alleged agreement between Santander cards (UK) Ltd & myself cannot therefore comply with the provisions of the Consumer Credit Act 1974 & by the court is prevented from enforcing this agreement by S127 of the same Act. I aver that this claim has no prospect of succeeding.

 

Default Notice

 

7. I deny that I have ever received an effective default notice from the Claimant prior to the contract being terminated.

 

8. At trial I shall contend that under Section 87 of the Consumer Credit Act 1974 (The Act) the creditor must deliver a default notice which complies with all of the requirement of Section 88 of the Act and of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 before the Claimant will become entitled to terminate the alleged agreement and make any demand for early payment. It is my case that no default notice which complied in the respects referred to was ever delivered to me by the Claimant & the Claimant has provided no copy of such & no evidence of posting or other method of service.

At trial I will refer to the judgment of Woodchester v Swayne & Co [1998] EWCA Civ 1209 (14 July 1998) to support this & if necessary, also cite the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

Notice of Assignment

 

9. The Claimant has not produced a copy of any Notice of Assignment issued by either the original creditor or any subsequent assignee.

 

10. Furthermore it is my case that no Notice of Assignment which complied with S196 of the Law of Property Act 1925 was ever delivered to me by the Claimant & the Claimant has provided no evidence of posting or other method of service of such.

 

Calculation of Sum Claimed

 

11. On xxxx I sent a request to the Claimant’s solicitors, xxx, to supply statements of account for the period xxxx to xxxxx. To date I have received only partial information relating to this account & it is therefore impossible to prove that the sum claimed is accurate. However from the information supplied I believe that the sum claimed was at least partly comprised of unlawful charges. This could render not only the sum of this claim inaccurate but any Default Notice issued by Santander Cards (UK) Ltd invalid, as the sums stated on both would have been calculated using a total that was itself inaccurate. I therefore put the Claimant to strict proof of the calulation of any sum claimed.

12. For the reasons stated above the Court is invited to dismiss this claim on the gorunds that the sum claimed cannot be legally enforced.

 

Statement of Truth

 

I believe the facts stated in this Witness Statement are true

 

Signature

 

Dated

[MONTY]

Thank you Foolishgirl

[MONTY]

Can anyone signpost me to a defence bundle please?

 

Monty

[foolishgirl]

Each bundle is different as everyone has different issues monty, so no template as such.

You should include copies of all the docs, corresp. etc. pertinent to your case.

CPR39A (3.1) sets out what is required:

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part39a.htm#IDAGLOVB

[MONTY]

My letter of complaint was signed for on the 13th September. No response yet. I will give it until Monday and then start finishing off my SRA complaint form.

 

Monty

[MONTY]

Cohens have responded to my letter of complaint

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=200910-CHOENSRESPONCETOCOMPLAINT.jpg

 

I will mow complete my SRA complaint form and get it in the post

 

Monty

[MONTY]

Cohens have responded to my letter of complaint

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=200910-CHOENSRESPONCETOCOMPLAINT.jpg

 

I will now complete my SRA complaint form and get it in the post

 

Monty

 

I have now completed my complaint form ready for dispatch by recorded delivery tomorrow. The complaint and resolution are as follows:

 

"I refer to Howard Cohen & Co. Solicitors letter of the xx xxxxx 2010 (‘Notice of Assignment’ - copy enclosed). I find the letter misleading and unfair as it suggests to the recipient that obtaining judgment is little more than formality and effectively that any defence submitted is almost pointless. This is clearly far from true and Howard Cohen & Co. appear to have forgotten the fact that it is for an independent court to rule on such matters and not for Howard Cohen & Co. to make inaccurate and wide sweeping presumptions".

 

"In this matter I also draw your attention to Rule 10.01 of the Solicitors Code of Practice.

Howard Cohen & Co. response to my complaint is enclosed. Please note, that my request for a copy of Howard Cohen & Co. complaints procedure has been ignored. I believe this to contrary to Section 2 of the Solicitors Code of Practice"

 

 

"I would like Howard Cohen & Co. to review their procedures and remove any template letters that may be misleading to a third party or that which could be construed as Howard Cohen & Co. taking advantage of a third party.

It is respectfully requested that if the Legal Complaint Service are minded to order Howard Cohen & Co. to make a financial award by way of compensation for the stress and anxiety they have caused to me, that any such payment should be made to the Consumer Action Group, in respect of the likelihood that there are many others who have suffered through Howard Cohen & Co. actions".

Edited September 26, 2010 by MONTY
missed info

[MONTY]

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=220910-COHENSWSPG1.jpg

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=220910-COHENSWSPG2.jpg

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=220910-COHENSWSPG3.jpg

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=220910-COHENSWSPG4.jpg

 

The attached links show the Witness Statement I have received from Cohens. Frankly, I am appauled that a practcing Solicitor can blatently lie like this. I will disect this WS in future posts but as a starter you will need to refer to my Post 37 which details my defence.

 

Monty

[emandcole]

Ok, looks like they're going for the steamroller approach. First class legal work yet again from CL...his mum must be very proud. Love the complete refusal to provide the deed of assignment using the typical 'commercial sensitivity' nonsense.

 

In effect they state 'you owe us money but we refuse the proof of that as it might disadvantage us in world full of other parasites so just deal with it and give us the money'.

 

I think not. Time now to ramp it up and use case law as appropriate to force their hand. Can you re-cap on what you've actually been sent in the way of docs?

[foolishgirl]

I've copied your defence here monty to save switching back all the time

 

1. I xxxxxxxxx xxxxxxxx of x xxxxxxxx xxxxx, xxxxxxxx, xxxxxxxx xxxxx xxx am the defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.

 

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: -

 

a) 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;

b) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding 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 claimants claim.

c) 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. With respect to the alleged credit agreement referred to in the Particulars of Claim; if the claimant is to rely on a written agreement then the original agreement should be made available for inspection by the court in accordance with CPR Practice Direction 16, paragraph 7.3.

d) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

5. Further to the case, on the xx xxxxxxxx xxxx I requested the disclosure of information pursuant to the Civil Procedure Rules part 31.14, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default notice.

 

6. Without Disclosure of the relevant requested 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, contains the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974. I am also unable to assess the validity of any Default Notice purported to have been served on me.

 

7. Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974, and section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement.

 

8. The prescribed format for such a 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)

 

9. It is averred that the default notice referred to in the particulars of claim does not contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'). The defendant puts the claimant to strict proof that the prescribed timeframe has been given. Under section 88(2) of the Consumer Credit Act 1974, the creditor cannot terminate the agreement or demand earlier payment of any sum due under the agreement before the date specified in the default notice. Merely stating the default notice would allow 14 days for any required action is non-compliant with the requirement of the 1983 Regulations owing to the need to specify a date (rather than an interval of time).

 

10. 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 amount detailed in the Claimant’s claim is incorrect.

 

11. Without a valid default notice it could be inferred that the bringing about of a county court Judgement without first seeking remedy via a default notice could be considered vexatious litigation in the first instance and to do so is clearly contrary to the Consumer Credit Act 1974.

 

12. Furthermore, the claimant has failed to attach a copy of the deed of assignment and proof of posting for the notice of assignment which is required to comply with Section 196 of the Law of Property Act 1925. I received the Notice of assignment, on xxx xxxxxxxx 2010 and I note the date of issue on the claim as the xxx xxxxxxxxxx 2010 which suggests that the notice of assignment, which must be served before the assignment if it is to be effective in law, was not posted before the claim was filed, so I place the claimant to strict proof that the notice of assignment was posted prior to the start of this action. Should the claimant not be able to produce this proof, I contend that the claimant would not have a legal right to this action and the case should be struck out without further notice.

 

13. Consequently due to the claimant’s failure to supply the documents required under the Civil Procedure rules and the fact that the claimant has failed to sufficiently particularise the claim I deny all allegations in the particulars of claim that I am indebted to the claimant in any way and put the claimant to strict proof thereof.

 

14. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant 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.

 

15. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the Courts permission to amend my defence accordingly if such paperwork is presented to the court.

[foolishgirl]

Comments on Cohen's WS in reponse to the following paras of your defence:

 

Para 5: since when was a fee applicable to a CPR31.14 request? You did not request a copy agreement under S78. Pity they can't read!

 

Para 6: what docs have you now received monty?

 

Para 7: no comments I note! Perhaps they don't recognise S87

 

Paras 9-15; all denied but no reasons given. Also noted that THEY expect YOU to provide proof that you didn't receive documentation from them!!! What about them providing evidence that they did send all the docs?? You can't prove a negative nor can the court rule on one.

 

Typical HC rubbish. You can go to town on this one monty.

When does your WS have to be in by?

[MONTY]

Here goes:

 

1. The application form they maintain is a properly executed agreement

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=210798-REDACTEDAPPLICATION.jpg

 

2. The alleged DN

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=030909-REDACTEDDEFAULTNOTICE.jpg

 

3. The alleged NoA

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=290110-NOTICEOFASSIGNMENT.jpg

 

4. The POC

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=010210-PARTICULARSOFCLAIMPOC.jpg

 

5. Letter from Santander refering to the the application as a 'Credit Card Agreement' (two pages)

 

Letter removed. It will be reposted later today - 29.09.10

 

The WS and all other documents I am to rely upon have to be submitted by 14.10.2010

 

Thanks for all your help

 

Monty

Edited September 29, 2010 by MONTY
Attachment had personal data

[foolishgirl]

First of all monty - you have left personal details on Page 1 of item (5). Suggest you emove & repost when amended.

 

Then to tackle the docs they have sent:

 

1. Are they claiming the agreement is a recon or a copy of the original? Does it contain your sig?

Have they included a copy of any T&Cs? Not only are they are referring to Clause 7 re. interest in the POC but they would also have to demonstrate that any T&Cs were within the 'four corners' of the agreement when it was signed

 

This is an agreement for a Debenhams store card. Have they supplied an agreement with GE for a credit card - two very different animals with different requirements under the CCA.

 

2. The DN is incorrect - it states 14 days rather than a specific date

 

3. NOA - have they sent one for GE to Santander? Have they provided proof of registered posting?

 

5. Another bit of hogwash IMHO

[MONTY]

First of all monty - you have left personal details on Page 1 of item (5). Suggest you emove & repost when amended.

 

Then to tackle the docs they have sent:

 

1. Are they claiming the agreement is a recon or a copy of the original? Does it contain your sig?

Have they included a copy of any T&Cs? Not only are they are referring to Clause 7 re. interest in the POC but they would also have to demonstrate that any T&Cs were within the 'four corners' of the agreement when it was signed

 

This is an agreement for a Debenhams store card. Have they supplied an agreement with GE for a credit card - two very different animals with different requirements under the CCA.

 

2. The DN is incorrect - it states 14 days rather than a specific date

 

3. NOA - have they sent one for GE to Santander? Have they provided proof of registered posting?

 

5. Another bit of hogwash IMHO

 

Letter removed (I will re-post)

 

1. They claim it is a copy of the original agreement. Yes it does contain my signature and address at the time of application. The T&Cs were not contained within the same. They have not provided T&Cs for either a Store Card or a Credit Card and are reliant upon the original application which shows a different A/C number than that contained with the POC. However, in their WS they allege that teh original card was lost and therefore a new account number was issued - the card was not lost by my recollection. They have produced copies of statements with the revised A/C number on it.

 

There is no agreement with Santander in existance. I suspect there was a converstion to a Credit Card on assignment without my consent.

 

2. I concur

 

3. No and No.

 

Monty

[foolishgirl]

and are reliant upon the original application which shows a different A/C number than that contained with the POC. However, in their WS they allege that teh original card was lost and therefore a new account number was issued - the card was not lost by my recollection.

 

The fact that they have issued a POC in another acc. no is not in itself anything to contest as it looks as though they can provide evidence that it refers to your account; however even the card was lost I don't think it would be usual practice for a new account number to be issued, just a new card & that needs clarification. Have you got a log as part of your SAR? If a new account no. had been issued because of lost card, it should be on there; if not, it would seem to indicate that the account no. was changed as part of the assignment procedures & they need to prove they gave you notice(s) of that.

[emandcole]

Agree completely, the account numbering needs further examination. Would expect to see a record of any new issue of card after a reported lost or stolen call on their SAR documentation, if it's not on there I'd push to know why.

 

Interestingly the DN states payment must be made within 14 days of receipt, that would be 13 days then? As FG has stated the lack of a clear date renders the DN invalid and the actual choice of words they have used just makes it worse.

 

On the POC they claim it rerlates to a 'credit agreement' so presumably this is for a fixed loan for example and not a credit card or revolving credit facility? Doh.

 

Also noticed that on the POC they choose to use the word 'given' as opposed to 'sent' regarding the NOA. That would tie up nicely with the need for them to have used a registered post so presumably they will confirm the NOA was indeed 'given' to you as opposed to it being thrown in the general post with all the other garbage they produce?

[MONTY]

The fact that they have issued a POC in another acc. no is not in itself anything to contest as it looks as though they can provide evidence that it refers to your account; however even the card was lost I don't think it would be usual practice for a new account number to be issued, just a new card & that needs clarification. Have you got a log as part of your SAR? If a new account no. had been issued because of lost card, it should be on there; if not, it would seem to indicate that the account no. was changed as part of the assignment procedures & they need to prove they gave you notice(s) of that.

 

I am checking all document but can not find any reference as to why the account number was changed. At a guess, it may have been changed when they chnaged the card from a storecard to a credit card - not on asignment between GE & Santander because it now looks like this was not an assignment but a name change (see the attached link)

 

http://s947.photobucket.com/albums/ad315/AVALON970/?action=view&current=270509-gecapitalchangeofnametosantander.jpg

 

Monty

[foolishgirl]

At a guess, it may have been changed when they chnaged the card from a storecard to a credit card - not on asignment between GE & Santander because it now looks like this was not an assignment but a name change

 

I agree. An acc. no is hardly likely to change on a change of business name.

When do you think it was transferred from Debenhams store card to GE credit card? Can you tell from your SAR or have you got any statements that show when you started spending in other places then Debenhams? Did they send statements with the SAR docs?