Howard Cohen (CL Finance) vs friend - Claim Form Issued ***WON***

[vjohn82]

Hi all,

 

I'm used to clashing with HFO/Turnbull so dealing with Howard and his chums is a little different judging by the threads I have read on them. So I shall seek a little advice from others who are here and have dealt with them.

 

DETAILS

 

I'm dealing this matter on behalf of a friend who is currently suffering with Lymphatic Cancer having been diagnosed around July 2009. He requested my help sometime in October as his finances were in poor shape due to him having to take time off work etc. This has meant the household finances are in poor shape and his wife is now being taken to court by Howard Cohen.

 

THE CLAIM FORM

 

Standard crap POC I'm afraid; they are claiming £6XX.XX of which £55 is the court fee and £70 which are solicitor's costs.

 

The POC states that the debt was assigned to CL Finance on the 27th January 2010, of which notice was given, and that a default notice was served pursuant to s.87 of the CCA.

 

The Claim has been issed at Northampton Bulk Centre (typical ) and obviously Howard are acting for CL Finance.

 

THE ISSUES

 

1 - The debt is made up of a number of late payment charges

 

2 - I have no record of a Default Notice

 

3 - I had written to Viking Collections on 18-01-10 requesting that they cease collection activity for 3 months until they were back on their feet or at least accept token repayments. Nothing has been received back until this claim form being issued.

 

NEXT STEPS

 

I have authorisation, and a full remit, to take whatever action is necessary. This could mean defending in full, making an offer to pay, seeking for the claim to be struck out, admitting part of the debt, requesting time to pay etc.

 

I think the original creditor and Viking have a lot to answer for; the family are having to deal with cancer for goodness sake. Have they no shame? (answers on a postcard).

 

In any case, no Default Notice being served is a defence and CL Finance never issued a Letter Before Action which means the overriding objective has completely been ignored.

 

So any suggestions on the best route to take with these cretins, if anyone has particular experience with them, would be appreciated.

[lilly white]

Do we have the agreedment or are we still waiting,

[vjohn82]

The CCA is fully complaint and signed in April 2008.

 

Just missing the Default Notice and no service of Assignment under s.196 Law of Property Act 1925.

 

No negotiations or pre court letters - they were assigned the account on 27-01-10 and issued a claim form on 01-02-10.

[diamondgirl]

The CCA is fully complaint and signed in April 2008.

 

Just missing the Default Notice and no service of Assignment under s.196 Law of Property Act 1925.

 

No negotiations or pre court letters - they were assigned the account on 27-01-10 and issued a claim form on 01-02-10.

 

Didn't waste much time did they. This bunch are nearly as bad as Link/Asset for moving onto court.

Im guessing you've done the SAR.

When I acknowledged service with my Link case I actually admitted some of the debt but not all as I definately wasnt going to pay any costs if it came to it, however, at the time I hadnt found this forum otherwise I would have defended all as they never even had an agreement for the dates they said.

Anyway to cut a long story short I also stated on my acknowledgement that other half had just undergone major facial operation due to cancer and was undergoing surgery to rebuild I was adamant that the judge would know of this. I also asked how they had my new exdirectory number as they were constantly phoning when I wasnt in (dont know if this is happening to your friend.) And that no time did they offer to negotiate any form of reduced payment.

Do the lowlife know you have full authority to deal with everything?

Have you checked the CRAs to see if they actually have registered the default and that the date is the same as they claim if they've given you a date?

Hope your friend is on the way to a good recovery, my cousin had the same cancer and he is in remission now.

DG

[vjohn82]

Didn't waste much time did they. This bunch are nearly as bad as Link/Asset for moving onto court.

Im guessing you've done the SAR.

When I acknowledged service with my Link case I actually admitted some of the debt but not all as I definately wasnt going to pay any costs if it came to it, however, at the time I hadnt found this forum otherwise I would have defended all as they never even had an agreement for the dates they said.

Anyway to cut a long story short I also stated on my acknowledgement that other half had just undergone major facial operation due to cancer and was undergoing surgery to rebuild I was adamant that the judge would know of this. I also asked how they had my new exdirectory number as they were constantly phoning when I wasnt in (dont know if this is happening to your friend.) And that no time did they offer to negotiate any form of reduced payment.

Do the lowlife know you have full authority to deal with everything?

Have you checked the CRAs to see if they actually have registered the default and that the date is the same as they claim if they've given you a date?

Hope your friend is on the way to a good recovery, my cousin had the same cancer and he is in remission now.

DG

 

Hi Diamond,

 

There has been little point doing an SAR - a CCA request was conducted by a CMC they contacted before coming to me (they were too embarrassed about their situation).

 

The lack of a default notice is the most poignant issue as is the lack of any meaningful correspondence prior to the claim form being issued. I imagine it will get short thrift from the court considering the overriding objective.

 

I'm waiting to speak to my friend but I imagine at this stage we will be putting in an agreement to part of the amount due to the default charges thta have been levied and attempt to settle out of court at the level that they are liable for.

 

They are good people and it's shame that the gutter trash companies decide to do this with absolutely no compassion. It makes my blood boil to be honest.

[diamondgirl]

Totally agree with you makes mine boil as well.

 

It must be very hard for your friends for this to happen along with everything else they are fighting. I never told the other half what was happening while he was ill thought he had enough to contend with but I must admit my health wasnt great during it all. Its hard enough to cope with serious health issues without the crap these people hand out.

 

At least your friends came to you for help thats when you really find out who your friend are.

 

DG

[DonkeyB]

Subbing

[debbbbsy]

HI,

My account was assigned "Absolutely" to CL Finance, they failed to get judgement because a credit agreement doesn't exist.CL have SOLD it back to Santander, saying they failed because no DN was issued.(LIE). I challenged Santanders right to demand payment. The "Alleged" debt is still owned by CL. Here is an extract from a letter I recieved from Santander today.

 

" If I may explain, I can confirm that Howard Cohen are the legal firm who act on behalf of CL finance. As advised in our previous letter, this debt was incorrectly sold to CL finance, due to the default notice not being issued. We are therefore required and legally within our rights to repurchase the debt from CL Finance,to recover repayment of the outstanding balance".

 

This came from Jane Greene, Customer Resolutions Team 0871 5225167.

 

Please use this to inform CL that they must withdraw there claim.

 

Debs

[DonkeyB]

HI,

My account was assigned "Absolutely" to CL Finance, they failed to get judgement because a credit agreement doesn't exist.CL have SOLD it back to Santander, saying they failed because no DN was issued.(LIE). I challenged Santanders right to demand payment. The "Alleged" debt is still owned by CL. Here is an extract from a letter I recieved from Santander today.

 

" If I may explain, I can confirm that Howard Cohen are the legal firm who act on behalf of CL finance. As advised in our previous letter, this debt was incorrectly sold to CL finance, due to the default notice not being issued. We are therefore required and legally within our rights to repurchase the debt from CL Finance,to recover repayment of the outstanding balance".

 

This came from Jane Greene, Customer Resolutions Team 0871 5225167.

 

Please use this to inform CL that they must withdraw there claim.

 

Debs

 

 

In which case... tell them they have rescinded the account unlawfully by terminating without issuing a default notice! What an admission! Thank you so much!

 

Yes, they can buy it back but they must notify the account holder in the proper manner. But they have bought back a complete load of tosh.

[DonkeyB]

Sorry VJ, wandering. Apologies if I've missed it, but is this a credit card?

 

Did the PoC mention the famous Clause 7?

[vjohn82]

Sorry VJ, wandering. Apologies if I've missed it, but is this a credit card?

 

Did the PoC mention the famous Clause 7?

 

It's a store card and yes it mentions clause 7... go on then... tell me... I know you are bursting

[DonkeyB]

Practically every Cohen PoC mentions Clause 7, irrespective of the original creditor. Feck knows why. It's never in the T&Cs sent! As it's a key part of the PoC and therefore is central to the claim, they must be forced to produce it. If they do, likelihood is it's the wrong T&Cs, Gromit!

 

Crikey, four guests!

[vjohn82]

Practically every Cohen PoC mentions Clause 7, irrespective of the original creditor. Feck knows why. It's never in the T&Cs sent! As it's a key part of the PoC and therefore is central to the claim, they must be forced to produce it. If they do, likelihood is it's the wrong T&Cs, Gromit!

 

Crikey, four guests!

 

Ok...

 

1) Clause 7 is a load of bullsaxe

 

2) There was no default notice prior to sale of debt = unlawfully rescinded

 

3) No assignment as per LoP s.196

 

Looking good!

[debbbbsy]

I would suggest at this stage to use CPR 31.14.

Demand a copy of the documents they refer to, & inparticular a copy of the agreement which includes the elusive "Clause 7".

i wouldn't make any offer of payment until they comply.

Debs

[vjohn82]

I have spoken to my friend tonight and his wish is for the matter to be settled quickly.

 

I've done my research and it's clear there is no contractual liability any longer due to the rescission of contract.

 

1 - The Default Notice was not served in accordance with s.87.

 

2 - Santander have terminated the contract by selling it onto CL Finance.

 

3 - CL Finance have no cause of action as a creditor (defined by s.189 of the CCA) and cannot enforce the contractual payments as the contract has been repudiated by the original lender.

 

4 - Clause 7 doesn't exist on the CCA or t's and c's and therefore the allegation can be wholy denied/disputed.

 

5 - The sum claimed, in any case, is made up of penalty charges which are unrecoverable.

 

I shall be acknowledging service for them online tommorrow; then I shall write to Howard Cohen with the information that the default notice was not served and therefore Santander have unlawfully rescinded the contract and no cause of action exists.

 

I think this should have the desired effect - perhaps a discontinuance will happen?

[vjohn82]

I'll make them an offer they can't refuse

 

 

[DonkeyB]

Where did you get that photo of me with my cat?

[vjohn82]

Outed!

[DonkeyB]

Outed? Never! As you can see, I clearly prefer pussy...

[vjohn82]

Outed? Never! As you can see, I clearly prefer pussy...

 

Not in the gimp's camp then :D:D:D:D:D

[DonkeyB]

Well, there is a picture somewhere...

[vjohn82]

Righto... acknowledged service for both claims... this is a roughshod defence to start off with. If it doesn't make them "F" off then perhaps nothing will.

 

Suggestions welcome:

 

1. I, xxxxxxxxxxxxxxxxxxxxxx, am the Defendant in these proceedings and make the following statements in defence of the claim.

 

2. I am embarrassed in pleading to the particulars of claim as it stands at present, inter alia;

 

3. The Particulars of Claim are vague and insufficient and do not state an adequate statement of facts to the preceding attempts at obtaining a payment or the alleged cause of action.

 

4. It is admitted that I have a credit account in the form of a store card managed by Santander Cards UK Limited (“Santander”) and it is admitted that I have fallen behind with payments due to exceptional circumstances that the original creditor has been made fully aware of.

 

5. The account was referred to a collection agent, Viking Collection Services Limited (“Viking”), who has been in discussions with my nominated representative in accordance with the Office of Fair Trading Debt Collection guidance.

 

6. At no time is it admitted that Santander or Viking inferred that legal proceedings were to be taken owing to the negotiations and the sensitivity with which my situation lent itself.

 

7. Therefore I believe I have no choice but to defend the current claim as I believe the Claimant has no lawful cause in these proceedings.

 

8. The Claimant is bringing proceedings for a balance of £xxx.xx of which sum is not admitted.

 

9. I put the Claimant to strict proof of how the balance was accrued so that I may assess the balance for unfair charges.

 

10. The Claimant alleges that that account was assigned to them on the 27th January 2010 and that notice was given to me to that effect.

 

11. I deny having received a notice of assignment and the Claimant is put to strict proof of the method by which they obtained the account, as per s.136 Law of Property Act 1925 and proof of recorded service of said assignment as per s.196 of the same Act.

 

12. The Claimant alleges I have failed to make payments in accordance with the terms of the agreement in question and that a Default Notice has been served on me pursuant to s.87 (1) of the Consumer Credit Act 1974.

 

13. I deny having received any Default Notice prior to the issue of proceedings by the original creditor and the Claimant is put to strict proof of this service and that no action was taken in respect of any breach, which is not admitted, occurring.

 

14. The Claimant also considers contractual interest of 26.478% pursuant to clause 7 of the agreement.

 

15. It is denied that the Claimant has the right to claim interest as per s.69 of the County Courts Act 1984 and I put the Claimant to strict proof of the clause in the agreement upon which they are claiming contractual interest.

 

16. Notwithstanding the matters pleaded above, the claimant must under section 87(1) Consumer Credit Act 1974 serve a default notice before they can demand payment under a regulated credit agreement.

 

17. Any action taken under s.87 without a Default Notice being served upon a debtor is an unlawful repudiation of contract and not only prevents the court from enforcing any alleged debt, but also offers an option to counter claim for damages as per Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

18. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and I put the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

 

19. I note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

20. In view of matters pleaded, I respectfully request the court give consideration to striking out the claimants case pursuant to part 3.4;

 

(2) The court may strike out a statement of case if it appears to the court -

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

© That there has been a failure to comply with a rule, practice direction or court order.

 

21. The Claimant has failed to follow any pre-action protocols required to meet the overriding objectives by;

 

(a) failing to notify me of any assignment and in what capacity they were acting in;

(b) not conducting pre-action negotiations with my nominated representative as required by section 2.8 of the Office of Fair Trading Debt Collection Guidance 2006;

© proceeding with action with no Default Notice served by Santander.

 

22. The Claimant in these proceedings has blatantly ignored the OFT guidance on debt collection activity and, under their jurisdiction, have committed unfair or deceptive business practices.

 

23. The Claimant’s course of action in proceeding to issue court proceedings 2 days after the date of their alleged assignment demonstrates that they could not have conducted any meaningful negotiation and this, in its entirety, is not in keeping with the OFT guidance that the Claimant is bound by their own membership with the Credit Services Association to obey.

 

24. Therefore I believe that the claim is unwarranted and vexatious and their conduct is unreasonable and amounts to harassment under s.40 of the Administration of Justice Act 1970.

 

25. I respectfully request the court to strike out the Claimant’s case under CPR 3.4 (a) as there are no reasonable grounds for bringing this matter to court.

[debbbbsy]

If it doesn't make them "F" off then perhaps nothing will.

I dealt with HC, what you need to understand is that these people are stupid. Its not there time & money, they will keep going until the very last moment. When the judge directs them to provide the agreement with clause 7(that you know doesn't exist), the default notice (which wasn't sent). Only then, when you have stayed strong, will they decide.....We can't win this one. They'll discontinue & move to the next person.

Debs

[vjohn82]

Cheers for the heads up on this one debs

[DonkeyB]

Great advice Debs, and how true. The do push it quite far before they fall over. Not sure whether that's through stupidity or brinkmanship