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Trying to Fight Charge on House by Howard Cohen - Please Help


m4ckk
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Brief:

 

Separated from partner.

House in both names.

I moved out.

Interest only Mortgage £104,000.

Current Value £75000.

 

ASDA credit card up at £3000 limit and I cannot pay it.

 

Debt sold to CL Finance.

Not received letters from CL asking to pay. (partner disposed of letters)

Debt taken to CC... CCJ issued.

H&C went to CC to get Charge on property.

 

I found out about charge and asked CC to set aside Judgement because I knew nothing about it.. this cost £75.

 

Asked CL for SAR/Original Agreement... H&C said not available.

14 weeks later... still 'not available'.

 

Went to CC this morning to have decision/charge set aside to allow me to get a defence together. Judge gave us 28 days to file a relevant defence or the application will be thrown out.

Can post the ASDA agreement up later today...

 

Any help in a defence will be much appreciated... Thanks

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You should have sent the SAR to the Original creditor which was Asda.

 

Did the Judge make any other orders ?

 

Your problem is that a new SAR to Asda will take 40 calendar days (6 weeks); you only have 28 days.

 

I would send Howard Cohen a 7 day Letter Before Action to get them to comply with the Subject Access Request you made to them.

 

Amend the letter attached to suit.

 

If they don't, then take them to Court. You would then have to apply for stay in procedeedings whilst HC comply with the possible Compliance Order as you need the paperwork that they allegedly held when they obtained the CCJ

CAG LBA sar 7 days.doc

Edited by supasnooper
typo

 

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Hi you need to use CPR 31.14(Court procedures Rule).

 

You DEMAND all the documents they refer to in the Particulars of Claim.They have 7 days to comply.

The Agreement.

The Default Notice(Issued by Asda)

The Notice of Assignment + proof of delivery(Which legally allowed CL to instigate legal proceedings)

The Deed of Assignment

 

If you can prove to the judge that you didn't get these documents. Proof of your new address the judgement should be set a side.

What happens next, the case goes back to the beginning. You can either challenge the claim, or if they have the documents admit the debt,depending on your financial situation, the court will only make you pay what you can afford. As long as you maintain the payments in accordance with the judgment, they cannot go for a charging order.

 

By the way, your partners a git for binning these. I strongly suggest, if the mortgage is in both names you get this sorted.What other problems are going to surface. A repossession order for non payment of mortgage, house sold with negative equity, which you will be jointly liable for.

I suggest you have a chat with CAB, they will have come across this scenario a million times.

 

Good Luck

Debs

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I'm sorry debbbbsy but allow me to correct you here.

 

CPR 31.14 should not be used for disclosure of documents when applying for a set aside.

 

CPR 31.14 is used for the disclosure of documents for inspection when a claim is proceeding, not after a judgment has been entered.

 

HC would be well within their rights to ignore the CPR 31.14 request.

 

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Thanks for all your advice...

 

Just to confirm that H&C sent a vaguely readable credit card agreement about 4 weeks prior to attendance at CC. There was only the front page and nothing else.

 

No paperwork about the sale of debt from adsa to CL either.

 

BTW.. H&C never turned up at the CC. - Judge said they told him they wernt coming.

 

Can I do a statement to say that I have give up my 'half' of the property.

 

How can they order a sale if there is no equity??

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Your friend here will be Carey v HSBC 2009 which stated that the creditor must have a clearly legible agreement.

 

I'm confused here.

 

You've stated earlier that no agreement was forthcoming from HC yet in your latest post you say that you have a copy of an agreement.

 

Have you sent the 7 day LBA to HC ?

 

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hi snoopa... thanks for your help..

 

We sent numerous requests for the a copy of the original credit agreement - and only received it a couple of weeks prior to the court date Tuesday.

 

I'll post the agreement in a few minutes..

 

What is lba?

 

http://i468.photobucket.com/albums/rr43/m4ckk/100_1131.jpg[/img]"]http://100_1131.jpg

Edited by m4ckk
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  • 2 weeks later...

Hi folks,

 

Could really do with some help from you learned friends on my defence

 

Just got a letter from the judge stating 'it is ordered that judgement be set aside on condition that the Defendant do file a defence by 4pm on 23rd March 2010.

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You will have achieved getting the Set Aside of the CCJ so long as you submit a defence to the original claim by 23rd March 2010.

 

So, you need to find the original Particulars of Claim and look at how you can defend against them.

Speak to the Court to see if they have a copy.

 

As to getting the documents mentioned in the Particulars of Claim, you can now use CPR 31.14 and CPR 18 to request any other documents not mentioned.

 

You really need to move quick here so do not delay.

 

I'd also read this thread which may help if HC delay - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

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  • 2 weeks later...

I have a document sent to me and the court from cl finance stating that all credit agreements are stored on computer files off site and they contend that a copy is sufficient. I have for weeks to get a defence due to adjournmentt. any advice please

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i would write back and suggest that their letter is not clear enough, as it implies that they only have a computer record and it would appear that they are stating that they do not posses the original document

 

with reference to OFT guidelines would they therefore please state without equivocation whether they do or do not possess the original executed credit card agreement and point out that it against OFt guidlines to attempt the persuade you that they have the original signed agreement if they in fact do not

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