Help required drafting defence for set aside application - CL Finance.B&Q store card (GE Money) now santander

[colin21958]

I have made an application to set aside this judgement. Will probably need some help from more knowledgeable people than me on this soon! I have just received word from the court that the case is being transferred to my local County Court for the hearing. Will keep youy posted when I hear from them. Meanwhile the account details, agreement, etc. can be seen on the other post about this and some other accounts which I started some time ago now. It is here:

 

http://www.consumeractiongroup.co.uk/forum/retailers-high-street-line/215080-respones-cca-letters.html

 

The scans on that thread are the ones for this account; B & Q Card account (GE Capital Bank), now Santander (actually now CL Finance).

Edited May 26, 2010 by colin21958
Correction

[colin21958]

CL Finance obtained a judgement by default for this Santander (GE Money/B & Q Credit Card) account; they did this by using my old address on the claim and I never got to find out about it until some time afterwards. Anyway, they were well aware of my current address; they had even quoted it to me in the s78 response! So I have applied to get the judgement set aside so that I can enter a defence. I have started a new thread on this in the Legal Issues Forum, here:

http://www.consumeractiongroup.co.uk/forum/legal-issues/252630-application-set-aside-default.html

I would appreciate any help I can get with this. The court has just told me that the case is being transferred to my local County Court for the hearing. I will post on the other thread when I hear more. Meanwhile if anyone can help me prepare I would be very grateful. Especially anyone who has any ideas on the "Spend Limit" issue and also how to prepare my defence. Thanks.

[colin21958]

I've just realised that this thread is probably in the wrong forum; I didn't know any better when I originally posted it! How do I get it moved to the right place? Thanks.

[colin21958]

I have now heard that the set aside hearing is to be transferred to the local County Court. I therefore thought it was probably time to write to the other side to request documents under CPR 31.14/15.

 

I have written the following letter and would welcome input on wording/accuracy/relevance/correctness, and anything else anyone feels is important to comment on. I won't send it until I have had sufficient input on the suitability in terms of content and timing, etc. Many thanks in advance...

 

Here is the letter...

 

Howard Cohen & Co.

PO Box 110.

Cleckheaton.

West Yorkshire.

BD19 4XT

 

xxth May 2010

 

Dear Sirs,

 

Re: Claim Number xxxxxxx – Application to Set-Aside Default Judgement in CL Finance Limited v Colin21958.

 

Further to my application to set aside the default judgement in the above case, I now write to make a Civil Procedure Rules (CPR) Section 31.14 request for the following documentation mentioned directly or implied by your claim:

 

1. The Original Credit Card Agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached. This should therefore have been attached to the Court Claim Form, but was not. I also require physical examination of this document at a convenient local location, and hereby request that this is arranged to take place within seven days of receipt of this letter as I am entitled to under CPR s31.15.

 

2. A copy of the original Default Notice together with proof or posting and or delivery (this should, as a minimum, take the form of a certificate of posting).

 

3. A copy of the original Deed of Assignment document assigning the alleged debt to your clients.

 

4. A copy of the Notice of Assignment together with proof of sufficient service as described by Section 196(4) of the Law of Property Act 1925:-

 

196. Regulations respecting notices.

 

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).”

 

i.e., this should take the form of receipt showing the posting of a registered letter containing this document.

 

5. The Termination Notice, together with proof of sufficient service.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully, etc..,

Edited May 15, 2010 by colin21958

[colin21958]

Could someone pleasse give me a bit of advice on the default notice I have received for this account. It says "14 days from the date shown..." but does not show a definite date by which to remedy the default. It was issued on 27/09/09 and was followed by a letter referring back to the default notice demanding the full balance dated 12/10/09.

 

This means (according to my calculations) that the account was terminated on the 15th day after the default notice date, i.e., it allows no time for postage (I understand it should allow 2 days?). Does this make it definitely invalid as I assume it does?

 

I also have another default notice for another accout which was issued on 15/12/09 and is followed by a statement of default dated 17/01/10. If my calculations are correct this means that the account was terminated on the 29th day (after allowing for Christmas and New Year bank holidays) after the default notice was issued. Does this mean that this is also definitely invalid as it did not follow its own timescale, even though I know they only have to give 14 days?

 

Any opinions would be gratefully received. Also, if anyone could look at my other threads I would be grateful. Thanks.

 

Regards,

 

Colin

 

Here are links to my other threads... Please take a look and offer any help you can. Thanks...

 

1. Legal Action - Cabot Financial (Goldfish Account)

http://www.consumeractiongroup.co.uk...isclosure.html

 

2. Capital One Card Account

http://www.consumeractiongroup.co.uk...pital-one.html

 

3. Legal Action - Set Aside Default Judgement -Santander (B & Q Store Card)

http://www.consumeractiongroup.co.uk...e-default.html

[colin21958]

Could anyone comment on the letter in my previous post please?

 

Also, I have found that the Default notice for this account may be defective.

 

It was issued on 27/09/09 and said "14 days from the date shown... " although no specific date was given, and this was then followed by a letter referring back to the default notice demanding the full balance dated 12/10/09. This means that the account was terminated on the 15th day after the default notice date, i.e., it allows no time for postage (I understand it should allow 2 days?). Does this make it definitely invalid as I assume it does?

Edited May 17, 2010 by colin21958

[banker_rhymes_with]

Hello C!

 

Does this make it definitely invalid as I assume it does?

 

Yep, it does.

 

But you need to understand why, and be able to convince a Judge. Just because it is, does not mean a Judge will just accept what you say, especially if they don't like you and/or are being told otherwise by a slippery lawyer acting for the enemy.

 

So, this is good, but to ram it home, you need to get your head around why this is so...and make sure you can repeat the reasons until you start saying them in your sleep!

 

This is just a flying visit, but the letter above looks OK at a fast read through. Hopefully others can take longer to double check it.

 

Cheers,

BRW

[DonkeyB]

Be aware that, technically, they do not have to respond to your CPR request as a judgment is in situ!

[colin21958]

Be aware that, technically, they do not have to respond to your CPR request as a judgment is in situ!

 

I didn't realise this, thanks for the warning.

 

Am I right in saying that in the set-aside hearing what I need to do is to show that I have a valid defence which had I been given a chance to submit would have stood a chance of succeeding? If I am successful with this hearing then the process starts over again? Then I assume before I need to submit my full defence I can then issue a CPR request (assuming they don't respond to this one)?

 

Thanks again.

[DonkeyB]

Spot on.

[colin21958]

Thanks.

[DonkeyB]

They may still reply to your CPR request, but I think a set aside should be a formality anyway.

 

As they also sent the post-judgment correspondence to your old address, I begrudgingly suspect a genuine admin error. (Hate to say that!)

 

If it had been Bryan Carter, for example, he would have instantly found your true location to demand the money!

 

I would be rather surprised if they opposed a set aside given that the evidence for mis-service is so clear.

[colin21958]

They may still reply to your CPR request, but I think a set aside should be a formality anyway.

 

As they also sent the post-judgment correspondence to your old address, I begrudgingly suspect a genuine admin error. (Hate to say that!)

 

If it had been Bryan Carter, for example, he would have instantly found your true location to demand the money!

 

I would be rather surprised if they opposed a set aside given that the evidence for mis-service is so clear.

 

I also tend to agree with you. I wrote to the other side pointing out their error and asking if they had any objection to me applying for a set-aside and they responded that they had no objection and I suspect they will not oppose it, as you said.

 

I was so happy to find the invalid DN, because although the agreement may be defective (they used "Spend Limit" instead of "Credit Limit") this would not have been a cut and dried thing; a bit like the Egg "Approved Limit" argument, which has caused quite of lot of contention. That will hopefully become more clear after the court case that is going on.

 

I therefore intend to defend this on the basis of the defective DN and therefore the Unlawful Rescission. I would appreciate confirmation that this would be the best course of action; I expect I am going to need help preparing the defence as well!

Edited May 17, 2010 by colin21958

[Axiom99]

Could anyone comment on the letter in my previous post please?

 

Also, I have found that the Default notice for this account may be defective.

 

It was issued on 27/09/09 and said "14 days from the date shown... " although no specific date was given, and this was then followed by a letter referring back to the default notice demanding the full balance dated 12/10/09. This means that the account was terminated on the 15th day after the default notice date, i.e., it allows no time for postage (I understand it should allow 2 days?). Does this make it definitely invalid as I assume it does?

 

 

I thought that the time for posting was generally accepted as being 4 days as usually the DN is posted 2nd class but that the lender could argue for only 2 days as long as they could prove it was posted first class.Is that correct?

[colin21958]

I thought that the time for posting was generally accepted as being 4 days as usually the DN is posted 2nd class but that the lender could argue for only 2 days as long as they could prove it was posted first class.Is that correct?

 

Yes, I believe you are right. I was just working on the "worst case scenario" in case they come up with proof that they posted it first class (I know there's really no chance of that happening! )

[colin21958]

Hi Everyone,

 

I have today received an order from the court to submit a "draft defence in proper form" and hope someone can help me to understand what "proper form" is and then perhaps help me to do it! Thanks...

 

Regards,

 

Colin

[colin21958]

Hi Everyone,

 

I have today received an order from the court to submit a "draft defence in proper form" and hope someone can help me to understand what "proper form" is and then perhaps help me to do it! Thanks...

 

Regards,

 

Colin

 

Can anyone help please?

[colin21958]

Hi Everyone,

 

I have today received an order from the court to submit a "draft defence in proper form" and hope someone can help me to understand what "proper form" is and then perhaps help me to do it! Thanks...

 

Regards,

 

Colin

 

Still hoping someone can come along and help me with this; seems to have all gone quiet out there! Help someone please?

[colin21958]

Still hoping someone can come along and help me with this; seems to have all gone quiet out there! Help someone please?

 

Please anyone?

[colin21958]

Bump

[colin21958]

Colin where is the defence that you submitted ?

 

Hi Martin,

 

I haven't submitted a defence yet. I have received an order from the court to file a "draft defence in proper form..."

 

I'm firstly a bit confused on what defence I need to file. I have applied to set aside the default judgement because I never received the Claim Form as they sent it to the wrong address. So, I got this order in response to this set aside application. Now, do they want me to submit evidence of why I should get a hearing; i.e., proof of the fact that they filed with the wrong address (they knew the right address and they quoted it to me in my s77 request), or the full defence to the original claim, or both?

 

Thanks and please excuse my ignorance!

 

Regards,

 

Colin

[colin21958]

Could anyone comment on the letter in my previous post please?

 

Also, I have found that the Default notice for this account may be defective.

 

It was issued on 27/09/09 and said "14 days from the date shown... " although no specific date was given, and this was then followed by a letter referring back to the default notice demanding the full balance dated 12/10/09. This means that the account was terminated on the 15th day after the default notice date, i.e., it allows no time for postage (I understand it should allow 2 days?). Does this make it definitely invalid as I assume it does?

 

Actually I just noticed that this DN says "14 days from receipt of this notice" not "from the date shown" as I posted earlier. However, it was dated on 27/09/09 which was a Sunday, so it couldn't have been posted until Monday 28/09/09, so allowing 4 days for delivery by second class mail they shouldn't have terminated the account until 16/10/09 (note that they didn't specify an actual date which I understand they should do, however I also understand that claims of this sort have failed in court!). So, anyway, the fact that they terminated the account by writing to me and demanding the full balance on 12/10/09 means they terminated the account before the full time allowed for remedy had passed. Does this amount to Unlawful Rescission of the agreement?

[colin21958]

any comments on my last two posts please? Thanks

[MARTIN3030]

Colin pm acknowledged.By "proper form" I am assuming the Judge meant definitively set out to address your arguements-and ending with a signed statement of truth declaration.

The points that you have raised are good ones.

I assume that you just need a lift putting things together for submission ?

 

I am snowed under at the moment but will flag up to team members who I think may be able to help.

Meantime can you please confirm the date this is needed by ?

[nks22]

So, anyway, the fact that they terminated the account by writing to me and demanding the full balance on 12/10/09 means they terminated the account before the full time allowed for remedy had passed. Does this amount to Unlawful Rescission of the agreement?

 

I agree with your date calculation and therefore think it does.