Yet ANOTHER hearing - 16/6/10 - Cl Finance/Howard Cohen **Discontinued**

[Martel]

Yes, I’m in a marathon…..3rd hearing in a week (having been dumped by my sols last week without ANY notice…..more background on that in my other threads). Sorry to be so Groundhog Day!

 

This is the second hearing (the first was last summer – for a summary judgment - then the second one postponed pending the outcome of the test cases) for CL Finance/Howard Cohen. Have been ordered to bring originals of documents (that had been in contention in the original hearing). It’s a Small Claims hearing

 

The POCS:

 

The Claimant’s claim is for the sum of XXXXX being monies due from the Defendant to the Claimant under a regulated credit agreement between the Defendant and GE Capitol Bank Ltd under reference XXXX and assigned o the Claimant on the XXXXX notice of which has been given to the Defendant.

The Defendant has failed to make payment in accordance with the terms of the agreement and a DN has been served upon Defendant pursuant to Section 87(1) of the CCA 1974.

Pursuant to clause 7 of the agreement, the claimant also claims contractual interest at a rate if 26.005% per annum from the date if these proceedings to the date of judgment, or sooner payment accruing at a daily rate of 2.04

No point in posting my first Defence (amended one coming later!)

Howard Cohen’s WS:

Part A

Going for Summary Judgment……applying for order pursuant to CPR Part 24…, attention to CPR rule 24.5(1)

Part B

1. The doc filed by the Defendant purporting to be a defence does not disclose any coherent statement of facts. It is the Claimant’s contention ……Defedant has no real prospect of successfully defending the claim

Part C

1,2, 3, 4 (agreement, sums owed, etc,)

5. Under the financial T&Cs of the credit agreement, the Defendant was contractually liable to make a minimum monthly payment as stated on the monthly statement. If the minimum monthly payment failed to be made an arrears letter charge would be applied of the account, Exhibit – T&Cs

6. On XXX pursuant ot Section 87(1) of the CCA 1974, a DN was served upon the Defendant requiring payment of the arrears to be made, the Defendant , having failed to make payment in accordance with the terms of the agreement, DN exhibited. The Defendant failed to comply with the same ad therefore the agreement was terminated.

7. By DOA dated XXXX, GE Capitol Bank Ltd assigned the account absolutely to CL Finance Ltd and NOA was served upon the Defendant on XXX. A copy of the said NOA is exhibited.

8.. The Defendant has not in he defence provided any evidence as to why disputes the outstanding balance. Copies of the agreement, statements and DN were sent on XXX. Exhibit. No reply has been received.

9. Notwithstanding the doc, which has been delivered purporting to be a defence, it is my belief that there is no defence to the Claimant’s claim. I there fore respectfully requrst that the Court do award judgement in favour of the Claimant…….

 

At the hearing, the DJ, who appeared to know nothing about consumer law gets hung up on wanting to see the original of the agreement. Case adjourned.

 

I file the following (drafted by a v talented Cagger!):

 

Amended Defence

 

1) It is not admitted that an accurate Default Notice has been served on me. The Claimant is put to strict proof that the sum of £89.88 was an accurate statement of the arrears at the date of the Notice. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119).

 

2) Further, it is denied that the Default Notice is valid as it failed to give the 14 days notice from the date of service that is expressly required by section 88(2) Consumer Credit Act 1974 (“the Act”) as amended. Consequently, the Claimant is not entitled to terminate the agreement or to seek earlier payment of any sum by way of section 87(1) of the Act

 

3) It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that such a lawful assignment took place.

 

4) If, which is not admitted, there was a lawful assignment to the Claimant it is not admitted that sufficient notice was served on me or that the notice was in any way accurate and the Claimant is put to strict proof. Failure to give sufficient notice or to be accurate renders the notice ineffective.

 

5) Further, and in the alternative, it is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

6) It is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been added to the account are lawfully owing in that it is submitted that the charges are a penalty and so in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999.

 

Statement of Truth

I believe that the facts stated in this amended defence are true

 

AND

 

Skeleton Argument in Reply to the Claimants Application to Strike Out the Defence and for Summary Judgement

 

 

1) Permission is Sought to amend the Defence in accordance with the draft amended defence attached hereto following the Claimant's reply to the Order of District Judge xxx dated xxx.

 

 

2) The original defence was filed before the Claimant had disclosed what it alleges is the complete copy of the agreement. Also, in the Application for Summary Judgement the Claimant contends that the defence does not show a coherent statement of facts. I am a Litigant in Person and am not used to dealing with the courts. As a result, my previous defence may not have fully and clearly described the basis of my defence. Consequently, I respectfully seek permission to amend the defence so that my position is more fully and clearly described and I submit that my amended defence does demonstrate triallable issues.

 

 

3) The Claimant has provided me with documentation which the Claimant appears to believe establishes an unanswerable claim and that consequently the test in CPR 3.4(2)(a) that there are no reasonable grounds for defending the claim is satisfied.

 

 

4) I do not accept that this threshold has been reached and submit that in order for this to occur that the Claimant must prove its’ case on the basis of the evidence that it has served upon myself to date.

 

 

5) It is submitted that this case involves complex matters of consumer credit law and is therefore not appropriate for an application to strike out the defence.

 

6) In order to prove it's claim the Claimant must establish a number of matters. Firstly that there was an enforceable agreement that complied with all of the requirements of The Consumer Credit Act 1974 (“The Act”) and all consequential regulations made thereunder both at the date of the original agreement and at all times thereafter. Secondly, it must prove that a valid Default Notice was issued. Thirdly it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fourthly, that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925). Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all times thereafter.

 

 

7) It is submitted that it is the obligation of the Claimant to prove all of the matters referred to above.

 

8 ) I submit that the Claimant has failed to satisfy all of the matters referred to at paragraph 6 above.

 

9) Firstly I will address the issue of which Act is relevant in this case, 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 the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act

 

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 before the commencement of section 15 of this Act.

 

10) Therefore the Consumer Credit Act 2006 is not retrospective in its application and has no effect upon this alleged agreement and the Consumer Credit Act 1974 is the act which this agreement is regulated by

 

Valid Default Notice

 

11) 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)

 

12) S88(2) of the Act as amended by the 2006 Act expressly requires that the date specified under s88 (1) must be a date that is not less than fourteendays after the date of service of the default notice. I note the use of the word “must” which indicates that this cannot be dismissed as a de minimus issue.

 

13) The alleged Default Notice is dated 24/2/08 which is a Sunday. It is submitted that the earliest date of service, assuming first class post, is 27/2/08 as Sunday is not a business day. The date specified within the Notice is 9/3/08. This does not give the required 14 days from the date of service on 27/2/08 and so the Default Notice is invalid. The Claimant is subsequently barred from terminating the account or seeking earlier payment of any money due by way of s87(1) of The Act.

 

14) I would refer the court's attention to the Interpretation Act 1978 that confirms that service is only effected at the time at which the letter would have been delivered in the ordinary course of post:-

 

7. References to service by post.

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

 

This was further clarified in the following Practice Directioneffective from the 16th April 1985 headed “Service of Documents first and second class mail”:-

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

 

Civil Procedure Rules Part 6.26 also concur with this clarification:-

 

Method of Service

First class post (or other service which provides for delivery on the next business day)

 

Deemed date of service

The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.

 

15) The date of service and method of service (first or second class post) is not admitted and the Claimant is put to strict proof of service. In any event even if, which is not admitted, there was a postal collection on Sunday 24/2/08 the very earliest that the Notice could have been served would have been the following day 25/2/08 and this only gives 13 days notice and so the Notice is incapable of being effective.

 

16) Further, it is not admitted that the figure of £89.88 is accurate and the Claimant is put to strict proof. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

The Assignment of the debt

 

17) It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

18 ) The Law of Property Act 1925 is the relevant act that deals with the assignment of debts.Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

Section 196(4) prescribes the requirements for giving sufficient notice by post:-

 

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.

 

19) 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).

 

20) For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before court action was commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me. Without this proof, the Claimant has no right of action.

 

 

21) Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists.

 

 

22) It is further submitted that, in any event, I am entitled, as a matter of law, to be provided with a copy of the alleged assignment (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

 

23) It is not admitted that the Notice of Assignment is accurate in any way. To be valid it need not contain the date of an assignment or indeed the amount of any debt, however if those matters are contained in an assignment it is submitted that, for the notice to be valid, they should be accurate. (W F Harrison & Co LTD v Burke 1956 [2] All ER 169)

 

Sums Claimed

 

 

24) It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

25) Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty and so in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”)

 

26) It is submitted that this case, insofar as it relates to penalties, is not affected by the current appeal to the House of Lords following the case of Office of Fair Trading v Abbey National Plc & Ors [2009] EWHC 36 (Comm). Credit card charges differ from bank current account charges in that they relate to a clear breach of contract and this is shown in the original creditor's own terms and conditions. Furthermore, as there is a clear breach of contract, there is no question as to whether or not the UTCCR applies as it has already been held to apply to default provisions by the House of Lords in Director General of Fair Trading v First National Bank [2001] UKHL 52.

 

27) In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

 

 

Statement of Truth

I believe that the facts stated in this skeleton argument are true

 

 

 

Defendant

 

 

Before my third return to the lion's den, I welcome any comments or advice (instead of leave the country!).

 

Huge thanks in advance!!!

 

MXXXXX

[cymruambyth]

BUMP!

All possible help is needed!!

[letsdothis]

Sorry I cannot help you, but it has to be third time lucky. Good luck. Oh and have another bump.

[Guest Mrs Hobbit]

Bump....

[pt2537]

may struggle on the assignment issue,it may fall as an equitable assignment if they cannot show the LOPA was complied with, however, the judge can adjourn to allow them to apply to join the second party or can allow an application on the day to join the assignor, ive also seen judge allow judgment on the basis of a written undertaking from the assignor not to enforce any of its rights under the title.

 

To defeat summary judgment, you need to show that there is a possibility that you may win at trial not that you will win.

 

This is what the leading legal text says on SJ apps

TEST FOR ENTERING SUMMARY JUDGMENT

 

34.10 Rule 24.2 of the CPR provides:

The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if––

 

(a) it considers that––

 

(i) that claimant has no real prospect of succeeding on the claim or issue;

 

or

 

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

 

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

 

An application for summary judgment is decided applying the test of whether the respondent has a case with a real prospect of success, which is considered having regard to the overriding objective of dealing with the case justly. This has been said to be consistent with the need for a

fair trial under art. 6(1) of the European Convention on Human Rights (Three Rivers District Council v Bank of England (No. 3) [2001] UKHL 16, [2003] 2 AC 1). Whether there is a real prospect of success is the same test as that applied in applications to set aside default judgments (see

20.11 and E. D. and F. Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [2003] CPLR 384).

 

In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR said that the words ‘no real prospect of succeeding’ did not need any amplification as they spoke for themselves. The word ‘real’ directed the court to the need to see whether there was a realistic, as opposed to a fanciful, prospect of success. The phrase does not mean ‘real and substantial’ prospect of success. Nor does it mean that summary judgment will only be granted if the claim or defence is ‘bound to be dismissed at trial’.

A claim may be fanciful where it is entirely without substance, or where it is clear beyond question that the statement of case is contradicted by all the documents or other material on which it is based (Three Rivers District Council v Bank of England (No. 3)). The judge should have regard to the witness statements and also to the question of whether the case is capable of being supplemented by evidence at trial (Royal Brompton Hospital NHS Trust v Hammond [2001] BLR 297). The question of whether there is a real prospect of success is not approached by

applying the usual balance of probabilities standard of proof (Royal Brompton Hospital NHS Trust v Hammond).

 

Applying a test of whether the claim is arguable will give grounds for appeal

(Sinclair v Chief Constable of West Yorkshire (2000) LTL 12/12/2000).

In E. D. and F. Man Liquid Products Ltd v Patel Potter LJ at [6] regarded the terms ‘real prospect’ and ‘realistic prospect’ as interchangeable. Lord Woolf MR in Swain v Hillman said that summary judgment applications have to be kept within their proper role. They are not meant to dispense with the need for a trial where there are issues which should be considered at trial.

 

Further, summary judgment hearings should not be mini-trials. They are simply summary hearings to dispose of cases where there is no real prospect of success. Without allowing the application to become a mini-trial, there are occasions when the court has to consider fairly

voluminous evidence in order to understand the facts that are in issue (Miles v ITV Networks Ltd [2003] EWHC 3134 (Ch), LTL 9/12/2003).

 

 

Burden of proof

 

An important issue on many applications for summary judgment is whether the burden of proof is on the applicant to show the respondent’s case has no real prospect of success, or whether the burden of proof rests with the respondent to establish a case with a real prospect

of success. In E. D. and F. Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, [2003] CPLR 384, Potter LJ said at [9] that the burden of proof is on the applicant to show the respondent’s case

has no real prospect of success. Strictly this is no more than an obiter dictum, because the learned judge was dealing with an application to set aside a default judgment, and was contrasting his view of the burden of proof on the two types of application. Whether Potter

LJ’s view is correct is open to question. Under the old rules the incidence of the burden of proof was perfectly clear, because RSC,

ord. 14, r. 3(1), said in terms: ‘Unless . . . the defendant satisfies the court with respect to the claim, or part of the claim, to which the application relates that there is an issue or question in

dispute which ought to be tried . . . the court may give such judgment for the plaintiff ’.

 

 

The present rule, CPR, r. 24.2, is not explicit on the burden of proof, saying: ‘The court may give summary judgment against a [defendant] . . . if (a) it considers that (ii) that defendant

has no real prospect of successfully defending the claim or issue’ (and similarly if the application is against the claimant). Lord Woolf ’s Final Report says, at p. 123, regarding

 

applications for summary judgment:

 

Part H Interim Applications

 

356

 

The test for making an order would be that the court considered that a party had no realistic prospect of succeeding at trial on the whole case or on a particular issue. A party seeking to resist such an order

would have to show more than a merely arguable case; it would have to be one which he had a real prospect of winning.

 

The wording of PD 24, paras 4.1 and 4.2, when first issued, made it clear that the burden of proof was on the respondent, providing:

 

4.1 Where a claimant applies for judgment on his claim, the court will give that judgment if:

 

(1) the claimant has shown a case which, if unanswered, would entitled him to that judgment, and

 

(2) the defendant has not shown any reason why the claim should be dealt with at trial.

 

4.2 Where a defendant applies for judgment in his favour on the claimant’s claim, the court will give that judgment if either:

 

(1) the claimant has failed to show a case which, if unanswered, would entitle him to judgment, or

 

(2) the defendant has shown that the claim would be bound to be dismissed at trial.

 

Thus, under the old para. 4.1(1), a claimant applying for summary judgment had to adduce

evidence establishing his claim (but not disproving any purported defence), as is clear from the phrase ‘which, if unanswered’.

In Swain v Hillman [2001] 1 All ER 91 Lord Woolf MR commented on the revocation of the original paras 4.1 and 4.2 of PD 24 as follows:

 

The reason for that deletion is obvious. It was perceived that there was a conflict between paras 4.1 and 4.2 and the provisions of Part 24. The PD was laying down a different standard which indicated that the

approach required was one of certainty. The judge could only exercise his power under Part 24 if he was certain or, to read the actual language of the PD, he thought that a claim ‘would be bound to be

dismissed at trial’. If that was thought to be the effect of the PD, that would be putting the matter incorrectly because that did not give effect to the word ‘real’ to which I have already referred.

Paragraphs 4.1 and 4.2 were deleted because they imposed, or were perceived to impose, too high a standard of proof on an application for summary judgment. It was not because they

imposed the wrong burden of proof. The true burden of proof, it is suggested, is still on the respondent to show a case with a real prospect of success.

Edited June 14, 2010 by pt2537

[Martel]

thanks all for the rush....my brain is so jammed with the legal detritus today.

 

Was hoping the dodgy DN would help me here.

 

Will post docs later and get stoked for my next encounter with my own private DJ

 

thanks to all....MXX

[debbbbsy]

Pursuant to clause 7 of the agreement, the claimant also claims contractual interest at a rate if 26.005% per annum from the date if these proceedings to the date of judgment, or sooner payment accruing at a daily rate of 2.04

 

Have they actually provided an agreement that has this clause 7 ?

 

Debs

[Martel]

Have they actually provided an agreement that has this clause 7 ?

 

Debs

 

Hi Debbbbsy,

 

Thanks for your interest (no pun intended).....CL Finance is the actual Claimant, but they must be referring to the t&Cs for the original acc't....(no t&cs from CL Finance)

 

7.INTEREST

7.1 Subject to clause 7.2 below, if the full balance outstanding on the statement (excluding any amounts arising in respect of Deferred Payment Transactions still in their Specified Period.....but all other amts debited will bear interest at the applicable monthly rate calculated on the balance outstanding on a daily basis as from the date on which the amt wasdebited.....

7.2. 7.3. 7.4 by giving you notice in a manner allowed by law we may at any time vary the rate of interest nd therefore the APR to take account of prevailing interest rates, market forces and credit and business rates....

7.5, 7.6 interest will continue to be payable on all amts you owe us after termination of the Agreement or closure of the acct.

7.7.....

 

So, well spotted!! How best to use this ammo??

 

Many thanks,

MX

[The Mould]

Hello there Martel, you sure do like to bang them out don't you.

 

Kind Regards

 

Mouldy

 

By the way Martel, I do hope that made you laugh.

[Martel]

Here's the application notice served by Howard Cohen:

 

the Defendant's attention is drawn to CPR rue 24.5(1)

the reasons for this app are as follows:

1. the doc filed by the Defendant purporting to be a defence does not disclose any coherent statement of facts. It is the Claimant's contention that on the evidence, the Defendant hs no real prospect of successfully defending the claim

 

Part C

....5 under the financial T&Cs of the credit agreement, the Defendant as contractually liable to make a minimum monthly payment s stated on the monthly statement....there is now exhibited hereto marked XXXX a copy of the said T&Cs.

 

6.. On XXX pursuant to Section 87(1) of the CCA 1974, a DN was served upon the Defendant requiring payment of the arrears to be made, the Defendant, havig failed to make payment in accordance with the terms of the agreement. A copy of said DN is exhibited.....Defendant failed to comply with the same and therefore, the agreement was terminated.

 

7. By deed of assignment dated XXXX, GE Caitol Bank Ltd assigned the acct absolutely to CL Finance Ltd and notice of such assignment was served upon the defendant on XXXX. A copy .....

 

8. The Defendant has not in her defence provided any evidence as o why she disputes the amt outstanding. Copies of the agreement, statements and DN were sent to XXX on XXX. There is not exhibited.....no reply has been rec'd.

 

9. Notwithstanding the doc, which has been delivered purporting to be a defence, it is my belief that there is no defence to the Claimant's Claim. I therefor respectfully request that the court do award judgment in favour of the Claimant....as per CPR 45.4 table 2.

 

 

 

 

MXXX

[debbbbsy]

but they must be referring to the t&Cs for the original acc't....(no t&cs from CL Finance)

 

Sorry its getting late, have they supplied a copy of your credit agreement that contains Clause 7.

I mention this, because HC are renowned for including this clause in all of there POC, even when they don't have an agreement to refer to, they still keep putting it in. It basically invalidates the claim because they cannot produce the agreement that they refer to & rely upon to enforce the claim.

 

Debs

[Martel]

Sorry its getting late, have they supplied a copy of your credit agreement that contains Clause 7.

I mention this, because HC are renowned for including this clause in all of there POC, even when they don't have an agreement to refer to, they still keep putting it in. It basically invalidates the claim because they cannot produce the agreement that they refer to & rely upon to enforce the claim.

 

Debs

 

Hi Debs!

 

I have the luxury of a whole other day!!

 

The Application/Agreement doesn't have any numbered clauses.

 

What it does say:

 

Financial details for the acct

We will determine your credit limit from time to time and give you notice of it

Interest will be charged on the acct at the rate of

2.05% p mo APR 27/5 for mo DD

and 2.17% p mo APR 29.3 for mo payment by other means

APRs quoted do not take into acct of any such variation.

Minimum payment....etc.

 

thanks so much - this is bombshell news! Have you ever employed it?

 

MXXX

[Martel]

Here's the 'agreement', T&Cs, DN and NOA......

 

Any input gratefully rec'd!!!

 

MXX

House of Fraser182.pdf

Edited June 15, 2010 by cerberusalert

[cerberusalert]

I've unapproved the pdf file as your edits can be removed revealing your details.

 

The DN is defective, they have only allowed 13 days to remedy and not included postal service, so at a minimum it is 3 days short possibly five if it was posted 2nd class.

 

The agreement is unenforceable too if you signed it at home, even if those t&cs are the reverse it still doesn't comply with CCCR 1983 because it doesn't contain the 'right to cancel' in the prescribed form. See pages 4 & 5 of the attached pdf.

3. Consumer Credit (Cancellation...cuments) Regulations 1983..pdf

[cymruambyth]

Thank you, the way everything is going at present, Martel doesn't want to give too much help to the opposition!

[Martel]

I've unapproved the pdf file as your edits can be removed revealing your details.

 

The DN is defective, they have only allowed 13 days to remedy and not included postal service, so at a minimum it is 3 days short possibly five if it was posted 2nd class.

 

The agreement is unenforceable too if you signed it at home, even if those t&cs are the reverse it still doesn't comply with CCCR 1983 because it doesn't contain the 'right to cancel' in the prescribed form. See pages 4 & 5 of the attached pdf.

 

Hi Cerberus,

 

Sorry - will get the technical hang of attachments eventually. Is their some trick to permanently censoring a doc?

 

The attachment can still be opened - is that right?

 

Will look at you attachment soonest. I thought credit cards didn't require cancellation rights - or does that come into play if signed at home?

 

Huge thanks,

MXX

[robcag]

 

Sorry - will get the technical hang of attachments eventually. Is their some trick to permanently censoring a doc?

 

 

 

Hi

 

After starting out my own first big thread with links to pdf and doc files stored on the CAG servers I decided to follow others advice and use standard jpg and/or bmp files hosted at photobucket.

 

Once one of those type of files has been edited and saved I'm pretty sure it's not possible to undo any edits made. If you then paste the correct link into your post the image will be displayed rather than just a link which makes it quicker and easier for people to see the image rather than clicking a link.

 

Good luck with your latest battle - got to go and get on with another of my own!

 

Cheers

Rob

[Martel]

Hi Rob,

 

Thanks for your post.....I spent all weekend trying to deal with photobucket. Am waiting for teenager to visit so they can sort it out!

 

I guess if I inked the info out, that would work? My files still seem to be attached and openable on the thread.

 

Good luck with your 'issues' - I'm kind of in a whirlpool of Claims and n460s at the mo, but is there anything in my limited capacity I might be able to help you with?

 

Best of luck...MX

[robcag]

Hi Rob,

 

Thanks for your post.....I spent all weekend trying to deal with photobucket. Am waiting for teenager to visit so they can sort it out!

 

I guess if I inked the info out, that would work? My files still seem to be attached and openable on the thread. If you mean your pdf file at post #13, it's not downloadable by me! The hyperlink has been removed and there is a message 'pdf awaiting approval' or similar. I guess it's just downloadable by you, maybe in order to allow you to 'fix' it?

 

Good luck with your 'issues' - I'm kind of in a whirlpool of Claims and n460s at the mo, but is there anything in my limited capacity I might be able to help you with? Thanks for your kind offer, but I can't think of anything ATM . My head is swimming a bit as I've got 2 Crapbot court claims to deal with, along with a couple of others (although 1 of those is only a Cr@pQuest SD setaside application, so hopefully nothing much to worry about on that score!)

 

Best of luck...MX

 

Cheers

Rob

[cerberusalert]

My files still seem to be attached and openable on the thread.

The pdf is still there it's just nobody can download it except you & the site team. If you go into edit & then 'manage files' you can remove it.

 

If you upload a jpeg go to TinyPic - Free Image Hosting, Photo Sharing & Video Hosting & then copy & paste the URLs back here we'll be able to see them then.

 

Will look at you attachment soonest. I thought credit cards didn't require cancellation rights - or does that come into play if signed at home?

Any agreement signed 'off trade premises' i.e at home needs to contain the cancellation rights as per CCCR 1983.

[Martel]

The pdf is still there it's just nobody can download it except you & the site team. If you go into edit & then 'manage files' you can remove it.

 

If you upload a jpeg go to TinyPic - Free Image Hosting, Photo Sharing & Video Hosting & then copy & paste the URLs back here we'll be able to see them then.

 

Any agreement signed 'off trade premises' i.e at home needs to contain the cancellation rights as per CCCR 1983.

 

 

Cerberus,

 

I've physically blacked out personal info on the agreement with permanent marker - should I upload one page and see if it's ok?

 

Thanks!

 

MX

[cerberusalert]

Yes you can do, then you can add the others using the edit function or as separate posts if you like.

[Martel]

Thanks Cerberus

 

If this edited application/agreement meets with your approval, I'll post up the other stuff

 

thanks, Martel

House of Fraser183.pdf

Edited June 16, 2010 by cerberusalert

[pt2537]

no that is enforceable

 

To be cancellable there MUST be antecedent negotiations (see s56CCA) signing at home does not give rise to fatal breach on its own, there are numerous boxes to tick, review Rankine v MBNA in the Court of Appeal before Lord Justice Gage. It binds all lower courts im sorry to say

[Martel]

Here are the T&Cs, DN and NOA.

Edited June 16, 2010 by cerberusalert