CCJ against me...never recieved a claim to defend!! -*** HOWARD COHEN DISCONTINUE **

[DonkeyB]

This could be tricky, because technically the judgment remains in place and so they are not obliged to answer CPR. But as the judge has made an order they would be very unwise to ignore any reasonable requests for information.

 

The judge was a bit wrong in stating it was your responsibility to notify a change of address, and quite misguided to say that a set aside application should be accompanied by a defence – not so. How can you formulate your defence when you are unsure of the case to answer, and have had no access to CPR? What you have to do, however, is show you stand a reasonable chance of defending the claim, which by CL’s own admissions and confusions should have been simple.

 

As thisat this has become a bit procedural, you might also want to consider a bit of proper legal advice. Procedural issues are way beyond me!

 

In the meantime, a letter asking for the information you want needs to be drafted. Work on that and post it, by which time a couple of CAG’s legal heavy hitters may have time to advice further (and better).

[dmb248]

Thanks for your reply Donkey.

 

Yep, the judgement technically is still in place which does make it tricky....However the judge has ordered CL Finance to produce the Credit Agreement. The problem that they have is that their isn't one for the account number stated in the particulars of the claim..a current account with no overdraft. The one that they say was under a regulated credit agreement!! - the defence to my application was that it was two current accounts with overdrafts amalgamated in one!!

 

If they now produce a Credit Agreement for the correct account number, the one stated in ALL my correspondence, the one that I CCA'd 7 months previous which they claim in a final letter before the judgement was granted, was a current account overdraft, which rent-a-solicitor maintained in court, then surely they have broken the law by pursuing enforcement?!? CCA 1974 s77.(4) and it surely must mean that the judgement has to be set aside?

 

A) They made a claim on a current account with no overdraft that was closed at a 0 balance over 5 years ago.

B) My Defence would then be simple.... see A and all of the fact that they committed an offence.

 

Basically I have to be right in thinking that the judgement surely cannot be enforced on the WRONG account?!?

 

dmb

[DonkeyB]

So the judge has ordered them to produce something that cannot possibly exist... what a mess.

[dmb248]

Morning all...Happy New Year!

 

An update to this ongoing saga with the wonderful CL Finance and Howard Cohen Solicitors.

 

On the 4th Jan I got a letter from the court stating that a new hearing was set for 1st Feb and also stating:

 

IT IS ORDERED THAT

 

claimant to file & serve a copy of the regulated agreement (for the correct account number...the one that I requested over 8 months ago!) by 4pm on 10th Jan.....no such agreement available an explanantion why.

 

On the 5th Jan Howard Cohen sent a letter to the court NOT AN AGREEMENT still insisting that two current accounts were amalgamated and had been advised by their predesseor that no credit agreement exsisted and that they had requested a copy of 'statements of account' to show how the debt was made up....(funny how they state on th claim form that the debt was regulated by a credit agreement!)

 

Even on a court order they will not / cannot produce a copy of the agreement!!!

 

I have until 24th Jan to submit my new set aside application and draft defence.....surely the judgement HAS to be set aside and my defence sucessful as CL Finance and Howard Cohen have breached both the CCA 1974 and OFT guidlines on numerous occasions ultimatly attempting enforcement on the WRONG information and being sly in obtaining the judgement knowing that it had gone to the wrong address!!

 

Along with my set aside application, which as instructed by the judge, will include a copy of the LOAN ACCOUNT statement (which proves that i never had two current accounts) I intend to draft and send my defence to the claim. Would it be wise at this point to include a counter claim?

 

dmb

[dmb248]

Hello again

 

Today the judgement was set-aside.

 

No one turned up for CL Finance, different judge who clearly hadn't read any of the documentation that I had submitted (she maintained for about 5 mins that the claim was served correctly to the correct address!!) Once I had pointed out my draft defence, and the information submitted, regarding wrong account number, no agreement etc she conceeded that I had a good case and set the judgement aside, also awarding me the set aside fee back from CL Finance.

 

I got the impression that had I only made the application re the incorrect address I wouldn't have won. She did say, as did the other judge that CL Finance served correctly as it was my last known address. However after pointing out the letter, confirming receipt of my CCA request and stating that no enforcement action would be taken while my request remained outstanding, that they sent to my old address 4 days after they had my correct address, and 5 days after they had made the claim things started to sway in my favor!

 

dmb

[DonkeyB]

Shows the importance of doing it properly - you need a defence as well as highlighting their error. Well done.

[DonkeyB]

Sorry, did I say error? I meant “error”. Or maybe “admin error”. Or maybe “trying to get one over”. You get the gist.

[dmb248]

Certainly do Donkey....and thanks for your input it has really helped so far.

 

dmb

[DonkeyB]

Anytime. It’s really important that people understand that getting a set aside purely because you did not receive the claim form is a non-starter. You need to have a reasonable prospect of defending the claim or be able to show an abuse of process by the claimant. In your case, you had both!

 

Once again though it appeared the judge was all but ready to side with the claimant. That’s why your documents and arguments have to be spot on, and why you MUST be prepared to open your mouth in court and fight your corner.

[MandM]

Good result. Nicely done. And well done (and hello) Donkey.

 

M

[dmb248]

Agreed donkey.

 

I have to say that the first judge was actually on my side I think, although I couldn't understand why she never set aside the judgement. And although she ordered Howard Cohen/CLF to produce an agreement for the correct account number (which they didn't) and suggested that I submit a draft defence the judge yesterday obviously hadn't read any of the information submitted by me or aknowlaged the fact that no agreement had been filed by them and I really did have to 'fight my corner' as it were!

 

and thanks for your post M

 

dmb

Edited February 2, 2011 by dmb248

[dmb248]

Hello again

 

I have a question regarding timescales...I have been given until a week on Tuesday to submit a final defence. I CCR'd Cohens when I won the Set Aside and have given them until Tuesday to supply the documents stated in the particulars of claim (which if they do will be a miracle as they don't exist for the account number!) however I have to go away for work on Monday night returning a day after I have to submit a revised defence so I won't know until then if Cohens have replied.

 

My question is can I request from the court an extra few days to submit my defence?

 

dmb

[DonkeyB]

Did you CCA Cohen or CPR them? If it was CPR, then you have choices.

 

First, you can contact them and offer a further 14 days (or so) under CPR 15.5 to come up with the docs, and if they fail make it clear you will apply for strike out and costs. If they accept, it is up to you to contact the court and let the court know. Demand Cohens confirm this to you in writing.

 

Or you can apply for strike out on an N244 just before your deadline, or you can apply to the court for an order forcing them to disclose their evidence.

 

Avoid any kind of embarrassed defence!

 

Choice is yours!

[dmb248]

Hi Donkey

 

Sorry hit the wrong key I've CPR'd them 31.14. As they will not have any of the documentation stated on the claim (wrong account number etc) applying for a strike out seems not unreasonable?

 

a) Is there a cost to do that?

b) Do I wait until after the dedline I set Cohens to supply the docs?

 

Finally, is it worth me counter claiming as they basically used incorrect info, were sly and technically had a judgement registered against me for 5 months !!

[DonkeyB]

(a) £40 without hearing, £75 with, I think. You may want to write/email/call/fax and remind them of the deadline, on pain of their incurring costs of an N244.

 

(b) did that deadline give you enough time to file a defence (or make a decision) once you got the documents?

 

I see no value or merit in a counterclaim.

[dmb248]

Basically from the set aside the judge ordered a defence to be submitted in 14 days so has to be submitted by 4pm on the 15th so no, not long really. The problem is from tomorrow night I am out of the country until the 16th (didn't know until Friday!) I have given Cohens until Tuesday (8th) to provide me with the documents. They were also ordered by the court to repay my set aside fee by the 15th. As of yet no responce.

 

Realistically Donkey they will not have any documents because they made a claim on a current account which was already proved to the court at the set aside hearing (evidence provided) so I know that they don't have a leg to stand on.

 

My defence would not be an embarrased defence because of lack of documentation but the fact that they do not and will not have any documentation because they claim on the wrong account number, and in further correspondance to me they claim an overdraft debt claiming exemption from a CCA request.

 

Even when the court ORDERED the agreement to be filed and served for the CORRECT account number before the ajourned set aside hearing. They sent a letter to the court stating the above...current account overdraft!

 

It hasn't been allocated a track yet but will go small claims under 5k, but I got the CPR 3.14 request in before the track has been allocated so they cannot use the small claims track as an excuse for non compliance so if I were to request a 'strike out' when should I do it? or should I just submit my defence?

 

Should I not recieve any information from Cohen, I have drafted a defence up its below, advice very much appreciated:

 

thanks dmb

 

DEFENCE

THE CLAIM IS DENIED.

1. I dmb am the defendant in this action and litigant in person. I make the following statement as my defence to the claim bought by Howard Cohen for CL Finance Ltd.

2. This amended defence is submitted following the order of District Judge _________ dated 1

st

February to Set Aside the judgement.

3. This amended defence supersedes the draft defence filed on 24

th

January 2011.

4. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and HSBC Bank PLC, secondly that such an agreement complied with the requirements of the Consumer Credit Act 1974 ('the 1974 Act') and all

consequential

regulations made thereunder, both at the date of inception and at all times thereafter. Thirdly it must establish that HSBC Bank PLC complied with all provisions of the 1974 Act in that it must show that it served a proper default notice upon myself prior to terminating the agreement. Fourthly, it must establish that there was an 'absolute assignment by writing under the hand of the assignor'.

Fifthly

that proper notice of any such assignment was given to the Defendant. Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

5. It is submitted that it is the obligation of the Claimant to prove all of the above matters.

6. It is noted that the Claimant has not complied with my request pursuant of the Civil

Procedure

Rules 31.14 ('CPR 31.14') dated 1

st

February 2011 to supply me with copies of all of the documents, namely, a Credit Agreement, Default Notice and a notice of Assignment, all of which the Claimant states in the Particulars of Claim and relies upon when seeking enforcement.

Existence of a Written Credit Agreement.

7. The particulars of the claim state an alleged debt relating to a ‘Regulated Credit Agreement’ under the reference/account number XXXXXX

. This cannot be the case as this is a closed current account which did not have a borrowing (overdraft) facility.

9. The Claimant is put to strict proof that a Regulated Credit Agreement for account number XXXXXX exists.

10. The absence of a written agreement containing all of the

prescribed

terms is fatal to the claim.

11. Section 127(3) of the1974 Act states:

The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner

).

.

12. It is noted that on the order of District Judge ________ at the set aside hearing on the 15

th

December 2010, the Claimant has failed to produce a valid Credit Agreement for the correct account number as stated in all of my correspondence to the Claimant.

Valid Default Notice

13. It is a condition that prior to the issue of court proceedings in respect of a Regulated Credit Agreement that certain steps must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the 1974 Act and the issue of a valid termination notice, also complying with the act.

14. The Claimant has failed to provide me with a valid default notice as stated in the particulars of claim and pursuant of my CPR 31.14. request.

15. The Claimant is put to strict proof that a valid default notice exists.

The Assignment of the Debt.

16. The claimant has failed to provide me with a valid letter of assignment as stated in the particulars of claim and

pursuant

of my CPR 31.14 request.

17.

The Claimant is put to strict proof that a valid notice of assignment exists.

Sums Claimed

18. It is not admitted that any or all of the monies claimed under account number XXXXXX 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.

19. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

20.

As a result, I would respectfully request that the court consider using it's powers to strike out the claim. As I am a litigant in person it would unfairly prejudice me if the Claimant will not disclose the documents that it seeks to rely on and are vital to it's case.

Statement of Truth

Signed

dmb

[dmb248]

Hello again

 

Well, gave Cohens until today...no responce from re CPR 31 request....

 

Assume I should now file my defence?

 

Any feedback or advice n the above draft defence would be much appreciated.

 

thanks

 

dmb

[DonkeyB]

Personally I would suggest you apply for strike out – they have not complied. Alternatively, apply for an order forcing them to comply.

 

Your third option is to file a defence, making it clear that you require to be allowed to amend if the docs show up (which you know they can’t).

 

If you can record calls, maybe call them and ask why they have not complied, if they intend to, by when, and if not, why not. Give ’em some rope...

 

My sensible head says call ’em – ie. be proactive and prove you are trying to sort this. Hence record the call for you own records (and as proof of contact if subsequently required).

 

My I’m-p*ssed-off-with-w*nkers-like-this head says strike out or order to comply.

[dmb248]

Thanks for that Donkey

 

I am assessing my options as I now have a further update. I have just got off the phone to the court, they are back logged and the order will not be processed until tomorrow however I have found out that Cohens did not comply with the first order at the first hearing to file and serve a copy of the agreement for the correct account number or a letter of explanation why they couldn't supply one, even though I got what I assumed was a copy of a letter dated 5th Jan addressed to the court (via DX) with their explanation , overdraft debt etc blah blah blah!!!

 

I also find out that they filed a letter to the court dated the 10th December 4 days before the first hearing again going on about overdraft, & exemption from CCA blah blah blah!! this I wasn't aware of!! (this is the only correspondance from Cohens in the case file)

 

Anyway with regard my CPR request, I was quick of the mark and served it the day that I got the set aside so I would assume that they have ignored it cos they hadn't had an order from the court, however at this stage I really couldn't give a rats arse about that and as far as I am concerned they have failed to comply! If they had bothered turning up to the hearing they would know what the outcome was!

 

I have also proved at the set aside hearing (twice!) that the information that they supplied in the POC and also in letters to me and the court re account number, overdraft etc (closed current account with a 0 balance) is incorrect.

 

They were ordered to supply the Credit Agreement for the Loan Account which they havn't so I am at a loss as to what they are playing at!

 

I have also confirmed that I can file a defence by Fax so that gives me 6 days to ponder this. They are likely to get a copy of the set aside order on Friday but if they correspond with me in writing after that and before I have to file defence I won't get it cos I am out of the country for the next week.

 

If I file a defence do I have to provide supporting documents? eg bank statements, letters from CL Finance?

 

dmb

[dmb248]

Hello again

 

I have spent the last couple of hours on the forum reading posts for advice on defences and as I am out of the country and have to Fax mine to the court by 4pm tomorrow I(intend doing it tonight) wondered what anyones thoughts were on the defence that I have drafted below.

 

Don't feel that I need an embarrased defence cos they can't provide the doc s in the POC as they don't exist, however do I mention the correct account number and the fact that they failed to produce agreement under court order?

 

Advice (editing) appreciated!

 

Thanks dmb

 

 

In the xxxxxxx County Court Claim Number

Between

Claimant: CL Finance Limited

and

Defendant: dmb

DEFENCE

 

THE CLAIM IS DENIED.

1. I dmb am the defendant in this action and litigant in person. I make the following statement as my defence to the claim bought by Howard Cohen for CL Finance Ltd.

2. This amended defence is submitted following the order of District Judge _________ dated 1st February to Set Aside the judgement.

3. This amended defence supersedes the draft defence filed on 24th January 2011.

4. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and HSBC Bank PLC for account number (current account) secondly that such an agreement complied with the requirements of the Consumer Credit Act 1974 ('the 1974 Act') and all consequential regulations made thereunder, both at the date of inception and at all times thereafter. Thirdly it must establish that HSBC Bank PLC complied with all provisions of the 1974 Act in that it must show that it served a proper default notice upon myself prior to terminating the agreement. Fourthly, it must establish that there was an 'absolute assignment by writing under the hand of the assignor'. Fifthly that proper notice of any such assignment was given to the Defendant. Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

5. It is submitted that it is the obligation of the Claimant to prove all of the above matters.

6. It is noted that the Claimant has not complied with my request pursuant of the Civil Procedure Rules 31.14 ('CPR 31.14') dated 1st February 2011 to supply me with copies of all of the documents, namely, a Credit Agreement, Default Notice and a notice of Assignment, all of which the Claimant states in the Particulars of Claim and relies upon when seeking enforcement.

Existence of a Written Credit Agreement.

7. A Consumer Credit Act 1974 s77 request was made on 27th April 2010 to the Claimant under Account Number ( loan account ) to provide me with a true copy of the ‘regulated credit agreement’ for that account.

8. The particulars of the claim state an alleged debt relating to a ‘Regulated Credit Agreement’ under the reference/account number (current account).

9. This was a current account which did not have a borrowing (overdraft) facility and has a ZERO balance.

10. The particulars of claim and ALL correspondence recieved from the claimant contadicts point 8 stating that the alleged debt refered to a current account overdraft.

11. The Claimant is put to strict proof that a Regulated Credit Agreement for account no (current account) exists.

12. The absence of a written agreement containing all of the prescribed terms is fatal to the claim.

13. Section 127(3) of the1974 Act states: The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner). .

14. It is noted that on the order of District Judge ________ at the set aside hearing on the 15th December 2010, the Claimant has failed to produce a valid Credit Agreement for account number (loan account) under which my original CCA request was made and as stated in all of my correspondence to the Claimant.

Valid Default Notice

15. It is a condition that prior to the issue of court proceedings in respect of a Regulated Credit Agreement that certain steps must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the 1974 Act and the issue of a valid termination notice, also complying with the act.

16. As the account balance for account number (current account) is ZERO it is submitted that a valid default notice does not exist.

17. The Claimant has failed to provide me with a valid default notice as stated in the particulars of claim and pursuant of my CPR 13.14. request.

18. The Claimant is put to strict proof that a valid default notice exists.

The Assignment of the Debt.

19. As the account balance for account number (current account) is ZERO it is submitted that there cannot be an assignment of debt.

20. The claimant has failed to provide me with a valid letter of assignment as stated in the particulars of claim and pursuant of my CPR 31.14 request.

21. The Claimant is put to strict proof that a valid notice of assignment exists.

Sums Claimed

22. As the account balance for account number (current account) is ZERO, It is not admitted that any or all of the monies claimed under this account number 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.

23. In light of the above, and also the Claimants failure upon the order of Judge _______ to file a copy of the Regulated Credit Agreement for account number (loan account) it is not admitted that I am indebted to the Claimant as alleged or at all.

24. As a result, I would respectfully request that the court consider using it's powers to strike out the claim. As I am a litigant in person it would unfairly prejudice me if the Claimant will not disclose the documents that it seeks to rely on and are vital to it's case. The defendant asks to be allowed to submit a fully particularised defence should the Claimant provide copies of the original documents that they will rely upon.

Statement of Truth

Signed

dmb

[dmb248]

Hello again

 

Update

 

The court have acknowlaged my defence and I have recieved an AQ N149 (small claims track). I have however still not had a responce to my CPR request from Cohens.

 

With regard the AQ it has to be filed by 7th March, Monday week, never filed one before but it seems pretty straight forward, however, in (G) Other Information 'you consider should be supplied by the other party' do I need to include a request that that the claimant supply all of the information that they state in the POC, including how they believe the debt is made up under the account number stated? I have also been reading on the forum and am a bit confused as to wether I need to include a 'draft order'? with the AQ. If so am I right in thinking that this is what I believe the judge should be ordering of the Claimant or simply to strike out the claim?

 

I am out of the country on business again not back until 8th March!, looking to get the AQ in the post tomorrow or Tuesday so any prompt advice as always very much appreciated.

 

Thanks

 

dmb

[dmb248]

Been surfing threads and have found the infor that I was looking for!!

Edited February 27, 2011 by dmb248

[Gaston Grimsdyke]

Haven't read the whole thread but, in respect of the overdraft, there is no requirement for any written agreement complying with CCA regulations. Overdraft agreements are exempt. Also, since they are repayable on demand, there is no requirement for any default notice to be served prior to issuing proceedings. A default notice is only required if they are looking to accelerate payment; so in respect of the loan agreement, if the loan term has already expired they do not need to serve a default notice at all. In any case, they are entitled to sue you for any arrears without serving a default notice.

[dmb248]

Thanks for that Gaston as always all input is very much appreciated.

 

However, you needed to read the whole thread...in a nutshell they have made a claim against me using the wrong account number which was a current account with no overdraft facility and closed in 2005 with a zero balance. Basically they claim that a Loan Account, was a Current Account and the debt relates to an overdraft on that account, not true and I have proved that at the set aside hearing, hence the judgement being set aside.

 

dmb

[citizenB]

In respect of your AQ, if you are intending to ask the court to strike out the claim, then yes, you will need to include a draft order.