Howard Cohen/CL Finance Court Hearing - Help Please

[sabr44]

I was in the County Court today for first hearing. The defendant is my wife who unfortunately is ill at the moment and was unable to attend. I attended on her behalf today and the District Judge gave directions.

The Claimant is CL Finance who is being represented by Howard Cohen & Co Solicitors. CL finance are claiming £9284.38 in respect of a Debenhams Store Card Agreement (First Personal Bank Limited) dated 30 September 1995. On 28 July 1997 The First Personal Bank Limited changed their name to GE Capital Bank Limited. On 13 December 2006 by Deed of Assignment, GE Capital Bank assigned the account to CL Finance Limited. My wife received debt collection letters from various DCA's around the beginning of 2007. Foolishly she agreed to pay £1.00 per month and she did so from January 2007 to March 2011. In total she has paid £51.00 towards the account. In March 2011 I decided to review my households expenses which included this payment my wife was making. We asked CL Finance to provide a copy of the original credit agreement for the account in question. Upon receiving this it was evident that the handwriting and signature on the agreement was certainly not that of my wifes! Someone had taken out an account in my wifes name, defaulted on it and now my wife was paying for it! We called the Police to report this apparent identity fraud but my wife was told that she would not receive a crime reference number because it is the lender who is the victim of any crime and it is they that should report the incident to the police. So my wife stopped the payments from March last year and she was served a Default Notice in September 2011 and today was the first court hearing.

 

We explained the facts to Howard Cohen who requested a copy of my wifes passport but she declined to provide this to them after finding out that they are known to manipulate documents. I took her passport in to the court today but the DJ said she should submit it with her defence. The DJ also advised Howard Cohen that they should intruct Handwriting Experts with regards to the signature. It is a clear forgery as far as we are concerned. Aalso the DJ moved this case from the small claims to the fast track. The case has been adjourned until July 20th but I need to submit a defence by next Tuesday. Any help would be most appreciated!

Edited April 25, 2012 by sabr44

[debbbbsy]

For a start I think the police were wrong not to give you a crime number, your wifes identity has been stolen and she has been forced to pay for a storecard she did not apply for. I think a revisit to the police with a copy of the claim form and demand a crime reference number.

 

Did you send HC a CPR 31.14 request.

 

If you have not done a CPR request, than you could do this tomorrow and submit an Embarrassed/Holding defence based on what you have already stated, but attach a copy of the CPR and your intention to submit a full and particularised defence once the claimant has complied with your CPR request. They have 7 days to comply.

 

Another part of your request could be to find out if this Storecard had been upgraded to a credit card.

 

Debbie

[Gaston Grimsdyke]

Really bad idea refusing to send copy passport signature to them. How are they expected to evaluate whether your wife's signature has been forged if you refuse to give them a copy of her real signature? You'll get slaughtered by the judge if you go down that road.

 

Also the handwriting on the agreement is a bad point. Almost certainly this was completed by the shop assistant so not surprising it isn't your wife's writing. The only bit that matters is the signature.

 

And furthermore the police were correct - the victim of the fraud is not your wife but CL Finance who are the ones out of pocket.

[debbbbsy]

And furthermore the police were correct - the victim of the fraud is not your wife but CL Finance who are the ones out of pocket.

 

But CL are not out of pocket if payments were being made and if they gain judgment on the debt.

 

But I do agree, you should have sent a copy of the passport, what you do is draw a line through the signature, this would prevent them scanning and reusing it. But as you already had the storecard agreement with a signature on it, they could not have recreated another agreement with her signature.

 

The application also has to have other personal details, date of birth and address at the time. Were these correct.

 

Debbie

[sabr44]

Thanks for responding. Yes, I agree the Judge was not happy that my wife did not provide a copy of her passport to H Cohen. I took her passport along to the hearing to show the judge but she just made an order that my wife include a copy of it in her defence.

 

The handwriting on the agreement may well have been completed by the store assistant but the signature is a clear forgery and are confident that if HC intruct a handwriting expert, as they have been ordered to do so by the judge, to file and serve the Handwriting Experts report by 20 July 2012, it will be proven that the signature is not my wife's. Am I right in thinking that the handwriting experts report should be definitive and will be in my wife's favour as she really honestly did not sign this agreement?

 

The judge asked me why my wife agreed to pay the £1.00 per month for a debt which was not hers and I said that my wife was intimidated and bullied, which she was, but the judge just replied 'I do not accept that, do you have evidence of the intimidation and bullying? We do not unfortunately because at the time around 2007 my wife used to receive phone calls at home and letters persuading her to pay. And she did agree then to pay the £1.00 per month. Does this fact go against her even though it's not her agreement?

 

H Cohen have provided in their Application for Summary Judgement the following:

 

A copy of the executed agreement signed and dated 30 September 1995.

A Deed of Assignment from GE Capital Bank to CL Finance Limited dated 13 December 2006.

A Default Notice to my wife dated 20 September 2011

A copy of a Statement showing all the payments my wife made, £1.00 per month form Jan 2007 to March 2011

A copy of a letter from H Cohen to my wife requesting a copy of signature from her passport or driving licence and a police issued crime reference number.

A copy of my wife's response to that letter telling H Cohen that she will not be sending a copy of signature due to being worried that H Cohen will reconstruct documents. Also advising HC that after having spoken to Police no crime reference number is available and it is CL Finance who should go and get a Crime Reference number.

 

As I have mentioned before, yesterday the Judge ordered that my wife file and serve a fully particularised defence by 1st May 2012 otherwise she will be banned from defending the case and summary judgement will be granted to the claimant.

 

Could someone please help us with a particularised defence?

[sabr44]

 

The application also has to have other personal details, date of birth and address at the time. Were these correct.

 

Debbie

 

The Application form has correct personal details including date of birth. At that time in 1995 we were living in a houseshare with other tenants so it may be likely that my wife's personal details were stolen within the household.

[42man]

So it was a store card which turned into a 'bank' credit card - did you see this ? - http://www.bbc.co.uk/news/business-17670803

[debbbbsy]

If the storecard was opened in 1995, CL must have been assigned the account in 2006.

 

Thats a period of 11 years that this card was being used. For the credit balance to increase to £9k, whoever was using this card was also making the payments. You need to request the statements for this period. To what address they were being sent and who was making these payments.

 

Do you know if the storecard was upgraded to a credit card ? This is important.

 

Debbie

[sabr44]

I have no idea if this storecard was upgraded to a credit card. How could I find out?

[debbbbsy]

Take a look at the storecard application, at the top is the card reference number, if the card reference number on the claim is different to this one, than at some time the card was upgraded.

 

Also check that the interest rate on the application is the same as the one quoted on the POC.

 

And finally, are HC referring in the POC to any specific clause. If so, check that this tallies with the application you have.

 

The Terms and Conditions, and interest rate of a storecard and credit card are different.

 

Debbie

[42man]

Were you able to use the account outside of Debenhams when it was transferred to First Personal or GE Bank ?

[debbbbsy]

Were you able to use the account outside of Debenhams when it was transferred to First Personal or GE Bank ?

 

hi 42man,

 

part of the problem sabr44 is having is that someone they shared a house with back in 1995 opened the account using his wifes name. The signature on the application is not hers, but the person had her address & DOB. The first she knew of it was when CL contacted her in 2007, confused and bullied she made payments of £1. The initial hearing before the judge did not go well, the courts seem to feel that because she made payments she has in effect accepted responsibility.

 

The case has been adjourned for now.

 

CL have so far only provided the Storecard application and statements for the period that she was paying.

 

Debbie x

[sabr44]

hi 42man,

 

part of the problem sabr44 is having is that someone they shared a house with back in 1995 opened the account using his wifes name. The signature on the application is not hers, but the person had her address & DOB. The first she knew of it was when CL contacted her in 2007, confused and bullied she made payments of £1. The initial hearing before the judge did not go well, the courts seem to feel that because she made payments she has in effect accepted responsibility.

 

The case has been adjourned for now.

 

CL have so far only provided the Storecard application and statements for the period that she was paying.

 

Debbie x

 

Consisely put, Thank you Debbie, that is exactly the situation. All I can thik to do now is just put together a few paragraphs highlighting that my wife does not acknowledge this debt and although did pay instalments towards it, this was due to being pressurised by CL Finance. Hopefully the truth will be revealed by the Handwriting Experts report.

[sabr44]

Take a look at the storecard application, at the top is the card reference number, if the card reference number on the claim is different to this one, than at some time the card was upgraded.

 

Also check that the interest rate on the application is the same as the one quoted on the POC.

 

And finally, are HC referring in the POC to any specific clause. If so, check that this tallies with the application you have.

 

The Terms and Conditions, and interest rate of a storecard and credit card are different.

 

Debbie

 

Hi Debbie,

The store card reference number on the copy agreement is exactly the same as the one on the claim form.

[debbbbsy]

Then it has not been upgraded to a credit card.

 

You need to get hold of the statements for this card, they have to provide them to support the the amount being claimed, this will reveal to what address the statements were being sent and how payments were being made. The statements will show exactly which Debenhams store the card was being used.

 

Also GE would have had to issue a default notice before selling the account to CL. You want a copy of this, and to what address it was sent.

 

Also, for CL to legally own the account you should have recieved a Notice of Assignment. Again you want a copy of this and proof of service.

 

If the address on these are different to your address, it will strengthen your case.

 

 

A CPR 31.14 should be used to get these. They will have 7 days to comply.

 

Debbie

[tosh1]

subbing

[sabr44]

** Update ** As instructed by the DJ at the last hearing I submitted the particularised defence to the court and also sent a copy to Howard Cohen.

 

Here is the reply we received on 11 May 2012:

 

I am currently unable to post images as my post count is only 6 and it needs to be 10 or greater.

 

H Cohen have included a Part 18 Request for further information, most of which we are unable to provide as it dates back to 1995. Why don't they just go ahead and instruct the Handwriting Expert as told to do so by the DJ at the last court hearing? HC state that the cost of the handwriting expert will be £3000 and my wife will be liable for this cost! Frankly I couldn't care if it was £10,000 because if the Handwriting Expert is genuine then it will be proven that the signature is a forgery. Also they mention that the burden of proof lies with my wife! Surely this is untrue as she is the victim of identity fraud and it is H Cohen who need to prove that she owes the debt?

[sabr44]

??

[sabr44]

** Update ** As instructed by the DJ at the last hearing I submitted the particularised defence to the court and also sent a copy to Howard Cohen.

 

Here is the reply we received on 11 May 2012:

 

 

 

 

H Cohen have included a part 18 Request for further information, most of which we are unable to provide as it dates back to 1995. Why don't they just go ahead and instruct the Handwriting Expert as told to do so by the DJ at the last court hearing? HC state that the cost of the handwriting expert will be £3000 and my wife will be liable for this cost! Frankly I couldn't care if it was £10,000 because if the Handwriting Expert is genuine then it will be proven that the signature is a forgery. Also they mention that the burden of proof lies with my wife! Surely this is untrue as she is the victim of identity fraud and it is H Cohen who need to prove that she owes the debt?

[sabr44]

**

[sabr44]

** Update ** As instructed by the DJ at the last hearing I submitted the particularised defence to the court and also sent a copy to Howard Cohen.

 

Here is the reply we received on 11 May 2012:

 

 

 

 

H Cohen have included a part 18 Request for further information, most of which we are unable to provide as it dates back to 1995. Why don't they just go ahead and instruct the Handwriting Expert as told to do so by the DJ at the last court hearing? HC state that the cost of the handwriting expert will be £3000 and my wife will be liable for this cost! Frankly I couldn't care if it was £10,000 because if the Handwriting Expert is genuine then it will be proven that the signature is a forgery. Also they mention that the burden of proof lies with my wife! Surely this is untrue as she is the victim of identity fraud and it is H Cohen who need to prove that she owes the debt?

[tosh1]

It should be upto HC to pay for the cost of the hand writing expert. As far as your concerned you didn't sign it and if they can't proove it and are not willing to pay for the cost to proove it

 

That should be the end of the matter? Possibly write to them and the court and tell them that you are not willing to pick up the cost.

[consumeredge]

Hi sabr44

 

I would write to Howard Cohen & Co as follows:

 

Dear Sir or Madam

 

Reference your letter dated 10th May 2012 the contents of which are noted.

 

I remind you of the Judges comment at the previous hearing whereby your representative on the day was advised by said judge that Howard Cohen & Co instruct a hand writing expert.

 

The Right Honourable Judge did not state, or suggest, the cost be born by the Defendant.

 

So as to validate your claim this service will cost £3,000 of which you allege I am liable to, kindly forward the name of the Expert Witness that you intend to instruct together with their company address details.

 

Obviously as you will agree, I can then make arrangements to visit the Expert Witness with the nesassary documentation carrying my signature, this will enable myself to clear this matter expediently and beyond reasonable doubt, saving the court any further wasted time and costs.

 

Should you fail to provide the above information then an explanation will be required how you arrived at the figure of £3000 together with reasons as to your refusal to co-operate with the honourable judge’s directions, that in reality would then serve to offer the answer to your question number 5.

 

I look forward to your reply within 7 days of receipt of this letter.

 

Yours Faithfully

[AndyOrch]

Excellent response Consumeredge:wink:

 

Regards

 

Andy