Court Summons from Howard Cohen / GE Money

[Robert1168]

Hi all.

 

Wow I've started an interesting debate here!

 

Just had a reply from the letter I had sent, posted earlier in the thread, I have scaned two of the pages in below. The other pages were a Deed of Assignment between GE Capital and CL Finance this is 6 pages long so I did not scan it in. My daughter has never received anything in writing from them relating to the agreement being assigned.

 

Is it right what they say regarding having to send £10 for the SAR and sending the information within 40 days? Surely now it is subject to legal proceedings they have to provide this information without charge and within a quicker timescale than 40 days.

 

There was no other information provided.

 

Thanks for all your help people

 

[tomterm8]

they are lying, or misunderstanding the law. No part of the letter you sent forms part of a subject access request; you are asking for disclosure under the Civil Procedure Rules.

 

The deadline they quote is quite unacceptable, is (in my view) intended to frustrate legal proceedings.

 

I would contact Laiste. It might be time for a letter or application to the court.

 

Edit: what date did you sign & what date did the creditor sign the agreement?

 

And can you actually read all of this agreement? I can't.

[Curlyben]

Is that what they sent you as the excetuted agreement.

Hmmm I think not, that's just the application form.

No prescribed terms there.

Quote:

8.1 What are ‘prescribed terms’?

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

*

* rate of interest – see Q8.6repayments – see Q8.9.

 

Sch 6 was not amended by the 2004 Regulations.

 

Did they send you the statement of account as they are ment to under the CCA ?

 

Also you should read this thread that covers a very similar situation: http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/90012-just-been-court-cl.html

 

Seems our "friends" Cohen have been busy recently.

[Josie8]

I agree that p-rescribed terms aren't there and it is headed application form too

[Robert1168]

they are lying, or misunderstanding the law. No part of the letter you sent forms part of a subject access request; you are asking for disclosure under the Civil Procedure Rules.

 

The deadline they quote is quite unacceptable, is (in my view) intended to frustrate legal proceedings.

 

I would contact Laiste. It might be time for a letter or application to the court.

 

Edit: what date did you sign & what date did the creditor sign the agreement?

 

And can you actually read all of this agreement? I can't.

 

Thanks for your replies.

 

I will nip home at lunchtime to check the dates etc as detailed above.

 

I am worried about the deadline for submiting my daughters defence, from what I can work out this is due on Thursday 5th July. :o

[Laiste]

Hi Robert,

 

The first thing you need to do is ring the court and find out definitively when the defence is due in. The tel no is on the right hand side of the 1st page of the claim form in very small lettering. Do that asap.

 

Regards,

 

Laiste.

[NitrousOxide]

they are lying, or misunderstanding the law. No part of the letter you sent forms part of a subject access request; you are asking for disclosure under the Civil Procedure Rules.

 

The deadline they quote is quite unacceptable, is (in my view) intended to frustrate legal proceedings.

 

I would contact Laiste. It might be time for a letter or application to the court.

 

Edit: what date did you sign & what date did the creditor sign the agreement?

 

And can you actually read all of this agreement? I can't.

Hi,

I agree, they are either hoping you have no knowledge of disclosure or just don't realise you can request it under cpr.

[Robert1168]

Phoned the Court, the deadline for submitting the defence is Friday 6th July at 4.00pm.

 

My daughter signed the agreement on 28/04/2005 it was signed on behalf of GE on the same day.

 

Even though its hard to read my scan it does show the APR.

 

We have not received a statement of account, details of charges added to the account from Howard Cohen.

 

Let me know if any other information would help.

 

Thanks for all your help.

 

Kind regards

[lemma1968]

On a completely irrelevant note, but just as a matter of interest, Howard Cohen (the man himself) has just left Howard Cohen & Co to join another firm in Leeds. I blinked twice when I read it in the local rag. Maybe the stress of CAG has gotten to him finally.

[Guest Mincemeat]

On the application form, is the DoB for your daughter correct? Does it show that she was under age? As you can see from the form, the store assistant has given her name and her supervisor code and is therefore identifiable. Also, the store assistant has said she had a visa debit card. Am I correct in saying a visa card (as opposed to a connect card) is only available to persons over the age of 18? If that is correct, you can show coercion and collusion on behalf of the store assistant and therefore will be able to deflect any under-age rebuttal from HC (IMO). Lets see what kind of a flash in the pan reaction that gets from other posters!

[Guest Mincemeat]

In addition to the collusion arguement, you can see that the store assistant has ticked the visa and the debit card boxes, therefore showing she deliberately misled the company she works for in accepting someone she knew to be underage for the purpose of gaining additional sales commission from the selling of items from the shop and by signing up additonal cardholders. Do you see the differentiation between visa and debit cards? A debit card is not a visa card and there is no breakdown as to the type of debit card and by stating the shop assistant has seen a visa card from the applicant they are therefore either in cahoots with the applicant, or are being deceitful or negligent.

 

I think (and for heavens sake ask someone who is an indemnified professional before the world and his dog jump on me for making a point that all others had dismissed as fanciful (but I've seen these agreements before and know what the store assistant has to do to get one authorised and am therefore fully vindicated in the position previously stated) you are safe in being able to deflect any subsequent grumbles about fraudulent applications IF the DoB is correct (and therefore shows she is underage).

[Guest Mincemeat]

And you can quite simply prove the whole application form was written by the shop assistant and given to the applicant for completion (and therefore the sales assistant ticked the 'Over 18' boxes) by the use of crosses next to where the applicant needs to sign.

[Guest Mincemeat]

Just as a word of warning (and I haven't seen the application form the other case that was won against HC recently) but which prescribed terms are missing?

 

I can see there is a heading that is valid

I can see interest rates that are valid

I can see a statement about credit limit

I can see a statement about repayment frequency

I can see a statement about statement frequency

I can see the applicants signature is in a box that states CCA 1974

I can see it is executed as an agent of GE Capital has signed it

 

It is irrelevant that it is headed 'Application Form' as it is a document that embodies all of the prescribed terms and is signed by the debtor and therefore (IMO) is enforceable by a court.

[tomterm8]

Just as a word of warning (and I haven't seen the application form the other case that was won against HC recently) but which prescribed terms are missing?

 

I can see there is a heading that is valid

I can see interest rates that are valid

I can see a statement about credit limit

I can see a statement about repayment frequency

I can see a statement about statement frequency

I can see the applicants signature is in a box that states CCA 1974

I can see it is executed as an agent of GE Capital has signed it

 

It is irrelevant that it is headed 'Application Form' as it is a document that embodies all of the prescribed terms and is signed by the debtor and therefore (IMO) is enforceable by a court.

 

there is some debate over whether a precontractual document can embody all the terms of an agreement, since by definition a pre-contractual document isn't binding on both parties until the agreement is made. Until that time, either party could elect to change their offer.

 

I note, some people seem to have won using this argument, although I am not aware of any binding precident in either case, and think that the argument is somewhat suspect.

[Guest Mincemeat]

What may well be relevant here is that I think I can see a statement that basically says the agreement isn't binding on them until they finalise things at their end. As far as the OFT are concerned, this necessitates a date to be entered onto the agreement to say when the agreement is therefore executed, as by definition and statement by the creditor, it is not binding until such a time. What they base this on (or indeed where it is because I didn't bookmark it) would need some investigation. That would help the pre-contractual arguement, but comments which allude to there being failings with respect to the presence of prescribed items are counter productive. I have no doubts that a judge, if they wanted to, could enforce this as an improperly executed agreement.

[Samphire]

Appologies for jumping on your thread, I have a problem to with these guys. I have same application form and accept that I have to pay the money. I sends Howard & Co a SAR and they have returned my fee saying I have to apply to GE for the SAR, is this correct.

[Robert1168]

Her date of birth on the form is incorrect, it should be 87 not 86.

 

At the time she had a Electron Card that does show the Visa logo on it.

 

 

 

Thanks

[Guest Mincemeat]

Hmmmmm........

 

It is a shame about the date of birth, but you could argue the case still as the assistant entered it, and ticked the relevant boxes (but your daughter signed it).

 

The whole visa thing here is still a contentious point, as the store assistant has stated it is a visa debit, not an electron card and as such is not proof of age.

 

There is still loads of travel in the whole underage arguement (IMO)

[Robert1168]

What may well be relevant here is that I think I can see a statement that basically says the agreement isn't binding on them until they finalise things at their end. As far as the OFT are concerned, this necessitates a date to be entered onto the agreement to say when the agreement is therefore executed, as by definition and statement by the creditor, it is not binding until such a time. What they base this on (or indeed where it is because I didn't bookmark it) would need some investigation. That would help the pre-contractual arguement, but comments which allude to there being failings with respect to the presence of prescribed items are counter productive. I have no doubts that a judge, if they wanted to, could enforce this as an improperly executed agreement.

 

The date my daughter signed the agreement was 28/4/2005, the signature on behalf of GE Capital is also dated 28/4/2005, this must mean that it was signed by someone in the shop on the day. Is this allowed? A

 

Are they allowed to sign on behalf of the finance company? I thought in these circumstances the documents were sent onto the finance company for them to sign and execute the agreement then send a copy onto the customer?

[Guest Mincemeat]

That's where standard industry practice differs from the CCA. You can argue that their signature is pre-contractual, and by the very terms they have put into the agreement, it is unexecuted.

[Robert1168]

Hmmmmm........

 

It is a shame about the date of birth, but you could argue the case still as the assistant entered it, and ticked the relevant boxes (but your daughter signed it).

 

The whole visa thing here is still a contentious point, as the store assistant has stated it is a visa debit, not an electron card and as such is not proof of age.

 

There is still loads of travel in the whole underage arguement (IMO)

 

Thanks for your input Mincemeat it does make for an interesting debate, it would be good to keep the debate going especially with some input from some of the legal experts.

 

I will however keep a lid on the age thing for now as I dont want to risk anything nasty happening to my daughter, even though it annoys me the fact that a minor can be allowed to do something like this so easily without these companies doing the proper checks.

[reallymadwoman]

Sorry to hijack your thread slightly Robert, but I've just returned from taking my (16 year old) daughter to open a bank account at Alliance and Leicester, and the assistant there tried very hard to persuade me to fund the account with an extra £100 per month so that she could have a 'proper' account with a debit card and an overdraft! I am horrified that a bank would be sufficiently irresponsible to give an overdraft to anyone under age. Is it even legal, or should I complain? Your thread is the only one I've been able to find that even mentions this type of situation so I'm hoping one of the regular contributors can help.

[tomterm8]

The date my daughter signed the agreement was 28/4/2005, the signature on behalf of GE Capital is also dated 28/4/2005, this must mean that it was signed by someone in the shop on the day. Is this allowed? A

 

Are they allowed to sign on behalf of the finance company? I thought in these circumstances the documents were sent onto the finance company for them to sign and execute the agreement then send a copy onto the customer?

 

Hm. I forgot to mention... under the Money laundering Regulations 2003 they are required to keep a record of the proof of identity they took on opening the account, for upto six years after it ended.

 

Failure to do so would be a criminal offence.

[spiritgirl59]

Appologies for jumping on your thread, I have a problem to with these guys. I have same application form and accept that I have to pay the money. I sends Howard & Co a S.A.R - (Subject Access Request) and they have returned my fee saying I have to apply to GE for the S.A.R - (Subject Access Request), is this correct.

 

Samphire, best to start your own thread so your questions etc., don't get lost on other theads I too have had this same problem with H Cohen. Since I wrote back to them as follows all has gone quiet. Try this :-

 

May I draw your attention to the part of your letter wherein you state:-

 

“Please be advised that we Howard Cohen & Co are not obliged to furnish you with documentation under a request under the Consumer Credit Act 1974, any such request should have been directed to our client, CL Finance Limited” obviously quote back however they have worded it to you and change their Client to GE

May I now respectfully draw your attention to the following:-

 

Consumer Credit Act 1974

s.175

Where under this Act a person is deemed to receive a notice or payment as agent of the creditor or owner under the regulated agreement, he shall be deemed to be under a contractual duty to the creditor or owner to transmit the notice, or remit the payment, to him forthwith.

 

You are therefore obliged to pass on my request to your client.

 

Under the circumstances, the contents of my letter to you dated XXXX 2007 (insert date of your S.A.R - (Subject Access Request)) still stand and I await a satisfactory response.

 

Hope this helps!

Spiritgirl x

[Robert1168]

Hi Robert,

 

The first thing you need to do is ring the court and find out definitively when the defence is due in. The tel no is on the right hand side of the 1st page of the claim form in very small lettering. Do that asap.

 

Regards,

 

Laiste.

 

Hi Laiste

 

I rang the court, they advised me the latest date to submit my daughters defence is 4.00pm Friday 6th July.

 

I can see how busy you are but do you think you may be able to help me.

 

Kind regards.