Howard Cohen/CL Finance

[Curlyben]

Re: Howard Cohen/CL Finance

Pete, no worries mate all in hand.
We'll just see what tomorrow's post brings and then file accordingly

[petetheflyer]

Re: Howard Cohen/CL Finance

Hi Curlyben

Just had this mornings post, and there is nothing from CL/HC, so that should help the defence

cheers

Pete

[Curlyben]

Re: Howard Cohen/CL Finance

Right then.
Oh well they are pretty dumb aren't they.

Now this is unlikely to be a simple exercise, but here goes.

So the defence will rest on their non-compliance and we'll include draft directions. Basically put up or shut up

DEFENCE

In the Northampton County Court
Claim number: xxxxxxxxx






Between
XXXXXX- Claimant

and


xxxxxxxxxxx - Defendant

Defence
1) Except where otherwise mentioned in this defence I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof pursuant to Civil Procedure Rules ("CPR") Part 16.5.
2) The claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the accounts referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.
b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form as laid out in Practice Direction 16. Paragraph 7.3.
c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

Abuse of Process
3) Court action was commenced contrary not only to the Overriding Objective but also specifically CPR Pre-Action Protocols 4.1 – 4.10 and as such the time of the court is now being taken up needlessly. >Thanks for this bit Amy<

The Credit Agreement
4) On the **DATE** I wrote to the Claimant requesting a true copy of the executed credit agreement (Appendix A) pursuant to section 77(1) of the Consumer Credit Act 1974 ("CCA"). The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

5) CL Financial have made no reply to this request.

6). Therefore for the claimant to have a legitimate right of action they must hold a credit agreement compliant to the Consumer Credit Act 1974 and the regulations made under the Act and must be able to produce this before the court

7). The Claimant is therefore put to strict proof that such agreement exist

Failure to disclose documents relied upon in the Particulars of Claim
8).Further to the case, on **DATE** I requested the disclosure of information from the Claimant's solicitors which is vital to my defence in this case pursuant to CPR Part 18. (Appendix B) The information requested amounted to copies of the Credit Agreement and Default Notice referred to in the particulars of claim and a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including a copy of the Notice of Assignment required to give the claimant a legitimate right of action.


9) To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

10) The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act 1974 and subsequent Regulations made under the Act exists.

11).This request was sent by royal mail special delivery document number xxxxxxxxxxxxxx and was received by the claimant on **DATE**

Default Notice
12) In my request for disclosure under CPR Part 18 I requested that the Claimant disclose a copy of the Default Notice that is referred to in the Particulars of Claim. They have failed to respond to this request.

13) It is neither admitted nor denied that any Default Notice in the prescribed format as cited in the Particulars of Claim and as required by s87(1) CCA was ever received. I put the Claimant to strict proof that said document in the prescribed format was delivered to me.

14) Without prejudice to the above, I put the Claimant to strict proof that any Default Notice sent was valid. To be valid, a Default Notice is required to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach.

15) For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under s87(1) CCA, which states:-

S87(1)Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-
(a) to terminate the agreement, or
(b) to demand earlier payment of any sum, or
(c) to recover possession of any goods or land, or
(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or
(e)to enforce any security

16) I note the opening part of section 88(1) CCA, which states:-

88. Contents and effect of default notice.
- (1) The default notice must be in the prescribed form.......

The word must makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a de minimus issue.

17) The prescribed format for this document is given by the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, as amended, in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with s87(1) CCA.

18) With regards to the Authority cited in point 9, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

"The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

19) I note that the regulations do not allow any variation in the form of the Default Notice and therefore it is averred that where the Default Notice is not as laid down in the regulations it is invalid and that termination or further enforcement action cannot take place until such time as a valid notice is served.

20) In the case of Woodchester v Swayne & Co [1998] EWCA Civ 1209 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid. I quote the comments of Kennedy LJ:

"This statute was plainly enacted to protect consumers, most of whom are likely to be individuals. When contracting with a large financial organisation they are at a disadvantage... If the hirer is said to have broken its terms, the hirer needs to know precisely what he or she is said to have done wrong and what he or she needs to do to put matters right. The lender has the ability and the resources to give that information with precision. If he does not do so accurately then he cannot take..."the next step" "

"That, as it seems to me, is the scheme of the legislation. It would be frustrated if the notice could claim that in order to put matters right the hirer must pay a sum far in excess of the amount in fact owing and yet constitute a valid notice. ... he may not at first appreciate that the large sum set out in the notice is inaccurately calculated and plain wrong. It may be, perhaps because of earlier defaults on his part or the incidence of interest, not at all easy to calculate what in fact is owing and the hirer may, thus, be misled into believing that the sum set out in the notice is right."

21) 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 give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

22) As a result, I submit that, unless the Default Notice is accurate with regard to the amount that was lawfully owing to the Claimant, then it is not valid and that termination or further enforcement action cannot be taken until such time as a valid notice is served.

23) 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)


Conclusion
24) The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information under the CPR.

25) Furthermore, without full disclosure I am unable to prepare a defence to the documents which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.


26) In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as an abuse of process and/or disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

27) Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 18 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

28) In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

29) In addition 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 is alleged to have commenced prior to 2006, Consumer Credit Act 1974 is the relevant act in this case.

30) Furthermore, since the account referred to in the particulars of claim is regulated by the Consumer Credit Act 1974, for a right to pursue action to exist; there are procedures, which must be followed under the Consumer Credit Act 1974. A default notice must be issued under s87 (1) conforming to the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) which sets out the form and content which default notices must include, without such notice being issued the claimant would not have such right to demand any monies

31) The Defendant respectfully includes draft directions for consideration by the court (Appendix C) in reference to point 27 above.

Statement of Truth

I, believe the above statement to be true and factual to the best of my knowledge



Signed .....................

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

• Fully particularised statement of case
• Referenced agreement, default notice and Notice of Assignment
• Copies of any statement or other document relied upon pursuant with CPR18

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant shall within 14 days thereafter file and serve the following

• An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

Well that should do the trick, lots of TP's there

You need to enter in dates and also attach your letters as proof.

Any questions and do you understand what we are doing here ?

[petetheflyer]

Re: Howard Cohen/CL Finance

Hi Chaps

that looks lovely to me, sorry to take so long to come back to you, had a rubbish day and only just got home.

All I need to check is do I send the court the draft order for directions, or does that go somewhere else, or is this just what you are hoping the court will send to CL? Sorry to be stupid. I will file this electronically tomorrow (Wednesday) am as I obviously missed the post today

Thanks very much

Pete

[Amy]

Re: Howard Cohen/CL Finance

You attach the draft order to your defence and send both to the court.

[StoneLaughter]

Re: Howard Cohen/CL Finance

Hi Chaps

that looks lovely to me, sorry to take so long to come back to you, had a rubbish day and only just got home.

All I need to check is do I send the court the draft order for directions, or does that go somewhere else, or is this just what you are hoping the court will send to CL? Sorry to be stupid. I will file this electronically tomorrow (Wednesday) am as I obviously missed the post today

Thanks very much

Pete

(Just in case) If it won't file electronically, are you in a position to hand deliver? Personally I would favour hand-delivery anyway... or at least Royal Mail Special Delivery (It has to be in by Thursday, right?).

[Curlyben]

Re: Howard Cohen/CL Finance

Sorry to say, but you wont be able to file that on line as it's waaaaayyyyy over the limit, plus you can't include the needed attachments or directions.
Send it guaranteed next day and you will be fine.

[sparehead03]

Re: Howard Cohen/CL Finance

I've just joined this site. Very impressed so far with this thread. It reads like the chapters of a soap opera. I was gutted upon reaching the end of the thread because there's no conclusion. Can't wait for the next thrilling episode.

I hope you win.

Great work all, keep it up!!!

[enaid]

Re: Howard Cohen/CL Finance

Hello sparehead and welcome to Beagles.
It is very frustrating getting to the end of a thread and no conclusion, I agree. There is a lot of waiting around in these kind of cases as you can imagine, hopefully a good result will ensue.
Enaid x

[mazzie]

Re: Howard Cohen/CL Finance

hiya

just wanted to pass on my good luck wishes but so far this thread is fab in learning all about stuff ,

i too have a potential court threat from cl finance and trying to educate myself incase
mind you mine is only about 800 worth, so not sure if they just wont take court action

will keep in touch

laters mazzie x

[StoneLaughter]

Re: Howard Cohen/CL Finance

hiya

just wanted to pass on my good luck wishes but so far this thread is fab in learning all about stuff ,

i too have a potential court threat from cl finance and trying to educate myself incase
mind you mine is only about 800 worth, so not sure if they just wont take court action

will keep in touch

laters mazzie x

CL Finance would take you to court inside three days for a tenner. They use all sorts of unlawful tricks; they send the documentation to former addresses, they submit abbreviated claims with no documentation knowing that the defendant won't turn up because the paperwork went to the wrong address, and they generally go all-out for a Judgement. Then they start to get a bit nasty.

Believe me - don't call their bluff. If you believe you don't owe the money, prepare what you can of a defence - before their claim even gets submitted. Start the ball rolling asking them to prove the debt is yours.

[petetheflyer]

Re: Howard Cohen/CL Finance

Hi Anyone still reading. An update.
On Jan 22 Northampton CC wrote to me saying the defence had been received and that Cohens had 28 days to respond. The letter from the court says "...the claimant must contact the court within 28 days after receiving a copy of your defence. After that period the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay."
I calculate that 28 days from Jan 22 is Feb 19 but for safety add on 3 days to claim they didn't get the defence in the post. I am actually terrrified to post this as I am sure it will tempt fate but as of Feb 25 there has been no correspondance from Cohen's or the court. Cohen's have not responded to my/legalbeagles defence, nor have they contacted me or provided any information.

So I am post this still hoping for the best. Will update again in early March or earlier if anything else happens

[Curlyben]

Re: Howard Cohen/CL Finance

Pete, give the court a call and see what's going on with this.
I do know that dates mean NOTHING to solicitors and the court allow this practice to continue !!!!!

[petetheflyer]

Re: Howard Cohen/CL Finance

More info for you.

As suggested have contacted Northampton Court. They say that the claimant has 33 days from the date of receipt of the defence, which is today, and documents need to be received by the court by 4 pm on the day. Nothing has so far been filed (time of call was 3.31pm). The helpdesk lady at Northampton said that all dates for filing are computerised and the case will automatically be stayed by the system on the overnight update without referral to a judge. Northampton Court will not write to me to let me know the case has been stayed, so it will be a matter of ringing them up tomorrow to find out if anything arrived by 4 pm today

[StoneLaughter]

Re: Howard Cohen/CL Finance

Might be wise to move in swiftly with a request that the Claim be struck out. What do you reckon Curly?