Defending a CCJ and penalty charges

[Curlyben]

Re: Defending a CCJ and penalty charges

Good plan.
Admittedly I doubt GE will accept the payments, but doesn't hurt to try.

[pt2537]

Re: Defending a CCJ and penalty charges

I am in no way suggesting debt avoidance here, but use of a very powerful piece of consumer protection, the Consumer Credit Act.
You have correctly attempted payment and been reasonable, but GE just doesn't want anything further to do with this account, so the Moral argument is now out of the window.

That only leaves the Legal route, which Cohens have started..

Let me guess, did this "notice of assignment" simply say that CL had purchased your account and that all payments should now be sent to them, and was it on CL or Cohens letter head

WHAT?? No way suggesting debt avoidance????

C'mon, Para 46-50 Wilson and First County Trust [2003] UKHL 40 Benny, its not debt avoidance if the lender buggers up the agreement, the House of Lords said so hehehehehehehe

If the lender gets it wrong then the agreements unenforceable, and the debtor is clearly prejudiced by the omission of the important terms, thats not debt avoidance, well not when im in court with the client anyway lol

Righty then

those pleadings arent the best ive ever seen but hey ho

No date or degree of default is given, no details of how the sums claim are accrued , no details of any letter before action , no date of agreement, no date of service of default notice

thats sufficient for now, you dont need much more to kick them in the nuts with thats more than enough

[Curlyben]

Re: Defending a CCJ and penalty charges

You know what I mean PT

[pt2537]

Re: Defending a CCJ and penalty charges

You know what I mean PT

yeah yeah, i know, couldnt resist

but then again as you know i have no morals,i am happy making a living on the back of those moronic debt purchasing companies lol,

the more they bugger up the claims they bring the more i earn

[Curlyben]

Re: Defending a CCJ and penalty charges

When it comes to DCA's the gloves are off and the boots are warmed up and ready

[osman612]

Re: Defending a CCJ and penalty charges

Hello again,

So I've heard back from Howard Cohen and Co, here's what they have to say:

We refer to your recent letter in which you have made a request for information under part 31.14 of the Civil Procedure Rules.

As this matter relates to a small claim, we are not obliged to provide this information, and would advise that the particulars of claim detailed in the County Court Claim Form should be sufficient to allow you to respond accordingly.

Please reply to the claim form immediately. Please refer to the Claim Form for details of the time limit by which you are expected to respond. Failure to do so will result in a judgement being entered without reference to you.

If you are in any doubt as to your position in this matter, please seek your own legal advice.

Comes as a surprise to me, but I'm no expert. Worth adding that I already have replied to the Claim Form online, and said that I did so in the CPR letter I sent them (the one Curlyben linked to earlier in the thread)

Any thoughts on what I should do next? I'm definitely keeping the letter and using it my defense.

[osman612]

Re: Defending a CCJ and penalty charges

Right I've looked into it a bit more and found that yes, seeing as the claim is for less than £5k it is classed as a "small claim" and will be dealt with as such. But in my CPR letter I included the following:

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

So, as would be expected, they aren't playing nice. Should I now look to form a defense based on the poor POC and their refusal to provide me with the information I requested? I was thinking of sending them a letter saying that this is what I'll be doing, with the intended effect of kicking them into action. However if I can get the case thrown out on their non-compliance with the CPR that'd be much better.

Would really appreciate a response as I'm not sure where to go from here.

Thanks,

[Curlyben]

Re: Defending a CCJ and penalty charges

Cohen's are hiding behind CPR in this case and we'll make them pay
Bear in mind while claims for sub 5k are normally tracked as small claims, until the AQ stage this is NOT guaranteed..

Well you could either play nice and send them a letter to the effect until the AQ stage this isn't guaranteed small claims, or screw them, file the AoS and then go for a strike out due to cruddy POC and generally stupidity..

[osman612]

Re: Defending a CCJ and penalty charges

Right so I'm going to put my defense together this evening, not too sure where to begin. As I understand it at the moment the key points are that their POC isn't up to scratch and they failed to comply with the CPR request and haven't provided me with any proof that they own the debt. (although would that be covered by the notice of assignment?).

I've never written anything like this before, is there a certain way I should go about it or should I just write it as I see fit and hope the courts don't take a dim view of my lack of legal knowledge?

[Amethyst]

Re: Defending a CCJ and penalty charges

wait for Curly but this is a similar defence to what you might want to be entering (one short version and one long over complicated IMO version just for your reference give you somewhere to start )

Defence entered
1.
Except where otherwise mentioned in this defence, the Defendant neither admits nor denies any allegation made in the Claimants’ Particulars of Claim and put the Claimant to strict proof thereof.

2.
The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR.


3.
The claimants also failed to make any contact with the defendant prior to the commencement of court proceedings. HFC last communicated with the defendant via letter on the 10th March 2009, stating they were prepared to work with the defendant to resolve the matter amicably and hope to come to a mutual agreement in respect of reduced payments. (Appendix A). No further communication was received from HFC by the defendant until the arrival of court papers on the 18th April 2009.

4.
The defendant sent a CPR letter to the claimants on the 21st April via signed for 1st class post (which was delivered on the 23rd April 2009. A copy of this letter was also faxed to the claimants on the 21st April 2009 the claimant did not respond in any form to the defendant's request.


5.
A further letter was sent and faxed on the 29th April 2009 (Appendix D). At the time of submitting this defence the claimants have not responded in any form to the defendant's request.


6.
On the 27th April 2009 the defendant sent a SAR and CCA request to HFC via 1st Class signed for post. These were received on the 29th April 2009. At the time of submitting this defence HFC have not responded in any form to the defendant's request


7.
Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no reference to the date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information.


8.
Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.


9.
No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

10.
Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

11.
Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed

In the Northampton County Court
Claim number xxxxxxxxx


Between

xxxxxxxxxxxxxxxxx - Claimant

and
xxxxxxxxxxxxxxxx- Defendant

Defence

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxxxxxxxxx

2. 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.

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as 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 written agreement 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.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

d) ) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof
The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].
The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.
Consequently, it is proving difficult to plead to the particulars as matters stand.



The relevant Act of Parliament in this Case

6. 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.

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from Consumer Credit Act 2006 (c. 14) - Statute Law Database accessed Thursday 31st January 2008

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

(c)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.

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




The Request for Disclosure

9. Further to the case, on DATE I requested the disclosure of information pursuant to the CPR 31.14 (letter attached marked Exhibit A), which is vital to this case from the claimant.

10. To date the claimant has not replied

11. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation which the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable



12. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 11 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced
16. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document

13. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299
"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated
consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting
the provisions of the two schedules the Judge said:

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which
are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the
minimum terms) are to be found in Schedule 1."

14. If the agreement does not contain these terms in the prescribed manner it does not comply with section 60(1) CCA 1974, the consequences of which means it is improperly executed and only enforceable by court order

15. Notwithstanding points 11 and 12, any such agreements must be signed in the prescribed manner by both debtor and creditor. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

16. The claimant is therefore put to strict proof that such a compliant document exists


17. Should the issue arise where the claimant seeks to rely upon the fact that they can show that the defendant has had benefit of the monies and therefore the defendant is liable, I refer to and draw the courts attention to the judgment of Sir Andrew Morritt in the case of Wilson v First County Trust Ltd - [2001] 3 All ER 229, [2001] EWCA Civ 633 in the Court of Appeal


at para 26
"In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid;"

The Need for a Default notice

18. It is neither admitted nor denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant.

19. Notwithstanding point 18, I put the claimant to strict proof that any default notice sent to me was valid. 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)

20. 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)


Conclusion

21. The Defendant denies that there has been any failure to make payment in accordance with the alleged contract. The Claimant has failed to produce a copy of a credit agreement in the requisite timescale/at all, and in the absence of such an agreement, which conforms to sections 60 and 61 of the Consumer Credit Act 1974, the Defendant avers that no agreement has ever existed for there to have been any failure to make said payment.

22. Without Disclosure of the relevant documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

23. 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 disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

24. Alternatively, Should the court order the claimant to produce the necessary documentation. 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.












Statement of Truth


I, believe the above statement to be true and factual


Signed .....................xxxx xxxxxxxxxxx

Date xxxxxxxxxxxxxx

[Curlyben]

Re: Defending a CCJ and penalty charges

Like it Ame, but I would be inclined to go for something a little quicker

Defence
1.The claimants particulars of claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR.


2.Even making allowance for the Northampton Bulk Regime the claim fails to disclose sufficient information as required by the CPR, there is no reference to any account number, no date of alleged agreement, no date of alleged default or details of any default notice served in accordance with s87 (1) Consumer Credit Act 1974, the claim is missing vital information.

3. Without admission that any cause of action is shown by the Claimant it is denied that the Claimant has a claim whether as pleaded or at all.

4. No documents supporting the claims in the particulars have been offered which the defendant needs to establish what agreement it is that this action is based upon

5. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimant’s claim appears without merit

6.Further to above the defendant is unable to plead effectively or at all. The defendant is embarrassed.

So here's the plan:

1. file basic defence (above)
2. write to the court pointing out the failure of the claimant to comply with their CPR 31.14 obligations
3. write to the other side and tell them what you have done

Something along these lines to Cohens would do the trick:

Your Client: WHOEVER
Claim NumberXXXXXXXX
Dear Sirs,
I am writing in relation to the claim brought against him by your WHOEVER.

I have filed the acknowledgement of service stating an intention to defend the entire claim. At this point due to the fact that the pleadings are very limited and no copies of the agreement, default notice or notice of assignment have been served with the claim form we are unable to advise our client on any potential defence that they may be able to raise.

Accordingly, I asked that you supply us a copy of the contract on which this claim is based along with a copy of the default notice, which relates to this matter and the notice of assignment (if any) I asked for this to be provided by return and we would ask for you to agree to allow us an extension of 28 days from the point which we receive the requested documents to file a defence. To date you have ignored my lawful request and refused to disclose the required documentation.
I have informed the court of your attempts to frustrate these proceedings.

Should I fail to receive an acknowledgement of this letter within 10 days then we will be left no other option but to make an application to the court to have the case struck out for disclosing no grounds for bringing the claim or for an order, ordering you to disclose the documents to us pursuant to CPR 31.14 and furthermore an order for our costs in making the application.

Yours faithfully,
BLAH

We'll use Ame's second quote as the biases for the witness statement for the strike out

[Curlyben]

Re: Defending a CCJ and penalty charges

I know I should of asked this a while back, but it doesn't really matter.

Cohen is the solicitor filing the claim, but in who's name.
Is this in GE's name or their DCA, CL Financial ??

If it's in CL's name then assignment plays a part, but if it's still with GE and they are named then it doesn't.

[osman612]

Re: Defending a CCJ and penalty charges

Thanks, I'll get started on it. It's in CL Financial's name so the assignment still very much plays a part.

[Curlyben]

Re: Defending a CCJ and penalty charges

All good then.

Cohen's will attempt to say they have to wait on the OC, GE money, for the agreement.
Not that it really matters as it sounds like they have done the usual MO here anyway.

So I'd file the short one, inform the court and send them the latter giving 10 days for compliance or you'll file for a strike out.

[DuffNCustard]

Re: Defending a CCJ and penalty charges

Mr Duff partially defended a CCJ where a claim for a collection fee and contractual interest was also made.

The grounds for his defence were that the collection fee actually represented a penalty charge and that as the claimant had failed to produce the original signed agreement he was not able to audit the amount. Further the claimant was not able to prove that contractual interest was applicable as they had failed to produce the contract.

With regard to the amount owed he also disputed that, he did not dispute that he owed them money, common sense dictated that as he had been paying them regularly a reduced amount via Payplan it would be a nonsense to say otherwise.

A CCJ was awarded with the correct amount showing - no contractual interest and no collection fee. Pyaments at the Payplan rate were also ordered by the judge. Claimant picked up most of the costs too, Mr Duff mereley took on a couple of hundred towards the court costs - all delays and shenanigins having been cuased by the claimants solicitors being a total shambles.