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Hey everyone,
Have received court claim from CL finance/Howard Cohens.
Had my "NOA" 2 days after the court papers, I have acknowledged online.
I have come up with the following defence;
1. I XXXXXXXXX of XXXXXXXXXX am the Defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.
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. I am embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure Rules, in particular practice direction 16, in particular paragraph 7.3 as the Claimant has failed to supply a copy of the written document which forms the basis of this claim.
4. The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.
5. The Claimant has failed to also attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer credit act 1974.
6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the credit agreement and the Default Notice. Therefore these documents must be produced before the court and must comply with the relevant sections of the Consumer Credit Act and the regulations made under the Act, I will address these requirements later in this defence.
7. Furthermore the Claimant has failed to attach a copy of the Deed of Assignment or the Notice of Assignment which is required to comply with Section 196 of the Law of Property Act 1925 and proof of posting of both documents. I place the Claimant to strict proof that the Notice of Assignment was posted prior to the start of this action. Should the Claimant not be able to produce this proof, I contend that the Claimant would not have a legal right to this action and the case should be struck out without further notice.
8. Consequently due to the Claimants failure to supply the documents required under the Civil Procedure Rules and the fact that the Claimant has failed to sufficiently particularise the claim I deny all allegations in Particulars of Claim that I am indebted to the Claimant in any way and put the Claimant to strict proof thereof.
9. I will now look at the important issues relating to this case which must be brought to the courts attention.
Pre-action protocols
10. The Claimant CL Finance Limited has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.
The Request for Disclosure
11. Further to the case, on 17th September2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the Particulars of Claim and any Default or Termination Notices, 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 any Default Notices or Termination Notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. This request was delivered by Royal Mail’s recorded delivery service on 18th September 2009.
12. The Claimant responded stating that due to the claim not being assigned to the “fast track” that they do not have to provide such information and that the particulars of claim are sufficient to prepare a defence. The Defendant made the request in addition to other requests previous to this action in attempts to gain information regarding the account. Copies of the request made under the Civil Procedure Rules are attached, including the Royal Mail delivery confirmation.
13. 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
14. The Claimant is therefore put to strict proof that a document which is legible and compliant with the Consumer Credit Act and subsequent regulations made under the Act exists.
15. The Defendant made a request on 21st August 2009 under the Data Protection Act for Subject Access, it included the statutory fee of £10 and was signed for on the 25th September 2009 at Santander Cards (previous owner). A chase up letter was sent to Santander on 18th September 2009 and has been delivered. The request detailed access to all information relating to the said account including histories and the original true signed credit agreement. To date no information has been forthcoming and a complaint has been registered with the Information Commissioners Office.
The Credit Agreement
16. The agreement referred to in the Particulars of Claim relates to a credit agreement regulated by the Consumer Credit Act 1974. Under the said Act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.
17. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).
18. 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
19. If the agreement does not contain these terms 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
20. Notwithstanding point 19, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.
21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) 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).
22. 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
23. With regards to the Authority cited in point 22, 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."
24. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers.
The Default Notice
25. Notwithstanding the matters pleaded above, the Claimant must under section 87(1) Consumer Credit Act 1974 serve a Default Notice before they can demand payment under a regulated credit agreement.
26. It is neither admitted or 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.
27. Notwithstanding point 25, 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).
28. 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.
The Assignment of the debt
29. I require the Claimant produce the Notice of Assignment and the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the Claimant disclose proof of posting per s196 LoP Act 1925.
30. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the Notice of Assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the Claimant to strict proof that the assignment has been carried out correctly.
31. If no Deed of Assignment can be produced it is requested that the court strike out the Claimants’ case as the Claimant will not have a right to bring this action against me in their name.
Conclusion
32. I respectfully ask the court to use its case management powers to order the Claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.
33. I further ask the court consider striking out the Claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.
34. 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.
35. Alternatively, I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in point 12 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.
36. 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 under the Consumer Credit Act 1974 which is the relevant act in this case.
Statement of Truth
I have now complained to the ICO about the non-compliance of the SAR today and have sent in the CPR 31.14 request to Cohens but they won't comply.
I don't know if I should send in a CCA request to CL Finance??
Does anyone have any suggestions?
I've pulled the defence in and got some knowledge from other posts but don't have much knowledge in this area so am abit nervous.
Have received court claim from CL finance/Howard Cohens.
Had my "NOA" 2 days after the court papers, I have acknowledged online.
I have come up with the following defence;
In the Northampton County Court
Claim Number: XXXXX
Claim Number: XXXXX
CL Finance - Claimant
and
xxxxxxxxxxxx- Defendant
Defence
and
xxxxxxxxxxxx- Defendant
Defence
1. I XXXXXXXXX of XXXXXXXXXX am the Defendant in this action and make the following statement as my defence to the claim made by CL Finance Limited.
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. I am embarrassed at pleading to the particulars as they fail to comply with the Civil Procedure Rules, in particular practice direction 16, in particular paragraph 7.3 as the Claimant has failed to supply a copy of the written document which forms the basis of this claim.
4. The Claimant has failed to set out how the figures which they claim are calculated nor do they set out the nature and scope of any charges contained within the figure claimed.
5. The Claimant has failed to also attach a copy of the Default Notice which they claim has been served under s87 (1) Consumer credit act 1974.
6. The courts powers of enforcement in cases relating to Regulated Credit Agreements under the Consumer Credit Act 1974 are subject to certain qualifications being met with regards to the form and content of the documentation, in particular the credit agreement and the Default Notice. Therefore these documents must be produced before the court and must comply with the relevant sections of the Consumer Credit Act and the regulations made under the Act, I will address these requirements later in this defence.
7. Furthermore the Claimant has failed to attach a copy of the Deed of Assignment or the Notice of Assignment which is required to comply with Section 196 of the Law of Property Act 1925 and proof of posting of both documents. I place the Claimant to strict proof that the Notice of Assignment was posted prior to the start of this action. Should the Claimant not be able to produce this proof, I contend that the Claimant would not have a legal right to this action and the case should be struck out without further notice.
8. Consequently due to the Claimants failure to supply the documents required under the Civil Procedure Rules and the fact that the Claimant has failed to sufficiently particularise the claim I deny all allegations in Particulars of Claim that I am indebted to the Claimant in any way and put the Claimant to strict proof thereof.
9. I will now look at the important issues relating to this case which must be brought to the courts attention.
Pre-action protocols
10. The Claimant CL Finance Limited has failed to follow the pre-action protocols insofar as they did not send any letter before action as required by paragraph 4.3 of Practice Direction-Protocols, nor did they attempt to enter into any negotiations to try and resolve the issues. Instead they launched into immediate litigation and it would appear that they did this before the assignment was carried out correctly.
The Request for Disclosure
11. Further to the case, on 17th September2009 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the Particulars of Claim and any Default or Termination Notices, 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 any Default Notices or Termination Notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. This request was delivered by Royal Mail’s recorded delivery service on 18th September 2009.
12. The Claimant responded stating that due to the claim not being assigned to the “fast track” that they do not have to provide such information and that the particulars of claim are sufficient to prepare a defence. The Defendant made the request in addition to other requests previous to this action in attempts to gain information regarding the account. Copies of the request made under the Civil Procedure Rules are attached, including the Royal Mail delivery confirmation.
13. 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
14. The Claimant is therefore put to strict proof that a document which is legible and compliant with the Consumer Credit Act and subsequent regulations made under the Act exists.
15. The Defendant made a request on 21st August 2009 under the Data Protection Act for Subject Access, it included the statutory fee of £10 and was signed for on the 25th September 2009 at Santander Cards (previous owner). A chase up letter was sent to Santander on 18th September 2009 and has been delivered. The request detailed access to all information relating to the said account including histories and the original true signed credit agreement. To date no information has been forthcoming and a complaint has been registered with the Information Commissioners Office.
The Credit Agreement
16. The agreement referred to in the Particulars of Claim relates to a credit agreement regulated by the Consumer Credit Act 1974. Under the said Act there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.
17. Firstly, the agreement must contain certain terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).
18. 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
19. If the agreement does not contain these terms 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
20. Notwithstanding point 19, The agreement must be signed in the prescribed manner to comply with s61 (1) CCA 1974, if the agreement is not signed by debtor or creditor it is also improperly executed and again only enforceable by court order.
21. The courts powers of enforcement where agreements are improperly executed by way of section 65 CCA 1974 are themselves subject to certain qualifying factors. Under section 127 (3) Consumer Credit Act 1974 the requirements are laid out clearly what is required for the court to be able to enforce the agreement where section 65(1) has not been complied with127(3) 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).
22. 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
23. With regards to the Authority cited in point 22, 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."
24. Therefore it is submitted that without production of the credit agreement no enforcement order should be made as this would be unjust and against the rulings of the House of Lords and also against the Consumer Credit Act 1974 which was enacted clearly to offer a certain level of protection to consumers.
The Default Notice
25. Notwithstanding the matters pleaded above, the Claimant must under section 87(1) Consumer Credit Act 1974 serve a Default Notice before they can demand payment under a regulated credit agreement.
26. It is neither admitted or 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.
27. Notwithstanding point 25, 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).
28. 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.
The Assignment of the debt
29. I require the Claimant produce the Notice of Assignment and the Deed of Assignment to show that it is indeed valid and compliant with the Law of Property Act 1925 and further more I require the Claimant disclose proof of posting per s196 LoP Act 1925.
30. I refer to W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169 where it was held that the Notice of Assignment was bad because the date of the assignment was wrongly stated therein and, therefore, the legal right to the debt under the hire-purchase agreement had not been assigned effectually at law within s 136(1) a of the Law of Property Act, 1925 and put the Claimant to strict proof that the assignment has been carried out correctly.
31. If no Deed of Assignment can be produced it is requested that the court strike out the Claimants’ case as the Claimant will not have a right to bring this action against me in their name.
Conclusion
32. I respectfully ask the court to use its case management powers to order the Claimant to disclose the information requested within this defence document as it is vital to allow me the opportunity to defend this action properly and would be unjust and totally unfair to allow this action to continue without allowing me the opportunity to view the documents which form the basis of this claim.
33. I further ask the court consider striking out the Claimants’ case as it fails to comply with part 16 and practice direction 16 insofar that no documents have been supplied and fails to show any consideration to the overriding objective to allow the court to deal with this case justly.
34. 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.
35. Alternatively, I respectfully request a stay in proceedings until such time as the Claimant complies with the requests outlined in point 12 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.
36. 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 under the Consumer Credit Act 1974 which is the relevant act in this case.
Statement of Truth
I don't know if I should send in a CCA request to CL Finance??
Does anyone have any suggestions?
I've pulled the defence in and got some knowledge from other posts but don't have much knowledge in this area so am abit nervous.
Comment