Goldlady's OH v Cohens / CL Finance - Round 2

[Goldlady]

Having got them to withdraw claim on one card, they are now at it again with another card. A day after we received debatable copy of CCA they issued proceedings. These people are amazing - didn't even give us a chance to ring them with debit card number to pay the outstanding balance:lol:

 

Anyway, defence in preparation. I have the following in mind, which is similar to our last one just the numbers are bigger! Any suggestions/comments welcome.

 

The Defendant denies that he is liable to the Claimant as alleged in the Particulars of Claim or at all. It is averred that the Claimants have commenced these proceedings unlawfully and vexatiously, having failed to prove that a credit agreement exists between CL Finance and myself. On xx September 2007, in response to my request, the Claimants provided what they have stated is a copy of a credit agreement. The document furnished however, is a copy of an application form, which is not a credit agreement. The document provided does not accord in form and content with sections 60 and 61 of the Consumer Credit Act 1974, or the Consumer Credit (Agreements) Regulations 1983, which stipulates the fundamental requirements for credit agreements. Specifically, the application form does not contain the prescribed terms of the alleged credit agreement; and given that the Claimants are asserting that the document furnished in September 2007, is a copy of the purported agreement, the fact that said document does not detail any prescribed terms, renders the alleged agreement entirely legally unenforceable and these proceedings are completely unfounded. Additionally there is no section of the application form which permits the original lender to assign or share details of the defendant with persons other than credit reference agencies.

 

The request for the alleged credit agreement was made under section 78(1)running account credit, of the Consumer Credit Act 1974. CL Finance have issued a Court claim without having any proof that a credit agreement exists. I would therefore contend that the Claimant’s conduct amounts to unlawful harassment.

 

Further, the claim was issued without any warning the day after the defendant received the copy of the application form, which is in breach of the Pre-Action Protocols of the Civil Procedure Rules, and during the course of negotiations with the claimant to temporarily reduce the payment arrangement already in place for the preceding twelve months, after the intervention of the Citizens Advice Bureau. The claimant had agreed to accept reduced payments however despite the defendant making these payments using the claimant’s suggested method of paying through a website called http://www.icanpayu.co.uk these payments have never reached the account. The defendant sent the claimant a number of emails and faxed them asking for an alternative payment method however no reply to any of these messages was ever received.

 

Additionally the defendant has already disputed the payment protection insurance with the original lender - payments of this and other unlawful penalty charges amount to £746.31 which have incurred interest charges of £119.88 to date. The payment protection insurance would certainly not have been agreed to as the defendant is self employed and aware that such insurance is worthless. On examination of the application form it appears that a tick in the box agreeing to the PPI has been added after the application form was completed as it is in a heavier pen than the signatures of the defendant and the claimant’s representative. Whilst the defendant signed the box it is averred that this was unintentional and that the form was amended later to indicate the defendant’s agreement to PPI.

 

Is it an offence to doctor application forms? I know OH signed the box (silly person) but the tick has definitely been added later.

 

Thanks

 

Goldlady

[pmhcfc]

Lookey here

 

http://www.consumeractiongroup.co.uk/forum/cabot/115280-useful-information.html

[Goldlady]

Oh, interesting. Thanks. I have to address the CRA situation - have just resubscribed to Experian to see how the land now lies. Lies being the operative word. A year ago MBNA had four defaults on the same debt - each time it was sold on another DCA registered it. As they have not even found an application form I need to start restoring my credit rating;)

[car2403]

You might also find this useful:

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111211-defaults-background-removal-methods-post1086715.html#post1086715

[conar686]

*Subscribing* GL good luck

[Goldlady]

Defence submitted tonight - more or less as shown in my first post.

 

We shall wait and see....

[Goldlady]

It has been transferred to local court. Ah well - let battle commence.

 

I may be seeking advice as we will be using the invalid CCA defence as well as the mis-sold PPI. Will get the scanner cranked up.

[babybear39]

Subscribing...

 

Good luck and best wishes.

[car2403]

GL, if you (or rather, "they") really want to P the Judge off when you do get to Court, it might be worth sending them a CPR request;

 

1 December 2007

 

[ENTER ADDRESS DETAILS HERE]

 

Goldlady's OH –v– CL Finance

Claim No: 7******, in the ****** County Court

Defendant’s Reference: ******

 

Dear Sir/Madam,

 

 

 

CPR REQUEST FOR INFORMATION

 

 

I, the Claimant in the above case, acknowledge receipt of the Courts Notice of Transfer.

 

Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

1. A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

 

2. All records you hold on me relevant to this case, including but not limited to:

a. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor.

b. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account held with CL FINANCE.

c. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

d. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

e. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

f. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

g. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

h. A list of third party agencies to which you have disclosed my personal data and a summary of the nature of the information you have disclosed.

i. Copies of statements for the entire duration of the credit agreement.

 

3. Any other documents you seek to rely on in court.

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a complete claim.

 

Yours sincerely,

 

I'd suggest a Data Protection Act S.A.R - (Subject Access Request) to CL Finance (the CPR request goes to their Solicitors) just to cover all bases;

 

Dear Sir/Madam,

 

 

CL Finance : ********

s.7 DATA PROTECTION ACT 1998 – DATA SUBJECT ACCESS REQUEST

 

 

I request that CL Finance provides me with all details held regarding my accounts, including, but not exclusively as I require access to all information relating to me as a Data Subject under the Data Protection Act;

 

§ Details of all default charges for unpaid items and fees charged for managing the above account, which I have paid in the last six years

§ Copies of all original Consumer Credit Act agreements for each account held in my name

§ Details of all assignments, whether equitable, absolute, legal or otherwise, of the account and documentary evidence of such assignment

§ Details of all manual intervention that has taken place on accounts held in my name, with documentary evidence of such.

§ Details of logic involved in any automated decisions you made about me, or my accounts with you.

 

Please note that this is not an exclusive list, as I require access to all information held by CL Finance regarding me, as a Data Subject under the Data Protection Act.

 

I understand that CL Finance is obliged to provide this information under the Data Protection Act 1998. I have enclosed a cheque for £10 to cover the statutory fee that can be charged for this service.

 

I look forward to hearing from you within 40 days from the date of this letter and before [enter 40th day date here], in any event.

 

Yours faithfully

 

None of this is really necessary, as you obviously have your Defence all stitched up - it might help support your argument, though, and will definately show the Judge what a complete bunch of w***ers they are being!

[Goldlady]

Thanks Car - I need all the aces I can get!! I will probably need a suitcase on wheels by the time I have got all my paperwork sorted out:rolleyes:

[car2403]

The problem here may be that you get a dunce Judge, who sides with the Creditor - so assuming that you will win because the agreement isn't "right" is dangerous, IMO.

 

If you can get other info that helps you argue your way through, showing this Creditor to be an absolute numpty when it's come to dealing with your dispute, you might just turn that dunce around!

 

I'm not saying anything liablious against the Creditor, or that all Judge's are dunces, but you have to prepare for every eventuality or you may get stumped at the final hurdle.

 

This is open/closed to me, though - I still think you need to "build" your case further. It will only cost some stamps and a big fat £10 cheque - all of which you can claim back when you win, of course!

[Goldlady]

I know car - it is a gamble to say the least. Will post up the application form later. Thanks

[linz2011]

Hi GL just wishing you luck - I am in court on 12th December with these over two accounts which the court has combined - I feel physically sick about it but I will be putting a good case together with everyones help on here. Your defence sounds brill. Keep us posted. x

[Goldlady]

Thanks Linz, good luck to you too.

[Hopeful1]

Hi GL.

 

Just adding support and to you too Linz

[TUTTSI]

CL Finance took my hubby to court for payment of his Debenhams account. Hubby also received a judgement but had never received the default notice. The DJ picked this up and requested that CL Finance provide the court with a true copy of the default notice and proof that their client had sent one. They supplied a copy of a default which was not a true copy it was a made up something or other. They also could not provide the court with proof that the document had been sent and the DJ struck out their claim in it's entirety.

 

So, you should be able to get the court to get this struck out if they have not been able to provide you with proper documentation.

 

Good Luck, although I am sure that you will not need it.

 

Ds

[Goldlady]

Thanks for that Tuttsi. Unfortunately we do seem to have a default notice:mad: I am going to gather everything together and see where we stand.

[pt2537]

Hi Goldlady

 

have you assessed the Default Notice to see it complies with Consumer Credit (Enforcement, Default and Termination Notices)Regulations 1983 (SI 1983/1561)?

 

regards

paul

[TUTTSI]

Thanks for that Tuttsi. Unfortunately we do seem to have a default notice:mad: I am going to gather everything together and see where we stand.

 

But do CL Finance know that you have the default notice, have you admitted this to them. I would dispute it and ask the courts for documentary evidence that it exsist and that it was served correctly.

 

This is just my opinion and anything that you can throw a spanner into the works the better it is for your o/h.

 

DS

[Goldlady]

Ahh well I did consider that one Tuttsi and will give it some thought;)... And Paul I will certainly do what you suggest - there are a lot of words on it but after a bottle and a half of red wine I am not sure if they are in English so I will look at again in the morning:D

 

 

Thank you all for your help.

 

OH has scanned the apocalypsation form (typo but I liked it) so I might manage to post it soon

[pt2537]

well its another string to your bow if it isnt compliant, its surprising how many dont comply

 

the consequences of non compliance is clear in woodchester lease management & Swain and co

 

if you need any help just shout.

 

have you filed you allocation questionnaires yet?

 

also are you ok with witness statements etc

 

Regards

paul

[Goldlady]

Paul, have not done AQ yet - just got it today. Yes i will need loads of help but also concerned that we will be dealing with local judge who is unlikely to have encountered a defendant who even knows the CCA exists, let alone quote various sections and relevant caselaw. Went to same court re residence claim for OH's kids and because our case was listed on the other side of the sheet the judge had buggered off to the golf course cos he hadn't turned the page over:eek:

 

I am going to wine induced sleep now - back tomorrow - thanks so much all of you.

[pt2537]

Oh dear,

 

well, if you need anything then let us know

 

i did a draft order for directions for another member which im sure could be modified to your case, so if you want i can post it on here

 

as i said anything you need just shout

 

regards

paul

[car2403]

I'd like to see those Draft Directions, Paul - will be handy in my many, many claims ongoing at the minute...

[pt2537]

okey dokey,

 

In the ************* County Court

Claim number **********

 

 

 

 

Between

************* - Claimant

and

 

xxxxxxxxxx - Defendant

 

 

 

Draft Order for Directions

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

• Copies of the Credit Agreement and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations
  
• Default Notice compliant with s87 (1) Consumer Credit Act 1974 andConsumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended,
  
• Document, contract or deed of assignment
  
• Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.
  
• Copies of any statement or other document relied upon

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.

 

 

 

 

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

N150 Allocation Questionnaire

 

Section H - other information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

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. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the small claims track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that this document must be disclosed before this case can progress any further

 

now please bear in mind these were written for another member and were drafted at the eleventh hours so to speak,they were also drawn up for an N150 AQ but should easily be amended for a N149

 

there is a few bits i would probably add to the section H other info but i have not had the time to do so as it stands

 

regards

paul