Andy Manx -v- CL Finance/Howard Cohen & Co (GUEST STARRING: Aktiv Kapital/Appleton Massey)**WON**

[andymanx]

Several months ago I was checking my Credit File and I found a CCJ on there that had been awarded against me and I found out from the Northampton Court (MCOL) that the claimant was CL Finance and it was something to do with an alleged debt with GE Money.

 

I successfully made an application to the court to get the Judgment Set Aside, on the basis that it had been awarded against me at an old address, which meant I wasn't able to defend it.

 

The claim was then transferred to my local court.

 

I sent a CPR Request to CL Finance and their Solicitors: Howard Cohen & Co but they didn't bother to even reply to it.

 

I filed my Defence on 31 July, which was on the basis that CL Finance's claim was vague and insufficient and that a copy of the Credit Agreement, Default Notice and Notice of Assignment hadn't been included.

 

I have just received a Allocation Questionnaire (N149 Small Claims Track version) from the court, which needs to be returned to them by 24 August and I thought it was going to be plain sailing from here but how wrong was I!

 

Separately, I had been disputing a debt with Aktiv Kapital (which I thought was for a different debt) and I had received a copy of the Credit Agreement but it was unenforceable as it was illegible and didn't have page 2 with it, which included some of the terms and conditions.

 

To my Horror, a few days after I had filed my Defence to the court for the CL Finance debt, I received a letter from Appleton Massey (the Solicitors for Aktiv Kapital) which mentioned the fact that the debt was being dealt with by court and it then suddenly dawned on me that the CL Finance and Aktiv Kapital debt was the same one!!!

 

I am now in a real pickle because my Defence to the court needs to be somehow amended or I need to add some additional information to it about the fact that since my Defence has been submitted that I have been made aware that the debt is the same one that I have been disputing with Aktiv Kapital and I do in fact have a copy of the Credit Agreement but it is not valid as it as it was illegible and didn't have page 2 with it, which included some of the terms and conditions.

 

From reading a few of the different threads #509, I understand that in Section G of the Allocation Questionnaire, further information relating to the case and a Draft Order, for the Court to consider can be added.

 

So my question now is: after it has transpired about Aktiv Kapital and the copy of the Credit Agreement, do you think the best route to take now is to explain about the situation with Aktiv Kapital and possibly add a Amended Defence instead of a Draft Order (or ask in the Draft Order for an Amended Defence to be submitted) via Section G of the Allocation Questionnaire? Or is there some other way I can explain about the situation and get my Defence amended, without incurring a cost?

 

 

MY CPR REQUEST:

 

Date: 9 July 2009

Ref:

By: Fax to: 0870 7513123, 0870 7513090 & Post via: Recorded Delivery

 

CL Finance Ltd

Kingston House

Centre 27 Business Park

Woodhead Road

Birstall, Batley

WF17 9TD

 

Howard Cohen & Co Solicitors

PO Box 110

Cleckheaton

West Yorkshire

BD19 4XT

 

Dear Sir/Madam

CL FINANCE - V - MR Andy Manx – CASE NO:

CIVIL PROCEDURE RULES 31.14 REQUEST

 

I have received an Order (dated 24 June 2009) from Secret County Court to set aside the Judgement which was previously granted to you, as I never received a copy of the Claim Form as you sent it to my old address and I therefore couldn’t defend the Claim.

 

I have today also received a copy of the Claim Form, which you issued on 31 December 2007.

 

I would advise you my intention to contest your entire claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 The Agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 paragraph 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Furthermore, that any general conditions incorporated in the contract should also be attached.

 

2 The Assignment

 

3 The Default Notice.

Although your claim is for an amount 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.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me, via post only, within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

 

Furthermore, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours Faithfully

 

Andy Manx

 

 

MY COURT DEFENCE:

 

 

 

In the secret County Court

Claim Number:

 

Between:

CL Finance - Claimant

And:

Mr Andy Manx - Defendant

Defence

1. I, Mr Andy Manx of somewhere, am the Defendant and a Litigant in Person in this action and make the following statement as my defence to the claim made by CL Finance.

 

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

 

3. The Claimants' Particulars of Claim 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 the Civil Procedure Rules, 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 contract referred to, the method the Claimant calculated any outstanding sums due, the details of any Default Notices issued or any other matters necessary to substantiate the Claimant's claim.

 

b) A copy of the purported Credit 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.

d) 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.

 

4. Consequently, I deny all allegations on the Particulars of Claim and put the Claimant to strict proof thereof.

 

The Request for Disclosure

5. On 9 July 2009, the Defendant submitted a request under the Civil Procedure Rules, part 31.14 for a copy of the Credit Agreement that the Claimant is relying upon in pursuit of this claim, giving the Claimant 7 days in which to respond (the request is annexed to this defence, marked Exhibit 1 – pages 1 & 2).

 

The request was sent via fax and letter to both the Claimant: CL Finance and their Solicitors: Howard Cohen & Co, which 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. Also any other documents the Claimant seeks to rely on, including any Default Notice, and a copy of the Notice of Assignment required to give the Claimant a legitimate right of action.

 

6. To Date the Claimant has failed to comply with my request under the Civil Procedure Rules and I have not received any such documentation, as requested. This is despite me receiving confirmation that both the Claimant: CL Finance and their Solicitors: Howard Cohen & Co have received my Civil Procedure Rules request via fax and Recorded Delivery Letter, details of which are as follows:

 

a) CL Finance received my request, via fax on 9 July 2009 @ 3.38pm (the fax transmission receipt is annexed to this defence, marked Exhibit 2);

 

b) CL Finance received my request, via Recorded Delivery letter on 10 July 2009 (the Recorded Delivery signed for receipt is annexed to this defence, marked Exhibit 3);

 

c) Howard Cohen & Co Solicitors received my request, via fax on July 2009 @ 17.38pm (the fax transmission receipt is annexed to this defence, marked Exhibit 4);

 

d) Howard Cohen & Co Solicitors received my request, via Recorded Delivery letter on 10 July 2009 (the Recorded Delivery signed for receipt is annexed to this defence, marked Exhibit 5);

 

7. As a result of the non-compliance from the Claimant, it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am a Litigant in Person.

 

The importance of a copy of the Credit Agreement and its production before the court

 

8. Firstly, I make reference to an excerpt of case law from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch),

In Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97, the House of Lords explained that the 1974 Act was, like the Moneylenders Act 1927 before it, designed to tackle a significant social problem. The activities of some moneylenders have given the money lending business a bad reputation. Something had to be done to protect the borrower, who frequently, indeed normally, would be in a weak bargaining position. Protection of borrowers is the social policy behind the legislation. Part of that policy is to be achieved by setting stringent rules, which have to be complied with by the ender if his money lending agreement is to be enforceable. The strictness of the discipline imposed on lenders is illustrated by the following passage in the speech of Lord Nicholls:

 

"72. Undoubtedly, as illustrated by the facts of the present case, section 127(3) may be drastic, even harsh, in its adverse consequences for a lender. He loses all his right under the agreement, including his rights to any security which has been lodged. Conversely, the borrower acquires what can only be described as a windfall. He keeps the money and recovers his security. These consequences apply just as much where the lender was acting in good faith throughout and the error was due to a mistaken reading of the complex statutory requirements as in the case of deliberate non-compliance. These consequences also apply where, as in the present case, the borrower suffered no prejudice as a result of the non-compliance as they do where the borrower was misled. Parliament was painting here with a broad brush.

 

73. The unattractive feature of this approach is that it will sometimes involve punishing the blameless pour encourager les autres. On its face, considered in the context of one particular case, a sanction having this effect is difficult to justify. The Moneylenders Act 1927 adopted a similarly severe approach. . . .

 

74. Despite [criticism in the Crowther report] I have no difficulty in accepting that in suitable instances it is open to Parliament, when Parliament considers the public interest so requires, deciding that failure to comply with certain formalities is an essential prerequisite to enforcement of certain types of agreements. This course is open to Parliament even though this will sometimes yield a seemingly unreasonable result in a particular case. Considered overall, this course may well be a proportionate response in practice to a perceived social problem. Parliament may consider the response should be a uniform solution across the board. A tailor-made response, fitting the facts of each case as decided in an application to the court, may not be appropriate. This may be considered an insufficient incentive and insufficient deterrent. And it may fail to protect consumers adequately. . . ."

 

9. The message clearly from the case of Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch), is that the Consumer Credit Act is clearly enacted to protect consumers such as myself and therefore the Claimants failures to supply the information and their behaviour in this matter should be noted accordingly giving consideration to the case law and the facts as set out within this defence.

The Need for a Default Notice

 

10. 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.

11. 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.

 

12. Notwithstanding point 31, 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).

 

13. 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.

 

14. In view of matters pleaded, I respectfully request the court give consideration to striking out the Claimants’ case pursuant to part 3.4:

(2) The court may strike out a statement of case if it appears to the court:

 

(a) That the statement of case discloses no reasonable grounds for bringing or defending;

 

(b) That the statement of case is an abuse of the court's process or is otherwise likely to obstruct; the just disposal of the proceedings; or

 

© That there has been a failure to comply with a rule, practice direction or court order.

15. If the court considers it in appropriate to use its case management powers, it is requested that the court order the Claimant to produce a compliant Credit Agreement, which complies with the Consumer Credit Act 1974 and the Consumer Credit Agreements Regulations 1983. Without production of the requested documents the case can not be dealt with justly and fairly, and will severely prejudice my rights to a fair trial as laid out under Article 6 of the Convention rights contained within the Human Rights Act 1998.

 

16. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the Office of Fair Trading Debt Collection Guidelines, I believe the Claimant's conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Claimant's behaviour is entirely vexatious and wholly unreasonable.

 

17. In addition, should it be suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, section 11 of the Consumer Credit Act 2006 prevents section 15 repealing section 127 (3) of the 1974 Act for Credit Agreements made before section 15 came into effect and since the Credit Agreement is alleged to have commenced on 17 December 2003, the Consumer Credit Act 1974 is the relevant act in this case.

 

18. I respectfully ask the permission of the court to amend this defence when or if the Claimant provides full disclosure of the requested documents.

 

Statement of Truth

 

I, Mr Andy Manx, believe the above statement to be true and factual.

 

Signed:

 

Dated: 30 July 2009

 

 

LETTER RECEIVED FROM APPLETON MASSEY.

 

 

 

MY REPLY TO APPLETON MASSEY.

 

Date: 9 August 2009

Your Ref:

Client Ref:

By: Email to:

Ms Anu Massey

Appleton Massey Solicitors

Wells House

15-17 Elmfield Road

Bromley

Kent

BR1 1LT

 

Dear Ms Massey

 

Your Client: Aktiv Kapital

 

With regard to your letter dated 4 August 2009, in reply to my recent correspondence with you and your Client: Aktiv Kapital, I would comment as follows.

 

▪ You state that I haven’t provided specific details of my dispute. This is untrue. I have already provided the details to your client and also yourself, on a total of SEVEN TIMES, the details of which are as follows:

 

1) Letters to your Client on: 21 March & 9 April 2009

2) Emails to your Client on: 18 & 21 July 2009

 

3) Emails to yourself on: 27 & 28 July 2009

 

4) Complaint to the Financial Ombudsman Service on: 25 April 2009 (who passed the details onto your Client).

 

As you have clearly ignored the details of my dispute, which I believe is to further frustrate and prolong this issue, I will advise you one final time of my dispute:

 

The copy of the Credit Agreement that your Client has provided me with on 29 May 2009 is INVALID AND UNENFORCEABLE, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing. Therefore, your Client has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that your Client has provided (the front page) is illegible, despite being blown up by myself on a photocopier. Therefore, your Client has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

I therefore suggest that inlight of the two afore-mentioned reasons of unenforceability of the invalidated Credit Agreement that your client does the following:

 

1) Cancels the debt

 

2) Removes the adverse data that has been placed on my Credit File.

 

Furthermore, I demand under Section 10 of the Data Protection Act 1980, that your Client stops processing my data with IMMIDIATE effect. Further breach and ignorance of this request will result in your Client again being reported to the Information Commissioners Office to take action against you. I will also consider making an Application to the Court to force compliance, together with costs and compensation.

 

 

▪ On 30 March 2009, your client sent me a letter which advised that they were contacting CL Finance to request a copy of the Credit Agreement relating to the alleged account and that they were not bound by the timescales set out under Sections 77 to 79 of the Consumer Credit Act 1974.

 

I replied to their letter on 9 April 2009 and asked them to point out to me which legislation states that they can pick and choose which parts of the Consumer Credit Act 1974, they do not have to abide by. They failed to reply to my request and you have failed to address this in your letter.

 

 

▪ You state that the debt with CL Finance (previously GE Capital) that is currently subject to legal proceedings, under Claim No , is the same one that your Client is also pursuing.

 

I was not aware of this previously as the reference numbers didn’t match and I thought that the debt with Aktiv Kapital was pertaining to something else. Now that you have brought this to my attention, I will be submitting the copy of the Credit Agreement from your Client to the Court and will be asking for an Order to Strike Out the claim, due to the two reasons of invalidity of the Credit Agreement.

 

Yours Faithfully

Mr Andy Manx

 

COPY OF THE CREDIT AGREEMENT RECEIVED FROM AKTIV KAPITAL.

 

* Note: The scanner has cocked this up a bit and the blurred part on the middle, right hand section (headed Headed 3. And Card Protection Plan?) isnt on the copy of the Credit Agreement.

Edited August 14, 2009 by andymanx

[make them aktiv runners]

Original CCJ set aside 24.6.09.

CL Finance have resubmitted their original claim from 31.12.97

You have accepted receiving NOA from Aktiv Kapital on 6.1.09

 

Aktiv's solicitors* have confirmed Aktiv are the legal owner, plus adding they are fully entitled to update credit file. I fail to see how CL Finance can issue a claim for something they no longer own. They could only issue a claim IMHO if Aktiv Kapital had reassigned the debt back to them, contents of Masseys letter suggest Aktiv are still the owner.

 

*the Wells Court address on Solicitors letter is AK's registered office. The solicitor is probably real, however, more likely it was written by an ordinary AK employee.

 

See what others say. I would be tempted to use Masseys letter to show CL Finance are not the legal owner, cannot bring an action for something they have already sold, up to AK to decide if they want to bring action. Credit agreement is something for AK to dispute if they go court route.

[andymanx]

Thanks for your input.

 

CL Finance issued the claim on 31 December 2007 and it was sold to Aktiv Krapital on 11 August 2008.

 

This is something which I have just cobbled together (after looking at some threads) that I could maybe include under Section G - other information of the Allocation Questionnaire and also a Draft Order for Directions.

 

Let me know what you think.

 

ALLOCATION QUESTIONNAIRE – SECTION G.

 

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 from the Claimant, 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.

 

Since submitting my defence, I was informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the account to Aktiv Kapital on 11 August 2008 (Appleton Massey’s letter is annexed to this Allocation Questionnaire, marked AKW Exhibit 1 and my reply is annexed to this Allocation Questionnaire, marked AKW Exhibit 2). The letter also made reference to these Court Proceedings and after further investigation, it transpired that the account that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same account. Prior to this new information, I was under the impression that the account I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money.

 

Furthermore, Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 (annexed to this Allocation Questionnaire, marked AKW Exhibit 3) but it is however invalid and unenforceable, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the Agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing. Therefore, this has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that was provided (the front page) is illegible, despite being enlarged by myself on a photocopier. Therefore, as the Credit Agreement is illegible, this has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

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:

 

9. 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.

 

 

It 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 and legible 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 these documents must be disclosed before this case can progress any further.

 

 

DRAFT ORDER FOR DIRECTIONS.

 

1. The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified, legible and true copy of each of the following documents mentioned in the Particulars of Claim:

 

(a) the executed regulated Consumer Credit Agreement made between the GE Money and the Defendant (under reference xxxxxxxxxxxxx), together with any terms and conditions that applied to it, both the Agreement and Terms and Conditions compliant with the Credit Act 1974 and all subsequent regulations; the original document must be brought to the hearing.

 

(b) Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, together with proof of service

 

© The Notices of Assignment, with proofs of service of the same, compliant with s196 of the Law of Property Act 1925.

 

(d) The Deed of Assignment, together with proof of service, the original document must be brought to the hearing

 

(e) A full and complete statement of account, including all payments made and charges applied covering the period beginning with the day of the making of the Agreement and ending on the date of the commencement of this case.

 

(f) Any other documents on which the claimant will rely, together with proofs of service.

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order, the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order, this case shall be allocated to the Small Claims Track

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

 

I am proposing to send the following letter to CL Finance and their Cohen Cronies, to see if I can nudge them in the right direction of settling up and not taking this to a hearing.

 

Let me know what you think. I am really cooking on gas tonight lol.

 

Date: ? 2009

Ref:

By: Fax to: 0870 7513123, 0870 7513090

 

CL Finance Ltd

Kingston House

Centre 27 Business Park

Woodhead Road

Birstall, Batley

WF17 9TD

 

Howard Cohen & Co Solicitors

PO Box 110

Cleckheaton

West Yorkshire

BD19 4XT

 

Dear Sir/Madam

 

CL FINANCE - V - Mr Andy Manx – CASE NO:

YOUR FAILURE TO COMPLY WITH MY CIVIL PROCEDURE RULES 31.14 REQUEST

 

You have failed to reply to or comply with my lawful request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 The Agreement

 

2 The Assignment

 

3 The Default Notice.

 

I believe that your non-reply and non-compliance is due to the fact that you are trying to frustrate the court proceedings, which as I am sure you are aware is a Breach of Court Process and the court will not look favourably at this unlawful behaviour.

 

Since submitting my defence to the court, I have been informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the debt to Aktiv Kapital on 11 August 2008.

 

The letter also made reference to these Court Proceedings and after further investigation, it transpired that the debt that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same debt. Prior to this new information, I was under the impression that the debt I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money.

 

Furthermore, Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 but it is however INVALID AND UNENFORCEABLE, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing. Therefore, your Client has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that your Client has provided (the front page) is illegible, despite being blown up by myself on a photocopier. Therefore, your Client has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

I therefore propose that inlight of the two afore-mentioned reasons of unenforceability of the invalidated Credit Agreement and in order to stop the further wasting of your, mine and the courts time in this matter, that CL Finance does the following:

 

1) Cancels the debt

 

2) Removes the adverse data that has been placed on my Credit File

 

3) Refunds my summary costs, in defending this claim.

 

 

If you are in agreement of my afore-mentioned proposals, you will be required to complete and file the attached N279 – Notice of Discontinuance with the court to notify them of your decision to discontinue the proceedings.

 

If you are not in agreement of my afore-mentioned proposals, you will be required to advise me in writing of the reasons of why you don’t agree, which will be forwaded to the court. You will also be required to comply with my original CPR 31.14 request and ensure that the documents I have requested are copied to and received by me, via post only, within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

 

Furthermore, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

I hope that you will agree with my proposals and look forward to hearing from you.

 

Yours Faithfully

 

Mr Andy Manx

 

Bump

 

And again.

[citizenB]

I am proposing to send the following letter to CL Finance and their Cohen Cronies, to see if I can nudge them in the right direction of settling up and not taking this to a hearing.

 

Let me know what you think. I am really cooking on gas tonight lol.

 

Date: ? 2009

Ref:

By: Fax to: 0870 7513123, 0870 7513090

 

CL Finance Ltd

Kingston House

Centre 27 Business Park

Woodhead Road

Birstall, Batley

WF17 9TD

 

Howard Cohen & Co Solicitors

PO Box 110

Cleckheaton

West Yorkshire

BD19 4XT

 

Dear Sir/Madam

 

CL FINANCE - V - Mr Andy Manx – CASE NO:

YOUR FAILURE TO COMPLY WITH MY CIVIL PROCEDURE RULES 31.14 REQUEST

 

You have failed to reply to or comply with my lawful request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 The Agreement

 

2 The Assignment

 

3 The Default Notice.

 

I believe that your non-reply and non-compliance is due to the fact that you are trying to frustrate the court proceedings, which as I am sure you are aware is a Breach of Court Process and the court will not look favourably at this unlawful behaviour.

 

Since submitting my defence to the court, I have been informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the debt to Aktiv Kapital on 11 August 2008.

 

The letter also made reference to these Court Proceedings and after further investigation, it transpired that the debt that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same debt. Prior to this new information, I was under the impression that the debt I was corresponding about with Aktiv Kapital and their Solicitors was for a different debt, also with GE Money. Where you have put debt.. I would alter to "account"

 

Furthermore, Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 but it is however INVALID AND UNENFORCEABLE, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing. Therefore, your Client has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that your Client has provided (the front page) is illegible, despite being blown up by myself on a photocopier. Therefore, your Client has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

 

I therefore propose that inlight of the two afore-mentioned reasons of unenforceability of the invalidated Credit Agreement and in order to stop the further wasting of your, mine and the courts time in this matter, that CL Finance does the following:

 

1) Cancels the debt

 

2) Removes the adverse data that has been placed on my Credit File

 

3) Refunds my summary costs, in defending this claim.

 

 

If you are in agreement of my afore-mentioned proposals, you will be required to complete and file the attached N279 – Notice of Discontinuance with the court to notify them of your decision to discontinue the proceedings.

 

If you are not in agreement of my afore-mentioned proposals, you will be required to advise me in writing of the reasons of why you don’t agree, which will be forwaded to the court. You will also be required to comply with my original CPR 31.14 request and ensure that the documents I have requested are copied to and received by me, via post only, within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

 

Furthermore, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

I hope that you will agree with my proposals and look forward to hearing from you.

 

Yours Faithfully

 

Mr Andy Manx

 

Have made a suggestion in red.

 

Other than that, looks ok to me. I think Aktiv has already suggested you explore the possibility of the claimant who has brought proceedings not actually having the right to do so !.

[andymanx]

Thanks CB, I have amended it. So do you think everything I have put in my AQ is okay too? Do I need to add any legal wins re: agreements that have been illegible and also terms and conditions that are missing?

 

Sorry, do you mean Aktiv Kapital dont have the right?

[citizenB]

make them aktiv runners said:

Original CCJ set aside 24.6.09.

CL Finance have resubmitted their original claim from 31.12.97

You have accepted receiving NOA from Aktiv Kapital on 6.1.09

 

Aktiv's solicitors* have confirmed Aktiv are the legal owner, plus adding they are fully entitled to update credit file. I fail to see how CL Finance can issue a claim for something they no longer own. They could only issue a claim IMHO if Aktiv Kapital had reassigned the debt back to them, contents of Masseys letter suggest Aktiv are still the owner.

 

*the Wells Court address on Solicitors letter is AK's registered office. The solicitor is probably real, however, more likely it was written by an ordinary AK employee.

 

See what others say. I would be tempted to use Masseys letter to show CL Finance are not the legal owner, cannot bring an action for something they have already sold, up to AK to decide if they want to bring action. Credit agreement is something for AK to dispute if they go court route.

 

 

^^^^^^^^^^^^^^

 

 

andymanx said:

Sorry, do you mean Aktiv Kapital dont have the right?

 

 

Aktive runner (cagger) has suggested in post above that CL finance may not be the legal owner and might possibly be prevented in law from bringing this action against you.

 

Sorry, missed the direction /information stuff will have a peek.

 

andymanx said:

This is something which I have just cobbled together (after looking at some threads) that I could maybe include under Section G - other information of the Allocation Questionnaire and also a Draft Order for Directions.

 

Let me know what you think.

 

ALLOCATION QUESTIONNAIRE – SECTION G.

 

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 from the Claimant, 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.

 

Since submitting my defence, I was informed by a third party: Appleton Massey (who are acting on behalf of Aktiv Kapital) in a letter to me dated 4 August that CL Finance sold the debt to Aktiv Kapital on 11 August 2008 (Appleton Massey’s letter is annexed to this Allocation Questionnaire, marked AKW Exhibit 1 and my reply is annexed to this Allocation Questionnaire, marked AKW Exhibit 2). The letter also made reference to these Court Proceedings and after further investigation, it transpired that the debt that I had been corresponding about with Aktiv Kapital and their Solicitors: Appleton Massey were one and the same debt. Prior to this new information, I was under the impression that the debt I was corresponding about with Aktiv Kapital and their Solicitors was for a different account, also with GE Money. ( Change debt to "account")

 

Furthermore, Aktiv Kapital have provided me with a copy of the Credit Agreement, which relates to these proceedings, on 29 May 2009 (annexed to this Allocation Questionnaire, marked AKW Exhibit 3) but it is however invalid and unenforceable, due to the following two reasons:

 

Reason 1) on the front page of the Credit Agreement it states that the Agreement was made on the basis of the terms as set out below and overleaf. However, the second page it refers to is missing. Therefore, this has invalidated the whole Credit Agreement, as per Section 78 (1) of the Consumer Credit Act 1974;

 

78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

 

Reason 2) the one and only page of the Credit Agreement that was provided (the front page) is illegible, despite being enlarged by myself on a photocopier. Therefore, as the Credit Agreement is illegible, this has invalidated the whole Credit Agreement, as per Regulation 2 (1) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557);

 

2 Legibility of notices and copy documents and wording of prescribed Forms

(1)The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

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:

 

9. 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.

 

 

It 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 and legible 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 these documents must be disclosed before this case can progress any further.

 

 

DRAFT ORDER FOR DIRECTIONS.

 

1. The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified, legible and true copy of each of the following documents mentioned in the Particulars of Claim:

 

(a) the executed regulated Consumer Credit Agreement made between the GE Money and the Defendant (under reference xxxxxxxxxxxxx), together with any terms and conditions that applied to it, both the Agreement and Terms and Conditions compliant with the Credit Act 1974 and all subsequent regulations; the original document must be brought to the hearing.

 

(b) Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended, together with proof of service

 

© The Notices of Assignment, with proofs of service of the same, compliant with s196 of the Law of Property Act 1925.

 

(d) The Deed of Assignment, together with proof of service, the original document must be brought to the hearing

 

(e) A full and complete statement of account, including all payments made and charges applied covering the period beginning with the day of the making of the Agreement and ending on the date of the commencement of this case.

 

(f) Any other documents on which the claimant will rely, together with proofs of service.

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order, the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order, this case shall be allocated to the Small Claims Track

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

 

 

In the AQ other information section.. change debt to "account" as before, I have indicated in red in relevant paragraph.

 

I think somewhere you need to mention the fact that you have also now serious doubts as to whether the company bringing the action actually has right to . But I dont know where you would stick that. I see you have asked for the notice of assignment which is good.

 

When do you need to have all this filed/posted ?

 

TBH, it might be a good idea to ask andorch or creditcardmug if they could look in on you.

[andymanx]

Would it make CL Finance not the legal owner if they issued the claim on 31 December 2007 and sold it to Aktiv Krapital on 11 August 2008?

 

I have found alot of other mentions of "debts" in the AQ and have changed them too to "account". Are the extra changes Ive made okay?

 

I have to file it by 24 August.

 

I will drop AD and CC a message to ask them to look in. Thanks.

 

It doesnt recognise andorch in the message system and it said that creditcardmug has reached his quota for messages.

[citizenB]

 

Ok, 24th August so you have a little time in hand to get things in order.

 

This is the bit that I think neither myself or Aktive runner understands.. if CL issued the claim in 2007 then why then sell the account on ??

 

 

You appear to have 2 sets of "owners" and "solicitors" acting on this claim. IMHO, there can only be one.. but which one set is the question IYKWIM.

 

You might not be able to pm andyorch, but CCM should be ok.

 

Alternatively you could try surfaceagentx20 or IveGotNoMoney.

 

Just pop a link to your thread in a pm and ask them to pop by

 

Oops, just seen your message re the pms.. I have mentioned above that AO doesnt have his pms enabled.. I will try and track CCM down over the weekend for you.

[GamekeeperToPoacher]

Hi Andymax,

 

I am responding from Nottsdaves thread I am sorry to say that I too am feeling out of my depth. One thing I did notice in an early post, post 2 was that you say the debt is from December 1997. If that is the case surely it is statute barred.

 

GK

If you are free at anytime please take a look at my thread here where I will soon be posting my draft WS

[andymanx]

Ok, 24th August so you have a little time in hand to get things in order.

 

This is the bit that I think neither myself or Aktive runner understands.. if CL issued the claim in 2007 then why then sell the account on ??

 

 

 

You appear to have 2 sets of "owners" and "solicitors" acting on this claim. IMHO, there can only be one.. but which one set is the question IYKWIM.

 

You might not be able to pm andyorch, but CCM should be ok.

 

Alternatively you could try surfaceagentx20 or IveGotNoMoney.

 

Just pop a link to your thread in a pm and ask them to pop by

 

Oops, just seen your message re the pms.. I have mentioned above that AO doesnt have his pms enabled.. I will try and track CCM down over the weekend for you.

Thats what I cant understand either! I fail to see that as CL Finance have had a judgement awarded from the court on 31 December 2007 how they can then sell it on to Aktiv Kapital on 11 August 2008. Is this even allowed?

 

Your help is really appreciated BTW. I have left you some rep.

[andymanx]

Hi Andymax,

 

I am responding from Nottsdaves thread I am sorry to say that I too am feeling out of my depth. One thing I did notice in an early post, post 2 was that you say the debt is from December 1997. If that is the case surely it is statute barred.

 

GK

If you are free at anytime please take a look at my thread here where I will soon be posting my draft WS

Hi Gamekeeper, thanks for popping by.

 

I did pay a few payments of £1 to Aktiv Kapital and because I have done that, apprantly I cant claim "statute barred" now. If only I had found CAGS before I paid the £1's lol.

 

I will have a lookie at your thread now.

[citizenB]

Thats what I cant understand either! I fail to see that as CL Finance have had a judgement awarded from the court on 31 December 2007 how they can then sell it on to Aktiv Kapital on 11 August 2008. Is this even allowed?

 

Your help is really appreciated BTW. I have left you some rep.

 

Even more bizarre, if they were awarded judgement. I am sorry I dont have more knowledge to help.

 

Thanks for the rep.. I did send you a pm btw

[andymanx]

Even more bizarre, if they were awarded judgement. I am sorry I dont have more knowledge to help.

 

Thanks for the rep.. I did send you a pm btw

Its okay CB, you have been a great help already as I was going to originally go down the route of what you mentioned but I wasnt sure if I had my facts right that it wasnt okay to sell the debt on after the judgement had been awarded. I will add something about it to my AQ tonight.

 

Thanks for the PM too. I have replied.

[make them aktiv runners]

andymanx, did I gert the assumption right in my post?

 

You had stated judgment had been set aside in June 2009. Also you had received a new claim, this appeared to be the same application they had previously used to get the judgment in 2007/2008. I assumed they had resubmitted their claim.

[andymanx]

andymanx, did I gert the assumption right in my post?

 

You had stated judgment had been set aside in June 2009. Also you had received a new claim, this appeared to be the same application they had previously used to get the judgment in 2007/2008. I assumed they had resubmitted their claim.

No, they never issued a new claim. At the same time of getting the CL Finance judgement set aside, I was in correspondance with Aktiv Kapital for what I thought was a different account but it now transpires it was one and the same account, which CL Finance have sold onto Aktiv Kapital, despite CL having a judgement against me.

[make them aktiv runners]

Are you saying the judgment has not yet been set aside and the hearing will be a set aside hearing?

[make them aktiv runners]

It doesnt recognise andorch in the message system and it said that creditcardmug has reached his quota for messages.

andyorch

http://www.consumeractiongroup.co.uk/forum/member.php?u=181542

[andymanx]

Are you saying the judgment has not yet been set aside and the hearing will be a set aside hearing?

I am confusing myself now LOL.

 

In December 2007, CL Finance took me to court at my old address but as I had moved I never knew anything about the action and couldn't defend it and so in my absence, the court awarded judgment in favour of CL Finance.

 

A few months ago, after reading my credit file and noticing the CCJ, I applied to the court to have the judgment set aside on the basis of not being able to defend the original claim.

 

The judgment was set aside and returned to the claim stage as if CL Finance had just started a new claim against me and I have filed my Defence recently (there is only one claim).

 

The next step is to complete a Allocation Questionnaire ready for the first court hearing.

 

I hope I make sense lol.

Edited August 15, 2009 by andymanx

[andymanx]

andyorch

http://www.consumeractiongroup.co.uk/forum/member.php?u=181542

Thanks.

[surfaceagentx20]

Let's see if I've got this right. You entered into a regulated agreement with GE Capital Bank sometime in or about 2003 it looks like. GE sold their interest in the agreement to CL Finance. Quite whewn I do not know.

 

The Claimants in your case are C L Finance. If I understand correctly, they are represented by Howard Cohen. The proceedings were issued on 31 December 2007. The issue of proceedings resulted in a judgment, quite when I do not know, but that judgment was obtained without your knowledge because service of the proceedings was made at an old address. The judgment if achieved in default of acknowledgement of service probably goes back to January 2008.

 

CL Finance then sold their interest onto Aktiv Kapital (AK). AK's solicitors are Appleton Massey and say their client issued a notice of assignment to you on 11 August 2008 and again on 6 January 2009.

 

The default judgment was set aside on 24 June 2009. The Claim Form eventually came to your attention on 9 July 2009.

 

First question, was the application to set aside opposed and if so, who represented CL Finance?

 

Next, does the order direct re-service of the Claim Form / Particulars of Claim and if so by a certain date I wonder? It might be an idea to scan or write out the text of the order. My thinking follows these lines:

 

Any setting aside of the default judgment on grounds of non-service will require re-service if the case is to be prosecuted. If the claim was issued on 31 December 2007 it had to be served within 4 months, ie by 30 April 2008. See CPR 7.5. Evidently it wasn't. To be able to serve again requires an order from the court extending the time available for service from 30 April 2008. See CPR 7.6. May be the set aside order gave this permission. May be not.

 

Thirdly, whereas CL Finance had a right to bring proceedings on 31 December 2007, their interest in the proceedings came to an end on 11 August 2008. Have any directions been made for AK to be substituted in CL's place?

 

Before we move on to completing the AQ (and what you've done so far is way too wordy) can you clear up the queries I've raised?

 

x20

[andymanx]

Let's see if I've got this right. You entered into a regulated agreement with GE Capital Bank sometime in or about 2003 it looks like. GE sold their interest in the agreement to CL Finance. Quite whewn I do not know.

 

The Claimants in your case are C L Finance. If I understand correctly, they are represented by Howard Cohen. The proceedings were issued on 31 December 2007. The issue of proceedings resulted in a judgment, quite when I do not know, but that judgment was obtained without your knowledge because service of the proceedings was made at an old address. The judgment if achieved in default of acknowledgement of service probably goes back to January 2008.

 

CL Finance then sold their interest onto Aktiv Kapital (AK). AK's solicitors are Appleton Massey and say their client issued a notice of assignment to you on 11 August 2008 and again on 6 January 2009.

 

The default judgment was set aside on 24 June 2009. The Claim Form eventually came to your attention on 9 July 2009.

 

First question, was the application to set aside opposed and if so, who represented CL Finance?

 

Next, does the order direct re-service of the Claim Form / Particulars of Claim and if so by a certain date I wonder? It might be an idea to scan or write out the text of the order. My thinking follows these lines:

 

Any setting aside of the default judgment on grounds of non-service will require re-service if the case is to be prosecuted. If the claim was issued on 31 December 2007 it had to be served within 4 months, ie by 30 April 2008. See CPR 7.5. Evidently it wasn't. To be able to serve again requires an order from the court extending the time available for service from 30 April 2008. See CPR 7.6. May be the set aside order gave this permission. May be not.

 

Thirdly, whereas CL Finance had a right to bring proceedings on 31 December 2007, their interest in the proceedings came to an end on 11 August 2008. Have any directions been made for AK to be substituted in CL's place?

 

Before we move on to completing the AQ (and what you've done so far is way too wordy) can you clear up the queries I've raised?

 

x20

Hi surfaceagentx20 and thanks for your help.

 

The set aside application wasn’t opposed and CL Finance and their Solicitors have been surprisingly quiet.

 

I am at work at the moment and wont be able to scan in the order until this evening but the order said that the judgement had been set aside and I had to enter my defence and nothing else.

 

So as the judge never directed re-service of the Claim Form / Particulars of Claim and as the 4 months have passed, does this mean that the original claim in null and void? And if so, shouldn’t the judge have picked up on this? And as he hasn’t, would it be worth writing a letter to the court to ask them to strike out the claim on this basis or add it to the AQ?

 

No directions have been made for AK to substitute CL.

[andymanx]

Let's see if I've got this right. You entered into a regulated agreement with GE Capital Bank sometime in or about 2003 it looks like. GE sold their interest in the agreement to CL Finance. Quite whewn I do not know.

x20

Also, to the best of my memory (but I could be wrong) I never received anything from CL Finance to say they had bought the account from GE Money.

[Guest janensteve]

i suspect that there has to be an audit trail of assignment notices from when the loan was with ge capital.

 

as a mininum notice of assignment to CL, and then notice of assignment to Aktiv Kapital. If CL sold their interest in the debt, CL cannot pursue a claim for money that is not owed to them, i doubt they would wish to spend the money payable upon filing of allocation questionnaire by them.

 

i would file defence based on debt being sold on and no interest in the matter by the claimant.

 

as for aktiv Kapital, you had better ask them for bells and whistles

[andymanx]

i suspect that there has to be an audit trail of assignment notices from when the loan was with ge capital.

 

as a mininum notice of assignment to CL, and then notice of assignment to Aktiv Kapital. If CL sold their interest in the debt, CL cannot pursue a claim for money that is not owed to them, i doubt they would wish to spend the money payable upon filing of allocation questionnaire by them.

 

i would file defence based on debt being sold on and no interest in the matter by the claimant.

 

as for aktiv Kapital, you had better ask them for bells and whistles

Although Aktiv Kapital now own the debt, the original judgement was granted whilst the debt was with CL Finance. So who do I go after now?

 

I have already subbed a defence a few weeks ago, which I need to somehow get amended.

 

Bell and whistles? Sorry I dont understand lol.

[andymanx]

Here are the orders.

 

COPY OF THE CLAIM FORM (page 1).

COPY OF THE CLAIM FORM (page 2).

 

 

 

SET ASIDE ORDER.

 

 

AQ ORDER.

Edited August 15, 2009 by andymanx