CL finance ltd/howard cohen

[honey5]

received from northampton cc

claim form which i have misjudged dates on/ urgent needs to be in today

AOS needs to be in today (sorry guys panic here)

its for a card which i do not acknowledge and they state that they have sent out a default notice which i have not received, cca request was also ignored

acknowledging online

 

thank you and sorry for the rush

 

honey x

[42man]

OK first things first acknowledge the claim online and saying that you want to defend (I presume that's what you want to do)

 

Can you put the POC up here also ? (don't give away too much !!)

 

Did you make any requests for information under the civil procedure rules ?

 

If today is the last day for AOS then we have another 14+3 days to get a defence going....

[honey5]

thankyou 42man

 

ok first poc

 

 

the claimants claim is for the sum of ***>** being monies due from the defendant to the claimant under a regulated credit agreement between barclays balnk plc and assigned to the claimant on the ** *** 2008

 

The defendant has failed to make payment in accordance with the tems fo the agreement and a default notice has been served upon the dfendant pursuant to sec 87(1) of the cca 1974

 

the claimant claims the sum of ***.**

 

 

_____________________________________________________________

 

 

i did send cca to BC and have had no correspondance whatsover, this was a monument card that unbeknown to me was passed onto BC

yes i wish to defend it

 

thankyou 42 man xxx

honey x

[42man]

Honey it might be worth zinging out the CPR 18 request to Cohens....sned ASAP by recorded delivery (don't hand sign)...

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. 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. 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.

 

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

 

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 formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .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).

d. 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.

e. 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.

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

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

h. 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 defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[42man]

Can you confirm that the acknowledgment deadline is today ?

[42man]

If indeed your AOS deadline IS today then acknowledge that ASAP....

 

We then have another 14+3 days to file a defence....

 

Send the CPR request off today too....by recorded...

 

This is one defence I have found that may assist....

 

In the xxxxxxxx County Court

Claim number

 

 

 

 

 

Between

 

 

xxxxxxxxxxx- Claimant

 

and

 

 

- Defendant

 

 

 

Defence

 

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

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

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

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due,or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

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

 

5. Consequently, I deny all allegations on the particulars of claim and put the claimant to strict proof thereof.

 

 

 

The relevant Act of Parliament in this Case

 

6. Firstly I will address the issue of which Act is relevant in this case, in case it is suggested that the claim falls under the Consumer Credit Act 2006, it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect. since the agreement would have commenced prior to the inception of the Consumer Credit Act 2006, section 15 of the 2006 Act has no effect and the Consumer Credit Act 1974 is the relevant act in this case.

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from .../content.aspx?LegType=All+ Legislation&title=consume r+credit+act++2006&search Enacted=0&extentMatchOnly =0&confersPower=0&blanke t Amendment=0&sortAlpha=0&T YPE=QS&PageNumber=1&NavFr om=0&parentActiveTextDocI d=2459360&ActiveTextDocId =2459451&filesize=643

11 The repeal by this Act of-

 

(a)the words "(subject to subsections (3) and (4))" in subsection (1) of section 127 of the 1974 Act,

 

(b)subsections (3) to (5) of that section, and

 

©the words "or 127(3)" in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act.

 

 

 

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

 

 

The Request for Disclosure

 

9. Further to the case, on xx/xx/2007 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,.

 

10. 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 ( a copy of the request is attached to this Defence marked XXXXXX).

 

 

The importance of a copy of the credit agreement and its production before the court.

 

 

11. Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts.

 

12. Firstly, the agreement must contain certain Prescribed 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).

 

13. 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.

 

14. It is submitted that if the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement then the court is precluded from enforcing the agreement. The prescribed terms must be with the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974. In addition there is case law from the Court of Appeal which confirms the Prescribed terms must be contained within the body of the agreement and not in a separate document.

 

15. I refer to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said:

 

 

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

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

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

 

17. Notwithstanding point 13, 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.

 

18. Therefore the claimant must provide a copy of the agreement compliant with the regulations as laid out in points 10 to 16 of this defence to have any right of enforcement.

 

The courts power of enforcement

 

19. 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 with

127(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).

20. Further more 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.

 

21. With regards to the Authority cited in point 16, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul)

28.........I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases), how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an application for an enforcement order under section 65. The court 'shall dismiss' the application if, but only if, the court considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

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 and 63, section 127(4) precludes the court from making an enforcement order.

 

30. These restrictions on enforcement of a regulated agreement cannot be sidestepped.....

And further more

36. In the present case the essence of the complaint is that section 127(3) of the Consumer Credit Act has the effect that a Regulated agreement is not enforceable unless a document containing all the prescribed terms is signed by the debtor.

 

49. ".............The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan. That being the consequence intended by Parliament, the lender cannot assert at common law that the borrower has been unjustly enriched.

 

 

50. This interpretation of the Consumer Credit Act accords with the approach adopted by the House in Orakpo v Manson Investments Ltd [1978] AC 95, regarding section 6 of the Moneylenders Act 1927 and, more recently, in Dimond v Lovell [2002] 1 AC 384, another case where section 127(3) precluded the making of an enforcement order. In Dimond's case the restitutionary remedy sought was payment of the hire charge for a replacement car used by Mrs Dimond. The House rejected a claim advanced on the basis of unjust enrichment. Lord Hoffmann observed that Parliament contemplated that a debtor might be enriched consequential upon non-enforcement of an agreement pursuant to the statutory provisions. It was not open to the court to say this consequence is unjust and should be reversed by a remedy at common law: [2002] 1 AC 384, 397-398.

22. Since the judgment of Lord Nicholls of Birkenhead clearly sets out that without a credit agreement the claimant's case cannot succeed.

 

23. Therefore I respectfully request that the court order the claimant produce the original signed agreement before the court to show the form and content of it and that it complies with the regulations referred to in this defence, otherwise the courts powers of enforcement are surely limited in these circumstances.

 

24. Further more the defendant requires clarification on the status of the original agreement, the defendant requires the claimant provide a certified copy of the original agreement. If the document is no longer in existence the defendant requires certification of destruction and furthermore the defendant will call into question the validity of any purported copy of the said contract where the original has been destroyed. The defendant will require production of details as to when any copy was made and what medium the copy has been stored on along with clarification of who has had access to the document and also require written clarification that any copy document produced is authentic.the defendant notes that the Civil procedure rules also require the original documents to be made available under practice direction 32.

 

25. The defendant is under the belief that in the case of Rankine v Barclays Bank Plc [2005] on appeal from Stafford County Court the issue of the loss original or destruction of the credit agreement was central to the case and the defendant is under the belief that the outcome of the case was that where the original agreement could not be produced the claim could not succeed and that the appeal was successful.

 

26. Should the claimant be unable to produce the original agreement signed by both debtor and creditor and containing the prescribed terms, I request that the court uses its powers under section 142 Consumer Credit Act 1974 and declare the agreement as unenforceable.

 

The Need for a Default notice

 

27. 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.

 

28. 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.

 

29. Notwithstanding point 27, 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).

 

30. 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.

 

Conclusion

 

 

31. 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.

 

32. If the court considers it inappropriate to use its case management powers, it is requested that the court order the claimant to produce the original documents before the court. 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.

 

33. As laid out in point 23 the defendant requires that the claimant provide the requested information and proofs and authenticities. The defendant requests that the court order that the claimant supply the information requested.

 

34. 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 OFT 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.

 

35. I respectfully ask the permission of the court to amend this defence when the claimant provides full disclosure of the requested documents.

 

 

Statement of Truth

 

 

I xxxxxxxxxxx, believe the above statement to be true and factual.

 

 

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

[honey5]

ermmmmmm got a bit of a problem here

 

Login failed three times.

 

You, or (where applicable) your co-defendant may have entered a wrong claim number and password combination three times.

 

For your own security, access to your claim number will be blocked for 2 hours.

 

 

im typing exactly what it says

honey x

[42man]

Honey give the court a call....

[honey5]

thankyou once again

rang the court and have been advised to send via first class post

as there may be an error with mcol

so do i need to send in only the AoS today

 

 

thankyou

honey x

[42man]

Yes send in the AOS...(by recorded / guaranteed)...today..you have another 2 weeks to submit the defence...

[honey5]

sorry this bits a bit confusing

 

7. For the avoidance of any doubt I include the relevant section of the 2006 Consumer Credit Act (Except taken from .../content.aspx?LegType=All+ Legislation&title=consume r+credit+act++2006&search Enacted=0&extentMatchOnly =0&confersPower=0&blanke t Amendment=0&sortAlpha=0&T YPE=QS&PageNumber=1&NavFr om=0&parentActiveTextDocI d=2459360&ActiveTextDocId =2459451&filesize=643

 

 

honey x

[creditcardmug]

Hi, your case is almost identical to mine, but im about a month in front of you, check out my thread,

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/152183-barclaycard-lewis-cl-finance.html

[honey5]

letter recieved this morning from cohens

 

Dear ****************

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

We have been in contact with our solicitors, Howard Cohen & Co who have advised that we are not obliged to provide this information, and would advise that the Particulars of Claim detailed in the County Court Claim Form should be sufficient to allow you to respond accordingly.

Please respond to the claim form with either an appropriate defence or an admission and offer of repayment. Failure to do so will result in a judgement being entered without reference to you.

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

 

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

 

honey x

[zazen.warrior]

That's the standard HC response, draw the courts attention to their refusal to comply.

[42man]

Absolute rubbish Honey....!! they are trying to frighten you....when has/is your defence due to go in ?

[zazen.warrior]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/125510-howard-cohen-court-claim-3.html?highlight=Howard+Cohen+Court+Action

 

If you look at this from about page 3 it will tell you a bit about HC.

[honey5]

Absolute rubbish Honey....!! they are trying to frighten you....when has/is your defence due to go in ?

 

would it be 14 days from the AoS going in?, ive had no word from the courts as yet to say that it has been relocated to a local court

 

thanks for your help 42man x

honey x

 

zazen.warrior will take a look now thankyou x

[creditcardmug]

They dont allocate it to your local court until the AQ stage, if it ever gets that far, you have to do the defence before that happens.

[honey5]

They dont allocate it to your local court until the AQ stage, if it ever gets that far, you have to do the defence before that happens.

 

of course i do sorry, not sure whether im comming or going at the min, thanks, ill go squeeze my head right now

 

honey x