C L Finance (GE Store card) - Failure to comply with CPR request.**SETTLED BY CONSENT**

[postggj]

can you pm me a link say to photo bucket if you want so i can see the ge dn

 

also

 

is the dn date on the ge dn the same as the dn date from clueless

[GhostDebt]

Will upload GE DN and post link shortly.

 

GE DN is April 06

CL DN is December 08

[postggj]

HAVE A LOOK AT POST 59

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/215388-response-howard-cohen-santander.html

 

WELL REF THE DN ISSUE

 

GAME OVER

 

THE ACCOUNT CAN ONLY BE DEFAULTED ONCE

[GhostDebt]

Here link to GE DN

 

GE DN - Ref Debenhams picture by shann15 - Photobucket

[postggj]

That Dn Has Not Allowed 14 Days And Postage

 

Was Your Nameand Address On The Dn With Ge

[postggj]

Its Exactly 14 Days

 

No Time For Postage

 

Game Over

[GhostDebt]

Name and address was on it but edited out.

The regs changed to 14 days December 06 (so I believe) and prior to that was 7 days in which case the dates are ok as issued April 06.

Please correct me if am wrong.

 

Will compare CB's comment in the other thread with my Skeleton and alter any relevant parts accordingly.

[postggj]

What This Means Is The Account Has Been Terminated Unlawfully

 

Ge Can Sell This To Clueless For What They Like

 

All You Are Liable For In Any Claim By Ge Or Clueless Are Any Arrears Up To The Ge Dn Date

 

The Clueless Dn Is Irrelevent, No Legal Stature At all As The Original Dn From Ge Is Flawed, Even If Clueless Are Now The Creditor

 

 

Pay Any Arrears Off With Ge With In 28 Days Of Judgement And No Ccj And No Debt

 

THE POINT IME MAKING IS CLUELESS HAVE NO AUTHORITY TO BRING THIS CLAIM UNDER CL FINANCE AS THE ACCOUNT HAS BEEN TERMINATED AND SOLD UNLAWFULLY

 

Clueless Are Screewed:D:D

[GhostDebt]

OK, the CL DN is not relevant but on what grounds is the GE DN defective based on my comment in post #232 above.

 

Many thanks for the help.

[postggj]

They Have Only Allowed 14 Days For You To Rectify

 

No Time For Service

 

Its 14 Plus 2 Days For 1st Class Post And Plus 4 For 2nd Class

 

 

POST 59

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/215388-response-howard-cohen-santander.html

[GhostDebt]

GE DN is April 06.

I thought regs changed to 14 days Dec 06, before that was 7 days.

When did the regs change?

[postggj]

Ime Running That Down Now

 

You May Well Be Right

[postggj]

MAKING A CUPPA

 

HAVE A NOSE IF THIS IS A 7 DAY DN

 

http://www.consumeractiongroup.co.uk/forum/amex/176918-how-precise-should-wording.html#post1914571

 

IT APPEARS THE GE DN IS NOT IN BOLD TYPE

[postggj]

Amendment

 

Para 3: in sub-paras ©, (d) words "not less than fourteen days" in square brackets substituted by SI 2006/3094, regs 2, 3.

 

Date in force: 19 December 2006: see SI 2006/3094, reg 1.

[postggj]

The Main Part Of Your Defence Is Clueless Have No Authority To Default As The Account Has Allready Been Defaulted By Ge

[GhostDebt]

Thanks for that.

 

Will review skeleton and pop back later on to update thread.

[postggj]

With The Witness Statement You Are Going To Have To Enclose The Ge Dn AND THE

Cl Dn

 

Send One Lot To The Court And The Second To The Sols

[GhostDebt]

Hi post

 

I am writing a skeleton argument at the moment, witness statements have already been submitted some time ago so can't include it in that. Need to try to incorporate it into the skeleton.

[GhostDebt]

Evening all,

 

Have compiled the skeleton argument for posting tomorrow.

 

Any comments before sending it greatly appreciated.

---

Skeleton Argument.

1. Permission is sought for the defence to be further amended, should any further information be provided by the Claimant or under any further directions from the court.

2. On the 6th April 2009, the 49th update of the Civil Procedure Rules came into force. Of particular importance to debt recovery matters is the new Protocol on Pre Action Conduct which replaces the Practice Direction. As these proceedings were initiated before this date the Practice Direction applies in this instance and the following is drawn to the Courts attention.

3. As the Claimant commenced proceedings without compliance of paragraph 7.1(1) of the Pre Action Conduct Practice Direction the court is requested to consider the contents of paragraph 4.6 when the issue of costs arises.

4. CPR Practice Direction 16 paragraph 7.3(1) states: 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, and. To date the Claimant has failed to provide the original document at any of the previous hearings.

5. Whilst the Defendant notes that the provisions of CPR Practice Direction 7e paragraph 5.2A allow a claim to be issued via Money Claim Online without the documents being attached to the claim form, the Claimant should still be in possession of the relevant documents prior to commencing the claim and be able to comply with their duties under CPR 31.14.

6. The Defendant notes that the Claimant,

a. failed to comply with paragraph * and * of the order of Deputy * dated *

b. failed to comply with paragraph * of the order of * dated * and failed to comply in full with paragraph * of the order and within the required timescale.

7. The Defendant notes that the witness statements filed by the Claimant have actually been written on their behalf by their Solicitors Howard Cohen & Co. and are not witness statements of the actual Claimant C L Finance. The Defendant therefore contends that the Claimant has failed to comply with court orders for submission of witness statements on several occasions and that under CPR 32.5(1) the witness statements should be entered as hearsay evidence only.

8. The Defendant requests the court consider the above points and strike out the Claimants case under CPR 3.4(2)©

9. The Claimant has provided a statement of account dated *. The information contained within this statement does not correspond with the information contained in statements disclosed previously and raises doubts over the information contained within the particulars of claim, the Default Notice and the Assignment of the alleged debt.

10. The initial defence was originally filed on the basis that the defendant did not have sufficient information to form a proper view as to whether the Defendant was indebted to the Claimant as alleged or at all. The Defendant therefore put the Claimant to strict proof of the claim

11. The Claimant has provided the Defendant with some documentation which the Claimant appears to believe, establishes an unanswerable claim and that consequently that the test in CPR 3.4(2)(a) is satisfied.

12. The Defendant does not accept that this threshold has been reached and submits that in order for this to occur that the Claimant must prove its case on the basis of the evidence that it has served upon the Defendant.

13. It is submitted that this case involves matters of consumer credit law which require due consideration at the trial hearing.

14. This case relates to an agreement which the Claimant asserts was entered into on the * with *. That agreement was a regulated agreement within the terms of the Consumer Credit Act 1974 (The Act). The Claimant further asserts that the Benefit of the agreement was assigned absolutely to it on the *.

15. In order to prove its claim the Claimant must establish a number of matters. Firstly it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Secondly that proper notice of any such assignment was given to the Defendant (S196 (1) & (4) Law of Property Act 1925. Thirdly it must establish that a valid Default Notice was served upon the Defendant. Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all times thereafter.

16. It is submitted that it is the obligation of the Claimant to prove all of the matters referred to in point 15 above.

17. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid Default Notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the Act1 before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

18. The Claimant asserts that it sent a Default Notice to the Defendant on the *. That Default indicated that the Defendant was in breach of a payment arrangement and that in consequence of that breach the whole outstanding balance became payable, the sum claimed also included account charges which were unlawful.

19. Consequently the Default Notice was invalid in that the sums claimed therein were incorrect in that not only did the Default Notice contain unlawful default charges but it also required repayment of the whole of the balance outstanding.

20. The Defendant notes the opening part of section 88(1) which states: 88. Contents and effect of Default Notice. (1) The default notice must be in the prescribed form.... The word 'must' makes it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue. Where the term De Minimus refers to an abbreviated form of the Latin Maxim de minimus non curat lex, "the law cares not for small things". A legal doctrine by which a court refuses to consider trifling matters.

21. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

22. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

23. The terms of the Statute are mandatory, a defect renders the Default Notice invalid. The 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 an 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).

24. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ:- "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted was set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me.

25. The failure to serve a correct Default Notice invalidates not only any subsequent Termination Notice but also any litigation Proceedings.

26. For the avoidance of any doubt, in the event of an alleged breach by the Debtor the alleged agreement remains at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

27. Furthermore, the arrears total outlined cannot be accurate, as the balance on the account was at least partly comprised of unlawful charges plus additional charges and interest added unlawfully whilst the account was in dispute. Therefore, the arrears claimed cannot be accurate, as they are themselves calculated using a total that was itself inaccurate.

28. An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it had previously been defaulted and terminated by *. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

29. The Defendant does not admit receipt of a Termination Notice and in any event avers that in view of the defects in the Default Notice that any Termination Notice must be invalid

30. Further the Defendant avers that, at the date upon which the Claimant asserts service of a Default Notice that the Defendant had not been served with a valid Notice of Assignment and consequently that the Claimant was not the Creditor and consequently had no legal interest sufficient to allow a Default Notice to be served.

31. The Defendant therefore avers that the claim brought by the Claimant is fatally flawed

32. If, there was an agreement, enforceable or otherwise, in existence the Claimant has not yet proved that there has been a lawful assignment.

33. The Defendant does not admit that a lawful assignment has taken place. The Defendant has requested on several occasions disclosure, pursuant to the CPR 31(14)(1)(a) of the alleged assignment on the basis that it is a document referred to in a claim form etc. The Defendant asserts that he is entitled to inspect the alleged assignment to satisfy himself that the assignment is valid. The Claimant has, as part of it's’ application for Summary Judgment disclosed what it asserts is an extract of the original Assignment.

34. The Claimant has disclosed insufficient of the document to allow the Defendant to form a view as to whether the alleged Assignment was valid.

35. Further of the documents disclosed, the first three pages appear to be connected but make no reference to the Defendant. The fourth page which does refer to the Defendant has nothing on its’ face which links it to the other three pages of the document submitted.

36. The Claimant asserts that the agreement was absolutely assigned to it. The document disclosed, refers to a further company Lewis Group Holdings Limited yet does not identify what role this company has in the agreement.

37. The Defendant cannot therefore be satisfied, without production of the whole document as to whether there is indeed an absolute assignment to the Claimant as alleged.

38. The overriding objective in CPR 1.1(2) requires the court to, as far as possible, place the parties on an equal footing. The fact that the Claimants have in their possession a document which is determinative of one the major issues as between the parties should in my submission require disclosure to enable the Defendant to form a view as to whether there has been a lawful assignment. It is with respect the position that not only do the interests of justice require disclosure but that the Claimant cannot prove its case without producing the alleged Assignment to the Defendant.

39. It is further submitted that, in any event, the Defendant is entitled to, as a matter of law, be provided with a copy of the alleged Assignment (Van Lynn Developments v Pelias Construction CO LTD 1968 [3] All ER 824)

40. If, which is not admitted, an Assignment has taken place for that Assignment to be effectual, written notice of it must be served upon the Defendant in accordance with Section 136 (1) Law of Property Act 1925.

41. Section 196 of the Law of Property Act states that service must be effected by registered post.

42. The Claimant has produced a Notice of Assignment and asserts that it was served upon the Defendant. The Defendant had never seen, until after these proceedings were commenced, the Notice referred to by the Claimant. The Claimant must therefore provide evidence that the Notice of Assignment was sufficiently served or the notice is invalid for want of service and any assignment has not been perfected in law and the Claimant has no right of action in this case.

43. Further and in any event the notice referred to, identifies a balance outstanding. That balance includes penalty charges, which are unlawful at Common Law, Dunlop Pneumatic Tyre Company Ltd v New Garage and Motor Company Ltd [1915], under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. Accordingly, the inclusion of penalty charges in the purported Notice of Assignment renders it entirely legally unenforceable.

44. In addition, it is accepted that for a Notice of Assignment to be valid it need not contain the date of an assignment or indeed the amount of any debt. However if those matters are contained in an assignment it is submitted that, for the notice to be valid, they should be accurate. (W F Harrison & Co LTD v Burke 1956 [2] All ER 169)

45. Consequently any Notice of Assignment served by the Claimant which referred to the alleged balance outstanding would be inaccurate and therefore invalid.

46. The Defendant does not know how all of the sums claimed have arisen

47. The Claimant has also disclosed copy statements however these statements have an opening balance of £*. They do not show how that earlier amount has been calculated. Further the statements show “Late fees”, and/or "Collection costs” for which there would appear to be no contractual basis. Consequently those fees are unlawful. Further the Defendant has no means of ascertaining whether the earlier sums have been validly accrued.

48. The Defendant avers that the clause in the alleged agreement under which the account charges have been imposed is, at common law, a penalty clause and the charges constitute a disproportionate penalty within the meaning of Dunlop Pneumatic Tyre Co. Ltd v New Garage and Motor Co Ltd [1915] AC 79, in not being a genuine pre-estimate of the defendant’s losses in relation to the alleged contract breaches by the Defendant, and are therefore unenforceable

49. If not a penalty, the charges are unreasonable within the meaning of s.15 of the Supply of Goods and Services Act 1982

50. The contract term which purports to entitle the Claimant to make such charges is invalid under the Unfair Terms in Consumer Contract Regulations 1999

a. Schedule 2.1.e of the UTCCR defines any term, which has the effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation, as a term which may be regarded as unfair.

51. The Claimant has not disclosed a copy of the original terms and conditions under which the default charges have been imposed. It is averred that before the court may assess whether the charges imposed are pursuant to a penalty clause that it must consider the position of the parties and indeed the agreement at the date of its’ inception) “The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of making the contract, not as of its’ breach” (per Lord Dunedin in Dunlop v New Garage)

52. The Charges referred to relate to a “late payment fee”, which is a standard fee of £15.00 imposed regardless as to whether the payment is one day late, or three weeks late or indeed never arrives. It is averred that in any event the claimant suffers no detriment in late payment in that it continues to charge interest at its’ contractual rate.

53. The second charge is a “collection cost” which is again charged as a standard fee, this time of £12.00. Again the fee is charged irrespectively and is punitive in nature and does not give a genuine pre estimate of the costs incurred by the claimant. Accordingly the Claimant must prove that the charge made is valid and lawful and is not penal in nature.

54. Further the Defendant avers that the clause under which the charges were imposed was an unfair term in a consumer contract and in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and by virtue of regulation 8(1) not binding on the consumer.

55. The Defendant refers to the Office of Fair Trading guidance issued in April 2006 in this regard and notes that following an OFT investigation into credit card default charges that the OFT concluded that many credit card charges were unreasonable.

56. The Defendant notes that at the date that the Claimant issued a Default Notice, that it was aware that the default charges were unlawful and notwithstanding that knowledge proceeded to include the same in the Default Notice.

57. The Claimant has relied upon a defective Default Notice allegedly issued under the terms of the Consumer Credit Act 1974.

58. The Claimant has registered the issue of that Default Notice in consequence of which the Defendant has suffered injury to credit.

59. Injury to credit is actionable without evidence of any specific loss - See Richard Durkin (Pursuer) v DSG Retail Limited & HFC Bank Plc (Defenders) – Aberdeen Sheriff Court 26th March 2008 which whilst a Scottish Case is directly based upon English Law and reviews the relevant authorities.

60. The Defendant therefore counterclaims for damages for injury to credit, in a sum not to exceed £10,000 to be awarded at the discretion of the court based upon the ruling mentioned in point 59 above.

61. With regard the Witness Statement dated * received from the Claimant, it is unclear if the new Witness Statement replaces that dated * or is in addition to it.

62. With regards paragraph * of the Witness Statement dated *, due consideration should be given to the following paragraphs: According to sections 221 and 222 of the Companies Act 1985, a public company is required to maintain records for a period of six years (Section 222 (5)(b)). As a credit agreement is active until the agreement is terminated, I would suggest that all the payment records (and other documents making up the file - including the agreement/application etc) would be 'live' until the account is paid or terminated - thus the full file should be retained for at least six years after the termination.

63. This interpretation is repeated by Inland Revenue Legislation that requires prime documents to be retained for six years - After the end of the relevant accounting period. That would mean some files need to be retained for up to seven years. The relevant legislation is found in Schedule 18 of the Finance Act 1998 (paragraph 21) - of particular significance is sub-paragraph (6).

64. In addition, key documents/application forms etc must be kept until five years after that business relationship has ended. This is a requirement of the Money Laundering Regulations 1993, 2003 and 2007.

65. With regards paragraph * of the Witness Statement dated *, the Courts attention is drawn to CPR Practice Direction 32 and 33 and the requirements of the Civil Evidence Act 1995 Sections 2 and 8.

66. The Claimant has indicated that they do not have the Original documentation and has made no attempt to adduce hearsay evidence in accordance with the correct procedures referred to in 65 above.

67. In addition, the copy document which has been provided clearly states "on the terms set out below and overleaf". The 'overleaf' proportion of the alleged agreement which the Claimant has disclosed following the Order made by *, does not appear to correspond with the Document requested for the reasons outlined in the defence.

68. Should the Claimant aver that receipt of payments is an acknowledgement or admission of the debt, the Courts attention is drawn to paragraph 26 of the Judgement of Sir Andrew Morritt Vice Chancellor in the Court of Appeal Ruling of Wilson v First County Trust Ltd [2001] 3 All ER 229

69. For the reasons outlined above the Court is invited to strike out the Claimants case or issue further directions or Orders in this case and to order that the Claimant pay the Defendants costs, to be summarily assessed in accordance with CPR 48.6.

I, The Defendant, believe the facts stated in this document to be true.

Signed ..................... Date .....................

[postggj]

Remember To Include The Dn From Ge

[GhostDebt]

Skeleton posted today to the court & cohens.

Will give the court a call next week to check a couple of things and then go from there.

 

Many thanks will keep you updated.

[GhostDebt]

Trial soon any comments or advice beforehand welcome.

 

Many thanks

[MAGDA]

HI GD, no real advice as you seem to be on top of everything and your defence etc has been very good all the way along, so just really wishing you well and hope you come out of this as successfully as you deserve. I'm sure you'll make the other side wish they'd never started this claim in the first place!

 

All the best,

 

Magda

[Gazza112]

Hi Ghostdept

 

Can't give you any advise as i think you've got everything in hand in your defence you put up.

Good Luck in your case, hope you get the same result as i did.

 

Gaz

[Goldlady]

Think you have done all you can - just the very best of luck - and do let us know. Fingers, toes and everything crossed for you. In my case they just didn't show up - hopefully it will be the same for you.