lowell/cohen claimform - old MBNA/Abbey card debt **WON**

[citizenB]

Thread moved to the newly opened M&S forum:grin:

 

I have also added the fact that you are in Scotland.

 

What is the situation here at the moment, please

[Gazza112]

Hi All

 

Just a quick update and a bit of advice in what to do.

 

Still not received any paperwork from Howard Cohen.

The 14 day dead line to get any paperwork into the Courts end on Monday the 14th. Now do i need to send anything into the Courts, as i've not received anything. The trouble is i'm going into Hospital for an op and won't be able to deal with anything for a few days after the 14th.

 

Gaz

[GhostDebt]

I would call the court and tell them you still have not received anything and ask them if you are required to send anything.

 

I assume you have already sent a holding defence, so another call on the 14th to the court to check if they have received anything would suffice in my opinion and then submit an N244 application to get it struck out at the hearing if nothing received.

 

I know you'll be tied up for a few days so would be worth having everything ready beforehand to allow someone else to send it for you (if available).

 

Regards

[Gazza112]

I would call the court and tell them you still have not received anything and ask them if you are required to send anything.

 

I assume you have already sent a holding defence, so another call on the 14th to the court to check if they have received anything would suffice in my opinion and then submit an N244 application to get it struck out at the hearing if nothing received.

 

I know you'll be tied up for a few days so would be worth having everything ready beforehand to allow someone else to send it for you (if available).

 

Regards

 

 

 

Hi Ghostdept

 

 

The only defence i sent was the one i sent with my AQ's when i submitted that to Court.

Do i need to send them another defence in ?.

 

Gaz

[GhostDebt]

If you haven't had any information then you can't send an amended defence, but was just checking if you had already submitted one.

Would suggest ringing the court to double check.

 

Regards

[Gazza112]

Hi Ghostdept

 

Thanks for your advice i'll get intouch with the Courts today.

I did send a letter into the Courts about 3 weeks ago stating that the claiment had not issued any paperwork. The reply i received from the Courts was, its all be laid out in the Judges order they have till the 14th to reply to that.

 

Gaz

[Gazza112]

Hi All

 

I phoned up the Courts today to find out if any paperwork had been submitted and the answer is no.

Was told to wright into the Courts after the 14th explaining the situation to the Judge. Who will look at my case and probably strike out the case.

 

Gaz

[GhostDebt]

Hope it goes well, Get the letter ready to send

 

Regards

[Gazza112]

Hi All

 

Well, the fourteen days are up with Howard Cohen submitting any paperwork to the Courts or me.

As surgested by one of the Courts staff, they said write the Judge explaining that Howard Cohen have breached the Judges order and why i couldn't submit a defence against Howard Cohen.

Should i ask the Judge to strike out this as well in the letter.

 

 

Gaz

[citizenB]

I would Gazza. The court has already advised you to write in around this time so go for it

[Gazza112]

Hi all

 

 

Just a quick update, phoned the Court yesterday and explained that i've still not received any information or paperwork from the Claiment (Howard Cohen). Was given some great advice from the Court, saying to write a letter to the Judge with any corrisponding letters to the Claiment plus postage receipts and the Judge will look at it.

Well took all my details into the Court today and the info will be handed to the Judge. Will know have to wait and see what the Judge will order, hope he/she will strike the case out.

 

Gaz

[pompeyfaith]

Well Done Gaz here's hoping for you.

 

PF

[Gazza112]

Well Done Gaz here's hoping for you.

 

PF

 

 

Thanks PF for that, but theres better knews on my other MBNA thread.

 

Gaz

[sunflower99]

Keeping my fingers crossed too Gaz!

[Gazza112]

Thanks Sunflower

[Gazza112]

Hi All

 

HELP NEEDED

 

 

Received the following paperwork from Howard Cohen today.

It's a bit late as it should of been into the Courts by the 14th.

But this puts me on a back foot, as i was unable to put in a full defence for this case.

This is the paperwork i had from Howard Cohen today.

 

 

 

 

 

 

 

 

So any advice in what to do next would be much preciated as times running out to put in a defence.

 

 

Gaz

[car2403]

What?!

 

Firstly, Lewis cannot send you a Notice of Assignment to CL Finance.

 

Secondly, they can't retrieve statements? Shame that - the Judge should strike their statement of case out and award Judgment to you.

 

You'll need to wait to see what the Court does, though, as they may well give them extra time and there's little you can do to change that if they do

[Gazza112]

Hi Chris

 

Thanks for popping in on my thread.

What i did do yesterday, was go to the Courts with a letter to the Judge with corrisponding docs that i sent Howard Cohen.

Explaining to the Judge that i have not received any paperwork from Howard Cohen.

So as you said will wait and see what comes from the Judge with this.

But it doesn't leave me a lot of time to sort out a defence for this.

 

Gaz

[citizenB]

Cheeky sods:rolleyes:

 

Have you telephoned the court to find out if this lot has been submitted to the court ?

[Gazza112]

Hi CitizenB

 

I did phone the Courts today, and was told it's not upto the claiment to change the date of the case it's the Judge.

I should wait to hear from the Judge, i never asked if they received any paperwork. Looking back it was a good thing that i left a paper trail with the Courts.

 

Gaz

[citizenB]

Hi CitizenB

 

I did phone the Courts today, and was told it's not upto the claiment to change the date of the case it's the Judge.

I should wait to hear from the Judge, i never asked if they received any paperwork. Looking back it was a good thing that i left a paper trail with the Courts.

 

Gaz

 

 

Woohoo, good on your court

 

Yes, I was thinking myself it was a good thing you had put that letter into the court.

[GhostDebt]

Hello Gazza,

Did the agreement they provided have any details of the company or is it just a signature strip?

Also is there anything to link the documents together?

As mentioned the NoA doesn't give CL any rights here as its from the Lewis Group.

 

Have you got a basic defence drafted yet?

 

Regards

[Gazza112]

Hi GG

 

No, the two strips don't link or corrispond to each other.

It's funny but when i asked for my SAR from MBNA they only sent me the signed slip. If you look carefully all i signed was a dater protection slip not proscribed terms on that piece.

I've not a basic defence drafted yet, i think i need to get something into the Courts very soon.

 

Gaz

[Gazza112]

Hi All

 

I've come across this defence, don't know weather this is any good to put in. I'm not to sure weather the Judge would accept any paperwork now as it's past the deadline to submit any documents.

 

Here it is

 

 

Claim number: INSERT CLAIM NUMBER Between:

 

NAME OF CLAIMANT(Claimant)

 

and

 

NAME OF DEFENDANT(Defendant)

 

 

Defence

 

 

 

1. This defence is submitted following the order of District Judge INSERT NAME AND DATE

 

2. I am at a considerable disadvantage in preparing this defence in that I have not had sight of the Particulars of Claim so I do not know what has been alleged or claimed.

 

 

3. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and INSERT NAME OF ORIGINAL CREDITOR secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made there under) both at the date of inception and at all times thereafter. Thirdly it must establish that INSERT NAME OF ORIGINAL CREDITOR complied with all of the provisions of the Consumer Credit Act 1974 (“the Act”) in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings. Fourthly, if the Claimant was not INSERT NAME OF ORIGINAL CREDITOR then it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925.) Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

 

4.It is submitted that it is the obligation of the Claimant to prove all of the above matters.

 

5.It is accepted that I applied for a credit card with INSERT NAME OFORIGINAL CREDITOR and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

 

6. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

7. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

 

8. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

 

Valid Default Notice

 

 

9. 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 act.

 

10. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

11. It is noted 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 (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is Further laid down in the 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 2006 (SI 2006/3094).

 

12. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

13. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

14. I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

 

15. I further refer to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

“The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.”

 

16. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

17. For the avoidance of any doubt, in the event of an alleged breach by the Debtor this is 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.

 

 

The Assignment of the Debt

 

 

18. If the Claimant was not INSERT NAME OF ORIGINAL CREDITOR then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

19. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

20. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

21. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

22. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

23. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

24. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

Sums Claimed

 

25. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

26. Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”)

 

27. In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

 

28. In case the Claimant included a claim for interest which is pleaded pursuant to section 69 of the County Courts Act 1984. The Claim for interest pursuant to the County Courts Act is by virtue of County Courts (Interest on Judgment Debts) Order 1991 is denied. Paragraph 2 (3)(a) of the Order states that Interest shall not be payable under this Order where the relevant judgement is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

29. In case the Claimant also claims interest from judgement date until payment. It is not admitted that there are any contractual terms that allow the Claimant to claim this or any interest after judgement.

 

30. It is denied (if it be alleged) that the Defendant is seeking to find “technical loopholes” to avoid alleged liability to the Claimant. on the contrary, in the cases and authority quoted within this defence, it has been confirmed that a lender who wishes to enforce a term of it’s contract before the court should first make sure that the contract strictly complies with the requirements of the law – in this case the Consumer Credit Act 1974 and associated Regulations.

 

31. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

 

Statement of Truth

 

I, INSERT NAME OF DEFENDANT The named defendant believe that the facts stated in this Defence are true

 

 

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

 

 

Dated:

I know that i need to adjust it a bit to suit me.

Gaz

[Gazza112]

Hi All

 

Was just thinking that should i send in a bemused defence, saying i can't give a full defence owing to the Claimant not supplying the full documents i asked for in my defence back in March.

Was going to use the dodgy DN i have and the papers Howard Cohen supplied Yesterday. Stating to the Courts that the with the Unenforceable DN at the Notice of Assignment not being valid to strike out this case.

 

Any advice on what to do, as i want to get something into the Courts on Monday.

 

Gaz