This is for an old overdraft that may or may not be statute barred but no one will reply to me to tell me!

Court papers issued,

filed defence asking for all paperwork etc and proof not statute barred,

Northampton then asked for some kind of form to be filled out where Restons asked for a three month stay

and its now been transferred to local court and

I attach what the Judge has asked for.

Need some advice on what I do as this arrived yesterday and dated 26th so I guess 5 days service plus 7...

.Interesting to see that Judge has

a) Referred to mediation and Restons have previously put on their form before transfer that they wont enter into mediation.

b) Judge has asked for us to liase, but Restons wont enter into correspondence with me at all

c) The court fee is nearly as much as the claim

Hopefully this will help, perhaps a mod can delete the two above please as not to confuse issues

Hi andrew

You should disregard the mediation...and focus on point 5 onward,s...It important that you follow the directions to the date...don't be late.

Standard Disclosure by the date stated...and if you wish you can submit a Witness Statement in support of your defence..again by the date stated.

Should either party fail to comply with those directions or are late..then either party can ask for sanctions to be imposed and even ask that the claim/defence be struck out...so follow the dates.

Regards

Andy

Thank you for your reply. Just a couple of questions.

1) When you say disregard mediation, do you mean not contact them etc as its a waste of time?

2) Would this now be a good time to go through the process of issuing the three letter process to Cabot to get them into estoppel and furthermore find a latter to push them to admit or not admit that the debt is statute barred?

The three letters does not work. Do not follow the info in fotl sites. You'll find yourself with a lot more problems if you do

Can I ask why I would have more problems and what you suggest as the way forward?

Fotl advice sites give out bad info and say it works. The truth is it doesn't as it works on some magic thesis that some very shady guys dreamt up.

Of course you can use it if you want, but 99% of the time you'll end up in a lot of trouble. Especially if the companies start a court claim which the named companies almost always do when someone tries fotl stuff. To them it shows you have no understanding of the law so you'll possibly be a very easy target.

They already have, read the pdf's I have on the first thread as it has got to that stage!

 

c) The court fee is nearly as much as the claim

The hearing fee of £3335.00 will be a mistake as the max for small claims where the claim is more than £3k is £335.00.

It did seem a bit extreme to me to be fair.

Follow the Fotl way and find out the hard way = the reality of it?

Which is why I've played it the way I have so far with facts and asking for strict proof which has not been supplied. I see the judge has asked for original documents to be provided which I think the claimant will find hard to produce as they would have by now if they had them

Cabot rarely ever have the correct paperwork and try to pull the wool over the eyes of people

They don't have to provide docs unless ordered to do so or until the time to exchange witness statements where they have to disclosure all they intend to rely on. Restons are slippery and even if they did have the docs they usually hold back until the time to exchange WS.

Any advice on the best way to find out of the debt is statute barred....is there anything I can do to force their hand into disclosing if it is or isn't. I have a feeling it is very very close to the six years before papers were issued etc

You dont have to prove it is, they have to prove it isnt. However, you need to check via statements/bank accounts etc to be 100% sure. Also note that these muppers will try and say a small payment was made around 5 years ago. This is technically fraud, but for some reason the officials let it slide as they state its an admin error.

Thank you for your reply. Just a couple of questions.

1) When you say disregard mediation, do you mean not contact them etc as its a waste of time?

2) Would this now be a good time to go through the process of issuing the three letter process to Cabot to get them into estoppel and furthermore find a latter to push them to admit or not admit that the debt is statute barred?

They wont mediate...you can ring the service and ask...but I doubt the claimant will participate..that will go in your favor.

Lets forget all the 3 letters nonsense ... and keep this thread on track.

Can you post a copy of your defence and the claimants particulars of claim (verbatim)

Andy

I will email the service so there is a paper trail. And I will upload defence shortly

I have held off posting the above as I wanted to see what the outcome of contacting the mediation service brought

and to my surprise Restons have said they want to go to mediation.

I believe that they feel this is the best course of extracting some money out of this

as I also had a letter from them that said that they had asked their client for all the documentation relating to this matter

and would ''endeavour'' to provide it to me in due course.

I other words they do not have any paperwork relating to an old account opened in 1999

and they are floundering looking for an angle to get something out of it?

thoughts on this and maybe this is a good time in the next day or so to upload their claim and my defence?

Standard course as per the 100s of threads already posted here...mediation will fail..sooner you post the particulars and defence sooner you will get advice.

Verbatim.

Claim

The Claimant claims payment of the overdue balance due from the Defendant under a contract between the Defendant and Halifax-Current Account dated on or about Sept 1998 and assigned to the Claimant on Jul 8 2014.

Defence

I have no agreement with the Claimant and despite asking the Claimant for all the documents that they intend to rely on I have not received the following

1) The original signed agreement

2) Any default notice that should have been served

3) Any termination notice

4) The deed of assignment or deed of novation whichever is applicable

5) Statements of account

6) A delegated tripartite instrument of novation

7) Proof the alleged debt is not Statute Barred

8) Replies to numerous emails asking for documents or proof of the alleged debt from Restons

9) I believe the claim to be vexatious by the Claimants Solicitors.

This is the full claim and defence

This is what we would normally draft as a holding defence..which puts the claimant to strict proof to disclose.....

Example

Particulars of Claim

1. The defendant entered into a credit agreement described by the original creditor as halifaxicon - current account

and having account number XXXXXXXX (the account)

2.The claimant, a UK limited company with company number XXXXXXX, is the assignee and legal owner of all righs previously

enjoyed by the original creditor in respect of he account.

3. The defendant is indebted to the claimant in respect of the account in the sum of £3340.

4. The claimant claims the said sum of £3340, plus costs.

1. It is admitted with regards to the Defendant entering into an Agreement referred to in the Particulars of Claim ('the Agreement') with the original creditor XXXXXXXX Bank.

2. The defendant denies/ contends that the account exceeded the agreed overdraft limit / or / is due to overdrawing of funds but is as a result of unfair and extortionate bank charges/penalties being applied to the account.

3. I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbeyicon National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

4. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer crediticon Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

5. The claimant is denied from added section 69 interesticon within the total claimed that as yet to be decided at the courts discretion.

Remove 5 if they have not claimed section 69 interest

6. As per Civil Procedureicon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

The claimant is also put to strict proof to:-.

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

7. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 4 March 2014 namely the Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request.

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Regards

Andy

So can I ask what I do now as my defence is in?

Participate in mediation and then follow the courts directions as per your first post.

Okay I'm with you, is there anything I can do to force Restons to produce documents if they have any?