I would appreciate some help please - if no-one can help perhaps they could direct me to to where i can get some info as to how to do this defence; I know the decision to defend is mine but would appreciate some input as to where I stand and how to do the defence and also importantly whether I need to write to Morgan - I am aware that the closk is ticking closer and closer to the d day ! I cannot afford to get legal advice. Please ?

getting sorted is now getting desperate !

Ok, here goes...

Shelley - any opinion is valued - I feel like I am in the middle of a lake without a paddle !! I think if it was only the amount I owed when still chasing Citi; I might make them an instalment offer.....its all the **** interest, etc afterwards and their attitude ! I have my partner checking the statements as we speak !

So challenge them on charging interest, have you looked up legislation on what DCA's can and cant do, what the new owners of debts can and cant do.. have you looked at other Cabot claims at all?????

Perhaps someone could confirm if I am right here ? the way I understand it they must tell me that there is a signed agreement and be prepared to produce it in court ?

NO thats not right, they DONT have to do anything, they present their evidence to a judge, you present yours and the judge decides who is correct, if they rely on reconstructions they SHOULD have to explain to the judge why its been reconstructed but some if not most judges will accept what they say. Its down to you to disprove the reconstruction, I gave you some hints, as much as I can previously.

The Mould wrote for lamb - should I send Morgan's something the same ?

"Prior to the issue of proceedings, I had delivered to you a request pursuant to s78 CCA 1974 (as amended) for production of the agreement that you now mention in your Particulars of Claim and upon which you clearly intend to rely. It will be noted that you disregarded said request.

err, they've given you two reconstructions, the varied terms and the original already, this is what they are relying on in court.

2. You allege in your particulars that you are the assignee of a debt purchased from Bank of Scotland, to this extent, I require a copy of the Deed of Assignment.

You've stated above that you've seen the NoA, that is all that is required by the law of property act *although* you do have a right to see the deed but it'll probably need the judge to agree it before they do it.

3. As I am sure you will be aware, the legislation applicable to assignments of contracts is laid down in the Law of Property Act 1925 s136(1), in this regard, I require a copy of the Notice of Assignment and proof of service thereof, I refer you to s196(4) of said act in respect of statutory notices and the requirements imposed upon service of the same

You've admitted above that you've received it? claiming you havent is perjury.

4. Default Notice, again, I am sure you are aware of the requirements imposed upon creditors under s87 CCA 1974 (as amended) in respect of service of said statutory notice being a pre-condition of enforcement and therefore I require a copy of the statutory notice you intend to rely upon in these proceedings and proof of service of the same.

They dont have to keep a copy, most if not all judges will accept an entry on a database showing you would have been sent it... and besides you've admitted above that you've had it.

5. Termination notice, I require a copy of the termination notice you intend to rely upon in these proceedings and proof of service thereof.

Strictly speaking they dont have to send a termination note, it can be by intent.. taking you to court could be seen as a termination of contract without demanding it in writing.

6. Account statements, I require a copy of any annual statements of account that you intend to rely upon if you allege to have served any such statements. Although 4, 5 and 6 are not mentioned in your particulars, I would be grateful if you should agree to voluntarily disclose said documents as this could enable the possible reduction of any issues in the case and thereby assist the overriding objectives.

Yep, on the right track here... at the very least ask them to justify EVERY charge and interest amount on this debt... where is the clause in the original terms that states you agree to them charging interest once they have purchased the debt from the original creditor.

S.

Thanks shadow for coming back to me : the letter I quoted was just an example of something I did realise I already had some of the stuff....Yes i have been through a lot of the cabot threads - that's why I'm so confused I think there are so many differing opinions on so many threads !

Where do I find the legislation about DCA's ?

As regards the interest :

In the first agreement

Clause w says

"We may at any time and at any period grant you a lower interest rate for any of your purchases, balance transfers and/or cash advances than as set out above. When we do this we will tell you at the time what the rate is; the monthly interest rate will be shown on your statement.

Clause x says

" We do not take into account any changes in our interest rates, fees or charges. We may at our sole discretion change any of these items at any time and introduce an annual or other account fee provided we give you written notice. Which in the case of any items except variation of interest rate shall be given 30 days prior to the changes taking effect. For interest rates details of the variations will be given to you at least 14 days before the change takes effect."

Clause y says

"changes to the agreement - we amy vary these terms and conditions by giving you not less than 30 days notice at any time you may always close this account if you do not accept such changes or additions"

Clause x says

"Assignment - we may assign any of our rights and benefits and your liability on your account to any other person, we may also arrange at any time for any other person to carry out our duties under the agreement. You may not assign your rights or liabilities under this agreement to any other person."

In the later agreement - 12 months after I told them I was having problems (I dispute signing this) they had increased my interest rate the month after I told them about the problems. This has the same clause about a lower rate of interest being charged.

Clause a says

"We will regularly monitor your account and the rates of interest charged. We may at our sole discretion vary the rates of interest charged at any time. In varying interest rates we may consider factors such as our assessment of your credit worthiness (based on how you have maintained your account and information provided by Credit Reference Agencies) or general market conditions. We will always give you notice of any such changes to your rates of interest."

Clause b says

"Changes to the agreement -

we may vary this agreement by giving you not less than 30 days written notice at any time

if we at our discretion relax the terms of this agreement for example by allowing more time to pay we are still entitled to enforce them again at any time."

Clause c says

"Assignment - we may assign any of our rights and benefits and your liability under this agreement to any other person.

we may also arrange for any other person to carry out our duties under the agreement.

The interest rate changed more than twice on the statements. Are these clauses good or bad for me ?

looking at the intial letter stating that they had purchased the debt - the sum due is £0000 and it says annual rate of interest is X% but by the time I had the next letter - dated 15 days later there was already a further £50 on the debt. Does this matter ? have they given me notice ?

If I do ask for the statements and the proof of their right to charge interest - how long do I need to give them to produce.

Thank you so much for getting back to me again

GS

Ok I used the wrong word, dca legislation should have meant dca guidance etc... the OFT guide can be found here http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf, its due for a new update soon but the consultation period is still in place I believe.

See now you are thinking out of the box in relation to the interest they have added in during the 30day period where they are UNABLE to do this.

I'm not sure on your timescales so not sure about the requests... personally I'd be starting to write my defence and adding any queries directly into that.... and you do need to be clear at this point what that defence exactly is.

S.

Thanks - any ideas where I might get the timescales; would the court be able to tell me. Defence writing on the cards for this week-end; don't wnat to be tired whilst doing it. Thank you very much. Will put up the draft defence when I have it - hopefully you will be able to give me input on it !!

Ring the court and ask the final day for filing, its normally date on claim paper + 5 days for service + 14... if you acknowledge service its an extra 14 and then if you agree an extension its whatever

S.

Can you confirm date of issue-which is on top of claim form-from there we can determine exacting timeframes.

Date of issue 27/05 ; have acknowledged service online so I think I have till the 30th to file a defence ! am I too late to write to Morgan's to ask for stuff; as mentioned by shadow in item 6 - oops just noticed you have noticed that yiu have suggested I put it in the defence !

Thank you-input much appreciated;

GS

Hello all - not yet got all the defence down on paper ! had some bad news health wise on friday which sent me reeling (nothing terminal or life threatening but still a shock) so that delayed me a bit.................

If I put in my defence by the 30th and then feel I need to amend it am I allowed to do that or is it set in stone.......

Am trying to get hold of the court to ask then this but they are not the easiest people to get hold of !

Thank you

GS

If you issue a defence and then amend you leave yourself open to costs and the whim of the court whether they accept it or not. You would have to issue an application asking to amend the defence which costs you also.

S.

Thanks - shadow; I'll try and get it all OK then. You're advice is much appreciated I feel such an idiot asking all these questions !

GS

Thanks - shadow; I'll try and get it all OK then. You're advice is much appreciated I feel such an idiot asking all these questions !

GS

The only idiot is the person who realises they need to ask the question and doesnt... everyone else is going through life learning

S.

Thanks:-)

GS

Not by all judges but it seems the norm now, certainly I would prepare yourself to have to defend when a judge states a reconstruction will suffice as evidence, its not clear whether DJ Waksman in Carey wanted this to happen but it is happening so we need to be aware.

 

 

 

Harrison is quite unique, for one it went for the claimant and for two the defendant was able to show a massive paper trail which convinced the judge that he had not received the t&c with the agreement and therefore the agreement didnt contain the prescribed terms. This was due to even keeping the envelopes of every letter they had sent him. Further there were harassment issues with MBNA and Link phoning the claimant multitude of times from unlisted or unrecorded phone numbers and then denying it.

 

As to expanding on what makes a reconstructed agreement incorrect I really feel you need to understand the issues yourself, there is no paint by numbers for this I'm afraid and no thread listing everything. Each case falls or stands on its own merits so go through the agreement with a fine tooth comb, compare the reconstructed agreement with the original ifyou have it or the statements, look at the t&c etc and check through the regulations both for the CCA1974 and the credit/default notices regulations too.

 

For an instance where the interest rate is not correct on the reconstruction look up Kotecha vs Phoenix recoveries Jan 2011.

 

S.

The prescribed terms were contained in the document.

Sorry ? Don't quite understand ?

GS

Sorry ? Don't quite understand ?

GS

I have an original MBNA application form and the prescribed terms are contained overleaf. In Harrison the agreement was deemed compliant.

I'm informed that the Judge did not enforce the agreement due to breaches of schedule 1 and the fact that harassment had occurred.

thanks

gs

If you issue a defence and then amend you leave yourself open to costs and the whim of the court whether they accept it or not. You would have to issue an application asking to amend the defence which costs you also.

 

S.

Just a thought! Have you checked if you are eligible for fee remission?

If you are in receipt of certain benefits or on a low income you maybe eligible to exemption/remission from fees. I note you have some problems getting information from your courts so I have made a few notes below which may be of assistance.

If eligible, the form you require is: EX160A - Called "Court fees - Do I have to pay them"?

Remission 1 is available to you if you provide evidence that you currently receive any one of the following five means-testd benefits:

1) Income Support

2) Income based Jobseeker's Allowance

3) State Pension Guarantee Credit

4) Working Tax Credit (but not in receipt of Child Tax Credit)

5) Income related Employment and Support Allowance (ESA)

If you are in receipt of one of the five means-tested benefits you must provide evidence in the form of:

An official letter or entitlement notice from the apprpriate benefit provider dated no more than 1 month old. It must contain your title, full name, address and post code and confirm current receipt of benefits.

If you receive State Pension Guarantee Credit or Working Tax Credit your evidence letter must be dated within the last year and refer to the current financial year.

If the above does not meet your criteria, all is not lost. There is still a remission facility for low income people whether they be single, a couple or a family. I have taken the liberty of assuming you are part of a couple for the following example.

Firstly, you need to calculate your GROSS income. If there are no children the limit is £18,000. This will increase if there are children to be considered. Let me know and I will provide more info. Evidence of you/partners income will be required at the time of application for remission of fees.

There is also another route which is 'Exceptional Circumstances'.

If you are not eligible for remissions 1/2/3, you may not have to pay a court fee if you have suffered an unexpected events, which has seriously affected your financial position. If you can prove the circumstance is exceptional, the Court Manager has the power to grant a full or partial remission.

The court Manager is the only person who can make the decision based on the information provided at the time the court fee is due. The Court Manager's decision is final and cannot be appealed.

However, please note: You cannot use an exceptional circumstance to make a retrospective fee remission application.

If you have already paid a fee within the last 6 months and think you could have applied for a remission at the time, then you can appply to the court for a refund but this must be only the court where you paid the original fee.

Shelley

I am ploughing the various threads and am trying to build up a defence, these are my initial thoughts :

I have two Recon agreements one from 2004 which is when I took out the card and one from 2007 which is actually dated 18 months after I told citi I had problems. I know categorically that I would not have signed the 2007 agreement. Both agreements state that that I would have recived notification of interest rate changes up or down..........In 2006 immediately after I told them I was having problems the interest rate increased. I was not notified of this, by this time I was keeping all the correspondence I was receiving from them. The interest rate on the 2007 agreement is the same as it was increased to in 2006. Can I argue that the original agreement was varied ? Can I argue that Citi had no right to charge me interest at the new rate as they had not notified me.

There is a default on my credit file since the same date as the 2007 agreement; and according to statements up to 2010 which I received via SAR to citi they stopped charging me interest as at this date. Note I had not received a statement since 2006. Could this agreement have anything to do with the default ?

Can I use the fact that there is absolutely no way that I would have signed the 2007 agreement as part of my defence ?

From mid to late 2006 I contacted citi on numerous occasions to attempt to resolve the situation - I have correspondence on file from Citi asking me to contact them, which includes a letter refusing to put me on a reduced payment plan and the next statement increases the interest rate. The SAR from Citi included my I & E sent to them. Each time I rang them I got through to an overseas call centre who refused to put me through to a UK and said someone would ring me back - they never did. I made a token payment to them - need to check the date. In the SAR I received the call log which says that everything was purged ? and no correspondence was included. Can I use this as a defence - I know that by doing this that I am admitting part of the debt ? I think I am willing to accept the amount from when I told Citi that I was having problems ? Can I do this ?

From 2007 onwards I did not receive any further correspondence from Citi until I received a letter with NOA in mid 2010; I had assumed that they had written off the debt. Does the fact that I gave up trying to contact them after about six months go against; the circumstances were at that stage that my parent was dying of terminal cancer and of course my priorities were with them not Citi.

Do I owe the money to Citi or Cabot - I did receive one of the usual mock up NOA but have not received a Default Notice nor a Termination Notice from either. Can I use the fact that Citi waited some years without any contact to me before selling the debt to Cabot as part of my defence.

Upon receiving the NOA from Cabot I immediately began receiving letters from them adding interest at 12%. No initial letter from them states that they are going to charge interest (need to check further in) and so they have not given me notice that they are going to charge interest contrary to the Recon agreements they have given me. Can I use this this to dispute the amount owed ? By the way their interest charges have taken it above the £5000 mark.

There are charges and PPI on the account both about £500 each. Can I use this as part of the defence ?

I have written to Cabot on several occasions for a copy of the CCA - received the two Recon, asked them again for them to confirm that they have signed copies - CPR 2008. No response.Can I put this in my defence.

I know that only I can decide but should I offer them the 2006 sum owed to Citi claim to citi for the PPI , etc? (some 3000 below current amount outstanding) payable by instalments and see what happens - I may be in receipt of some money in a few months which I could use to pay the remaining amount outstanding; can't at the moment due to personal circumstances.....

Thanks for reading - may seem like gibberish !!!

GS

OOps forgot to mention that the Particulars of Claim are very vague ?

I am ploughing the various threads and am trying to build up a defence, these are my initial thoughts :

 

I have two Recon agreements one from 2004 which is when I took out the card and one from 2007 which is actually dated 18 months after I told citi I had problems. I know categorically that I would not have signed the 2007 agreement. Both agreements state that that I would have recived notification of interest rate changes up or down..........In 2006 immediately after I told them I was having problems the interest rate increased. I was not notified of this, by this time I was keeping all the correspondence I was receiving from them. The interest rate on the 2007 agreement is the same as it was increased to in 2006. Can I argue that the original agreement was varied ? Can I argue that Citi had no right to charge me interest at the new rate as they had not notified me.

 

There is a default on my credit file since the same date as the 2007 agreement; and according to statements up to 2010 which I received via SAR to citi they stopped charging me interest as at this date. Note I had not received a statement since 2006. Could this agreement have anything to do with the default ?

Can I use the fact that there is absolutely no way that I would have signed the 2007 agreement as part of my defence ?

 

From mid to late 2006 I contacted citi on numerous occasions to attempt to resolve the situation - I have correspondence on file from Citi asking me to contact them, which includes a letter refusing to put me on a reduced payment plan and the next statement increases the interest rate. The SAR from Citi included my I & E sent to them. Each time I rang them I got through to an overseas call centre who refused to put me through to a UK and said someone would ring me back - they never did. I made a token payment to them - need to check the date. In the SAR I received the call log which says that everything was purged ? and no correspondence was included. Can I use this as a defence - I know that by doing this that I am admitting part of the debt ? I think I am willing to accept the amount from when I told Citi that I was having problems ? Can I do this ? What is it you are actually trying to accomplish from this?

 

From 2007 onwards I did not receive any further correspondence from Citi until I received a letter with NOA in mid 2010; I had assumed that they had written off the debt. Does the fact that I gave up trying to contact them after about six months go against; the circumstances were at that stage that my parent was dying of terminal cancer and of course my priorities were with them not Citi.

 

Do I owe the money to Citi or Cabot - I did receive one of the usual mock up NOA but have not received a Default Notice nor a Termination Notice from either. Can I use the fact that Citi waited some years without any contact to me before selling the debt to Cabot as part of my defence.

 

Upon receiving the NOA from Cabot I immediately began receiving letters from them adding interest at 12%. No initial letter from them states that they are going to charge interest (need to check further in) and so they have not given me notice that they are going to charge interest contrary to the Recon agreements they have given me. Can I use this this to dispute the amount owed ? By the way their interest charges have taken it above the £5000 mark.

 

There are charges and PPI on the account both about £500 each. Can I use this as part of the defence ? I wouldn't think so personally. Especially if you had requested that PPI be included. You should be claiming both of these back now plus restitution interest, which can add up to quite a tidy sum. Once you have been reimbursed, you could use that money to offer a full and final settlement to Cabot, seeings as they would have only bought your debt for a nominal amount.

 

I have written to Cabot on several occasions for a copy of the CCA - received the two Recon, asked them again for them to confirm that they have signed copies - CPR 2008. No response.Can I put this in my defence.

 

I know that only I can decide but should I offer them the 2006 sum owed to Citi claim to citi for the PPI , etc? (some 3000 below current amount outstanding) payable by instalments and see what happens - I may be in receipt of some money in a few months which I could use to pay the remaining amount outstanding; can't at the moment due to personal circumstances.....

Thanks for reading - may seem like gibberish !!!

GS

OOps forgot to mention that the Particulars of Claim are very vague ?

The rest is out of my knowledge and I expect more experienced Caggers will be along with advice.

Shelley

Thanks shelley I am basically trying to reduce the amount owed, Citi continued to charge me interest despite not sending me statements nor contacting me for over 12 months after I had informed them of my problems, I had continued to try to contact them to resolve the situation for several months and they were not getting back to me. I think I can attempt to reclaim the PPI and this is what I really mean - I have not yet made a claim as I felt that by trying to claim back the PPI I would be admitting to owe them the money.

GS

Any kind of advice would be appreciated ? Thank you

GS

Really struggling now - is it worth me contacting them to ask them to get an extension on the action in order for me to look at ways to settle this or would they just blow me away ?

GS

Bump

thanks