I desperately want to avoid a CCJ, so am a bit paranoid about dealing with them. What happens if they resume the court action? Do I get the chance to respond? Many thanks

Hi Guys I'm still battling it out with Restons and this is their latest salvo. It sounds like nonsense to argue that the prescribed terms were on the back of the form. We're talking nearly 20 years ago and I have no recollection about the form at all, but would have thought that if anything was on the back of an application form it would be generic terms and conditions and not the prescribed terms. I'm unsure about the reference to the 2004 regulations however. Any thoughts on how I should respond would be greatly appreciated. Thanks for all that you do. Restons Scan.pdf

Hello again everybody. The latest from Cabot is attached. They are tenacious for sure. Am I right in thinking that the reconstituted agreement is not enough to satisfy the s 77/78 request for a 1998 agreement? Any suggestions for how I should respond would be much appreciated. Many thanks Cabot 18 11 16.pdf

Thanks all. That sounds like a result. Thanks for all that you do. You have given me invaluable help and advice.

I filed the defence on 23 September so 33 days are up. Do I need to do anything regarding the court?

Hi Guys Sorry - it took me a while to get the use of a scanner. Restons sent their letter , a copy of the original application form (as attached), and a print out of all of the statements going back to 1998. They clearly think that the copy application form is not enough to satisfy the s 77/78 CCA74 request, and state that in their letter that "legal proceedings remain on hold". Should I write back to them with any kind of offer, or should I invite them to cancel the court action? Many thanks for your help Cap One Scan.pdf

Hi guys and gals This is the latest from Restons. I would be very grateful for your thoughts and advice. Many thanks Reston 18 10 16.pdf

Yes - short and sweet. I'll take out the references to the previous correspondence with Cap One. Thank you for your guidance. S

Hi all Sorry for the previous faux pas. Redacted documents now attached; one letter from Cabot and one from Restons. I have drafted up the following as a defence and would be grateful for any comments before I lodge it. Thank you all again in advance for your help. Defence The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies upon CPR r 16.5(3) in relation to any particular allegation to which a specific response has not been made. The Defendant has in the past had an agreement with Capital One (Europe) Limited (Capital One) dating back to 1998. As the agreement was entered into 18 years ago, the Defendant does not recollect the specific details. Pursuant to s. 77-79 of the Consumer Credit Act 1974 (CCA74) the Defendant requested a copy of the agreement and the terms and conditions from Capital One on 12 June 2012, prior to the issue of proceedings. Capital One confirmed to the Defendant in writing that it did not have a copy of the agreement, and was unable to produce a satisfactory reconstituted version. Upon receipt of the Claim Form, on 1 September 2016, the Defendant again made a request pursuant to s. 77-79 CCA74 for the Claimant to provide a copy of the original agreement and the terms and conditions. The Creditor has replied in writing confirming that it does not have a copy of the original agreement, and that it will ask Capital One to provide a copy. Both Capital One and the Creditor are therefore in breach of their statutory obligation to provide a copy of the original agreement within the timescale required by s 77-79 CCA74. The Creditor acknowledges in its reply to the Defendant’s s.77-79 request that the agreement is unenforceable until it is able to provide a copy of the original agreement. As the agreement pre-dates the Consumer Credit Act 2006, the Claimant is obliged to demonstrate that the prescribed terms of any alleged credit agreement are contained within the signature document. Absence of such proof means that the court would be prevented from enforcing the agreement under s. 127(3) of the CCA. The Claimant has confirmed that it is unable to produce evidence that the prescribed terms of any alleged credit agreement are contained within the signature document. The Claimant asserts in the Particulars of Claim that the agreement with Capital One was assigned to the Claimant on 24 September 2015. The Defendant has received no notice of assignment, and is therefore unable to ascertain whether the Creditor has any legal right to enforce the agreement. The Defendant has asked the Claimant’s solicitors to produce evidence of the assignment but the solicitors, in a letter dated 12 September 2016, have refused to do so. Following receipt of the Claim Form, on 1 September 2016, the Defendant wrote to the Claimant’s solicitors and requested by way of CPR 31.14 that the Claimant’s solicitors provide copies of the documents referred to in the particulars of claim. The Claimant’s solicitors, in a letter dated 12 September 2016, have refused to provide those documents on the basis that the particulars of claim do not "mention" any documents. However, the particulars of claim refer to a "contract" and an "assignment", which documents the Claimant is obliged to produce. The Claimant, having failed to provide any evidence of the existence or terms of the alleged agreement, nor evidence of the alleged agreement having been assignment to it, and being in breach of its obligations under s.77-79 CCA74 and (as to its solicitors) CPR 31.14 the Claimant is put to strict proof to show: that the Defendant entered into any alleged agreement; that the prescribed terms of any alleged credit agreement are contained within the signature document; how the amount claimed has been arrived at; and that the Claimant has the legal right to enforce the alleged agreement. [*]In accordance with rule CPR 16.5(4) the Claimant must prove that the sums claimed are owed. In the alternative, as the Claimant alleges that it is an assignee of the sums claimed but has refused to provide evidence of any such assignment, it is denied that the Claimant has any right make the claim as it is in contravention of s. 136 of the Law of Property Act 1925 and s. 82A CCA74. R Red 1.pdf C Red 1.pdf

Hi all I've had what I assume are the standard responses from Cabot and Restons, copies attached. I need to submit my defence to the CC claim form. Is there a template defence that I could look at. I have looked over the following from Dire1's sainsburys credit card "debt" thread, copied below, which looks good to me, but any thoughts would be welcome. Thank you for your continued support, guys. Defence 1 The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made. 2. I have in the past had an agreement with Sainsburys but do not recognise this specific account number or recollect any outstanding debt and have therefore requested clarification by way of a CPR 31.14 and section 78 request. 3. I am unaware of any legal assignment or Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1) from either the original creditor or Cabot. 4. I do not recall ever receiving a Default Notice pursuant to s.87(1) CCA. or any advance notice or warning. Therefore I have made a CPR 31.14 to Restons and CCA section 78 request to Cabot. 5. On receipt of this claim, I the Defendant sent a request under the customer credit Act 1974,by way of a section 78 for a copy of the agreement and payment of the statutory fee of £1.00 to the Claimant Cabot on 15 August 2016. Cabot have sent an acknowledgement dated 16 August 2016 but remain in Default of the said S78 request, as at today. A further request was made via CPR 31.14 to Restons, requesting disclosure of documents on which the Claimant is basing their claim. Restons have responded saying none of the documents requested are mentioned in the particulars of claim. The Particulars of Claim states 'contract' therefore There is a valid case to request documentation confirming the contract under CPR 31.14. The claimant has not complied. 6. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to: a) show how the Defendant has entered into an agreement b) show how the Defendant has reached the amount claimed for and c) show the nature of the breach and evidence by way of a Default Notice pursuant to sec 78 CCA1974 d) show how the Claimant has the legal right, either under statute or equity to issue a claim 7. As per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed 8. On the alternative, as the Claimant is an assignee of a debt, 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 9. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief. Cab 1.pdf Res 1.pdf

Thank you, dx. I will review once I get back from holiday. Many thanks for your kind assistance.

Many thanks for responding so quickly, dx. And thank you for the advice. I calculate that I need to lodge my defence by 4 October - I guess I need to let the timetable in the s78 and CPR31.14 run out before I do so?

Hi Guys I thought this one had gone away when CAP One (the original creditor) couldn't produce the agreement, but Restons are now on the case. Answers to your initial questions below: Name of the Claimant ? CABOT FINANCIAL (UK) LTD Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to. 26 AUGUST 2016 Date of issue XX + 19 days ( 5 day for service + 14 days to acknowledge) = XX + 14 days to submit defence = XX (33 days in total) - ^^^^^ NOTE : WHEN CALCULATING THE TIMELINE - PLEASE REMEMBER THAT THE DATE OF THE CLAIM IS DAY 1 [example: Issue date 01.03.2014 + 19 days (5 days for service + 14 days to acknowledge) = 19.03.2014 + 14 days to submit defence = 02.04.2014] = 33 days in total What is the claim for – the reason they have issued the claim? Please type out their particulars of claim (verbatim) less any identifiable data and round the amounts up/down. "PAYMENT OF OVERDUE BALANCE DUE FROM DEFENDANT UNDER A CONTRACT BETWEEN THE DEFENDANT AND CAPITAL ONE DATED ON OR ABOUT APR 07 1998 AND ASSIGNED TO THE CLAIMANT ON SEP 24 2015" What is the value of the claim? £14,058.98 Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account? CREDIT CARD When did you enter into the original agreement before or after 2007? BEFORE Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. ASSIGNED TO CABOT Were you aware the account had been assigned – did you receive a Notice of Assignment? NO (IT HAS PREVIOUSLY BEEN THROUGH AKTIV KAPITAL, LOWELL, BRIAN WHATSHISNAME - THE SOLICITOR) Did you receive a Default Notice from the original creditor? I THINK SO, BUT DON'T HAVE COPY Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? NO Why did you cease payments? OUT OF WORK FOR 5 YEARS What was the date of your last payment? AUGUST 2012 Was there a dispute with the original creditor that remains unresolved? NO, APART FROM NOT BEING ABLE TO PROVIDE AGREEMENT Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? YES - PAID £11 PER MONTH FOR FIRST SIX MONTHS, THEN £1 A MONTH UNTIL I STOPPED PAYING IN 2012 What you need to do now. I HAVE THE CPR31.14 REQUEST READY TO GO, AND PLANNED TO MAKE ANOTHER S78 REQUEST TO CABOT (I ORIGINALLY SENT ONE TO CAP ONE). I HAVE ACKNOWLEDGED RECEIPT OF THE CLAIM FORM VIA THE MONEYCLAIM WEB SITE, BUT NOT LODGED A DEFENCE. I GO ON HOLIDAY TOMORROW FOR 2 WEEKS, SO WANT TO BE SURE THAT I HAVE DONE ALL I NEED TO BEFORE I GO. MANY THANKS IN ADVANCE FOR YOUR HELP, GUYS.

I thought my latest letter to Freds might interest or amuse some of you. Thank you for your letter dated 25 February, 2013. Your continuing failure to address the entirely reasonable questions raised in relation to the alleged reconstituted credit agreement that your clients produced with their letter of 18 June, 2012 has led me to review this matter more fully. On 16 July, 2012 I wrote to your client pointing out that the reconstituted agreement contained an error in the calculation of the rate of interest due. In extensive subsequent correspondence your clients have failed to offer any explanation for this error. Clearly an error such as this casts considerable doubt on the veracity of the reconstituted agreement and it cannot reasonably be considered a true copy of the original. In a letter dated 15 August, 2012 your client wrote suggesting that it had sent a copy of a signature page from the original agreement with its letter dated 18 June, 2012. No such copy was received and subsequent requests to produce a copy have been ignored. On 11 July, 2012 I made a subject access request (SAR) to your client under the provisions of the Data Protection Act 1998. Your client has still not dealt with my request, despite their statutory obligation to do so. They have however sent me a cheque in the sum of £10.00 without explanation. They have also written to me acknowledging an application for a refund of Payment Protection Insurance that I did not make. They then wrote denying the application. I cannot recall as far back as 1998, when your clients allege the agreement was entered into, but the only conclusion that I can draw from this chain of events is that no credit agreement ever existed. If this is the case you will be aware, as will your clients, that any debt is unenforceable. You will also be aware that the simple response to this letter would be to produce a copy of the original alleged credit agreement, but your clients have previously stated in writing (15August, 2012) that they do not hold a copy. I await your response with interest. Yours faithfully,

Thanks CitizenB. No, I never did get the SAR. I only wanted it to see if they had a copy of the original credit agreement, or the copy signature that they claimed to have. It's pretty clear now that they don't so I wasn't really bothered about it. I wasn't going to make a fuss about it for so long as they are leaving me alone, which they are for the present. Do you think I should make the complaint to the Information Commissioner in these circumstances? I have this irrational fear that if I irritate Crap One they will have another dig around in their archives and come up with the CCA!

Very interesting, thank you. In my case the reconstituted agreement contains a calculation of the APR being X% plus bank base rate giving a total of Y%. Only trouble is bank base rate on the date they say the agreement was signed does not tally with the calculation contained in the reconstituted agreement. I realize that APR is not a prescribed term, but it seems to me that this error gives rise to the suspicion that the reconstituted agreement shows terms as they existed at some other date. If that is the case how can they, or I, be confident that it is a true copy of the original.

With help from CAG I've been doing battle with Capital One for the past year. I CCA'd them and got a reconstituted agreement that stated the wrong interest rate so I've been arguing with them that they have failed to provide a true copy. I've had perodic letters from Freds and one from Bryan Carter. In each case I explained that I had not been provided with a true copy of the CCA and until I received one they should not be attempting enforcement. It seems pretty clear after all this time that they don't have a copy of my agreement, which dates back to 1997/8. Nor do they have a copy of my signature from the agreement which they claimed to have at one time. Last June I sent them a SAR. After 35 days they wrote asking me to prove my identity. I pointed out that they had been corresponding with me at the same address for more than four years but gave them the id info anyway. In subsequent letters to Freds and Bryan Carter I pointed out that in addition to having failed to prove a true copy of the CCA, their clients were also seriously in breach of their obligations in respect of my SAR. Naturally, no one bothered to respond to me on these points. This morning I received a cheque for 10 pounds from Cap One. No explanation, no covering letter other than a remittence advice. I'm guessing its a refund of the fee I paid for the SAR. But why? And why now? Has anyone else had this sort of thing? I can't tell whether this is their way of throwing in the towel, in which case I should keep my head down, or whether I should proceed with a complaint to the Information Commissioner. Presumably, simply refunding the fee does not rid them of the obligation to comply with my SAR request? Many thanks in advance for any thoughts you might have.

Thank you all. I doubt they'll want to make a test case out of me, so I'll rest more easilly for now. They haven't actually supplied a copy of the scanned signature so I've asked then to do so now, if they actually have one.

I'd be interested to get the Brigadier's view on this, if he's around?

Ah - thank you!

UE?

Two things have happened this week. Firstly Cap One wrote in response to my SAR request, long after the forty day time limit was up, saying that they couldn't deal with my request as I had not signed the letter. Lots of advice already on CAG for that one so I will respond in suitable terms. Today I received a response to my letter telling them that they had failed to provide me with a true copy of the CCA. They ignore the fact that the interest rate was wrongly calculated in the copy they provided, and they claim to have sent me a "scanned copy of the signature page from the Agreement," which they haven't. They say in terms, "We do not retain the original of the agreement which is returned to us, but scan the signature portion of the agreement and retain this within our account system." That, I would have thought, was "game over"?

Thank you, Brigadier. I'll get on to the bank to cancel the standing orders. I very much appreciate your time and attention with all of this.

I've now got three letters (one for each account) from Aktiv Kapital saying that as MBNA cannot produce the CCA they are putting collection activities on hold. I've been paying nominal amounts to each account each month. Should I stop these payments now?

Many thanks Brigadier and (opps - what happened to the other guy?). I'll send this off recorded delivery, no signatures, tomorrow and send a copy to the Data Controller. S