9Lives v Caboot

[tomterm8]

This is a start of a witness statement you might use, you WILL need to edit it to make you add anything else you know that you intend to rely on, and make sure everything is entirely truthful, since there is not a lot of detail on the thread:

 

Witness Statement

 

In X County Court Claimant(CLAIMANT)

Between and Your Name(DEFENDANT)

 

 

 

FAILURE OF THE CLAIMANT TO ABIDE BY THE PRE-ACTION PROTOCOL

 

1. No notice of the intent by the claimant to pursue a legal action was received before the claimant commenced such action, neither was adequate information to investigate the claim provided by the claimant. I respectfully request that the court considers these issues when it comes to awarding costs.

 

2. No notice of assignment was recieved before the action was commenced, and therefore I do not believe that the claimant had any standing before the court when the action started. A notice of assignment has been recieved subsequently to the proceedings starting, but the notice is confusing and does not disclose any apparent right of action.

 

3. I do not have in my posession a copy of any default notice, or the original contract, or other documents to substantiate the amount of the claim or the legallity of the claim. I have asked the claimant to provide these in a letter dated xth (as a request for disclosure), but in their disclosure statement they offer no copies of the original statement, deed of assignment or default notice.

 

4. Consequently, I am unable to determine if there is any legal cause of action at this time, and I assume that their failure to disclose these documents implies that they do not exist.

 

5. Subsequently, I do not see how the claimant intends to proceed to prove its claim.

 

6. At this stage I have not had sight of the original credit agreement or application, I intend to file a skeleton argument with the court once I see this document if I believe it is not valid or enforceable in any way.

 

7. I note that in the claimants’ statement of case (paragraph 1) they state that their standing in this case is founded on an assignment. The Claimant has not served upon me or filed any document of assignment. It further makes the claim that the notice of assignment was properly served because they abided by the requirements of the consumer credit act 1974 s176(2).

 

8. I dispute that the notice of assignment was correct, since I believe it includes substantial unlawful charges. My understanding is if such notice of assignment was inaccurate, it would invalidate the assignment.

 

9. No mention, or requirement to produce a notice of assignment is introduced in any section of the act, and I respectfully submit that the proper construction of the legislation is that service under s176 of the act does not supersede the requirements of the law of property act 1925.

 

CONSIDERATIONS ON RIGHT OF ACTION IN RELATION TO REGULATED AGREEMENTS

 

10. In a letter dated X, the claimant alleges that they obtained the rights and not the duties of the alleged contract. they also state they are the owner of the debt. This is confusing terminology, since the requirements of s189(1) of the Consumer Credit Act 1974 in relationship to ownership are

 

189.

Definitions.

— (1) In this Act, unless the context otherwise requires—

…

"owner " means a person who bails or (in Scotland) hires out goods under a consumer hire agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer hire agreement, includes the prospective bailor or person from whom the goods are to be hired;

 

11. The claimant states they have purchased the benefits and not the obligations from a creditor. They are not an owner under the consumer credit act 1974. Further, they are not a creditor under the act which defines creditor as:

"creditor " means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

12. I respectfully submit the claimant has not, at this date, shown that they have standing in the county court on this action, since the jurisdiction of the court is specified in the consumer credit s141.

 

Jurisdiction and parties.

— (1) In England and Wales the county court shall have jurisdiction to hear and determine—

(a)any action by the creditor or owner to enforce a regulated agreement or any security relating to it;

(b)any action to enforce any linked transaction against the debtor or hirer or his relative,

and such an action shall not be brought in any other court.

 

13. To the best of my knowledge, no jurisdiction lies under the consumer credit act 1974 for the county court to enforce an agreement except by the creditor or owner of a regulated debt.

 

FAILURE OF THE CLAIMANT TO PROVIDE AN ENFORCEABLE CREDIT AGREEMENT

 

14. On DATE the defendant sent a request under the consumer credit act for a true copy of the executed Credit Agreement, and a statement of account detailing the principal, and all charges and fees made in respect of the debt, the claimant received the request on DATE by recorded delivery and the claimant has far failed to send the defendant the requested information within the time limit prescribed by law or at all.

 

15 While the blank document provided by the claimant may comply with the requirements of the Consumer Credit Act 77-79, it does not provide sufficient proof that:

the document provided was legible when provided to be s61(1)©

the document was signed in the prescribed manner required by s61(1)(a)

 

16. the claimant states in a disclosure statement that they have available a copy of the application form,

however, an application form may be void under s59(1) of the consumer credit act 1974, and does not itself necessarily describe the terms of the agreement, since until executed either party may have renegotiated the contract, or pulled out of the contract.

 

17. Further, the requirement of s127 (3) of the consumer credit act 1974 is that unless the court is satisfied that a document containing the debtors signature and all prescribed terms exists the court is precluded from enforcing this agreement. Since I was unaware of the requirements of the consumer credit act 1974 at the time of signing any application form, I do not know whether the agreement is enforceable at this time.

 

UNLAWFUL CHARGES AND INVALID DEFAULT NOTICE

 

18. The claimant has not provided copies of the original statements of account for the period of the agreement, and has only provided its own statement of account at the current time. It indicates no intention to introduce these documents into evidence. I am unable to say, and consequently put the Claimant to strict proof, that the amount of claim is accurate.

 

19. The claimant has not provided any evidence as to when any default notice was served, or what method that default notice was served. I deny that any default notice was ever received by me that was correct within the requirements of the act, and put the claimant to strict proof that such a document has been sent.

 

20. Further, I dispute that the default notice was accurate, since I believe the amount claimed contains penalty charges, which are unlawful at Common Law, under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. The Default Notice had to be accurate to be enforceable; the inclusion of penalty charges renders it legally invalid.

 

21. Where not otherwise mentioned, I put the claimant to strict proof of each claim made in both its statement of case, and witness statement.

 

This witness statement is true to the best of my knowledge,

 

TYPE YOUR NAME

[tomterm8]

Have they sent you a witness statement?

[9Lives]

Thanks for all this TT8,

 

The only letter I've had from them since the court order was their disclosure statement. So no witness statement, or cca.

 

Just the one question, in point 7 you mention the claimants statement of case, which document is this ?

Other than that I can't think of anything else too add, you have covered all of the points that I will rely on in court.

 

Am I right in thinking that, after I submit these to the court I need to send copies to Hodsons or do they go straight to cabot ?

 

Once again many thanks for all your hard work.

[tomterm8]

it would be their claim form, I'm working blind, so just amend it to the right paragraph (they will say the agreement was bought/assigned/sold to them, probably in paragraph 1/2)

[9Lives]

Sorry TT8, I'll scan all the relevant docs tonight, to alleviate the temporary blindness.

But for now, the particulars of claim read like this:

The claimant is part of the Cabot fiancial group and has purchased the debt(s) scheduled below. Despite requests for payment the Defendant has failed to pay the sum of £xx in relation to the defendant's barclaycard account number xxxxx, and the claiment claims: the sum of £xx together with interest under section 69 of the county courts act 1984; and costs.

 

and that's it. Could you explain point 15 to me, last question promise .....

[Seahorse]

That's IT??? They are offering no proof that a debt is due, other than they SAY it is?????????

 

I can't wait to hear what they say to justify themselves in court. I guess they are under the impression that this will go undefended. Sheer arrogance, IMVHO.

[tomterm8]

sorry, paragraph 15 is not applicable, editing from another witness statement, just remove it and renumber the paragraphs.

 

 

From what you say, then the statement is is assigned (purchased) is in paragraph 1 "The claimant is part of the Cabot fiancial group and has purchased the debt(s) scheduled below"

 

send it to the solicitor and the court, by fax if at all possible.

[Ell-enn]

Thread moved to Legal Issues at OP's request

[nicklea]

The next day I sent the standard cca request, to which I had a reply from cabot financial (europe) returning my £1 PO, and saying that:

 

...

The rights but not the duties were assigned to Cabot Financial (UK) Limited in dealing with your account and therefore we are legally entitled to collect.

...

We will also arrange for a copy of the Notice of Assignment to be forwarded to you. This letter constitutes written notice of the assignment under Section 25 of the Law of Property Act and therefore we have no need to provide a copy of the assignment deed itself.

 

 

Hi,

 

This may be a little late for you but, as pt2537 has already mentioned, s25 was repealed in 1997. They're not exactly up to date!

 

It says S. 25 repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch.4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

 

which doesn't really mean anything to me but the link is here:-

 

Law of Property Act 1925 (c.20) - Statute Law Database

[nicklea]

Just out of interest I actually looked at what s25 used to contain and it wasn't even relevant! It was to do with the power of a trust to postpone a sale of land.

 

So, I thought, maybe they meant the Law of Property Act 1969 but that is totally irrelevant as well

[9Lives]

Hello everybody, apologies for the delay in updating this thread, ISP problems compounded by my laptop going down haven't helped.

 

First a big thanks to tt8, and to nicklea for last couple of pointers - the more points I can show that cabot are incompetent the better.

 

So to update I sent both my disclosure and witness statement over a month ago, with an apology letter attached as they were late being submited. Since then I have had no response from cabot, hodsons, or the court ............ and my court date is fast approaching, two weeks this Friday.

 

I'm not sure what to do next, do I point out to the court that I still haven't received a witness statement from cabot, or any documents that they were ordered to produce. I guess my other option is to just leave as is and turn up at the court, but then I can't defend a case when I don't have there witness statement - can I ???

 

I'm a little confused right now ???

[nicklea]

One of the more expereinced people should be able to give you advice, but it si my understanding that, if they tried to ambush you on the day by only providing them on the day then you would be within your rights to ask for an adjournment. This happened with me on a totally different issue, the judge only gave me a short time to read it but, fortuantaely I knew what it was so I could handle it. However, you really should try telling him that you are a litigant in person and you need time to study this and that an hour or so won't be enough and it will seriously undermine the chances of achieving a just outcome etc etc.

 

Also, write to the court now and tell them that you haven't received anything

[9Lives]

Thanks Nicklea, I've sent a letter to the court explaining that I haven't received anything from Hodsons and that being a litigant in person I will need time to study the claimants witness statement before the hearing or it may it will seriously undermine the chances of me achieving a just outcome.

 

The hearing is set for 6th June, am I likely to get a reply to this letter ??

[nicklea]

Hi 9lives,

 

Did you ever get the witness statement from the other side?

 

Good luck for Friday by the way - not that you'll need it

[9Lives]

Thanks for the support nicklea, I've just rang the court to ask if they had got my letter and/or the witness statements.

 

There response was very helpfull in that he was 99.9% sure that if they turned up on Friday with the documents then the Judge wouldn't allow it, but I may wish to ring there solicitors to find out if they are submitting anything.

 

So I did, only because the court had asked me to, and funnily enough I'm being sent a court bundle in the post now, that should be with me tomorrow !!!!

 

When I questioned them about a lack of time left for me to prepare a defence, he simply quoted my letter dated 14th April, and apologised for any inconvieniance I may of been caused (The letter I sent included both witness and disclosure statements and apologised for being two weeks late). He came across very arogant and didn't seem bothered that it didn't leave me any time to prepare.

 

Looking at the notice of trial date letter, it states that the claimant shall lodge at the court at least 7 days before the hearing an indexed bundle of documents contained in a ring binder with each page clearly numbered.

 

So not only did they miss the witness statement direction (as did I ??), but they also missed the bundled documents deadline too, do they any regard for the court directions ???

 

In some way I wish I didn't ring them, because I don't think the bundle documents would have ever got to court before this Friday !!!!

 

I guess I just wait and see what arrives tomorrow ???

[9Lives]

Nothing in the post this morning, I guess the judge isn't going to be to pleased with Hodsons !!!

[9Lives]

Well I finally get to see the trial bundle, it was delivered midday yesterday and was to big for the letterbox and sent to the local post office. So I couldn't get it until tonight.

 

Hey less than 24 hours to prepare for a trial wonderful !!!!

 

I've attached cabot's witness statement, sorry I haven't mastered the art of combining pdf pages into one document so it is over 6 attachments.

 

Could someone suggest if it is better or ask the judge to schedule another date due to the lack of time to prepare, or go for it ??

 

They haven't sent an cca, just an application form, however I'm a little confused with their argument about the fees added to the account.

 

I know it's very rushed but my trial is at 10am tomorrow, and any help or advice will be most appreciated.

Cabot WS1.pdf

Cabot WS2.pdf

Cabot WS3.pdf

Cabot WS4.pdf

Cabot WS5.pdf

[9Lives]

and this is the 6th page.

Cabot WS6.pdf

[steven4064]

Hi 9lives

 

I'm afraid I'm not in a position to offer much help ATM - Have you looked at http://www.consumeractiongroup.co.uk/forum/guidance-notes/64911-got-court-date-guide.html?

[nicklea]

Hi 9lives,

 

I don't know whether you've covered this or not but with regard to the OFT issue, they only said that they weren't going to do anything below £12 as they had other issues to concentrate on they did not say that £12 was fair:-

 

The OFT Report “Calculating Fair Default Charges in Credit Card Contracts”

1. This section is pleaded in case the Claimant should try and defend it’s charges by reference to the OFT Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”).

2. 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.

3. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at this time (para 5.4). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment.

4. 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).

5. The following extracts from the OFT Report demonstrate the points pleaded above:-

As a practical measure, to help encourage a swift change in market practice, we are setting a simple monetary threshold for intervention by us on default charges. The threshold is £12. (paragraph 5.3, emphasis mine)

We regard the setting of the threshold as a provisional practical measure to move the market towards compliance. We should make it quite clear that we are not inviting the banks to align their charges at such a threshold figure. We are not proposing that default fees should be equivalent to the threshold, and a court will certainly not consider that a default fee is fair just because it is below the threshold. (paragraph 5.5, emphasis mine)

 

The threshold is not intended to be a permanent feature of our intervention in this market. We will consider further action if trends in the market suggest that this threshold approach is insufficient to bring about appropriate and early change in the market. (paragraph 5.6, emphasis mine)

 

It is also important to note that the threshold for action is a statement of our regulatory intent. We have no power to constrain private civil actions or to determine what a court should decide and other enforcers may apply for injunctions under the UTCCRs. (paragraph 5.7, emphasis mine)

 

 

Also, with the notice of assignment issue it must have been sent by recorded delivery. I believe that tomterm included that in your witness statement but there's a fuller version that he did here:

 

ARGUMENTS ASSOCIATED WITH THE REQUIREMENTS FOR PROPER SERVICE OF AN ASSIGNMENT

I note that the claimants claim they sent three notices of assignment to me. I did not receive these documents before the trial. Notwithstanding this, I put the claimant to strict proof that the requirements for service of notices of assignment were complied with. These are specified in the Law of Property Act 1925 as requiring the use of registered mail for service by post. If the claimant can not prove that the notice of assignment was properly served, I respectfully submit it has no standing before the court.

Notwithstanding the above, the Claimant has not served upon me or filed any contract of assignment. If the claimant is unwilling to provide this document, I do not know how it seeks to prove that the assignment was completed with all legal requirements fulfilled.

The sections referenced below were obtained from the statute law online database :

 

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—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

(2) This section does not affect the provisions of the M2Policies of Assurance Act, 1867.

10. The relevant provisions for service of notices under the act are set out in

 

s196. law of property act 1925.

 

Regulations respecting notices.

— (1) Any notice required or authorised to be served or given by this Act shall be in writing.

(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 [F1by 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.

 

Then with the issue in the witness statement that they say they are authorised by the original creditor to issue notices of assignment that this is hearsay evidence and no notice of it has been given to you under s2 Civil Evidence Act 1985:-

 

2. Notice of proposal to adduce hearsay evidence.

— (1) A party proposing to adduce hearsay evidence in civil proceedings shall, subject to the following provisions of this section, give to the other party or parties to the proceedings—

 

(a) such notice (if any) of that fact, and

 

(b) on request, such particulars of or relating to the evidence,

 

 

as is reasonable and practicable in the circumstances for the purpose of enabling him or them to deal with any matters arising from its being hearsay.

 

Hope this helps a little bit!

[9Lives]

It certainly does help, I've just printed it off so I can have a read over breakfast.

 

Will let you know this afternoon how it went.

[9Lives]

I'm in crt now, unfourtunatly I'm a floating case.

they're trying to say the blurb above the signature box means that it is a cca ???

does anyone have any good replies to use ???

they are also trying to adjust the amount claimed to take out the fees, can they do this??

a quick reply would be fantastic.

many thanks to anyone that helps out !!!

[9Lives]

Adjourned, there was no time to fit the case in - what a waste of a morning. Still I now have more time to go through the trial bundle, and their skeleton arguement - I'll post this tonight when I get back home.

 

Is there anyone that can advise me how to compile a cost schedule ??

[steven4064]

Did you foget to post the skeleton argument?

 

Cost schedule - as a litigant in person you can clim £9.25/hour - suggest 20-30 hours, plus reasonable costs (pstage, etc)

[9Lives]

Really sorry Steven (and all that were following this case) for not keeping this thread upto date.

I can safely say I haven't had the best 6 weeks of my life and it feels like I've had a month of been kicked in the you know whats !! hopefully it's finished with now, but who can tell in this economic climate??

 

So now I need to get back on top of this court case again, as I really don't know many of my nine lives are left. ??

 

I hope this was worth the wait .......................... I can now add there skeleton argument. My court case is now scheduled for the 1st August, so I still have a couple of weeks.

 

Having just been catching up on Joghuj's thread, do I need to take any advice from this forum via a PM ???

WS1.pdf

WS2.pdf

WS3.pdf