Cabot after a CCJ - help please!

[elizabeth1]

just had update from hubby since he's come in from work.

 

apparently, the judge said to him, 'did you borrow money from citigroup? if you dont answer this question truthfully, then I'll hold you contempt' hubby replied yes. Judge replied, 'then this is your debt'.

 

 

This is a hard line from the Judge - my thoughts are the issues raised were not to do with whether or not the debt was your hubbies.

 

The issue was related to Cabots "rights" to collect such a debt - hence the issues surrounding the CCA?

[palomino]

apparently, the judge said to him, 'did you borrow money from citigroup? if you dont answer this question truthfully, then I'll hold you contempt' hubby replied yes. Judge replied, 'then this is your debt'.

 

Unfortunately your hubby did not have the presence of mind or confidence to say that that wasn't the issue. The issue was whether repayment could be enforced without the agreement - which contains the enforcement clauses.

 

Sympathy to your hubby - it's a pretty daunting experience in front of a hostile judge.

[berniebobs]

BB does the amended defence submission date come after the CCA 6 week period?

 

The Order when it arrives in the post will make it clear about submission dates etc..

 

 

I think its 4 weeks for the ammended defence and 6 weeks for cabot to find the CCA.

 

Im really feeling it for my hubby at the mo, as its me thats dealt with all the debt for years now as it really took him down in the beginning, thats why I have dealt with it. I just wish we could have a little windfall and tell em all to stuff it. But the fight still lives on..

[berniebobs]

In the xxxx County Court

Claim number xxxxx

Between

 

Cabot- Claimant

And

xxxx - Defendant

 

Amended Defence

 

1.This amended defence is submitted following the disclosure of information to me by the Claimant that is vital to my defence. It replaces in its entirety my original defence dated xxxxx

 

2.Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the claimant to strict proof thereof pursuant to Civil Procedure Rules (“CPR”) Part 16.5(1) (b).

 

3. The Claimant’s Particulars of Claim disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. The Particulars of Claim do not disclose an adequate statement of facts relating to or preceding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to; the account number relating to the account, the method the claimant calculated any outstanding sums due or any other matters necessary to substantiate the claimant’s claim.

 

Request Pursuant to Section 77 Consumer Credit Act 1974

4.On xxxxx 2008 I sent to the claimant by recorded delivery a request under the Consumer Credit Act 1974 (“CCA”) section 77(1) for a true copy of the executed Credit Agreement. This was received by the claimant and signed for as such on xxxxx 2008.

 

5. For clarity, s77(1) states:-

 

77. Duty to give information to debtor under fixed-sum credit agreement.

— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the total sum paid under the agreement by the debtor;

(b) the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and

© the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

 

6.S77(4) of the CCA sets out the consequences of failure to comply with such a request and states:-

 

(4) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence

7.The Claimant failed to respond to this request and it is averred that the claimant has failed to discharge their obligations under s77(1) of the CCA and as a result has no right of action, by way of s77(4) of the CCA, to enforce this agreement while their non compliance continues.

8. In addition, on xxxx 2008 I requested the disclosure of information from the Claimant’s solicitors which is vital to my defence and counterclaim in this case pursuant to CPR Part 18 Practice Direction. The information requested amounted to copies of the Credit Agreement, Default Notice and Notice of Assignment referred to in the Particulars of Claim, information regarding any instance where my personal or financial information has been communicated to third parties and a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the creditor. I contend that the information requested is reasonably necessary and proportionate to enable me to understand the case that has to be met and to prepare a counterclaim against the Claimant as per CPR Part 18 Practice Direction. The Claimant has only disclosed some of the information requested in a letter dated xxxxx 2008.

 

13. I re-emphasise the wording of s77(1):-

14.77. Duty to give information to debtor under fixed-sum credit agreement.

— (1) The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

15.I submit that, should the Claimant attempt to claim that they have complied with s77(1) CCA by providing these documents then they have, in fact, still failed to meet their obligations under s77(1) as the terms provided are clearly not from the agreement that I signed and so are barred from enforcing the agreement by way of s77(4).

Assignment of the Debt

16.A copy of a Notice of Assignment that it is alleged was sent to me was disclosed by the Claimant’s solicitors. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts.

17. Section 196(4) of The Law of Property Act 1925 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.

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 (e.g. Royal Mail recorded delivery or special delivery)

18.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 pursuant to s196(4) before action is commenced. It is denied that any notice of assignment was sufficiently served on me and so the Claimant has no right of action.

19. Notwithstanding the above, for a Notice of Assignment to be effective, explicit notice of assignment must be given by writing under the hand of the assignor (s136(1) Law of Property Act 1925). I note that the alleged Notice of Assignment refers to two separate assignments and was given under the hand of the Assignee in the case of the first assignment.

20.I submit that as a result of this the Notice of Assignment with regard to the first assignment is invalid as it has not been given under the hand of the original Assignor (referred to in the document as “1st Assignor”) Citi. As a result, the first assignment is ineffective and the Claimant has no right of action.

Summary

24. I aver that the Claimant has failed to meet it’s obligations under s77 (1) CCA and is barred from enforcing the agreement until it does so.

25. I further aver that the Claimant has no standing before the court as assignments of the alleged debt that the Claimant relies on are ineffective.

26. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant’s statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

 

27. Having instigated these proceedings without any legal basis for doing so, having failed to provide sufficient information required under the pre-trial protocols in order to investigate this claim, or indeed to provide a reasonable time period to investigate this matter, and having failed to investigate a dispute as required by the OFT Debt collection Guidelines I believe the Claimant’s conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act. Furthermore, the Claimant’s behaviour is entirely vexatious and wholly unreasonable.

Statement of Truth

I xxxx, believe the above statement to be true and factual to the best of my knowledge

 

 

Ive lifted this from another case Im on at the moment, would you kindly look at it please and add or takeaway anything to make it right! Thanks!!

[berniebobs]

*bump*

 

Would you please have a look at this? Bernie x

[berniebobs]

Hi Elizableth & Palomino

 

would you have a look at theis defence please, as Ive had papers this morning that it needs to be in by the 23rd sept

[robcag]

Hi Elizableth & Palomino

 

would you have a look at theis defence please, as Ive had papers this morning that it needs to be in by the 23rd sept

 

Hi berniebobs

 

I'm no expert, but something sticks out as wrong. I believe your amended defence relates to a credit card?

 

If so, you have made many references to s.77 of the CCA1974 (which relates to fixed credit, e.g. a loan), which should actually be s.78 CCA1974.

 

You will need to change those references and any corresponding quotes/sub-sections from s.77 will need to be checked that the wording is actually correct for the relative sub-sections of s.78

 

Cheers

Rob

[berniebobs]

Hi All,

 

Sorry Ive not been on recently, seperated from husband - although we're still friends, so in new home with kids and peace and quiet!

 

Ive bungled my way along with cabot but would like some more advice if you dont mind? ... My ex is in court tomorrow morning, re the thread case, Cabot have provided all papers asked for such as, copies of statements, terms & conditions, phone call monitoring, etc except the CCA, not a copy, nothing.

 

I have sent in a pre-trial form hence the trial tomorrow, with the defence as per on this thread stating about the lack of a true copy of the CCA.

 

Any advice?

 

Bernie xx

 

also theyve changed solicitors at the last minute to Morgans? ...

Edited January 29, 2009 by berniebobs
forgot to add

[andrew1]

Morgans is Cabots new in-house solicitors, taken Hodsons staff - same meat, different gravy, just as useless no doubt!

 

If they haven't got the true copy or original they won't get past the judge.

[berniebobs]

thanks Andrew1, its a different judge from the last one who upset the ex! so we'll wait and see... by the way, ive been fishing around the site and have come across PT2537's bit about 'why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement' should I still be quoting section 77/78 or cpr CPR 31.16(3)©&(D)

 

thanks, Bernie xx

[citizenB]

thanks Andrew1, its a different judge from the last one who upset the ex! so we'll wait and see... by the way, ive been fishing around the site and have come across PT2537's bit about 'why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement' should I still be quoting section 77/78 or cpr CPR 31.16(3)©&(D)

 

thanks, Bernie xx

 

Yes, the regulations are still the same. Paul just found another way to extract information regarding the agreements using one of the Practice Directions.

 

Good luck for tomorrow. x

[berniebobs]

thanks citizenB!

 

bernie xx

[Rhia]

Just read through this entire thread and one thing is bugging me. If Hodson's (now Morgans) sent you a letter admitting they accepted that the debt was statute barred then there is no way it can be collected anyway and this should be the main thrust of the argument. Just my ten cents but it seems lots of things are being argued when if it's statute barred it's statute barred.

[citizenB]

Just read through this entire thread and one thing is bugging me. If Hodson's (now Morgans) sent you a letter admitting they accepted that the debt was statute barred then there is no way it can be collected anyway and this should be the main thrust of the argument. Just my ten cents but it seems lots of things are being argued when if it's statute barred it's statute barred.

 

I think berniebobs' hubby actually admitted to owing the debt Rhia:(

[Rhia]

Ha...yes re-read he did.

[berniebobs]

Hi Guys

 

Update on the court stuff...

 

Went to court with the ex, the judge wouldnt let me speak so I had to talk to the ex for him to repeat what I was saying. The judge said that although the CCA was destroyed (the opposition admitted to this) because my ex had paid monies on it in the past, then its not a hard, fast rule that with out a CCA, you dont have to pay the debt as it is proved that my ex paid money on this debt previously. So my concern is that, is the judge going to side with cabot on this one even though there's no CCA and cabot admitted to not having one... help!

 

The other thing is.. I have to compile a witness statement for the ex, so how do I do this without saying 'The credit card was taken out in 1995 and used until 1999 etc, etc...'

 

Thanks, BBxx

[berniebobs]

bump...

[berniebobs]

I really, really need some help please

 

*bump*

[MrMT]

Good question to which I'd like to know the answer also so subbing!

[Rhia]

Berniebobs not ignoring you but not sure what to advise. I can't see how a Judge can rule in their favour if they have no agreement and have admitted they have no agreement. If he does I would apply immediately for an appeal.

They are trying to collect this under the 1925 Law of Property Act however the CCA 1974 showed that Parliament intended to protect the consumer by calling for properly executed agreements to be provided.

I suppose just don't mention when the CC was taken out and used until - if you possibly can.

The issue is you may well have been paying money on this debt but without a copy of the agreement we do not have the main principles of interest rate, credit limit etc and there is no proof that he signed it or that the company countersigned it.

In other words no agreement - unenforceable and they all should know that.

Off the top of my head I would answer as follows:

1. Cabot has been attempting to collect an alleged debt for which they admit they have no copy whatsoever of an executed agreement which proves their case.

2. According to the law...quote from after taking a good look at (s61-63 of cCA 1974 such an agreement should have this, this and this.

Without any such document Cabot cannot prove their right to collect this alleged debt.

3. Are there any penalties or PPI to claw back as this will worry Cabot?

 

Best I can do so far. PM ,me with what you draw up and I will look it over for you and see if I can help further.

[berniebobs]

Thanks Rhia.

 

It now seems after working quite hard on this, the 'ex' now doesnt want to appear in court - next week - and basically give in to them... I tried...

 

So could some kind person, advise me on which form I need to download to send to the court.

 

Thanks to everyone for your help. BB x

[robcag]

 

It now seems after working quite hard on this, the 'ex' now doesnt want to appear in court - next week - and basically give in to them... I tried...

 

 

In the words of Victor Meldrew ..... "I don't believe it!"

 

Sorry to hear that BB.

 

Cheers

Rob

[berniebobs]

Thanks Rob, me neither! I think the main reason for him, not letting me continue with it is, twice the two seperate judges have asked him if he's had the account and he's said 'yes'. So I think he's worried about fighting anything, well... i'll rephrase that... me fighting it for him...

 

mmm... wonder why i left him?

 

anyway... does anyone know which form I need to send in?

 

Thanks, BBx

[berniebobs]

*bump*

 

Can anyone help with which form, would it be a N96????

 

Thanks! BBx

[robcag]

Hi BB

 

In the absence of other replies, you could always phone the court and ask them which form (not that they always get everything right!).

 

Cheers

Rob