Cabot/? claimform - 3 'cap1-citi-vanquis merged credit card 'debts' **discontinued**

[creditcardmug]

Ill work on it for you, keep bumping the tread, give me a few days

[colinsunderland]

thanks mate

[creditcardmug]

Just posting up the relevant bits for reference, ignore for now

 

The claimant is part of the cabot financial group and has purchased the debt(s) scheduled below.

Despite requests for payment the Defendant has failed to pay the sum of 6428.74 in relation to the defendant's Citifinancial classic card account number xxxxxx, capital one credit card account number xxxxxx, vanquis bank credit card account number xxxxxx, and the claimant claims : the sum of 6618.74 together with interest under section 69 of the county courts act 1984 and costs.

[creditcardmug]

Defence

 

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

3. The claimants’ particulars of claims 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. In this regard I wish to draw the courts attention to the following matters;

 

The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant’s claim.

 

A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to answer

 

5. Further to the case, on 21/07/2008 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreements referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

 

6. The claimant responded on the 23/07/2008 to my request for disclosure under the civil procedure rules stating to receive this information I have to make a subject access request & pay them £10.00. Since they have refused to disclose the requested information it is submitted that I do not hold sufficient information to compile a full defence to the claimants allegations at this stage

 

7. It is my opinion that the claimant is trying to frustrate matters in refusing to disclose the documents requested and the claimant is ignoring the overriding objective and the courts attention is drawn to the fact that the letter they sent in reply to my disclosure request only relates to the ‘Citifinancial’ account, and they have ignored my CPR request for the other two accounts completely. It is submitted that the claimant taking this course of action places me at a clear disadvantage and there is no apparent reason why the claimant would seek to withhold this documentation from me

 

8. The courts attention is drawn to the fact that the without disclosure of the requested documentation pursuant to the Civil Procedure Rules I have not yet had the opportunity to asses if the documentation the claimant claims to be relying upon to bring this action even contains the prescribed terms required in Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482). The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

9. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 8 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

10. Notwithstanding points 8 and 9, both debtor and creditor must sign any such agreements in the prescribed manner. If such a document is not signed by the debtor the document cannot be enforced by way of section 127(3) Consumer Credit Act 1974

 

11. The claimant is therefore put to strict proof that such a complaint document exists

 

12. It is neither admitted or denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant. I note that without service of a default notice under s87 (1) Consumer Credit Act 1974 the claimant would not have a right to demand repayment of any sums under an agreement or to terminate an agreement

 

13. Notwithstanding point 12, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

 

14. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

 

15. Without Disclosure of the relevant requested documentation I am unable to asses if I am indeed liable to the claimant, nor am I able to asses if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

16. 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.

 

17. Alternatively, I respectfully request the court orders full disclosure of the documentation requested in point 5. I will then be in a position to file a fully particularised defence and respectfully request the courts permission to amend my defence accordingly.

[bazaar]

not withstanding its an application form.

[Rhia]

In you defence para 15 assess is spelt incorrectly add and extra s to the end.

[creditcardmug]

Section A tick no to all

4 reasons The claimant has failed to substantiate this claim

Section B tick yes (if it has already been transferred to your local court) if it has write that in the box, if not write that you are unable to travel etc.

section C tick no. in the box write "this case is not covered by any approved protocol"

Section D Write the amount they are claiming, not including costs

applications tick no

witnesses write your name, and in brackets "myself"...in the other box write "all facts"

Experts tick no to the first question, leave the rest blank

Track fast track....leave the box blank

Section E 2 hours....fill in the rest if there are any dates you cant attend

Section F tick yes to 1st question...no to 2nd

Section G leave blank

Section H leave blank

Section I tick yes to the 1st question...no to the second

tick no to applications

in the big box write "please see attached section I"

 

Sign & date it etc.

[creditcardmug]

Draft Order for Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreements made between the defendant and xxxxxxxxxxxxxxxxx under reference numbers xxxxxxxxxxxxx together with any terms and conditions that applied to them, the original documents must be brought to the hearing.

(b) the default notices for each account together with proofs of service

© notices of assignment for each account together with proofs of service

(d) deeds of assignment for each account the original documents must be brought to the hearing

(d) a full and complete statement of account for each account including all payments made and charges applied covering the period beginning with the day of the making of the agreements and ending on the date of the commencement of this case.

(e) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

[creditcardmug]

Other Information

 

Section I

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

Its is respectfully requested this case be allocated to the fast track, it is a straight forward case and is easily resolved on production of the required documentation by the claimant, should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further

[creditcardmug]

In the directions, fill in the xxxxs, dont fill in the dates in paras 1 and 4, the judge will do that

In the xxxxs at 1a you will have to put the names of the original creditors and the account numbers if they have staed them, or delete that bit if they have not

 

 

 

Print off the last 2 posts, and attach to the AQ

 

Send it to the court by SD,or take in to your local court, if it has been transferred, don't bother sending a copy to the other side

[colinsunderland]

thanks very much, shall ii do it straight away or wait till the last day to submit it?

[creditcardmug]

Put it in a few days before, if you take it to the court office ask for a receipt, ask whether the other side have filed theirs, if they have ask for a photocopy

[colinsunderland]

Just to update

Have handed in the AQ today, the other side haven't done theirs yet, they have until 4pm Monday.

 

Just as an aside, how did the other side get the stay lifted? I thought they had to write to the court or something? The court say they haven't had anything from the claimant since I put my defence in, which doesn't make any sense as how did the claim start again. They said there definately isn't any letter from them requesting the stay to be lifted though.

[AndyOrch]

Just to update

Have handed in the AQ today, the other side haven't done theirs yet, they have until 4pm Monday.

 

Just as an aside, how did the other side get the stay lifted? I thought they had to write to the court or something? The court say they haven't had anything from the claimant since I put my defence in, which doesn't make any sense as how did the claim start again. They said there definately isn't any letter from them requesting the stay to be lifted though.

 

 

Hi Colin

 

Well the Claimant must have paid the appropiate fee hence the release of AQs.

 

Regards

 

Andy;)

[colinsunderland]

thanks, I thought they had to write to the court asking for the stay to be lifted or something

[colinsunderland]

Just to keep the thread updated

 

Got a Notice of Hearing

 

Take notice that the allocation hearing will take place on xth September when you should attend. 20 minutes has been allowed for the hearing.

[colinsunderland]

Just another update, got a massive bundle of docs today from cabot, nothing i hadn't already seen though really.

Copies of application forms for 2 accounts, statements for all 3, computer print outs of all actions taken on all three accounts since cabot got them, mostly in code so I don't understand them!

[Bernie259]

Hi, I also have a claim against me from Cabot, same as you 3 credit cards on one claim form, the claim has progressed in the same way up to the Stay, I phoned the court shortly after Cabots deadline to file a reply to my defence had expired, they advised that if Cabot wanted the stay lifted they would have to make an application to the court giving reasons for their delays. My claim was stayed a month ago and thats the last I have heard, however, nothing confirmed in writting from the court. How long after you believe your claim was stayed did it all start again with Cabot?

I wish you the best of luck

Regards

Bernie

[questioning]

Just another update, got a massive bundle of docs today from cabot, nothing i hadn't already seen though really.

Copies of application forms for 2 accounts, statements for all 3, computer print outs of all actions taken on all three accounts since cabot got them, mostly in code so I don't understand them!

 

Hi Colinsunderland,

I read that you can ask for these codes to be explained to you.

 

Hi Bernie,

My case was stayed and like you I phoned the court for confirmation of this, the court (my local CC) said that they did not inform you in writing of this, Automatically if no reply within 28 days from the claimant to your def. then under the rules the case is stayed. However, sometimes the court may be running behind so its always worth a phone call after the deadlines so you know whats going on.

 

I think that Colin's case was reinstated by Cabot after nearly a year of case being stayed.

[colinsunderland]

just a quick bump for this, what is likely to happen at the allocation hearing in 10 days?

Can i ask the judge to make an order for them to disclose the documents I've already asked for (and what the court has completely ignored)? Or would I have to make an application?

 

TBH I was thinking of making a strike out application due to the fact they have shown no evidence of the debt in over a year of asking. However if it get allocated to fast track then they discontinue I believe I could make a wasted costs order. Any views on that?

[colinsunderland]

One other thing, in the bundle of documents they sent me, they finished by saying

 

As you have now been made aware of the circumstances surrounding this claim. We think it may be an appropriate point to attempt to settle the matter and this letter has been sent to you under the principles set out in the Overriding Objective in the Civil Proceedure Rules. Accordingly we look forward to hearing from you, in writing, with your proposals for settlement

 

How should I reply to that?

I did think about sending a reply stating something like

 

I note you mention the Overriding Objecting in the CPR, and I note this is one of them

 

(d) ensuring that it is dealt with expeditiously and fairly

 

I requested full disclosue over a year ago so would suggest you have not complied yourselves.

 

As you have failed to show proof of debt or deed of assignment I would be prepared to accept £1000 in full and final settlement of my costs to date

 

but thought the court would think I was taking the mick so decided against it

[PossVox]

I emailed these parasites as I was getting nowhere by letter or through asking the County Court for updates.

 

Cabot backed down and I went for wasted costs. I got £600 from them - no questions asked.

 

Edit this and send via email:

Dear Mr. Maynard,

 

Cabot Financial have been contacting me regarding the above account since **/**/**.

 

I wrote to your offices on **/**/** to inform you that this alleged debt is barred by statute since no payment has been made and no acknowledgement of the alleged debt has been made for more than 6 years.

 

You replied stating that a payment was made on **/**/** thus making the debt collectable.

 

I put you to strict proof of payment and requested evidence of this payment being made-THIS REQUEST WAS IGNORED and a standard template letter, simply re-staing that a payment was made, was sent to me.

 

I also requested a copy of the Credit Agreement which is my right under the Consumer Credit Act. To date, you have FAILED TO PROVIDE THIS DOCUMENT. This places the account IN SERIOUS DISPUTE and procludes further collection activity.

 

Despite you informing me, by letter on **/**/**, that my account is, quote, "on hold until further notice", you have instigated court action against me.

 

In summary:

 

1. You have started court action on a STATUTE BARRED debt.

2. You claim I made a payment in 2*** but have supplied no evidence.

3. You have refused ALL of my reasonable requests for documentation in order to prove that I owe this alleged debt.

4. Your solicitors Hodsons (now Morgan) have refused to answer any of my letters and requests for information.

5. You are acting unlawfully and against all guidelines and have caused me considerable stress.

 

Despite the above, your company instigated legal proceedings in the Northampton Bulk County Court on **/**/**. The case was stayed after I put in a defence and you failed to respond. You have allowed the case to remain there until **/**/**. You have now asked for the stay to be lifted and I have been informed that you intend to pursue this claim through my local county court. For ease of reference, the court reference number for your vexatious claim is ********

 

I INTEND TO DEFEND THIS CLAIM IN ITS ENTIRETY.

 

SHOULD YOU PERSIST TO HARRASS ME IN RELATION TO THIS MATTER, I INTEND TO REPORT YOUR COMPANY TO THE OFFICE OF FAIR TRADING, TRADING STANDARDS AND THE FINANCIAL OMBUDSMAN SERVICE.

 

MY M.P. IS ALREADY AWARE OF YOUR ACTIONS.

 

I NOW EXPECT YOU TO DROP THIS VEXATIOUS CLAIM AGAINST ME.

 

 

As this matter is of the upmost urgency, I look forward to your earliest response.

 

Yours sincerely,

 

You could edit this and send it if it fits with your situation.

 

Don't let them bully you. I got a response within 24 hours. They will be on the back foot when they get this.

 

Good Luck!

[colinsunderland]

thanks for that, to be honest I'm a little wary about sending things email as poof of delivery isn't easy for a start.

[PossVox]

Hi,

 

Well email worked for me within 48 hours compared to months of letters and phone calls.

 

You can ask your email program to request a delivery receipt and also a read receipt. You can also print out a copy of the email you send for your records.

 

Cabot are total muppets and chancers, what have you got to lose?

 

Good Luck

[Rhia]

Go with PossVox's advice it did work for him.

 

You need to hold them to account for their irresponsible, immoral and vexatious behaviour and hitting their wallet might start to make them think twice. They wouldn't give you a millimetre of a chance.

 

There is also an important bit of complaining to be done. Send a copy of this letter to the OFT - credit licensing department and write a covering letter to the Solicitor's Regulation Solicitors Authority, Ipsley Court, Berrington Close, Redditch, B98 0TD stating that you wish to complain about Cabot Financial (Europe) Ltd who are registered with them as a firm of solicitors (they are hiding behind Morgan's which isn't registered) and name the solicitors Glenn Crawford (a director of Cabot) and Piers Morgan who are respnsible for their actions.

C.c it to the Ministry of Justice and your local MP

 

It may seem a pain but not half as much pain as they are giving you and numerous others.

Edited August 30, 2009 by Rhia