From Monument to.......Cabot

[cymruambyth]

Their AQ has been received late . Court can't find file for an update!!

[babybear39]

Courts

[cymruambyth]

It's been found it was with the judge ......... fast track .......... April/May 2010 .....1 day:(

Maybe the test cases will have gone through by then, which will mean either or

[babybear39]

Ahem...Fast track seems like snails pace lol...

[cymruambyth]

Ahem...Fast track seems like snails pace lol...

 

Yes and I'm quite pleased with that.

1 day sounds awfully long:eek:

[sir fussalot]

Hiya All,

Sorry to butt in. I am in exactly same position.

 

letter off Morgans, no reply to CPR 31.14 for a month, then they said they had JUST received it, and sent a few statements. short application form

with "Subject to Approval", stamped accross it.

 

Also, (the bit I don't understand).

 

No Default Notice is required as the claimant, (Cabot) is "only asking for ARREARS":confused:

 

AND... "the Deed of Assignment has been requested from our storage facility, and may take a week"... (dated 4th October.....nothing).

 

 

Posted my A.Q's thro court letterbox this morning.

 

I am watching with interest, and wish you all the very best. I don't think you could do any better regarding your defence. spot on !

 

sir fussalot

[BeauBrummie]

Hiya All,

Sorry to butt in. I am in exactly same position.

 

letter off Morgans, no reply to CPR 31.14 for a month, then they said they had JUST received it, and sent a few statements. short application form

with "Subject to Approval", stamped accross it.

 

Also, (the bit I don't understand).

 

No Default Notice is required as the claimant, (Cabot) is "only asking for ARREARS":confused:

 

AND... "the Deed of Assignment has been requested from our storage facility, and may take a week"... (dated 4th October.....nothing).

 

 

Posted my A.Q's thro court letterbox this morning.

 

I am watching with interest, and wish you all the very best. I don't think you could do any better regarding your defence. spot on !

 

sir fussalot

 

Cabot are being very cagey about how they conduct themselves at the moment---their arguments appear to be changing reference arrears.

 

Wider question appears to be warranted in this circumstance vis--- Have you closed my account? because if they have not actually terminated the account I beleive this is the basis of a new legal stance by the sly bottom feeders

 

Beau

[sir fussalot]

B.B.

 

This seems to be a new ploy. I have just looked at the original court CLAIM ex Northampton.

 

Their POC appears to be the same as any other regarding a C.C. agreement.

 

But then, Morgan's state "their CLAIMANT is only seeking the ARREARS:?

 

so what are the arrears. We are all subbing to the correct thread anyway, so safety in numbers eh..:-|

[BeauBrummie]

B.B.

 

This seems to be a new ploy. I have just looked at the original court CLAIM ex Northampton.

 

Their POC appears to be the same as any other regarding a C.C. agreement.

 

But then, Morgan's state "their CLAIMANT is only seeking the ARREARS:?

 

so what are the arrears. We are all subbing to the correct thread anyway, so safety in numbers eh..:-|

 

Have you your own thread on your case?

 

You may wish to have a read through other threads

 

My thread on Cabot is http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/144167-bb-cabot.html

 

And also further reference

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/223570-cabot-financial-dealing-cabot.html

 

Hope this is a help

 

If you do not have your own thread you should perhaps consider staarting one which may help guide people to your own circumstances.

 

Beau

[cymruambyth]

I'v enow received a copy of their AD, dated a day after it was due to be received:mad:

They asked for a day, which they received.

They wanted to try to settle before the hearing and wanted a month stay!!

"The defendant has been sent a reply to defence to which there is exhibited a volume of documentation relating to the account. Following the Defendant's consideration of the material a mediation appointment might then be appropriate"

There is a witness, though I don't know where they are from yet

Costs: £1,750, which seems to be light for Cabot!

 

I just wish I hadn't sent them my AQ for a couple of weeks and seen what they they had entered instead.

Still waiting for documents from the court detailing everything.

[cymruambyth]

Court Order has arrived

Fast Track

Standard disclosure by 4pm xxx December

Any request to inspect original of a copy document by xxx + 14 days and shall be complied within 14 days of request

Claimant shall include with its disclosure the credit agreement, document assigned debt to them, notice of assignment to Defendant and s 87 compliant DN

Witness statements by xxx January 2010

Requests for clarification or further information based on any doc disclosed or statement served by another party no later than 14 days after disclosure/service

Replies within 14 days

Completed pre trial lists xxx March

Hearing date xxxx

[sir fussalot]

Hiya BB and Cymruambyth

 

Thats a nice early Christmas prezzie. Im subbin' Good Luck

 

Yes B.B. I have started a thread, I hope I have done the link O.K. it's my first one.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/224697-cabot-morgan-my-monument-2.html

 

 

 

I think I know why Cabot have started to only claim "ARREARS".

 

on the above link, look at post 23.

 

sir fussalot

[cymruambyth]

Thanks for your support. I have posted on your thread and will try and post when I am more awake and can find what I am looking for!!!!

[cymruambyth]

Sorry if I'm being thick, but what exactly am I supposed to prepare for 'standard disclosure of documents by serving copies together with a disclosure statement'.

Would this be a list and copies of all letters I have sent and received?

Thank you

[middenmess]

I know there are posts on here which explain it better but this will keep you busy for a while!

 

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

[cymruambyth]

Thank you for the link

[mercyblue]

cymruambyth have you filled in your n265 yet. I am at the same stage as you need standard disclosure next week. Anybody else been through this part?

Thing is I don't really have anything to disclose apart from their fake NOA which is the only documentation I have had off them.

Furthermore which address do I send it to the address on their letter of service that came with the AQ presumably?

[cymruambyth]

Hi I'm going to start work on this later on today and will post anything that I think or find.

I was going to include (I think) all the representations and threats that they have sent and any from the oc that I have (I'm a hoarder and have letters from 2002).

[mercyblue]

I too am starting today!

[cymruambyth]

Is it worth entering all letters such as 'you haven't sent t &cs or your letter is only an application form, plus all their letters misquoting the law?

[cymruambyth]

Bump please because looking at their rebuttal of my defence, it was basically, reply card, unrelated t&cs, noa (best ignored;)), didn't issue dn so don't have it and some statements as proof of debt.

As anyone who'dealt with Cabot knows, I have lots of you say I say letters, do i need them ?

Thank you

[lilly white]

ok and all that

 

what has the judge ask you to disclose

[cymruambyth]

Court Order has arrived

Fast Track

 

Standard disclosure by 4pm xxx December

Any request to inspect original of a copy document by xxx + 14 days and shall be complied within 14 days of request

Claimant shall include with its disclosure the credit agreement, document assigned debt to them, notice of assignment to Defendant and s 87 compliant DN

 

Witness statements by xxx January 2010

Requests for clarification or further information based on any doc disclosed or statement served by another party no later than 14 days after disclosure/service

Replies within 14 days

 

Completed pre trial lists xxx March

 

Hearing date xxxx

 

Hi Lily thanks for looking in, this is what was on the court order.

[lilly white]

well not a lot for you do then,

 

it is not for you to prove anything so all you have to put is you ask for the docs.

 

the cca letter etc

 

and on to the ws

 

have a read edit to suit

 

 

 

 

1. This defence is submitted following the order of District Judge xxxx dated xxx.

 

 

2. I am at a considerable disadvantage in preparing this defence in that I have not had sight of the Particulars of Claim so I do not know what has been alleged or claimed.

 

 

3. Further, since both xxxxxxxxxxx and xxxxxxxx have contacted me with regard to the alleged agreement I do not know who the actual Claimant was in the case.

 

 

4. In order to prove its claim the Claimant must establish a number of matters. Firstly that there was an agreement between myself and xxxxxxxxx, secondly that such an agreement complied with the requirements of The Act (and all consequential regulations made thereunder) both at the date of inception and at all times thereafter. Thirdly it must establish that xxxxxxxxx complied with all of the provisions of the Consumer Credit Act 1974 (“the Act”) in that it must show that it served a proper default notice upon myself prior to terminating the agreement and prior to commencing proceedings. Fourthly, if the Claimant was not xxxxxxxxxxxx then it must establish that there was an “absolute assignment by writing under the hand of the assignor” (S136 (1) Law of Property Act 1925). Fifthly that proper notice of any such assignment was given to the Defendant (S196 Law of Property Act 1925. Finally it must establish that the sums claimed are lawfully owing both at the date of the alleged assignment and at all other times.

 

 

5. It is submitted that it is the obligation of the Claimant to prove all of the above matters.

 

 

6. It is accepted that I applied for a credit card with xxxxxxxxx and that an Application Form was completed. It is not accepted that the Agreement was reduced to writing and it is not admitted that a valid agreement containing all of the prescribed terms required by the Act exists. The prescribed terms are, pursuant to Schedule 6 of the Consumer Credit (Agreements) Regulations 1983, as to repayment, credit limit and rate of interest.

 

 

7. In such eventuality the absence of a written agreement containing all of the prescribed terms is fatal to the claim and consequently, as the alleged agreement was entered into before the 6th April 2007, being the date when s15 of the Consumer Credit Act 2006 came into effect. By operation of Schedule 3 of the 2006 Act the terms of S127 (3) Consumer Credit Act 1974 are not repealed in respect of this alleged agreement and therefore render it unenforceable.

 

 

8. The Court’s attention is drawn to the authority of the House of Lords in Wilson & Ors v Secretary of State for Trade and Industry [2003] UKHL 40 and Dimond v Lovell [2000] UKHL 27; [2000] 2 All ER 897both of which confirm that where a document does not contain the required prescribed terms under the Consumer Credit Act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) the Agreement cannot be enforced.

 

9. Further, it is noted that the Act provides that the prescribed terms cannot be found in a secondary document as according to section 61(1) (a),(b) & © the agreement must at the time it is laid before the debtor contain all the terms of the agreement (Wilson & another v Hurstanger Ltd [2007] EWCA Civ 299).

 

 

Valid Default Notice

 

 

10. It is a condition precedent to the issue of Proceedings in respect of a Regulated agreement that certain steps prior to the issue of Proceedings must be taken. Specifically those steps are the issue of a valid default notice complying with the terms of the Act and the issue of a valid termination notice, also complying with the act.

 

 

11. It is not admitted that either a valid default notice or termination notice was ever served on me and the Claimant is put to strict proof.

 

 

12. It is noted 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 (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339). It must also allow a minimum of 14 days following date of service, in which to rectify any such breach. The prescribed format for such a document is further laid down in the 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 2006 (SI 2006/3094).

 

 

13. The Act also sets out via Section 88 that the Default Notice must be in the prescribed form and must allow the required time from date of service. The use of the word “must” indicates that this is mandatory and that it cannot be dismissed as a de minimus issue.

 

 

14. The Law in respect of service is governed by the Section 7 of the Interpretation Act 1978 which indicates that service is deemed to be effectual on the day upon which the letter would be delivered in the usual course of business.

 

 

15. I refer to the practice direction, given by J R BICKFORD SMITH, Senior Master Queen's Bench Division, on8 March 1985 in relation to the Interpretation Act 1978, Section 7. It confirms that deemed service of documents sent by first class mail occurs on the 2nd business day after posting.

16. I further refer to CPR Part 6.26 Service of Documents which concurs with the above practice direction that the deemed date of service by first class post occurs:-

 

 

“The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or if not, the next business day after that day.”

 

 

17. The importance of CPR Part 6 and the Interpretation Act 1978 in determining the delivery of documents by ordinary post is further confirmed by the following Court of Appeal Case Consignia Plc v Sealy [2002] EWCA Civ 878 (19 June 2002).

 

 

18. For the avoidance of any doubt, in the event of an alleged breach by the Debtor this is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

 

The Assignment of the Debt

 

 

19. If the Claimant was not xxxxxxxxxxx Bank then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

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—

 

21. However, it is Section 196(4) that 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.

 

22. 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 (eg Royal Mail recorded delivery or special delivery).

 

 

23. 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 using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

Sums Claimed

 

 

26. It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

 

 

 

 

27. Further, it is denied that both the alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurred and so are in breach of the common law and in any event unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCR”)

 

 

 

 

28. In case the Claimant should attempt to justify the charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. 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. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, 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).

 

 

29. In case the Claimant included a claim for interest which is pleaded pursuant to section 69 of the County Courts Act 1984. The Claim for interest pursuant to the County Courts Act is by virtue of County Courts (Interest on Judgment Debts) Order 1991 is denied. Paragraph 2 (3)(a) of the Order states that Interest shall not be payable under this Order where the relevant judgement is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974.

 

 

30. In case the Claimant also claims interest from judgement date until payment. It is not admitted that there are any contractual terms that allow the Claimant to claim this or any interest after judgement.

 

 

31. It is denied (if it be alleged) that the Defendant is seeking to find “technical loopholes” to avoid alleged liability to the Claimant. on the contrary, in the cases and authority quoted within this defence, it has been confirmed that a lender who wishes to enforce a term of it’s contract before the court should first make sure that the contract strictly complies with the requirements of the law – in this case the Consumer Credit Act 1974 and associated Regulations.

 

 

32. In light of the above, it is not admitted that I am indebted to the Claimant as alleged or at all.

 

Statement of Truth

 

I, xxxxx, Defendant believe that the facts stated in this Defence are true

 

 

Signed ......................... ...........

[cymruambyth]

Thank you very much for the prompt reply. I will complie something over the weekend, then post back.