Urgent help needed- Cabot taking me to court!

[Guest xrm1]

I first heard from Cabot back in June 2007. They said they had bought a debt from Monument and were asking for payment.

 

I had no recollection of the debt and, following the advice on this site, I told them I did not acknowledge the debt and CCA'd them. Having initially returned my cheque, they eventually responded with an application form (they even called it an application form in one of their letters).

 

Since then I have had numerous letters from them threatening legal action and I have always responded by refusing to acknowledge the debt and pointing out that they have failed to supply a copy of a properly executed agreement (they have never supplied any other information either).

 

Now I have received a claim form from Northampton Court and I really don't know what to do next. Any advice and guidance would be greatly appreciated.

Edited January 14, 2009 by xrm1
Spelling Mistakes

[42man]

Hi XRM....may I ask what the particulars of the claim are please ? (don't be too specific with the numbers though)

[Guest xrm1]

The POC States '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 £xxxx in relation to the Defendant's Monument Credit Card account number xxxxxxx, And the claimant claims the sum of £xxxx together with interest under section 69 of the County Courts Act 1984; and costs.'

[Guest xrm1]

Anyone got any ideas? I was thinking I should acknowledge service and then ask for a copy of the credit agreement under CPR. If they can't come up with I assume that would be my defence or I should just ask for the claim to be struck out?

[Guest xrm1]

Ok - any help now really appreciated. Sent CPR request to Cabot asking for all the documents in 10 days. Got a reply back stating they would not be able to get the documents in 14 days (clearly didn't read it properly) and they would send them 'as soon as possible' - no date, no agreement to extend time for defence etc. What do I do now, my defence needs to be filed by 13th February?

[42man]

OK Did you acknowledge the claim in time ?.....do you know when your defence has to be in ?

 

Which CPR did you use ?

[42man]

Did you send this one ?

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

 

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 the assignment

 

3 the default notice

 

Your client should ensure compliance with its CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[42man]

There are a couple of defences in response to this

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167353-help-court-claim-howard-2.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/161469-1st-credit-animal-2.html

[42man]

Or was it the CPR18 ?

[Guest xrm1]

Claim form was posted on 13th January - filed AOS on 18th January so well within time. Defence due, I believe, 13th February and still heard no more from Cabot.

 

Not sure now if I sent the right letter as there are so many different templates around but will it make a difference anyway? CPR request letter sent was as follows:

 

In the Northampton County Court

Cabot Financial (UK) Limited -v- xrm1

Claim Number: **********

 

 

Dear Sir/Madam,

 

 

REQUEST FOR INFORMATION UNDER THE CIVIL PROCEDURE RULES.

I have received the Court claim filed by your Company. To enable me to file a defence and counter-claim, I require specific information regarding the alleged account to be provided forthwith. Given that this matter is now the subject of legal proceedings you are obliged to disclose, under the Civil Procedure Rules, the information and documents detailed below. The information must be furnished by the 29th January 2009, which gives you ten days to provide what has been requested. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.

 

 

1. A true copy of the executed credit agreement for the alleged account and any terms and conditions that applied to the alleged account at the time of default and at the time the alleged account was opened. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of Proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to:

 

1. a copy of the procedure(s) used for copying, storing and retrieving documents
    
   
2. a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)
    
   
3. copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with
    
   
4. copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards
   

2. All records you hold on me relevant to this case, including but not limited to:

 

(a). Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor with reference to the alleged account.

(b). Where there has been any event in the alleged account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the alleged account.

©. Documents relating to any insurance added to the alleged account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

(d). Details of any collection charge added to the alleged account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

(e). Specific details of the fees/charges levied by any other agency in respect of this alleged account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

(f). A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

(g). A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

(h). Copies of statements for the entire duration of the alleged credit agreement.

 

3. Any other documents you seek to rely on in court.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

I will require this information within the next ten days. Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out, or stayed for non-compliance, and a summary costs order.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

[ScabHunter]

Every claim which Crapbot issues is so cleverly worded so that there is no specific mention of any of the relevant documents in the Particulars of Claim. No doubt this is to frustrate any attempt at using a CPR 31.14 request.

 

The letter in 42man's post above is only usable to obtain copies of documents mentioned in the statement of case. I suspect we can't use it here, although it would be good to get a definite verdict on this. Does the fact that the card account itself is specifically mentioned entitle the defendant to request a copy of the agreement under the CPR 31.14 or not?

 

For now, in this case, we just need to know exactly which letter you did use, and what you requested, as it will form a vital part of the holding defence you need to submit.

 

EDIT : WE DO KNOW - POSTS CROSSED

 

SH

Edited February 3, 2009 by ScabHunter
Posts crossed

[42man]

OK CPR18.....if they don't respond then you could use this defence -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/156156-help-mum-being-taken.html?highlight=birkenhead

[Guest xrm1]

Seems the idiots at Cabot are pushing their luck. Having sent off the CPR request I got the standard 'we can't get the info within 14 days, but will get it to you ASAP' letter.

 

Sent off defence, as above, in time and waited. Dead line for Cabot to inform the court they were going to proceed was today - sure enough the claim has now been transferred to my local court.

 

Also in todays post I recieved a letter from Morgan solicitors supposedly in response to my CPR request. It contained the same application form as I've had before, but no agreement, some statements, no notice of assignment, unrelated Ts&Cs (blank name & address - no signature) and nothing to say how they have worked out how much I supposedly owe them.

 

Anyone got any ideas how to proceed next? I was thinking report them to the law society for a start. Write to Cabot/Morgan & court saying they have not complied with CPR request. Maybe write to the court and ask that the claim be struck out as an abuse of process.

[Guest xrm1]

Anybody?

[Guest xrm1]

I am getting a bit desperate and worried now. I have sent numerous letetrs to Cabot/Morgan Solicitors advising them that they have failed to comply with various aspects of the Civil Procedure Rules.

 

I have also written to the court advising them of the same and requesting either the case be struck out or an order made forcing them to comply.

 

I have heard nothing from anybody and my AQ is due in on Monday.

 

It seems Cabot want to take this all the way and it is likely to go to the fast track and I can't afford any costs!

 

Can anybody offer any advice or just some words of support.

[missdpd]

sorry can't help you hun but will bump

[Toulose LeDebt]

I am getting a bit desperate and worried now. I have sent numerous letetrs to Cabot/Morgan Solicitors advising them that they have failed to comply with various aspects of the Civil Procedure Rules.

 

I have also written to the court advising them of the same and requesting either the case be struck out or an order made forcing them to comply.

 

I have heard nothing from anybody and my AQ is due in on Monday.

 

It seems Cabot want to take this all the way and it is likely to go to the fast track and I can't afford any costs!

 

Can anybody offer any advice or just some words of support.

 

Hi XRM1

 

Understand the clock is ticking very loudly with your aq submission.

 

I suggest you take a look at this thread from Post 74 onwards. Link Financial-GE Money

 

DG has already partially admitted the claim but that was before she came on this site. Myself, Foolishgirl and others have helped her use her AQ to good advantage. I think in your circumstances a similar approach is the correct way to go.

 

The important thing is to attach a request for special directions to your aq.

 

The example below is what we put together for DG, and was submitted with a view to getting the Judge to force the DCA into disclosing documentation.

 

I think with a little modification this approach will be ideal for you. Just mention that Cabot have failed to meet your CPR request in there and ask for the docs you feel appropriate.

 

Here are the important bits again [Obviously these are particular to DG's circumstances and would need modification to suit yours but the idea is the same].

 

 

In the ************* County Court

Claim number **********

 

 

 

 

 

 

Between

 

************* - Claimant

 

and

 

 

 

xxxxxxxxxx - Defendant

 

 

 

 

 

Draft Order for Directions

 

The Claimant shall within 14 days of service of this order file and serve the following:

 

* Copies of the executed Credit Agreement relating to this account and any documents referred to within it which complies with the consumer Credit Act 1974 and all subsequent regulations, which the claimant seeks to rely upon.

* Default Notice compliant with s87 (1) Consumer Credit Act 1974 and Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as amended.

* Document, contract or deed of assignment.

* A reducted copy of any debt sale agreement proving a financial transaction has occured and the date upon which the financial transaction occured or in the event this cannot be produced other than directly to the Court, a sworn statement to the effect that Monument have been paid in full for the purchase of this debt by the claimant and thus have no further fiduciary interest in the account in the event of enforcement by the claimant.

* Notice of assignment, with proof of service of the same compliant with s196 of the Law of Property Act 1925.

* Copies of any statement or other document relied upon by the claimant in support of their claim.

 

If the Claimant fails to comply with this order, the claim will be struck out without further order.

 

The Defendant shall within 14 days thereafter file and serve the following

 

* An amended defence sufficiently particularised in response to the documents supplied by the claimant

 

And:

 

 

 

Enc I- Other Information.

 

XXXXXXXXXX -v- XXXXXXX

Claim No: xxxxxxxxx

 

 

 

N150 Allocation Questionnaire

 

 

 

Section I- other information

 

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 have been unable to serve a proper defence.

I believe the claimant is at most the assignee of an equitable assignment or more likely simply a party to a debt sale agreement and thus has no title or right to bring this claim against me in their own name. The success of the claimant in producing the requested documentation will easily enable the Court to establish the right to title of the claimant on this account.

 

Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as no right to title and thus right to action shall have been proven by the claimant. Further to this point the defendant has made requests for documentaion under CPR in order that the defendant might fairly assess the agreeement, the terms associated to the agreement and determine the validity and or likelihood of the enforceability of the agreement. The defendant is of the belief that such formalities should be disposed of prior to any Court hearing date and the failure of the claimant to supply any of the documentation requested by the defendant thus far is likely to seriously inhibit the courts ability to deal with the case expeditiously.

 

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.

 

 

It is respectfully requested this case be allocated to the small claims 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

 

Do you see how you can use the aq to your advantage to force Cabot to produce these documents? The fact they have not complied with your CPR should count in your favour too.

 

Shout out if you don't understand.

 

TLD

Edited April 4, 2009 by Toulose LeDebt

[Guest xrm1]

Hi TLD,

 

Thanks for the advice. AQ all ready to go to court tomorrow with Draft Order for Directions. Have also sent another CPR request to Cabot and the muppets at Morgans. Feeling a bit happier now .

 

BTW - love the name, how long did it take you to come up with that?

[Guest xrm1]

Sorry if this is a bit of a long post but there have been some developments with the Cabot case and I could really use an opinion.

Having sent the previous letter to the courts I heard nothing. On 6th April I sent CPR31.14 requests to Cabot & Morgans and filed my AQ.

Next I received a copy of Cabot’s AQ – they have asked for a one month stay as well. Although they aren’t supposed to fill in reasons if they answer ‘yes’ they have and it states they are asking for the stay because they are ‘in the process of supplying defendant with advance disclosure’.

They have also admitted that pre-action protocol wasn’t followed since:

‘There was no debt recovery protocol’ and ‘Letter before action and documentation being sent or has already been sent to the defendant’. I have yet to receive the LBA but I have had a letter and a copy of it can be found here.

I have been going through the letter and the paperwork and there are some glaringly obvious inconsistencies.

They still insist the ‘reply card’ is the credit agreement – I know it isn’t and I’m not going into that with them again.

The terms and conditions cannot be relevant because the print date on them is after I signed the application form.

The statements are incomplete (I have asked for a full set). There is nothing before January 2003 showing how the alleged balance was arrived at. There is a big gap between the last statement and the date they say they purchased the debt.

They claim they were unaware of a refund of charges meaning the amount in the Particulars of Claim are incorrect – also the account number in the POC does not match the account number on the statements.

The Notice of Assignment also states the incorrect amount and the name/signature on it is different from an earlier Notice of Assignment. They claim they were unaware of the refund of charges, but Monument must have been aware so why would the original NOA (allegedly from Monument) state the wrong amount?

They have also sent a Deed of Assignment but this is nothing more than a large contract with a few pages at the back where amounts etc. are missing. The DOA does not refer to me or the alleged account number anywhere within it.

Also what is all the rubbish about Section 87(1) and my CPR requests being ‘disproportionate’?

I wrote to the court on 28th March with a Draft Order for Directions. I have now received, in response to this letter, a form N244 and a letter which says the District Judge has directed that an application is required. I am not sure how to proceed now in the light of all the other rubbish from Cabot and the Solicitors.

Any advice greatly appreciated.

[nicklea]

If you haven't already included this in your defence I suggest that you do, it relates to the deed and notice of assignment of the debt to Cabot:-

 

1) It is not admitted that the alleged debt was lawfully purchased by the claimant. This matter is outside the knowledge of myself. The claimant is put to strict proof that such alleged agreement was purchased.

 

2) I aver that if, which is not admitted, such purchase took place for it to be lawful the alleged agreement must have been assigned to the claimant. The claimant is therefore put to strict proof as to whether such an assignment occured. If, which is not admitted, there was an 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.

 

3) 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—

 

Section 196(4) 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 (eg Royal Mail recorded delivery or special delivery).

 

4) 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 court action was commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me. Without this proof, the Claimant has no right of action.