Cabot financila (Vanquis CC) court summons is it too late to use CCA 1974?

[hunni2006]

Just received a summons (dated 22/05/09) from Cabot financial for a Vanquis CC debt, Have read through many of the threads on here about CCA 1974 and wondered if I am too late to go down this route.

 

 

I don't have any memory of actually signing any agreement, but have no paperwork for that period as we had a fire nov 2007 which destroyed all paper records at our home.

 

under which act do I request the information? there seems to be 3 available, Data protection, CCA 1974 and pr action disclosure.... am extremely confused..

Edited September 30, 2009 by hunni2006
too much info!

[ncf355]

Being Vanguis, this is likely to be an online application, in which case they would only need an electronic signature (tick in a box)

 

Also, given the date of the agreement, you would not have the protection of S127(3) that could render the agreement unenforceable (with or without a court order) if the prescribed terms were not found

 

Looking at the agreement (just galncing over) it does rather look as though it would meet all the prescribed terms

 

However, you can ask for all the information your require under Civil Procedure Rules:

 

Obtaining further information

 

18.1

 

(1) The court may at any time order a party to –

(a) clarify any matter which is in dispute in the proceedings; or

 

(b) give additional information in relation to any such matter,

 

whether or not the matter is contained or referred to in a statement of case.

 

(2) Paragraph (1) is subject to any rule of law to the contrary.

 

(3) Where the court makes an order under paragraph (1), the party against whom it is made must –

(a) file his response; and

 

(b) serve it on the other parties,

 

within the time specified by the court.

 

 

 

 

 

 

This enables you to write to them asking for all information, and if they fail to supply ask the court to make an unless order (namely that unless they supply the info requested their case is struck out)

 

 

 

 

Did the court claim come via Northampton bulk clearing centre or your local court?

 

 

Also, have you received a default notice (under Section 87 of the CCA 74') prior to the issue of this claim? - they are required to send this and give you 14 clear days from receipt of the notice to clear your arrears

 

 

If they did not, they are acting unlawfully in starting the action

 

 

If they did, scan it and post it up here (minus personal details) so we can check the details to see it conforms with the legislation

[42man]

Hunni what are the POC's ? (Particulars Of Claim) don't be too specific with the numbers though...

[hunni2006]

thanks for getting back so quick!

Yes ..The summons came from the Northampton Bulk centre.

I received a couple of letters early on in the year from Cabot, just asking me to pay and or get in touch, but just ignored them as I had more pressing problems at the time, but there was no default notice. I've heard nothing from them for quite a while now. I have received nothing from their solicitors, Morgans either.

 

the POC says... 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 XXXXXX in relation to the defendant's Vanquis Bank Limited Credit Card Account number xxxxx And the claimant calims the sum of XXXXX together with interest under section 69 of the County courts act 1984 and costs.

 

Also, one last thing... I'm a little confused as to why this would apply, I thought that it was agreements that were prior to April 2007?

Also, given the date of the agreement, you would not have the protection of S127(3) that could render the agreement unenforceable (with or without a court order) if the prescribed terms were not found

[42man]

You MUST send out a CPR asap by recorded delivery to the claimant (or their solicitors) - http://www.consumeractiongroup.co.uk/forum/legal-issues/185051-claim-form-received-today.html#post1992524

[hunni2006]

Hi, thanks. sorry to be a bit dense, but I presume that you meant this letter, and given the POC only states that cabot purchased the debt, which documents would I be asking for?

 

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.

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

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*

 

4 the termination notice*

 

5 [any other documents mentioned in the Particulars of Claim]*

 

* delete if not mentioned in the Particulars of claim.

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

# delete if claim for a sum exceeding £5,000.00

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) 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

[hunni2006]

so, let me get this straight, I acknowledge receipt online, tick that I intend to defend ALL of the claim, and send a CPR off to their solicitors?(recorded delivery), still not sure given the POC which particular documents I should ask for.

 

Also What was the significance of the issuing court? and the date of agreement?

 

oh, and thanks very much for all your help with this, It's my first time on any sort of forum, and I'm finding this one extremely helpful.

[42man]

I was a bit concerned at the POC's in the fact that CPR18 might be a better option for you... -

 

In the XXXX County Court

Claimant -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

 

 

Dear XXX

 

CPR 18 - REQUEST FOR INFORMATION

 

I have received a recent court claim from your organisation. In order to file a defence and counter claim I require some information. 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 within fourteen days of the receipt of this letter. 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 and any terms and conditions that applied to the account at the time of default and at the time the 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:

 

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) 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)

© 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

(d) 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

b. Where there has been any event in my 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 my account formerly held with *********.(AMEND TO THE COMPANY NAME)

c. .Documents relating to any insurance added to the 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 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 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 credit agreement.

 

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

 

 

I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence and counter claim.

 

Yours sincerely,

 

XXXX (type, don't sign).

[42man]

Keep to the timetables and have a look at these in this link - http://www.consumeractiongroup.co.uk/forum/legal-issues/202604-ccj-defence-form-against.html#post2205532

[hunni2006]

Thanks Very much, I'll do that now. what happens next?

[42man]

The significance of the court is that with Northampton it is a bulk clearing centre for claims and can be done online....You must acknowledge the claim within 14 days of the date on the claim form - then if it is your intention to defend all then this must be stated, then you get a further 14+3 days in which to submit your defence....

[hunni2006]

Thanks.

Would you advise defending all of this claim? I'm a little worried now because of the comment I received earlier:-

Also, given the date of the agreement, you would not have the protection of S127(3) that could render the agreement unenforceable (with or without a court order) if the prescribed terms were not found

 

Looking at the agreement (just galncing over) it does rather look as though it would meet all the prescribed terms

[Dinkjames]

The statement above is incorrect, so no need to worry

 

Schedule 3 section 11 of the CCA 2006 makes it clear that S127(3-5) are not repealed for agreements entered into before 6th April 2007

Your agreement was entered into on 15/04/2006, so you are still covered by S127(3)

 

[edit]Just wanted to add that the statement is correct in that the sections were repealed, but only for agreements entered into after 6 April 2007. As yours was entered before that, you are covered.[edit]

Edited June 3, 2009 by Dinkjames
grammar and additional info

[hunni2006]

Thank you

[hunni2006]

right, I posted the CPR18 request -special delivery- to the solicitors, I still have to acknowledge receipt of the summons, but got a little panicky... do I defend ALL or PART of the claim, and if I defend and loose will I end up with a huge legal bill from the other side?

You must acknowledge the claim within 14 days of the date on the claim form - then if it is your intention to defend all then this must be stated,

[42man]

If you defend part of it then you'll get a CCJ....if you defend all then you may not get one at all....but you need to be aware of the implications H

[hunni2006]

If you defend part of it then you'll get a CCJ....if you defend all then you may not get one at all....but you need to be aware of the implications H.

 

what implications?

[42man]

The implications of going to court and making your case in front of a judge and an opposing solicitor....(if of course it gets to court)

[hunni2006]

Re: Cabot financila (Vanquis CC) court summons is it too late to use CCA 1974? http://www.consumeractiongroup.co.uk/forum/general-debt-issues/202646-cabot-financila-vanquis-cc.html right, I posted the CPR18 request -special delivery- to the solicitors, I still have to acknowledge receipt of the summons, but got a little panicky... do I defend ALL or PART of the claim, and if I defend and loose will I end up with a huge legal bill from the other side?

You must acknowledge the claim within 14 days of the date on the claim form - then if it is your intention to defend all then this must be stated,

Re: Cabot financila (Vanquis CC) court summons is it too late to use CCA 1974?

If you defend part of it then you'll get a CCJ....if you defend all then you may not get one at all....but you need to be aware of the implications H

__________________

 

What implications? can anybody help please?

[42man]

Nobody can make your mind up for you Hunni, only you can decide that.....and I think you should send off for a request for your agreement too...

[hunni2006]

Thanks 42man, have acknowledged receipt and defending all the claim.

 

I thought the agreement would be included in the list of documents in the cpr18.

Who should I request it from- Cabot or vanquis? and which request would you use? .... sorry to be so dense... but this is a very intimidating minefield to me! _ thank you for your help!!

[42man]

The CPR PART 18 request is sent to the solicitors, send the CCA request (with a £1 postal order - and send recorded) to Cabot this is in the link below this message.....then you await for the Allocation Questionnaire...and in the meantime spend lots of time having a read around these forums....you could possibly send a SAR off to Vanquis too (this is also in the link below) unfortunately this will cost £10 - again send postal orders and send recorded, If they fail to provide a CCA within 12+2 working days then they are in default of your request...(so do this ASAP)...the SAR takes a little longer - 40 calendar days to provide....but the CCA is a legal request, the SAR is just a request for information on a data subject...(so basically this can't be ussed in court really, but it shows you are attempting to get information)....

[hunni2006]

Many thanks I've been reading almost constantly for the last 2 days... tbh it's giving me the confidence to get my head out of the sand.... wish I'd known about this site before things got this far!

[hunni2006]

I posted off a CCA request to cabot on monday, along with my £1 postal order.

The postman has just been, and I received the following letter, along with my postal order for £1...... ( Tried to scan it but cant seem to copy the image onto here...) It reads...

Thank you for your your request for information under the CCA 1974, cabot financial does not have this information on file. We have requested the relevant information under sec 77 and/or 78 of the CCa 1974 from the original lender.

Please be advised, we do not accept the statuary fee required under sec 77 and/or 78 of the CCa 1974 and we have returned the fee for £1 that you have sent.

We anticipate that we will be able to provide this information within 12 days. In the event we are unlikely to obtain this information within those time limits, we will write to you again.

 

 

what do I do now? do I wait to hear from them?

 

In the meantime I have sent a subject access request to vanquis, with a view to making a counter claim for the charges on the account, which I'm certain with interest will make up a substantial portion of the total debt, or do you think this will complicate matters

[hunni2006]

Any advice would be greatly appreciated