Major Help needed with Cabot and CCJ**WON** Case dismissed

[Spamalot]

Hi There.

 

you have left one or 2 personal details on the above post so it may be worth a quick edit..

 

Did your dad get and acknowledge a Notice of assignment from the claimant?

 

And did your dad ever receive a claim form?

 

Spam

[Spamalot]

In that case regardless of what they say your dad will have to put them to 'strict proof' that they have done the things they said they have.

 

i.e its up to them to prove your dad received the claim form, notice of assignment etc. so they will have to supply proof of postage and a signature to do that.

 

As long as your dad has not acknowledged anything that they have alleged then there shouldn't be a problem getting a set aside as he has not had the opportunity to submit a defence.

 

It seems to me they are just trying to scare him into dropping the application but my advice would to be to stand firm and go ahead with it.

 

Spam.

[Spamalot]

Once your dad gets into the Set aside hearing and assuming the judgement gets set aside, the claim will go back to square one and your dad will be able to submit a full defence. He can then ask the judge to order the claimants to produce all the documents.. it is then up to the claimant to comply or give up.

 

I therefore wouldn't worry about asking again at the moment.

 

Spam:)

[Spamalot]

Yes, it would be advisable for him to have a 'defence' with him to refer to. and a copy for the judge and the other side if they show up..

 

This is a copy of a defence I intended to use at my hearing..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/192275-ccj-interest-debt-15.html#post2381656

 

Fortunately, the other side backed down and I didn't have to use it.. but you may be able to edit it to suit your case.

 

Spam.

[Spamalot]

The plot gets better and better.

He has had a letter today from Morgan Solicitors - Cabot, with an application for a final charging order dated 10 days after I sent them A letter asking for all the info, the hearing is on the 7th October.

I take it they have carried on regardless with the judgement they have

Any advice on this would be great.

 

Is the date of the application for a final charging order before or after the date of your dads set aside application?? Could the applications have crossed or does it look as if your dads application has 'spurred them on' to do something.

 

Also, where have Cabot applied for the final CO, is it at Northampton bulk centre or your dads local court?

 

If your dads application to set aside is being heard on 16th September, then it is before the hearing of their application on 7th October and if the CCJ is set aside they won't be able to get a CO...:-|

 

Spam.

[Spamalot]

Just to add,

 

I googled Akram v Adam and came up with this..

 

PART 13 - SETTING ASIDE OR VARYING DEFAULT JUDGMENT - Ministry of Justice

 

It seems this is what they will be using to justify opposing your dads Set aside.

 

Spam.

[Spamalot]

Good idea to contact the court... it looks as though they've squeezed your dads set aside hearing in before the CO one so that it can be sorted out first so you need to get a nice strong case together to prove your dad has a good defence up his sleeve.

 

You mention the Particulars of claim in post 8... Can you be more specific in what it says..?

 

Just type it out with identifying details removed and then we can take each point and make sure your dads defence covers it.

 

Spam.

[Spamalot]

Briefly, that POC can be torn apart... no mention of Assignment, default notices, how they reached the figures... arrears...agreement and is it relating to two agreements or is it that MBNA were servicing the Argos Card?

Also they would not be able to claim interest after judgement if the claim relates to a regulated consumer agreement...

 

Spam.

Edited September 5, 2009 by Spamalot
Spelling..

[Spamalot]

On first sight it looks as though they are trying to rush this through the courts because their paperwork is definitely not 'up to snuff'..

 

I have never dealt with Cabot before and I don't know if you are aware of the way they work but it may be worth researching a few threads involving them to see what their 'claims' are like and how others have dealt with them in the past..

 

It seems strange that they are making one claim for two seperate agreements so that's something that definitely bears scrutiny... get as much info from your dad as possible cause you really need to get a nice 'belt and braces' defence so that if they wriggle out with one thing you can get them with something else..

 

I haven't too much time today, but I'll have a scout around when I can and see what I can dig up.

 

Spam.

[Spamalot]

That really is a rubbish POC!!... They've purchased some debts... hm... where does it say that it relates to anything your dad has signed and when???

Oh...and who did they purchase the debt from....and when were they assigned absolute???

 

Oh and when did they default your dad and for how much??

 

No wonder they're trying to tie this up with a charging order... seems like they haven't a leg to stand on... so unless your dad gets a judge with his wig on back to front he should be ok to get this set aside without too much trouble..

 

Make sure he has all the points covered with regards to why he is asking for the set aside.. I.e papers not served etc. as that is just as important as the defence..

 

Then I'll give you a hand later in picking out the relevant bits for his defence... which at the moment, without docs is leaning towards 'embarrased'.

 

Spam.

[Spamalot]

The POC should really state all this info, and by neglecting to put it in Cabot have not played very fairly..

 

It should have something like by an agreement dated XX.XX.XX between MBNA and DAD... Dad defaulted on the agreement... a default notice was sent XX.XX.XX Dad failed to remedy the default... agreement terminated..

MBNA assigned agreement to CABOT on XX.XX.XX NOA sent to dad...XX.XX.XX... LBA....XX.XX.XX and so on... and in whatever order it happened... depends who terminated the agreement and when..

 

Without a valid default the agreement was terminated unlawfully and therefore should never have reached the stage of Court...also without a valid NOA Cabot would have no legal right to take the matter to litigation..therefore there are oodles of things that they have done wrong and not adhered to the rules.

 

If a default notice was sent, they have to prove that your dad received it, and that he was given sufficient time to remedy, and that the figures were correct. If there were unlawful charges included in the figures then that would render it invalid..

 

Spam.

[Spamalot]

It makes you wonder what they did produce to get the judgement:p

 

When a claim is put through Northampton CCBC they don't have to produce any documents.. thats why so many cases get as far as judgement which under normal circumstances would fall at the first hurdle.

 

Unfortunately there are too many people around who don't realise this and thats how the Likes of Cabot get their money.

 

Don't worry if you don't get sight of any of the documents you've asked for before the set aside hearing because your dad can ask the judge for an order to produce them..and if they haven't got them they'll just have to squirm..

 

If the debts have been assigned absolute, then Cabot should have everything relating to the accounts.

 

Your dad will also need to ask for the DEED of assignment to be produced to prove ownership of the agreeement/s if they ever turn up.... Cabot won't like producing this because they've probably only paid a few pence in the pound for the debts..

 

Spam.

[Spamalot]

Hi again,

 

Just thought I'd add this link as it may be of interest.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/153323-cabot-court-case-any.html

 

Spam.

[Spamalot]

is it worth putting in a skeleton Defence once it is done??? Just read on some of the threads thats all that some have done it.

 

When you are going for a set aside you don't have to put in a fully particularised defence, you just have to have enough to show that you could win the case at trial. Once the set aside has been granted that is when you need to go into it in more detail with case law etc.

 

At this stage, Cabot have to be put to strict proof that they have the documents needed to take the matter to trial as they have not supplied anything much that you can confirm or deny.

 

We will help you get the Set aside defence ready for the day.. and assuming all goes well that defence can be fully particularised afterwards with a countercalim added.

 

Spam.

[Spamalot]

Hi Gaz,

 

I believe you can go in as a 'McKenzie friend'

 

There's a lot of info on this thread which may help..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/195563-litigants-person-interesting-reading.html

 

What we can do is prepare his defence and reason for set aside in avery simple format so it can basically be read off the page.

 

These hearings are more like 'informal gatherings' where you sit around the table with the DJ at the head directing it all.

 

Just make sure he is well prepared and well briefed and I'm sure he'll be ok..

 

Spam.

[Spamalot]

It depends on which defence you are looking at... The most recent one is ready for my hearing.. a few pages earlier is the set aside one.. It's similar but nowhere near as involved..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/192275-ccj-interest-debt-15.html#post2381656

 

Should be on the above post if I've linked it correctly... a copy would be given to the judge and the other side so as long as your Dad is familiar with whats in it, he should be OK.

 

Spam.

[Spamalot]

I understand your Dads hearing is on 16th of this month so thats middle of next week.... I'll have a proper look at your thread a bit later and see if I can edit my old defence to suit...unless you are happy doing it yourself..:-|

 

There are a lot of similarities in the cases but as there's two alleged agreements, it'll be slightly more involved.

 

Spam.

[Spamalot]

Ok I'll have a go at getting it done by thurs afternoon if thats ok I hope that gives your dad enough time to familiarise himself with it. Just add anything you can find in the meantime..

 

Spam.

[Spamalot]

Thats ok, the less the better...

 

If you can scan up the 'agreement'... usual bits blacked out.. so we can see what they're working with and what we can pull apart that would be great..

 

Spam.

[Spamalot]

Hi Gaz,

 

No Thats fine.. It is just an application form and it doesn't appear to be an enforceable agreement...

 

The T&C's should be on the same page as the signature and as you can see they are actually in a booklet and not attached to the application form. Argos don't seem to have bothered trying to hide the fact cos they've already sold the debt on... Looking good so far..

 

Spam.

[Spamalot]

It basically means that the agreement can't be enforced in a court of law.. i.e whatever the debt they can't make your dad pay it... the lack of defaults etc are just the icing on the cake...

 

Spam.

[Spamalot]

Hi Gaz,

 

This is a rehash of my set aside defence edited to suit your dads case..

 

I've highlighted the sections that need your attention re correct names, dates etc.

Also I'm not sure if you requested a termination letter and/ or whether there's charges on the alleged account so just edit those out if they're not needed.

 

COUNTY COURT CLAIM NO: xxxxxxx

On Transfer from the

NORTHAMPTON COUNTY COURT

 

 

BETWEEN

 

 

 

Cabot Financial

 

 

CLAIMANT

 

 

 

And

 

 

 

 

 

Gazhodge Dad

 

 

DEFENDANT

 

 

 

 

 

Respectfully, I wish to apply for a set-aside of the Judgment given in this case to the Claimant at the Northampton County Court Bulk Centre on xx xx xx

 

The defendant denies that he is liable as alleged in the Particulars of claim, or at all.

 

In respect of the alleged agreements, a request was made under CPR 18 for a copy of the agreements on xx xx xx. The request was sent Special Delivery and signed for. A satisfactory copy of either agreement was not produced. It is denied that any such agreement was entered into by Gazhodge Dad and Mbna Bank or Gazhodge Dad and Argos the claimant is put to strict proof that such agreements exist.

 

Should it be proved that either of these agreements exist, it is denied that the claimant has the legal right to enforce them and therefore is put to strict proof of their rights of ownership by way of a Legal Assignment.

 

A request for the copy of Assignments for these alleged agreements was made under CPR 18 on xx.xx.xx and was sent special delivery and signed for, but they were not produced by the Claimant.

I would therefore respectfully seek the Courts permission to request sight of the Deeds of Assignment in respect of both of these alleged debts.

 

In addition, the defendant requires proof of service of the Notices of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears these are assigned debts. The reason the defendant requests this information is inter alia to clarify the dates and amounts are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered ineffectual in

law per W F Harrison & Co Ltd v Burke and another - [1956] 2 All ER 169.

 

 

 

The defendant denies that any valid default notices was received from the claimant. The Consumer Credit Act 1974 s. 87 (1) states

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement (a) to terminate the agreement.

 

A request was made for copies of default notice(s) under CPR 18 on xx.xx.xx. by special delivery which was signed for, but none were produced, therefore the claimant is put to strict proof that a valid default notices were issued by the claimant and of the proof of service.

 

 

The defendant also denies that a notice of Termination of the alleged agreement was received. A request for copies of a notice of Termination was requested under CPR 18 on xx.xx.xx. and sent special delivery and signed for. No Notices of Termination were produced by the Claimant.

 

To Date the claimant has failed to comply with my request under the CPR and I have not received any of the documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person.

 

 

 

In respect of the alleged agreements, to which penalty charges have been levied, it is denied that any monies are owed to the Claimant.

 

 

The Claimant also seeks to claim interest under s.69 of the County Courts Act 1984.Statutory interest on a regulated agreement is prohibited in accordance with the county courts (interest on judgment debts) order 1991.

 

The Claimant, possessing no legal right to claim monies allegedly owed, has acted unlawfully in obtaining a CCJ and registering said Notice with Credit Reference Agencies. Such conduct is a breach of the Data Protection Act 1998 and amounts to defamation. Under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999.

 

The Claimants have not established any legal right to issue a claim or proven that any debt exists. The claimant also claims £xxx.xx in charges. I refute these are payable. These are default charges levied on the account for alleged late payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 [The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial.

 

 

 

 

I believe that the facts stated in this defence are true.

 

I am the Defendant

 

 

 

Signed

 

 

 

Hope it's ok, It's shamelessy stolen from Andyorch;). I'll get a 'reasons for set aside' prompt sheet ready also when I can.

 

Sorry I couldn't attach it as a document but my laptop won't let me open the pop up window.. It should be ok to copy and paste into word though.

 

Spam.

[Spamalot]

To be honest I would say not to worry about taking anything else at this stage.

 

Your dads reason for requesting a set aside is no LBA and no claim recieved and his main defence is that Cabot have no documents to prove he is indebted to them and he doesn't owe them any money whatsoever so they should not be taking him to court.

 

It's just as if I were to put a claim in to Northampton CC saying you owe me loads of money and send it to the wrong address so that you don't receive it and get a default judgement against you cause you didn't reply... Thats about the strength of their claim against your dad...

 

Leave it to them to prove it...

 

 

 

Spam.

[Spamalot]

The charges would be if your dad had any overlimit or late payment charges that were unlawful... Therefore... if the matter went to trial.. and the judge enforced the agreement.. he could dispute the amount owing on the claim because it included unlawful charges...

 

If it doesn't apply to your dads case just edit it out..

 

Spam.

[Spamalot]

Hi Gaz,

 

Also do i need to take what they sent me of the CRP request?? to show the judge?

 

There's no harm in taking it but don't offer unless asked. The defence by rights should be enough and if the set aside is awarded ok your dad should ask the judge to give directions that all the stuff he asked for under CPR and hasn't yet received should be produced.... ESPECIALLY the deed of assignment for both alleged agreements!.

 

Also just have a brief note of the reasons why the Set aside is being requested.

 

Spam.