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comments in red JMHO though

 

1. I, xxxxx xxxxx am the defendant in this action and make the following statement as my defence to the claim made by Cabot (UK) Ltd

 

2. The Claimant states in their Particulars of Claim that a Loan with the Reference of 123456 is the basis of their claiming from the defendant the sum of £50xx.xx

 

3. The Defendant denies all allegations made in the Claimant’s Particulars of Claim in their entirety and puts the Claimant to strict proof thereof.

 

4. The Defendant is embarrassed in pleading to the Particulars of Claim, inter alia:

 

5. 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.

 

6. In this regard the Defendant wishes to draw the Court’s attention to the following:

 

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action.

 

However later on in your own Defence you admit to receiving an agreement and an NOA

 

b) No particulars are offered in relation to the nature of the written agreement referred to in the Particulars of Claim.

 

But you've since been given a copy of the agreement.....

 

c) No particulars are offered in relation to the method the claimant has used to calculate any outstanding sums due, nor the nature and scope of any charges contained within the figure claimed, nor any default notices issued for the Claimant to have a legitimate right of action under the purported written Agreement or any other matters necessary to substantiate the Claimant’s claim.

 

This is a *really* good point - why is it not part of the Defence, but instead part of your reasons to be embarrassed???

 

 

d) No 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 been served attached to the claim form.

 

Doesn't need to be as it was issued through CCBC, however since then you have been sent a copy which will accepted.

 

e) No copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has been served attached to the claim form.

 

Why do they need to show this??

 

f) The amount stated on the claim appears to include an amount of Loan Protection Insurance which is confirmed on the documentation supplied by the claimant ,as well as interest applied on this amount, yet the documentation does not demonstrate how, when or where the PPI was agreed to or signed for, nor does it include any terms and conditions for this amount - therefore the accuracy of the amount stated in the claim is doubted and the defendant places the claimant under strict proof on the accuracy of the amount claimed.

 

This is another *really* good point - why is it not part of the Defence, but instead part of your reasons to be embarrassed???

 

g) The claimant states in a letter dated xx/xx/xxxx that they “bought” the account. The Claimants solicitor also state in a letter dated xx/xx/xxxx that they own the debt due to an absolute assignment, yet in the letter before action received on xx/xx/xxxx clearly states that Egg is the creditor, yet the named creditor has not joined in this claim.

You're going to have to be clear on what points of Law you are arguing this point. The new European Directive makes it quite clear that a legal entity can be assigned the rights only by absolute assignment.

 

h) Furthermore the Claimant has to date failed to provide the Defendant with any legitimate evidence to substantiates their claim of ownership.

 

See below about the NOA being all they need to do

 

i) In the Particulars of Claim, Interest is claimed under s69 County Courts Act 1984. Yet it clearly states in S69 County Courts Act (4) that “Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs” and since within the Terms and Conditions of the documentation provided there is no provision to apply such interest to this account after termination, it is therefore unclear on what basis this claim is made.

 

I would actually deny they have any right to add this interest.

 

j) Consequently due to the Claimants failure to supply the documents required under the Civil Procedure Rules and the fact that the Claimant has failed to sufficiently particularise the claim I deny all allegations in Particulars of Claim that I am indebted to the Claimant in any way and put the Claimant to strict proof thereof.

 

So, you are *only* denying the claim because of a failure to adhere by the CPR ..... be careful what you say

 

The build up to this action

7. On the xx/xx/xxxx I received a letter from Cabot stating that they had bought an account from Egg Bank identified in the letter by a Cabot reference of 123456 and an alleged account number of abcdefg. In the same envelope there was also a copy of a letter allegedly from Egg and bearing the Egg logo, but clearly created by the same hand as the letter received from Cabot, this letter also referred to the account number abcdefg. I wrote to Cabot advising of an existing dispute over an account with Egg bank and sought clarification via documentary verification of their claim of ownership and requested a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

 

8. Cabot responded on the xx/xx/xxxx by providing an alleged agreement which did not contain the account number abcdefg but onto which the number 123456 had been hand written. The alleged agreement did not contain all of the required prescribed terms required under statute and precedent and as the front page differed significantly from the signature page in both form and content, I doubted the authenticity of this document.

 

Hmmmm, you need to be very very careful accusing someone of that in Court. I hope you have very good evidence to back this up, otherwise it will be thrown back at you.

 

9. I wrote to Cabot stating that the references on the alleged agreement did not correspond with those in their communications and that the letter purporting to come from Egg bank had clearly been created by themselves in breach of s136 of the Law of Property Act 1925

 

There is nothing to stop then using Egg letterhead to write letters (with Egg's permission) on their behalf. They must not sign it as if it were from Egg though.

 

10. I also advised Cabot that the documentation supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and further requested that they supply the required documents. Cabot wrote back claiming the document supplied was a valid Consumer Credit Agreement under the 1974 Act and that the Letter dated xx/xx/xxxx was in fact a Notice of assignment.

 

11. Between the dates xx/xx/xxxx and xx/xx/xxxx I requested on no less than five occasions that Cabot substantiate their claims of ownership of this account and that they provide legitimate documentary proof of such ownership and liability

 

The NOA is all that is required by Law and you have confirmed to them that you had received it and understood its meaning

 

12. On xx/xx/xxxx I received a letter from Morgan solicitors advising me of their intention to litigate. Shortly afterwards I received the court claim form.

 

The Request For Disclosure

 

13. Further to the case, on the xx/xx/xxxx I requested the disclosure of information pursuant to the CPR 31.14 and CPR part 18 which is vital to this case from the claimant , The information requested amounted to copies of the Credit Agreement 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 to the original creditor and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. Also any other documents the Claimant seeks to rely on.

 

14. The claimant has replied by providing the Defendant with a copy of the same document as stated in point 8, the reference as stated in the Particulars of Claim was again hand written on the signature page of this document. A redacted copy of the alleged Deed of Assignment was supplied with no information visible. A redacted account history was also provided which serves no purpose in confirming the claimants claims

They have fulfilled their obligation under CPR31.14 as they have sent you copies of already disclosed documents that you have requested. None of the other documetns have been disclosed and therefore cannot be requested under 31.14

 

Conclusion

 

15. The overriding objective in CPR 1.1(2) requires the court to, as far as possible, place the parties on an equal footing. The fact that the Claimants have in their possession a document which is determinative of one the major issues as between the parties should in my submission require disclosure to enable the Defendant to form a view as to whether there has been a lawful assignment. It is with respect the position that not only do the interests of justice require disclosure but that the Claimant cannot prove its case without producing the alleged Deed of Assignment to the Defendant. If, which is not admitted, there was an agreement, enforceable or otherwise, in existence the Claimant has not proved that there has been a lawful assignment.

 

16. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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

 

You have offered no argument as to why the agreement is not enforceable - you have a copy of it - so why is it not enforceable - which prescribed term(s) is/are missing.....

 

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

 

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Its just legal speak, basically meaning their POC is so vague that you are unable to plead effectively or at all...doesnt mean it in the sense we all know it as

 

Yes, I understand what it means - it means that you are unable to plead effectively against the POC.

 

But then pleads very effectively by denying all claims and giving very full reasons for doing so ......

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1. I, xxxxx xxxxx am the defendant in this action and make the following statement as my defence to the claim made by Cabot (UK) Ltd

 

2. The Claimant states in their Particulars of Claim that a Loan with the Reference of 123456 is the basis of their claiming from the defendant the sum of £50xx.xx

 

3. The Defendant denies all allegations made in the Claimant’s Particulars of Claim in their entirety and puts the Claimant to strict proof thereof.

 

4. The Defendant is embarrassed in pleading to the Particulars of Claim, inter alia:

 

5. 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.

 

6. In this regard the Defendant wishes to draw the Court’s attention to the following:

 

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action.

 

However later on in your own Defence you admit to receiving an agreement and an NOA

Not the agereement, AN agreement with a completely unknown account number?

b) No particulars are offered in relation to the nature of the written agreement referred to in the Particulars of Claim.

 

But you've since been given a copy of the agreement.....

But not the one referred to in the POC?

 

c) No particulars are offered in relation to the method the claimant has used to calculate any outstanding sums due, nor the nature and scope of any charges contained within the figure claimed, nor any default notices issued for the Claimant to have a legitimate right of action under the purported written Agreement or any other matters necessary to substantiate the Claimant’s claim.

 

This is a *really* good point - why is it not part of the Defence, but instead part of your reasons to be embarrassed???

because he has simply stated a figure without an explanation, how can I defend aaginst a figure like this?

 

 

d) No 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 been served attached to the claim form.

 

Doesn't need to be as it was issued through CCBC, however since then you have been sent a copy which will accepted.

They haven't sent an agreement as stated in the POC, they have hand written an account number on AN agreement

 

e) No copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has been served attached to the claim form.

 

Why do they need to show this??

In order to prove that they have a case perhaps?

 

f) The amount stated on the claim appears to include an amount of Loan Protection Insurance which is confirmed on the documentation supplied by the claimant ,as well as interestlink3.gif applied on this amount, yet the documentation does not demonstrate how, when or where the PPI was agreed to or signed for, nor does it include any terms and conditionslink3.gif for this amount - therefore the accuracy of the amount stated in the claim is doubted and the defendant places the claimant under strict proof on the accuracy of the amount claimed.

 

This is another *really* good point - why is it not part of the Defence, but instead part of your reasons to be embarrassed???

in order to cast doubt on every aspect of their claim, even their own evidence is proving contrary to their claim?

 

g) The claimant states in a letter dated xx/xx/xxxx that they “bought” the account. The Claimants solicitor also state in a letter dated xx/xx/xxxx that they own the debt due to an absolute assignment, yet in the letter before actionlink3.gif received on xx/xx/xxxx clearly states that Egglink3.gif is the creditor, yet the named creditor has not joined in this claim.

You're going to have to be clear on what points of Law you are arguing this point. The new European Directive makes it quite clear that a legal entity can be assigned the rights only by absolute assignment.

I don't know where you're going with this..... they say they own the debt and that it was via an absolute assignment and then they claim that someone else is the creditor, in order to bring a claim in court they must be the creditor - unless the european directive states that the contrary is true?

 

h) Furthermore the Claimant has to date failed to provide the Defendant with any legitimate evidence to substantiates their claim of ownership.

 

See below about the NOA being all they need to do

it still needs to be created by the hands of the assignor according to the LOP - forgery is still unlawful according to the deception/fraud laws

 

i) In the Particulars of Claim, Interest is claimed under s69 County Courts Act 1984. Yet it clearly states in S69 County Courts Act (4) that “Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs” and since within the terms and conditionslink3.gif of the documentation provided there is no provision to apply such interest to this account after termination, it is therefore unclear on what basis this claim is made.

 

I would actually deny they have any right to add this interest.

Am I not doing that here?, I have stated both sides of the argument, if they say the account is live there is statute, if they say it's terminated there is nothing that allows it neither

 

j) Consequently due to the Claimants failure to supply the documents required under the Civil Procedurelink3.gif Rules and the fact that the Claimant has failed to sufficiently particularise the claim I deny all allegations in Particulars of Claim that I am indebted to the Claimant in any way and put the Claimant to strict proof thereof.

 

So, you are *only* denying the claim because of a failure to adhere by the CPR ..... be careful what you say

So by not fulfilling any of their obligations and not producing a meaningful argument or even stating their poc correctly, I deny it all = same thing

 

The build up to this action

7. On the xx/xx/xxxx I received a letter from Cabot stating that they had bought an account from Egg Bank identified in the letter by a Cabot reference of 123456 and an alleged account number of abcdefg. In the same envelope there was also a copy of a letter allegedly from Egg and bearing the Egg logo, but clearly created by the same hand as the letter received from Cabot, this letter also referred to the account number abcdefg. I wrote to Cabot advising of an existing dispute over an account with Egg bank and sought clarification via documentary verification of their claim of ownership and requested a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

 

8. Cabot responded on the xx/xx/xxxx by providing an alleged agreement which did not contain the account number abcdefg but onto which the number 123456 had been hand written. The alleged agreement did not contain all of the required prescribed terms required under statute and precedent and as the front page differed significantly from the signaturelink3.gif page in both form and content, I doubted the authenticity of this document.

 

Hmmmm, you need to be very very careful accusing someone of that in Court. I hope you have very good evidence to back this up, otherwise it will be thrown back at you.

maybe rephrasing it so that I accuse them of recreating the document, or perhaps presenting a reconstruction - both of which say the same thing but are of course entirely legal and would get shot down

 

9. I wrote to Cabot stating that the references on the alleged agreement did not correspond with those in their communications and that the letter purporting to come from Egg bank had clearly been created by themselves in breach of s136 of the Law of Property Act 1925

 

There is nothing to stop then using Egg letterhead to write letters (with Egg's permission) on their behalf. They must not sign it as if it were from Egg though.

Yes there bloody well is, putting somethi g in a contract does not supersede the deception laws, it would only make Egg culpable

 

10. I also advised Cabot that the documentation supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and further requested that they supply the required documents. Cabot wrote back claiming the document supplied was a valid Consumer Credit Agreement under the 1974 Act and that the Letter dated xx/xx/xxxx was in fact a Notice of assignment.

 

11. Between the dates xx/xx/xxxx and xx/xx/xxxx I requested on no less than five occasions that Cabot substantiate their claims of ownership of this account and that they provide legitimate documentary proof of such ownership and liability

 

The NOA is all that is required by Law and you have confirmed to them that you had received it and understood its meaning

I have also accused them of creating this themselves and can prove it!

 

12. On xx/xx/xxxx I received a letter from Morgan solicitors advising me of their intention to litigate. Shortly afterwards I received the court claim form.

 

The Request For Disclosure

 

13. Further to the case, on the xx/xx/xxxx I requested the disclosure of information pursuant to the CPR 31.14 and CPR part 18link3.gif which is vital to this case from the claimant , The information requested amounted to copies of the Credit Agreement 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 to the original creditor and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. Also any other documents the Claimant seeks to rely on.

 

14. The claimant has replied by providing the Defendant with a copy of the same document as stated in point 8, the reference as stated in the Particulars of Claim was again hand written on the signature page of this document. A redacted copy of the alleged Deed of Assignment was supplied with no information visible. A redacted account history was also provided which serves no purpose in confirming the claimants claims

They have fulfilled their obligation under CPR31.14 as they have sent you copies of already disclosed documents that you have requested. None of the other documetns have been disclosed and therefore cannot be requested under 31.14

You really need to read the entire paragraph - their response was to CPR 31.14 and part 18

 

Conclusion

 

15. The overriding objective in CPR 1.1(2) requires the court to, as far as possible, place the parties on an equal footing. The fact that the Claimants have in their possession a document which is determinative of one the major issues as between the parties should in my submission require disclosure to enable the Defendant to form a view as to whether there has been a lawful assignment. It is with respect the position that not only do the interests of justice require disclosure but that the Claimant cannot prove its case without producing the alleged Deed of Assignment to the Defendant. If, which is not admitted, there was an agreement, enforceable or otherwise, in existence the Claimant has not proved that there has been a lawful assignment.

 

16. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess 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

 

You have offered no argument as to why the agreement is not enforceable - you have a copy of it - so why is it not enforceable - which prescribed term(s) is/are missing.....

Except it hasn't got the right account number on it, and it has PPI on it, and it decries the application of interest

 

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

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putting it another way,

 

How can I rubbish what they have sent if I do not mention it?

They have sent AN agreement with their reference hand written on it, they are then trying to use this agreement in support of their claim, there is nothing but this handwritten number to link this agreement with them.

 

How can I possibly accept an NOA that was created by them (proveable) and made in the image of a Bank letterhead? your argument is that by rubbishing it I am in fact accepting it?

 

The law states that as this is a cca related account, then a default would need to be issued prior to the issuing of a claim, this is why it is mentioned in my defence

 

The agreement has nothing at all linking it to their claim, why would I bother picking at its enforceability?

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hello guest

Hope this helps

 

 

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The large print giveth, but the small print taketh away. ~Tom Waits, Small Change

 

 

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bump

Hope this helps

 

 

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Remember.... s.189 of CCA 1974 defines a creditor as having rights and duties. If they are claiming to only have rights, it suggests that they're not adhering to CCA law but have opted out and used contract law instead for the assignment..... which is contrary to s.175 if memory serves me correctly.

 

:-)

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At this point I am not trying to pin them down, simply defining the flaws in their POC, argument and documents produced in support.

 

They have contradicted themselves over whether Cabot are the creditor or not, other than that I can prove nothing.....but then I don't have to :)

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IMHO you have interpreted teh LoP wrongly.

 

IMHO "Under the hand of the assignor" refers to the Deed as opposed to the Notice

 

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—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

 

again jmho

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Don't take me the wrong way, I don't claim to have all of the answers, in fact I'm not too sure of most of them, I just want to creat a defence which will either put them on their back foot, or will blow them away completely.

 

but it seems quite clear to me, it is stated in the very first line of s136

 

"Any Absolute assignment by writing under the hand of the assignor of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, "

 

It states that the assignment must be performed by the assignor, it doesn't say either way who should give the notice, and to be fair it could probably be argued ad infinitum either way, but I don't see how the assignee can give notice of an impending assignment which hasn't yet taken place, that would surely only be possible by the person performing the assignment (the assignor)

 

it still stands in English law that one party misrepresenting themselves by producing documents purporting to be from a third party is guilty of deception/fraud depending on whether you use old money or new, simply making such an allowance in a contract does not supercede English law

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bump

Hope this helps

 

 

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If you feel that have been helpful please feel free to tip the scales.

 

 

The large print giveth, but the small print taketh away. ~Tom Waits, Small Change

 

 

Please note: i am not a qualified lawyer, any advice is offered in good faith and is based on my own and others experiences and a penchant for research and a desire to help others to empower themselves

 

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I'm no expert of Defences Spamheed.... but it seems to me that if you are querying documents that have not been sent against statements made by Cabot in their POC, that you shoud include whatever wording you need to put them to strict proof of any/all evidence in your Defence.

 

The NOA issue is a very wishy-washy one though.... it's either an Equitable Assignment (which I don't believe... and would mean that Cabot could not bring action in their own right) or it's an Absolute Assignment (which means they've bought it).... and that would give them the right to start action in their own right; which they've done. I doubt a Judge would be too concerned re. who issued it or even if it was issued, to be honest.

 

So... they've started the action as Claimant, but you remain protected under CCA law; not contract law... which seems to be what they're trying to swing lately. So, if that assignment has taken place under contract law, how valid is it?.... Cabot must be the creditor (by AA), but denying rights and duties suggests that they haven't bought rights and duties under CCA law.... which (legally) should deny them the status of creditor under s189; CCA 1974

 

If it was me, I'd put them to strict proof of the type of assignment it is and work it into your Defence....

 

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Its just legal speak, basically meaning their POC is so vague that you are unable to plead effectively or at all...doesnt mean it in the sense we all know it as

 

It may be legal speak but the OP is a litigant in person. IMHO the defence should be kept as simple as possible, unless the OP is fully confident that they can go to court and fully explain everything in their documentation. I can't help but wonder if part of the reason for unsympathetic judges is that people go to court with professional appearing documents, but can't necessarily explain what it all means when questioned.

 

Keep it simple and you're providing less ammo for the other side to use against you, and if they come up with something you don't understand it's the judges responsibility to ensure that you understand the proceedings, and perhaps get them on side to support you.;-)

 

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It may be legal speak but the OP is a litigant in person. IMHO the defence should be kept as simple as possible, unless the OP is fully confident that they can go to court and fully explain everything in their documentation. I can't help but wonder if part of the reason for unsympathetic judges is that people go to court with professional appearing documents, but can't necessarily explain what it all means when questioned.

 

Keep it simple and you're providing less ammo for the other side to use against you, and if they come up with something you don't understand it's the judges responsibility to ensure that you understand the proceedings, and perhaps get them on side to support you.;-)

 

nicely put ..... I *totally* agree

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It may be legal speak but the OP is a litigant in person. IMHO the defence should be kept as simple as possible, unless the OP is fully confident that they can go to court and fully explain everything in their documentation. I can't help but wonder if part of the reason for unsympathetic judges is that people go to court with professional appearing documents, but can't necessarily explain what it all means when questioned.

 

Keep it simple and you're providing less ammo for the other side to use against you, and if they come up with something you don't understand it's the judges responsibility to ensure that you understand the proceedings, and perhaps get them on side to support you.;-)

 

Fully agree,

 

I've stripped out most of the legislation and pomposity and basically listed what they haven't proven or what I disagree with.I do not want to get into a legal argument about assignments, I'd rather simply state they haven't established ownership and let them try to get away without proving as much, also rather than getting into discussions about what makes an enforceable agreement, I'd rather let them explain why the claim form has a completely different account number from that on the agreement.

 

cheers for the help

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It may be legal speak but the OP is a litigant in person. IMHO the defence should be kept as simple as possible, unless the OP is fully confident that they can go to court and fully explain everything in their documentation. I can't help but wonder if part of the reason for unsympathetic judges is that people go to court with professional appearing documents, but can't necessarily explain what it all means when questioned.

 

The OP seemed fairly switched on to me, the long winded defence has worked for me twice, in my opinion, when it gets to this stage, you should study every aspect of the case , and be prepared to argue every point in court, should it come to that

Keeping it simple is one way, (i fully except there are some defendants who could not argue complex issues), but if at the end of the day you get some high flying QC, or a judge who isnt in a frame of mind to take on board your points, you either sit there and say nothing, or start talking.

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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The OP seemed fairly switched on to me, the long winded defence has worked for me twice, in my opinion, when it gets to this stage, you should study every aspect of the case , and be prepared to argue every point in court, should it come to that

 

I totally agree that you should be prepared to argue every point, and that preparation is the key to success. The fact is that this POC is embarassed so basically there's nothing to answer - end of!!

If the case can be struck out on this basis then job is done.

If it isn't struck out, when it comes to the witness statement and court bundle the OP can ensure that everything is there to make a fuller case if needed, and Cabot may start talking about settling before ever getting to court.

If they decide to amend the POC with more detail, then a fuller defence is required, but IMHO it isn't essential at this stage.

 

Keeping it simple is one way, (i fully except there are some defendants who could not argue complex issues), but if at the end of the day you get some high flying QC, or a judge who isnt in a frame of mind to take on board your points, you either sit there and say nothing, or start talking.

 

Totally agree. By keeping it simple I am not for one second suggesting that the OP doesn't prepare fully with every argument that they can come up for court. If there's no case to answer though, then why answer it?

I was simply offering an alternative strategy for the OP to consider.

 

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:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Well I have avoided the embarrassed route, they have started the claim on their own account number so no documentation to match it at all, yet they have provided alleged documentation with nothing to tie it to the claim or to back up their claim, the three points of their POC were:

 

The assignment - they've provided nothing which links the claimants account number with the defendant, nor proves their claim of ownership - only spurious documentation or unreadable pap -

The account - defended on the basis of, never took out anything with such a ref, the documents provided don't have such an account number and the document provided is flawed in itself

The amount claimed, no reinforcing info regarding amount or how it has been calculated, no breakdown, nothing to explain charges or PPI - might as well be a made up number as would be as accurate.

 

My defence is as simple as possible - it covers their documentation even though not mentioned or referred to in their POC because even if they attempt to amend their POC, the documentation will remain the same and will be just as unenforceable and unlinked.

Edited by spamheed

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So I posted my defence over the weekend and received my acknowledgement.

 

I called Northampton court just to confirm that my defence was showing as there'd been ain issue with my AOS which had needed to be manually processed due to a failing of the service.

 

Sure enough there was no record of my defence, no real offer of assistance and only a "you'll have to call back tomorrow" or "speak to the other dept at MCOL" fob off.

 

I spoke to MCOL who were equally unable to tell me why my defence hadn't been processed and were equally blase' about the whole thing, It looks like while defendants are left to panic and sweat their way through a claim process, the claimant and courts see it as something of a game.

 

I shall try again today to see if my defence has been processed. I can now see why so many

people don't defend and get shafted by the system.

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but it seems quite clear to me, it is stated in the very first line of s136

 

"Any Absolute assignment by writing under the hand of the assignor of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, "

 

It states that the assignment must be performed by the assignor, it doesn't say either way who should give the notice, and to be fair it could probably be argued ad infinitum either way, but I don't see how the assignee can give notice of an impending assignment which hasn't yet taken place, that would surely only be possible by the person performing the assignment (the assignor)

 

 

The assignee can give notice of the assignment, the relevant case is Van Lynn Developments Ltd v Pelias Construction Co Ltd [1968] 3 ALL ER 824.

 

However, it was also held that the debtor does have the right to see the actual document of assignment to confirm that it really does exist:-

 

In giving his decision Lord Denning MR expressed his opinion that the correct interpretation of the statute was given by Atkin J. in Denney, Gasquet, and Metcalfe v Conklin [1913] 3 KB 177 at p 180 that no formal requirements were required for a notice of assignment and observed that:

 

“It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge."

 

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Perhaps I'm not being clear here. so I shall clarify my stance

 

I have no problem with Cabot, Santa Claus or whoever providing notice of the assignment taking place, they do that rather sneakilly with their "welcome letter" although even then, when they sent a second "representation of the NOA" it differed significantly from the original, but that's for another day.

 

What I really take issue with is Cabot creating a document in another companies name and trying to pass it off as being created by the other company, Neither the CCA nor any statute states that this is acceptable, nor is there any case law which states that this is acceptable, neither is it acceptable to commit fraud, nor to create false instruments, in fact the law is pretty clear that this is a no no.

 

Now I think that's fairly clear and I'm quite prepared to be corrected by anyone who can show statute or case law which allows such a deception

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so as a slight aside form defences etc.

 

If Egg settle on my PPI misselling claim (which they are doing) to what extent will this invalidate Cabots claim, as the agreement includes this amount and the claim amount includes the PPI so is clearly incorrect and I (will) have a letter from Egg stating as much.

 

Aren't Egg effectively pulling the rug from under Cabot?

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Sounds like it to me, although there's nothing stopping them amending the POC accordingly - unless the PPI is more than the claim.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Would I have any say over whether they can amend the POC given that I've filed a defence?

 

At the moment they have brought a claim against the wrong account number, with the wrong amount claimed and with their usual dodgy assignment.

 

There were only three parts to their POC and they've [email protected] them all up.

 

They'd be better off discontinuing and pleading again, although since I have filed my defence wouldn't it leave them open for a wasted costs order?

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Out of interest, are they paying the PPI reclaim to you or against the balance?

If you find my advice helpful - please click on my scales

<<<<<< - they're over there!

Well, it's a funny black star now ...

The small print - any advice I give is freely given on the understanding that I am a layman and am not legally qualified in anyway.

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