HP Trouble - Claim form issued.

[foolishgirl]

I honestly can not remember if I was informed of the transfer from OnLine Finance to Cabot as it was so long ago. I can only assume I was made aware at some point.

 

Where DCAs are concerned gareth, DO NOT ASSUME ANYTHING!! You need to make them prove every statement they make or they will lie through their back teeth.

 

They issued the claim, it is their responsibility to prove they have the evidence to substantiate it, not yours to provide the evidence to disprove it.

 

I'm not sure what the court admin is up to - since when did they accept & act on a claimant's opinion that a defence would be offered?!

 

However looks as though you are stuck with their mess up & IMO EMC's defence is excellent & should be submitted asap. I would also send the following to the sols:

 

 

In the matter of Cabot Financial (UK) Ltd. v gareth

 

Claim number xxxx

 

Dear Sirs

 

Please find attached a copy of the defence by way of service. A copy has been served to the court.

 

The Particulars of Claim submitted by you to Northampton County Court are insufficiently particularised in accordance with the Civil Procedure Rules. Therefore please serve amended Particulars of Claim and plead your client’s case in an appropriate manner within 7 days, so that I am aware of the case I will have to meet at trial.

 

I request that you attach to the particulars a copy of the agreement upon which the claimant relies. In addition to this I would ask that copy of the default notice and assignment together with proof of service be served with the amended particulars as they are clearly relevant to your clients case and referred to with in the claim.

 

Failure to provide that requested in the time period provided for will result in application to the court. I confirm a copy of this letter will be produced to the court when the question of costs falls to be decided.

 

YS

 

In respect of Morgan's letter re. the CPR31.14 request, this sounds like another of their templates designed to confuse & intimidate. I suggest you counter it immediately with the following:

 

I refer to your correspondence of xxxx in which you state that you do not have to comply with CPR31.14.

 

I remind of you of your obligations to permit the inspection of documents under that rule & give you notice under CPR31.15 that I require copies of all the documents referred to in your Particulars of Claim within 7 days of receipt of this request. I undertake to pay all reasonable copying costs of supplying the following documents:

 

1. the agreement (unless they have supplied it)

 

2. any notices of assignment issued

 

3. any default notices issued on this account

 

 

Failure to supply copies of the above documents within the time stipulated will result in an application being made to the court for their disclosure.

 

YS

 

You can send both letters in the same envelope but make sure you send Rec. Del.

Edited September 8, 2010 by foolishgirl

[foolishgirl]

So now presumably I complete my allocation questionaire and send it off to the court?

 

Don't you have until 20 Sept to send the AQ in?

 

If so, I would suggest waiting to see what the CPR31.15 letter produces as you may also want to ask for directions with that AQ for disclosure etc. or even put in an app for SO for non-compliance with CPR.

[foolishgirl]

You'll notice that foolishgirl, gh2008 and citizenb (amongst others on the forum) are particularly helpful!

 

You're not so bad yourself EMC! :-)

 

Sound advice from EMC here for you too, gareth.

[foolishgirl]

Well, I agree with EMC and think you should write to the Court Manager and complain. In that letter include the fact that because of *their* actions you have been rushed into submitting a defence and that your case is already severely prejudiced especially as you are a Litigant in Person.

 

Terrible behaviour .......

 

I would also consider reporting Morgans to the SRA. I am sure that is not approved practice ....

 

Agree, terrible behaviour of the court & a complaint in writing to the Court Manager asap.

 

However I don't think it's an SRA matter re. Morgans. If the court let them get away with this, IMO it's the court admin that is totally out of order not Morgans. It's hard enough to get the SRA to take action on any legitimate complaint let alone one like this so IMO you'd be wasting a stamp but the court, most definitely yes.

 

We seem to be hearing more of court admin errors on CAG & the LIP seems to be at their mercy. Unfortunately I fear it will only get worse as the legal system is squeezed of resources from central govt.

 

BTW good directions gh

[foolishgirl]

Be good to know if this Extended Warranty cost (that was subject to 20.53% APR ??) was also subjected to further interest when it was added into the main loan figures...I might be off the plot here but worth a look. Also interesting to see the Consumer Credit Act at the top of the agreement has no year, small matter but what else have they potentially missed out?

 

Hmm... methinks they may wish they'd never picked this fight by the time you're through, gareth.

[foolishgirl]

It's a harsh term but 'rape of the ignorant and defenceless' really isn't too far from the reality. Once you've adopted this mindset and adjusted your perspective it rapidly becomes clear why claims such as yours are made.

I so agree EMC.

 

There was a case that hit the headlines a couple of years ago (not Morgans but DCAs are nearly all the same) where a lady was harassed so much that she ended up paying instalments on a debt she had never owned, never even heard of & when it all got too much & they were trying to squeeze the last drop of blood, she committed suicide.

 

Of course there was the anticipated insincere sympathies expressed from the DCA & they did seem to back off for a while - maybe even a few days - but then it was business as usual.

 

You are not alone gareth, just hold tight.

[foolishgirl]

Sorry can't help on calcs. I use an online checker too & I know they are not always 100% accurate.

Maybe try peterbard. He has a spreadsheet & his useful thread is here:

http://www.consumeractiongroup.co.uk/forum/showthread.php?187938

[foolishgirl]

What form have they sent for the AQ - N149 0r 150?

 

Re. your CPR31.15 - if they haven't replied in the time frame you gave them you should make an app to the court for an order to make them comply. This should be done before your AQ if your AQ is N149 as CPR31 does not apply to SC. Your alternative is to apply for directions with the AQ but the court might not issue them so IMO the app is probably the best way forward.

[foolishgirl]

I notice on Cabot's letter they say that OnLine finance is still the creditor ......

Cabot is not the creditor they just 'own the debt'

 

yet the POC states:

"Claimant is the Assignee of a debt from On:Line Finance Limited"

 

They can't have it both ways!

 

When did you send your CPR31.14 request gareth & did you follow it up with a CPR31.15 warning? Or are you just now relying on getting directions from the AQ?

 

If so, you can just put an app in for disclosure (& Cabot should be ordered to pay the costs )

[foolishgirl]

It is an 'interesting' Order

 

Certainly is. Looks as though this DJ may be on the ball gareth

 

You don't need to do anything other than keep tabs on it. Wait for the 28 days & then check with the court to see if a new POC has been filed. If you haven't received a copy fron Morgans, inform the court & ask them to send you a copy.

 

Is this with Northants or your local court? If the latter, the beauty of this order is that the claimant MUST now attach the agreement or any other docs mentioned in the POC.

[foolishgirl]

Hang on gareth....

 

You said at the top of this thread:

 

I have just received a letter from Shoosmiths asking me to provide evidence that I voluntarily terminated. This will be hard to find due to the fact it was around 8 years ago!

And just posted:

... I sent this letter to Shoosmiths (who were acting for Cabot at the time) back in March of this year. My pc went haywire and I lost all files so the only copy of this letter in existence lies with Shoosmiths.

So are you now saying you found that termination letter & sent YOUR ONE & ONLY original hard copy off to Shoosmiths??!

 

Pinch me please.

 

Okay, back on my chair & assuming you haven't got a copy of that termination letter.

 

If this the case, you also stated at the top of your thread:

 

OnLine Finace sold off the debt to Shoosmiths

Did they sell the debt or just pass it on for collection? AFAIK Shoosmiths are not DCAs, just sols. Were Shoosmiths acting for Cabot, Online Finance, who??

 

But nothwithstanding that, they did pass it to Cabot who have instructed Morgans to act for them. Therefore the file that Shoosmiths had should have been passed to Cabot & then Morgans. So IMO you need to write back to Morgans & say 'you have that letter in your files, find it!' & without admitting that you can't find your copy.

[foolishgirl]

I have told Morgan's that their letter is with Shoosmiths but they will not release it.

 

Do you mean Shoosmiths have admitted they have the letter but have refused to release it or do you mean Morgans won't release it?

 

Without trawling your thread, have you sent off a CPR18 or a SAR request to any of the sols or Cabot?

 

It wouldn't surprise me if this letter has been deliberately 'lost' in Morgan's files, particularly when you have already laid stress on them producing it . Was it a long time ago that your computer crashed? i.e. would it be possible to get a techy to try & recover the files?

[foolishgirl]

Hmm...tricky one.

 

Shoosmiths are quite right, they do not have to disclose that letter to you as you are not their client. However Cabot are (or were) so if Morgans are still asking for that letter I would refer them back to Cabot to ask Shoosmiths to send them the letter. I would also remind them that it is not your responsibility to chase documentation for the Claimant that has already been supplied to them & is (or should be) within their or their legal advisors' possession & that you suggest they get their house in order pdq & until they do so you are not prepared to enter into any more discussion or correspondence on the matter.

[foolishgirl]

Their letter states "You will note that the Claimant now accepts that you voluntary terminated the agreement and now accordingly only pursues the balance that remains due under the terms of the credit agreement.

 

Oh, small triumph. Looks as though someone has either found your letter or seen sense. I suspect the former, don't think they possess any of the latter.

 

 

but instead they are pursuing for £2,064.73. They have also send me a large file which they say is their "amended particulars of claim pursuant to the order of the court dated 24th September". Many pages of the file are blacked out.

 

They can't send a whole file for a POC gareth!!! It should be one sheet max. Also they can't black bits out or how do you know the basis of their claim? Can you post up the POC please?

In their new POCs they state " The Claimant Claims 1) the sum of £2064.73 2)interest pursuant to sention 69 of the County Courts Act 1984 at such a rate and for such a period as the Court sees fit 3) costs

 

Can't recall but wasn't this a regulated loan agreement under the CCA? If so, they are prohibited from claiming stat interest by the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) Section 2 (3)(a) which sets out that this is the case where a claim is in relation to a debt regulated by the Consumer Credit Act 1974.

Statutory Interest in also regulated according to the The Late Payment of Contractual Debts (Interest) act 1998. However it does not cover:

 

* contract of service or apprenticeship

* a consumer credit agreement;

* a contract intended to operate by way of mortgage, pledge, charge or other security

Whilst it is progress that they have finally admitted I owe 50% of the agreement there is still discrepencies over the figures. They say now that I should have had to pay £7367.80 (which is correct). However they say that I now owe £2064.73. This is much better but is still not correct. The new figures have not taken into account £230 which I paid off the account from June 2005 until October 2008. Neither does it deduct the £600 which is what the car sold for at auction. £1234.73 is therefore the correct amount I owe.

 

IMO this should go into your defence

 

 

Surely they can not still proceed with a CCJ when I was in the right. .... I take it I should write to Morgan's and tell them about the deducutions they have not taken into account??

 

They cannot obtain a CCJ without it going through the legal process & you are quite correct that you should carry on with your defence. You don't need to write & tell Morgans they have got it wrong - you've told them that ad nauseum already - & IMO you're wasting a stamp & your time. However you DO need to submit a defence by the deadline specified by the court. Was it 14 days after the amended POC date? What date does that make it?

[foolishgirl]

I would post up the new POCs but it's 68 pages long!!! I have submitted my defence some time ago

 

Sounds as though they have sent you all the docs they are relying on aswell as the POC gareth. The contents of the POC should look almost like the N1 you received before. Can you post up what it says?

 

You MUST submit a new defence to this new POC within the deadline specified by the court order - was it 14 days, can't recall - & you should address the issues of the incorrect sums etc. as gh has stated above.

 

However CAGers can't help you that until they know what the new POC states.

[foolishgirl]

Here you go.. WS as requested

 

What are you doing with gareth's POC CB?

 

ok the files above must be the POCs. Then I have page after page of other docs. As I said some of these other pages have things blacked out.

 

To confirm, the files CB uploaded are the amended POC gareth although it's one fo the oddest I've seen - the author can't make his mind up if it's a POC or a WS.

 

I suspect the copies you have with the black outs are the DOA.

 

So did they actually apply to the court to amend their POCs. If they didnt, and have just filed them, surely that is wrong. If they did then the court has advised in the order that they will then look at your directions.. Do you have to respond to the new POC ?

 

They didn't have to apply CB, it was ordered by the court.

 

Does gareth have to respond? Hmm.. odd one. He is entitled to but has not been ordered to do so & as this looks more like a WS than a POC, perhaps it may be wise to look at what the court orders re. directions next week before submitting anything, particularly noting gh's observations above.

 

Comments gh?

 

Can you remind us what you applied for in the directions gareth please?

[foolishgirl]

Interestingly I don't think they were .... if you check teh Order they had to apply to f&s by the given date

 

You are quite correct gh, I stand corrected:

 

IT IS ORDERED THAT:

1. Order per Civil Procedure Rules 3.3(4). Any application by the Claimant to amend the Particulars of Claim is to be filed and served by 28 days from the date of this Order and thereafter the Court will consider the Defendant's proposed Directions.

2. The parties may apply per Civil Procedure Rules 3.3(5) & (6)

 

So, if they haven't complied with the court order by making an app within the given time, maybe a SO or SJ app from gareth?

[foolishgirl]

what is this "ws" you all talk about?

- Witness Statement, it comes after a defence is filed & if the Claimant decides to pay his fee to continue with the case based on the defence you submit. It is a summary of facts as you see them.