Court Papers arrived - DebtControl V Cabot/MSDW

[AndyOrch]

Ok DC you need to download your N265 sharpish N265 - Her Majesty's Courts Service -Forms and Guidance

 

Complete it with any documents you have referred to in your defence or intend to rely on.

I assume you have yet to receive theirs? Correspond with the Sol and inform them you are ready to exchange and will expect theirs by return..

Try not to exchange until you receive theirs.

 

We can sort the rest nearer the time.

 

Regards

 

Andy

[Debtcontrol]

Hi Andy, thanks for the reply.

I have downloaded the form, not sure what I need to ask for under this standard disclosure? Would I put the CPR 18 & 34 requests that I sent, stuff like that? see you mention any docs I have mentioned in my defence, so those along with the credit agreement request are the lot I think, will go over my initial defence again.

Will get this off to the court & Morgans as soon as someone can confirm that this is OK.

I have received theirs - they included a T&C doc dated 2000 which is the first time I have seen it, all previous copies were dated 2004. Does this matter (account was taken out in 2000).

Still not seen a default notice, termination notice or any agreement with prescribed terms on.

DC

[AndyOrch]

Hi DC

 

Ok compile your list with the docs use intend to rely upon and are ok about showing to the Claimant should they wish you to disclose.

Is there anything of any use on theirs that you have not received or perceive to be of use,if so you request sight of these and list them in a cover letter attached to your N265,and that you expect them by return.

 

Regards

 

Andy

[Debtcontrol]

Hi Andy, OK, I will mention the default notice and termination notice along with credit agreement by covering letter, and disclose their 2004 T&Cs as misleading, they obviously just sent the first set they got their hands on.

Will also include my CCA & CPR requests.

Thanks a lot Andy, really appreciate it.

DC.

[AndyOrch]

DC

 

Anything that is not listed on their then they dont have ie DN TN,They cant use or refer to them either at trial if they are not listed.

 

Andy

[Debtcontrol]

So I shouldn't mention it here then, in my covering letter? Leave for my witness statement?

Also, which section do I type in for my CPR & CCA requests - would it be:

I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.

[AndyOrch]

So I shouldn't mention it here then, in my covering letter? Leave for my witness statement? Yes

Also, which section do I type in for my CPR & CCA requests - would it be:

I have control of the documents numbered and listed here. I do not object to you inspecting them/producing copies.

Correct.

Andy

[Debtcontrol]

Hi DC

 

Ok compile your list with the docs use intend to rely upon and are ok about showing to the Claimant should they wish you to disclose.

Is there anything of any use on theirs that you have not received or perceive to be of use,if so you request sight of these and list them in a cover letter attached to your N265,and that you expect them by return.

 

Regards

 

Andy

 

Hi Andy, completed and will be off in the post today.

 

Attention now turns to the N170 pre-trial checklist.

Has to be in for 12/11/10 but I am out of the country from 5/11 until 14/11 so will be aiming to get it in before I depart obviously.

 

Any further assistance would be great, going to have a look tonight.

DC.

[AndyOrch]

Its quite simple to complete.Section F is more for the Claimant than the Defendant.

 

Regards

 

Andy

[Debtcontrol]

Ok Andy, thanks, I haven't looked at it yet as been concentrating on this other one.

Will have a look in a bit.

As ever, thank you, really appreciate it.

Tipped your scales!

[Debtcontrol]

I am currently looking at the Listing Questionnaire for my case, with a view to getting it in this week.

One thing that has struck me, in my AQ and Draft order for direction, I expressly put the claimant to proof re the credit agreement & default/termination notice.

They have not provided these yet, but have replied and given copies of everything else that I requested.

Can I apply for a strike out on this basis? How would I do that?

Thanks,

DC.

[car2403]

I am currently looking at the Listing Questionnaire for my case, with a view to getting it in this week.

One thing that has struck me, in my AQ and Draft order for direction, I expressly put the claimant to proof re the credit agreement & default/termination notice.

They have not provided these yet, but have replied and given copies of everything else that I requested.

Can I apply for a strike out on this basis? How would I do that?

Thanks,

DC.

 

Did the Court give Orders as per your draft, or ignore them?

[Debtcontrol]

Did the Court give Orders as per your draft, or ignore them?

 

I think they ignored them, on the covering letter that was sent with my listing questionnaire & notice of allocation to fast track, there are directions on here re dates & submitting witness reports, but no mention of the claimant providing documents as requested.

 

So is that a no then?

 

Thanks for replying, really appreciate your time.

DC.

[car2403]

I think they ignored them, on the covering letter that was sent with my listing questionnaire & notice of allocation to fast track, there are directions on here re dates & submitting witness reports, but no mention of the claimant providing documents as requested.

 

So is that a no then?

 

Thanks for replying, really appreciate your time.

DC.

 

I'd think so. TBH, I question the whole requesting Special Directions, personally, as I'm yet to see any being granted - although I suspect there are some where the Judges have had enough and Order what was requested, but that would probably be the exception to the rule, sadly.

[Debtcontrol]

Hi Car,

Yep, agree it is rare, but luckily it just happened for BrassedOff!

http://www.consumeractiongroup.co.uk/forum/showthread.php?267627-County-Court-Claim-form-received-Cabot&p=3159698&viewfull=1#post3159698

Was worth a try I guess.

Thanks for replying again.

 

 

I'd think so. TBH, I question the whole requesting Special Directions, personally, as I'm yet to see any being granted - although I suspect there are some where the Judges have had enough and Order what was requested, but that would probably be the exception to the rule, sadly.

[Debtcontrol]

Looking for advice again...

 

I'm going to put in a claim for the PPI, however this takes time and if successful, will alter the balance due I guess significantly.

Plus, if the PPI refunded was to go to the balance, it would take the total well under 5k, which would put it into the small claims track - just now its in the fast track.

 

In addition, I now want to SAR Cabots (Or MSDW?) and see what they actually hold, as I do not believe there to be a DN in existence, or one that can be produced as a copy of the original.

 

Given the above, can I reasonably ask for an extension / stay for the WS to be submitted? I'm new to this and realise that I should have done the above sooner, but I am where I am.

 

Any suggestions / advice? How would I go about a stay etc?

 

DC.

[Gallahad]

Be careful DC unlike the agreement they are not obliged to produce a copy of the DN

G

[Debtcontrol]

Be careful DC unlike the agreement they are not obliged to produce a copy of the DN

G

 

Surely that isn't right? I remember reading elsewhere that unless a DN or TN is issued, the account cannot be classed as defaulted or terminated, therefore you cant prove the balance owed etc?

[AndyOrch]

The Claimant is not required to keep copies of DNs however they must prove from screen shots data etc that one was initiated and sent.

Debt you will not get a stay under these circumstances spend time on your WS preparation and build your case ie the need to serve a DN/AN.

 

Regards

 

Andy

[Debtcontrol]

Be careful DC unlike the agreement they are not obliged to produce a copy of the DN

G

 

The Claimant is not required to keep copies of DNs however they must prove from screen shots data etc that one was initiated and sent.

Debt you will not get a stay under these circumstances spend time on your WS preparation and build your case ie the need to serve a DN/AN.

 

Regards

 

Andy

 

OK, that makes sense. Will get back on the WS now.

 

Gallahad & Andy, thank you both for taking the time to reply.

DC.

[DonkeyB]

subbing

[Debtcontrol]

Hello,

 

Its been a while since I have been on here but I have great news that hopefully provides encouragement to anyone else in a similar position...

 

After taking advice from someone on these forums, I admitted that the task in this particular case was greater than a LIP could bring home so I instructed the services of a solicitor firm. I wont say which one, but it is well known on these forums. After paying initially to have my defence amended to get it in a good state, I went onto a no win no fee basis (CFA) to defend my case.

 

My defence was amended, points picked up that I would never have got and a Witness Statement produced that took to task Cabot on several matters.

 

Today was the trial date. My solicitor had instructed counsel from a well known chambers and we went up against Cabot & their counsel. Whilst Cabot succeeded in introducing a 3rd set of T&Cs relating to my account since the claim began, our argument remained on the legibility of the agreement, the relation to the T&Cs and the notice of assignment / sales agreement validity.

 

To summarise these points, the agreement was not easily legible, the notice of assignment was sent on Barclaycard letterhead then on Cabot letterhead and the agreement could not be confirmed to be related to any set of T&Cs due to the non legibility of both. There was also the point on whether Cabot had produced evidence that my account was assigned to them in a bulk sale.

 

The Judge agreed that my account was in the bulk sale but then laid into Cabot on the legibility issues and the whole NoA and T&Cs. She even went as far to say that there was not one point at fault in their case, but 3 and they were nowhere near acceptable to satisfy s78(1).

 

Therefore my case was dismissed and Cabot have had another kicking!

 

I haven't been keeping the case updated due to advice of my solicitor and I can see his point entirely.

 

Cabot have now had my 5k debt ruled un-enforcable and have to pay 6k in solicitor & barrister costs! Result!

 

 

 

What I learned from this experience:

• If in any doubt, instruct solicitors as early as possible. I didn't and had to pay several hundred pounds to get my case into a state that had a chance of success and also to be considered for a CFA (Conditional Fee Arrangement - no win, no fee).
  
• Understand your case completely. Even though my solictor was brilliant and built my defence / WS, its your case, your name on the claim and you will be cross examined by their Barrister whilst on the stand under oath. Granted its not a totally gruelling experience but these are experienced in their trade and use every skill available to them when you are on the stand to prise something out of you that can be used as ammunition against you.
  
• Know the rules / law. Cabot introduced new evidence at a regular frequency when it suited them, once even in direct relation to an argument in our submitted defence. Whilst this is crap as really they should have all the facts before bringing the case, judgement in another case confirmed that the claimant can introduce documents/evidence whenever they want up to point of judgement. However, this ultimately count against them as they seriously lost credibility in the eyes of the Judge today I believe, due to the NoA issues and the T&Cs changing all of the time.
  
• If you are going it alone, explore all possibilities and go on the offense against the claimant. Its not enough to rely on a dodgy agreement I believe, this is what I have picked up from solicitors and barrister - in my case the claimants were arguing that the agreement plus the T&Cs constituted a valid satisfaction of S78(1) - if they were legible they might have had a stronger case as it appears there is case law to support this, fortunately for me the Judge wasn't satisfied in the legibity in either, therefore ruled they could not be confirmed as linked. Also do not take anything the DCA states as the truth - they produced 3 sets of T&Cs in my case once the claim had begun, each time saying these were correct. My barrister really went for this and when Cabot's legal guy was on the stand, put him to task asking if he could certify that these were indeed correct given the history and the manner in which they were produced - in an email from another person / company who are the current administration company for MSDW accounts. He could only answer 'To the best of my knowledge', thats not enough fortunately, theres case law supporting the 'certified' stance. Also, Cabot produced the 2nd set of T&C that were for Standard & Platinum cards - mine was a Gold card. You have to attack this whilst clearly setting out the issues with it. We did this in the defence and they rectified it a week before trial with the 3rd set, but it was still really valid as it shown the Judge the manner in which Cabot were bringing their case.
  
• If you are going it alone, understand case law, the acts you are going to rely on and also understand the cases where your points were ruled against in parts so you can have an argument ready for this. These circumstances all occurred today but I was fortunate to have a solicitor with over 5 years of experience in CCA law and a great barrister who were able to argue on the same level. Its safe to say that the final 30 mins of my trial was above my head, it was all case law, section references and rulings.
  
• Its not really enough to continue down the 'I have no knowledge of this debt' stance anymore, I picked this up from the solicitors & barristers. I admitted I took the card out and used the service. I pleaded I ran into financial difficulty then when further in difficulties sought to confirm Cabot's legal right to collect on my debt. This apparently is seen far more favourably by the Judge in considering the situation. Of course that is down to the Judge perhaps.
  
• Know how to plead your case, everyone is different and should be tailored on the merits of yours - embarrased defences that then set out the reasons why but then go into great detail around what they should have done giving case law etc won't cut it - you have to go on the offensive and put the claimant to strict proof using the CPR routes available to you, then include that in your defense outlining why the case should be struck out if non compliance occurs. This was something said to me by my solictor from his experience in defandants picking up skeleton arguments from forums and not dealing with the particular issues in each unique case. If in doubt, seek advice. I personally believe these forums are a great service to us all, I would not have won today without them, but I can see the point that its dangerous to pick up a template from a thread and use it in your case when some points may just not apply - it will be picked apart from the claimant in court.
  

The above said, my solicitor and barrister were always confident about the S78(1) argument in this case, however Cabot could have produced a legible agreement on us 5 mins before the trial began - granted we would have went for an adjourment to consider our position, but it was always in the back of my mind the past few weeks given the way Cabot seem to do business.

 

I got a great result today though, and its worthwhile pointing out that Cabot were always up against it with an agreement that was not 'easily legible'. I'm over the moon and feel like a weight has been lifted off my shoulders. Plus Cabot got a real kicking from the judge, and I understand its not the first time this month, so they have to be shaken I hope and perhaps will reassess the way they do business? I'm not holding my breath though!

 

I've rambled on a bit now, sorry. I have probably missed something important out too, so please, anyone, feel free to get in touch and ask away. I've only been through this once now but hope to use my experience to assist others.

The advice I have given above may not be agreed on by everyone, it is my own advice based on my experience and conversations with people in the legal profession. Its not meant to give anyone false hope or indeed deter anyone from any actions, I am just trying to be as honest and truthful as possible.

 

Mods, please feel free to move to Legal Successes.

 

Thanks,

DC.

[dx100uk]

its funny how only successful cases get a detailed report trumpetting using 'a' solictor

yet others not so successful get forgotten

 

re:http://www.consumeractiongroup.co.uk/forum/showthread.php?291804-Charging-orders-a-salutory-tale&p=3272819

 

dx

[cymruambyth]

Congratulations, an excellent result. I wish I had been able to pay for advice as I feel that I would have had a different result

[Debtcontrol]

Can someone please move this to Legal successes please? There are missing posts also but I'm not concerned about them.

DC.