County Court Claim form received - Cabot ***WON***

[Brassed off]

I've sent the letter to Morgans today advising that I am still waiting for them to fulfil their obligations under CPR 31.12 to enable me to submit a Defence. I will send a copy to the court tomorrow.

 

As I'm still waiting for the T&Cs and SOA, presumably I would be submitting an embarrassed Defence at this time?

[PriorityOne]

Bo... s.189 of the Consumer Credit Act would define Cabot as the creditor by absolute assignment (which I'm sure this is).... and makes it quite clear that it's an assignment of rights and duties.

[Brassed off]

I've done a lot of reading up this week and think I'm finally getting the legal stuff to stick. Not been very well today and am pretty exhausted right now

 

Here is my first attempt at a draft embarrassed defence. I'm sure there will be bits which need adding, editing and tweaking but I know that you eagle eyed peeps will spot them and point me in the right direction. All/any comments most welcome thank you :-

 

In the Northampton

county court

Claim number xxxxxxxxx

 

 

Between

 

Cabot Financial (UK )Ltd - Claimant

 

and

xxxxxxxxxxxxxxxx- Defendant

 

 

Defence

 

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

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimant’s Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimant’s 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 with CPR part 16. In this regard, I wish to draw the court’s attention to the following matters;

 

 

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to a Notice of Assignment, the nature of the written agreement, Default Notice or the method the claimant calculated any outstanding sums due, or any other matters necessary to substantiate the Claimant's claim.

 

 

b) A copy of the purported written agreement which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

 

d) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof. The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

e) The defendant requires sight of the deed of assignment of the debt. In addition, the defendant requires proof of service of the Notice 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 this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents, the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

5. The Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

6. I respectfully request the Court’s permission to submit an amended defence should the Claimant file a fully particularised Particulars of Claim

7. On receipt of the claim form, the Defendant sent a request for a copy of documents which form the basis of this claim under CPR 31.12 and 16.4 (2) dated XX XXXXX. Despite a second request, at the time of filing this defence, the Claimant has not provided a number of outstanding documents in response to this CPR request.

 

8. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The Defendant is embarrassed at the lack of detail within the claimants claim and therefore cannot plead due to the Claimants ongoing failures to provide documentation under CPR 31.12 and 16.4 (2).

 

The Defendant reserves the right to amend this defence and intends to make an application to the court for an order compelling disclosure.

 

Statement of truth

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

I am the Defendant.

 

Signed:

 

XXXX

XXXX 2010

[cymruambyth]

Have you seen this ?

 

This is always sufficient...

 

 

1. I, [insert full name & address], am the defendant in this action and make the following statement as a defence to the claim made by [insert Claimant’s name]

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant notes that the Claimants' claim is not fully particularised and offers no cause for action and is thus eligible for a strike out under CPR 3.4.2 (a).

 

4. The Claimant as failed to disclose appropriate documentation to support the Particulars of Claim, requested under CPR 31.14 and CPR 18, which leaves the Defendant at a disadvantage and unable to plead effectively or at all. The Defendant is embarrassed in pleading to the Claim as it stands.

 

5. The Defendant denies that they are indebted to the Claimant for the sum of [insert claim sum] and puts the Claimant to strict proof of this sum.

 

6. As the Claimant has not provided proof of the debt or the sums claimed the Defendant denies the Claimants claim for interest pursuant to s.69 of the county court Act 1984.

 

AND the Defendant;

 

7. Seeks an order that the Claimant’s action is struck out under CPR 3.4.2 (a), or otherwise dismissed , on the grounds that any claim cannot succeed and that the Claimant do pay the Defendant’s costs incurred in defending this action.

 

Vjohn82

[Brassed off]

Hi Cymru - no I haven't seen that. I've probably seen nearly everyone on CAG bar that one - typical! Many thanks for that

[gh2008]

They need to provide a Default Notice, together with proof of posting. Their arguments that neither is required is a red herring.

 

Can I ask why? i.e. where in Law are they prevented from claiming, having not served a valid Default Notice, for the non-payment of sums already due i.e. arrears

[cymruambyth]

Hi BO I think vj only posted it yesterday.

[PriorityOne]

Can I ask why? i.e. where in Law are they prevented from claiming, having not served a valid Default Notice, for the non-payment of sums already due i.e. arrears

 

The DN should show the correct amount outstanding prior to/upon termination of the account and prior to/upon Absolute Assignment of that account by the original creditor. They can't just make it up.... it needs to be substantiated with something. Also, if the DN includes an amount of unlawful charges, then the account can be challenged as being inaccurate upon assignment, which could be enough to strike the claim out. I've never had to try it, so can't say for certain. I have however, pulled up Cabot up myself over this precise issue and also, the "rights but not duties" argument and they backed right off.

 

There is nowhere in law that prevents someone from issuing a claim, should they decide to do so.... but the consumer has every right to see a copy of the DN (allegedly) issued upon termination of the account. There is no way that a creditor would just let an account roll and roll without issuing a DN, so there must be one somewhere and the onus of proof is now on Cabot to produce it (if requested to do so). The DN also needs to be checked to see if it was issued correctly at the time; ie, if the correct number of days were stated on there (or not) to remedy the breach.

[car2403]

I refer (all) the right honourable gentleman to my previous post;

 

There isn't a need for a Default Notice here! :confused:

 

again...

[Debtcontrol]

Hello, in case its any help if it gets this far, please find a link to my completed N150 & Draft Order for Direction.

Good Luck!

http://www.consumeractiongroup.co.uk/forum/showthread.php?273093-Court-case-moved-to-local-court-allocation-questionnaire-rec-d-Please-help!&p=3089050#post3089050

Edited August 15, 2010 by Debtcontrol
typo

[gh2008]

I refer (all) the right honourable gentleman to my previous post;

 

 

 

again...

 

 

You can lead a horse to water .........

[car2403]

You can lead a horse to water .........

 

Just concerned that all the discussions on Default Notices, etc, will lead the OP to think that there's a need for one and ultimately be ripped to pieces in Court on the day. I've seen it happen

[PriorityOne]

Just concerned that all the discussions on Default Notices, etc, will lead the OP to think that there's a need for one and ultimately be ripped to pieces in Court on the day. I've seen it happen

 

I'm not convinced there isn't a need for one to be honest, but will agree to disagree if you like. Cabot need to substantiate how they've arrived at the figure they're claiming after so long (IMO)...

[car2403]

I'm not convinced there isn't a need for one to be honest, but will agree to disagree if you like. Cabot need to substantiate how they've arrived at the figure they're claiming after so long (IMO)...

 

Ok, let me say again what I mean as things have gone off track a little since.

 

There isn't a need for a Default Notice, as this is an overdraft debt - overdrafts are regulated by the CCA, but are subject to a Determination from the OFT under s.74 that exempt them from the form and content requirements of Part V of the Act. The Determination states that the bank must tell the applicant of the process they intend taking to terminate the agreement - most banks will say they will make a formal demand, give a period of time to comply, then issue a termination notice (note: not a Termination Notice) that the agreement is ended.

 

They must show the original correspondance showing the setting out of this information, plus the termination notice that was issued. There isn't a need for a Default or Termination Notice, though, as is suggested here, as that is part of the exclusion and the benefit that the bank receives under the s.74 Determination from the OFT.

 

In any other case, regulated by the CCA, except overdrafts, there is a need for such a Notice.

 

HTH.

[Brassed off]

Thanks DC

 

Car - this isn't an overdraft, it's an instore finance agreement

[Brassed off]

Sorry, 'net access been very poor today

[PriorityOne]

Thanks DC

 

Car - this isn't an overdraft, it's an instore finance agreement

 

Yes..... that's what I thought I'd read...

[car2403]

Yes..... that's what I thought I'd read...

 

I'll get me coat...

[PriorityOne]

I'll get me coat...

 

Lol!!

[Brassed off]

Hey, you're only human

[PriorityOne]

You may find this useful... courtesy of pt2537 (Paul)...

 

if i were formulating arguments here, i would be relying on s173 CCA which expressly prohibits and declares a term void if it is contracting out of the Consumer protections of the Act.

 

my submission would be that such a term that allows a assignment to strip away the protections of the act would simply be contracting out

 

one ponders and asks the question, if they arent the creditor then what happens if the agreement hasnt been terminated (Cabots favourite argument) and therefore you make a request to the original creditor and then they dont comply, but cabot is suing you in the mean time

 

what would happen then??

 

seems to me cabot would be able to enforce while the agreement is unenforceable?

 

if they are to be believed as right!!!

 

IMO, this suggests a reason for Cabot's reluctance to confirm the type of assignment it is...

[Brassed off]

Sneaky aren't they !

[PriorityOne]

Sneaky aren't they !

 

Hell, yes...

[RobinWayRobinme]

I agree with car's earlier post that a DN is not required. My understanding is that a creditor is allowed to recover arrears on an agreement that has not been formally defaulted and terminated. As I understand in BO's case the agreement has run its course (48 months from 1999). If the creditor is claiming that they never defaulted or terminated the agreement, then all they are collecting is the arrears.

 

I would agree that putting them to strict proof of amount owing is crucial, but BO may find she is in difficulty with the DN. Of course different story if it can be shown that a DN was issued and was non compliant, or maybe there is a default registered on CRA. If they claim they have not defaulted but CRA shows a default, would there not be a counterclaim for general damages to credit?

 

In respect of the assignment, the fact they are bringing the claim without being joined by original creditor, they can only do that if they have an absolute assignment, then s.136 of LPA kicks in.

R

[Brassed off]

I'm re-doing my defence now, however if I want to put them to strict proof of the amount owing, how can I do this now? Can I add this to my defence or would I submit say, a part 18 request for further info ?