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

[PriorityOne]

Defence

 

1. I, [insert full name & address], am a litigant in person and the Defendant in this action. I 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 has failed to disclose all appropriate documentation to support the Particulars of Claim, requested under CPR 31.12 and CPR 16.4 (2); sent by recorded delivery on xx/xx/xx and xx/xx/xx in that the Claimant has not provided terms and conditions pertaining to the alleged debt nor any statements of account prior to assignment of the same and gives no legal justification for interest added post assignment. The Claimant has also failed to provide evidence of a Default Notice to substantiate the sum being claimed 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, including a full breakdown of the amount being claimed as "arrears" prior to any Default Notice being issued before assignment and a full explanation of the reasoning behind using the term "arrears" to describe this sum.

 

6. As the Claimant has not responded sufficiently, the Defendant denies the Claimants claim for interest pursuant to s.69 of the County Court Act 1984 which expressly forbids interest in claims where there is already contractual interest. A credit agreement by its nature defines contractual interest payable.

 

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.

 

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 Claimant's claim and therefore cannot plead due to the Claimant's ongoing failures to provide documentation under CPR 31.12 and 16.4 (2).

 

The Defendant would also like to draw the attention of the court to s.189 of the Consumer Credit Act 1974 in the case of Absolute Assignment, which makes it quite clear that the Claimant purchases the rights as well as the duties of an Agreement upon assignment. S189 defines the creditor as "the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor"

 

The CCA 1974 was designed to protect the consumer and as such, differs from contract law on those grounds.

 

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

 

Bo

 

I think the NOA is worth mentioning.... please read slowly... lol! Under the terms of the assignment, Cabot are claiming they have the rights but not the duties. However, both rights and duties are needed to be the creditor under CCA 1974 (by assignment or otherwise).... so this would mean there's no creditor.... and if there's no creditor, how can the Agreement be enforced?

 

Cabot can sue you (rights)... but the entitlement to receive sums would come from the Agreement itself.... and because Cabot are claiming rights but not duties... they're not defined as the creditor under CCA 1974, so would not be legally entitled to receive the benefits of that Agreement.... suggesting that the assignment itself has been a waste of time under CCA 1974 (not contract law, which Cabot seem to be running with).

 

OMG.... I have such a headache... !!

Edited August 20, 2010 by PriorityOne

[PriorityOne]

Devil's advocate?... so to speak...

[Brassed off]

I think the NOA is worth mentioning.... please read slowly... lol! Under the terms of the assignment, Cabot are claiming they have the rights but not the duties. However, both rights and duties are needed to be the creditor under CCA 1974 (by assignment or otherwise).... so this would mean there's no creditor.... and if there's no creditor, how can the Agreement be enforced?

 

I will fit something in about the NOA tomorrow. Yes, I've read quite a lot about Cabot claiming to have the rights but not the duties. How do they get away with that in court though if they're not the creditor?

 

Cabot can sue you (rights)... but the entitlement to receive sums would come from the Agreement itself.... and because Cabot are claiming rights but not duties... they're not defined as the creditor under CCA 1974, so would not be legally entitled to receive the benefits of that Agreement.... suggesting that the assignment itself has been a waste of time under CCA 1974 (not contract law, which Cabot seem to be running with).

 

So they bought a duck then lol

 

OMG.... I have such a headache... !!

 

Join the club You're in the wrong job obviously - they will be inviting you to join their supposed solicitors before long ;-)

[Brassed off]

Many thanks for your input, it's much appreciated

[Hadituptohere]

I think the NOA is worth mentioning.... please read slowly... lol! Under the terms of the assignment, Cabot are claiming they have the rights but not the duties. However, both rights and duties are needed to be the creditor under CCA 1974 (by assignment or otherwise).... so this would mean there's no creditor.... and if there's no creditor, how can the Agreement be enforced?

 

Cabot can sue you (rights)... but the entitlement to receive sums would come from the Agreement itself.... and because Cabot are claiming rights but not duties... they're not defined as the creditor under CCA 1974, so would not be legally entitled to receive the benefits of that Agreement.... suggesting that the assignment itself has been a waste of time under CCA 1974 (not contract law, which Cabot seem to be running with).

 

OMG.... I have such a headache... !!

 

That should sink the buggers...lol, I like this and will be using it in the not so distant future if its ok P1, this goes with what Meldrew pointed out in my case against cabot for my alledged Providian account with them.

 

Hadituptohere

[PriorityOne]

Join the club You're in the wrong job obviously - they will be inviting you to join their supposed solicitors before long ;-)

 

Pwahahahaha....

 

That should sink the buggers...lol, I like this and will be using it in the not so distant future if its ok P1, this goes with what Meldrew pointed out in my case against cabot for my alledged Providian account with them.

 

Hadituptohere

 

It's defo. worth a shot IMO... 'coz they can't have it both ways. I'd like to see Cabot try and wriggle out of that one actually...

[Brassed off]

I've added a bit about the NOA in paragraph 4 of my defence:-

 

4. The Claimant has failed to disclose all appropriate documentation to support the Particulars of Claim, requested under CPR 31.12 and CPR 16.4 (2); sent by recorded delivery on xx/xx/xx and xx/xx/xx in that the Claimant has not provided terms and conditions pertaining to the alleged debt nor any statements of account prior to assignment of the same and gives no legal justification for interest added post assignment. The Claimant has also failed to provide evidence of a Default Notice to substantiate the sum being claimed which leaves the Defendant at a disadvantage and unable to plead effectively or at all. A copy of the purported notice of assignment which the Claimant cites in the claim, has not been served attached to the claim form. The Defendant is embarrassed in pleading to the Claim as it stands.

[PriorityOne]

The NOA is not a big issue... but worth mentioning in case Morgans start with the "rights but not duties" tactic in court. You can then challenge the validity of the assignment itself (IMO) under s189 in terms of.... well, in that case, who's the creditor then 'coz the Act says the creditor needs both.

 

[Hadituptohere]

Supported by the fact that cabot europe ltd (registered with companies house) buy the alledged debt, and cabot (uk) ltd (registered at companies house) service the alledged account, but no NOA between the two companies.

 

Hadituptohere

[PriorityOne]

Supported by the fact that cabot europe ltd (registered with companies house) buy the alledged debt, and cabot (uk) ltd (registered at companies house) service the alledged account, but no NOA between the two companies.

 

Hadituptohere

 

Yes... came across this on another thread somewhere.... can't recall the precise argument as to why they can't do this... but know there is one.... lol!

[RobinWayRobinme]

I am sure that I have read some case law that can be cited re assignor, on assignment becomes creditor and receives all rights and duties.

R

[Hadituptohere]

Youll find that cabot sprout and are quite proud of the fact the are the creditor but own the rights and leave the OC with the duties, CCA74 clearly states the definition of creditor has to have the rights and the duties, this taken from my thread:

 

under CCA 74 a regulated agreement can be enforced only by the creditor, defined in s.189(1) as,

"

the person providing credit under a consumer credit agreement or the person to whom his rights

and duties

under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor

"

(my emphasis).

Therefore the purported assignment is ineffective under CCA 74, as under its terms (which are still valid for other purposes) Cabot now legitimately has all the rights and Barclays is left with all the duties, but neither have the rights and duties, so neither is - nor can be - the creditor. Thus if your debt really was assigned on 22 July 03, clever old Barclays & Cabot carefully managed to wangle themselves into a perfect snooker where neither of them can enforce the agreement under CCA 74, leaving you to pot the last black, grab the Cup and shove off down the pub with your mates to celebrate your amazing victory.

 

That does not mean the debt has disappeared or been satisfied or expunged - it still exists. Cabot, having acquired all Barclays' rights to the debt, can theoretically sue you for its recovery. So what would the claim be? Cabot would seek an order for you to pay the account balance, but would have to show entitlement to such an order. Cabot's entitlement could only derive from the Barclaycard agreement, which can't be enforced as Cabot is not the creditor because the purported assignment was ineffective under CCA 74.

 

So if Cabot is not entitled to sue, then Barclays must be. Wrong - Barclays no longer has that right, as it transferred all its rights to Cabot. Thus nobody is capable of enforcing the agreement, either under CCA 74 or any other way.

 

 

Hadituptohere

Edited August 21, 2010 by Hadituptohere

[Debtcontrol]

This sounds too good to be true? They transfer the right but not the duty? I'm going through the same with Cabot / msdw/barclays.

Good work!

 

Youll find that cabot sprout and are quite proud of the fact the are the creditor but own the rights and leave the OC with the duties, CCA74 clearley states the definition if creditor has to have the rights and the duties, this taken from my thread:

 

under CCA 74 a regulated agreement can be enforced only by the creditor, defined in s.189(1) as,

"

the person providing credit under a consumer credit agreement or the person to whom his rights

and duties

under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor

"

(my emphasis).

Therefore the purported assignment is ineffective under CCA 74, as under its terms (which are still valid for other purposes) Cabot now legitimately has all the rights and Barclays is left with all the duties, but neither have the rights and duties, so neither is - nor can be - the creditor. Thus if your debt really was assigned on 22 July 03, clever old Barclays & Cabot carefully managed to wangle themselves into a perfect snooker where neither of them can enforce the agreement under CCA 74, leaving you to pot the last black, grab the Cup and shove off down the pub with your mates to celebrate your amazing victory.

 

That does not mean the debt has disappeared or been satisfied or expunged - it still exists. Cabot, having acquired all Barclays' rights to the debt, can theoretically sue you for its recovery. So what would the claim be? Cabot would seek an order for you to pay the account balance, but would have to show entitlement to such an order. Cabot's entitlement could only derive from the Barclaycard agreement, which can't be enforced as Cabot is not the creditor because the purported assignment was ineffective under CCA 74.

 

So if Cabot is not entitled to sue, then Barclays must be. Wrong - Barclays no longer has that right, as it transferred all its rights to Cabot. Thus nobody is capable of enforcing the agreement, either under CCA 74 or any other way.

Hadituptohere

[Hadituptohere]

Cabot/Morgans try and swing it round to Contract Law and try to avoid the Statue Law of CCA74

 

Hadituptohere

[gh2008]

I know reading this thread you start to think 'how can these things be true' ....

 

If this was so straightforward i.e. obtaining judgement against the debtor - then why are these accounts only sold for as little as 3 or5p in the £ - AND normally with a put back clause if they cannot collect.

 

The accounts are all but worthless - the 'debt buyers' try it on and just take the easy wins

[PriorityOne]

I am sure that I have read some case law that can be cited re assignor, on assignment becomes creditor and receives all rights and duties.

R

 

S189 of CCA 1974 says so but if Cabot are arguing against this, then this would surely place the whole validity of that assignment into question. I've read a number of threads where Cabot/Morgans have sent some kind of assignment paperwork to consumers.... so IMO, this doc. needs to be gone through with a fine tooth comb to find anything in there which states that the rights are sold but not the duties...

 

I hate these new "smilies".... they don't sum up how I feel like the old ones....

[RobinWayRobinme]

Hi P1

At the end of the day, it doesn't really matter what they have done to others, does it, When they get to court they and BO must rely upon the CPR's, legislation and case law. Either there's an absolute assignment or there's not. If it's absolute, and claimant by bringing claim in own name is proceeding on that basis, then BO needs to prove that they have bought benefits and duties, which I think can be shown according to CCA 1974 and case law. I'll look a bit latter for the relevant case law.

R

S189 of CCA 1974 says so but if Cabot are arguing against this, then this would surely place the whole validity of that assignment into question. I've read a number of threads where Cabot/Morgans have sent some kind of assignment paperwork to consumers.... so IMO, this doc. needs to be gone through with a fine tooth comb to find anything in there which states that the rights are sold but not the duties...

 

I hate these new "smilies".... they don't sum up how I feel like the old ones....

[Hadituptohere]

http://www.consumeractiongroup.co.uk/forum/showthread.php?127059-Hadituptohere-V-Cabot-**-CASE-STRUCK-OUT**&p=2921286&viewfull=1#post2921286

 

Heres the sale agreement that morgans/cabot sent to me and 1.3 points this out, (hope that link works)

 

Hadituptohere

[Hadituptohere]

RWR you are right and that is why it is imperative that this document is requested, as shown it blows Cabot out.

 

Hadituptohere

[RobinWayRobinme]

IMO 1.3 just states that assignor remains responsible for any obligations, duties etc that occur BEFORE COMPLETION. It does not state that the assignee is not oblidged to carry out the duties and obligations under the agreement that is being assigned AFTER COMPLETION. Any obligation to provide copy documents etc after completion rests with the assignee. What is clear is that in the Offer in sch.7 it referes to all accounts being charged off. As far as I'm aware if an account is charged off it means it has been defaulted and terminated (can someone correct me if I'm wrong).

R

RWR you are right and that is why it is imperative that this document is requested, as shown it blows Cabot out.

 

Hadituptohere

[RobinWayRobinme]

If the assignment is not being questioned, on what basis can you ask to see a copy of the assignment itself? See my point, if it is pleaded that you deny claimant properly served a valid NOA prior to start of proceedings under LPA 1925 and they are put to strict proof, case law then allows you to obtain disclosure of the actual assignment. Conversely, if you accept there is a valid absolute assignment, what have they got to prove?

R

RWR you are right and that is why it is imperative that this document is requested, as shown it blows Cabot out.

 

Hadituptohere

[Hadituptohere]

Sorry RWR I thought BO was constructing his defence hence my tuppence worth regarding NOA/Sale Deed, and with the tripe that cabot sprout about having the rights and not the Duties its a good shot across their bows.

 

Hadituptohere

[Brassed off]

S189 of CCA 1974 says so but if Cabot are arguing against this, then this would surely place the whole validity of that assignment into question. I've read a number of threads where Cabot/Morgans have sent some kind of assignment paperwork to consumers.... so IMO, this doc. needs to be gone through with a fine tooth comb to find anything in there which states that the rights are sold but not the duties...

 

Yet another job I'll be doing today. I'll report back ;-)

 

 

I hate these new "smilies".... they don't sum up how I feel like the old ones....

 

Me neither (insert that fab eekky smilie that's disappeared in here - you remember the one LMAO)

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?127059-Hadituptohere-V-Cabot-**-CASE-STRUCK-OUT**&p=2921286&viewfull=1#post2921286

 

Heres the sale agreement that morgans/cabot sent to me and 1.3 points this out, (hope that link works)

 

Hadituptohere

 

Hi Haditup - there are similarities in the one sent to me, lots of pages blacked out although I see yours is a credit card one.

 

If the assignment is not being questioned, on what basis can you ask to see a copy of the assignment itself? See my point, if it is pleaded that you deny claimant properly served a valid NOA prior to start of proceedings under LPA 1925 and they are put to strict proof, case law then allows you to obtain disclosure of the actual assignment. Conversely, if you accept there is a valid absolute assignment, what have they got to prove?

R

 

Morning RWR. I agree as they cite the NOA in the POCs so will have to disclose a copy of the Deed of Assignment if it gets that far but they are still saying that they are the Assignee at the moment.

 

 

Why does the law make cases like this so complicated? I mean why can't the LIP just go into the court and tell the facts as they happened without all this case law and legislation shoved in left, right and centre?

 

Just off to MCOL to submit my defence online (thanks for all the input peeps).

 

 

[Brassed off]

Received a letter from Morgans on Friday - only posted up tonight after help (thanks DMD) - NCCBC must be very behind as Morgans haven't received my defence despite doing it online last weekend:-

Edited August 30, 2010 by sea-sidelady
Attachment removed :o)

[Brassed off]

Cheers SSL

 

Even more edited version attached!!