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

[PriorityOne]

I agree with car's earlier post that a DN is not required. It is because the account falls under CCA, 1974. 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. Cabot are claiming that it's not been terminated (I think) but it has.... so it's a chance to catch them out.

 

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? IMO, it's up to Cabot to locate and produce the DN, since if the account was terminated (which it will have been after so long), then a DN would have been issued. Showing a Credit File entry would be another way of proving termination, yes.... the default would have been entered by the original creditor but may well have fallen off the record by now as they're only on there for 6 years.

 

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

 

Yes, they would need to own the account by Absolute Assignment.... but they still have a duty to ascertain that the amount being claimed is correct, so they would need to produce the DN to show the precise amount of "arrears" that were due at that time (if asked to do so, which Bo has).... which I can almost guarantee will not be the same amount that Cabot are trying to claim in their POC.... because they normally add charges/interest of their own.

 

Bo has also never had the terms & conditions of the account either (under CPR) because Cabot haven't sent them.

[PriorityOne]

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 ?

 

I would put them to strict proof of substantiating the amount owing against the DN.... which you've already asked for (via CPR) and they haven't supplied. Not sure at this point whether you need a Part 18 request because of what you've already sent, but this is not my area.... so we need confirmation from someone re. this Bo.

[RobinWayRobinme]

IMO, this is not a part 18 request. The claimant must prove the amount being claimed if amount is denied and they are put to strict proof.

 

P1. I see your point re CRA info dropping off. I also agree that bo should put them to strict proof of the amount of arrears, as it is just the arrears they are claiming

R

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 ?

[PriorityOne]

So putting them to strict proof needs to go in the Defence? Sounds good

 

It'll also be interesting to see/hear how they're managing to claim "arrears" on an account that was terminated and sold by the OC some time ago.

[car2403]

I agree with car's earlier post that a DN is not required.

 

I've totally confused everyone now, I thought there was no DN needed as it was an overdraft debt - which it isn't.

 

I've took myself outside and shot me, though.

[gh2008]

So putting them to strict proof needs to go in the Defence? Sounds good

 

It'll also be interesting to see/hear how they're managing to claim "arrears" on an account that was terminated and sold by the OC some time ago.

 

Do we *know* this account is terminated?

 

Selling off the rights is not termination - the banks do it all the time (securitisation) and the consumers are not told, and don't need to be (unless the 'way you repay' is changed)

[George White]

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

 

 

They claim that by reducing credit limit to O that all sums become due! This was laughed out of court by the judge in my case as obviously does not affect amounts already owing, which are are running a credit agreement, only future borrowing!

[gh2008]

Fair enough, I agree with that

 

BUT in this case we are talking about a loan, over a fixed term, the last payment on which was due several years ago.

[PriorityOne]

Do we *know* this account is terminated?

 

Selling off the rights is not termination - the banks do it all the time (securitisation) and the consumers are not told, and don't need to be (unless the 'way you repay' is changed)

 

It is terminated, yes. Cabot wouldn't be bringing action as Claimant if it wasn't a terminated (and sold) account. They've bought it but are bring cagey about this for some reason, probably due to their fixation with the word "arrears", which would need to tie up with the DN... which they don't seem to have.

 

Securitisation is a much bigger issue and one that's been discussed at length on other threads. Cabot like to talk about having the "rights but not the duties" which is not what CCA law is about. They're talking about contract law... which is not the same... and interpreting it to suit.

[gh2008]

Why do you say it is terminated because Cabot have bought it???

 

Creditors can sell live accounts and Cabot has a licence to run a live account .... I *really* don't get it.

[Brassed off]

Well here's my amended draft defence (I will get there in the end!)

 

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 has failed to disclose all appropriate documentation to support the Particulars of Claim, requested under CPR 31.12 and CPR 16.4 (2) in that the Claimant has not provided terms and conditions of the alleged debt nor any statements of account prior to assignment of the same and gives no legal justification for interest added post assignment 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 and amount of arrears claimed.

 

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.

 

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 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

[car2403]

Do we *know* this account is terminated?

 

Selling off the rights is not termination - the banks do it all the time (securitisation) and the consumers are not told, and don't need to be (unless the 'way you repay' is changed)

 

Really, whether an account has been terminated by being 'sold' in this way is a matter of fact to be decided by a Judge - if you can convince him that selling the account is an act of termination, then he will probably decide that termination has taken place

[gh2008]

If so, how come for instance when Tesco became a bank did it buy the accounts off RBS?

 

Abbey accounts were bought by Santander

 

Sorry, I don't agree that the act of selling an account terminates it.

 

Especially if there is no change to the way the account is being 'run' (as in this case)

 

JMHO

[car2403]

If so, how come for instance when Tesco became a bank did it buy the accounts off RBS?

 

Abbey accounts were bought by Santander

 

Sorry, I don't agree that the act of selling an account terminates it.

 

Especially if there is no change to the way the account is being 'run' (as in this case)

 

JMHO

 

I didn't say it terminates it, I said it was arguable that is could be evidence of a termination.

 

Selling an Account to a debt collector in this way isn't the same as selling off part of your book to another financial institution in this way - unless Santander are debt collectors?

[gh2008]

I am sure Santander will be registered for amongst other things running accounts and for debt collecting as are most if not all the banking groups.

Cabot also have a licence, and are registered with the ICO for running live CCA accounts, not just debt collecting.

[car2403]

I am sure Santander will be registered for amongst other things running accounts and for debt collecting as are most if not all the banking groups.

Cabot also have a licence, and are registered with the ICO for running live CCA accounts, not just debt collecting.

 

Yes, but that's in the real world, not in the fantasy world of a County Court Judge making it up as he goes along

[PriorityOne]

Why do you say it is terminated because Cabot have bought it???

 

Creditors can sell live accounts and Cabot has a licence to run a live account .... I *really* don't get it.

 

Cabot have issued a claim in their own name.... so must have bought the account by Absolute Assignment.

 

It's a terminated account because there's a DN which wasn't remedied. Cabot don't seem to have the DN, so how do they know that the amount in "arrears" is correct according to it?

 

I have never experienced a DCA buying and administering a "live" account.... despite what their fancy licence may suggest. DCAs either collect on behalf of a creditor or the creditor flogs the account.

[PriorityOne]

I've added a few bits in there Bo.... highlighted in orange. See what you think....

 

Well here's my amended draft defence (I will get there in the end!)

 

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) in that the Claimant has not provided terms and conditions of 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.

 

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.

 

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 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

 

There might be more to add to this... I'm wondering whether to include something about s189 of the CCA being about rights as well as duties.... coz this seems to be what they're trying to wriggle round....

[PriorityOne]

A suggested addition....

 

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

 

Needs tweaking.... but something like that....

Edited August 17, 2010 by PriorityOne

[Brassed off]

That's brilliant, thanks P1 - can't rep you, I need to go and spread

 

Think I will go with that now, unless anyone has anything further to add or advise?

[George White]

Really, whether an account has been terminated by being 'sold' in this way is a matter of fact to be decided by a Judge - if you can convince him that selling the account is an act of termination, then he will probably decide that termination has taken place

 

THe Judge in my case also stated, that once legal action is started then you are seeking to termnate the account. Will the account still be running after the court proceedings? No it will end.

[gh2008]

unless it is too late you could change para 6 to include the reason why they cannot have s69 interest. i.e. that s69 expressly forbids it in cases where there is already contractual interest. A Credit agreement by its nature defines contractual interest payable.

[Brassed off]

A suggested addition....

 

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

 

Needs tweaking.... but something like that....

 

Noted P1. I will try and get that into my defence. I have very little time now so will ask Mr Blue to post up my final defence tomorrow thanks. I will need to get it printed off and posted Rec Del Saturday morning. Not CAG's fault but not being able to get on the forum tonight really hasn't helped as I really wanted to get my defence done online tonight

 

unless it is too late you could change para 6 to include the reason why they cannot have s69 interest. i.e. that s69 expressly forbids it in cases where there is already contractual interest. A Credit agreement by its nature defines contractual interest payable.

 

Not too late gh - I will print off S69 for the hearing ta

[cymruambyth]

Thanks BO

[Brassed off]

Here we go again! Sorry gh and P1 but my "tweaking" is not in full flow tonight due to being up at 5.30am this morning.

 

 

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) in that the Claimant has not provided terms and conditions of 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.

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 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. 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

 

Not sure whether to incorporate not receiving the NOA which is actually in their POCs?

 

POCs were:-

 

The Claimant is the Assignee of a Debt(s) from [[OC]] reference XXXX. Notice of Assignment having been given to the Defendant in writing. Despite demand for Payment, XXXX.XX remains due. The Claimant claims XXXX.XX and interest under s69 County Courts Act 1984 and costs.

 

I'm hoping to submit the defence online this weekend.

 

TIA

 

Bo