Very, very, quick ccj from cabot???

[AndyOrch]

Andy

 

Has the Claimant referred to the DN in their WS at any time? A WS by a Claimant with no mention of default would be very weak.

Perhaps you could post up there WS less any identifiable there may be more errors.

Do you have any statements from around the time this account hit problems with BC I understand that they printed their DNs on Customer Statements.

This is allowed and was part of the 2006 amendments.

 

Regards

 

Andy

[andys123]

Absolutely no mention of any DN. No statements available apart from a few statement entries/summaries that Cabots have supplied to prove the amount oustanding, these are dated between Nov 2002 - March 2003, Cabots purchased the debt in October 2004. If BC did serve a DN it would/should have been around the end of 2002 - early 2003 before passing it on or at the latest before selling to Cabot??

Can post up their WS later if needed

 

Thanks.

[AndyOrch]

Have you checked your CRAs have you been defaulted and by who and what date.Bit more ammunition.

[andys123]

Looked at them back in 2007 !!!! At the time both Barclaycard and Kings Hill (Cabot) had the balance outstanding in their names, Cabot contacted about it and they informed Barclaycard who then removed their oustanding balances from the CRA. .....but there was no details about the outstanding balance to either of them upto last year.

[AndyOrch]

Ok so on thats basis you have never been defaulted or allowed opportunity to rectify any alleged breach.

In that instance enforcement cannot commence until such time they either issue one or prove that one was sent

or disclose any data to state that one was issued.

 

 

Andy

[andys123]

Thats what I thought but I've also read that they try to get around this by suggesting that they are trying to claim arrears only and that the agreements aren't neccessarily defaulted or terminated, although i have letters from Morgans saying that payment is now demanded in full.

[AndyOrch]

Then in that case they will have had to issue an AN (Arrears Notice) if they wish to use that loophole.

 

Notices of sums in arrears under running-account credit agreements

4.12

 

From 1 October 2008, creditors will be required by section 86C of the

1974 Act

35

to give debtors a notice of sums in arrears under running-

account credit agreements, together with a copy of the current OFT

arrears information sheet.

36

The notice must include the information and

forms of wording prescribed by the 2007 Regulations.

 

4.13

 

An arrears notice will be triggered if:

•

 

the debtor is required to have made at least two payments

38

under

the agreement before that time, and

•

 

the last two payments have not been made (or have been paid only

in part).

39

 

4.14

 

The notice must be served not later than the time the creditor is next

required to give a periodic statement under section 78(4).

40

 

The notice

may be incorporated in the section 78(4) statement or any other

statement or notice under the 1974 Act.

4.15

 

The arrears notice must indicate among other things:

•

 

the amount of each of the last two required payments

•

 

the date on which the amount fell due

[andys123]

So to summarise - if court action brought against me then a Default must have been registered and served by either BC (original creditor before selling on or further action) or the Claimant.

If they claim that there is no need for a default to have been registered or served or then they cannot have terminated the agreement, in which case it is still live/open and therefore the amount they are claiming is arrears but....no arrears notices served as per section 4.12 (above).

[AndyOrch]

It as to have Terminated to enable litigation.

[andys123]

Thanks for your help Andy

[andys123]

Have also read a quote which relates to not providing an arrears notice (if thats the route that they take) "The debtor or hirer is not liable to pay any interest that relates to the period of the creditor or owner’s failure (to provide a a notice)" This is phrased from the 2006 Regs, would this apply to my case as they have charged a big lump of interest, about £1800 in total, during the period where there has been no arrears notice, and then subsequent court action. Do I put something in this in my WS to cover the eventuality, as well as the obvious lack of a DN/termination?

[AndyOrch]

That is quite correct I did not post it as I wasn't aware they had charged you, but by all means use that.Agreements are retrospective to the 2006 amendments.

 

 

I would be interested to read their WS Andy when you get chance and also to check yours once completed.

 

Regards

 

Andy

[andys123]

Thanks Andy, will try and get it on tonight.

[andys123]

Here is the WS sent to me. In addition, there was the assignment, photocopies of two lots of conditons, account action history, Cabot statement of account and the name change for Cabot. Will post thses if required.

witness 1.pdf

witness 3.pdf

witness 4.pdf

witness 2.pdf

[AndyOrch]

A rather precarious Witness Statement if ever there was one.Two pages of self gratification and two pages of assignment, no history no reason as to why litigation was commenced

obviously as no DN has ever been issued. BC always issue a DN before palming the debt off so that is very strange.As you state from the Data no trace of a DN or one being issued.

Use that to your advantage and like a dog with a bone dont let it go or be acceptable,a DN must be issued either by the OC or the Assignee.

Nothing really more to add to that Andy, post yours up when you are ready.

[andys123]

My witness statement attached, have got the other issues to put in yet such as arrears notices if not a terminated agreement etc. Feel free to add/remove/modify if you would.

MY WITNESS STATEMENT.pdf

[andys123]

Oooops, here it is

MY WITNESS STATEMENT.txt

[AndyOrch]

Needs to be thinned out a tad Andy and spaced very heavy on the eye. Prior to the assignment is history they dont refer to it so neither should you in any great detail.

 

Ill take another look tomorrow see if it can be polished if I have time.

 

Andy

[andys123]

Format on what I uploaded looked different to what I've drafted. Any pointers appreciated, Thanks for help.

[andys123]

Just adding finishing touches tp my WS, anyone care to have a look at it?

[andys123]

Have now received a trial date from the court. WS submitted and their solicitors now have to provide an indexed bundle and we both have to provide a skeleton argument. Unsure of few things so my questions are:

1. what is going to be in their bundle (thought that the meaning of standard disclosure of documents covered this????)
   
2. what is a skeleton argument, is it the same as the witness statement or defence?
   
3. how will the trial develop - questioning etc, will questions be relevant to our witness statements only
   

Any help appreciated. The court have also said that any offers of settlement etc that they be notified. Now that a court date has been set and everybody has received the relevant documents, how do I go about offering a payment. I have never intended not to pay what I owe, just dont want to pay the £2600 in interest and charges but bearing in mind the lack of any default notice whatsoever and their right to charge interest on an account that has obviously been terminated and assigned.

 

Thanks

[andys123]

......anyone?

[spamheed]

Just had a look at their Witness statement.

 

Firstly, they make reference to a "represenation of the NOA" there is no such thing as a representation in law, it is either a true copy or it isn't and if it is then it should be pleaded as such, if it isn't pleaded as a true copy then you should dispute the document

 

Secondly, the Redacted DOA, in the one sent to me there was a date which conflicted directly with the dates they claimed, (so have a look coz they could be using the same ream of sh!te") as they have redacted the DOA, anything that has been redacted is inadmissable at the trial and if they attempt to show the judge an unredacted copy of this document it must contain material facts pertinent to the case, therefore showing anything to the judge in private before the trail would open up Human rights issues as you would be being denied a fair trail.

 

The interest that they have applied to the account, does it state anywhere on the agreement that there is allowed any application of interest at 12% after sale or assignment? if it doesn't then they are not allowed to apply it.

[Docman]

andy

 

As far as I know, the trial bundle is a collection of all the main documents to be used in the final hearing. Depending on the size of the case, it can be a lever arch file with tabbed sections or several files for the larger cases.

 

The bundle may start with the skeleton argument (more about that later) as a guide that takes the judge through the documents in the case. The first section is usually the 'pleadings' ie the statement of case followed by the witness statements and exhibits. Then a print out of all the relevant regulations and sections of the Consumer Credit Act along with the full print outs of any important case law mentioned in the pleadings.

 

As I said, the skeleton arguent is a kind of guide to the judge about the case. So there is usually an introduction, a section on the background if relevant, and then the main issues in dispute. Here is where you set out your side of the argument and cross refer to the witness statements, regulatons, case law etc. Preparing a skeleton for yourself means you get to know the case in detail. Remember the judge wont necessarily know about your case - or even the area of the law being discussed, so you have to educate him. It is also likely that the other sides solicitor won't know much more about the case, especially if he a local rent-a-solicitor acting for one of the DCAs from a different town. That is to your advantage.

 

Hope that clarifies somethings for you.

 

Doc

[andys123]

thanks to both of you. spamheed, have you anything to assist me with regards to representations and redactions. some of the representations theyve sent are laughable with no reference to my account whatsoever but can I argue these points in court if not mentioned in my ws, stupid question????