Cabot - Halifax Credit Card - Cabot now started Court Action - Help Please ***SETTLED***

[caro]

I just mean if you didn't say 7 days from the date of this letter, or date of postmark or whatever. 7 days from receipt of letter seems reasonable to give the benefit of any doubt.

[lamb909]

Ok, thanks Caro, can I just check that I don't need to do anything until I receive a response from them (within the 7 days)? Also, what do I do if they do not respond within 7 days?

[caro]

This is outside my comfort zone but just found this. http://www.consumeractiongroup.co.uk/forum/showthread.php?261832-Judge-not-impressed-with-CPR-breaches-by-Cabot-and-others&p=2955146&viewfull=1#post2955146

[BRIGADIER2JCS]

That needs careful analysis to see what resulted.

[caro]

Case was struck out and costs paid. Hadituptohere-V-Cabot-**-CASE-STRUCK-OUT**COSTS-PAID

[The Mould]

My CPR request was signed for on 16 May so do they have 7 days from then to reply or 7 days from postage? Or have I got it all wrong?

 

Hello Lamb

 

Will you kindly post up the entire contents of your CPR request please.

 

Further, if the claimant does not respond by no later than 7 days after receipt of said request and he also fails to give any good reason(s) as to why he is not responding within the time-scale, then bring any such failure of him to the court's attention in your defence statement.

 

Kind regards

 

The Mould

[lamb909]

13 May 2011

 

Dear Sir/Madam

 

Re: Case No:

CPR 31.14 Request

 

On 7th May 2011 I received the Claim Form in this case issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings, I had delivered to you a request pursuant to s78 CCA 1974 (as amended) for production of the agreement that you now mention in your Particulars of Claim and upon which you clearly intend to rely. It will be noted that you disregarded said request.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document mentioned in your Particulars of Claim:

 

1. The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2. You allege in your particulars that you are the assignee of a debt purchased from Bank of Scotland, to this extent, I require a copy of the Deed of Assignment.

 

3. As I am sure you will be aware, the legislation applicable to assignments of contracts is laid down in the Law of Property Act 1925 s136(1), in this regard, I require a copy of the Notice of Assignment and proof of service thereof, I refer you to s196(4) of said act in respect of statutory notices and the requirements imposed upon service of the same.

 

4. Default Notice, again, I am sure you are aware of the requirements imposed upon creditors under s87 CCA 1974 (as amended) in respect of service of said statutory notice being a pre-condition of enforcement and therefore I require a copy of the statutory notice you intend to rely upon in these proceedings and proof of service of the same.

 

5. Termination notice, I require a copy of the termination notice you intend to rely upon in these proceedings and proof of service thereof.

 

6. Account statements, I require a copy of any annual statements of account that you intend to rely upon if you allege to have served any such statements. Although 4, 5 and 6 are not mentioned in your particulars, I would be grateful if you should agree to voluntarily disclose said documents as this could enable the possible reduction of any issues in the case and thereby assist the overriding objectives.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

[the_shadow]

lamb909, when does your defence have to be filed by... dont lose sight of the key date at present... 33 days from the original claim document.

 

What is your actual defence? Wont hurt to try and get you formulating how you are going to plead at present, Please read through the points below first tho...

 

1. I see potential arguments over the DN argument (i.e. you didnt get one you state) but as Caro has correctly stated DJ's have in the past glossed over default issues since Brandon, its a serious breach to not send a default at all and a SAR should be made to the original claimant ASAP imho to show if a default notice was sent from the communications log.

2. The S77/s78 responses in the shape of reconstructed agreements are allowed, you have no right to see the actual physical signature document you signed, so long as they stay within the constraints of Carey vs HSBC they will have been deemed to comply. It looks like they sent you a reconstruction of the original agreement and a reconstruction of the varied agreement, so long as they have the address at the time you took out the card and the prescribed terms for a credit card are on there they will have complied

3. The agreements mentioned on the Particulars of Claim, you have the right under CPR to see the evidence they will use, not the originals if that is NOT the evidence they seek to rely on. As you've been told reconstructions have been used in court and are covered under Carey albeit in comments made by the judge rather than the actual judgment decision.

4. Notice of Assignment, would normally be sent as a letter from Cabot saying they had purchased the rights to your debt, normally you get a letter from the selling creditor advising you it was sold... referred to as the goodbye/hello letters on this forum most of the time Without a NoA they have no right to the money although if they can convince a judge one was sent then they've ticked that box

 

So as to the CPR, the letter you sent expanded on the permissible documents you could ask for, CitizenB gave you a CPR letter which IMHO was the one we normally would advise sending

 

We await their response......

 

S.

[lamb909]

I don't now know what my actual defense is, I posted some points earlier but they were useless as I understand, it was as follows,

 

 

1. they havent supplied me with a true copy of the original CCA

 

2. they have not provided me with a termination notice

 

3. they have not provided me with a deed of assignment

 

4. they have not provided me with a default notice

 

5. they have stated they refused to correspond with me further

 

6. they have only provided me with a recon agreement which without the original cca I cannot conclude it contains the same T&C's

 

7. they have not provided me with a statement of trurth regarding the recon agreement

 

or something like this..................... .............

 

 

And then I was advised to start off with

 

It is neither admitted nor denied that an agreement containing all the terms prescribed exists.

 

I hold the claimant to strict proof that:

 

1) The claimants has a legal right to bring this claim, and that the alleged debt has been assigned to the claimant.

 

2) That any agreement exists between myself and the claimant.

 

The defendant respectfully reserves the right to amend his defence, should the claimant satisfy the court that the above have been proved.

 

 

 

My defense is due in by 5th June (but it will be the Friday before when I have to submit it)

 

Going by the points you've raised I think I'm b*ggered now anyway so no idea what to do now because all that I can put in my defence seems no good, there doesn't seem any point anymore and I really wanted to do this. I'm not work shy but please somebody help me before I do something stupid. I'm getting conflicking advice and I don't know whos right and whos wrong, and I just dont know what to do now.

 

I have read through losts of threads and their defense but they don't seem applicable to mine, no idea what to do now

 

I appreciate all help I've received but I feel like I'm going around in circles and I know its up to me whether I take said advice, and I blame no one at all for anything said or done, I know its only advice and maybe I should have taken legal advice. Up the creek now, aren't I?

[BRIGADIER2JCS]

No I think not, the points you make a straight forward an simple which the Judge will like,

You will be wise to take all the correspondence you have sent so you can prove that you have

made the effort to resolve the dispute which is a point in in your favour perhaps one of the site team could put what you have above in order for you.

[the_shadow]

"Set in Stone" Not at all, you have not issued a defence at present so nothing is set in stone...

 

I'm sorry youre getting conflicting advice but this an open forum where people try and help the best they can, some people see it as black others as white and as such we'll advise you how we think things should be done, some of us may have the same opinion and others different but please believe me we all think we have your best interests at heart... I for one will admit I dont want you to go to court unless you are aware of how strong/weak your case is.

 

There are three things they have to prove in court to get their pound of flesh...

 

1) The debt is owed

2) The debt is owed by you

3) The debt is owed by you to them

so they need to show a balance and how it is worked out to satisfy (1), They need to show some sort of agreement between yourself and them (reconstruction or real) and that the original lender acted properly as regards the CCA1974 to satisfy(2). They then need to show that they have been assigned the debt properly to satisfy(3).

 

At the moment there are issues with steps 2+3

 

The agreement, Please please please understand one thing.. there is no right under any law to see for information purposes the actual physical agreement you have signed, s78 or CPR otherwise. They are allowed either to provide a) a Truecopy which is a copy taken from the actual agreement be that from an image (microfiche) which is in effect a copy of a copy or an actual physical agreement on paper .... or B) a Reconstruction, where they are ALLOWED to repopulate an agreement using information they hold on you, eg. a database storing all apr%, names,addresses etc.

 

Under your CPR31.14 letter you have requested sight of the agreement, however.... this is the agreement they are relying on in court, this will in all probability be the same reconstructions you have received earlier.. it will not necessarily be the original agreement. If they rely on reconstructions then thats what you must battle against, it would be down to you to prove their statement of the reconstruction being honest and true wrong.. possibly using old statements to show the APR% was incorrect etc and pointing out that Carey vs HSBC was an informational s78 request case and not an enforcement case.

 

In regards the Default Notice and the Notice of Assignment however I believe in a previous post you have stated you are not sure if you were sent a default notice. That is a worry as failure to provide a default notice prior to issuing proceedings has in some cases caused the judge to throw the case out HOWEVER in others the judge has just stayed the claim to allow a new default to be issued, judge lottery anyone

 

The Notice of Assignment is needed to show they own the debt and can bring the action, without you receiving some notification that they own the debt they have not complied with the LawOfProperty Act, however if they say they sent it and you say you didnt receive it, it'll be down to the judge to decide.

 

S.

[the_shadow]

BTW if the date falls on a weekend I believe the time to file is the next working day... you can phone Northampton bulk court and they will tell you the latest date to have your defence filed by.. if Cabot respond you may want that extra time so would be worth contacting them.

 

S.

[lamb909]

Having tried to step back and look at this with new eyes and reading The Shadow's posts, I realise my case is weak,very weak,so what to do now as I am near 100% certain that I am going to lose. So what to do now? Just wait and see if Cabot respond (do I wait till Mon or is their time up on Sun, meaning I have to receive something in post on Sat at latest - they signed for my CPR on 16th)

 

Do I not defend now, can I retract that online? when the judge gives me a CCJ can I negoatiate repayments? Is he likely to demand it all be paid at once

 

And do i understand it right that any DCA can now put together a recon agreement and it will be therefore enforcable?

 

And why does it state on the top of the recon agreement from halifax - application form -

but it doesn't on the BOS one. I though application forms were unenforeable, somebody please correct me if I am wrong

 

One thing I do not understand is how they can say (and judgement given in their favour) that the recon agreement is the one I would have signed, if I can't see the original how can I be certain its exactly the same as the one I signed and how can they prove it?

[BRIGADIER2JCS]

1 a DCA cannot produce a CCA it must come from the original creditor

2 can you post up the ap form after removing personal data

3 I think a judge will review th reconstituted contract on the balance of probabilities.

4 The repayments can be arranged by agreement at the hearing

5 You need to see the documents they intend to rely on so yes wait.

[lamb909]

Sorry, I meant the first page of the recon "agreement" from Halifax - states "application form" in the top left hand corner and has a bar code like thing. The only personal details on both the recons are my name and address which are correct, all the rest is just typed up (ie the T&C's), there is no credit limit, there is the APR etc but its not like the document I signed which was a one page document with my name, address, DOB, Credit Limit, work details etc etc.

 

Both the recons are made up of 8 pages of typed T&C's and all there is at the top, in relation to me, it says "This is an agreement between Halifax and address and then my name and address and then again the same for BOS, their name and address and then mine.

 

Sorry if I have confused you

[BRIGADIER2JCS]

Yep but that's easy I would have serious doubts about the recon headed application that cannot possibly prove

that the application was accepted.

[lamb909]

The recons are like this, pages 2-9. but the Halifax one has in the top left hand corner above where it says Credit Agreement regulated etc etc there is a bar code thing and it states application form.

 

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=9112&d=1243010326

 

Sorry, cross posted

[BRIGADIER2JCS]

AS previously mentioned judges are more inclined recently to allow recons by the bance of probabilities thatban agreement was made

especially if statements etc are available which show payments etc.

[lamb909]

I know, I understand that now, shame I didn't when this whole process started and there are statements with payments made on them. I appreciate your input, thanks

[BRIGADIER2JCS]

Please keep us posted on progress.

[The Mould]

13 May 2011

 

Dear Sir/Madam

 

Re: Case No:

CPR 31.14 Request

 

On 7th May 2011 I received the Claim Form in this case issued by you out of the Northampton County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings, I had delivered to you a request pursuant to s78 CCA 1974 (as amended) for production of the agreement that you now mention in your Particulars of Claim and upon which you clearly intend to rely. It will be noted that you disregarded said request.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document mentioned in your Particulars of Claim:

 

1. The agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2. You allege in your particulars that you are the assignee of a debt purchased from Bank of Scotland, to this extent, I require a copy of the Deed of Assignment.

 

3. As I am sure you will be aware, the legislation applicable to assignments of contracts is laid down in the Law of Property Act 1925 s136(1), in this regard, I require a copy of the Notice of Assignment and proof of service thereof, I refer you to s196(4) of said act in respect of statutory notices and the requirements imposed upon service of the same.

 

4. Default Notice, again, I am sure you are aware of the requirements imposed upon creditors under s87 CCA 1974 (as amended) in respect of service of said statutory notice being a pre-condition of enforcement and therefore I require a copy of the statutory notice you intend to rely upon in these proceedings and proof of service of the same.

 

5. Termination notice, I require a copy of the termination notice you intend to rely upon in these proceedings and proof of service thereof.

 

6. Account statements, I require a copy of any annual statements of account that you intend to rely upon if you allege to have served any such statements. Although 4, 5 and 6 are not mentioned in your particulars, I would be grateful if you should agree to voluntarily disclose said documents as this could enable the possible reduction of any issues in the case and thereby assist the overriding objectives.

 

Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

 

Thank you for that Lamb

 

The above request sent pursuant to said CPR is perfectly clear, so as said, wait and see if the claimant complies with his obligation to respond.

 

As far as the default notice is concerned, the Harrison case para 75 is the leading case on defective (bad) statutory notices, this means if the notice is bad/defective or not served at all, the claimant/creditor cannot proceed to enforce the contract, his claim fails.

 

He will though, issue a valid (good) statutory notice and start all over again, I have very strong views/contentions in respect of such conduct/action of creditors who undertake this course of action, however, I am not going to state them here Lamb as others will know, there has been much debate on the said subject.

 

Wait and see if he responds first, to your CPR letter, if he does, then post here immediately, if he does not, again, post here immediately.

 

Kind regards

 

The Mould

[alangee]

Shadow

 

Ref your post #186, I have seen comments from some of the experienced posters, saying that a DN should be sent prior to being sold on to a DCA. If that is correct, then there must be an issue with the sale of lambs account to Cabot.

 

One other point. Surely the Claimant has to provide a signed CCA to the court regardless of whether it is the original or a copy. If they only have a reconstruction then how do they get around s127(3)?

 

Alan

[BRIGADIER2JCS]

They will often rely on statements showing payments made to the account and the Judge

will go on the balance of probabilities that an agreement does or does not exist.

[DonkeyB]

Ref your post #186, I have seen comments from some of the experienced posters, saying that a DN should be sent prior to being sold on to a DCA. If that is correct, then there must be an issue with the sale of lambs account to Cabot.

 

Alan

 

As long as the ability to sell the account is provided for in the T&Cs, a ‘chose’ can be sold at any time. However, the buyer would then have to issue a default notice and terminate correctly before enforcement. Equally, the buyer would require a consumer credit licence and would have to provide the same T&Cs and facilities that were present a the time of sale.

[alangee]

Brigadier

 

I know what you are saying, but 127(3) does not allow that, and proof is on the claimant. If you can honestly say that you did not sign that agreement (and if it is reconstructed and not in its original form, how could you), then it is up to the claimant to provide evidence that you did. Do not forget, lamb is not necessarily saying that he does not owe a debt, he is contesting the right of Cabot to collect on it.

 

Alan