Urgent Cabot Defence Needed - Can anyone help

[nometer]

I have finally decided to pull my head out of the sand after recieveing a claim, its now time to put up a fight.

Hi I've been reading through loads of threads but don't seem to find an answer..

So I thought its time to post for some help.

I need to get a defence in to the court by Monday.

I have a cc debt from morgan stanley that was brought by cabot.

some time ago I sent them a CCA request and recieved a Credit agrement that did have my signiture and details, the terms and conditions were unreadable... so I asummed unenforacble!

Since the wakesman ruling I've been informed that they can produce any terms and conditions, making the agrement enforcable.

One area of defence I have that I belive good, well I'm hoping it is, I never recieved a default notice or a notice of assignment from Morgan Stanley.

All cabot have sent me is a letter with a barcley's letter head with 'representation of letter sent' written accross the top. claiming this is a valid default notice and notice of assignment.

I checked my credit record and no default on there from morgan stanley, only a default listed by cabot after they brought the debt.

Can anyone offer some advice on this, or point to some threads that could help..

[nometer]

I have another post regarding a claim that cabot have raised against me.

I have a question regarding charges and interest.

On the statements I have recieved it looks like lots of the balance is made up from charges and interest. Should all the charges be added to the balance or can I claim that the amout owed is incorrect?

[silverfox1961]

Hi,

It would be better to keep your questions in one thread so I have merged the two

[nometer]

bump

[silverfox1961]

Have you asked the claimant for any documents as yet?

What are the Particulars of Claim?

What dates are on the POC?

 

Just a little info about defaults. What you saw on your credit file was that Cabot replace the original creditor once they took over the debt

[nometer]

Many thanks for looking in silverfox.

I have'nt requested anything since the claim was made. I did recieve about 6 months ago a mocked up notice of assignment, an unreadable credit agreement, a mocked up default notice and some statements.

The poc's are:

The claimant is the assignee of a debt from goldfish bank ltd. Credit card ref xxxxxx notice of assignent having been given to the defendant in writingi. Despite demand for payment xxxx remains outstanding. The claimant claims xxx and interest under s.69 county courts bat 1984 and costs.

Not really to sure I understand these?

[silverfox1961]

Time for you to do some in depth reading.

This is good:

http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

 

There is also this:

http://www.consumeractiongroup.co.uk/forum/showthread.php?278100-Help-needed-urgently-Filling-a-dispute-to-court-please&p=3137995&viewfull=1#post3137995

 

Also check out cpr 15.5

 

Have you acknowledged the claim yet?

When did you receive the POC?

[nometer]

I have acknowledge the service and my 28 days is up Monday.

Initially I was just going to roll over and let them get the judgment, but now I'm feeling ready for a fight.

I will have a read through the threads and see if I can get my head around them.

Could I send an embaressed defence that I have seen used alot on here?

[nometer]

From reading through those threads it looks as if i'm going to have to take the judgement. I have left it too late by burying my head in the ground and hoping this will go away. The defence has to be in on monday, so no chance to request information.

[coledog]

You can still file an embarrassed defence but will probably have to fax it on monday. Have you received any of the documents mentioned in the POC or requested them at anytime? Are they claiming the full amount or just part of the total debt leaving a balance?

 

You will need to phone the court on Monday to check when the defence has to be in. You can also still send off the request to the claimant for the information.

 

I will read through the thread again.

[nometer]

They are claiming the full amount. I have recieved some documents in the passed after a cca request. I have detailed there earlier in the thead.

I have not recieved anything from them since the claim.

[nometer]

Morning after another sleepless night! If I send off my cpr request monday straight away to morgans solicitors, then get an embarresd defence off to the court. Does anyone know of a starting point for the defence, or point my in the right direction where to look. Also should I mention about the fact I have never received a default notice,

[coledog]

I am back - sorry I will give you a hand - don't know if we can attract anyone else to the fight. Your main defence is no 'original' copy of the credit agreement and I will work on that.

[coledog]

Nometer - which county court is it?

[nometer]

Its still at the bulk centre at the moment, in northampton

[coledog]

Thanks

[coledog]

Suggested defence - any comments or amends welcome

In the Northampton county court

Claim number ££££££

 

between

 

xxxxxxx claimant

 

and

 

££££££££ - Defendant

 

Defence

(Full name and address)

I £££££££ of £££££££££ am the defendant in this action and make the following statement as my defence to the claim made by Cabot.

 

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

 

3.The claimants Particulars of Claim are vague and fail to disclose any cause of action, they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR even allowing for the constraints of the bulk issue system

 

4.The defendant is a litigant in person and requires sight of the following documentation to enable a proper defence to be entered.

 

Original signed agreement

Full payment details on original sum owed

Original Default Notice

Original Notice of Assignment

Explanation of interest and costs

 

5. The claimants Particulars of Claim refer to a ‘credit card’. It is not admitted that the defendant signed any agreement with the claimant for such an account. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. The defendant does not have in their possession any such agreement and is not therefore able to comment thereon. The claimant is put to strict proof as to the date and terms of such agreement.

 

6. It is averred that if any agreement did exist that the aforesaid agreement would be a regulated agreement within the terms of the Consumer Credit Act 1974 ("the Act"). It is not admitted that any alleged Agreement is enforceable within the terms of the Act. As the defendant does not have a copy of the said agreement the claimant is put to strict proof that the aforesaid agreement was properly executed and has been enforceable at all times since its’ inception.

 

7. The claimants Particulars of Claim refer to a ‘Notice of Assignment’. It is not admitted that the defendant received a properly executed ‘Notice of Assignment’.

 

8. Further and in the alternative it is not admitted that the sum claimed is lawfully owing. The claimant is put to strict proof as to how the sum claimed and interest has been calculated and as to how it is asserted that the sum claimed is contractually owing.

 

7. Without clarification of the claimants claim, the defendant is extremely disadvantaged and the claimants claim appears without merit, the defendant respectfully asks the court to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents they will rely upon.

 

8. The defendant wishes to allow the claimant additional time to produce the documents mentioned above and would respectfully ask the court to allow a further 21 days for this. Should the documents not be produced then the defendant asks the court to exercise its powers to strike out the claimants claim.

 

9. Further to the above, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

Statement of Truth

 

I believe the above statement to be true and factual

 

Signed

 

Dated

[nometer]

Cheers coledog looks good. This looks like it might buy me a little bit more time. The agrement they sent is original just unreadable.

[coledog]

Is the agreement signed?

 

Sorry found it - this needs to have your details and signature - and be legible. You need to request the original.

Edited September 26, 2010 by coledog

[coledog]

Send CPR request to the address for correspondence on POC. Under CPR 15.5 you can ask them for a further 28 days to file a full defence - if they agree, you need to tell the court - not sure if you need to do this with embarrassed defence. You can change the time in the defence to 28

The CPR request you send must ask for:

Copies of the notices of assignment from both the original creditor, and your client together with proofs of service of the same

A full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of this letter.

 

As well as the original credit agreement

You can send a copy of the defence with the CPR.

[coledog]

It may be worth ringing Barclaycard - who now own MS, and ask who they sold the debt to and if there is a Notice of Assignment - if so ask them to confirm in writing. You can send a SAR request but they have up to 40 days to reply.

[coledog]

Morning DonkeyB

[nometer]

I will get straight onto them Monday morning. CPR Morgans and SAR request Barcleys.

I think i will file the defence that you have suggested with the dates revised to 28 days. Hopefully the judge will accpet that defence then I will have enough time to get all the docs together.

Can't thank you enough for all your help coledog.

[nometer]

Just another question to make sure I have got my days correct. Do they count the days to submitt the defence total days or working days

[coledog]

I think it is working but not sure - ring the court first thing tomorrow to find out your exact dates, they are normally very helpful. Ask about how you can submit the defence as you may be able to do this on line. The CPR goes to the solicitor acting for Cabot or Cabot, depending on what it says on the POC. The SAR to original creditor - Barlaycard with £10 postal order, specifically ask for the NOA as you have not received the original if it exists. Don't forgot to add request for the NOA and breakdown to the CPR. They should really have attached the NOA to the POC as they mention it.