Morgans/Cabot claim form - on citi Card debt with a recon *** Claim Dismissed by Consent***

[AndyOrch]

Hi Molly

 

Responding to your PM.

 

Ok first off they cant enforce the agreement with a reconstituted copy agreement, your account is far too old (pre 2007) and requires that the original executed copy must be brought, all the prescribed terms are within the 4 corners of the agreement and in the signatory area.1983 Regulations apply, if no terms and conditions/key financial information contained in the same document, then irredeemably unenforceable

 

Read up here :- Prescribed terms in an agreement

 

Now moving onto the DN and arrears, that seems to have confused you.You have I understand a copy of the original DN?

What is the figure they demand and at what date? What figure do they demand on the summons ? is it the same or more?

 

Makes no odds what they are claiming either way be it arrears or full balance a DN as to be issued.

 

Default notice is a statutory requirement imposed upon creditors before they can become entitled to Terminate, Demand payment of all sums and/or re-possess goods; no valid statutory Default notice served = no entitlement to aforesaid actions.So the fact that they state they don't need one is nonsense in reality they mean they cant disclose it.We know one was issued as you have it? The fact that they cant disclose is not a plus on your defence they only need to prove that one was issued.So in all honesty wipe that statement from your mind it intended to un nerve you and cave in.

 

Now the interest that as been loaded you can attack and use to good defence.Have you religiously received a Notice of arrears since your last payment informing you of all the interest they are applying to the account? I bet not and therefore just as powerful as the DN argument pursuant to CCA2006 amendments unless this is provided annually (or even twice yearly) they are not allowed to add interest and in the absence of not providing said Notice neither enforce any debt.

 

I hope that makes the situation clearer.

 

Regards

 

Andy

[molly13]

Hi Andy,

Thank you so much for your response.

 

The reconstituted agreement states : we will determine the credit limit and notify you.. so no actual amount.

 

The DN was issued in May 2006, giving me 10 days to pay, (in reality by the time I got the notice I only had 5), The outstanding arrears at that time was £718.

 

The account number on the DN is NOT the same as the one Cabot is claiming on. It was issued roughly 6 months prior to when Cabot claims that they bought the debt.

 

On the reverse of the DN it states: "Re.Notice of Default I am writing to explain the purpose of the Notice of Default that accompanies this letter. I understand that you have an existing arrangement with CitiFinancial Europe plc (Citi) wherby Citi has agreed to accept less than the contractual minimum monthly payment in order to enable you to repay your outstanding debt. As part of its business strategy,Citi has decided to sell those accounts,such as your own, which are subject to long term payment arrangement. In order to sell the account, we have sent out the Default Notice to conform with thee Consumer Credit Act 1974.It is not intended by this Notice to alter the payment terms of our previous areement with you. Citi will sell the account subject to the terms of its agreement with you and on the understanding that the purchaser will continue to honour those terms as long as you maintain your payments. In the event that you default, the purchaser will be free to negotiate alternative terms with you"

The amount on the Claim Form is about £11.000.

 

They have never since the assignment in 2006 given me any notice of arrears or statement of account other than the one dated end of January 2012, as previously mentioned.

 

Cabot have acknowled this fact in one of their many responses to my complaints to them.

In another recent letter they state that the agreement was terminated in August 2006, however when I asked them for a copy of the termination notice, they again said they did not have it and I would have to contact the OC.??

As far as being able to prove that a DN was issued.. A SAR response from City did not include any of their communications logs and no copy of DN etc.. as per #80.( or thereabouts I think)

 

I shall try to digest this properly, but I do think it is a bit clearer to me now:oops:

 

Thanks again for your help.

 

Regards

 

Molly:-)

[AndyOrch]

" The DN was issued in May 2006, giving me 10 days to pay, (in reality by the time I got the notice I only had 5), The outstanding arrears at that time was £718."

 

May I inquire what was the outstanding balance at this time Molly?

 

Andy

[molly13]

Andy, the oustanding balance on the statement that the arrears amount is shown on is £8,120.

The account number is the one that Cabot is claiming against.

 

Also at the time I had an agreed repayment plan of £ 1 pm with Citi which was being strictly adhered to. Interest and charges had also been frozen, if that is any help.

 

Regards

Molly:-)

[molly13]

Meant to say too, that at the time the account was well below the credit limit. Don't know if this is important or not.

 

Molly:-)

[AndyOrch]

So as at May 2006 the outstanding balance that you defaulted on was £8120.00 and £718.00 equated to 3 months missed payments? Therefore unlawful interest of £2980.00 as been added to the debt which of course they were never entitled to add not only because of the absent ANs and statements but because you have on the back of the DN a specific term expressing " whereby Citi has agreed to accept less than the contractual minimum monthly payment in order to enable you to repay your outstanding debt. As part of its business strategy,Citi has decided to sell those accounts,such as your own, which are subject to long term payment arrangement. In order to sell the account, we have sent out the Default Notice to conform with thee Consumer Credit Act 1974.It is not intended by this Notice to alter the payment terms of our previous agreement with you. Citi will sell the account subject to the terms of its agreement with you and on the understanding that the purchaser will continue to Honor those terms as long as you maintain your payments. In the event that you default, the purchaser will be free to negotiate alternative terms with you "

 

Along with an agreement of "Also at the time I had an agreed repayment plan of £ 1 pm with Citi which was being strictly adhered to. interest and charges had also been frozen "

 

Forget the credit limits and no credit amount stated its not relevant or arguable Molly at this stage.If you can argue the above points that a promissory estoppel as been breached then this may be a way to starve off the whole claim in its entirety.

 

Regards

 

Andy

[molly13]

Hi

 

Thank you Andy, so how would I then formulate this estoppel (don't even know how to pronounce it:oops:)

 

Would it be classed as a default that I stopped paying Cabot due to non-compliance with CCA request. I still regard the account to be in dispute, and have informed them of this, due to them supplying me a so called statement of account that has not been signed as correct as per OFT leaflet 1266, Need information about your credit or hire agreement? it states:

"You should also get a statement of your account (that they have signed) " and OFT leaflet 1272:

 

Guidance on sections 77, 78

and 79 of the Consumer Credit Act 1974

– the duty to giveinformation to debtors and the

consequences of non-compliance on the

enforceability of the agreement

October 2010

 

 

3.3 The statement must be signed by or on behalf of the creditor or owner.

I have also just realised that they started adding interest almost immediately after the assignment... and then it was two lots only 7 days apart.Of course not having seen a statement of account until recently I did not know that.

So the breach occurred almost immediately.

 

I would be verey grateful if you could advice on how to claim estoppel, and can I do that at the strike-out hearing?

 

Thanks in advance.

 

Regards

Molly:-)

[molly13]

Hi,

 

I have just received in the post a witness statement from Morgan opposing the strike - out as well as their application to amend their POC at the same hearing.

 

Now part of the reason for strike-out was non-compliance with CPR 31.14. The Deed of Assignment /sale agreement was requested and the response was :

 

We are in the process of retrieving a copy of this from our (my bold) archives.

 

In their witness statement today the state:

 

A copy of the redacted sales agreementhas been requested.Unfotunately it sometimes takes longer than expected for the Assignor to respond to our queries. (What? longer than 5 months??)

 

Surely the purchaser would have a copy as well??

 

It goes on to say :

 

The Claimant can't say for certain when it will receive the (sales) agreement but will endeavourto keep the defendant updated.

 

They also state that the have a triable case with good prospects of success.

 

However, without the sale agreement, I have absolutely no evidence at all that the account was sold to Cabot!

 

So with the both hearings to be heard at the same time, what chance do I have? Unless I can argue the Promissary estoppel at the same time?

 

Regards

Molly:-)

[Duffers Mum]

Subbing with interest..as Cabot provided me with a recon agreement..they bought account whilst it was in dispute with Sainsburys...they added interest from day one and the balance has increased by over £1200 in a year...however they have now provided what they say is the original CCA and a set of T&C which are supposedly applicable at the time..in these T&C's there is no clause about adding interest, so they shouldn't be..but of course they don't care! I've offered a F&F which they've declined and now waiting to hear what they will do..they are an absolute nightmare!

 

I'm keeping my fingers crossed that it all goes well for you and that you will soon be reporting back that the court came down on your side. Good luck

[AndyOrch]

The only problem I envisage though Molly to prove the estoppel, you would have to disclose the Default Notice and of course the ceased payments to ensure that the promissory estoppel continued.Not that they would have honored it anyway even if you had continued payment at the same rate.

 

Andy

[molly13]

Hi

 

Thank you Duffer Mum for your good wishes:-) I think I'll need them.

 

Andy... I did continue paying £1 pm to Cabot.. right up until the time when they failed to supply the agreement and the account was put in dispute, August last year. I put the account in dispute and eventually received the reconstituted agreements/ t&c round about Nov/Dec last year. I have kept the account in dispute due to the statement of account not being signed as correct, as per OFT.

So the only missed payments are whilst the account has been in dispute.

 

Having read up about estoppel, it would appear that they breached it straight after the first payment in 2006 when they applied the interest immediately on assignment.

 

In regards to their amended POC's... it is full of inaccuracies.

 

I will oppose their application,if I get a chance, on the grounds that they are still in breach of CPR 31.14 and 18, and that I feel that I still can not defend properly without proof of ownership, and also that they do not have a real prospect of success without the original Agreement, as per Carey. Am I right in doing this? Or not?

 

Regards

 

(very confused) Molly:-)

[molly13]

Oh and they have admitted that no copy of the signed agreement is available.

 

Molly:-)

[AndyOrch]

Well if thats the case then yes you are on the right lines, the estoppel is a good argument, re CPR 31/18 well they have chance to disclose throughout the process,

either voluntary or by order,so they are not entirely in breach, if you can impress upon the DJ the need to disclose the original agreement and he goes with you then he may issue an " Unless " Order.

 

Andy

[molly13]

Thanks Andy,

So do I just write that the Claimant is in breach of a Prommisary estoppel??

 

Regards

Molly:-)

[AndyOrch]

Thanks Andy,

So do I just write that the Claimant is in breach of a Prommisary estoppel??

 

Regards

Molly:-)

 

Not quite that easy Im afraid Molly, research, prepare and present this along with your other contentions in preparation for your hearing.Is it to strike out your defence or for an application you have made?

 

Andy

[molly13]

Hi Andy,

 

This is for a strike out application to be heard on Monday.

I originally applied for this due to the vagueness of POC and also failure to comply with CPRs 31.14 & 18.. which they still have not complied with 5 months down the line.

 

Molly:-)

[AndyOrch]

Your application, excellent so just throw this into the mix and bolster your case.Far stronger reason and adds merit to your application to strike out than just because they have failed to comply.The DJ may state ok set a side strike out but order the unless, if they don't comply he would strike out with the estoppel argument thrown in it gives greater clout IMHO.

 

Best of luck Molly.

 

Regards

 

Andy

[molly13]

Great, thanks Andy.. I'm typing up all the discrepancies at the moment.. and to throw this in will be a bonus, hopefully:razz:

 

Molly:-)

[molly13]

hi,

 

Letter in response to Claimant's Witness Statement and their application to amend poc's hand delivered to the court today.

 

Going to be a long week-end waiting to see what Monday brings.. I'll post up the result.

 

Thanks for all the help so far....hopefully I'll not need anymore:-)

 

Regards

Molly:-)

[molly13]

Sorry Andy,

 

Just tried to add to your rep... but I'm not allowed. I t seem that it's because I already did that a few years back, when you helped me out in regards to a CO..

 

Molly:-)

[BRIGADIER2JCS]

Sorry about that I think the system

sees that no other reps have been

placed by you other than 1 for Andy

so it rejects it.

 

Brig. Site Team

[molly13]

Hi Brigadier,

 

I have placed reps in the past,for other members as I recall. But maybe that was longer ago.

Anyway, no worries, I am extremely grateful for all the help that is given to me, and others, by the people on here.

Especially by the people who take so much time out of their own,I would assume, busy lives, to help others so freely.

 

Thank you to all so much.

 

Regards

 

Molly:)

[BRIGADIER2JCS]

Hi Molly I'm sure andy will see this and

very much appreciate your thoughts.

 

Brig.

[molly13]

Hi,

 

Well I had my hearing to strike out.

 

The Judge DID think that the original POC's were adequate, but still allowed their application to Amend POC's. ??

When i said that I could not defend properly without the requested docs, he sort of waved my letter of objection as to why the claim should be struck out and said that I could submit a defence, and that the documents could be requested at the disclosure stage.

He was actually a very nice oldfashioned sort of type, and let me have my say, and the more I have thought about it, I get the feeling that he was actually trying to help me, in a round-about way,in telling me to use more or less what I had already put in for objection, and also to go through, and respond to,the Amended POC's, paragraph by pararaph. Whether that was why he allowed it, I don't know?

He pointed out that as this was only a hearing regarding the POC's and not a trial, he could not rule on what was stated at this stage.

 

I now have to file a defence, and when I asked when.. he just said I'd get the order in the post.

 

So I may be asking for help with the defence in the next few days, if I may please.

 

One thing that struck me though...When I mentioned again that docs had not been supplied, as promised in CPR18 response from the Claimant, he said that they wer NOT obliged to even respond to CPR 18 if they did not want to. Is that right?

 

So now still confused.

 

Regards

Molly:-)

[the_shadow]

Molly, glad you live to fight another day

 

Was this a small claims amount (less than 5k) or more?

 

S.