Cabot/Morgans claimform - 2 debts cap1 card + Barclaycard - *** Settled on F&FS ***

[heathrow]

On one of the letters received today concerning their settlement offer (sic) they have even had the nerve to mark the letter 'Without prejudice s ave as to costs'. Subversive or what?

[DonkeyB]

No, just normal. Calm down!

[heathrow]

Thanks Donkey ... I know but with the help of CAG I intend to fight this all the way as it seems they are certainly not working within the framework of the law.

[DonkeyB]

There’s all kinds can go haywire – sometimes it’s the courts that mess up. But you may find they claimed to have served the application on you as well, and did not. Wait and see...

 

What you can be sure of is that it did not happen on its own.

[heathrow]

I intend to write to Morgans again re-issuing my CPR 31.14 request originally sent in November 2010 but I will leave this until I can get information from the court. Do you think the best course of action is to wait before sending this request again or should I lodge a letter with the Court to say that Morgans, despite repeated requests, have failed to substantiate their claim with any documentation?

[DonkeyB]

Sending CPR now would imply you acknowledge the claim is live. You most certainly do not acknowledge this.

[heathrow]

Great advice... much olbiged DonkeyB. How then, in your opinion, should I acknowledge the Court Order to Transfer to Fast Track? I have already told the court that the action had previously been struck out and enclosed a copy of that order with my letter ... should I now put on record to the court that as far as I am concerned this action is not 'live' and that no evidence has ever been produced, despite previous requests via CPR 31.14, to support the Claimant's claim?

[AndyOrch]

Hi Heathrow

 

Why would you transfer to Fast Track I don't understand ? AQ? You cant say its not live until you receive the necessary documentation to state what happened.It may have been struck out they set a side and stayed the claim, I personally wouldn't do anything until you have had a response from the Court.What date must your AQ be filed?

 

Andy

[heathrow]

The parties have to decide by next Friday (10 Feb) whether the claim is capable of being resolved by Alternative Dispute Resolution and give standard discloure by 2 March. I guess it has been referred to Fast Track because it is considerably over the £5000 limit that I gather is the County Court maximum but this method is likely to incur an additional cvourt charge of over £1,000 according to the Court website. It is likely to be assigned a full day for some reason probably because Morgans are attempting to bring two actions in one?

[DonkeyB]

Have a look here.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?141075-Cabot-Morgan-Solicitors-Court-Action-(ex-Goldfish-account)/page16

 

I recollect that this lot are a little, er, unreliable when it comes to mediation. I’m wondering if they suggested mediation to the court – many similarities here.

[heathrow]

Dare I suggest that the company they have 'recommended ... that they use regularly' would always rule in their favour or is this being synical? How mad do they think we are? Does anyone know of any mediation cases that have worked in favour of the debtor that I can look at on here?

[heathrow]

Having read the latest order from the court several times, to transfer the matter to Fast Track after it had previously been struck out a year ago; nothing has changed and Morgans/Cabot still have not provided any of the requested documentation applied for under CPR31.14. With this in mind, I cannot understand how another judge can suddenly pick up the case and reverse the strike out? Now, it seems to me is that a mistake has occurred (or in some way Morgans have been devious) so I intend writing to the court to request that the original 'strike out' order should be reinstated on the grounds that the situation has not changed since a previous judge made the order. I will also point out Morgans non-compliance with CPR31.14 and in view of this and the lack of supporting evidence in their POC I can neither agree/disagree to mediation as suggested without having any evidence in my possession.

Any views on this please anyone?

Edited February 5, 2012 by heathrow

[toymaker1]

I am trying to put my defence together in response to a Claim from Morgan/Cabot for two different credit card accounts (different issuers even) on the same claim but with no supporting evidence. Can they 'double up' and claim two for one?

 

There are no circumstances whatsoever in which a creditor can combine two unrelated and separate claims in respect of of two unrelated and separate debts so as to make them appear to be one claim for one debt. There are no Rules of Court which provide for such a thing. The nearest is Rule 7.3, which provides that more than one claim can be included on the claim form, and they can be heard at the same time; but the crucial point is that they remain as separate claims, to be dealt with as separate claims. A creditor has no legal authority to combine, on his own whim, two unrelated claims into a concocted third (non-existent) claim.

Having said that, the unfortunate reality is that it happens every week in the county courts, because no one ever challenges it, for various reasons, e.g. many are against litigants in person who do not realise it outside the rules; many district judges dont know either, and it has become a comfortable and unchallenged way of dealing with debt cases, which the debt collectors continue to get away with. 99.9% of the British public have no idea of this dodgy practise going on, so no one complains about it, and the gravy train for debt collectors just rumbles on.

 

 

Best of luck in your case.

[heathrow]

What you say toymaker1 is interesting and I have raised this with the court. The problem is that the court seldom seems to want to respond so I guess my only other option would be to complaint to the Dept of Justice of whoever. What do you think the appropriate course of action could be?

 

With regards to this matter; I have now lodged a letter with the court to suggest that the second judge has made an order to transfer to Fast Track on an action that was struck out almost a year ago and I consider this to be an error more especially as the Claimant has constantly failed to provide evidence to justify their claim. The situation is exactly as it was when the previous judge struck it out; notihng has changed apart from Morgans I guess trying to get the case re-opened. The way the claim is written is so dodgy that if the court allows this to proceed, the way I see it would leave a door open to anyone to start a bogus action to claim they have bought a debt and are legally entitle to enforce it. Without offering proof when issuing the Claim I am astounded that the court has allowed this action to be looked at all in its present state.

 

The entire DCA situation, as I understood it, was meant to be investigated by an all party Parliamentary committee to improve the laws realting to the way DCAs operate because they continue to disregard the law and the judges don't oppose it. It is time I think for us as a group to lobby Parliament for better rights.

[toymaker1]

 

With regards to this matter; I have now lodged a letter with the court to suggest that the second judge has made an order to transfer to Fast Track on an action that was struck out almost a year ago and I consider this to be an error more especially as the Claimant has constantly failed to provide evidence to justify their claim. The situation is exactly as it was when the previous judge struck it out; notihng has changed apart from Morgans I guess trying to get the case re-opened.

 

What reason did the judge give for striking out the Claim last year?

[heathrow]

The case was struck out because 'no party had informed the court of the outcome of any settlement and it was assumed the case had been settled and unless any party informed the court to the contrary the claim and any counterclaim will be struck out'. A date was given of almost a year ago for either party to inform the court that the action was still live. I had heard nothing from the Claimant or the court to suggest it was live therefore I felt the action remained struck out more especially as none of my requests under CPR had ever been complied with.

[toymaker1]

The case was struck out because 'no party had informed the court of the outcome of any settlement and it was assumed the case had been settled and unless any party informed the court to the contrary the claim and any counterclaim will be struck out'. A date was given of almost a year ago for either party to inform the court that the action was still live. I had heard nothing from the Claimant or the court to suggest it was live therefore I felt the action remained struck out more especially as none of my requests under CPR had ever been complied with.

 

The crucial bit when it was struck out was this;

"it was assumed the case had been settled and unless any party informed the court to the contrary the claim and any counterclaim will be struck out'.

Unfortunately, this left open to Cabot the opportunity to "inform the court to the contrary", at which time the claim was re-instated. - striking out is not always a final act, there are often opportunities for the party who has been struck out to get the claim re-instated, provided they give good reasons to the court, as apparently happened in this case. Another example is where a document is served later than permitted by the rules, and the case is then struck out, but if the late server gives a good excuse to the court, the matter is re-instated.

As professional litigants, Cabot know how to take advantage of all these tactics.

[heathrow]

Thanks, this is useful. But, should I have been informed by the court that it had been re-instated by Cabot before they sent me the transfer Order?

 

It still raises the point that Cabot/Morgans have not complied with my CPR requests therefore I cannot agree to mediation if I have no proof whether their claim is malicious or genuine. Have I got grounds to apply to for a renewed strike out as they are refusing to supply any information?

[AndyOrch]

Yes subject to to time restraints but you really need (as advised ) the paperwork you are missing.Unless you know the basis of the reinstatement (if it was reinstated or stayed or set a side) then its very difficult to base an argument or strike out, and also a possible waste of an application fee.

 

Regards

 

Andy

[heathrow]

Thanks Andy. I've written to the Court for the information regarding how/who applied to re-instate this case and have stated that I cannot agree/disagree to mediation without the information I requested under CPR more than a year ago as I have no way of determining whether this action has any chance of success. It could be the Claimant is asking for mediation because they have a weak case as they have also written with a 'without prejudice' letter with a settlement figure. Nevertheless, there is still this issue over lumping two different accounts together in a single claim. What do you think please?

[AndyOrch]

Toymaker covered that quite succinctly in post# 92 I would add that normally its the same Creditor IE Personal Loan & Overdraft or 2 credit card accounts same OC.

When they are from different sources makes the claim rather complicated not only in pleading the SoC but also responding in a defence plea.Very messy and really should be discouraged and set in stone within the CPR/County Courts Acts etc.

 

Regards

 

Andy

[heathrow]

I agree Andy and those referred to in this claim are two entirely different lenders.

[heathrow]

The court has responded informing me that the Claimant had requested for the clain NOT to be struck out last year despite the court advising me otherwise as no retraction was sent to me following the Order to strike out. Similarly, the Claimant has also been responsible for requesting mediation. It is odd that I have been kept in the dark over all of this but it seems the Claimant, who the court has said should have kept me informed, has failed to do so which appears to be a deliberate attempt to gain an advantage. I'd like know why the Courts are so lenient with DCAs and their tame solicitors when they infringe the rules yet the same consideration is never given to the defendant.

[AndyOrch]

So they set a side and stayed Heathrow, and still left it a further 6 months to proceed to AQ.You are quite right and that should be the focus of your defence that they have deliberately misled the Court to gain advantage over you the LiP.So you are back to were you was before the strike out, perhaps a short synopsis and time line to refresh caggers were we are then we can continue to advise your next course of action.

 

Regards

 

 

Andy

[heathrow]

Thanks Andy for your kind assistance.

 

1. Original PoC issued November 2010 by CC Clearing Centre - No details appertaining to the PoC but two different credit cards lumped together in an accumulated claim.

Claimant merely gave reference numbers for these accounts & stating that I had been sent Notices of Assignments to Cabot which was not true. Claimant claiming £xxxxx and interest under S69 of County Court Act

 

2. I applied to have the action moved to my local court which was granted,

 

3. I wrote to Morgans to state that I had received two (undated) letters relating to the same one of the two accounts they had included on the PoC each containing two different alleged balances. These stated they were Notices of Assignment but NEITHER were dated so it appeared they had been produced by Cabot. My letter acknowledged receipt of the summons but I pointed out that I had never received any formal demand for a payments on the accounts they claimed to own nor had I had any previous dealings with Cabot to my knowledge.

 

4. I followed this letter with a CPR 31.14 request a week later sent by Recorded Delivery requesting copies of the Agreements, The Notices of Assignment and the Demands for Payment they claimed they had made.

 

5. I returned the court questionnaire N159 in January stating that the Claimant had combined two separate cc accounts on one claim and that I had requested disclosures under CPR 31.14 from the Claimant. Similarly the Claimant sent me a copy of their completed Questionnaire.

 

6. In February a stay was granted ordering parties to reach an agreement; make a request for an extension to the stay or complete the allocation questionnaire (which had been done). Later that month I wrote to the court for a further stay period and notified the Claimant and informed them that I had received no response to my previous request for CPR 31.14 evidence.

 

7. In March 2011 the case was struck out (Despite the court sending me a letter received today claiming this wasn't the case - although I sent a copy of the Order with my letter)

 

We are now back to the situation stated in my last posts. Morgans have still not responded to my CPR 31.14 requests and last week sent me two separate letters; the first stating they are prepared to consider Alternative Dispute Resolution (ADR) and recommending a company that they have used before (sic) The second letter marked 'Without prejudice save as to Costs' made a slight reduction if I am prepared to settle with instalments of £250 a month that I cannot afford and phishing by sending me a Cabot information and budget report.

 

A bit lengthy, as these things tend to be, but I think it puts everything in a nutshell.