Cabot has stay lifted after 18 months- urgent advice needed please

[Ganymede]

If I can show to the judge there is a 12 month rule for lifting stays or cite case law that will be the end of it

 

 

 

I don't think such a rule exists. It's down to the discretion of the Court to lift the stay.

[Bernie259]

Hi, this is a copy of the order, ordering Cabot to disclose all three credit agreements and notice of assignments, I will attach below their solicitors reply and a sample of the documents disclosed, it seems they do not have absolute assignment of the Citi account and therfore cannot make a claim in their name? I am not convinced on the Monument or Cahoot accounts. Can someone please give me some advice here.

 

Thanks

Bernie

Court Order for agreements assignments.pdf

[Bernie259]

This is what they call a deed of assignment, its on their own headed paper, I was never sent it, what does it prove, anyone could type this up?

What Cabot claims are Notice of Assignments.pdf

[Bernie259]

This is what they claim are creditors notice to me of assignment for Citi which they only have legal assignment?

letter from Citi confirming assignment.pdf

[Bernie259]

Monument Agreement?

Monument reply card Agreement.pdf

[Bernie259]

Cahoot Agreement, they have nothing for Citi, they need more time, I have only been waiting 2 years for it?

Cahoot Agreement-poor copy.pdf

[Bernie259]

The letter from their solicitors with the documents

Letter from Cabot Solicitors.pdf

[Bernie259]

You will see from the order I have to file a statement setting out prejidice caused by their 2 year delay proceeding with the claim, so I would be very grateful for any input which highlights any shortcommings in their documents, I will be writting to the FO for guidance.

Thanks

Bernie

[Bernie259]

Hi to all, I posted up all the documents a few days ago, I really would appreciate some help/advice please, one thing I need to know is;

Can a debt collector who does NOT have absolute assignment issue a claim in their own name?

Also if Kings Hill claims to have bought a debt, can Cabot Financial issue a claim in their name for it?

Regards

Bernie

[The Mould]

Hi to all, I posted up all the documents a few days ago, I really would appreciate some help/advice please, one thing I need to know is;

Can a debt collector who does NOT have absolute assignment issue a claim in their own name?

Also if Kings Hill claims to have bought a debt, can Cabot Financial issue a claim in their name for it?

Regards

Bernie

 

Good evening Bernie

 

Very briefly, sorry I have not had the time to review the documents that you have posted.

 

An equitable assignee can sue in his own name, but he must be joined by the assignor (the legal owner of the title to the contract) before final Judgment is awarded, therefore, you should plead in your statement; "Not all parties are joined in these proceedings". The assignor must then either join the claimant or join you as a defendant.

 

Kings Hill might only hold equitable assignment, which would mean that Cabot hold legal title, however, obviously if Kings Hill have assignment absolute, then Kings Hill would be the claimant who should issue the claim.

 

You need to establish who is the legal owner.

 

I hope that will help you somewhat Bernie.

 

Kind Regards

 

The Mould

[Bernie259]

Hi, thanks, that does help, Cabot are being ambiguous, on one hand they imply they are equitable assignees as they claim they are not obligated to comply with a CCA request, if it was absolute then they would? in their most recent letter they say they are legal assignees and therfore do not have access to credit agreement for one account and need more time to get them, I requested them 2 years ago before the claim was stayed in a CCA request and CPR 31.14, so how much time can the court give them? I thought legal assignee and absolute were the same thing?

 

The court ordered AQ's to be in by 7th March, I complied, they havent !, can they do this on the basis I have an application adjourned, which was made after the deadline?

 

Thanks

Bernie

[The Mould]

Good afternoon Bernie

 

I have now downloaded and saved the documents that you have posted here, I shall have a thorough read through of these and then come back to you, when do you need to file/serve your statement by?

 

Kind regards

 

The Mould

[The Mould]

Hi, thanks very much for your prompt response, hopefully we will get the order tomorrow and I will scan it in. In the meantime I will keep searching the internet to see if there is a 12 month expiry rule for lifting stays.

Looking at their application to have the stay lifted, they claim it was their intension to file a notice of transfer to my local court but have now noticed that both copies are in the defendants folder, and when the case was reviewed over the next 18 months the file was not available to them, (so what were they reviewing?) which sounds very weak to me, also they make no mention of not filing a reply to my defence which is the real reason it was stayed, if they had from what I have read, the claim would have been automatically transferred to my local court.

What’s ironic here is that we got into serious debt because my medical negligence claim was struck out for my solicitors CPR failings and delays (nothing like 18 months), and in the medical case the decision was upheld in the High Court and the Appeal Court, claiming it was important that the court managed claims to a strict timetable and did not tolerate delays.

Thanks Bernie

 

Hello again Bernie

 

Can you please scan in and post up a copy of the claimant's application to lift the stay.

 

Also, you say that you have complied with filing your AQ on time but the claimant has not, do you know if he has filed his AQ yet?

 

What was your original defence against this action that you filed in response to the claim some 20 months ago? Can you also please post up the claimant's Particulars of claim from way back then.

 

Kind regards

 

The Mould

[Bernie259]

Hi, thanks again for your help, its very much appreciated, I will try and get those documents posted up over the weekend, not been feeling too good healthwise, in constant pain, which is restricting me, my wife, bless her who is acting for me finds it all so confusing, which is what I believe Cabot are playing on, my poor health and no legal representation.

The deadline is 19th April, you will see from the order that I still have to write to the Financial Ombudsman to eastblish if I have suffered prejudice as a result of the claimants long delays, this is because I made a complaint of unfair charges, irresponsible lending, and severe hardship to all the original creditors, the advice we received from our debt counsellor at the CAB five years ago, was to offer a £1 p/m token payment to those we could make contact with, and then phase them out if they did not respond to the complaint, he advised we could assume they had upheld our complaint and would not consider it worth pursuing us in a court action, off couse he was right, until Cabot sat on it all this time and decided to issue a claim while on a 30 day notice, I am not sure if the FO have any control over DCA's, we were going to lodge a complaint against them in those 30 days, but knew once a claim is issued they wont get involved no matter what, also if the original creditors still own the debt we may have been able to lodge a complaint with the FO against them, not sure how to word it as if they say regardless of the delay it was too late anyway? I will then have to rely on the CPR "overidding Objectives" arguments, and the fact they have still not got their claim in order to proceed.

Kind regards

Bernie

[Bernie259]

Hi, this is the claim form with the only POC's we have received, as you can see they are very vague and I had to file a defence based on that, just digging out my defence and their application to have the stay lifted.

 

Looking back over my thread I can see the advice from Pt2537 and 42Man was spot on, Pt2537 advised and drafted a N244 application after my defence was filed getting them to plead their case effectively or be struck out, taking control of the proceedings, I was hesitant at the time in case they came up with them , however , in the end I went along with that advice and filed my N244, however, due to errors on the exemption form the claim was rubber stamped and returned, whilst waiting for new proof of exemption the claim was stayed because Cabot failed to file a response to my defence within 28 days, the court advised I could not ask for it to be set aside as no judgement had been made agaist me, and before I could refile my N244 an application would be required to lift the stay, so the N244 was never filed, and as Pt2537 warned they would come back at me later, using the time to their advantage, the disadvantage to them now is 1) inordinate and inexcusable delay 2) Abuse of court process 3) taking advantage of a defendant they know to be severely disabled 4) and still they do not have their house in order 5) No evidence of absolute assignment.

 

I will post up the other docs later

 

Regards

Bernie

Claim%20Form%20-%20Minus%20details[1].pdf

[Bernie259]

This is my Defence

Defence minus personal details.doc

[Bernie259]

Claimants Application to have 18 month stay lifted

21-01-11 Claimants application to lift stay 300dpi0001.pdf

[The Mould]

Thank you for that Bernie

 

I have saved the attachments and shall have a read of them shortly.

 

Kind regards

 

The Mould

[The Mould]

Good evening again Bernie

 

I just had a tea and smoke break and while I was doing that, I had a brief read through of the two latest documents that you kindly posted up today.

 

Firstly, your holding defence has held very nicely indeed and I see that your wife is acting on your behalf in these proceedings, she is doing a very, very, very good job on your behalf Bernie, well done.

 

I shall now refer to the second document, the claimant's Application notice to lift the stay, dated 21 January 2011:

 

Para 10 Pg 2 thereof, with Mr Gareth Raisbeck - Civil Litigator in the employ of Morgans Solicitor's, making the statement therein. Point numbers 2 through to 8;

 

2. He admits to receiving CPR request 31.14.

 

3 & 4 - He admits to receiving a copy of your defence (1st & 3rd June 2009), the copy received on 3rd June 2009 has been sent by the Bulk Centre (Northampton)

 

He refers to 'no other documents received from the Production Centre', such as; No notice that a defence had been filed, however, the fact that the Centre served a copy of your defence upon the firm (03/06/2009) is sufficient evidence that any such notices are clearly not required.

 

5. He admits that the case was reviewed on 9th June 2009 and transfered by e-mail under his management and control.

 

6. He refers to a 'Transfer Request', however, as you had filed a defence to the claim, the case would automatically be transfered by the Centre to your local court, as a law firm, Morgans would know, ought to know the process.

 

7. He admits that the case was reviewed on 24 August 2009, he then states that the file was not provided to him to review due to an 'administration error'.

 

So, who reviewed said file on 24 August 2009 and what are the details of this alledged 'administration error'? No explanation is given by Mr Gareth Raisbeck.

 

And finally, point number 8. A load of waffle regarding the overriding objectives, which of course the claimant and his Solicitor's have clearly not adhered to.

 

To sum up Bernie, no explanation is given in said statement as to why such a protracted period of consecutive time has elapsed without any notice given by the claimant to indicate that he intends to continue with proceedings and that it is now justifiable, based on said statement made in his application for the stay to be lifted.

 

Bring the above to the attention of the court.

 

I hope that will help you somewhat Bernie, er, Mr and Mrs Bernie that is.

 

Kind regards

 

The Mould

[Bernie259]

Thank you very much for giving me your time, it really is a boost to us to have your support, you have certainly scrutinised and summed it all up very well. I will include all what you have said in our statement.

 

 

The court wants us to show prejudice, the judge seems to have overlooked the overriding objectives arguments and delay in proceeding (unlike in my medical claim when my solicitors dragged their heels, my only expert witness was excluded causing my claim to be struck out in the county court, a decision that was upheld on appeal at the High Court and Court of Appeal)

 

The judge has instead ordered us to show prejudice with regards to the delay preventing us from taking our complaint of unfair charges and “irresponsible lending” to the Financial Ombudsman, my wife originally thought the judge was saying he felt there was a 12 month rule with regards to lifting a stay but know thinks he must have been referring to time limits on making a complaint to the Ombudsman? And the 18 month delay would have caused prejudice, so maybe he is helping us here if such a rule exists.

 

 

There is also Article 6 of the human rights, the right to a fair hearing in a reasonable time?

 

 

I have read in cases where a party seeks to strike out for want of prosecution that the party has to give evidence of the prejudice caused by any delay. In a complicated cases I believe that can be that a witness has died or too ill, memories have faded of events etc, not sure the same would apply with a debt claim, however, in this case it’s the claimants who do not have the document to support their claim, the claimants know I have a progressive neurological condition therefore time is on their side, if I were to go into a flare up I would be completely out of action and unable to assist my wife in defending this claim, and those were advising me at the CAB are no longer around and would have very little memory of any negotiations with my creditors some 5 years ago due to the volumes of cases they handle, it seems unfair when the claimant has failed at every level of their claim that the onus is placed on the defendant to show prejudice, any ideas of any other prejudice I could claim?

Hope you enjoyed your tea and smoke

All the very best

Bernie & Wife

[The Mould]

Good morning Bernie and Bernadette

 

Well, way back when you were in dispute with the original creditor, you should of received a Final Response from him, informing you that if you remained disatisfied with his response, then you can take your complaint to the FOS.

 

You also need to request a copy of the Deed of Assignment on the grounds that a Notice of Assignment does not constitute proof thereof, in order to be legal, there must be a Deed in existence between the assignor and assignee.

 

Did the claimant actually comply in full with your CPR 31.14?

 

As far as 'unfair charges' are concerned, you would be better off arguing excessive and or disproportionate charges applied to the account, any such charges applied must reflect the actual damage suffered as a result of any breach by you.

 

Re-plead the overriding objectives in your statement also, and inform the Judge that the statement made in support of said app to lift the stay, does not actually give any valid grounds to justify the lifting of the stay after such a drawnout period of time, the claimant is abusing the process and not assiting the court's case management of the proceedings, the said application is incoherent and has been made without merit, the claimant offers no good reasons as to why he claims that it would be just to lift the stay.

 

Again, I hope that will help you and Mrs B somewhat.

 

Going for another cup of tea now Bernie, smoke of the old pipe and gentle little play on the violin, I shall play a tune, that will make the robots who are causing your household to suffer, to malfunction and implode.

 

Kind regards Watson

 

The Mould

[The Mould]

For you and Mrs B and for all my fellow people.

 

This is a message for all people who are suffering, I am not a prophet, I do not know the future, I do not claim that these words are given me by God, I am a book and my blood is the ink that forms these words and fills this page, I have spoken the truth.

The Testament of the Human has not been fulfilled; therefore, there is no longer any constancy to purpose of the Human Race. My observations conclude that there is no progress on this Earth, man may claim to know much, but I shall tell him, you have learnt nothing.

The day has come, but no man knows the time, for time was before man and shall be after him, time will go on, but man cannot.

The damage is done by man and cannot be undone by man, to see this beautiful garden wrecked by man, tears me down inside, such pain from all this suffering of the life of my people, I cannot bear to see and hear my people suffer as they have and still do, no longer.

This is my blood that writes this song to you and to all my people on this Earth, here, this message, is carried upon the winds of time so that it may lift you up, you are afforded and this is your invitation to join the dance, stand next to me then and fear not your enemies who have trampled you into the ground, hold my hand and you will never fall on the battlefield.

See all the self-labelled rulers in the world, they claim to be honourable, learned, great and powerful men and women, see how they hold their preference above the heads of my people, they can have it all and so they shall, every last drop will be poured down their throats, life is the gold on this Earth and that is the only gold I am interested in, life is the only gold I shall defend.

I am of no religion and I condemn all religions on this Earth, I condemn you, the Governments from each Nation on this Earth, you Governments and you Pharisees, you are the enemy of my people, so then I am your enemy, there shall be no iron lifted by my hand, there shall be a sword that sweeps across the lands of this Earth that will cut your stone buildings to pieces.

Dear Father, children, women and men whom are good people, your people, your children dear Father, they have been made to suffer by the ones who call themselves shepherds, the good people have been abandoned, left out in the waste to starve, deprived of the medicines that you created and made grow out of the Earth, denied life giving and lifesaving Water, the ones who call themselves shepherds have taken all these things away from the good people, who these shepherds claim to hold authority over.

Dear Father, send your Guardians from the Heavens to watch over and protect, to shield and guard and to guide your people, to keep them as your people and to save them as your children. Dear Father, give your people the strength, courage and understanding, the ability and agility, the confidence and the skill, the aptitude and attitude, the knowledge and the patience and the wisdom to resist temptation, turn away from evil and defeat their enemies, dear Father, protect all the good people, shield them and not let their enemies near them.

Tear the seabed up, open the lids on the volcanoes, fill the sky with the defenders and give the shepherds all that they prefer above the gold.

Thank you God for this day

Thank you God that I can pray

Thank you God that I can sing

Thank you God for everything

Mr and Mrs B, peace is with you, you shall suffer no more, and in another place, you shall be free from sickness.

Kind regards

 

The Mould

Edited April 3, 2011 by The Mould
Paragraphs

[Bernie259]

Hi Watson, you are a bit of a night owl like me, my condition and medication keeps me awake, I am not so good in the mornings. I am not a religious person but I do agree a lot with what you believe, the world is in a complete mess, there is no system is in favour of the poor or weak in society, power corrupts, we are constantly presented with false claims and arguments that a lot of people do belive and follow. I have dealt with a large number of so called professionals in all walks of life, doctors, barristers, MP's etc, and my experience has not been good, their morals are non existant, there is nothing they would not do for gain and to protect their position and their click, it really has been an eye opener for us how things really work.

The claimants did not;

1) Respond to my CPR 31.14 request

2) Respond to my CCA request

3) File a respnse to my defence

4) As far as I know they have not filed their AQ which was due in by 7th March

This is on top of their long delay and other failings. What do you think of what they have disclosed a Consumer Credit Agreements? (2 out of 3, nothing stil for Citi)

As you say the letters saying they bought the debts prove nothing, so I will ask them to provide proper deed of assignment, absolute or otherwise.

Regards

Bernie & Mrs

[The Mould]

Good afternoon Mr & Mrs B

 

Yes, when the midnight hour is upon me, I tend to howl.

 

Always up early Bernie, we have two young superdudes to tend to, and especially early this morning so that I could arrange for my sons to present mummy with a very pleasant surprise.

 

Going back to the subject, I seem to recall that you were successful with your medical negligence claim in the Court of Appeal Bernie, you said that the Lords spoke about the overriding objectives and delays in the proceedings when handing down their Judgment, and so I wonder if you are able to obtain a copy of the transcript from said case as there may be a paragraph or two in said Judgment that you could rely upon as an authority in respect of the claimant's protracted delay in the present case. It might be worth looking into Bernie.

 

With reference to the documents supplied by the claimant, 'A' & 'B' - Application for a credit facility and a letter purporting to be a representation of the NOA alledgedly sent to you, the application form is illegible, very difficult to determine the contents therein.

 

With reference to point numbers 1 to 4 in your post #48, you should bring these facts to the attention of the Judge in your Statement.

 

What about Default Notices Bernie, have any such notices been issued?

 

Has there been any correspondence from the assignee relating to each individual agreement before he merged the three (3) agreements into one (1) and then issued his claim?

 

It is my understanding that following a dispute with a creditor and the dispute not been resolved satisfactorily, then the consumer/debtor can bring his complaint to the FOS, but he must do this within 6 months of the final response letter from the creditor. At the present time Bernie, the FOS will not take any complaints whereby proceedings have commenced.

 

I hope that will help you both a little further and afford the gaining of the ground as you advance towards the enemy of this field, he is weak now Bernie, strike him with the fatal blow.

 

Kind regards

 

The Mould

[Bernie259]

Good afternoon, and thanks again, nice to have young children, ours have all grown up, or so they should have! They are so cute when they are young.

With regards to the medical claim, the boot was on the other foot then, my solicitors were late in filing an application to admit my only medical evidence, they then tried to make an oral application at the hearing, however, the district judge, under his case management powers said now was too late and the wrong way, he said that the courts had to apply the CPR strictly and could not allow delays, so a sanction was placed on my claim that a further application to admit the evidence would not be allowed, which he knew put the claim on course to be struck out, this was a million pound claim, where the claimants had acted appallingly (9 months to file a defence which was no more than a complete denial).

My solicitors then cut and run, after they had lodged an appeal in the high court to overturn that decision, we had to act at short notice as LIP', we were terrified, the high court upheld the lower courts decision so we went to the court of appeal, Lord Justice Brooke heard the case and fully sympathised with our predicament but said this will be a matter you will have to take up with your former solicitors, he said it would be quiet wrong for him to overturn a case management decision of the lower court who has a duty to ensure deadlines are met and delays are not tolerated. Another long story but even though I had £50,000 legal expense insurance and a solid claim it was felt it was not enough to cover the cost of the claim.

I just want the judge to act the same in this case, in the medical claim it was a few months delay, not 18!

I think the angle with the FO and Cabot will be they issued a claim 4 days into a 30 day notice which prevented me for lodging a complaint in that period against them to the FO, also the Original Creditors actions? Not sure how the 18 month delay will play out however, they have to treat people they know to be disabled with more care and not take advantage, have to push some letters out tomorrow.

Have a good day

All the Best

Bernie & Mrs