Advice for next step for Claim from County Court (CPR 31.14 already sent)

[mani99]

Hi Mani99

 

simongee is in an identical situation to yours, Morgan Solicitors have fabricated a generic template POC to circumnavigate S82 Consumer Credit Act.

 

What S82 lays out is that if a creditor assigns an account to a third party they have to abide by the original agreement terms and conditions with regards to statements and notices, which means imo, third parties on purchase of the account have to by law continue sending monthly statements of account in their name, if you then refuse or fail to pay by the due date they again are required to first send 2 notice of arrears followed by a default notice and then a notice of impending action. This process would take at least 4 - 6 months.

 

If the alleged notice of assignment was indeed sent in March Cabot have to provide copies of all monthly Statements of Account for the intervening months between the alleged date of assignment up to issuing the claim, together with Notice of Arrears, Default Notice and Notice of Impending Legal Action.

 

If the account was assigned for any other reason (ie demand for immediate payment) the Notice of Assignment must be given on, or before the date of the assignment. The only way for a court to determine the true intention of the assignment to the third party would be sight of the Bill of Sale measured against the alleged date of Notice of Assignment to the borrower.

 

I’ve drafted a letter for simongee to use or change as he thinks fit, simongee is at an advantage if he sends this, any reply from Morgan Solicitors could be included within his embarrassed defence having already in his possession Morgan Solicitors first letter refusing to send copies of any documents until the standard disclosure stage.

　

Name

Address

Town

City

Post Code

Morgan Solicitors

Address

Town

City

Post Code 04/10/2011

　

Cabot Financial Limited v Mr X XXXXX (Claim Number)

Dear Sir or Madam

 

I acknowledge receipt of your letter dated xx/09/2011 of which your comments are noted.

In particular I bring to your attention your client Cabot Financial Limited’s Statement of Case as sighted within the Particulars of Claim:

• The Claimant is the Assignee of a Debt(s) from Capitol One (Europe) plc
  
• Notice of Assignment having been given to the Defendant in writing.
  
• Despite demand for Payment, 10369.19 remains due.
  
• The Claimant claims 10369.19 and interest under s.69 County Courts Act 1984 and costs
  

I bring to your attention no Notice of Assignment has ever been received from Capitol One (Europe) plc or your client Cabot Financial Limited to validate your client’s claim as stated above.

With reference to your comment "We shall endeavour to provide you with copies of any of the documents referred to above which are pertinent to the issues in the case and which are within our power, possession, custody or control at the Standard Disclosure stage in proceedings." That is unacceptable, suggesting Morgan Solicitors issued the above claim without sight or knowledge of any documentation.

 

Morgan Solicitors only endeavouring to provide proof at the standard disclosure stage is a clear breach of the overiding objective, indicating a possible abuse of process with cause for counter claim.

 

I remind you of Section 82A Consumer Credit Act 1974 detailed below:

 

16. ASSIGNMENT OF RIGHTS

 

16.1 Where any rights of a creditor under a consumer credit agreement (for example the right to be repaid the money) are sold or transferred to a third party, notice of that assignment must be given to the borrower as soon as reasonably possible, except in the circumstances described below. This requirement applies to all regulated consumer credit agreements other than agreements secured on land. This requirement is in new section 82A.

 

 

16.2 It is the responsibility of the assignee (the creditor acquiring the rights) to ensure that notice is given. However, he does not have to give notice himself, but can agree with the assignor (the creditor assigning the rights) that the assignor will give notice instead, depending on what is more sensible in the circumstances. It is important, however, that notice is given as soon as reasonably possible and in a way that is clearly understandable by the borrower.

 

 

16.3 Notice does not have to be given where arrangements for servicing the credit are unchanged as far as the borrower is concerned. For example, if Creditor A sells his rights under a credit agreement to Creditor B but Creditor A still collects the borrower’s repayments in the same way and is the only point of contact for the borrower on matters regarding the agreement, notice does not have to be given.

 

 

16.4 Where notice has not been given, and arrangements for servicing the credit do subsequently change, the borrower must be informed of the assignment on or before the date that change happens. Again, this must be readily comprehensible to the borrower.

 

 

16.5 The definition of "creditor" in section 189 of the CCA applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party."

The documents pertinent to all issues in the above case that must be in the possession of your client or yourselves to firstly instigate litigation, and therefore be readily available upon request, are as follows:

 

Deed of Assignment

Bill of Sale

Notice of Assignment

Notice of any changes to the Terms and Conditions of the original Agreement

Consecutive monthly Statements of Account from the date of Assignment

2 Notice of Arrears pursuant S86 Consumer Credit Act 1974

Default Notice pursuant S87 Consumer Credit Act 1974

Letter of Impending legal action.

 

I trust this now fully clarifies my position and request you supply said documentation within 7 days upon receipt of this letter.

 

Should you wish to stay proceedings you are required to send immediate notice to that effect, whereby I will forward on to the court.

 

Yours faithfully

 

Mr X XXXXXXXXXX

 

 

Hi, thanks for the reply and this certainly would've helped me a couple of weeks ago.... but Im not sure how I could use this now? I only have a few days left until the 5th October deadline. As Elsa has recommended, I will be calling the court tomorrow to inform them that Morgan has refused to respond to my Part 18 request.

 

Thanks.

[AndyOrch]

Subscribing to your thread Mani in response to your PM.

 

Andy

[mani99]

Subscribing to your thread Mani in response to your PM.

 

Andy

 

Thanks, hope you'll be able to offer some advice.

[consumeredge]

Hi Mani

 

Although misleadingly, the Claimant will argue they have complied with the DJ's order, that being they disclosed to you by the 5/10/2011 a certificated true copy of the NoA, had the DJ had the sense to state File and Serve, it may well have been another matter, the required certification comes by way of the "witness statement".

 

The DJ will wrongly assume by the Claimant stating they sent you a "witness statement" everything is legal and above board....

 

I would submit if the court accepts the NoA was served then the Claimant under S82 is deemed in law the Creditor, therefore as such the Claimant/Creditor must file and serve in order to you to prepare a complete defence

 

The Notice of the changes to the Terms and Conditions of the original Agreement

Consecutive monthly Statements of Account from the Date of Assignment

2 Notice of Arrears pursuant S86 Consumer Credit Act 1974

Default Notice pursuant S87 Consumer Credit Act 1974

Letter of Impending legal action.

I would stress within your defence the above documents should be made readily available from the Claimant specifically from the date of assignment, include a copy of Section 82 Consumer Credit Act

I would submit your defence no later than Tuesday 4th

Kind regards

Clive

[mani99]

Hi Clive, Thanks for the advice, I was actually thinking of doing exactly that as surely what the claimant has sent to me is not a certified true copy of the NoC. I'll submit my defence either today or first thing tomorrow morning. I'll update the thread once I get a response, and once again... thank you all for your help. Mani

[Guest]

Hi Ford,

..........that was just a response to a query of what could happen in future if they discontinued.

Elsa x

 

hi

missed that!

 

mani

does their disclosed activity log correlate with a notice being sent?

[mani99]

Hi Ford, In the activity log they have highlighted one entry which is: 'DOCUMENT PLHEL (PLHEL - Hello Pre-Lit Letter) SENT TO ACCOUNT HOLDER ADDRESS TYPE (MAIN)' - I think they are trying to say that this was the NoA.

[consumeredge]

Hi Mani

 

Can you post up the "witness statement" some one must have received a similar "NoA" at the same time that carries the name of the person who signs them together with their position in the company.

[mani99]

Here is the witness statement:

 

 

 

[AndyOrch]

So he knows all about Cabots assignment procedure, but what about the claim he has witnessed, swore to have personal knowledge about, and prepared to give expert evidence on?

No mention of the Cap1 debt, history, T&Cs and why they are allowed to enforce.Strange:roll:

 

Regards

 

Andy

[mani99]

Another interesting point. I will prepare my defence shortly this afternoon and perhaps mention all these points?

[AndyOrch]

Destroy their WS and their representation, representation still doesn't prove you ever received one or that the assignment you ever acknowledged.

 

Andy

[mani99]

Defence submitted.... lets see what happens.

[consumeredge]

witness statement of Ajay Mitha

 

Paragraph 1

 

1, The facts which I give in the witness statement are from my own knowledge of the facts of the matter

2, From Documentation obtained from the Assignors of the debt

3, Information obtained from the records held by Cabot Europe relating to the collection procedures adopted in this particular case.

 

plenty to be going on with, what documentation are Cabot Europe holding from the Assignor and both you and the court will need to see a copy of Cabots Colllection procedures adopted for this case.

[simongee]

Mani99

 

can you post your defence? I have to complete my MoneyClaim defence in the next couple of days too.

 

Thanks

 

Simon

[mani99]

Hi Simon, here is the defence I submitted. I wasn't too sure what to put so most of it is based on the advice given on this thread:

 

On the 26th September 2011, I received a response to my N244 Application where the District Judge ruled:

"1) Unless the Claimant do by 5th October 2011 disclose to the defendant a certified true copy of the Notice of Assignment referred to in the Particulars of Claim the claim will be struck out".

The Claimant has responded by sending a representation of the Notice of Assignment along with a witness statement. The witness, who is prepared to give expert evidence but yet does not mention the debt, history or Terms and conditions.

Even though the claimant has provided a Witness Statement and their representation, representation still does not prove that the Notice of Assignment was ever received or acknowledged.

If the court accepts the Notice of Assignment was served then the Claimant under S82 is deemed in law the Creditor, therefore as such the Claimant/Creditor must file and serve in order to prepare a complete defence:

1. The Notice of the changes to the terms and conditions of the original Agreement

2. Consecutive monthly Statements of Account from the Date of Assignment

3. Two Notice of Arrears pursuant S86 Consumer Credit Act 1974

4. Default Notice pursuant S87 Consumer Credit Act 1974

5. Letter of Impending legal action.

Also, the claimant has not responded to my Part 18 request which was sent on the 30th August 2011, in which the following information was requested:

1. Do the claimants hold a signed copy of the agreement containing all the prescribed terms?

2. Does the claimant hold copies of the terms and conditions at inception ad as varied?

3. Was a default notice issued, and if so on what date?

4. If a Notice of Assignment was issued, by what method was it served and is proof of postage available?

5. Was a termination notice issued and if so on what date?

I request that this claim is struck out and the claimant pay costs.

 

 

[simongee]

Thanks Mani and good luck. When will you hear as to whether you have been successful? Fingers crossed. Simon

[consumeredge]

Hi Simon

 

Hold fire on any thoughts of submitting a defence until at least next Tuesday, that way you have given Morgans 7 days to reply, play it by the book, it will be interesting to see how they respond when considering they replied to mani saying the NoA was lawfully executed by way of Section 136 Law of Property Act 1925. That particular act is now dead and buried by S82A CCA.

 

Kind regards

 

Clive

[consumeredge]

opps, sorry mani wrong thread, I'm watching both

[mani99]

Surprise, surprise.... Morgan decided to respond to my Part 18 request which I sent to them on the 30th Aug.... quick response then. Although I dont think I should be too concerned about it as what the judge ordered was a certified true copy of the NoA which they havent provided. They've sent: a copy of the signed page of the agreement but no terms. No terms and conditions as they dont have it but have requested it. A template of the default notice that would've been sent (this made me laugh as in the notice my credit limit was 17,000 and money owed was 22,000... Ive never had such a high credit limit) No termination Notice, but have requested it. I dont think I need to add this to my defence which I have already submitted?

[Undercover-Elsa]

The incorrect figures on the Default Notice are important, and should imho invalidate it. Good to have as without a valid DN enforcement cannot (should not)take place!

 

See what others say as to the best time/way to use this to your advantage. Can you prove these figures are wrong?

In fact, can you scan it up (minus your personal details) for us to check it for other errors...?

[mani99]

Here is a scan:

 

[Undercover-Elsa]

Unbelievable.

What the idiots have sent, Mani, is a Notice of Default...which is a completely different document to a Default Notice.

 

A Notice of Default is for information purposes and requires no action.

A Default Notice under section 87 of the CCA 1974 is required to be issued before they can demand full payment and enforce in court.

 

Double check the wording of your request, just in case.

[mani99]

Hi Elsa, In my request I definitely asked about the Default Notice. What they've sent just looks like a template with dummy figures used to illustrate the document.

[AndyOrch]

Its not even compliant ( form,content, layout ) either as an original or reconstituted.

 

Andy