Help Cabbot issued proceedings

[tdmoggy]

I have just received claim of £4600 from Cabbot and i have folllowed forum to request cpr docs as their claim is poorly particularised. They have not responded and the time for defense is running out.

How do i apply for an extention or make an application for them to be forced to provide me with the information. I need help please

 

tdm

[Undercover-Elsa]

Hi tdmoggy,

Just bumping this up for you.

I've attached a compilation of info from the legal threads on cpr disclosure etc, which covers your query

 

kind regards,

 

Elsa x

pt-legal issues-compilation.pdf

[Undercover-Elsa]

PS....Can you post up the POC, for more help?

Did you send a 31.14 request (for docs) or a part 18 request (for info)?

 

You can only request documents that are mentioned in the POC in a 31.14 request. If the POC are poor then imo part 18 is the way to go - once they've alluded to docs in response to your questions, then you can request under 31.14. If they then fail to comply you can ask the court for an order to compel disclosure via form N244.

Edited August 28, 2011 by Undercover-Elsa

[tdmoggy]

here is the letter i sent. I will scan the POC and post it later in the day.

thanks

 

XXX Any town

Surrey, UK

Any Date

 

Cabot Financial UK Ltd

XXXXXXXX

 

Dear Madam/Sirs

 

Re: XXXXXXXXXXXX v CABBOT FINANCIAL UK LTD

Combined CPR 31.12 and CPR 16.4(2) Request

On XXXXXXXXXX I received the Claim Form in this case issued by you out of the County Court Bulk Centre, Northampton. I confirm having returned my acknowledgement of Service form to the court indicating my intention to contest all of the proceedings.

 

Owing to this striking lack of particularity in your Particulars of Claim, I require the immediate disclosure by you pursuant to CPR 31.12 of each of the following documents, mentioned or referenced, to which would have been made had the Particulars of Claim contained the minimum of necessary particulars and complied generally with CPR PD 16.

 

1. The agreement giving rise to the obligation to XXXXXXXX for the alleged credits advanced. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 The deed or other instrument of assignment by which you / the Claimant allege that you acquired rights under the agreement disclosed by you under [1] above.

 

3 The default notice, the service of which was a condition precedent to the creation of the debt now sued upon by you pursuant to the assignment disclosed by you under [2] above.

 

Additionally and in relation to the interest claimed, pursuant to CPR 16.4(2)

 

4 Under CPR 16.4(2)(a)(i) please now state whether the claim to £XXXXXXX includes a claim for interest under the agreement disclosed under [1] above and if so,

 

5 Under CPR 16.4(2)(b) specify the amount of that interest, and

 

6 the percentage rate of interest, the date from which it is calculated and the date to which it is calculated, alternatively

 

7 Where more than one percentage rate of interest has been applied or compound interest has been applied in the calculation of the amount of interest specified at [5], specify each element of interest comprising the sum for interest specified at [5] and for each such element specify the amount treated as principal in the interest calculation, the percentage rate of interest, the date from which it is calculated and the date to which it is calculated.

 

8 Where any interest as above is claimed pursuant to County Courts Act 1984 section 69, specify the date from which it is calculated and the date to which it is calculated.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me.

Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.12 request.

 

You should also ensure compliance with your CPR 16 duties and likewise ensure that the particulars regarding interest are fully provided to and received by me within 7 days of receiving this letter.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request.

 

If you are unable to comply with that part of this request concerned with CPR 31 and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with any part of this request or fail to request more time, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I look forward to hearing from you.

 

Yours unfaithfully

[tdmoggy]

Looks like i screwed up. just read that i should have sent CPR31.14. What do i do ?

[tdmoggy]

Thanks all so far for your posts. I have spent the last couple of days reading and i am very glad to have the support of wonderfull CAGer's. Lets hope all goes well with me so i can through the experience be more active in helping others.

 

please find the POC's

 

Where things stand.

Reserved claimants CPR31.14 request

heard nothing back, after 11 days, as defense deadline looms,

Issuing N244 disclosure demand shortly following guides in pt's legal issues doc (thanks pt)

 

 

 

POCS for TDM.pdfPOCS for TDM.pdf

[debbbbsy]

File your defence on time & attach a copy of your CPR request.

 

If they choose to continue, your case will be transferred to your local court. You'll recive an Allocation Questionaire. With this you must submit a "Draft Order Directions". This is your opportunity to use the courts to force the claimant to provide all the documents they rely upon to enforce the claim. The request will be issued by a judge & cannot be ignored. They must respond before proceeding further.

[molly13]

subbing

[ohitsonlyme]

Subbing I am a month or so in front with allocation hearing in 6 weeks

onlyme

[tdmoggy]

Hello good people, here is my update:

 

Did not receive any response from Cabbot despite reminder letter and further 7 days,so i made an application for disclosure (N244)

Hearing date was last week Wednestday.

On the Tuesday before hearing (i.e. 1 day before), I received a bundle of cut and paste jobs

 

Highlights were:

No legible copy of contract (a really bad photocopy job of an application form that no one could read from)

No Area's notices privided,

A mercers default notice that looks dodgy (dated June 21, Remedy date 05 July)

 

On to court the next day. Arrived late and had to join Cabbot solicitor in chamber. He was probably hoping that i would not attend, so was visibly dissapointed.

Male Judge was very pleasant and made us relax. The husband was very nervous but I was surprisingly calm.

I went through the rant of how they had failed to comply etc, for which they blamed Barclaycard's slow response.

The Judge ordered that they provide copy of contract and ordered them to allow inspection of all original documents, plus awarded costs and loss of earnings for the day to me. Judge also asked me to come back for an unless order if they failed agan.

All in all, a good day.

 

My question is - Can a DN by mercers be deemed in compliance if

1) No allowance for service days - it was dated June 21, Remedy date 05 July

2) No address of Original Creditor

 

Has this been tested in court and does anyone have any links to case law etc. The Judge gave Cabbot 14 days to produce the docs, after which I will clearly have to file a defense.

[Jasper1965]

 

My question is - Can a DN by mercers be deemed in compliance if

1) No allowance for service days - it was dated June 21, Remedy date 05 July

2) No address of Original Creditor

 

Has this been tested in court and does anyone have any links to case law etc. The Judge gave Cabbot 14 days to produce the docs, after which I will clearly have to file a defense.

 

you need to have a good read of this thread. http://www.consumeractiongroup.co.uk/forum/showthread.php?286311-Brandon-Case(5-Viewing)-nbsp

 

Then when you're already beginning to feel better, take a read of:

schedule 2 of The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983

 

SCHEDULE 2

 

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE DEBTOR OR HIRER OF A REGULATED AGREEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

 

Details of agreement

 

1. A description of the agreement sufficient to identify it.

 

Parties to agreement

 

2.—(1) The name and a postal address of the creditor or owner.

(2) The name and a postal address of the debtor or hirer.

 

DN is non compliant and Brandon vs amex is very clear on DN non-compliance.

[Desperate Daniella]

Hi tdmoggy,

 

Did Cabot manage to come up with anything in response to your N244?

 

I gather it is Cabot's policy "not to allow personal inspection of original documents", so would love to know if they have now agreed that you can inspect the documents.

 

DD

[tdmoggy]

Sorry for the absence, been busy recently

 

Cabbot have sent the same documents (signed application form), plus a dodgy DN. They are claiming that the agreement has not been terminated and that they are only seeking areers and not the full amount.

They claim the DN is not relevant to th case and that they only provided it as "good will jesture"

 

By the way does any one have PT's solicitors details. I want to engage them as I am really struggling to cope with all this paperwork. I need to file my defense ASAP

[Jasper1965]

Ah the old "since the default notice is defective we'll pretend we're only seeking arrears after all our claim is so poorly particularised nobody will notice the change of tack" response then.

 

 

I refer you to yourself:

"The Judge ordered that they provide copy of contract and ordered them to allow inspection of all original documents, plus awarded costs and loss of earnings for the day to me. Judge also asked me to come back for an unless order if they failed agan."

 

I think that you should apply for the claimant to replead their case correctly as with this latest change of tack you honestly don't know what they're claiming and what you should be defending. Make a formal application for a claim to be struck out Unless the claimant files a fully particularised claim, accompanied by all documents ordered to be disclosed by the Judge at the earlier hearing with the claimant to meet your costs to date.

[Jasper1965]

Sorry for the absence, been busy recently

 

Cabbot have sent the same documents (signed application form), plus a dodgy DN. They are claiming that the agreement has not been terminated and that they are only seeking areers and not the full amount.

 

 

 

BTW if they are claiming the account has not been terminated and they are simply seeking arrears one must assume that they have provided you with the notices of these "arrears" as prescribed by Sec 86C CCA 1974 because if they haven't then sec 86D cca 1974 kicks in.

[tdmoggy]

They are now claiming to be seeking only areers but the original poc was requesting the full amount outstanding.

additionally, i have a pre-litigation letter from morgans/cabbot in which they set out the full amount outstanding and then demand i pay the outstanding amount or they will proceed to litigate

 

my questions are,

 

a)when is an agreement terminated. Does BCard have to terminate before the debt is sold on?

b)If the DC is requesting full payment of outstanding amounts due, is this not termination?

[tdmoggy]

Forgot to add that the original (vague) POC did request the full amount balance of the original BCard, so is this not clearly termination ?