h197 -v- Cabot (ex Egg ) Now in litigation help please.

[Docman]

h197

 

You have started youur response to the Claim well by sending in the AOS. This provides another 14 days for you to file a defence. By my recokoning, you have about another week but I would try and complete the defence this weekend.

 

The additional 14 days is supposed to provide the claimant (Cabot) with time to provide you with documents ot submitted with the claim. Normally a creditor should supply copies of the documents supporting the claim but there is an exemption to this rule when the claim originates through the Northampton Bulk Centre.

 

When you receive the claim form without the documents attached, the rules allow you to ask for these to be sent to you. You should send a letter referring to CPR 31.14 when asking for documents or to CPR 31.18 when askng for information. Sending a SAR to the original creditor at this stage isn't much use when you have a limited time to file a defence. There may be some information provided in response to a SAR at a later stage but do not delay filing a defence becasue the SAR response has not been received.

 

A requesting quoting S77/78 of the Consumer Credit Act is not in my opinion useful once the creditor has commenced a claim. This is because of a case in November 2009 [Carey v HSBC ]which allowed creditors to supply a 'reconstructed' agreement t(ie hat would be unsigned) in response to a S77/78 request.

 

I suggest you draft a SHORT defence (sometimes called an 'embrassed' defence on CAG) in which you answer the points raised in the claim form. It does not need to be a long document. You can file the defence electronically through Northampton provided it is less than 8,000 characters. Note, some of the embrassed' defences I have read on CAG run to over 25,000 characters which only proves the defence is too long.

 

Once you file a defence, Cabot will have 28 days to respond. If they do not, the case will be stayed automatically. If Cabot do respond and pay the Court fee, then the case will be transferred to your local county court and then, as they say, it will be 'GAME ON'.

[h197]

Hello Docman and many thanks for your comments.

 

In reply, I believe that Morgan are deliberately trying to avoid providing me with any information, so that they may turn up with a Recon CCA on the day and bluff their way through. As for their 14 days being there so they can supply me with information, they have not replied with ANY information requested under CPR 31.14 and they have not even acknowledged receipt of my CPR request, though it was sent recorded and as such I have a receipt from the Post Office where they have signed to receive the letter...!

 

Reading through other similar posts I am led to believe that I can now request for a 28 day extension under CPR (is it CPR 15?), as the information I need to formulate my defence is not available (showing that Morgan have not replied as per their legal timelines, etc). Any ideas how I go about getting an extension please?

 

Moreover, with regards to Carey vs HSBC, from advice I have already had I believe that all it means is that a Recon may now be enough for compliance as a responce to a S77/78 request, but is still NOT enough / acceptable where a court case / court action is enforced / in action? So as we are now talking court action, I can still request the ORIGINAL SIGNED CCA to view under CPR 31.14, as it is a fundamental part any such action...?

 

So I think my defense should be formed around their not offering me reasonable time to consider and offer a viable settlement (they offered 28 days and then ignored them), their unreasonable attempts to not supply me with information (no replies to requests, delay tactics, etc) and their disregard for my CPR request (and I would also add their disregard of the court procedures), as well as the lack of a CCA and lack of evidence supporting their claim being compliant with Law of Property s136 and s196 (absolute vs simple assignment)?

 

Comments please?

Edited September 7, 2011 by h197

[AndyOrch]

Hi H197

 

Responding to your PM.What date is your defence due?

 

Regards

 

Andy

[h197]

Hi Andy and thanks for the swift responce. Apologies if my replies appear slow at times, though I have so many threads open that my laptop is struggling. Please give me a minute to close some windows...

 

In the menawhile, the court has advised a deadline of the 12th, though my Maths indicate the 13th...

[AndyOrch]

Ok lets go with the lesser, If you can give me chance to digest your thread then I will see what the sate of play is.

 

Regards

 

Andy

[h197]

As the issue date was the 10th, +5 days for service = 15th +14 days for AoS = 29th +14 days for Defence = 13th..?

 

By the way, unless I am mistaken I believe that now that the Claimant has not even acknowledged receipt of the CPR request, I can go for N244 to 'throw out' (or whatever the correct term is which is currently escaping me!) and CPR 15.5 to ask for time extension..?

 

Any advice on this please?

[h197]

OK shall I just wait and keep refressing every minute or so?

[AndyOrch]

Check with Northampton h197 for a definitive date if you are unsure.

If you are considering an extension you need to act today ring their sols and request were their response is to CPR

if their response is unfavorable then request an extension CPR 15.5 and ask them to email/ fax a conformation today.Then inform and email CCBC the same.

 

Lastly don't stay up all night worrying over theses matters its counter productive and simply not worth it.

 

Regards

 

Andy

 

I will go through your thread shortly (please dont sit staring at the screen refreshing you will go insane)

[h197]

Thanks Andy...

 

So, i need to call the buggers and ask for an extension verbally as they have not replied to me request for CPR 31.14/15? And as they will probably say no, I then need to submit CPR 15.5 to the court? How do I do that please, is there a template available?

[h197]

...please pardon my French, it has been a long night...!

[h197]

Also, is it worth me sending the letter at the bottom of my last LONG post with the many 'Without Any Prejudice' terms included? Should I also send a CPR 18? Is it worth sending at this stage?

[h197]

I assume I should just refuse to discuss anything else with them too...?

[spamheed]

Cabot and Morgan seem to follow certain scripts, although my account was for a loan and they did actually produced some documentation, they still couldn't get it right.

 

the link to my thread is here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?225933

[Docman]

h197

 

Morgans may or may not be trying to delay matters, as it can take some time to recover documents from the orignal creditor.

 

If you do not want to file an 'embrassed' defence now based on the fact that the claimant has not provided copies of documents properly requested, then you need to obtain their agreement to an extension of 28 days. I suggest a phone call to obtain Morgans verbal agreement and a request for written confirmation. Once they have agreed verbally to an extension, then you have to write to the Court requesting an extension and confirming Morgans agreement.

 

If Morgans will not agree an extension, then you will have to file a defence pronto. Do not assume the later date you have calculated is correct.

[AndyOrch]

Just slow down first of all and take a breather.Then yes phone their Sols and ask for the person dealing with claim number xyz.

Ask if they are agreeable to extension in light of their non response to your request.If they say no re post and ill talk through the next stage.

 

Ok?

 

Andy

[h197]

Cheers Spam, any advise at this stage is welcomed...

[h197]

Thanks all, I am picking up the phone right now...

[h197]

They are asking me to tell them what is the purpose of my asking for the CPR 31.14 request, I have refused to tell them and then said that as they are relevant (form the basis of their case) I need them to be able to formulate my defence...Is this correct?

[AndyOrch]

You didn't ring up to argue the virtues of the CPR you asked for an extension.Don't discuss anything except CPR 15.5.

 

Andy

[h197]

Right, I have just put the phone down... The person dealing with it said that unless I discuss with him over the phone, or email the 'thrust' of my defense, as they do not at this stage know what my defense then they will ONLY consider my application for extension IF I disclose the basis of my defense, or if I email it, blah, blah... He did agree though that he has both CCA and CPR requests in front of him...?

[h197]

PS I did put the phone down after we actually finished our call...lol...!

[h197]

Shall I safely assume here that they are the ones in the wrong, as they have not responded to my CPR request in time and that their asking me to disclose my defense basis at this stage is against some regulation somewhere...?

[Docman]

H197

 

remember you rang at lunch time so you may have just got the one brain cell wonder left in the office.

 

The basis of your request is to see the documentation that Morgans should have supplied and that until you see the documents you cannot formulate a full defence. Try ringing Morgans again in an hour or so. If they persist in playing games, file a defence on the basis that Morgans have not supplied documentation even though they admit they have received your requests but will only release the documents supporting their claim once they have seen your defence.

[h197]

By the way and since i am waiting, this is how it all happened over the phone:

I asked for the person dealing with xxxxxxxx Claim and I was passed.

I did not let him get too much time and asked outright if he would be accomodating a request for an extension, as they have failed to respond to my CPR request.

He sounded perhaps puzzled, looked at his paperwork and said he had two identical documents from me, both sent on the same date, one to Cabot (Kent) and one to Morgan (Rugby).

He proceeded to advise me that me having sent the CCA request to Kent, meant that their responce could validly be delayed, as it had to be transmitted back to Rugby first (pigeon mail perhaps as it took a whole week!).He then corrected that they were not identical, as one was a CCA request and the other a CPR 31 request. At that point he went away to talk to somebody else and when he came back he asked about my defence.

I advised that I did not wish to discuss it, as I was merely calling for an extension, as they failed to provide documents that should be made available to me, as they formed part of their claim (PS It may be worth looking through my posts, where you will see that the two requests I sent to Cabot and Morgan's where nothing like, so if they are blind...?)

Upon his insistance for me to reveal my defence, I simply advised that I needed the documents to be able to correctly formulate my defence, as they should be readily available anyway?

So he advised that they would ONLY consider my request for an extension if I discussed my defense over the phone, or if I sent it in by post / email...

At which point I aksed for confirmation of my iunderstanding, said that I was going to consider my options, said thank you and goodbye...

[h197]

...hmmm, he sounded quite with it and simply wanted me to reveal my defense against them.

 

Gut feeling: They received two letters with an identical date, so they ASSUMED they were the same. They filled them away under "as I asked for CCA at Kent and it had to be poosted back, blah, blah, they did not have to provide anything before the defense date".

 

Now they realised they were wrong, so they need to know what I am going to do to defend...

 

Could my gut be right?