Cabot/morgan Claimform fast track - old Cap1 Card Debt

[simongee]

Also, despite Cabot's system referring to CCJ there has not been one issued either by CapOne or Cabots (yet).

[consumeredge]

With regard to their 'Request under civil procedure rules part 18 for further information', they have asked whether:

 

• Question One: Please confirm whether or not you received the letter dated 10th October 2011 from Capital One (as per the copy disclosed by the Claimant under cover of their letter of the 18th January 2012. If you did receive this letter please provide a copy of it to the Claimant. If you no longer have this letter please explain why not.
  

[simongee]

Hi consumeredge

 

Were you making a point regarding the Civil Procedure Request?

 

Simon

[consumeredge]

From your post 107 yesterday you wrote

 

With regard to their 'Request under civil procedure rules part 18 for further information', they have asked whether:

• Question One: Please confirm whether or not you received the letter dated 10th October 2011 from Capital One (as per the copy disclosed by the Claimant under cover of their letter of the 18th January 2012. If you did receive this letter please provide a copy of it to the Claimant. If you no longer have this letter please explain why not.
  

• Question Two: Please confirm whether you hold in your power, possession custody or control any other letters, statements or any other category of document which relates to the Capital One credit card account numbered xxxx (other tan correspondence between Morgan Solicitors and yourself and court orders relating to this Claim). If so, please provide copies of these documents to the Claimant.
  

I have until 4pm on 24th February 2012 to reply to their Request under Civil Procedure and my own witness statement needs to be with them by 23 February 2012.

 

 

Obviously you now have a copy of the letter dated 10/11/2011 from Capitol One as Morgans have sent it to you, what does the letter state?

 

Secondly, you also say Morgans Solicitor’s have sent you the Claimants Witness Statement.

 

Can you post the Claimant’s Witness Statement up

[simongee]

Hi Consumer Edge

 

I will post up their witness statement less all the exhibits if that's OK. Otherwise it will be 100+ pages (many of which are blank). This will follow in a couple of hours.

 

I do have the Capital One correspondence they sent me which I will copy and forward on to the Claimant. It basically was the DPA information requested.

 

Simon

[consumeredge]

Hi Simon

 

There is no need to send a copy of the letter from Capitol One to Morgans, they already know the contents having sent you yourself a copy on the 18th January, they are asking if you recieved it and by way of acknowleding this they are asking you provide a copy of it, that makes no sense?

[simongee]

Cabot Witness Statement.pdfConsumer Edge

 

Please find attached a copy of Cabot's Witness Statement. There are more pages but each of the others refers to the Exhibits listed below.

 

Comments appreciated.

 

Simon

[simongee]

Consumer Edge

 

Is this ok as a witness statement?

 

Simon

Witness Statement Upload.pdf

[consumeredge]

Hi Simon,

 

The Witness Statement you have copied is for a Summary Judgement.

 

Reading through Cabots Witness Statement imo you have a case for defence based on Law, if the court agrees they have no option other than to strike out the claim, however, be warned Cabot could come back again and with a Charging Order looming if they are succesful it might be worth considering a consent/tomlin order.

 

This is what I would submit as a Witness Statement, admittidly its short, but its direct and to the point.

 

I Simon XXXX of Address will state

 

It is averred no Notice of Assignment compliant with S136 Law of Property Act 1925 to which the Claimant cites, misleading the court and thus forming the basis upon which these proceedings have been brought, has ever been lawfully served upon the Defendant by the Assignor, Capitol One.

 

I bring to the courts attention the Claimant is disrespectful towards the court attempting to circumnavigate the Consumer Credit Act 1974 and S136 Law of Property Act 1925 offering first a template as evidence of a Notice of Assignment alleged to have been sent to the Defendant on the 6th May 2011, then stating exhibit "IL5" " to be a copy of the Claimant’s Letter before Action dated 16th August 2011 which makes a demand for payment and suffices to give Notice of Assignment"

 

I bring to the courts attention the exact and relevant wording of Section 136 of the Law of Property Act 1925

 

136. Legal assignments of things in action. —

 

1. Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—
   

I bring to the courts attention the Claimant is not the Assignor.

 

I respectfully ask the court uphold the Law to which the Claimant quotes, that being, for any Notice of Assignment to be effectual in law and absolute served under Section 136 of the Law of Property Act 1925, the Notice of Assignment must be written under the hand of the Assignor.

 

Until such time the Defendant receives express Notice of Assignment written under the hand of the Assignor the Claimant’s claim be struck out upon the grounds the Claimant has no standing in the court.

[simongee]

Hi Consumer Edge

 

I am really appreciative of your help with this matter. I will use your suggested witness statement. With the listing of 136, should I keep the statement as is or list the a,b, c's under section 1?

 

In terms of the tomlins comment, just so I understand, if Cabots fail with this case, they can reapply for a charging order and therefore at that time, I should try and negotiate a deal with them if they are able to prove they now own the debt.

 

Simon

[consumeredge]

Hi Simon

 

I would keep the statement as it is, when you read Cabot’s Witness Statement it is only paragraphs 3.3 and 3.4 that are only relevant to your case, the rest is Cabot waffle.

 

Cabot have now made a specific statement that the Assignment was lawfully completed as per S136 of the

Law of Property Act 1925 on the 29th March 2011.

 

The Consumer Credit Act 1974 was amended to include Section 82 and enacted August 2011, it is only after this date "Assignee’s" are entitled to send a Notice of Assignment on behalf of the Assignor.

 

Its important to remember the new section 82 was inserted to prevent DCA’s from circumnavigating the Consumer Credit Act.

 

Cabot were given the opportunity to state S136 of the Law of Property Act 1925 when they replied to your letter dated 26th September yet the reply you received was:

"You will note that the Claimant has not referred to "The Agreement", "The assignment", "The default notice" and "The termination notice" within any of the above mentioned documents."

Then

"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."

 

Again, the Defence you submitted specifically asked questions under Section 82 of the Consumer Credit Act, and if so, you required proof the legal requirements before Cabot took action had been met.

 

Both Cabot and Morgans ignored this.

 

At the hearing you will have the opportunity to verbally address the court, state your case and question the Claimant, the trick is to have a script, learn it and be ready.

　

　

If the court rules in your favour the Claimant will have to seek and provide proof a Notice of Assignment was sent to you under the written hand the Original Creditor (in today’s world that means a letter from Capitol One on headed notepaper, Dated, titled Notice Of Assignment, the contents would be the date the account was sold with the amount outstanding as of that date, who to contact and electronically signed)

 

Cabot may seek that you agree to a consent/tomlin order instead, but they have to offer this to you, not you to them.

[simongee]

ConsumerEdge

 

I can't thank you enough for your assistance with this. I will send off the witness statement and civil procedure request to them today. I'll keep you in the loop.

 

Kind regards

 

Simon

[consumeredge]

Entry

Date

Time

Action

11

06/05/2011

08:46

New Business (HEL 009) sent to Account Holder address

 

 

 

 

17

12/05/2011

17:58

Take note Phone Number(s) no answer

 

 

 

 

18

14/05/2011

09:30

Outgoing call: Other contact type - Phone Other no deal tt m adv wrong

 

 

 

 

21

17/05/2011

09:00

Outgoing call: Other contact type - Phone Other no deal tt m adv wrong xxxxxxxxx removed

 

 

 

 

22

18/05/2011

14:59

Outgoing call: Other contact type - Phone Other no deal tt m said cust not home

23

18/05/2011

17:00

Outgoing call: Occupier of Property - Phone Other no deal tt m wrng

24

18/05/2011

17:01

Document NC001 sent to account holder address

 

 

 

 

25

19/05/2011

09:06

Take note Phone Number(s) no answer

 

 

 

 

27

30/05/2011

22:10

Document NBT-016 sent to account holder address

 

 

 

 

34

22/06/2011

02:40

Document submitted PLO10 Pre litigation version of HD002 sent to account holders address

 

 

 

 

41

21/07/2011

23:37

Document submitted HD005 solicitors letter sent to account holders address

 

 

 

 

46

16/08/2011

22:03

Document submitted Lit 035 letter before legal action sent to account holders address

 

 

 

 

56

01/09/2011

14:00

CCJ amount to 999

 

When you decipher Cabot’s event activity log for the account it amounts to a welcome letter (New Business) sent to you dated 06/05/2011. 3 phone calls to the wrong number, then 2 calls the first of which the occupier said you were not at home, Cabot then called at 5pm and got no joy for whatever reason, one more call was made the Following day at 09:06 (no answer) which would indicate to anyone with an ounce of common sense the occupiers of the property are employed or out elswhere during daytime.

 

What does smack you in the face is that no Notice of Assignment from either Capitol One or Cabot was ever sent, hence why Cabot are trying to mislead the court offering a reacted template of nothing, then stating the letter before action sent dated 16/08/2011 is suffice to cover as a Notice of Assignment. Oh no it’s not!

 

If Cabot had sent a Notice of Assignment it would be clearly noted on the events log prior to the 16/05/2011

[consumeredge]

Hi Simon

 

When all courts act to uphold Civil Procedure rules and enforce the law they will see a reduction in claims, wasted court time and costs, the judicary moan they are overloaded yet they are their own worst enemies having allowed the culture of DCA's to issue a claim as a first line of threat, instead of a last line of resort

[heathrow]

Well said consumeredge. We are all at the mercy of the courts and it appears where DCA's and their tame solicitors are concerned they can flaunt the law willy nilly and the DJs just ignore it. The County Court system, as I understand it, was meant to be there so that the layman could present or defend his case without feeling disadvantaged but this simply is far from the case. It seems to me that when we are up against a DCA we win or lose at the whim of the judge and as so often is the case ... the legal bods stick together like **** on a shovel. This has got to be changed but how do we do it. We could protest to the Dept of Justice but they are unlikely to do anything. It all a sham really.

[heathrow]

Simon, when is your case due to be heard? I am following your progress vetr closely because I am facing a very similar case with this mob except mine is more difficult even than yours as they have lumped two separate accounts together as one case.

[simongee]

Thanks for all your help Consumer Edge. It will be interesting to see what response Cabots/Morgan's make if any.

 

Heathrow - the case is due to be heard on 3 May 2012.

 

Simon

[heathrow]

Hi Simon

As my case seems to be similar I have sent you a message through the normal message line.

Have you got any further with this since your last post?

Cheers

[simongee]

Consumeredge

 

I'd appreciate your help again if you have time.

 

In the post yesterday, I received 'by way of service upon you the Claimant's Second Witness Statement'. I attach same for your consideration. They comment that on 18/12/2009 Capital One 'Customer Insight' system listed a 'DNL' against the account although I have no record of receiving this. In addition, Morgan Solicitors has sent me a arrears notice dated 27th March 2012 (which hasn't arrived at the time of writing). Again, I attach a copy of their computer generated letter.

 

Do you think I should reply to this? Comments hugely appreciated.

 

Simon

Morgan's. Solicitors 29 Mar 2012.doc

[consumeredge]

Hi Simon

 

Capitol One's "Customer Insight" system could prove useful, while it alledgedly shows a default notice as entered on 18/12/2009 there should also be a reference as to when the account was "sold", strange they make no reference to that bearing in mind the requirements of the law of Property Act which they rely upon. leave it with me, I'll come back to you during the week.

 

Kind regards

 

Clive

[consumeredge]

So as to clarify yet again the Law of Property Act 1925, the following concerns a family member who has been with Payplan for the last 5 years, Barclaycard were listed as a creditor from the beginning and have been recieving £1.75 from the start of the repayment programme

 

So...........

 

Barclaycard official headed notepaper.

 

19 October 2011

 

Account Number xxxxxxxxxxxxxxxxxxx

 

Dear Mr X

 

Some time ago you contacted us to advise that you were unable to make the minimum payment on your Barclaycard each month. As a responcible lender, we agreed to accept reduced payments towards your account.

 

We have recently reviewed accounts that are on reduced payment arrangements and we have subsequently agreed to sell the debt you owed to us to a company called Cabot Financial (UK) Ltd in accordance with the Terms and Conditions of your account. We have included the relevant section of the Terms and Conditions with this letter for your information.

 

This letter is notice of the agreed sale of the debt. This means we will close your account with Barckaycard and you will recieve contact within 21 working days from Cabot Financial (UK) Ltd.

 

The balance outstanding on your Barclaycard account on 19 October 2011 was £315.30

 

Cabot Finacial will honour any repayment arrangement you had with us until it is due for review in (a minimum) of six months time. At this stage Cabot Financial (UK) Ltd will contact you (or any 3rd party representative you have subsequently advised them is dealing) to review your circumstances and agree an affordable repayment amount.

 

Payments:

If payments are currently made by Credit/Debit Card, then any scheduled payments will be cancelled upon sale. Cabot Financial (UK) Ltd will provide you with alternative payment instructions in due course.

 

If you pay by standing order then Cabot Finacial (UK) Ltd will confirm the new payee details, enabling you to change the payment instruction currently held by your bank/Building Society.

 

Further information is set out below but if you have any query or concerns relating to the transfer of your account that are not covered then please contact us on 0844 556 0066.

 

Yours sincerely

 

Alexandra Regan.

Barclaycard

For and on behalf of Barclays Bank PLC

 

TERMS & CONDITIONS

14. General

 

14.2 We may transfer to any other person any or all of our rights under this agreement at any time and our duties (including without limitation, our duty to lend to you). We may do thiswithout telling you. Your rights ubder this agreement and your legal rights (including under the consumer credit act 1974) will not be affected.

 

 

Cabot Finacial sent a "Welcome Letter" 3 weeks later.

 

Now then, whilst Barclaycard quote/state they may transfer all or any of their rights to any other person without telling you, they send a Notice of Assignment to you when they "Sell" the debt, and that is a big big difference.

[simongee]

Galactica

 

Thank you for your comments and interest in my case. I welcome all feedback.

 

ConsumerEdge has assisted me since commencement so I will await his comments before replying to Cabot's second witness statement.

 

With thanks

 

Simongee

[simongee]

ConsumerEdge

 

Over the weekend, I received the original Notice of Arrears from Morgan Solicitors (not Cabots) dated 27 March 2012. I attach same for your consideration. Although the copy mirrors that I uploaded last week, I wanted to attach a copy of this one, only as it is shown on Morgan's Solicitor's letterhead not Cabot (not sure whether this makes a difference). I haven't attached page 2 (which simply lists how to pay, Cabot's postal address, bank details, summary box. They have also attached a copy of the OFT's Arrears Information Sheet.

 

Comments appreciated later this week. I have tried to direct message you but your mailbox is apparently full!

 

I hugely appreciate your ongoing support.

 

Kind regards

 

Simon

Morgan Solicitors 2 Apr 2012 upload.doc

[simongee]

ConsumerEdge

 

Your mailbox now works - I sent you a DM and it went through this time.

 

Kind regards

 

Simongee

[consumeredge]

Hi Simon

 

Just to refresh this is the witness statement you submitted……..

 

It is averred no Notice of Assignment compliant with S136 Law of Property Act 1925 to which the Claimant cites, misleading the court and thus forming the basis upon which these proceedings have been brought, has ever been lawfully served upon the Defendant by the Assignor, Capitol One.

 

I bring to the courts attention the Claimant is disrespectful towards the court attempting to circumnavigate the Consumer Credit Act 1974 and S136 Law of Property Act 1925 offering first a template as evidence of a Notice of Assignment alleged to have been sent to the Defendant on the 6th May 2011, then stating exhibit "IL5" " to be a copy of the Claimant’s letter before action dated 16th August 2011 which makes a demand for payment and suffices to give Notice of Assignment"

 

I bring to the courts attention the exact and relevant wording of Section 136 of the Law of Property Act 1925

 

136. Legal assignments of things in action. —

 

1. Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—
   

I bring to the courts attention the Claimant is not the Assignor.

 

I respectfully ask the court uphold the Law to which the Claimant quotes, that being, for any Notice of Assignment to be effectual in law and absolute served under Section 136 of the Law of Property Act 1925, the Notice of Assignment must be written under the hand of the Assignor.

 

Until such time the Defendant receives express Notice of Assignment written under the hand of the Assignor the Claimant’s claim be struck out upon the grounds the Claimant has no standing in the court.

I would write to Morgans as follows.

 

Dear Sir or Madam

 

To further the overriding objective so that there can be no misunderstanding where the Defence stands, and to save wasted time, it is abundantly clear both yourselves and your client are attempting to circumnavigate the Consumer Credit Act 1974 deliberately misinterpreting the Law by stating a Notice of Assignment was served pursuant to Section 136 Law of Property Act 1925 on or around the 6th May 2011by the Claimant, therefore please read the following which is in fact a lawful Notice of Assignment sent as per the requirements of the Law of Property Act 1925 upon which your Client relies upon:

　

Barclaycard official headed notepaper.

 

19 October 2011

 

Account Number xxxxxxxxxxxxxxxxxxx

 

Dear Mr X

 

Some time ago you contacted us to advise that you were unable to make the minimum payment on your Barclaycard each month. As a responsible lender, we agreed to accept reduced payments towards your account.

 

We have recently reviewed accounts that are on reduced payment arrangements and we have subsequently agreed to sell the debt you owed to us to a company called Cabot Financial (UK) Ltd in accordance with the Terms & Conditions of your account. We have included the relevant section of the Terms & Conditions with this letter for your information.

 

This letter is notice of the agreed sale of the debt. This means we will close your account with Barclaycard and you will receive contact within 21 working days from Cabot Financial (UK) Ltd.

 

The balance outstanding on your Barclaycard account on 19 October 2011 was £315.30

 

Cabot Financial will honour any repayment arrangement you had with us until it is due for review in (a minimum) of six months time. At this stage Cabot Financial (UK) Ltd will contact you (or any 3rd party representative you have subsequently advised them is dealing) to review your circumstances and agree an affordable repayment amount.

 

Payments:

If payments are currently made by Credit/Debit Card, then any scheduled payments will be cancelled upon sale. Cabot Financial (UK) Ltd will provide you with alternative payment instructions in due course.

 

If you pay by standing order then Cabot Financial (UK) Ltd will confirm the new payee details, enabling you to change the payment instruction currently held by your bank/Building Society.

 

Further information is set out below but if you have any query or concerns relating to the transfer of your account that are not covered then please contact us on 0844 556 0066.

 

Yours sincerely

 

Alexandra Regan.

Barclaycard

For and on behalf of Barclays Bank PLC

 

TERMS & CONDITIONS

14. General

 

14.2 We may transfer to any other person any or all of our rights under this agreement at any time and our duties (including without limitation, our duty to lend to you). We may do this without telling you. Your rights under this agreement and your legal rights (including under the consumer credit act 1974) will not be affected.

 

Copies of both Barclaycard’s Notice of Assignment and Cabot’s "Welcome" letter can be provided.

 

As your client Cabot Financial (UK) knew exactly what was being asked of them to provide proof Notice of Assignment was sent to the Debtor from Capitol One via my letter dated 3rd October 2011 and again through the Defence submitted on the 12th October 2011, perhaps you would be good enough to offer an explanation as to why you have continually ignored to discus or provide this crucial evidence.

 

I look forward to your reply

 

Yours Faithfully