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    • Dear EVRi parcelnet LTD t/a evri   evri parcelnet isnt a thing also you say defendant's response which is a bit of a weird format.   Something like   Dear EVRi, Claim no xxxx In your defence you said you could not access tracking. Please see attached receipt and label Regards
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Cabot Financial - Defending a court claim


SHERLOCK
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because no one has posted on it for the last 4887 days.

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Thanks

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(Highlighted in red) Now how would they be best suited to find that info out? Me and a few others have our suspicions. It's my guess that you're half right ;)

 

Well for starters they if could see if someone had been servicing a huge mortgage for the last 10 years and never re mortgaged I bet they'd get a phone call or thirty :grin:. I know they are big list trawlers - if you have been spending a fortune on online shopping, mail order etc. that will be a green light. They also keep a close eye on directories of certain professions (which can be huge and well updated, especially in any regulated profession). If they see someone popping up in a new job in a high pay sector that'll get the phone ringing. That one I know from personal experience - they rang me on a new phone number that could only have been obtained from one source.

"Why CCJ when you can CCA!"

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Now this is interesting but how can they find our where you have been shopping online ETC?

The list of professions I can see how they can do that. It's the other stuff isn't it?

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Now this is interesting but how can they find our where you have been shopping online ETC?

The list of professions I can see how they can do that. It's the other stuff isn't it?

 

Companies sell lists of people who spend over x amount of money with them. That's why you must never check the box in the small print that allows info sharing with other companies who might have things that interest you or whatever. You'll wind up on a load of list brokers' lists. That can lead to something more sinister than spam or junk mail.

 

I also suspect they make extensive use of the DVLA - they could see someone registering a new Beemer or moving house with a potential equity release situation, for example.

"Why CCJ when you can CCA!"

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dont know why they are bothering me then :( , I have no money, everybody say AAAAAAAAAAAAAHHHHHHHHH :rolleyes:

 

You might at some point have bought something expensive and got on some chintzy list. But most likely it's because you are on a Debt Mug's Plan and they are just trying to see if they can squeeze any more out of you:evil:

"Why CCJ when you can CCA!"

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  • 5 months later...

BACK ON THE CHAIN GANG,

 

Responses needed for 3no. accounts (2 x m,ment, 1 x Citi), CCA'S sent 20/10/06

After usual crap, below received on 19th March 2007:

 

MY TWO MONUMENT AGREEMENT COPIES SENT TO ME WERE HEADED 'REPLY CARD'. Are these my original signed agreements??

 

CONTAINS MY DETAILS AND INCOME

 

THEN DECLARATION (CREDIT AGREEMENT REGULATED BY THE CCA 1974)

I am applying for a providian national bank credit card etc.

 

SIGN TODAY

this is a credit agreement regulated by the CCA 1974.

sign only if you want to be bound by its terms.

signed and dated.

 

Additionally, at the very bottom it states:

FOR OFFICE USE ONLY - SUBJECT TO CREDIT APPROVAL.

 

Additionally in my CCA Requests I asked for and wasn't supplied with

 

1) signed true and certified copy of original default notices

2) deeds of assignment

 

I have received NO agreement (application or otherwise) for the Citifinancial account.

 

Next step - sherlock

Edited by SHERLOCK
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Sounds like an application mailer to me.

If they don't contain the prescribed terms then they are worthless.

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

Be VERY careful whose advice you listen too

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  • 2 years later...

Hi all, not been on for a while :@(

 

Received a CABOT claim form today with regard to £4000 credit card debt (originally with mONUMENT), have things moved on recently with cca's etc. or is It still requesting the original agreement.

 

Not sure if I have already done this, will check through the papers and speak soon.

 

Are the same crowd still here, curly, POET, pmhcfc, Andrew1 etcetera, etcetera, etcetera

 

DIDN'T READ MY THREAD ABOVE PROPERLY, APPEARS I HAVE RECEIVED SOMETHING, I WILL SCAN AND POST ON HERE FOR FURTHER HELP. I DO BELIEVE THESE ARE SCANS OF FLIERS THAT YOU RECEIVE WITHOUT APPLYING!

Edited by SHERLOCK
ADDITIONAL INFO.
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  • 3 weeks later...

Used this letter a few years back and it worked as the claimant cannot get all the info in order to back their court claim before the defence date!!

When / if they do, and this means they need to supply all my statements, I can make a counterclaim for excess charges thus reducing the overall alleged amount.

In the mean time, the clock is ticking, acknowledge of service done.

Dear Sir

 

In the XXXX County Court

National Westminster Bank plc -v- (YOUR NAME)

Claim Number: (CLAIM NUMBER)

REQUEST FOR FURTHER INFORMATION

 

I have today filed the Acknowledgement of Service (copy attached) in order that I may file my Defence to these proceedings in due course. By my calculations this must be filed and served no later than 4.00pm on (28 days from the date you received the court claim). However, before doing so, I take the view that your pleadings are not entirely clear and as such, do not appear to disclose any reasonable cause of action against myself. Although this matter may be suitable for the Small Claims Track the purpose of this letter is to make a request for some additional information in order to fully understand your claim and how it is calculated.

 

I note in your pleadings that you are claiming (alleging) that an amount of £AMOUNT is ‘part of a debt due under an agreement number (AGREEMENT NUMBER)’, and also that I ‘agreed to pay the Claimant £(TOTAL)’ – however you do not provide details of how you have reached these amounts, nor any information, or a copy of this ‘agreement number (AGREEMENT NUMBER)’ you refer to.

 

In light of this, can you please provide me with the following:

  • A true copy of the alleged agreement you refer to.
  • How you calculate the sum of £(AMOUNT)
  • How you calculate the sum of £(TOTAL)

We would be grateful if you would respond within 21 days of the above date.

 

In the event that I do not hear from you at the end of this period, I may apply for your Claim to be struck out on the grounds that it does not disclose any reasonable cause of action against me, together with an Order for Costs in the Defendant’s favour. I trust that you will note this particular point.

 

In any event, kindly acknowledge safe receipt of this letter.

 

Yours faithfully,

SHERLOCK

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  • 2 weeks later...

 

replycard.jpg

 

 

they sent me covering letter - find enclosed:

 

  • copy of signed agreement (above)
  • copy of the relevant terms and conditions (consists of 8no. 1/2 pages (pamphlet type)
  • copy representation of the notice of assignment (typed letter (no date). handwritten ot top of letter - representation of a letter sent to customer **/**/**
  • Cabot statement of account - simple table with payments made and balance running.

I now need help with further defence/letters

 

Initially is the signed agreement to be contested and how?

additionally - dont know where the 'application form bar code' has appeared from....it is not evident on the last copy of the reply card sent?

received no account /statements to quantify alleged debt amount.

 

all help appreciated, Regards SHERLOCK

Edited by SHERLOCK
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thanks Rhia, but I am struggling where to start:confused:

 

from what I gather, having acknowledged the claim form online 6th Nov. issue date 20th Oct. + 5 days (25th) gives me to 23rd of November (so I'M 2 DAYS LATE). OH WELL, I WILL NEED TO SEND IT TODAY THEN!!

 

Basically, do I accept that I owe the debt or not? i.e in defence & counterclaim form (admit, admit part or dispute whole)

 

am I then questioning the actual contract agreement being unenforceable (end of story)

 

I forget everything else and go for the unenforceale terms falling foul of the regulations (pre-2007)?

 

I have what appears to be the original deed of assignment from Monument.

I have copy of Terms and conditions (right at bottom of page 8 it has 06/03 in small type - does this refer to the date the terms were appliable to?)

 

am just going through Brent-London's thread>

 

All replies welcome, sherlock

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1) Cabot have submitted an unenforceable agreement as evidence and as such the debt is unenforceable as it falls foul of the regulations (pre-2007) as the agreement was entered into in 2003. The Consumer Credit Agreement provided by the claimant and exhibited as “EX1 - Reply Card” is legally unenforceable as it does not contain the required information under Schedule 6 of the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) (“the regulations”) which are required under sections 61(1)(a) and 127(3) as it then was, of the Act, which apply to agreements executed prior to 6th April 2007. Specifically lacking is:

 

 

· information as to obligations under the agreement to make repayments (para. 2 of the regulations)

· information as to the interest rate (para. 3 of the regulations)

· information as to the repayment terms (para. 4 of the regulations)

 

 

b) Further, section 61 of the Consumer Credit Act 1974 and Schedule 6 of the 1983 regulations and the case law relied upon (see below) make it clear that the required information must be included in the same document and not merely referred to in another document. Any reference to the “Terms and Conditions” attached in a separate document exhibited as “EX2 – T&C” is of no legal effect for the purposes of enforceability as they are not signed by the debtor.

 

 

· The case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003) which dealt with the nature and effect of unenforceable agreements entered into prior to 2007.

 

2)It is therefore averred that the agreement is “improperly executed” in accordance with section 61(1) of the Consumer Credit Act, 1974 and it is further averred that does not contain “all the prescribed terms of the agreement” in accordance with section 127(3) of Act.[/font]

 

 

· Section 127(3) of the Consumer Credit Act 1974 was abolished by the Consumer Credit Act 2006, however Schedule 3, Part 11© of the 2006 Act states that section 127(3) of the 1974 Act remains applicable to agreements entered into prior to the commencement of the 2006 Act. The commencement date of the 2006 Act was 6th April, 2007.

 

 

· The defendant admits that the agreement in question was applied for on 25 November 2000. Section 127(3) of the Consumer Credit Act 1974 therefore applies to the agreement in question.

 

· The defendant will rely on the House of Lords case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003) in applying this interpretation of the law and regulations in relation to unenforceable consumer credit agreements and this agreement.

 

· It is therefore averred that the claimant is barred from enforcement under the Act in accordance with sections 65(1) and 127(3) as it then was.

 

 

3) Even if the claimant can show the actual account was purportedly assigned by reference to an actual document, the account is not an “eligible account” for the purposes of the agreement (as defined by schedule one of the agreement) as it does not constitute “legal, binding and enforceable obligations of the relevant accountholders” because the Consumer Credit Agreement is unenforceable at law under the Consumer Credit Act, 1974.

 

 

· The MONUMENT account mentioned above is not therefore even an account that can be the subject of assignment, as according to the terms of the agreement only “eligible accounts” are contemplated in the agreement.

 

 

·Accordingly, no assignment legally took place or if it did, once the agreement has been shown to be legally unenforceable, the assignment is void ab initio insofar as it relates to account in question.

 

 

· It is therefore averred that the claimant has no valid rights or title to the alleged debt for the reasons outlined above.

 

 

· The claimant therefore cannot enforce the debt, nor can they exercise any other rights in the alleged debt including but not limited to, the right to process any information in relation to the account and the right to report any of that information to credit reference agencies(“CRAs”)

 

 

4) It is therefore averred that the document Cabot submitted is not enforceable (ie: "a point of law (including the construction of a document)") and their case MUST fail and it should be struck out without a trial.

Edited by SHERLOCK
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4) It is therefore averred that the document Cabot submitted is not enforceable (ie: "a point of law (including the construction of a document)") and their case MUST fail and it should be struck out without a trial.

 

You need to take this bit out unless you are applying for their case to be struck out?

 

Im assuming you are just lodging a defence at this stage?

 

This was part of my application to strike out which is why I worded it that way.

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Thanks Brent, have rechecked it and will omit section 4, wasn't sure if I could get it thrown out before a hearing!!

 

looking at CCA 1974 now, before I send can you/anybody check (+ tell me where they are) if have I stated the right paragraphs, they are different to Brents, this is a credit card.

 

Thanks in advance, Sherlock

Edited by SHERLOCK
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  • 4 weeks later...

Merry Christmas people :)

 

The claim has moved on now and I have received my Allocation Questionnaire and Morgn's (solicitor for the claimants) filed AQ.

The CCJ is in respect of an alleged amount of 4000.

 

Not sent mine off yet, Cabot have requested fast track and quote the reason: Although the claim is within the financial remit of the small claims track, the defendant' defence has raised several issues of law which might be more properly determined by allowing more time to deal with such issues, estimated costs of around 1500 pounds.

 

Also they have placed 'yes' for mediation, a months stay and 4 hours for the hearing.

 

Anyway, I will need help with my AQ in the next few days and would appreciate putting together a 'watertight' case, if that is EVER possible.

 

For pre-action protocols: 'you are expected to comply with the relevant pre-action protocols, Have you done so? they state 'No', and 'there is no relevant pre-action protocol in relation to debt claims. We do however endeavour to comply with the spirit of existing pre-action protocols and pre-action conduct in general'.

 

 

This is what I believe at the moment

I go with small claims and am looking at this time to add the info with regard 'unenforceable agreement' in the 'information to help the judge' box.

 

What I don't want is Cabot going off on a tangent, I believe everything else is irrelevant if the original agreement isn't supplied in the correct form.

 

Have to go now but will reply later, thanks for any help at this time,

 

SHERLOCK

Edited by SHERLOCK
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Hi folks,

heres my AQ reply, any advice or ex/inclusions welcome, this has to be handed in tomorrow so any adjustments required sent promptly,

regards Sherlock.

 

Dear Sir/Madam,

 

Date: December 2009

 

In order to manage and/or clarify the claim and for intention to maintain the suitability for a small claims track, I wish to make clear at this point that the relevant issues of law and acts/regulations (with regard to unenforceable agreements) (below) that I will rely on in my defence have already been determined.

 

1) The case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

2) Section 61 of the Consumer Credit Act 1974 and Schedule 6 of the 1983 regulations

 

These dealt with and clarified the nature and effect of unenforceable agreements (entered into prior to 2007) and make it clear that the required information must be included in the same document and not merely referred to in another document.

 

Furthermore, it is with the permission of the judge that the claim (where it is shown to be unenforceable) be struck out under CPR Rule 3.4, section 1.7:

 

1.7

A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

 

Yours Faithfully,

Edited by SHERLOCK
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Furthermore, it is with the permission of the judge that the claim (where it is shown to be unenforceable) be struck out under CPR Rule 3.4, section 1.7:

 

1.7

A party may believe he can show without a trial that an opponent’s case has no real prospect of success on the facts, or that the case is bound to succeed or fail, as the case may be, because of a point of law (including the construction of a document). In such a case the party concerned may make an application under rule 3.4 or Part 24 (or both) as he thinks appropriate.

 

Yours Faithfully,

 

If you are making a strikeout application you will need to use the correct form - an application notice, N244 - and pay the fee (£75) unless you are requesting that the court strike it out of their own volition, which is a different part of the CPR.

 

A letter is not the most appropriate way to do this as it will not be actioned unless its in the right form, and certainly not without payment of the fee.

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OK Brent, thats why your posts are invaluable, even at 3am :shock:

 

I would rather not go to hearing if at all possible, but seems I may have to.

 

I'm assuming the former part of the note is acceptable?

 

I think I will proceed with the strike out when I have to put my defence papers in. The 1st agreement sent to me 1 year ago did not show supposed 'bar code' application stamp shown on subsequent 2nd agreement, alongside not containing the prescribed terms.

 

I'm hoping to go with the 'constructed document' as defined in yr own thread.

 

Thanks again, Sherlock

Edited by SHERLOCK
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OK Brent, thats why your posts are invaluable, even at 3am :shock:

 

I would rather not go to hearing if at all possible, but seems I may have to.

 

I'm assuming the former part of the note is acceptable?

 

I think I will proceed with the strike out when I have to put my defence papers in. The 1st agreement sent to me 1 year ago did not show supposed 'bar code' application stamp shown on subsequent 2nd agreement, alongside not containing the prescribed terms.

 

I'm hoping to go with the 'constructed document' as defined in yr own thread.

 

Thanks again, Sherlock

 

The rest of the note is acceptable but it should form part of your AQ, rather than a separate letter. I assume you have made reference to the "attached letter" in your AQ answers? if not you should.

 

As for the strikeout - you are free to make that application at any time. There WILL however, be a hearing for the application where the law will be argued. So either way if Cabot push it you will have to go to hearing. Its nothing to worry about.

 

But he main thing is they are being VERY cheeky requesting that its not dealt with on the small claims track.

 

You need to point out to the Court in your AQ the provisions of the CPR, especially part 26.6 with deals with the Small Claims Track:

 

Scope of each track

 

26.6

 

(1) The small claims track is the normal track for –

 

 

......

 

(3) ...... the small claims track is the normal track for any claim which has a value of not more than £5,000.

 

 

and more importantly:

 

 

26.6

 

(5) The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that –

(a) the trial is likely to last for no longer than one day; and

 

(b) oral expert evidence at trial will be limited to –

(i) one expert per party in relation to any expert field; and

 

(ii) expert evidence in two expert fields.

 

 

 

So point out the the Court that Cabot THEMSELVES admit that:

 

1. The value is less than £5000 AND

2. The trial would only last four hours

 

So the FAST TRACK is NOT appropriate.

 

They are only trying to get it on the fast track so they can claim costs! You have to stop that happening.

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Thanks again Brent, I have to take this in today and am in the process of typing up word document and attach to AQ.

 

I will now add the extra info, :)

 

Brent, read the strike-out info (n244), there is provision for application of strike-out without hearing, I'm assuming CABOT would be allowed to challenge this??

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Heres the new draft, hopefully everything is in place. Advice sought with regard 'strike-out' in due time.

 

Thanks again Brent........

 

G. Other Information:

In order to manage and/or clarify the claim and for intention to maintain the suitability for a small claims track, I wish to make clear at this point that the relevant issues of law and acts/regulations (with regard to unenforceable agreements) (below) that I will rely on in my defence have already been determined.

 

1) The case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003)

2) Section 61 of the Consumer Credit Act 1974 and Schedule 6 of the 1983 regulations

 

These dealt with and clarified the nature and effect of unenforceable agreements (entered into prior to 2007) and make it clear that the required information must be included in the same document and not merely referred to in another document.

 

Additionally, the provisions of the CPR, especially part 26.6, sets out the parameters with regards suitability for the Small Claims Track:

26.6

1) The small claims track is the normal track for…….

 

(3) ...... the small claims track is the normal track for any claim which has a value of not more than £5,000.

 

And,

 

(5) The fast track is the normal track for the claims referred to in paragraph (4) only if the court considers that -

 

(a) The trial is likely to last for no longer than one day; and

(b) Oral expert evidence at trial will be limited to –

 

(i)one expert per party in relation to any expert field; and

(ii) expert evidence in two expert fields,

 

 

Cabot THEMSELVES admit that:

 

 

1. The value is less than £5000 AND

2. The hearing would only last four hours

 

 

Therefore, it is considered that FAST TRACK is NOT appropriate.

 

 

Yours Faithfully,

Edited by SHERLOCK
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