Cabot Financial - Defending a court claim

[rhodium78]

Unfortunately if opposing counsel are upto their case law, then the point of penalty charges in DN making it invalid won't hold water. So in that respect, you are blessed and may you continue to be.

 

So called penalty charges or interest do not invalidate a DN. Thanks to the shenanigans of the Rankines, and their numerous cases where all the normal defences were pleaded, the Court held that it would impose an unfair burden on Creditors if they had to work out whether a sum was fair or not just because of some other piece of legislation when the DN was issued. No one has a crystal ball to determine if at a later date the charges may be unfair hence the Court will allow Creditors to put down charges contractually owed under the agreement. Note, I said contractually owed and not lawfully.

 

It was the 2008 judgement, para 57.

 

I am not saying don't plead what you want to plead, I am showing the alternative pleading in a Court which could nullify that defence and to be honest, from a logical point of view, it does make sense for the Court to have it construed it that way.

[Rhia]

Rhodium I thank you for this as it is always useful for someone "outside" to unpick the argument.

 

The Rankines and their get rich quick schemes have caused lots of issues. My barrister was astonished at the judgement and was of the opinion that at some stage it will have to be challenged.

 

We here are doing our best. However, getting back to Sherlock's situation any help, advice, picking apart the seams of an argument are most welcome.

[rhodium78]

Unfortunately I haven't got time to look into the thread in detail only catching glimpses but I have to strongly recommend that the OP has to decide whether to fight this or to sign the TO. If he/she doesn't want to fight, and they can afford more than the £5/month, then it is recommended to do so but as long as they understand the liability they incur. They can even pay a lump sum initially to bring the debt down and then have payments per month but that would have to go into the TO.

 

If they want to fight, then it might be worth investigating the defence of "set off" (CPR 16 or something, can't remember right now) in addition to the other defences. Haven't had a chance to delve into the case law recently so it might be worth investigating, if not for this OP, for someone else. But an accurate figure is required for defence of set off as regards the alleged penalty charges and calculations of the interest accordingly which would be wrong if it is excessive. That as well as the usual s 127(3) if agreement pre-April 2007 , DN failures, lack of NoA, etc. should be it.

 

Apologies if the post wasn't exactly useful, juggling too much at the moment.

[Rhia]

Rhodium - many thanks for this. Sometimes just a nudge in the right direction is as good as anything.

[JonCris]

Rhodium I thank you for this as it is always useful for someone "outside" to unpick the argument.

 

The Rankines and their get rich quick schemes have caused lots of issues. My barrister was astonished at the judgement and was of the opinion that at some stage it will have to be challenged.

 

We here are doing our best. However, getting back to Sherlock's situation any help, advice, picking apart the seams of an argument are most welcome.

 

Rhia like Durrant many in the legal profession consider Rankine to be bad law which is why some courts are ignoring both

 

Anyone relying on either of these arguments takes a big risk particularly if they reach a higher court

[rhodium78]

Hey JC, can you clarify which arguments are a big risk?

 

Unfortunately it is not for the lower courts to disregard the ruling of a higher court. Until it goes upto the House of Lords for conclusion (as it has already been upto the Court of Appeal), then all lower courts are stuck with that decision and any deviation from that can give Creditors and Debtors alike, grounds for appeal if any judgement was against something which was already ruled on.

[Hadituptohere]

Pretty much as the wakesman ruling in carey, shame the lower courts seem to be disregarding the higher courts and the house of lords

[JonCris]

Pretty much as the wakesman ruling in carey, shame the lower courts seem to be disregarding the higher courts and the house of lords

 

 

Quite & not just in Carey The lower courts are often ignoring not just precedent but also statute. Contrary to the proper role they are making law on the hoof & the public are only now becoming aware of it. This is mainly because of the bank charges campaign & of course the internet which has allowed people to instantly communicate thereby revealing such perverse Judgments

 

Its been revealed that some judges are very property biased & some who treat the LiP with complete & utter contempt

[SHERLOCK]

Well it appears that the thread has certainly gone up a level or 2!!

 

I will try to outline the important details of the thread here, in order to make things a little easier:

 

• Card initially taken out in 2000 with Monument (Providian)
  
• Account defaulted around Jan 2005
  
• Pay monthly amount thru' Payplan since 2006 (To Cabot) and have missed a few payments
  
• CCA for copy of agreement - Oct 2006
  
• Receive 'reply card' agreement - Mar 2007 (Cabot state that letter encloses 'Original Application Form') http://www.consumeractiongroup.co.uk/forum/show-post/post-2584769.html Please note that the reply card in post 37 above contains an 'application form' barcode. This is a 2nd copy sent when requested after the ccj claim was filed. The 1st copy sent did not contain the barcode.
  
• Series of Cabot court threat letters
  
• CCJ Claim Form received - 0ct 2009
  
• Defence filed as per post 50 - http://www.consumeractiongroup.co.uk/forum/show-post/post-2667887.html
  
• Received copies of ' Signed Agreement, Relevant Terms and Conditions, Representation of the Notice of Assignment sent to customer In Mar 2005 (Monument headed letter and details in fine print at the bottom) and a Cabot Statement of Account (MAR 2005 - PRESENT)
  
• requested / granted 2no stays pending delivery of accounts from original lender
  
• CCA Monument - MAR 2010
  
• List of default charges received from Barclaycard (ASSUMING OWNER OF ACCOUNT) 400 pounds in late / overlimit fees.
  
• Letter Before Action to Barclaycard (insufficient information) - June 2010
  
• Received 2 no. offers to sign Tomlin Orders from Morgans' (small amounts over 400/500 months).
  
• Case stayed until mid August.
  
• Official complaint to ICO regarding non-compliance by Barclays made - June 2010
  
• Received letter from Morgans - to request if I am willing to sign the Tomlin Order prior to receiving information from Barclays? End of June date to reply or 'We shall write to the court enclosing an Allocation Questionaire and ask for directions for progression' !!
  

Hope this helps,

 

 

SHERLOCK

Edited June 24, 2010 by SHERLOCK

[Rhia]

It does Sherlock. Can I have my tea and return a little later?

 

BTW do the T&Cs match the original appn form?

 

Later.

[rhodium78]

Haven't looked into your case in detail but you really need to decide whether to sign the TO or not. Once you have decided that and you believe you really have an unenforceable agreement as per s 127(3), you can then pursue the following avenue.

 

The notice below can be served at any time during the proceedings but no later than 21 days before the trial (didn't quite catch when your trial is so not sure if it is relevant but thought I would mention it for completeness). You need to send the opposing side a letter or N266 asking them to admit the following facts:

 

1.) That the agreement they are relying on does not contain the prescribed terms.

2.) That the DN you have is not a compliant DN.

 

You can use it to get most of the arguing in Court out of the way, hence minimising, but not alleviating the risk that a Judge will look adversely on you. The opposing solicitors can always not agree with you or tell you that you are wrong but if you are proved right when they ignored the request or if they didn't admit the facts, it has adverse costs against the opposing party as per CPR 44.3 and 44.4 and in turn you can add to your costs, research time and disbursements.

 

You obviously put a covering letter stating why it is not compliant in detail explaining each point for the other side to understand and also then include two copies of the letter below:

 

The formatting of this letter is broken here so I have uploaded a doc fomat of it.

 

 

[in the high court of justice

[Chancery or Queen's Bench] Division

[……… District Registry]

Claim No. [HC/HQ]…

or

in the ……… county court

Claim No. …]

 

Claimant A. B.

 

and

 

Defendant C. D.

 

notice to admit facts

 

 

The Defendant gives notice that you are requested to admit the following facts in this claim within 7 days from the service of this notice, saving all just exceptions to the admissibility of such facts as evidence in this claim. The facts the admission of which is required are:

 

1 that the Credit Agreement does not contained the prescribed terms as per s 61(1)a of the Consumer Credit Act 1974; and

 

2 that the Default Notice does not comply with s 88 of the Consumer Credit Act 1974.

 

The Defendant confirms that any admission of facts or part of case will only be used in this claim.

Dated ……… 20…

 

 

 

(Signature)

(Defendant)

 

 

Please sign and return one copy and keep the other copy for your records

----------------------------------------------------------------------------------------------------------------------------

 

admission of facts pursuant to notice to admit

 

 

The Claimant [admits / denies] the facts set out above and in the Schedule, [without any qualification or limitations / subject to the qualifications or limitations indicated] and saving all just exceptions to the admissibility of such facts, or any of them, as evidence in this claim. The admissions are made for the purposes of this claim only, and on the basis that they will not be used on any other occasion or by any other person.

Dated ……… 20…

 

 

 

(Signature)

(Claimant, Solicitor)

 

 

Position or office held ……… (if signing on behalf of firm or company)

 

 

Schedule

 

 

1.) that the Credit Agreement does not contained the prescribed terms as per s 61(1)a of the Consumer Credit Act 1974;

 

Qualifications or limitations, if any, subject to which they are admitted.

X

X

X

X

X

X

 

 

2.) that the Default Notice does not comply with s 88 of the Consumer Credit Act 1974.

 

Qualifications or limitations, if any, subject to which they are admitted.

X

X

X

X

X

X

 

 

 

Dated ……… 20…

(Signature)

(Claimant, Solicitor)

 

 

Position or office held ……… (if signing on behalf of firm or company)

 

Notice to Admit facts.doc

[Rhia]

Marvellous Rhodium78. I have been reading through the thread again and it does come down to 61 (1) (a) and (as the agreement dates from 2000 - CCA 127 (3) and a dodgy DN.

 

This action suggested by Rhodium78 is CPR 32.18 and I had forgotten about this. Here's the form if you want to use it.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n266_0499.pdf

 

You could always add an informal note to Cabot/Morgans marked Without Prejudice inviting them to discontinue the case. Some would suggest call them informally but I am a great one for putting things in writing.

 

With regard to the DN not being compliant although I do believe you can get these charges refunded by the OC you have a letter of statement of charges from Barclays (who originally owned the Monument brand) that £400 was applied (not including interest). The interest should possibly run in excess of £1,000 or more but for now this is not the issue.

 

Use the statement from BC in your Notice to Admit application as this shows the amount defaulted is incorrect. I can give you the legal argument for the charges being penalties but BC have now thoughtfully admit to the charges anlisted them for you and therefore the DN is not compliant.

 

Neither is the assignment and Cabot won't want you digging around that area.

Edited June 24, 2010 by Rhia

[SHERLOCK]

Rhodium, Rhia, JC and all, thank you for taking the time to advise on this.

 

1st of all, I am open to all suggestions. Do I really have that much to lose by pushing Cabot.

 

2nd, there is no trial date set, stay granted until middle of August.

 

3rd, as to the Terms and Conditions being the same as original, I won't / don't know this as I haven't got them or received them from Barclays. The copies sent from Morgan were a photocopy of a set of T&C's (4 pages, leaflet type, photocopied side-by-side)

 

4th, you mention DN (assuming this refers to a Default Notice) I neither possess or have received one - copy or original.

 

5th, at this time, am I to serve just the 'Notice to Admit' or also the CPR request? Also, how can I refer to the DN if I haven't seen it, can I leave the DN part off for now? Additionally do I send copies to the court at this time?

 

In laymans terms, my arguments are:

 

• I have no Default Notice. This may / may not turn up with statements.
  
• The claimed amount is wrong due to unlawful charges and as such the figures within the 'particulars of claim' and the TO (do I still refer to the TO at this stage or leave it out?) are also incorrect. The POC's state: The claimant is the assignee of a debt(s) from Monument Credit Card Ref *******, Notice of Assignment having been given to the Defendant in writing. Despite demand for Payment, 3800, remains due. The Claimant claims 3965 (85 court fee and 80 Sol's costs) and interest under s.69 County Courts Act 1984 and costs.
  
• I require strict proof as to make up of assigned balance of 3935 as stated on Cabot statement of account. Again will not know until statements arrive.
  

Regards, SHERLOCK

Edited June 25, 2010 by SHERLOCK

[SHERLOCK]

OK Folks,

 

I have put together a CPR REQUEST for the Default Notice, Termination Notice and original creditor 'assigned balance' confirmation letter (not sure if this bit is strictly proper though?)

 

 

 

 

CPR 31.14 Request

 

 

 

 

 

On **TH Oct 2009 I received the Claim Form in this case issued by you out of the Northampton County Court

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest your claim.

 

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.

 

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your Particulars of Claim and / or required to substantiate your rights to, validity of, and assigned balance, with regards the above account:

 

 

1, the default notice

2, the termination notice

3, Original Creditor ‘assigned balance’ confirmation letter.

 

 

Your claim has been allocated to the small claims track for determination, in consequence, the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise.

 

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) 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 31.14 request.

 

 

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. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

 

If you are unable to comply with this request 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 this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, 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 do hope this will not be necessary and look forward to hearing from you.

 

 

yours faithfully

 

Additionally done the 'Notice to Admit ' but taken out the DN part for now. Once / if I receive this, I will post it up for clarification that it does not comply with s.88 of the Consumer Credit Act 1974 and I will deliver a 2nd admit notice for this.

 

 

 

notice to admit facts

 

 

The Defendant gives notice that you are requested to admit the following facts in this claim within 7 days from the service of this notice, saving all just exceptions to the admissibility of such facts as evidence in this claim. The facts the admission of which is required are:

1 that the Credit Agreement supplied does not contained the prescribed terms as per s 61(1)a of the Consumer Credit Act 1974

The Defendant confirms that any admission of facts or part of case will only be used in this claim.

Dated ……… 20…

 

 

(Signature)

 

(Defendant)

 

 

Please sign and return one copy and keep the other copy for your records

 

 

----------------------------------------------------------------------------------------------------------------------------

 

 

 

admission of facts pursuant to notice to admit

 

The Claimant [admits / denies] the facts set out above and in the Schedule, [without any qualification or limitations / subject to the qualifications or limitations indicated] and saving all just exceptions to the admissibility of such facts, or any of them, as evidence in this claim. The admissions are made for the purposes of this claim only, and on the basis that they will not be used on any other occasion or by any other person.

Dated ……… 20…

 

(Signature)

 

 

(Claimant, Solicitor)

 

Position or office held ……… (if signing on behalf of firm or company

 

 

Schedule

 

 

 

Facts admitted

 

 

Qualifications or limitations, if any, subject to which they are admitted.

 

 

 

That the Credit Agreement is not compliant with s 61(1)a of the Consumer Credit Act 1974.

 

 

 

 

 

 

Dated ……… 20…

 

(Signature)

 

 

(Claimant, Solicitor)

 

Position or office held ……… (if signing on behalf of firm or company)

 

Thanks again, any further advice before I send the requests off?? Am I on the right lines? Have I included anything I shouldn't? Additionally, I do not think it unreasonable to state that I am not in a position to sign the TO (but will continue with pro-rata payments thru' DMP) pending delivery of requested documents..

 

Regards, SHERLOCK

Edited June 25, 2010 by SHERLOCK

[Hadituptohere]

Sherlock have you had sight of the Deed Of Assingnment, if not then this needs to be in your CPR request.

Am sure I will be corrected if wrong

 

Hadituptohere

Edited June 25, 2010 by Hadituptohere
wrong CPR

[SHERLOCK]

Hello, HIUTH,

 

Is that the same as 'Notice of Assignment'?

 

I did make a request for some documents after the claim was filed but it wasn't under CPR.

I received a 'representation of a letter' giving notice of the assignment of the debt due (the account being sold to Kings Hill (No.1) Limited), supposedly sent in March 2005.

 

SHERLOCK

[Hadituptohere]

Hi Sherlock

 

No the Deed Of Assignment is their proof that they have purchased this debt and are entitled to claim the benefits of the Original Agreement, this is required for a number of reasons within CCA

 

If Cabot cannot prove they have purchased both the rights and the duties then this is another arrow to your bow.

 

Hadituptohere

[SHERLOCK]

Thanks, is that what I am asking for in CPR letter??

 

3, Original Creditor ‘assigned balance’ confirmation letter.

 

 

Does the DoA contain debt amounts etc?

 

Also Rhodium, do I need state the terms that are missing from the original agreement or let Cabot tell me what is / isn't there?

 

Thanks, SHERLOCK

Edited June 25, 2010 by SHERLOCK

[Rhia]

Yes agree with HIUTH. Get a copy of the deed of assignment also known as the sales assignment. It can be a game changer for various reasons which we can go into when you have obtained it. Use CPR request to obtain it.

 

Cabot (indeed all of them) are very reluctant to release these but there is no reason why you should not get a copy. They can redact any business sensitive details (and tell them that if they start squealing).

 

I think this is a good plan and you will hit them with the Notice to Admit, the CPR request and (without checking back) you have also issued Subject Access Requests to both the original creditor and Cabot haven't you?

 

Personally I would add the DN (yes it is default notice sorry to confuse with initials) to the Notice to Admit but it is your shout.

 

Send all this off. Light blue touch paper and retire. You just need the pressure on them to get them to release as much information as you can get and use this to rip their arguments apart.

[SHERLOCK]

Problem with DN, I cannot state what is wrong with it as I haven't seen it.

 

Rhodium said I that I need to provide covering letter stating 'why it is not compliant in detail explaining each point for the other side to understand'.

 

And do I send copies to court?

 

Thanks again

[Hadituptohere]

Thanks, is that what I am asking for in CPR letter??

 

3, Original Creditor ‘assigned balance’ confirmation letter.

 

 

 

Thanks, SHERLOCK

 

 

No you will need to add to the CPR request you've written 'A Copy of the Deed Of Assignment/Sale Agreement'

 

Hadituptohere

[Rhia]

Apologies Sherlock - you did say you hadn't seen the DN. In that case request that in the CPR too. I agree you cannot argue it is faulty without a good examination of it.

 

It should have been sent by the OC. If you get or have any SAR details they may look like boring, innocuous pages of notes. Study them carefully as you will/may spot discrepancies in them that can trip the legal argument up. Don't just file them away.

[SHERLOCK]

Ok, so will re-sort CPR letter to include Deed of Assignment alongside:

 

1, the default notice

2, the termination notice

 

Still waiting for statements etc. sent the Letter before Action on 3rd June....do I have to just sit tight on this?

[rhodium78]

Just to add to the words of wisdom from the rest of the other caggers is that if you don't have the Default Notice (DN), then you can ask them to admit that no DN was sent out to you. Obviously amend the covering letter explaining what is wrong. Also, I am not sure when your first hearing is and there is a time constraint of no later than 21 days before the trial for the Notice To Admit to be sent so you can't send it unless your trial is within that time frame.

 

If you ask for the debt sale document or as some caggers have stated the deed of assignment which doesn't have to be a deed by the way, you would most probably get a master agreement which won't contain your account whilst there is a specific sales sub-agreement again for specific accounts which could be mentioned in a paper schedule or other media but which are sold under the auspices of the master agreement mentioned above.

 

The assignment argument is complex and hence you will need to know how many assignees are in the chain before it got to you as there is a defence if there are multiple assignees and they have not notified you but that is for later.

 

I can't see anywhere what they referencecd in their Particulars of Claim so be wary of CPR 31.14 requests. The other caggers who are more upto par with your case can offer guidance on this.

[SHERLOCK]

Thanks, there is no trial date set yet.

 

I added a little bit in on CPR Request, is this allowed? the bit in red:

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your Particulars of Claim and / or required to substantiate your rights to, validity of, and assigned balance, with regards the above account

 

 

The POC's state: The claimant is the assignee of a debt(s) from Monument Credit Card Ref *******, Notice of Assignment having been given to the Defendant in writing. Despite demand for Payment, 3800, remains due. The Claimant claims 3965 (85 court fee and 80 Sol's costs) and interest under s.69 County Courts Act 1984 and costs.

Edited June 25, 2010 by SHERLOCK