Claimform Cabot/Shoosmiths - Old Welcome Finance 'debt'

[confusedinbristol]

Hi all,

 

wondering if anyone can help

- I originally posted on another forum where I got some advice but not getting any replies to help take this forward.

 

my wife has an old debt to Welcome Finance for a personal loan.

She became ill, and disabled, whilst repaying the loan and had to stop working.

She agreed a repayment plan initially but then her benefits were frozen for a while

and she could no longer pay so welcome passed the debt to Cabot Financial.

 

Cabot haven't even tried to make any contact for about 2 years

- then suddenly started court proceedings last month.

 

Based on figures my wife says she's already paid a lot of the loan back

- but the amount they're claiming doesn't tie up with anything she has

and there's no statements from Welcome been received in years.

 

when we got the claims form we acknowledged, and

requested a copy of the credit agreement, notice of assignment

and default notices under CPR 31.14 (referenced in the claim particulars)

from Shoosmiths (the solicitors Cabot instructed).

 

Despite this going by recorded mail they've not responded (nearly 3 weeks) at all.

 

Meanwhile we also requested the agreements and notice of assignment from Cabot

- who responded to say they don't have it and have requested it from Welcome,

but may take 40 days over it.

 

Tomorrow is the due date for a defence to be filed.

I'm lost as to how to handle it

- we can't accept the claim without any proof of the amounts involved.

 

Any thoughts appreciated as to how best respond?

[National Debtline]

Hello there,

 

I've flagged this with the site team for you. I do hope you get a response soon.

 

Best wishes,

 

David.

[citizenB]

You will need to put in a defence by the due date else they will obtain a judgment by default.

[confusedinbristol]

Thanks for confirming that.

Can I use the fact they've failed to supply the documents as part of the defence?

[citizenB]

I have left a message for those who know about this legal stuff for you.

 

I think you would be looking to include the fact that the Claimant has failed to adhere to pre action protocol - (you say nothing was heard from them for over 2 years)

 

If you could have a look at the link I have posted below and post the answers back in this thread, then we can see what you will need to do. Most important, we need to know the date of issue of hte claim - top right hand corner of the claim and also if you could type up exactly what it says on the claim form, the reason they have issued the claim, that would be very helpful

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**

[confusedinbristol]

Thank you.

 

Responses below:

 

Name of claimant: Cabot Financial (UK Limited)

 

Date of issue XX: claim dated 11 July 2014 - so Wed 13th August (Tomorrow)

 

What is the claim for – the reason they have issued the claim? :

 

I, the claimant claims the sum of XXXX.XX being monies due from the defendent to the claimant under a regulated agreement between the defendant and Welcome F (xxxxxx) and assigned to the claimant on [blank - not completed by them] , notice of which has been provided to the defendent.

 

2. THe defendent has failed to make payment i accordance with the terms of the agreement and default notice has been served pursuant to the COnsumer Credit Act 1974.

 

3. The claimant claims the sum of XXXX.XX plus costs

 

4. The Claimant has complied, as far as is n the pre-action conduct practice direction. Number.

 

(the errors were theres, not mine - dates left blank, the last sentence incomplete, welcome f rather than welcome finance).

 

What is the value of the claim? - just under £2k

 

s the claim for a current or credit/loan account or mobile phone account? - Loan from Welcome Finance.

 

When did you enter into the original agreement before or after 2007? - We believe it was December 2006, but haven't been able to get a copy of the agreement.

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. - claim raised via Shoosmiths LLP by Cabot, not by welcome. They advise in the particulars a notice of assignment has been issued but have failed to provide copy of this and it was never received by my wife.

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? - No, not aware.

 

Did you receive a Default Notice from the original creditor? - no and no statements for years.

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? - no.

 

Why did you cease payments:- - my wife became ill and was no longer earning / benefits were stopped so even the reduced payments agreed were no longer manageable.

 

Was there a dispute with the original creditor that remains unresolved? - no

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt managementicon plan? - she was originally on a payment plan, but couldn't continue it when benefits stopped and they refused to re-negotiate.

 

Advise on another forum led to me sending:

 

A request to Shoosmiths for the default notice, notice of assignment and original agreements referenced in the particulars. This was delivered by recorded post on 25 July but they have not responded at all. Nor to a letter last week (not registered, first class) asking for a response;

 

A SAR was sent to Welcome requesting all data including the agreement - not yet provided.

 

A request was sent to Cabot for the notice of assignment and original agreement. They responded advising this was not on file with them and they'd requested this from Welcome and hope to respond within 40 days.

 

Really appreciate any help with how to defend this.

 

Ultimately she did have this loan - but she's paid a lot back on it, hasn't had statements and we can't even get copies of the relevant paperwork to see if it's been loaded with PPI etc... not willing to acknowlege owing this amount unless they can provide this. Is that a bad stance?

 

 

I have left a message for those who know about this legal stuff for you.

 

I think you would be looking to include the fact that the Claimant has failed to adhere to pre action protocol - (you say nothing was heard from them for over 2 years)

 

If you could have a look at the link I have posted below and post the answers back in this thread, then we can see what you will need to do. Most important, we need to know the date of issue of hte claim - top right hand corner of the claim and also if you could type up exactly what it says on the claim form, the reason they have issued the claim, that would be very helpful

**

[AndyOrch]

Have you made a separate request for the agreement Confused using section 77?

 

Regards

 

Andy

[confusedinbristol]

Hi Andy,

 

Yes the letter to Cabot started:

 

"Please treat this letter as a formal request for you to supply a copy of my Consumer Credit Agreement as is my entitlement under sections 77-79 of the Consumer Credit Act 1974."

 

and included the £1 fee.

 

They responded to this one advising they didn't have that on file and had to request from Welcome, but they hoped to be able to supply it within 40 days.

 

Thanks

 

Steve

 

Have you made a separate request for the agreement Confused using section 77?

 

Regards

 

Andy

[AndyOrch]

Excellent......if you can be around tomorrow I'm sure we can conjure up a suitable defence in response.

 

Regards

 

Andy

[confusedinbristol]

That would be amazing - if I send it by email tomorrow (the moneyclaim site isn't accepting the wife's login) to MCOL's email response will that count as being in time do you know?

 

Totally screwed up my calculation of when I had to respond by

 

Excellent......if you can be around tomorrow I'm sure we can conjure up a suitable defence in response.

 

Regards

 

Andy

[AndyOrch]

Yes that's fine.

[confusedinbristol]

Thank you so much. Will keep an eye on this thread tomorrow.

 

Yes that's fine.

[AndyOrch]

Particulars of Claim

 

 

Name of claimant: Cabot Financial (UK Limited)

 

 

 

1. The claimant claims the sum of XXXX.XX being monies due from the defendant to the claimant under a regulated agreement between the defendant and Welcome F (xxxxxx) and assigned to the claimant on [blank - not completed by them] , notice of which has been provided to the defendant.

 

2. The defendant has failed to make payment in accordance with the terms of the agreement and default notice has been served pursuant to the consumer credit Act 1974.

 

3. The claimant claims the sum of XXXX.XX plus costs

 

4. The Claimant has complied, as far as is n the pre-action conduct practice direction. Number ?

 

Proposed Defence

 

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted I have in the past had financial dealings with Welcome Finance I am unable to recall the precise details of any alleged debt and therefore any indebtedness is denied until such time the claimant can comply and clarify its claim.

I am unaware of any legal assignment and it is denied I have ever received a Notice of Assignment undated as per the claimants particulars.

 

3.Paragraph 2 is denied I have never been served with a Default Notice pursuant to the consumer credit Act 1974.The claimant as an assignee is surmising in its vague and generic pleadings.

 

4.Paragraph 3 is denied.The claimant has failed to respond to my section 77 request dated xxxxxx and further clarification by way of a CPR 31.14 request dated.It is my understanding that the claimant is prevented from seeking any relief until such time they conform and comply with my request.

 

5.Paragraph 4 is denied.The claimant has clearly not complied with Pre Action Protocol and cant even recall the PD reference pursuant it relies upon.

 

6.It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show that they have served Notice of Sums in Arrears since assignment pursuant to the CCA2006.

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

7. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

8. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

9. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

 

 

 

One proposed defence ....check for accuracy and edit to suit.

 

Regards

 

Andy

[dx100uk]

that sar will be interesting...

never known a welcome debt not 90% made from PPI

and other 'compulsory' insurances, and then even more inflated with every penalty fee under the sum levied.

[letter/phonecall/debt management/failed dd etc etc]

 

it will turn out that for a loan of that amount owing

they owe you after reclaiming!!

 

however for the minute, that's a side issue.

 

did she ever contact welcome to express her issues?

if she did, then I bet they signed a new loan agreement at a different PCM for her - opps!!

 

dx

[confusedinbristol]

Thank you so much Andy, will adapt a little and fill in the blanks and get it over by email this afternoon.

 

What is the likely response to this defence do you think?

 

Particulars of Claim

 

 

Name of claimant: Cabot Financial (UK Limited)

 

 

 

1. The claimant claims the sum of XXXX.XX being monies due from the defendant to the claimant under a regulated agreement between the defendant and Welcome F (xxxxxx) and assigned to the claimant on [blank - not completed by them] , notice of which has been provided to the defendant.

 

2. The defendant has failed to make payment in accordance with the terms of the agreement and default notice has been served pursuant to the consumer credit Act 1974.

 

3. The claimant claims the sum of XXXX.XX plus costs

 

4. The Claimant has complied, as far as is n the pre-action conduct practice direction. Number ?

 

Proposed Defence

 

 

1. The Defendant contends that the particulars of claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted I have in the past had financial dealings with Welcome Finance I am unable to recall the precise details of any alleged debt and therefore any indebtedness is denied until such time the claimant can comply and clarify its claim.

I am unaware of any legal assignment and it is denied I have ever received a Notice of Assignment undated as per the claimants particulars.

 

3.Paragraph 2 is denied I have never been served with a Default Notice pursuant to the consumer credit Act 1974.The claimant as an assignee is surmising in its vague and generic pleadings.

 

4.Paragraph 3 is denied.The claimant has failed to respond to my section 77 request dated xxxxxx and further clarification by way of a CPR 31.14 request dated.It is my understanding that the claimant is prevented from seeking any relief until such time they conform and comply with my request.

 

5.Paragraph 4 is denied.The claimant has clearly not complied with Pre Action Protocol and cant even recall the PD reference pursuant it relies upon.

 

6.It is therefore denied with regards to the Defendant owing any monies to the Claimant, the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14, therefore the Claimant is put to strict proof to:

 

(a) show how the Defendant has entered into an agreement with the Claimant; and

(b) show how the Defendant has reached the amount claimed for; and

© show that they have served Notice of Sums in Arrears since assignment pursuant to the CCA2006.

(d) show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

7. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

8. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the Consumer Credit Act 1974.

 

9. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

 

 

 

 

One proposed defence ....check for accuracy and edit to suit.

 

Regards

 

Andy

[confusedinbristol]

Yes - looking forward to getting the pack of information - if indeed they can produce it.

 

When my wife first struggled they did get her in to 'renegotiate' the loan apparently and supposedly gave her a much better rate. Seems very odd that they didn't give her copies of any of this paperwork so I'm hoping to find, as you say, that it's all PPI and other nonsense that isn't a real debt to pay...

 

Will let you know if/when they respond to the SAR.

 

that sar will be interesting...

never known a welcome debt not 90% made from PPI

and other 'compulsory' insurances, and then even more inflated with every penalty fee under the sum levied.

[letter/phonecall/debt management/failed dd etc etc]

 

it will turn out that for a loan of that amount owing

they owe you after reclaiming!!

 

however for the minute, that's a side issue.

 

did she ever contact welcome to express her issues?

if she did, then I bet they signed a new loan agreement at a different PCM for her - opps!!

 

dx

[AndyOrch]

My crystal ball is in for MOT Confused

 

The desired effect is to make the court force them to verify/quantify their claim and force disclosure......if they cant then the claim will be stayed/discontinued or struck out

Lets see what transpires.

 

Regards

 

Andy

[confusedinbristol]

Ha thanks Andy - yes sorry, was asking a bit there

 

Should I be worried about this auto reply from emailing the response in:

 

Thank you for emailing the Money Claim Online (MCOL) Email Account.

When you send an email to the Court and your email requires a reply, we will;

Dispatch a reply to your email usually within 5 but not later than 10 working days of receipt.

(please do not re-send duplicate messages)

 

Will they treat it as received in time do you know?

 

My crystal ball is in for MOT Confused

 

The desired effect is to make the court force them to verify/quantify their claim and force disclosure......if they cant then the claim will be stayed.

Lets see what transpires.

 

Regards

 

Andy

[dx100uk]

Yes - looking forward to getting the pack of information - if indeed they can produce it.

 

When my wife first struggled they did get her in to 'renegotiate' the loan apparently and supposedly gave her a much better rate. Seems very odd that they didn't give her copies of any of this paperwork so I'm hoping to find, as you say, that it's all PPI and other nonsense that isn't a real debt to pay...

 

Will let you know if/when they respond to the SAR.

 

aha, the usual welcome finance trick of the phone operator signing a new agreement on her behalf.

 

AFAIK that's a NO-NO.

so the CCa return from the claimant should have a false signature on itif it comes..no dice cabot!

[AndyOrch]

No that's the usual automated response...your defence will be dated as receipt today

[confusedinbristol]

Brill thanks for clarifying.

 

No that's the usual automated response...your defence will be dated as receipt today

[confusedinbristol]

Hi Andy,

 

Finally getting some responses.

 

* I received a letter (10+ days after filing the defence) from Shoosmiths advising that they would be willing to offer an extension of 14 days after they got hold of the documents I'd requested from them - obviously I'd already filed a defence by this point;

 

* I then (a week or so ago) received a letter from them advising they had received the defence and would consider it and respond in due course;

 

* last Friday we received the copy of the credit agreement & a very vague statement of account from Shoosmiths. It was the wrong agreement (see below), and the statement literally showed 'balance outstanding' no break down of the transactions etc;

 

* today I received the SAR output from Welcome;

 

Having read though the whole SAR pack I've noted a couple of things - not sure if helpful or relevant:

 

* The agreement Shoosmiths forwarded was for the wrong loan. My wife originally took a loan out, then her circumstances changed so Welcome 'rewrote' the loan under a new agreement number. So essentially the loan they're claiming against is settled by even Welcome's own records;

 

* The replacement loan, according to the output of Welcome's system, was written off in 2011. Their system then shows the balance as 0 with a label of 'bad debt - write off';

 

Sadly, well kind of, the loan wasn't top loaded with PPI. And they do seem to have original agreements on file for both the original and rewritten loan. I will scan these tomorrow in case there's anything about them that's useful.

 

Any thoughts on any of these bits?

 

Thanks again for the help so far,

 

Steve

[dx100uk]

write off means they sold it on to cabot.

 

 

so the agreement they might be relying upon is the one signed by welcome staff [the rewrite] not your mrs.?

 

 

dx

[confusedinbristol]

Sorry, no I wasn't clear. She signed both agreements herself in person at their old office here in Bristol.

 

Things have gone a bit weird today:

 

* Letter received from Shoosmiths advising they have sent a letter to the court. Letter says We confirm our client wishes to proceed with the action please arrange for the case to be assigned to Bristol courts (paraphrasing but that was the size of it);

 

* the wife was freaked out by this and decided to ring Cabot and point out their solicitors still havent provided the documents required under CPR 31.14 - Cabot advised her they haven't appointed Shoosmiths and the account was on hold as far as they know!

 

Suspect this will all just be a delay at best....

 

So situation:

 

Shoosmiths - no reply as yet to CPR 31.14 request so I still dont have a notice of assignment, default notices or credit agreement from them. Did receive a letter saying they don't have them but have requested from Cabot and will be happy to allow 14 days from receipt of them to prepare our defence. They sent this over a week after deadline for defence though so that was already in following the guidance on this thread;

 

Cabot - have provided a credit agreement, but it's the wrong one. Jen's loan was 'rewritten' when she first became ill. The agreement is the original loan - marked as 'settled in full' on Welcome's records. Statement they sent only shows the balance - should it not show the payments in / out etc?

 

Welcome - have responded to SAR and provided a big wad of paper. It did have both agreements in along with lots of notes. Ultimately shows debt written off 18 months ago - but no copies of any default notices or notice of assignment there - should there be?

 

Meanwhile I've scanned both credit agreements in case there's anything useful on them - I've hidden all the personal details:

 

Original agreement: https://dl.dropboxusercontent.com/u/19139/originalagreement.jpg

 

Rewritten agreement: https://dl.dropboxusercontent.com/u/19139/rewrite-agreement.jpg

 

Any thoughts on where to go from here?

 

Thanks,

 

Steve

 

write off means they sold it on to cabot.

 

 

so the agreement they might be relying upon is the one signed by welcome staff [the rewrite] not your mrs.?

 

 

dx