Cabot/? Claimform - 2004 Marbles Card 'debt'***Claim Struck Out***

[sasher01]

On the DQ form, there's a question: Do you agree that the small claims tracks is the appropriate track for this case? Yes or No?

 

 

I presume for the sake of paperwork I tick yes, although because of the fact the claimant has failed to produce any evidence I requested to prove the debt is mine I'm inclined to tick no?

[AndyOrch]

Yes thats why they have sent the N180 to complete (Small Claims Track Directions Questionnaire)

[sasher01]

Thanks

[sasher01]

Does the original defence we sent in to the Court get transferred over to the Small Claims for this case?

[AndyOrch]

Your defence is copied from Northampton and sent to the claimant...they have 28 days to respond and signify if they wish to proceed......in your case they have hence the N180 DQ.Once you submit that it is transferred out of Northampton to your local County Court...this is a called allocation of the claim.

 

Northampton,s work is finished.

 

Your Local County Court then deals and instructs you of the next stages...

[sasher01]

Thanks for that andyorch. What are they hoping to achieve going down this route if they have still failed to produce anything?

[AndyOrch]

Hoping to achieve ? To defend the claim ...that's why you submitted a defence......this is the process involved.

[sasher01]

Update time:

 

My wife had a phone call from a nice lady from the mediation service.

 

The conversation didn't take very long at all,

she asked if my wife had received any evidence from the claimant proving that the alleged debt is hers.

 

Wife told her that she has not received a single thing apart from letters stating they are requesting that evidence.

 

The lady then said,

 

"This is the typical actions of Cabot and therefore we can't mediate as they haven't proved the debt is yours

and why would you want to mediate on a debt they cannot prove is yours in any case?"

 

That was the end of mediation.

 

Today we have had a letter from Northampton stating that it's now being allocated to local court

and we have to wait for Judges directions.

 

 

What's likely to happen now?

[oleg]

Exactly as letter from Northampton says and as Andy

explained above.

 

Meanwhile just watch the sun and moon rise and set in their respective orbits.

[sasher01]

Been reading through loads of threads on here trying to find the "Witness Statements" that you have to send to the Courts and the claimants prior to a hearing. Now my eyes hurt and my head is killing me, can any kind person point me to some threads where there is some to look at please?

 

 

Need to get one sorted for the wife shortly.

 

 

Many thanks.

[dx100uk]

so you've had the DQ through then?

 

 

dx

[sasher01]

She's received the paperwork from the local County Court with the Hearing Date set for June and Judges Directions. We and the Claimant have until 23rd April to deliver all copies of relevant documents to each party and the Court. The claimant had until 26th March to pay the hearing fee to the Court. Just need some guidance to the witness statement, would be helpful to view some others.

[AndyOrch]

Here is one I drafted for a Current account...it will give you an Idea of form/ content...please bear in mind your is with regard to a Credit Card and therefore it will differ to legislation.

 

IN THE COUNTY COURT XXXXXXX CLAIM NO:

 

BETWEEN:

XXXXXXXXXXXXX Claimant

-and-

XXXXXXXXX Defendant

 

WITNESS STATEMENT OF xxxxxxxxxxxx

 

I.XXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1.It is admitted that I have held a current account with (Original Creditor) in the past. The account was opened on or around xxx xxxx 19xx and used to facilitate the payment of my income and expenditure.

 

2.It is denied that I entered into an agreement on the 5th October 1998.It is admitted that I accepted a facility/service offered by (original creditor) to be able to overdraw to a limit set and reviewed by (original creditor) on the balance of the above current account.

 

3.It is denied that I exhausted or exceeded the overdraft facility limit rather a residue created by (original creditor) due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being unfairly applied to the balance. I will rely and contend on regulation 5(1) of The Unfair Terms in Consumer Contract Regulations 1999 on this point.

 

4.It is denied that I defaulted on an “ agreement “ an Overdraft Facility is not an agreement but a service facility that can be offered or terminated at any time by the Bank who have full control to withdraw the facility if not happy with the way it’s conducted or serviced.

I understand that this is legally enforced by way of Notice served under Sections 76(1) and 98(1) of the CCA1974 to terminate and recall any lending’s which (original creditor) failed to comply with.

 

5. Again it is stressed that I was never informed of assignment of this debt neither by the original creditor nor the assignee. If the debt was assigned to the claimant on 24th June 2013 why do they state within their Witness Statement they allegedly served me on the 10th July 2014 (12 months after assignment)?.

 

For an assignment to be legally binding it must be pursuant to the Law of Property Act 1925 (sec136).

Assuming it’s a Legal Assignment Only the benefit of an agreement may be assigned.

 

The assignment must be absolute.

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

The assignment must be in writing and signed under hand by the assignor.

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

Again it is denied any Notice of Assignment was ever received.

 

6. It is admitted on receipt of the claim form I did request information pursuant to CPR 31.14

 

Namely to show how I entered into an agreement

Show how the claimant quantified the amount claimed

Show and evidence service of Notice served under Sections 76(1) and 98(1)

And to show how the claimant has legal right either under statute or equity to issue a claim in their name

 

Given that at this stage the claim is trackless and not allocated, CPR 31.14 does apply and the claimant is required to comply to validate and assist in verifying its claim. Although it is a civil request the court expects parties to communicate to try to narrow any differences.

 

Given that the claimant readily issued a claim based on documentation referred to within their particulars one would assume that they would be more than happy to comply to prove that any claim is valid and therefore eradicating any need to defend or proceed to trial.

 

I understand that this avoidance can be sanctioned when the question of costs arise as deemed as being unreasonable.

It is totally unacceptable to suggest as per the Witness Statement point 12 that documents and T&Cs/statements were sent throughout duration of the account and purely an attempt to avoid its responsibilities in proving its claim or rather they do not hold any proof and not expected to validate their claim legally.

 

7. The claimant’s points at 13 & 14 are either an attempt to mislead the court or a lack of understanding of the CCA1974 legislation. You cannot request by way of a section 77/78/79 for copies of an Overdraft Facility arrangement, hence none was made. The claimant is still liable to disclose a copy of the facility arrangement confirmation and Terms and Conditions from that date pursuant to section 61B of the Consumer Credit Act.

My defence stated that the original Creditor failed to serve Notice under Sections 76(1) and 98(1) and are therefore prevented from enforcing or requesting any relief.

 

8. Point 16 of the Claimants Witness Statement is irrelevant and nonsensical

 

9. Point 17 again is irrelevant, neither the claimant nor its Witness are in a position to assume that anything has been previously provided, nor is it their concern. They the claimant in this matter and will have to disclose all documentation relied upon as the basis of their claim at trial.

As per CPR 16.5(4) it is expected that the claimant prove the allegation that any money is owed.

 

10. Point 18, it is the witness’s opinion only that my defense is not valid nor has prospect of success. It is in my opinion that the claimants claim is fanciful contains no proof, and uncorroborated. Totally unaware of the details of debt they have purchased and expecting judgment/relief be granted, relying on the court to base its decision on assumption and basis of probabilities.

 

It is therefore submitted that the claimants be ordered by the court to quantify ,verify, substantiate and disclose all evidence relied upon and should the claimant fail to that their claim be struck out under CPR 3.4 as having no basis.

 

I believe that the facts stated in this Witness Statement are true.

 

Signed ……………….

 

Dated on the day ………………..

 

Regards

 

Andy

[sasher01]

Bloody hell Andy, you're a star. Thank you very much, I'll adapt it to suit later on (busy presently with Grandkids) and post it up here for you to look at for me if you don't mind?

[AndyOrch]

Sure no problem....try to draft it in conjunction with your defence....a WS must be in support of your defence and expand on the points pleaded and in response to the claimants particulars and their WS if you have it to hand.

[sasher01]

Many thanks Andy, I will give it a go. We've still not received anything at all from the claimants since our requests towards the end of last year.

[sasher01]

Andy,

 

 

Would you mind casting your eyes over this please and let me know if it's okay,

 

 

if anything needs to be removed or added etc.

 

 

When I put the papers together for the Court should I make copies of letters received from Scabrats and RightHassle

and enclose them or would they not make any difference as I expect they would be enclosing all those?

 

Thank you.

 

 

IN THE county court XXXXXXX CLAIM NO:

 

BETWEEN:

XXXXXXXXXXXXX Claimant

-and-

XXXXXXXXX Defendant

 

WITNESS STATEMENT OF xxxxxxxxxxxx

 

I.XXXXXXXX the defendant in this claim make the following statement believing it to be true will state as follows:-

 

1. I have no recollection of any Credit Card Agreement between myself and Bank of Scotland (Marbles).

 

2. I have never received a Notice of Assignment or Default Notice in relation to the alleged debt therefore any claim to the contrary is denied.

 

3. I requested information pertaining to this claim from Wright Hassall Solicitors by way of a CPR 31.14.This was posted on the xxxxxxxxxx 2014 and signed as received on the xxxxxxxxxxxxx 2014. The claimants Solicitor, Wright Hassall, responded to this request on 19th xxxxxxxxxxx 2014. They acknowledged they were requesting documentation from their client. To date I have yet to receive a compliant response.

 

4. I requested information pertaining to this claim from Cabot Financial (UK) Limited by way of a Section 77/78 request. This was posted on xxxxxxxxxx 2014 and signed as received on xxxxxxxxxxx 2014. They acknowledged they were requesting relevant documents from the original lender on xxxxxxxxxxxx 2014. Cabot Financial wrote to me again on xxxxxxxxxxxxx 2014 to inform me that they had been unable to comply with my request within the relevant time period. The letter states that due to this non compliance, the alleged credit agreement is currently unenforceable. To date I have yet to receive a response complying with my request.

 

5. It is denied that I was informed or received an assignment of this alleged debt neither by the original creditor nor the assignee.

 

6. It is denied any Notice of Assignment was ever received.

 

 

 

I believe that the facts stated in this Witness Statement are true.

 

Signed ……………….

 

Dated on the day ………………..

[AndyOrch]

Thats fine sasher ...if there is nothing further to state.....5&6 are duplicating point 2...I would remove them.

 

Regards

 

Andy

[sasher01]

Thank you Andy, 5&6 now removed.

 

 

What's your advice regarding sending copies of letters sent and letters received in with the statement to the Court and claimant?

[AndyOrch]

Simply list any documents they you have referred to in either your defence or witness statement that you will be relying on as evidence....IE CPR 31 and CCA requests and any responses...you then exchange that list with the claimant simultaneously and then disclose on the date stated within your directions (Notice of Allocation)

[sasher01]

Thanks Andy, Will update later if any news.

[sasher01]

Well the 23rd April was the date given in Directions as the deadline for paperwork to be exchanged by all parties. We done our bit, submitted papers to the Court and Scabrat but as expected..... wife didn't receive a single thing from Scabrat to substantiate their claim.

 

 

I take it that as they have failed to comply with Judges Directions it's looking good for the wife??

[tedney]

 

I take it that as they have failed to comply with Judges Directions it's looking good for the wife??

 

Yes, I agree with you sasher01, maybe worth checking with the court too to see if they have received anything.

[AndyOrch]

And if they have not inform the court that the claimant has failed to comply with the DJ directions......and that they should impose sanctions.

[sasher01]

Wife tried phoning the Court this morning to find out if they had received anything from Scabrats.

All automated now, you select the department you want then get told an email address. It then hangs up.

 

 

So she has sent the Court an email informing them that she has received nothing, asking the Court if they have and if not asking for sanctions to me imposed on the claimant.

 

 

Regarding sanctions.... what can these be?