Cabot/mortimer - claimform - Old CAP1 Card 'debt'***Claim Discontinued***

[MadMat]

OK I guess it's time to start putting a defence together - couple of questions

1) In the Cabot CCA reply they gave me the original account number, is it worth doing a SAR to cap1 at this stage to find out for sure about the statute barred status. or will it be all over before I get a reply.

2) if I use a holding/prove it defence as i've seen in many other threads, and later find out it is statute barred can I change the defence at a later stage?

Mat

[AndyOrch]

1.Depends on how fast the claim is processed...but you wont have it in time for a defence.

 

2. Not recommended ...you will incure fees and costs to the claimant...do everything in your power now to determine if its SB or not.

[dx100uk]

cant you ring cap1 and ask? now you have full account number?

 

 

dx

[MadMat]

Doh! yes of course I can. Last payment was April 2009. would appear i'm a couple months short

OK I've been poking around the success forums and other similar claims in progress, and have shamelessly lifted and slightly modified the following. am I on the right track?

Particulars of Claim (for reference) 

1 .“By an agreement between Capital One and the defendant on or around 27/05/2004 Cap1 agreed to issue the defendant with a credit card upon the terms and conditions set out Theron. 

2.In breech of the agreement the defendant failed to make the minimum payments due & the agreement was terminated.

 3.The agreement was assigned to the claimant.

DEFENCE:

I contend the particulars of claim as they are vague and generic in nature. I accordingly set out my case below and rely on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. I have held an account with Capital One for credit card services however I do not recall the particular account number referred to and have requested a copy of the alleged agreement pertaining to this claim. As of this date the claimant has failed to comply with my section 78 request and therefore remains in default of s78.

2. I deny having received statutory notices in the form of a Default Notice required under s87(1) of the consumer credit Act. I also deny having received statutory notices in the form of Notice of Sums in Arrears as required by the Consumer Credit Act.

3. I deny receiving any Notice of Assignment Pursuant to the Law of Property Act 1925 and the Claimant is required to prove they are able to bring this claim.

4. 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 claimant has reached the amount claimed for; and

© Show evidence of service of a Default Notice and Notice of Sums in Arrears

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

5. As per Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed by providing full accounting of the amount they have claimed.

6. On the alternative, if 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 Act 1974.

17. 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.

[AndyOrch]

[MadMat]

OK defence submitted, guess I now wait and see what they come up with ?

 

Mat

[MadMat]

and confirmation from the court that defence has been received and served on claimant received today. says they have 28 days to decide if they want to continue.

[MadMat]

Had a letter from Mortimer,

"We are continuing to liaise with our client with relation to the comments detailed in your defence and correspondence. We will come back to you as soon as we have received an update.

In the meantime this matter has been placed on hold and no further action will be taken"

Seems like a good sign to me - am I right that they have 28 days from the day I filed the defence before the court automatically stay the claim ?

Mat

[oleg]

Almost right - except it's 28 days from the deemed date of service to M C . . . oh and defence not defense.

[MadMat]

Just had a big thick envelope back from Cabot

complete set of statements going back to account opening, what appears to be a credit agreement and a set of T&C on separate sheets.

Is this agreement enforceable? looks like my signature, although I don't remember signing it, date is also in my handwriting

It does say in part of the small print - "If accepted" so It looks like it might have originally been part of the application form.

Mat

[dx100uk]

and the T&C's please

that's an application form.

dx

[MadMat]

T&C - all 5 pages. sorry about scanning quality, I don't have a flatbed scanner I've done this with my phone!

 

Mat

[dx100uk]

you've duplicated one page and missed another

look on the application form

it references atleast point 23

cant see that page.

don't think V10# is for an app form of that date

[MadMat]

Ooops sorry try this version.

Thanks

Mat

[MadMat]

And this mornings post brings another big envelope, with an exact duplicate copy of yesterdays info! I'm wondering if Cabot might have mistakenly sent me the copy they intended to sent to Mortimer?

I've been reading through some old similar threads,

and notice that reclaiming charges is mentioned in several of them

- is this something that I should look into,

the statements I've been sent by Cabot show that the outstanding balance is pretty much all made up from £12 a time late payment and overlimit fees!

Mat

[dx100uk]

only in relation to poss mediation IF that happens

 

 

CISheet v101.xls

[MadMat]

My Defence was recieved by the court on 12th Feb, the Letter I got from them confirming that was also dated 12th Feb, Will I see a new entry on MCOL if the case is Stayed? last entry on there is the defence accepted 12/02/15.

 

Assuming the letter to Claimant was sent on the 12th how long do they allow for service? 28 days was last thursday . . . .

 

Mat

[dx100uk]

they have all the time they like

ball is in their court

 

 

dx

[MadMat]

Ahh Ok my misunderstanding

 

The letter I got from Northampton says that the case would be stayed if they don't respond in 28 days! I assumed that it being stayed would be good for me as they'd then have to pay to apply to get the stay lifted!

 

Mat

[MadMat]

It's now over two months since I sent in my defence, and still no response, which I guess is a reply in it's own right!

 

As it's very likely I won't be coming back to this thread again, and I'm going to stop my daily checks of the MCOL site for any updates, I'd like to say a big thankyou to everyone that made useful replies to my thread, Especially dx100uk and Andyorch.

 

Thanks all!

 

Mat

[AndyOrch]

Two months is not long on a stayed claim Mat...you may well be returning if the claimant wishes to proceed...but put this behind you for now.

You will know if they wish to proceed by notice of the court.

 

Regards

 

Andy

[MadMat]

You were Right as usual Andy!!

 

Just before Xmas I received a letter from Mortimer offering to settle for 50% via a Tomlin order. Giving me 30 days to reply.

Nothing at all received from Northampton.

 

Just wanted to double check that my intended plan of completely ignoring this letter was the correct one!

 

Mat

[AndyOrch]

Its your choice Mat you can ignore or you can accept...are they bluffing with the 30 days or would they make application to proceed their claim ?

 

Do they state what will happen after 30 days?

[MadMat]

It says the offer will be withdrawn after 30 days, doesn't really say anything else. one section mentions "Further court procedings" but doesn't specify what or when

 

Mat

[AndyOrch]

Well its choice whether to disregard it or enter into negotiation to attempt to settle it...gut instinct is that they wont proceed and the claim will remain stayed...but it cant guarantee that.