Cabot/ Weightmanns claim form old Halifax Overdraft 'debt'

[Dave31]

Dear all,

 

On Friday the 29th April I received a claim from Cabot/ Weightmanns lodged through the County Court Business Centre in Northampton.

The claim relates to an old disputed overdraft.

I am in a bit of a state and would greatly appreciate some guidance as the best way to defend against this claim.

 

Please see below for details

Name of the Claimant ? "Cabot Financial UK Limited" **Weightmanns LLP

Date of issue – 24 April 2015

 

What is the claim for –

"1. The defendant entered into a credit agreement described by the original creditor as XXXX- CURRENT ACCOUNT and having account number XXXXX ("the account")

 

2. The claimant a UK limited company with company number 3757424, is the assignee and legal owner of all rights previously enjoyed by the original creditor in respect of the account.

 

3. The defendant is indebted to the claimant in respect of the amount of £2500

 

4. The claimant claims the said sum plus costs."

 

 

What is the value of the claim? £2500 plus costs

The claim is for a current account (Overdraft)

When did you enter into the original agreement before or after 2007? The account was entered into circa 2001

 

The account is assigned and it is the Debt purchaser who has issued the claim.

 

Were you aware the account had been assigned – did you receive a Notice of Assignment?

 

I didn't receive a notice of assignment but Cabot registered the same OD debt as a "default" in Aug 2014.

They then sent me a spurious "statement of accounts" and letters relating to my "account" with them.

 

Did you receive a Default Notice from the original creditor? not to my knowledge

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

Why did you cease payments?

Dormant student overdraft, the bulk of balance was made up of overdraft charges

*I wasn't receiving correspondence at the time* and the account went into arrears.

Disputed with bank, as I was unemployed at that time and I felt the volume of charges was unfair.

What was the date of your last payment? Circa late 2009

Was there a dispute with the original creditor that remains unresolved? YES

 

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a DM plan?

Yes the bank put me into debt management plan without my knowledge,

I attempted to reclaim charges at the time and communicated my personal financial difficulties.

Bank put my AC into arrears and closed it in 2010.

 

Many thanks for an advice, it's hugely appreciated.

[dx100uk]

who was the original creditor please

 

 

get up on the MCOL site

 

 

and ack the claim

 

 

defend all

leave juris unticked

 

 

get the current account CPR off to the weightys

[Dave31]

Hi Thank you for your response the original creditor was Halifax.

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/showthread.php?387483-LEGAL-CPR-31.14-Request-when-Claim-is-being-made-for-a-Current-Account

[Dave31]

Thanks for the guidance I've acknowledged the claim without submitting a defence and sent them a CPR request. I am guessing I should put a defence together.

[dx100uk]

well you have 33 days to do that by. claimform date is day 1

 

 

lots of time before you need to do that yet.

 

 

time to read around and get upto speed.

 

 

http://www.google.co.uk/cse?cx=partner-pub-0964707606882478:652l7hswbgv&ie=UTF-8&q=The+claimant+a+UK+limited+company+with+company+number+3757424&sa=Search+CAG#gsc.tab=0&gsc.q=The%20claimant%20a%20UK%20limited%20company%20with%20company%20number%203757424&gsc.page=1

[Dave31]

Thanks for all your help dx100.

[Dave31]

Hi,

 

Good morning all,

 

I received a letter today from Weightmanns (attached and redacted) regarding my CPR 31 request

and as expected it's a generic holding letter which seeks to deny my request.

 

As a result of problems with the MCOL website,I've been unable to register online, and ended up filing my acknowledgment of service via email.

 

I did this on the 5th of May, and my AOS was finally acknowledged by the court on the 8th, although I was initially advised they hadn't received the first email;

I forwarded them my first email and their autoreply received on the 5th.

 

Any guidance on next steps would be a great help, for example should I follow up with Weightmanns, file a defence imminently or hold off for a while?

 

Also am I helping the [removed] by drawing out my defence timeline?

 

Many thanks,

Edited May 11, 2015 by dx100uk
behave

[dx100uk]

yep std letter

 

 

why give them more time to magic up paperwork?

 

 

I'd file on time regardless

 

 

dx

[Dave31]

Thanks DX. I will file a defence today, would you be kind enough to have a quick look over it prior to submission?

[dx100uk]

not yet

not needed till by 4pm 26th

 

 

no rush

but no harm in preparing.

 

 

dx

[Dave31]

Hi,

 

I've pasted my defence below and was wondering if you would be kind enough to have a quick look over it.

 

Many thanks,

 

 

"1. The defendant entered into a credit agreement described by the original creditor as XXXX- CURRENT ACCOUNT and having account number XXXXX ("the account")

 

2. The claimant a UK limited company with company number 3757424, is the assignee and legal owner of all rights previously enjoyed by the original creditor in respect of the account.

 

3. The defendant is indebted to the claimant in respect of the amount of £2500

 

4. The claimant claims the said sum plus costs."

 

 

1. It is admitted with regards to the Defendant having use of an overdraft facility with the original creditor Halifax PLC. Notwithstanding this the Defendant contends that the particulars of claim lack detail and are 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.
   

The defendant refutes the claims set out by the claimant in paragraph two. It is denied that the Claimant has any right to lay a claim, due to contraventions of Section 136 (1) © of the Law of Property Act 1925 and Section 82A of the Consumer Credit Act 1974

 

As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed by the Defendant, accordingly the Claimant is also put to strict proof to:-.

 

Provide a copy agreement/facility arrangement along with the Terms and conditions at inception that this claim is based on.

 

1. Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.
   
2. Provide a breakdown of their excessive charging/fees levied to the account with justification.
   
3. Show how the Claimant has reached the amount claimed.
   

e. Show how the Claimant has the legal right, either under statute or equity to issue a claim.

 

f. Show how the Claimant has complied with sections III & IV of Practice Direction:-Pre-action conduct.

 

On receipt of the claim the Defendant sent a CPR 31.14 request to the Claimant dated xxxx requesting a copy of the overdraft facility agreement, Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and Notices of Sums in Arrears under running account credit CCA2006 sec 86C. The claimant has failed to comply with this request.

 

 

3The Defendant denies the claim that the Defendant is indebted to the Claimant by the amount stated in paragraph three. The amount claimed for is made up entirely of default penalties and charges levied on the account by Halifax Limited for alleged late, rejected or over limit fees.

 

 

The Defendant contends that these charge types and the recoverability thereof are susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 as decided in The Office of Fair Trading v Abbey National PLC and others (2009). The Defendant will contend at trial that such charges are unfair in their entirety.

 

Notwithstanding the above it is denied should it be alleged by the Claimant that any monies are outstanding. Having not serviced or acknowledged the account for over six years; when the account was disputed by the Defendant. It is therefore Statute Barred pursuant to the provisions of section 5 of the Limitation Act1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of six years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed, or any relief whatsoever from the Defendant.

 

 

 

[Dave31]

Apologies the formatting has gone a little crazy.

[dx100uk]

I've put up their poc above your defence

 

 

you need to ref to their paragraph numbers

within yours

 

 

have a read of these threads

 

 

http://www.google.co.uk/cse?cx=partner-pub-0964707606882478:652l7hswbgv&ie=UTF-8&q=The+claimant+a+UK+limited+company+with+company+number+3757424,+is+the+assignee+and+legal+owner+of+all+rights+previously+enjoyed+by+the+original+creditor+in+respect+of+the+account.&sa=Search+CAG#gsc.tab=0&gsc.q=The%20claimant%20a%20UK%20limited%20company%20with%20company%20number%203757424%2C%20is%20the%20assignee%20and%20legal%20owner%20of%20all%20rights%20previously%20enjoyed%20by%20the%20original%20creditor%20in%20respect%20of%20the%20account.&gsc.page=1

 

 

they are those using the same POC

[Dave31]

DX,

 

 

Thank you for your reply and assistance up till now. I have revised my defence as you suggested.

 

 

The day of reckoning has arrived and I was wondering if you would kindly take a second look at my amended defence, prior to submission on MCOL.

 

 

Best regards,

 

 

Dave

[Dave31]

"1. The defendant entered into a credit agreement described by the original creditor as XXXX- CURRENT ACCOUNT and having account number XXXXX ("the account")

 

2. The claimant a UK limited company with company number 3757424, is the assignee and legal owner of all rights previously enjoyed by the original creditor in respect of the account.

 

3. The defendant is indebted to the claimant in respect of the amount of £2500

 

4. The claimant claims the said sum plus costs."

 

 

defence

 

Paragraph one is admitted with regards to the Defendant having use of an overdraft facility with the original creditor Halifax PLC. Notwithstanding this the Defendant contends that the particulars of claim as set out do not comply with or even attempt to comply with CPR part 16.

 

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.

 

The Defendant refutes the claims set out by the Claimant in paragraph two. It is denied that the Claimant has any legal right whatsoever to lay a claim, due to contraventions of Section 136 (1) © of the Law of Property Act 1925 and Section 82A of the Consumer Credit Act 1974.

 

On receipt of the claim the Defendant sent a CPR 31.14 request to the Claimant dated 05.05.2015 requesting a copy of the overdraft facility agreement, Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and Notices of Sums in Arrears under running account credit CCA2006 sec 86C. The Claimant failed to comply with this request.

 

As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed by the Defendant, accordingly the Claimant is put to strict proof to:-.

 

 

1. Provide a copy agreement/facility arrangement along with the Terms and conditions at inception that this claim is based on.
   
2. Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.
   
3. Provide a breakdown of their excessive charging/ fees levied to the account with justification.
   
4. Show how the Claimant has reached the amount claimed.
   

e. Show how the Claimant has the legal right, either under statute or equity to issue a claim.

f. Show how the Claimant has complied with sections III & IV of Practice Direction:-Pre-action conduct.

 

 

The Defendant refutes the claims set out by the Claimant in paragraph three. The amount claimed for is made up entirely of default penalties and charges levied on the account for alleged late, rejected or over limit fees. Accordingly the Defendant contends that these charge types and the recoverability thereof are susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 as decided in The Office of Fair Trading v Abbey National PLC and others (2009). The Defendant will contend at trial that such charges are unfair in their entirety.

 

 

Notwithstanding the above it is denied should it be alleged by the Claimant that any monies are outstanding. The Defendant has not serviced or acknowledged the account for over six years, when the account was disputed by the Defendant. It is therefore Statute Barred pursuant to the provisions of section 5 of the Limitation Act1980. If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of six years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

 

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed, or any relief whatsoever from the Defendant.

[dx100uk]

you cant mix sb with anything

 

 

if you are 100% sure its SB

 

 

then simple file the SB defence

 

 

E&W

....

 

The following defence is all you need if it is SB

1 The Claimant's claim was issued on (insert date).

2 The Defendant contends that the Claimant's claim so issued is a claim in contract and is statute barred pursuant to the provisions of section 5 of the limitation act 1980.

.

If, which is denied, the claimant contends that the Defendant is in breach of the alleged contract, in excess of 6 years have elapsed since the date on which any cause of action for breach accrued for the benefit of the Claimant.

.

3 The Claimant's claim to be entitled to payment of £x or any other sum, or relief of any kind is denied.

.

[Dave31]

Dear DX,

A default was registered by the bank against me in August 2010. However I had written to the bank in April 2009 disputing the make-up of the balance that resulted from charges levied on the account up to that date. I would be arguing that the dispute date forms the real cause of action point. Do you think this would be worth pursuing?

Many thanks for your kind help up to now. A donation towards this excellent forum will be forthcoming.

[dx100uk]

pers I'd be removing any ref to statute barring then.

 

 

as for the rest

I'm not legally minded and I would await andyorch's comment on that defence.

 

 

you might find the defence in this thread useful.

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?441148-Lowell-Carter-claimform-Halifax-Overdraft-debt-***Claim-Discontinued***

[Dave31]

Hi,

 

Sadly for me it looks like my case hasn't been stayed

I guess my defence looked too generic.

 

I have received several love letters from Weightmans that I've redacted and attached and

 

today my notice of proposed allocation from from the CCBC arrived.

 

My question is this..

. Should I dance with the devil (without prejudice) and try to reach a negotiated settlement, that doesn't completely break my heart.

 

I am about to be made redundant and the stress of this case has been making me physically sick.

I feel very strongly that I am being extorted by Cabolt.

 

Seeing as the debt they are suing me for is made up of charges, overdraft interest and the original account was in dispute,

when they purchased it for pennies on the pound.

 

I don't feel like I have much fight left in me and I am thinking of folding my aces preflop.

 

 

Should I play to the river?

 

 

Any opinions would be welcomed.

 

 

Many thanks,

 

 

Dave

[dx100uk]

not attachments

if they've not replied to your CPR

I cant see how they can prove the claim?

 

 

dx

[Dave31]

Hi DX,

 

 

Apologies for the slow reply... I guess I've been burying my head in the sand. I have attached the (redacted) letters Weightmanns have sent me.

 

 

I have till the 17th of July to file an N180 form and was wondering if it might be worth me writing to Weightmanns and CC'ing Cabot reiterating my position and drawing their attention to my ongoing complaint to the FOS in reference to this disputed debt. Any other ideas or suggestions would be welcomed.

 

Best regards,

[dx100uk]

all three are std letters they send out to try an frustrate/intimidate a defendant.

 

 

the bottom line is they are begging for money before they probably have to discontinue

ignore the letters.

ensure you get that N180 done

lots of threads here regarding how to fill that in.

 

 

dx

[Dave31]

Hi Dx100,

 

 

I hope you're well, I agreed to mediation on the N180 form the and was wondering what kind of approach I should take.

 

 

Best,

 

 

Dave

[dx100uk]

mediation will ring you

explain the claimant etc has sent no paperwork whatsoever.