cabot/Mortimer claimform - Welcome Finance loan 'debt'

[AndyOrch]

Need to return the POs...otherwise they have reason not to comply.

 

Andy

[dipsydave75]

So should i make it out to them or leave them blank?

[dx100uk]

you wait

you'll change them to cabot and they'll send them back saying they need to be made out to the OC.

 

 

you say po's

there should only be one back from cabot for the CCA?

 

 

dx

[dipsydave75]

Two concurrent claims for two accounts. Only one posted on here to prevent unnecessary duplication. Both however received separate CCA/CPR requests and posted in separate envelopes so both claims have separate admin trails/avoidance of doubt/arse covering!

 

you wait

you'll change them to cabot and they'll send them back saying they need to be made out to the OC.

 

 

dx

 

Wouldnt suprise me tbh.

 

So endorse and return with a covering letter saying referring to letter as requested PO now filled in?

[dx100uk]

Or simply send it with a new CCA letter

As I bet they'll say it was a payment unless you do

[AndyOrch]

Make it out to payee...there is nothing to be gained by them

[dipsydave75]

Already endosed on the rear CCA use only. Ok, will write it out to them and send "another" CCA!

[dipsydave75]

Need to make up my defence. Friday being my cut off day.

 

No documentation received. Still awaiting CCA,

 

So i guess in my defence i put in copies of letters of CCA and CPR with proof of delivery and responses received so far and point out to the court that without proof of debt i am not in a position tot defend myself, which goes against civil proceedure principles, nor can there be a debt to answer to if the plaintoff hasnt provided proof of it

 

There is always hope bank holiday caught mortimer clark napping and they have forgotten about this case!

[AndyOrch]

" So i guess in my defence i put in copies of letters of CCA and CPR with proof of delivery and responses received so far and point out to the court that without proof of debt i am not in a position tot defend myself, which goes against civil procedure principles, nor can there be a debt to answer to if the plaintiff hasnt provided proof of it "

 

 

Not quite dave....take a read in the following forum and look at how to draft a holding defence.Try to find the same Claimant/PoC/ debt type..then have ago at drafting one...posting it here first for comment.

 

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-Legal-Successes

 

Andy

[dx100uk]

so more than a month ago you were advised to read a few threads in this forum

and get upto speed rather than following FOTL twaddle.

.. to date the number of threads read here = ....

............ZERO.

 

 

by 4pm Friday 4th sept

is getting near

 

 

dx

[dipsydave75]

I have been reading up, holiday and work shift patterns havent helped.

 

Ive not been using that website, i have followed your advice thus far as you have been the most credible, and i appreciate the guidance

 

Particulars of Claim

 

1. By an agreement between Welcome Finance (WL CF) and the defendant on or around 17/10/2008 (The Agreement) WLCF agreed to loan the defendant monies.

 

2.The Defendant did not pay the instalments as they fell due and the agreement was terminated.

 

3.The agreement was assigned to the claimant.

 

 

The claimant therefore claims XXXXX

 

 

Proposed Defence.

 

 

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.

 

1. Paragraph 1 is denied with regards to the Defendant owing any monies to the Claimant. The claimant has failed to provide any evidence of agreement/contract/breach as requested by a Section 77 request.

 

2. Therefore the Claimant is put to strict proof to:

 

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

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

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

 

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

 

4. 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 consumer credit Act 1974.

 

5. On the 9th August 2015 I made a legal request by way of a section 77 request to the Claimant. The Claimant has failed to comply and therefore is in default of this request and as such unable to request any relief until compliance.

 

6. 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.

 

I was getting ahead of myself. I was trying to prepare my full case when at this stage i just need the above response so i understand.

 

I have previously mentioned the account was subject to dispute and was sold on without the dispute being dealt with, so it it worth me mentioning it at this time as i may expect to rely on it at a later date, or leave it out for now?

 

There is an additional line i have posted 5a,

 

5a. On the 26th July 2015 i made a legal request under the provisions of Practice Direction - Pre Action Conduct - Annex A Section 4.2 (7) for documentary evidence which the claimant would be relying on as evidence of the alleged debt. The claimant has failed to comply with this request, but has indicated that all action is on hold at this time

 

This is based on the CPR letter and the response from Mortimer Clark, is this worth adding to the defence statement due to the ambiguity of the "hold" ?

[dx100uk]

No

Pers I would not pad it out.

 

Kiss

Keep it simple stupid

 

Less is more

 

Dx

[dipsydave75]

Good to go as is then?

[dx100uk]

let andyorch check it over first mind

 

 

dx

[shamrocker]

Ditto what dx said - wait for Andy. If he doesn't get a chance to respond by tomorrow afternoon, I'd personally remove #5 with regards the CCA request.

 

Do you have any proof of the dispute you mention? When the credit was renegotiated, was a new agreement signed?

[dipsydave75]

Yeah, the renegitiation is dated 10/2008. I have the original dispute letter, proof of postage and the acknowledgement but nothing further. The dispute and the acknowledgement are nearly 4 months apart, in that time further threat letters were received from welcome.

 

Cca request proof of postage, return letter etc got all that aswell sitting in my file ready for if and when needed.

 

 

 

Looks good to me. Thanks guys!

[shamrocker]

The renegotiation, with documented evidence in support, makes things a bit tighter for you. Let's just see what they come up with and then decide what approach to take. Did they default you?

 

Using the dispute as your main line of defence might be your only option, which would only serve to reduce the claimed debt rather that let you walk away with a win.

 

You mention another claim - was the agreement/terms also renegotiated like this one?

[AndyOrch]

Requires a little work dave......I will take a look over it again in the morning.

 

Andy

[dipsydave75]

Always thought that would be my strength.

After all if account was in dispute, then default cannot be accurate and therefore incorrect and void and should never have been sold.

 

 

Mortimer Clark argue they are entitled to benefit from but not the liability of the account, surely suggesting this is not an assignment absolute. In which case they cannot take me to court.

 

 

Or they are indeed liable for the responsibility then they would have to prove this and therefore the actual amount they actually paid for the account must be disclosable to prove ownership

- so id like to think anyway.....

 

Taken out earlier but renegotiated at same time.

Again also in dispute over UTCCR charges, ppi etc.

 

Thanks!

[shamrocker]

All that will come out in the wash Dave, so to speak. Let's get the defence sorted and then see what they produce in support.

[AndyOrch]

Be with you shortly dave.

[obiter dictum]

Just shooting from the hip

 

Jones v. Link Financial (High Court)

 

If you make a request for a copy of the agreement under the CCA 1974 the creditor as an assignee of that debt cannot refuse as the assignee will be the creditor if he takes you to court

[dipsydave75]

Thanks!

 

Im liking this reference.......

 

The definition of ‘creditor’, contained in Section 189(1) of the CCA 1974, is “the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor”.

 

 

 

Bear in mind Mortimer Clark are trying to claim that under the assignment they have the benefit but not the liability of the account. They believe they can pursue the full claim amount but any discrepancy remains with Welcome Finance

 

 

Edit:- damn, look as tho im repeating myself, sorry!

[obiter dictum]

http://www.bailii.org/ew/cases/EWHC/QB/2012/2402.html

[AndyOrch]

Particulars of Claim

 

1. By an agreement between Welcome Finance (WL CF) and the defendant on or around 17/10/2008 (The Agreement) WLCF agreed to loan the defendant monies.

 

2.The Defendant did not pay the instalments as they fell due and the agreement was terminated.

 

3.The agreement was assigned to the claimant.

 

 

The claimant therefore claims XXXXX

 

Proposed Defence.

 

 

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.

 

1.Paragraph 1 is accepted insofar that a contractual relationship did once exist in the past.

 

2.Paragraph 2 is accepted insofar that the contractual relation broke down do to disputed amounts of interest being applied and the account being put into dispute.

 

3.Paragraph 3 I have no recollection of ever being served any Notice of Assignment pursuant to the LoP Act 1925 form either the Original Creditor or the Assignee

 

4.On the 9th August 2015 I made a legal request by way of a section 77 request to the Claimant. The Claimant has failed to comply and therefore is in default of this request.

 

Therefore the Claimant is put to strict proof to:

 

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

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

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

 

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

 

6. 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.

 

7. 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.

 

 

I personally would run with the above...check for accuracy and content and amend to suit.

 

Regards

 

Andy