cabot/restons claimform - LLoyds OD 'debt'

[Pancho7]

Is it messy to have a mixed SB and lack of assignment defence?

[AndyOrch]

Not so much messy...more that it loses its impact...it either is or its not

[Pancho7]

Good point.

[Pancho7]

Ok Ive had a good look through the successes and their related defences, here is mine-

 

Particulars of Claim

 

1.The Claimant claims payment of the overdue balance due from the Defendant(s) under a contract between the Defendant(s) and Lloyds Bank dated on or about Sep 26 1994

 

2.And assigned to the Claimant on Jun 27 2014.

 

Particulars a/c no [redacted]

 

DATE - [redacted but Sept. 2015]

ITEM - Default Balance

VALUE - [redacted but circa £8k]

Post Refrl Cr - NIL

 

TOTAL - £ [exact amount redacted but circa £8k]

 

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 had an Account in the past with Lloyds TSB bank. However I am unaware of any legal assignment or Notice of Assignment allegedly served with regards to Cabot Financial (UK) Limited.

 

 

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

 

 

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

 

5. On receipt of the claim form the Defendant sent a formal CPR 31.14 request dated 12/10/2015 for a copy of the overdraft facility agreement, Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim.

 

As per the County Claim forms directions this request was addressed to Restons Solicitors Limited and acknowledged in writing 20/10/2015. However, the claimants representative has dismissed any obligation to provide requested documents and has yet to comply.

 

Therefore the claimant in their none compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.

 

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 consumer credit Act 1974.

 

7.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.

 

 

(credit to Essermans very useful post for the foundation of this)

 

How does this sound? Any fine tuning required?

[AndyOrch]

Who is Essermans ? I drafted the above.

 

Andy

[Pancho7]

Apologies Andy its was from a post by Essemess (not Essermans, my eyesight must be going).

 

Credit it where credits due if this originated from you.

[AndyOrch]

You need to add the particulars above the defence to check it.

[AndyOrch]

Done for you

[Pancho7]

Thanks andyorch, Ill file it.

[AndyOrch]

Okay checked thats fine Pancho7...file it when your ready

[Pancho7]

Thanks again Andy

[Pancho7]

Can I ask what the next steps are once the Defence has been filed. Mine was filed online on the 5th Nov and I have had confirmation of receipt [by the court] in the post but nothing else since.

 

I read since that the claimant has 7 days in order to proceed but when should I hear about their decision?

[theoldrouge]

you wait to see if they are going to proceed, ball in their court now

[Pancho7]

Is their a time limit for this?

[theoldrouge]

no ,claim would just remain stayed

[Pancho7]

ok, Ill wait a bit more patiently then.

[Guest]

........

 

I read since that the claimant has 7 days in order to proceed........

 

? after a defence has been filed, a claimant has around 28 days to decide what to do and tell the court so. eg to proceed, make any application, or discontinue

if they dont do anything within that time, then it will be auto stayed by the court.

if they decide to do anything, then you should get notification.

[Pancho7]

Ive come back from a week away with work to find this from Restons in regards to my Defence recently filed-

 

“

We write further to the Defence you recently filed.

 

We note you admit to having held an account with Lloyds Bank in the past but state you are unaware of any legal assignment or Notice of Assignment allegedly served. Your defence then goes on to put the Claimant to strict proof of various things. However in response to your Defence we wish to make the following points:

• It is our understanding that a Notice of Assignment would previously have been served upon you. In any event, we note you do not allege that you are still being pursued by Lloyds Bank for any debt and therefore we do not think you can realistically challenge the assignment of your account.
   
  
• You have put the Claimant to strict proof that you entered into an Agreement with the Claimant. However we respectfully point out that the Particulars of the Claimed not allege you have entered into an Agreement with he Claimant. The outstanding balance relates to a current account facility opened with Lloyds Bank and Lloyds bank subsequently assigned their rights and liabilities under that account to the Claimant.
   
  
• You should already one aware how the outstanding balance has been calculated as you would have received regular payments into and out of the account, along with interest, charges and outstanding balance.
   
  
• Whilst we accept that CPR 31.14 does allow a party to request inspection of a document mentioned in a statement of case, none of the items you previously asked for were, in fact, mentioned in the Particulars of the Claim and accordingly, there is no obligation for the documents you asked for to be disclosed under that rule.
   
  
• It is denied that the Claimant has acted against any pre action Protocol. A letter was sent to you by this firm on the 15th September 2015 which was sent in compliance with the Practise Direction - Pre Action Conduct and Protocols. as no response was received from you, proceedings were issued against you on the 6th October 2015 in line with instructions received from Our Client.
  

 

In view of the information set out in this letter, we dos not believe your Defence is likely to succeed and we therefore invite you to withdraw your Defence in order to avoid continuation of this litigation. Should you be agreeable to doing this, please complete the enclosed form N9A and return it to this office by the 11th December 2015.

 

We look forward to hearing from you further.

"

 

What do you folks think of this?

[AndyOrch]

Not much ...standard response

[Pancho7]

Should I address this at all (i.e. write to Restons) or just wait to see what action is lodged with the court?

[AndyOrch]

Nothing to address...their move next...they can either proceed or discontinue.

 

Andy

[Pancho7]

Thanks Andy

[Pancho7]

Well its been 7 weeks since my Defence has been filed and Ive heard nothing more. My Defence is the last thing logged on money claim online on the 9th Nov. so I understand that proceedings are automatically stayed.

 

Can I ask what my options are at this point please? Can this be stayed indefinitely until they come up with something or can I cause the matter to be discontinued?

[AndyOrch]

" Can I ask what my options are at this point please? Can this be stayed indefinitely until they come up with something or can I cause the matter to be discontinued? "

 

You dont require any options.....yes it can be stayed indefinitely...and no you cant cause it to be discontinued.

 

Andy

[Pancho7]

Just a quick update for the thread, not heard anything since.