old stayed claim Cabot/Vanquis card - Is this now SB'd?

[heyes]

I recently received a CC claim form regarding a Vanquis card from 2008.

 

Leaving aside the issue of whether I did/didn't have such a card... my view is that they probably speculatively issued the claim, hoping for a default judgment knowing they didn't have the supporting paperwork and might not be able to get it.

 

So far...

 

Claim issued August 19, 2014.

MCOL acknowledgment filed Aug 25.

CCA/CPR letters sent by me August 26.

CCA/CPR replies sent to me Aug 28.

Defence due by Sept 21?

 

CPR from Mortimer Clarke states: 'Taking client instructions... will come back asap... our client agrees to the extension of 28 days for you to file defence - please notify Court of this.'

 

CCA from Cabot states: 'We don't have it... requesting from original lender... should be able to get within 40 days.'

 

 

Looking ahead...

 

The 28 days suggested by MC delays defence due date to Oct 19?

 

Allowing for delivery to me, the '40 days' suggested by Cabot is beyond the original defence-due date, and very close to the revised date suggested by the MC letter.

 

I didn't ask MC or Cabot for an extension - and neither need nor want one. I have other stuff to do, and don't want this dragging on.

 

I'm inclined to file my defence now, basically one of 'I deny the claim; prove it.'

 

 

Questions...

 

1 How specific does my defence need to be - I'm assuming I can't just say ' I deny it, prove it' without stating reasons?

 

2 If Cabot aren't able to produce the supporting paperwork in time, will the case likely be stayed? And if so, for how long, or is it indefinite?

[AndyOrch]

Hi Heyes and welcome to CAG

 

If you could provide a little history and detail...read the following and post your responses here

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-April-2014**

 

Regards

 

Andy

[heyes]

If you could provide a little history and detail...read the following and post your responses here

 

Thanks.

Some of that detail is above, and what's below should fill the gaps.

 

Particulars of claim: By an agreement between Vanquis ('VANQ')and the Defendant on or around 27/10/2008 VANQ agreed to issue the Defendant with a credit card upon terms & conditions set out therein. In breach of the Agreement the defendant failed to make the minimum payments due & the Agreement was terminated.

The Agreement was assigned to the claimant on 23/02/2011

The claimant therefore claims 1xxx.xx.

 

That was during a less than ideal period of my life, in which various debts accrued and not all of which were settled. For various reasons I've no clear recollection of full events... and specific to this issue what default notices/other correspondence has been received.

 

So, it's too fresh to be statute barred, and my defence is one of 'I may/may not have had such an agreement. I've asked the claimant to provide the paperwork to which I'm legally entitled and they can't do it within the required timeframe, so let's get on with it.'

[AndyOrch]

Excellent and as per the link you are aware of the time frame to deal with this claim...acknowledgement of service and defence etc.

 

Regards

 

Andy

[heyes]

Excellent and as per the link you are aware of the time frame to deal with this claim...acknowledgement of service and defence etc.

 

Thanks.

 

From reading and asking I have an overview of the process etcetera, but don't know how bold I can be with a defence.

 

Leaving aside the morality of whether I owe the money, I'm aware that often such cases are brought without following correct legal procedure and in hope/expectation of a default judgment... and that some fail because the appropriate supporting evidence can't be produced by the claimant.

 

That's the focus of my defence.

 

The 2008 date of the stated agreement (and several years since) is during a period in which much of my life has been less ideal, and about which I've less than ideal memory. I've had various cars, wives, bank accounts, utility/other service suppliers, etcetera... details of which are often at-best vague.

 

I'm happy to defend on the basis of this, but simply don't know whether a statement to the effect of 'I have no clear recollection of this, and the claimant hasn't provided any supporting evidence' is enough or simply likely to p**s-off the court and so favour the claimant, even though the onus should be on them to prove their case rather than me disprove it.

 

Of course, if in response to my defence the claimant then produces appropriate supporting evidence, I'll respond accordingly - including a modified defence or possible admittance.

 

But for now though, my uncertainty is about how specific and robust my filed defence should be.

[AndyOrch]

Thats just the point you dont need to be bold with your initial defence...you will note from the claimants particulars of claim the vagueness...be it intentional or not I rather assume they dont really know what they are claiming...nor do they care....apart from an account number your details and balance,,,,history does not follow assignment.

 

So like wise your initial response would be yes you recall having in the past held credit agreements (emphasis on agreements) with Vanquis but you dont recall this alleged account number or amount claimed or the precise nature of any breach.You are expected to admit or deny the claimants points of claim and anything you don't will be accepted as an admittance.

 

Anyway back to the defence you therefore in an attempt to clarify the basis of this claim requested information pertaining to the claim by way of a CPR 31.14 request and also a section 78 request...both I assume at this stage the claimant has failed to respond to (Dont forget the above they dont have paperwork or history and will then have to chase the OC). This takes time and costs and having purchased your debt for say 10p in the pound it then becomes none cost effective to prove and would diminish their profit in this investment.

 

It is your legal right to examine and question any alleged claim and seek clarity and proof of a debt...forget the morality side for now...

 

Regards

 

Andy

[heyes]

Thanks.

As noted in the initial post, CCA/CPR requests have produced a response of

'we don't think we can do it within the original timeframe and so agree an extension'

(even though I didn't ask for one).

 

 

Further, the CCA response suggests it'll be very close to the end of any extension..

. hence my view that I should file now rather than wait to see if they eventually did produce anything

- because they'd have further time to do so anyway once a hearing had been set.

 

I'll research a bit more and draft a defence, which I'll probably post here before filing.

 

Almost forgot... why the emphasis on plural agreements - to suggest vagueness?

Edited September 2, 2014 by heyes

[AndyOrch]

To suggest you may have had many and with various creditors...hence not recalling this one with particularity.

[heyes]

To suggest you may have had many and with various creditors...hence not recalling this one with particularity.

Thanks. Does it have to suggest 'many with various', or can it be something like 'Although I've previously had various credit cards, I have no clear recollection of this alleged account, and have requested relevant information from the claimant.'?

[AndyOrch]

Yes its your choice how you respond...but you will always start with...

 

Paragraph 1 is admitted or denied so it must follow and fit in with that plea

 

Example

 

Paragraph 1 is admitted ...I have held various agreements with Vanquis and other Credit Card companies in the past however I cant recall with any particularity the alleged agreement referred to.

 

This then signifies that you need clarification which leaves the court no option but to order disclosure and then puts the assignee to proof.

[heyes]

Yes its your choice how you respond...but you will always start with...

...I have held various agreements ...

This then signifies that you need clarification which leaves the court no option but to order disclosure and then puts the assignee to proof.

 

Thanks. I'm much clearer now.

[heyes]

Having drafted something very simple, ready to be filed, I'm hoping someone can yay/nay what's below.

 

==========================================

In the Northampton CCBC

 

Claim Number: *********

 

Between

Claimant: Cabot Financial (Uk) Limited

and

Defendant: ******

 

DEFENCE

 

1 I do not acknowledge the alleged debt, and have no clear recollection of any such agreement, nor of receiving the appropriate default, assignment, and other notices.

 

2 On August 26 I sent a Civil Procedure Rule 31.14 request to Mortimer Clarke (the Claimant's solicitors), for information relevant to the claim and including Agreement, Default Notice, Notice of Assignment, Formal Demand.

 

3 On August 30 I received a response, advising that they were taking client instruction and would respond accordingly. They also indicated their agreement to a 28-day extension of the time for me to file a defence, even though I hadn't asked for one.

 

4 On August 26 I sent a Consumer Credit Act 1974 (sections 77-79) request to the Claimant, for a copy of the Consumer Credit Agreement.

 

5 On August 30 I received a response, advising that they 'had requested the information from the original lender and expected to be able to provide it within 40 days'.

 

Statement of Truth

 

I believe that the facts stated in this Defence are true.

 

Signed …………………………………………

 

Dated .................................................. ....

 

==========================================

 

When the content is ok, is this what I enter into the 'Please state your defence in a maximum of 122 lines in the box below.' page at MCOL?

[AndyOrch]

Yes but dont submit the above just yet....you have left out the main parts that puts them to strict proof to disclose.What date is your defence due?

 

Andy

[heyes]

Yes but dont submit the above just yet....you have left out the main parts that puts them to strict proof to disclose.What date is your defence due?

 

Would the missing part be something like

'Civil Procedure Rule 16.5 (4) require that where the claim includes a money claim,

a defendant shall be taken to require that any allegation relating to the amount claimed be proved

unless he expressly admits the allegation.

Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.'?

 

Sept 21 is 33 days from claim date.

[AndyOrch]

Not only that but its far from CPR complient.

 

Here is your PoC ...the easiest way to respond to a claim is to break it down and number in to paragraphs.

 

 

1.By an agreement between Vanquis ('VANQ')and the Defendant on or around 27/10/2008 VANQ agreed to issue the Defendant with a credit card upon terms & conditions set out therein.

 

2. In breach of the Agreement the defendant failed to make the minimum payments due & the Agreement was terminated.

 

3.The Agreement was assigned to the claimant on 23/02/2011

The claimant therefore claims 1xxx.xx.

 

3 Points you have to either admit or deny...the claim is not based on what you have asked for and what they have failed to do.I do not acknowledge is not a permitted phrase when responding...they are not asking you to acknowledge but to either admit or deny.

 

So you should be responding to 1/2/3 and from there on you will see numerous versions of my drafts around the Legal Forum that then put the claimant to strict proof to validate their claim.

 

This is when they usually throw the towel in.

 

Andy

[heyes]

I have an old issue with Cabot for a Vanquis credit card debt.

 

I originally received a court claim back in August 2014, which I acknowledged with 'defend in full, don't know anything about it' and then sent the CCA/CPR requests.

 

In October 2014 I received a photocopy of an agreement, about which I did nothing (and certainly didn't respond to anyone), since which the whole thing seemed to have gone dead.

 

Yesterday I received a letter from Mortimer Clarke, wanting to pursue the issue.

It included the statement '... agreement was terminated on 31/05/2010.'

 

The only outbound contact from me since 31/5/2010 is responding to the claim with a defence

and sending the CCA/CPR requests - neither of which to me are 'acknowledgement of the debt'.

 

My perhaps-misinformed view is that as it's more 6 years since

'my last payment or acknowledgement of the debt' it's now statute-barred.

But I'm unsure if the fact that they began the claim before the end of 6 years means they can still pursue that claim.

 

From memory, there was a record of the debt in my credit report,

which I think was May 2010, and it's now no longer there

(presumably because such things are removed after 6 years)

 

Rarely responsive at the best of times, in the absence of anything which suggests I should act differently,

I'll likely just ignore this and wait to see if I receive anything from the court

- whereupon I'll notify 'debt is statue barred'.

 

Advice appreciated - please and thanks.

 

Quick update:

 

My relevant question here is whether a claim which began before the end of 6 years can still proceed after such a period.

I guess I may eventually find out if I hear more from the court.

 

Further research suggests it isn't statute-barred,

because they began action prior to the end of the 6-year period.

I just don't know if this is affected by the 18-month delay since previous action from the claimant.

[unclebulgaria67]

Quick update:

 

My relevant question here is whether a claim which began before the end of 6 years can still proceed after such a period. I guess I may eventually find out if I hear more from the court.

 

Further research suggests it isn't statute-barred, because they began action prior to the end of the 6-year period. I just don't know if this is affected by the 18-month delay since previous action from the claimant.

 

The court claim was within 6 years, so not SB, but the question is whether the debt owner is still the same as that who issued the claim ?

 

The court claim is stayed and if they want to reopen it then they would need to apply to the court, who you would then get notice from.

 

It sounds like your CCA request was not sufficiently replied to and if they want to proceed for a debt of an account that was taken out prior to April 2007, they will need the original CCA or a copy of it. Was the CCA sent a copy of the original and it contained all the necessary information ?

[dx100uk]

its a bit cheeky to try and lift a stay on what to all intent and purpose was a speculative claim issued to halt the SB clock

after 18mts.

 

 

I suspect this is simply willy waving in an attempt to make you respond.

no need to do anything

sit on your hands until/if they pay the fee to lift he stay[rare]

then you could quite legally bring in the 'it's now SB'd argument.'

 

 

dx

[Peterbard]

Hi

 

I see you said you received a photo copy of the agreement, was this the actual agrement you signed and did it show your signature ?

[heyes]

I suspect this is simply willy waving in an attempt to make you respond.

no need to do anything

sit on your hands until/if they pay the fee to lift he stay[rare]

then you could quite legally bring in the 'it's now SB'd argument.'

dx

 

Thanks.

 

It seems odd to me that after such a gap it's being revived - and with an accompanying 40% discount offer it's perhaps more in hope than expectation of payment.

 

From what I understand it's not statute-barred, through it's very unlikely I'll respond, preferring instead to see if it goes back to court. I've always been surprised that things went quiet after sending me a CCA.

[heyes]

Hi

 

I see you said you received a photo copy of the agreement, was this the actual agrement you signed and did it show your signature ?

 

Thanks.

It was digitally signed, relating to an online form.

 

And I'd forgotten this old thread was here - I'd begun a new one and then admin moved it here,

[Peterbard]

Oh I see, just following with interest, good luck and I ill leave you in Andy's capable hands.

[AndyOrch]

So do they actually state they are going to make application to lift the stay or just sent you some documents?

 

Regards

 

Andy

[heyes]

There's no mention of lifting the stay.

Enclosed are notice of assignment and original digital application, request to clarify defence, offer of discount (and mention of Tomlin order) for agreeing repayment within 14 days.

[AndyOrch]

So just retain all the paperwork and wait for them to proceed (if they wish to proceed).

 

Andy