Cabot/Restons Claim Form - old cap1 card 'debt'

[BRIGADIER2JCS]

Lovely:madgrin:

[turkwyfe4lyfe]

im awaiting a response. Nice letter! Life would just be SO much easier if companies, like Capital One did their job properly!!

[haldeman]

Hi Guys

 

 

I thought this one had gone away when CAP One (the original creditor) couldn't produce the agreement, but Restons are now on the case. Answers to your initial questions below:

 

 

Name of the Claimant ? CABOT FINANCIAL (UK) LTD

 

Date of issue – top right hand corner of the claim form – this in order to establish the time line you need to adhere to. 26 AUGUST 2016

Date of issue XX + 19 days ( 5 day for service + 14 days to acknowledge) = XX + 14 days to submit defence = XX (33 days in total) -

 

^^^^^ NOTE : WHEN CALCULATING THE TIMELINE - PLEASE REMEMBER THAT THE DATE OF THE CLAIM IS DAY 1 [example: Issue date 01.03.2014 + 19 days (5 days for service + 14 days to acknowledge) = 19.03.2014 + 14 days to submit defence = 02.04.2014] = 33 days in total

 

What is the claim for – the reason they have issued the claim? Please type out their particulars of claim (verbatim) less any identifiable data and round the amounts up/down.

 

"PAYMENT OF OVERDUE BALANCE DUE FROM DEFENDANT UNDER A CONTRACT BETWEEN THE DEFENDANT AND CAPITAL ONE DATED ON OR ABOUT APR 07 1998 AND ASSIGNED TO THE CLAIMANT ON SEP 24 2015"

What is the value of the claim? £14,058.98

Is the claim for a current account (Overdraft) or credit/loan account or mobile phone account?

CREDIT CARD

 

When did you enter into the original agreement before or after 2007?

BEFORE

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim.

ASSIGNED TO CABOT

 

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

NO (IT HAS PREVIOUSLY BEEN THROUGH AKTIV KAPITAL, LOWELL, BRIAN WHATSHISNAME - THE SOLICITOR)

 

Did you receive a Default Notice from the original creditor?

I THINK SO, BUT DON'T HAVE COPY

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

NO

 

Why did you cease payments?

OUT OF WORK FOR 5 YEARS

 

What was the date of your last payment?

AUGUST 2012

 

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

NO, APART FROM NOT BEING ABLE TO PROVIDE AGREEMENT

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan?

YES - PAID £11 PER MONTH FOR FIRST SIX MONTHS, THEN £1 A MONTH UNTIL I STOPPED PAYING IN 2012

 

What you need to do now.

 

 

I HAVE THE CPR31.14 REQUEST READY TO GO, AND PLANNED TO MAKE ANOTHER S78 REQUEST TO CABOT (I ORIGINALLY SENT ONE TO CAP ONE). I HAVE ACKNOWLEDGED RECEIPT OF THE CLAIM FORM VIA THE MONEYCLAIM WEB SITE, BUT NOT LODGED A DEFENCE.

I GO ON HOLIDAY TOMORROW FOR 2 WEEKS, SO WANT TO BE SURE THAT I HAVE DONE ALL I NEED TO BEFORE I GO.

MANY THANKS IN ADVANCE FOR YOUR HELP, GUYS.

[dx100uk]

you've done all you need to do then

well done.

 

 

I've merged in your old cap1 thread for history.

 

 

dx

[haldeman]

Many thanks for responding so quickly, dx. And thank you for the advice.

 

 

I calculate that I need to lodge my defence by 4 October - I guess I need to let the timetable in the s78 and CPR31.14 run out before I do so?

[dx100uk]

??

if the claimform was the 26th

then you have 33 days to file your defence

that date on the form being day ONE in the count.

 

 

the time limits for CCA/CPR once a claim has been issue are immaterial as such

if they don't respond by your due date you file regardless.

[haldeman]

Thank you, dx.

 

 

I will review once I get back from holiday.

 

 

Many thanks for your kind assistance.

[haldeman]

Hi all

 

 

I've had what I assume are the standard responses from Cabot and Restons, copies attached.

 

 

I need to submit my defence to the CC claim form. Is there a template defence that I could look at. I have looked over the following from Dire1's sainsburys credit card "debt" thread, copied below, which looks good to me, but any thoughts would be welcome.

 

 

Thank you for your continued support, guys.

 

 

Defence

 

 

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. I have in the past had an agreement with Sainsburys but do not recognise this specific account number or recollect any outstanding debt and have therefore requested clarification by way of a CPR 31.14 and section 78 request.

 

3. I am unaware of any legal assignment or Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1) from either the original creditor or Cabot.

 

4. I do not recall ever receiving a Default Notice pursuant to s.87(1) CCA. or any advance notice or warning. Therefore I have made a CPR 31.14 to Restons and CCA section 78 request to Cabot.

 

5. On receipt of this claim, I the Defendant sent a request under the customer credit Act 1974,by way of a section 78 for a copy of the agreement and payment of the statutory fee of £1.00 to the Claimant Cabot on 15 August 2016. Cabot have sent an acknowledgement dated 16 August 2016 but remain in Default of the said S78 request, as at today.

 

A further request was made via CPR 31.14 to Restons, requesting disclosure of documents on which the Claimant is basing their claim. Restons have responded saying none of the documents requested are mentioned in the particulars of claim.

The Particulars of Claim states 'contract' therefore There is a valid case to request documentation confirming the contract under CPR 31.14. The claimant has not complied.

 

6. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:

 

a) show how the Defendant has entered into an agreement

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

c) show the nature of the breach and evidence by way of a Default Notice pursuant to sec 78 CCA1974

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

 

7. As per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed

 

8. 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

 

9. 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.

Cab 1.pdf

Res 1.pdf

[dx100uk]

Uploads hidden

You need to redact them..

 

We don't do template defence

Each claim is diff and you need to understand what they mean too

 

Also its better to align your responses directly to their poc numbers

[haldeman]

Hi all

 

Sorry for the previous faux pas. Redacted documents now attached; one letter from Cabot and one from Restons.

 

I have drafted up the following as a defence and would be grateful for any comments before I lodge it.

 

Thank you all again in advance for your help.

 

Defence

 

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 upon CPR r 16.5(3) in relation to any particular allegation to which a specific response has not been made.
   

 

1. The Defendant has in the past had an agreement with Capital One (Europe) Limited (Capital One) dating back to 1998. As the agreement was entered into 18 years ago, the Defendant does not recollect the specific details. Pursuant to s. 77-79 of the Consumer Credit Act 1974 (CCA74) the Defendant requested a copy of the agreement and the terms and conditions from Capital One on 12 June 2012, prior to the issue of proceedings. Capital One confirmed to the Defendant in writing that it did not have a copy of the agreement, and was unable to produce a satisfactory reconstituted version.
   

 

1. Upon receipt of the Claim Form, on 1 September 2016, the Defendant again made a request pursuant to s. 77-79 CCA74 for the Claimant to provide a copy of the original agreement and the terms and conditions. The Creditor has replied in writing confirming that it does not have a copy of the original agreement, and that it will ask Capital One to provide a copy.
   Both Capital One and the Creditor are therefore in breach of their statutory obligation to provide a copy of the original agreement within the timescale required by s 77-79 CCA74. The Creditor acknowledges in its reply to the Defendant’s s.77-79 request that the agreement is unenforceable until it is able to provide a copy of the original agreement.
   
2. As the agreement pre-dates the Consumer Credit Act 2006, the Claimant is obliged to demonstrate that the prescribed terms of any alleged credit agreement are contained within the signature document. Absence of such proof means that the court would be prevented from enforcing the agreement under s. 127(3) of the CCA. The Claimant has confirmed that it is unable to produce evidence that the prescribed terms of any alleged credit agreement are contained within the signature document.
   
3. The Claimant asserts in the Particulars of Claim that the agreement with Capital One was assigned to the Claimant on 24 September 2015. The Defendant has received no notice of assignment, and is therefore unable to ascertain whether the Creditor has any legal right to enforce the agreement. The Defendant has asked the Claimant’s solicitors to produce evidence of the assignment but the solicitors, in a letter dated 12 September 2016, have refused to do so.
   
4. Following receipt of the Claim Form, on 1 September 2016, the Defendant wrote to the Claimant’s solicitors and requested by way of CPR 31.14 that the Claimant’s solicitors provide copies of the documents referred to in the particulars of claim. The Claimant’s solicitors, in a letter dated 12 September 2016, have refused to provide those documents on the basis that the particulars of claim do not "mention" any documents. However, the particulars of claim refer to a "contract" and an "assignment", which documents the Claimant is obliged to produce.
   
5. The Claimant, having failed to provide any evidence of the existence or terms of the alleged agreement, nor evidence of the alleged agreement having been assignment to it, and being in breach of its obligations under s.77-79 CCA74 and (as to its solicitors) CPR 31.14 the Claimant is put to strict proof to show:
   


1. that the Defendant entered into any alleged agreement;
   
2. that the prescribed terms of any alleged credit agreement are contained within the signature document;
   
3. how the amount claimed has been arrived at; and
   
4. that the Claimant has the legal right to enforce the alleged agreement.
   

 

[*]In accordance with rule CPR 16.5(4) the Claimant must prove that the sums claimed are owed. In the alternative, as the Claimant alleges that it is an assignee of the sums claimed but has refused to provide evidence of any such assignment, it is denied that the Claimant has any right make the claim as it is in contravention of s. 136 of the Law of Property Act 1925 and s. 82A CCA74.

 

 

R Red 1.pdf

C Red 1.pdf

[dx100uk]

bit too much info

don't tell them what they don't already know...or have not already said themselves

 

 

def due by Tuesday 4pm.

 

 

getting closer

 

 

can we just confirm

their POC is simply that one line you posted?

 

 

dx

[haldeman]

Yes - short and sweet.

 

 

I'll take out the references to the previous correspondence with Cap One.

 

 

Thank you for your guidance.

 

 

S

[AndyOrch]

Keep it vague and in line with all the example defences already in the Success Forum...as stated by DX they know nothing of the debt except your name and address and amount and account number...do not feed them.

 

Andy

[haldeman]

Hi guys and gals

 

 

This is the latest from Restons. I would be very grateful for your thoughts and advice.

 

 

Many thanks

Reston 18 10 16.pdf

[dx100uk]

usual crap from them if you go read other reston claimform threads

 

 

so what have they sent you?

[haldeman]

Hi Guys

 

 

Sorry - it took me a while to get the use of a scanner. Restons sent their letter , a copy of the original application form (as attached), and a print out of all of the statements going back to 1998.

 

 

They clearly think that the copy application form is not enough to satisfy the s 77/78 CCA74 request, and state that in their letter that "legal proceedings remain on hold".

 

 

Should I write back to them with any kind of offer, or should I invite them to cancel the court action?

 

 

Many thanks for your help

Cap One Scan.pdf

[AndyOrch]

Mmmmmm 1998 and no prescribed terms included in the signatory area.....no wonder "legal proceedings remain on hold".

[dx100uk]

claim is stayed now as its passed 33 days since you filed your defence?

 

 

so restons stating 'they' are putting a hold is false

 

 

they have no choice

[haldeman]

I filed the defence on 23 September so 33 days are up. Do I need to do anything regarding the court?

[dx100uk]

nope

[haldeman]

Thanks all. That sounds like a result.

 

 

Thanks for all that you do. You have given me invaluable help and advice.

[dx100uk]

well its stayed

could be like that for years.

[haldeman]

Hello again everybody.

 

 

The latest from Cabot is attached. They are tenacious for sure.

 

 

Am I right in thinking that the reconstituted agreement is not enough to satisfy the s 77/78 request for a 1998 agreement? Any suggestions for how I should respond would be much appreciated.

 

 

Many thanks

Cabot 18 11 16.pdf

[dx100uk]

ive hidden that for you

 

 

can you please read the upload guide and not use a pen to cross things out with...

we can see all the details

 

 

a recon may well meet the CCA requirements

but NOT TOWARD COURT.

[dx100uk]

oh and that's a rubbish recon anyway.

those docs could have come from anywhere

here or their filing cabinet of stuff they've collected to try and bluff people out of money.

 

 

no good!!