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Cabot/Mortmer N55/N56 on default judgement issued to old address

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Name of the Claimant ? Cabot Financial UK Ltd

 

Date of issue – June 2015 but sent to address left in 2009 and I did not receive it

 

Date to submit defence – did not receive claimform so default judgement entered 12 July 2015

 

What is the claim for –

1.by an agreement between lloyds tsb ( ltsb ) & the defendant on or around 07/02/2003 ('the agreement') ltsb agreed to issue the defendant with a credit card. the defendant failed to make the minimum payments due & the agreement was terminated. the agreement was assigned to the claimant.

the claimant therefore claims 7000

What is the value of the claim? £7000

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, 2003.

 

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 who issued the claim.

Were you aware the account had been assigned – did you receive a Notice of Assignment? No I was not aware as had not been receiving any post from Lloyds the OC as I expect it was sent to an old address

Did you receive a Default Notice from the original creditor? Not sure but my credit file showed default in early 2009

 

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

Why did you cease payments? Financial problems, in DMP 2008-2014 then ran out of cash so stopped payment to all creditors

 

What was the date of your last payment? 6/2014 to Payplan who were distributing my single monthly payment to many creditors

 

Was there a dispute with the original creditor that remains unresolved? No

Did you communicate any financial problems to the original creditor

and make any attempt to enter into a debt management plan ?

yes, used Payplan for DMP from 2008-2014.

 

Now I have received, at my current address,

Notice of Application for Attachment of Earnings Order (N55 + N56), which I have to complete within 8 days.

I intend to submit N244 to set aside.

 

 

Possible grounds for set aside are :

 

1)Did not receive claim form as not at that address for over 5 years

 

2)Payplan would have notified New address to Lloyds or Cabot many times during period 2009-2015

 

3)I have not been on electoral register at old address since 2009, only at New address since 2009.

 

4)Cabot have searched my credit reference agency files very many times at the New address

 

5)Cabot have written to me many times regarding other alleged debts at the New address

 

6)Cabot have not complied with a Section 78 request I sent in July 2016.

Their reply to my request states my credit agreement is currently unenforceable.

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you will need to prove PP did tell Lloyds or cabot your new address

the rest of the reasons IMHO are mere conjecture


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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" Notice of Application for Attachment of Earnings Order (N55 + N56), which I have to complete within 8 days.

I intend to submit N244icon to set aside. "

 

Make sure you tick the suspend box on the N56 molly and state your reason (IE Application to Set a Side ) you must still complete all the I&E details otherwise they will return it.Make your application to Set a side on the same date and get it into the court that issued the AoE.

 

Regards

 

Andy


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Thanks Andy, dx. I am getting proof from PP that they told Lloyds about the new address.

 

Should I let Mortimer Clarke know I intend to get a set aside?

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They'll soon find out:lol:


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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I was just wondering if they might assist with the set aside, once they became aware the claim was issued to the wrong address?

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I was just wondering if they might assist with the set aside, once they became aware the claim was issued to the wrong address?

 

Very much so...they may even do it for you by consent.....once they know you have rumbled them,,,but assuming they did...would you have a valid defence ?

 

Andy


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I have called Mortimer Clarke and they are unwilling to help with the set aside.

 

So I guess the next steps are to fill in the N244 and produce witness statement, draft order and draft defence.

 

My defence will include non-compliance of section 78 request which Cabot responded to in July 2016 that they do not have a copy of the agreement.

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bet they said with no cost to their client?


:mad2::-x:jaw::sad:

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they said since they have now issued an application for attachment of earnings (presumably this cost them something), they are unwilling to help or consent to a set aside.

 

Perhaps they would have been more amenable if I'd said I would cover costs, but I didn't get the impression they were willing to negotiate.

 

The first thing they said to me was, who is your current employer. I didn't answer that as I don't want my employer involved in this.

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Okay ...they are playing hard ball..the fee to issue a AoE is £110..which they will add to the judgment balance...if your really up for this then go ahead and make the application....state on the N56 as I have advised.The fee to make application to set a side is currently £255 with a hearing and £100 without...check to see if you qualify for exemption of the fees.

 

Andy


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Witness statement for set aside application of default judgment is proving tricky. According to Payplan, Cabot may not have been notified of the new address :-

 

 

2009 Changed address

2010 Payplan notified Lloyds of the new address.

2012 Lloyds sold the account to Cabot giving them the old address.

2015 Cabot issued claim to old address.

 

 

Does this affect the viability of the set aside application ?

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Okay here's the draft witness statement for set aside of the default judgement to go on the N244. Please let me know your opinion.

 

What order are you asking the court to make and why? Set Judgment Aside as default judgment was entered due to claim being issued to a previous address.

What information will you be relying on, in support of your application? the attached witness statement

 

 

I, NAME of ADDRESS being the Defendant in this claim will state as follows;

1. I make this Witness Statement in support of my defence in this claim. The matters set out below come from my personal knowledge.

2. I was unable to respond to the claim as I had moved address 5 years and 10 months previously and was no longer receiving forwarded mail.

3. The claimant is an assignee of the alleged debt and was given the incorrect address of the defendant by the assigner.

4. The assigner of the alleged debt was notified of a change of address by Payplan Debt Management but did not update their records.

5. The default judgment is having a detrimental effect on my life. I am unable to open a business bank account and unable to

act as treasurer for a voluntary organisation I am involved with. My employment prospects are somewhat diminished.

6. I therefore ask that the court sets aside the judgement in this claim and allows 14 days for me to submit my defence.

7. I believe that the facts stated in this witness statement are true.

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But none of the above equates to a viable defence if the court was to allow a set a side ?


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Witness statement for set aside application of default judgment is proving tricky. According to Payplan, Cabot may not have been notified of the new address :-

 

 

2009 Changed address

2010 Payplan notified Lloyds of the new address.

2012 Lloyds sold the account to Cabot giving them the old address.

2015 Cabot issued claim to old address.

 

 

Does this affect the viability of the set aside application ?

 

If lloyds had the new address then they should have passes the new address upon assignment.

Edited by Andyorch
Typo

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I'm not sure if I need to include the draft defence withon the N244 application? Here is the draft defence :

 

POC

BY AN AGREEMENT BETWEEN LLOYDS TSB ( LTSB ) & THE DEFENDANT ON OR AROUND 01/02/2003 ('THE AGREEMENT')

LTSB AGREED TO ISSUE THE DEFENDANT WITH A CREDIT CARD.

THE DEFENDANT FAILED TO MAKE THE MINIMUM PAYMENTS DUE &

THE AGREEMENT WAS TERMINATED.THE AGREEMENT WAS ASSIGNED TO THE CLAIMANT.

THE CLAIMANT THEREFORE CLAIMS 7500.00

 

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. The claim is denied with regards to the amount due under an agreement.

 

On 3 July 2016 I requested by way of Section 78 of the Consumer Credit Act 1974, a true copy of the credit agreement relating to the Claimant's claim.

 

On 23 July 2016 the Claimant replied to state that they do not have a copy of the credit agreement on file.

The Claimant stated in their reply that the credit agreement is currently unenforcable, and they are currently not permitted

to obtain a judgment against the defendant in court.

 

It is therefore denied 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; 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;

(d) Show how the agreement was legally terminated to allow the claimant to request relief.

 

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

 

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.

 

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.

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Right I thought the above was your defence...there is no requirement to submit a witness statement..simply state that within the Order requested box ...then attach your defence as above.


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Right I thought the above was your defence...there is no requirement to submit a witness statement..simply state that within the Order requested box ...then attach your defence as above.

 

Sorry I'm not quite following you

 

N244 box 3 (What order are you asking the court to make and why?) I'm going to put

Set judgment aside as default judgment was entered due to claim being issued to a previous address

 

N244 box 10 it asks

 

"What information will you be relying on, in support of your application?

 

the attached witness statement

the statement of case

the evidence set out in the box below"

 

Do I tick one of these and attach my defence?

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Statement of Case and attach your proposed defence


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Statement of Case and attach your proposed defence

 

Great thanks Andy. I'll get the N56 and N244 sent off this morning together and let you know the outcome.

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Help

 

I sent off the N56 and N244 together with the proposed defence as above.

 

Today I have received a N64 - Suspended attachment of earnings order. This orders me to pay £250 every month.

 

The only way I can object to paying this amount every month is given as :

 

"If you object to the terms contained in this order, you must write to the court with your reasons. You have 16 days from the date of the postmark to do this. A hearing will be arranged and both parties will be told when to come to court"

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ring the court and findout why they didn't act on your 244 etc?

 

 

did you send recorded?


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Took a while to get through by phone but they have my N244 and they are now looking into why they haven't responded to it. Yes I sent recorded too important not to !

 

They said confusion may have arisen as the original claim was in the County Court Business Centre but the AoE was issued out of the County Court Money Claims Centre. I sent the Set Aside to CCMCC but they said it may have to go back to CCBC.

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but for the minute the AEO is on hold?


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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The court staff I spoke to didn't know what was going on with the Set Aside so they will ask someone to call me back tomorrow. Hopefully I'll get a set aside hearing and while that's happening the AoE will be on hold.

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