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Cabot/Mortimer claimform - old Capital One Credit Card

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sadly mostly meaningless jibberish roland..

 

their ws exhibits shows ONE agreement with a typed sig dated 2/11/2012 with no agreement number showing? that relates to the agreement number stated in the original poc.

 

the other pages are 2 sets of terms and conditions which do not contain your name/address as they should under the CCA.

 

all pages can easily be downloads from various internet forums and image sites and have my details inserted with any picture manipulation software.

 

your 3. it says on or around the 5h  2nd is good enough.


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Hi DX

 

I have amended the WS and I hope i have taken out the meaningless gibberish. 

 

Thanks,

Roland 

 

IN THE County Court AT                                                                              CLAIM NO: 

 

 

BETWEEN:


CABOT FINANCIAL (UK) LIMITED

 

-and-



(DEFENDANT)
 

 

___________________________________________

WITNESS STATEMENT OF 

 

 

INTRODUCTION 

 

1. I, XXXX, the Defendant in this case, make this statement in support of my defence against the Claimant, Cabot Financial (UK) Limited.  The matters set out below are within my own knowledge, except where I indicate to the contrary. 

 

THE DEFENDANT’S RESPONSE TO THE CLAIMANT’S WITNESS STATEMENT 

 

2. The Claimant states in Paragraph 3, ‘….refer to various documents, true copiesof which are contained in the paginated bundle to this statement marked “JK”1’, but then states in para 4, ‘Acopy of the reconstituted agreementwith associated terms and conditions….pages 1-10’. There is an Agreement and 2 sets of Terms & Conditions and according to para 4 they are not the original but ‘a reconstitutedversion’. The agreement in the JK1 exhibit on page 2 shows an agreement with my name, address and a date but no Account Number or Reference Number as the same was not mentioned in the Claimant’s Particulars Of Claim, which was addressed in my Defence Para 1, ‘the particulars of claim are vague and generic…’. 

 

3. The Claimant’s Witness Statement does not state how the agreement was made, via telephone, post or electronically.

 

4. There are 2 sets of Terms & Conditions Pages 4-10 which does not show my name and address as per the Consumer Credit Act 1974 Request. 

 

5. Pages 1-10 can easily be downloaded from various internet forums and image sites and have my details inserted with any picture manipulation software.

 

6. The Claimant states in Para 9 that my defence is a ‘templated defence’, requesting documents pursuant of CPR 31.14 and Section 78 of the Credit Card Act 1974, this is a defendant’s right for request of information but the Claimant has failed to provide the true original Credit Card Agreement and Terms & Conditions.

 

7. The Claimant states in Para 25 that, ‘the Claimant allowed the proceedings to be stayed in order to allow the parties to attempt settlement negotiations…..’ this is not correct as the Claim was stayed due to the Claimant not being able to provide the requested documents pursuant of my CPR 31.14 and Section 78 of the Credit Card Act 1974.

8. Para 30 and 31of the Witness Statement requests to restore the proceedings, to strike out the Defence, has requested for a Summary Judgement, together with costs to be assessed summarily by the court. I, the Defendant, strongly object to the Claimant’s Witness Statement requesting to lift the stay and enter Judgement. I believe therefore, that this should be denied and I respectfully ask for you to strike out the claim. My reasons for this have been outlined in points 1 to 7. 

9. By the reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief and invite the Court to strike out the claim.

 

 

I believe that the facts stated in this Witness Statement are true. 

 

Signed: 
Dated: 

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andy pointed you to a SJ application WS  in post 39

adapt it

 

 

 

 

lifting stay WS great WS.pdf


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Hi there

 

Please see below my amended WS, please do let me know if i need to make any further amendments, thanks.

 

IN THE County Court AT                                                                              CLAIM NO: 

 

 

BETWEEN:


CABOT FINANCIAL (UK) LIMITED

 

-and-



(DEFENDANT)
 

 

 

WITNESS STATEMENT OF 

 

 

 

INTRODUCTION 

 

1. I, XXXX, the Defendant in this case, make this statement in support of my defence against the Claimant, Cabot Financial (UK) Limited.  The claim was stayed for one and a half years as the Claimant failed to supply the requested documents in my Section CPR 31.14 and Section 78 of the Credit Card Act 1974 request.  The matters set out below are within my own knowledge, except where I indicate to the contrary.

 

 

THE DEFENDANT’S RESPONSE TO THE CLAIMANT’S WITNESS STATEMENT 

2. It is my understanding that the claimant is an Assignee, a buyer of defunct, disputed or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed ...10p to 15p in the £1 and which the original creditors have already wrote off as a capital loss and claimed against taxable income. The claimant then issues on mass claims to circumvent and claim the full amount of debt to maximise profit. 

3. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debt (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party. 

4. The claimant failed to comply with my Section CPR 31.14 and Section 78 of the Credit Card Act 1974 request and their claim remained stayed as stated for over one and half years. I can only assume as this was due to the claimant not having any of the requested documentation below and issuing a claim in hope of an undefended default judgment.  

- A copy of the original agreement
- A copy of the terms and conditions as applicable at the time of the agreement

- A copy of Default Notice/ Termination notice
- A copy of the legal deed/notice of assignment showing your right to take action

- any other documents mentioned in the Particulars Of Claim

 

 

5. The Claimant states in Paragraph 3 that true copies are contained in the paginated bundle JK1, but the copies of the Agreement and Terms & Conditions the claimant wishes to rely upon is reconstituted versions as confirmed in the Claimant’s Paragraph 4 and does not contain an Account Number, name and address and is therefore irrelevant. 

 

6. Paragraph 4 it is noted that the claimant states the agreement was issued on or about 5thNovember 2012 and clearly states that they enclose and rely on a reconstituted version of the agreement in support of its claim. Given that thy have had one and half years to disclose this, the version they rely upon is deficient of the prescribed contents on which a reconstituted version can be relied upon in when providing a copy of an executed agreement in response to a request under section 78(1) of the CC Act1974.  A creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) as agreed to.  This is to ensure that it is an honest and accurate copy.  The copy the claimant wishes to rely upon does not even contain an Account Number, name or address and is therefore irrelevant. Furthermore, the Claimant’s Witness Statement does not state how the agreement was made, via telephone, post or electronically.

7. In response to the witness statement paragraph 6, it is denied I was ever served a Notice of Assignment pursuant to section 136 of the Law of Property Act 1925 or Financial Conduct Authorities CONC 6.5.2.  Therefore the Claimant is put to strict proof to evidence that any Notice of Assignment was ever served. 

8. The Claimant states in Para 9 that my defence is a ‘templated defence’, requesting documents pursuant of CPR 31.14 and Section 78 of the Credit Card Act 1974, this is a defendant’s right for request of information but the Claimant has failed to provide the true original Credit Card Agreement and Terms & Conditions.

 

9. The Claimant’s paragraph 14 is covered in my Paragraph 7 regarding the Notice of Assignment, furthermore the Particulars fail to provide any Account Number. 

 

10. The Claimant’s paragraph 20 mentions a letter they sent dated 4/6/2018 pages 35-38 in Exhibit JK1, it is denied that I was ever sent this letter and relevant documents. Therefore the Claimant is put to strict proof to evidence that they had all the relevant documents and sent out this letter.

 

11. The Claimant again confirms that the Agreement and Terms & Conditions is a reconstituted version in Paragraph 24. 

 

12. The Claimant states in Paragraph 25 that the Claimant allowed the proceedings to be stayed in order to allow the parties to attempt settlement negotiations, this is not correct as the Claim was stayed due to the Claimant not being able to provide the requested documents pursuant of my CPR 31.14 and Section 78 of the Credit Card Act 1974. 

13. Paragraph 28 and 29 in the Claimant’s Witness Statement is covered above in paragraph 5 & 6, it is denied the Agreement is a true copy. The claimant confirms it’s a reconstituted version and even then it fails to be a true reconstituted version. 

14. Regarding Paragraph 30, the evidence provided by way of Exhibit JK1 is woefully deficient and invalid and not pursuant to the CCA1974 request.  Until such time the claimant can comply and disclose a true executed copy of the agreement complete with terms and conditions from inception which they refer to within the particulars of this claim and witness statement they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974. 

15. Paragraph 31of the Witness Statement requests to restore the proceedings, to strike out the Defence, has requested for a Summary Judgement, together with costs to be assessed summarily by the court. I, the Defendant, strongly object to the Claimant’s Witness Statement requesting to lift the stay and enter Judgement. I believe therefore, that this should be denied and I respectfully ask for you to strike out the claim and costs requested. My reasons for this have been outlined in points 1 to 14. 

9. By the reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief and invite the Court to strike out the claim.

 

 

I believe that the facts stated in this Witness Statement are true. 

 

Signed: 
Dated: 

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Your not submitting a statement in support of your defence......you are submitting a statement in opposition to their application to lift the stay and request summary judgment.

 

You must have the following intro and conclusion as already advised in the following thread.

 

Post #154

 

 https://www.consumeractiongroup.co.uk/topic/395850-cabotrestons-claim-form-2-old-lloyds-credit-cards/page/7/#comments

 


Andy


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Hi Andy

 

Thank you for getting back to me and thank you for the thread link, I have amended the statement again as requested, please do let me know if there are any further amendments, thanks.

 

IN THE County Court AT                                                                              CLAIM NO: 

 

 

BETWEEN:


CABOT FINANCIAL (UK) LIMITED

 

-and-



(DEFENDANT)
 

 

 

WITNESS STATEMENT OF XXXX

 

 

I, XXXX, the Defendant in this case, will state as follows; I make this Witness Statement to oppose the claimant application for Strike Out/Summary Judgment in view of my defence submitted to the claim dated xx/xx/20xx pursuant to CPR 24.5 (1) a&b. 

 

 

THE DEFENDANT’S RESPONSE TO THE CLAIMANT’S WITNESS STATEMENT 

 

1. It is my understanding that the claimant is an Assignee, a buyer of defunct, disputed or bad debts, which are bought on mass portfolios at a much reduced cost to the amount claimed ...10p to 15p in the £1 and which the original creditors have already wrote off as a capital loss and claimed against taxable income. The claimant then issues on mass claims to circumvent and claim the full amount of debt to maximise profit. 

 

2. As an assignee or creditor as defined in section 189 of the CCA this applies to this new requirement on assignment of rights. This means that when an assignee purchases debt (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party. 

 

3. The claimant failed to comply with my Section CPR 31.14 and Section 78 of the Credit Card Act 1974 request and their claim remained stayed as stated for over one and half years. I can only assume as this was due to the claimant not having any of the requested documentation below and issuing a claim in hope of an undefended default judgment.  

 

- A copy of the original agreement
- A copy of the terms and conditions as applicable at the time of the agreement

- A copy of Default Notice/ Termination notice
- A copy of the legal deed/notice of assignment showing your right to take action

- any other documents mentioned in the Particulars Of Claim

 

 

4. The Claimant states in Paragraph 3 that true copies are contained in the paginated bundle JK1, but the copies of the Agreement and Terms & Conditions the claimant wishes to rely upon is reconstituted versions as confirmed in the Claimant’s Paragraph 4 and does not contain an Account Number, name and address and is therefore irrelevant. 

 

5. Paragraph 4 it is noted that the claimant states the agreement was issued on or about 5th November 2012 and clearly states that they enclose and rely on a reconstituted version of the agreement in support of its claim. Given that thy have had one and half years to disclose this, the version they rely upon is deficient of the prescribed contents on which a reconstituted version can be relied upon in when providing a copy of an executed agreement in response to a request under section 78(1) of the  Consumer Credit  Act 1974.  

 

A creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) as agreed to.  This is to ensure that it is an honest and accurate copy.  The copy the claimant wishes to rely upon does not even contain an Account Number, name or address and is therefore irrelevant. Furthermore, the Claimant’s Witness Statement does not state how the agreement was made, via telephone, post or electronically.

 

6. In response to the witness statement paragraph 6, it is denied I was ever served a Notice of Assignment pursuant to section 136 of the Law of Property Act 1925 or Financial Conduct Authorities CONC 6.5.2.  Therefore the Claimant is put to strict proof to evidence that any Notice of Assignment was ever served. 

 

7. The Claimant states in Para 9 that my defence is a ‘templated defence’, requesting documents pursuant of CPR 31.14 and Section 78 of the Credit Card Act 1974, this is a defendant’s right for request of information but the Claimant has failed to provide the true original Credit Card Agreement and Terms & Conditions.

 

8. The Claimant’s paragraph 14 is covered in my Paragraph 7 regarding the Notice of Assignment, furthermore the Particulars fail to provide any Account Number. 

 

9. The Claimant’s paragraph 20 mentions a letter they sent dated 4/6/2018 pages 35-38 in Exhibit JK1, it is denied that I was ever sent this letter and relevant documents. Therefore the Claimant is put to strict proof to evidence that they had all the relevant documents and sent out this letter.

 

10. The Claimant again confirms that the Agreement and Terms & Conditions is a reconstituted version in Paragraph 24. 

 

11. The Claimant states in Paragraph 25 that the Claimant allowed the proceedings to be stayed in order to allow the parties to attempt settlement negotiations, this is not correct as the Claim was stayed due to the Claimant not being able to provide the requested documents pursuant of my CPR 31.14 and Section 78 of the Credit Card Act 1974. 

 

12. Paragraph 28 and 29 in the Claimant’s Witness Statement is covered above in paragraph 5 & 6, it is denied the Agreement is a true copy. The claimant confirms it’s a reconstituted version and even then it fails to be a true reconstituted version. 

 

13. Regarding Paragraph 30, the evidence provided by way of Exhibit JK1 is woefully deficient and invalid and not pursuant to the CCA1974 request.  Until such time the claimant can comply and disclose a true executed copy of the agreement complete with terms and conditions from inception which they refer to within the particulars of this claim and witness statement they are not entitled while the default continues, to enforce the agreement pursuant to section 78.6 (a) of the Credit Consumer Act 1974. 

 

14. Paragraph 31 of the Witness Statement requests to restore the proceedings, to strike out my Defence, has requested for a Summary Judgement, together with costs to be assessed summarily by the court, again I see no reason why this should occur as per my points 1 - 14.

 

15. I, the Defendant, strongly object to the Claimant’s Witness Statement requesting to lift the stay and enter Judgement. I believe therefore, that this should be denied and I respectfully ask for you to strike out the claim and costs requested.  In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimant’s claim at trial. 

 

Signed: 
Dated: 

 

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Better...now its in the the correct format and the contains the correct CPR and reasonsings for opposing the application.

 

As for the content .....there is no set wording as it must contain your arguments reasons in your own words as to why the Claimants application for SJ should be denied and why there is prospect you defence has merit and that the claim should proceed to trial.

 

Bottom line is if they were not ready to proceed with the initial claim over 18 months ago...why do they feel they can now justify Summary Judgment.?

 

Andy


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Hi Andy

 

Thank you for getting back to me, appreciate it.

 

Just to point out that the POCs didn't have an account number neither does the reconstituted agreement they sent, isn't this important to the claim....I have mentioned this in my WS....

 

So my understanding is that my WS is now ready to go...if so, i will do this in the tomorrow. 

 

Am i correct in sending a copy in the post to the solicitor as i will email it over to the court?

 

Thanks,

Roland 

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Its a must.....the courts directions order you to file a copy on the claimants solicitor....hence the term File & Serve :wink::wink:


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Hi 

I’ve had a letter this morning regarding the claimant’s costs and that an advocate will be attending the hearing on behalf of their client. 

 

The advocates cost: £162 incl VAT

Court Fee: £60

Solicitor Costs: £70.00

Application Fee: £255

Summary Judgment fixed costs: £175

 

They also mention that these costs above are their entitlement pursuant to CPR Part 45. 

 

Do do I need to prepare my costs too for the hearing as I already emailed my WS to court last night, and was off to the post office to post the Claimants copy. 

 

Thanks,

Roland 

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You can calculate a rough estimate and have a figure in mind.....but costs are fixed in Small Claims Track so either party may not get the full amount requested...no need to submit it or serve it.....if the claim is dismissed on the basis of your defence simply request costs from the judge at the end of the hearing.


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Thanks Andy

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Hi All

 

Had the court hearing earlier today regarding the stay to be lifted, summary judgment and strike out of my defence,  the judge lifted the stay but dismissed the application for a summary judgment and the strike out of my defence! 😀

 

The judge went straight into it when we got there and said he had read both WS and seen the attached Exhibit and that this is a matter concerning the Recon Credit Agreement which i was opposing.

 

The Judge spoke to the advocate for Cabot first and asked how this agreement was originally made, a point which i made in my WS and also mentioned that my signature is not on the recon agreement....

 

The advocate answered "normally with a tenancy agreement" which she quickly corrected by saying credit agreement this would have been done online and it was an electronic signature, to which the judge said but where's the account number on this recon agreement.....it doesn't look as if it is in the prescribed terms.....she then went onto saying that i apparently had the documents since June 2018 and they tried to contact me numerous occasions to negotiate, which again wasn't true.

 

The judge said i think we need to look at this recon agreement before anything else, "do you have any case law to support your recon agreement"?....She said NO! Judge replied by saying "I am surprised you haven't"

 

The judge then asked me about the agreement and how i applied for it, which i replied that it was by post and that i had signed it, this recon has no account number or my signature and by just adding a blank sheet with this agreement with my name and account number doesn't mean it's my agreement.

 

Only a few days ago whilst going through old paperwork i found the account credit card in question and i then realised that it was a LUMA card not a Capital One credit Card as they have stated and produced the recon as a Capital One Credit Card Agreement!

 

i mentioned this to the judge!

He was shocked and asked the advocate is this for a LUMA card to which she replied as far as she knows its a Cap One Credit Card.

 

The judge said this needs to go to trial, a matter to be decided in court.

 

He went and set out the following directions, Point 5 was requested by the Cabot advocate:

 

(1) Stay lifted

(2) Claimant application for Summary Judgment and strike out of Defence is dismissed

(3) Allocate to small claims track

(4) List for Small Claims track hearing first date after 42 days, time set 2hrs

(5) Defendant shall file and serve an amended defence by 18th December 2019 by 4pm

(6) Parties have permission to file and serve no later than 14 days prior to the hearing one further Witness Statement for each party exhibiting copies of all documents or any further documents upon which they rely on

(7) Silence to costs  - small claims track 

 

So the claim has been for a Capital One Credit Card but its a LUMA Card!

 

Many thanks for all the help and advice, now onto the amended defence!

 

Regards,

Roland 

 

 

 

 

  

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luma was capital one - it was a brand name they used.


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Well done roland ...round 1 to you..

 

Andy


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little tip

I know the judge was surprise but I would have kept the luma stuff to yourself..

could now be used against you..

 

ding ding round one to you. 


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