Cabot/mortimer Claim form - Halifax OD

[windswept19]

Thank you. I don't recall receiving a physical defalt notice.

 

I will defend all and get the three extra months. I will also send off that letter too.

 

If they discontinue - will that default just drop off next year? Also, will Cabot's fall off at the same time next year?

 

Many thanks

[AndyOrch]

Your credit file default has no connection to a court claim..the default falls off after 6 years of placement ...irrespective....including the Debt Collectors

[windswept19]

Thank you.

 

I have sent the CPR 31.14 request.

 

I am stuck at to what to put as my defence. SHould I say the debt accumulated because of OD charges? I'm not sure what to say.

 

Many thanks

[AndyOrch]

Dont concern yourself with a defence for now......plenty of time for you to look at previous examples.

[windswept19]

Thank you. I have received the following response from Mortimer Clarke Solicitors:

 

"We acknowledge your request for documents pursuant to section 78 of the COnsumer Credit Act 1974 and your request for documentation pursuant to CPR 31.14.

 

We are unable to supply a copy of your signed original agreement. Having contacted the original creditor, we are informed that such documentation is unavailable.

 

Section 77-79 of the Consumer Act 1974 (the "Act") does not apply to current accounts. The current account is not regulated agreement because it provides no credit. The overdraft agreement provides the credit and this sits separately from the current account agreement.

 

Credit agreements normally have to comply with Part V of the Act. Part V covers the form and content of agreements, signing of agreements and duty to supply copies of unexecuted and executed agreements. However, current account overdrafts are given a specific exemption from all the Part V formailty requirements by section 74(1) (b) of the Act.

 

This exemption applies only when the OFT grant a Determination under section 74(3) and this was given to overdrafts on 21 December 1989.

 

The consequence of this is that there is no executed agreement for a current account overdraft and so section 78 (the right to demand a copy of the exected agreement) does not apply.

 

For the avoidance of doubt, this firm acts on its client's instructions. This firm does not hold the documentation you have requested. We have asked our client to provde them and will come back to you as soon as we can.

 

CPR 31.14 relates to a right to inspect a document and can be distinguished from standard disclosure of evidence during the course of proceedings.

 

We believe that you may have already "inspected" the documents to which you make reference because on various dates in the past they would have been sent to you by another party such as the original creditor.

 

We wouuld be grateful if you could confirm what documents you have in your possession or control relating to this matter to avoid duplication over document inspection. We will then take our client's instructions.

 

In the meantime, the matter has been placed on hold and no further action will be taken.

 

Yours faithfully

 

Mortimer Clarke Solicitors"

 

 

Any thoughts please? I have not already inspected the documents as they believe I may have.

 

Thank you

[windswept19]

I am in the process of writing to them to tell them that I have not inspected the documents or have them in my possession. Should I say anything else?

 

Any help would be appreciated?

 

Many thanks

[AndyOrch]

I am in the process of writing to them to tell them that I have not inspected the documents or have them in my possession. Should I say anything else?

 

Any help would be appreciated?

 

Many thanks

 

Dont respond....but why did you request a CCA on a current account ?

[windswept19]

Thank you for your response.

 

I sent the CPR 31.14 request as per the advice and template.

 

Regards

[AndyOrch]

So not a section 77/78 as they advise in their response ?

 

You actually requested a copy of the facility agreement as per the CPR 31.14 current Account request.

[AndyOrch]

Template removed.

 

Yes fine..thats what i assumed.....so now you understand the quality of the numpties you are dealing with who cant decipher a difference between a section 77/78 request and a CPR 31.14 request.

 

Keep your eye on your defence due date.......forget that twaddle they have sent you.

[windswept19]

Oh God!

 

The defence due date is on Friday.

 

So does this mean that they have no put the matter on hold? and no further action to be taken?

 

Do you know where I can see examples of what to put in the defence box?

 

Thank you

[AndyOrch]

They cant put a claim on hold...see how they mislead you.....the clock is ticking.

 

 

Particulars of claim for reference only...do not submit with defence.

 

"Monies due under current account overdraft. The Claimant's claim is for the balance outstanding under a bank account facility halifax agreed to maintain for the Defendant. It was a term of the Bank account that any debit balance would be repayable by the Defendant in full on demand. The Defendant has failed to repay the amount due. The debt was assigned to the Claimant. THE CLAIMANT THEREFORE CLAIMS 1280.29 2. Costs"

 

Defence

 

1. The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

 

2. 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.

 

3. Paragraph 1 is noted and it is accepted insofar that I have once held a contractual relationship with Halifax Bank.

 

4. The defendant denies that the account exceeded the agreed overdraft limit due to overdrawing of funds but is as a result of unfair and extortionate bank charges/penalties being applied to the account.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated (insert date) namely the Facility Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request but has made a response with regards to a section 77/78 request not being applicable to current accounts.

 

6. I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

7. 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. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

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

 

Therefore the claimant is put to strict proof to:-.

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on pursuant to 61b(3) CCA1974

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account and show how the Claimant has reached the amount claimed

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

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

 

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

 

 

 

 

Andy

[windswept19]

Wow! thank you for your help and time. It is much appreciated.

 

Regards

[AndyOrch]

Your defence is due for submission Friday 22nd June.

[windswept19]

Thank you. I am really stressed about this.

[windswept19]

I am in a mess now.

 

The issue date was 22 May 2018. I haven't sent the acknowledgement of service off as I was planning on sending a defence. Is that wrong? Do I still need to send the ack of service?

 

22 May plus 19 days - 10 June. Maybe that's what is confusing me, thinking I should send the defence by Friday as the 10th falls on a Sunday.

[dx100uk]

Go ack the claim on mcol website now!

Leave jurisdiction unticked

Defend all

Then click to the end and exit

[windswept19]

Thank you, I have done that.

 

What happens now? The defence by 22 June?

 

Many thanks

[dx100uk]

Good

Now as post 37

But dont file yet

[windswept19]

THank you. I will do that and keep on file.

 

I appreciate your help,

 

Many thanks

[windswept19]

Hello,

 

I have not heard anything further from either Mortimer or the court since I acknoweldged service and said I was defending all. Should I start preparing my defence?

 

Many thanks

[dx100uk]

as post 35.

 

think about it

you don't want to hear from them....

 

the defence you need is in post 37 already

[windswept19]

THank you, yes absolutely!

 

Should I send the defence off in the next day or so? I thought maybe I would hear something about getting an extra 3 months or so, as per a previous poster.

 

Just a little confused, thank you again.

[AndyOrch]

Only due next Friday by 4.00pm...3 months is the full process for this to unravel..you dont get a letter

[windswept19]

Thank you for your help. I am preparing my defence as per an earlier thread.

 

Regards