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    • Merged witness and draft defence, deleting some paragraphs.. still too long?   1. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 10 November 2021. However, the claim had not been served at my current address. Therefore, I was not aware of the County Court Judgment until I received a notification that it had been entered on my credit report. 2. On learning of the County Court Judgement on 15 November 2021, I immediately contacted County Court Business Centre to find out details of the Default Judgment. It was only at this point that I discovered that Capquest Investments Limited was the Claimant and that the judgment was regarding monies owed on an alleged credit agreement. On 17 November I received a copy of the judgment from the County Court Business Centre by Email. 3. I now know that the judgment was served at an old address (xxx). However, I moved to a new address on 8 January 2021 with my tenancy at the old address ending 5 February 2021. In support of this I can provide confirmation of two (2) Council Tax bills for my current address (xx) and previous address. See [EVIDENCE A and B] 4. On 12 September 2018, the Claimant wrote to the Defendant clearly stating that following a request from the Defendant for a copy of the signed Consumer Credit Agreement with the original creditor, that one did not exist. I had no reason to believe this situation has changed to date and, the Claimant having already written to my new address reporting of default sums notice under the the Consumer Credit Act 1974 did, purposefully, use an old address to gain a Default Judgement. See [EVIDENCE C] 5. I suggest the Claimant did not make reasonable enquiries as to my current address before pursuing the court order especially considering they had good reason to believe they did not hold my current contact details. As stated in the Civil Procedure Rules CPR 6.9(3) where a Claimant has reason to believe that the address of the Defendant referred is an address at which the Defendant no longer resides or carries on business, the Claimant must take reasonable steps to ascertain the address of the Defendant’s current residence or place of business. At the time of the County Court Judgment, my credit file showed my current address so I was there to be found by a simple trace. See [EVIDENCE D]. 6. The Claimant sent a letter dated 27 October 2021 to my current address which I received on 9 November 2021. This equates to only twelve (12) working days between the Claimant filing the claim and producing this letter. I must question why the Claimant would use two different addresses in such a short space of time if there was any doubt I no longer resided at the address they had on record. See [EVIDENCE E]. 7. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim. 8. Considering the above, I as the Defendant was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside. 9. 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 16.5 (3) in relation to any particular allegation to which a specific response has not been made. 10. Paragraph 1 is noted. I have had an agreement in the past with Shop Direct Finance Company Limited but I do not recognise the account number referred to by the Claimant.  11. Paragraph 2 is noted but not admitted. The Claimant would not be aware of any alleged breach or in a position to plead such fact as an assignee as the Defendant did not enter into any agreement with the Claimant and is therefore put to strict proof to verify the alleged statement of its particulars. 12. Paragraph 3 is denied. I am unaware of any legal assignment or Notice of Assignment allegedly served.
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Cabot/Mortimer old stayed Claim - Yorkshire Bank overdraft - Threat of lift Stay/ Summary Judgement


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Hi all,

 

Hoping for some advice if possible.

 

Early 2017 I received a claim form from Cabot for an old Yorkshire Bank overdraft debt

- I wasn't in the best position at the time but did manage to file a standard claim defence through MCOL and then was told it would be sent back to the client to review.

Heard nothing and am now in a much better situation

 

out the blue approx a week ago I received a letter from the solicitors with the documentation I had requested in my claim defence etc.

I have attached a copy of the letter they have sent me and they have also sent full bank statements, notices of charges and a notice of assignment.

 

The claim is for approx £1000 - £875 from the account and the rest in solicitor fees.

 

As a bit of context,

the account was held from 2013-2014 and I had a serious gambling addiction at the time,

essentially any money I received I was spending straight away on gambling.

 

I had a current account with Yorkshire Bank with no agreed overdraft,

yet I was constantly able to go several hundreds of pounds overdrawn,

and of course the fees made this worse.

 

Based on the bank statements they sent,

I accrued approx £850 of bank charges in the 10/11 months I used the account (these were at £25 per charge for unplanned overdraft and a couple of £35 returned DD).

 

Note the final balance now is not just charges as some of these were paid off during using the account.

I was in a cycle where I would be overdrawn,

credit the account and return to a positive balance,

then be allowed to go overdrawn on gambling transactions and

then charges would be added and the cycle would repeat,

until I ended up so deep overdrawn I abandoned the account.

 

Towards the end I was able to go over £600 overdrawn in gambling transactions,

and then £185 fees were also added to this as well as extra debit interest that accumulated.

 

The letter states they would like to settle without further court proceedings and that I can propose a repayment plan.

After some research online I believe one option to me would be to submit a formal complaint to Yorkshire Bank about the charges and my financial situation at the time and how I was constantly able to go overdrawn by a large amount, and if necessary go on to the Ombudsman after.

 

Do you think this is a good approach, and would it stop Mortimer wanting to proceed with court action whilst the complaint is considered?

I am of course open to any other suggestions!

 

Thanks a lot and sorry for the long read, please let me know if any more info is required.

 

Attached:

Letter received today

Statement of amount owed

One of the bank statements (towards the end of the account) as an example - can see it started OD, went into credit, then ended more OD than it started

 

(unfortunately i no longer have copy of original claim form or my defence - trying to access MCOL to retrieve these but wasn't thinking straight enough to keep a log of my details when this all started a couple of years ago)

 

Thanks for any advice

Edited by dx100uk
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please complete this:

https://www.consumeractiongroup.co.uk/forum/showthread.php?419198-You-have-received-a-Claim-What-you-need-to-do.-**UPDATED-2018**(2-Viewing)-nbsp

 

and pop all those scans into ONE multipage PDF please

 

else well be here all day downloading single pages and putting our screens on their side

 

can you also post up the defence you filed

 

pers i'd not do anything unless you get a N244 to lift the stay

sounds like a begging letter to me!!

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Go get Officelens - Itll PDF it and line it up in the camera properly.

Its more readable...

I can read sod all on ths... :) (Not your fault)

 

We could do with some help from you.

 

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Used a site online to combine into a PDF - hopefully that makes it easier!

 

Re copy of the defence, I'm trying to regain access to the MCOL website to access it and just waiting for help getting my user ID so I can login and retrieve this

 

Qs and As:

 

Name of the Claimant? Cabot

 

Date of issue - Feb 2017

 

Particulars of Claim -

 

"Monies due under current account overdraft.

1.THe claimant's claim is for the balance outstanding under a Bank account facility Yorkshire Bank 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."

 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC (Pre Action Protocol) ? Can't remember

What is the total value of the claim? £1005

 

Is the claim for - a Bank Account (Overdraft) or credit card or loan or catalogue or mobile phone account? Overdraft

 

When did you enter into the original agreement before or after April 2007 ? After, May 2013

Is the debt showing on your credit reference files (Experian/Equifax /Etc...) ? Yes

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. - Cabot

 

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

 

Did you receive a Default Notice from the original creditor? - Not sure, don't think so

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? Not sure, don't think so

 

Why did you cease payments? Couldn't afford, went too deep into unplanned overdraft and couldn't afford to get account bank into credit, redirected wages to new account

What was the date of your last payment? Account stopped being used in Feb 2014

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 planicon? No

Thank you

jpg2pdf (1).pdf

Edited by dx100uk
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So you could propose a reasonable payment plan that is affordable to yourself......or you simply ignore their letter and wait and see if they make application to lift the stay and proceed to trial and take your chance.

 

If there was no agreed overdraft facility...which the letter confirms..then in theory you couldn't be allowed to go into overdraft as any transaction would be declined.

It could be argued that the Bank as allowed this to happen to maximise charges and interest..and therefore created the debt by its own volition.

 

But its your choice on how to handle it.

 

Regards

 

Andy

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Thanks for the advice.

 

I had considered making a repayment offer based on the actual amount I went overdrawn through my own transactions, minus any charges that had been applied by Yorkshire Bank

- but after looking over at it in total I was charged about £850 of bank fees so there would only be £25 or so left (based on original amount of 875 OD).

 

The bank charges do seem incredibly excessive and looking back at it now I do feel I was exploited a bit, or rather that they could have done more and that their actions in allowing me to go hundreds of pounds overdrawn and then adding hundreds of pounds of fees did make my financial situation considerably worse.

 

If I didn't offer any repayment plan or reply, their next step is likely to be a N244 claim to lift the stay and proceed to court I'd assume?

 

In this case does it seem to make sense to make a complaint to Yorkshire Bank/Ombudsman about the situation and the lack of overdraft, informing Mortimer of this (assuming they would wait until the outcome of complaint to lift the stay) and then seeing how it progresses?

 

If the complaint wasn't upheld then I would then have to offer a repayment plan I assume or go to court and try a similar defence

Edited by dx100uk
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Did you have the A/C before you start gambling

Pers id await the n244

 

If its 90% charges i cant see the judge making you pay those re the OFT stuff

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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No i was already gambling when I opened the account, for a couple of years prior

 

The £850 charges includes those that have effectively already been paid on each monthly statement, in the last month or 2 of using the account I think the account went to -650 via transactions and then went up to 875 with charges added on. Some charges were added in previous months but then the account was put back into credit the following month and so on so I'm not sure if that counts

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i was thinking irresponsible lending but as it had no OD? Cant use that??

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Yes if i made a complaint to FOS/Yorkshire Bank it would be based on that they shouldn't have let me go overdrawn significantly as I had PDL defaults prior to this account also and therefore irresponsible lending,

 

but from research online there seems to be varying stories about whether this would be covered as there was no planned overdraft,

but surely with no overdraft (and it would certainly have been rejected if overdraft applied for)

it is irresponsible to allow to make transactions to go £600 overdrawn

Edited by dx100uk
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agreed give it a go see our IRL guide

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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IRL would apply in this case... No suitable safeguard was put in place to prevent this from happening - They are still *LENDING* you the money through the form of an Unarranged OD which is clearly defined in the terms of the Original Acc Agreement.

On top of that look at PDL stuff too...

 

We could do with some help from you.

 

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

**Fko-Filee**

Receptaculum Ignis

 

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Link to irl is in the post above in purple

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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It wont progress until they make application to lift the stay...their letter may be a bluff to get you to react.....do nothing for now.

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

If you want advice on your Topic please PM me a link to your thread

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Thanks for the advice, ideally it is a bluff!

 

By do nothing for now do you mean I shouldn't make a irresponsible lending complaint or that I should make a complaint but don't do anything to reply to Mortimer (not even advise them it's under complaint)?

 

Thanks

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yes

and yes

 

make an IRL complaint

 

ignore cabot/mort

 

unless you get an N244

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Share on other sites

  • 3 months later...

Hi, just as an update on this I went through an irresponsible lending complaint to Yorkshire Bank and then referred it to the ombudsman, this unfortunately wasn't upheld.

 

Mortimer have sent a letter last week - a basic letter that said they haven't had any contact from me for a long time and so the client has requested that if there is no contact in the next 14 days that the stay on the court order will be lifted and proceedings will continue. The letter then ended by advising that the client is still willing to set up a repayment plan etc and to get in touch with a proposal.

 

I was planning on doing nothing and waiting to see whether they are trying to call my bluff or not, i.e. wait to get a notice that the stay has been lifted. If this happens I'm assuming this means it goes to court? My other options are to write back just to confirm that I intend to defend this in line with the original defence i submitted, or secondly to make a very low settlement offer and see if they'll accept it just to stop the hassle....any thoughts welcome and appreciated

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Your choice...but dont be writing back informing them you intend to continue to defend.

 

So either continue to ignore and wait for an application or start a negotiation

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

 Have we helped you ...?         Please Donate button to the Consumer Action Group The National Consumer Service

 

If you want advice on your Topic please PM me a link to your thread

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read the letter properly..doesn't say WILL anything

 

as for the FOS

 

is the letter from an adjudicator or from the ombudsman himself?

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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thanks for both your replies

 

the letter says the client has instructed them to apply to lift the stay after 14 days if no contact.

 

The FOS letter is from the adjudicator, I have replied to contend the decision and am currently waiting to hear back before I assume it will be referred to the ombudsman

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instructed not WILL

I can instruct my new puppy to sit

if is DOES is a totally differing matter..ignore them.

 

good on the FOS.

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

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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  • 8 months later...

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  • Andyorch changed the title to Cabot/Mortimer old stayed Claim - Yorkshire Bank overdraft - Threat of lift Stay/ Summary Judgement
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