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Islabop

Cabot/shoos claimform - old halifax card - threatening to lift Stay/Summary Judgment

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Hello,

I would be grateful for any advice to help me in defending a court claim for an old credit card debt from 2011 that I contested back in April 2015 requesting a copy of the relevant documents e.g credit agreement, default notice, notice of assignment and statement of accounts etc.

 

After 4 years and 2 months, they have finally provided their copies of documents requested, or the best that they can offer, and have written to give notice that they will apply to the court to lift the stay on proceedings.

 

Received a claim? Yes/No: Yes


Issue Date: 30/03/15


Have you Acknowledged the Claim?: Filed a defence on 2/4/19 on the basis that I required validation that I hold any legal obligation to pay the debt and requested evidence of this - see attached documents.


Total Amount Claimed : 4500


Claimants Name: Cabot Financial (UK) Ltd


Solicitors Firm: SHOOSMITHS LLP


Original Creditor: HALIFAX


Original Debt Credit card
Particulars of Claim:

 

1. The claimant claims the sum of 42496.96 being monies due from the defendent to the claim under a regulated agreement between the defendant and HALIFAX and assigned to the claimant on 9/2/15, notice of which has been provided to the defendent.

 

2. The defendent has failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant to the CCA 1974.

 

3. The claimant claims the sum of 4246.96 and costs.

 

4. The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction.


Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): Unsure. I have had no communication with the creditor or claimant over the last 6 years, however, court proceedings started back in March 2015


Letters sent: CCA request, and submitted a defence requesting evidence of claimant's authority to collect the debt, credit agreement that bears my signature, documentation that bears my name and balance of the debt, verification that the debt was assigned or sold to the creditor, complete account of the alleged debt.  The claim was then stayed for 4 years. 


Any Other Information or Background Details: I have submitted a SAR to Halifax, and received a response acknowledging this. Halifax told me that I can expect the documents around 5/8/19.

 

I emailed them the following response:


"I am writing in response to your recent communication regarding the account with the above reference number, which you claim I owe.

I do not admit any liability for your claim.

 

Furthermore, I question why it has taken over 4 years since the filing of my initial defence on 2/4/15 to provide the documents you have supplied.

 

I question whether this is an abuse of court process.

 

I also question the quality of the documents supplied and whether copies of documents and screenshots would suffice as evidence of my liability for this debt.

I would be interested to hear your views on this and will be seeking advice from my solicitor in this matter.

I look forward to hearing from you"

They replied as follows::

 

We write with reference to the above matter and further to your letter dated 3 July 2019.

 

We note your comments regarding the length of time it has taken for documents to be provided to you. As our client is a debt purchaser they have to rely upon the originating creditor, namely Halifax, to provide them with documentation relating to the account. Unfortunately, the time frame for this is out of our client’s control.

 

Whilst we appreciate that it has taken some time to obtain the documentation from Halifax, we do not agree that it has taken four years to provide you with the same. Documentation has been provided to you, prior to our letter dated 19 June 2019, as and when this has been received from Halifax. Included below, for your reference, is a timeline of the correspondence sent to you:- 

 

  • 6 January 2017 - copy of agreement;
  • 4 July 2017 – copy of agreement;
  • 26 October 2017 - copy of agreement, notice of assignment from Halifax and notice of assignment from our client;
  • 24 November 2017 - copy of agreement, notice of assignment from Halifax and notice of assignment from our client;
  • 14 November 2018 - copy of agreement, notice of assignment from Halifax, notice of assignment from our client, default notice screen print, default notice template and statement from our client; and
  • 19 June 2019 - copy of agreement, notice of assignment from Halifax, notice of assignment from our client, default notice screen print, default notice template, statement from our client and statement from Halifax.

 

You have also raised concerns over the quality of the documents and queried whether copies of documents and screen prints would suffice as evidence of your liability.

 

Having reviewed the documentation, we would submit that all of the documents are legible and, specifically within the agreement, your signature is clear.

Furthermore, our client is not obliged to provide you with the original documentation, copies of the same are sufficient.

 

From the documentation provided to you, it is evident that you entered into an agreement with Halifax, that you failed to repay the sums outstanding and that the debt was subsequently assigned to our client. Therefore, our client is confident in its position that the sum of £4,246.96 remains due and owing to them and, should an application for summary Judgment be necessary, that Judgment would be entered against you for the full sums claimed.

 

Despite this, our client would prefer to bring this matter to an amicable conclusion and, in the circumstances, we enclose a further standard financial statement for you to complete and return to our offices, endorsed with your suitable proposals for repayment.

 

You have stated that you will be seeking advice from your solicitor, please contact our offices within the next 14 days to provide an update as to your position.

 

We look forward to hearing from you.

 

 

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If you could read the following link and the copy and paste the Qs and your responses back here for further advice.

 

 

 

Also a copy of your defence submitted and if you could scan and redact and upload the documents they have disclosed.

 

Regards

 

Andy


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Thank you Andy. I will upload the documents they have sent to me shortly. I submitted my defence in 2015, and contacted MCOL to request a copy of my defence. However, they stated that they no longer have it as they do not keep records for longer than 3 years.

 

Date of claim – 31/03/2015

 

Name of the Claimant? Cabot Financial (UK) Limited

 

Particulars of Claim

 

 

1. The claimant claims the sum of 42496.96 being monies due from the defendent to the claim under a regulated agreement between the defendant and HALIFAX and assigned to the claimant on 9/2/15, notice of which has been provided to the defendent.

2. The defendent has failed to make payment in accordance with the terms of the agreement and a default notice has been served pursuant to the CCA 1974.

3. The claimant claims the sum of 4246.96 and costs.

4. The Claimant has complied, as far as is necessary, with the pre-action conduct practice direction. 

 

Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC ( Pre Action Protocol) ? Yes

 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? No. 


Did you inform the claimant of your change of address? N/A

 

What is the total value of the claim? Just under £5k

 

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

 

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

 

Is the debt showing on your credit reference files (Experian/ Equifax /Etc...) ? No

 

 

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 Financial UK Ltd

 

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? I cannot recall ever having received a notice of assignment.

 

Did you receive a Default Notice from the original creditor? I cannot recall ever having received a default notice

 

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

 

Why did you cease payments? I cannot recall, but I remember that I changed bank accounts around that time as it was just after I married.

 

What was the date of your last payment? 2011 

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, some time ago.

 

 

 

docs1.pdf

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If was done on MCOL, and they don't keep records longer than 3 years, would Crabpot's original claim details and POC have been deleted also, strange that.


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Posted (edited)

I understand that solicitor costs for small claims are not recouped, and it is for this reason that I am reluctant to instruct a solicitor in this matter, but then I don't really want a CCJ and charging order against my home either.  If they do apply to lift the stay and go straight for SJ, what options/timeline do I have?

 

I also sent them the following email,

 

Dear Sir/Madam,

Thank you for your reply. I would be grateful for some clarification. I noticed that you stated in your letter that you have supplied a copy of the default notice, however I am unsure why the dates and amounts on the front page of the default notice letter have been blacked out, whilst the date has been included on page 2 of the default notice. Furthermore, I noted from your correspondence that the default notice was issued on 16/12/10, whilst, according to the account statements you have provided, a payment of £117.17 was made on 15/12/10 and there is no indication from the account statements prior to this date that the account was in default. I would therefore question whether a compliant default notice was served and kindly request that you supply me with an unredacted copy of the default notice please. I intend to defend any application to lift the stay on proceedings in this case.

 

and received the following response

 

"Thank you for your email.

In response to your query regarding the default notice, I confirm that the copy letter supplied to you was a template default notice, not a copy of the default notice issued to you. The purpose of the default notice letter was to illustrate how the default notice issued to you on 16 December 2010 would have been formatted.

As detailed within my previous correspondence, it is clear that you entered into an agreement with Halifax and that the outstanding balance due under the same has not been repaid. Furthermore, documentary evidence of your liability has been provided to you. In the circumstances, it is my client’s view that your defence has no prospects of success.

On the basis of the above, kindly confirm whether you are willing to enter into an affordable repayment arrangement with my client to repay the outstanding balance? I have attached a standard financial statement for your consideration."

Edited by Islabop

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can you put the dates back on the letters please 

esp the default notice

there is no need to hide dates they could be critical. - ah it wasn't you

 

don't worry too much about the threat await and see if the court writes IF Shoos DO file the N244

shame you rushed to reply to them on email

you should never use that .

just gives them a free way to harass you and file things at the last minute removing your chance to dissect them and reply


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I am considering sending the following response:

 

Dear Sir/Madam

The Claimants statement of case states that the account was assigned from Halifax to Cabot Financial (UK) Limited on 24 June 2014. I do not recall receiving notice of this assignment, and you have not presented me with evidence that this was sent to me.

It is denied that Halifax served any Default notice to me pursuant to s87 Consumer Credit Act 1974, and respectfully ask your client to prove that a compliant Default Notice was served along with evidence that this was sent. Your client is required to also prove that any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

I also question whether the relationship is fair in accordance with section 140A of the CCA, in view of the time that the creditor has taken to supply all of the requested documents four years after they were initially requested, and question whether proceeding with the case after this length of time would be an abuse of court process?

I question whether this practice favours creditors to allow them a means to circumvent the Limitation Act by requesting a stay to be lifted for a considerable time after evidence of liability has been requested, during which time they are afforded an endless time limit in which to gather necessary paperwork to counter a defence. This practice would seem to favour creditors, who should not bring a case to court in the first instance if they do not possess sufficient evidence to do so.

For this reason, I will be defending any application to lift the stay on proceedings.
 

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to whom

have the court actually written yet?

 

 


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There were not dates on the default notice, it was a template that they sent to me. 

The computer screenshot was their evidence that this was issued.

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Posted (edited)

Hi, just curious to know, sorry to but in, if Cabot only paid pennies for the debt, can they really recover the full amount of £4k?

Like buying a 2nd hand car, then trying to claim full amount. Can you find out how much they paid for the debt? They always hide this figure.

Edited by xfox

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I am considering sending this response to Shoosmith's, the solicitor. I have not heard from the court yet.

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I have had to hide your second upload as name showing on statements in 2 PDF

 

Please dont send anything in writing just yet.


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all docs properly redacted in post 3 now for you.

thread tidied too

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There were not dates on the default notice, it was a template that they sent to me. 

The computer screenshot was their evidence that this was issued. See post number 6 where I questioned this with the solicitor.

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so to me everything sadly looks ok

but I might re- arrange all the bits of the various T&C's in the right order later on

 

just this strangely blocked out default notice date ..why did they do that?

I will guess the name and address and card number are correct on it though?

 


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Posted (edited)

There was no name, address or card number supplied with the default notice. The letter that is scanned is exactly what was sent to me.  Only the screenshot shows the card number, that is all though. Their response to explain this was:

 

"I confirm that the copy letter supplied to you was a template default notice, not a copy of the default notice issued to you. The purpose of the default notice letter was to illustrate how the default notice issued to you on 16 December 2010 would have been formatted."

Edited by Islabop

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So on a scale of 1-10 how important that you avoid a CCJ/Charging Order ?

 

This will affect the advice that I will give you .

 

This could go one or two ways......

 

This one we lost ...bad district judge didn't understand the basics of the credit consumer act 1974

 

https://www.consumeractiongroup.co.uk/topic/411362-cabotshoos-claimform-yorkshire-bank-od-stayed-4yrs-now-sj-threat/page/5/?tab=comments#comment-4998625

 

Or this one which we won were the District Judge was a stickler for correct documentation and the CCA1974

 

https://www.consumeractiongroup.co.uk/topic/395408-pra-claimform-halifax-credit-card-debt-claim-dismissed/page/8/#comments

 

 

Andy

 


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urm that's dodgy...

 

so they've taken a copy of someone else's Default Notice they have in their filing cabinet 

blanked out the details and claim its the one that was sent to you.

 

and trying to support that with a copy of a page from the certegy system [who's that from doesn't say Halifax anywhere!!]

and the 2nd page of the [fake] DN letter as well as the FCA pamphlet that went out too at the time

 

pers I think i'd now block and bounce their emails and wait n see if you do get anything from the court.

 

I think its telling that they state in a letter/email that its taken this long for the OC to reply....urm..my left foot!!

don't believe that either.!!

more like their IT dept been busy with copy and paste and raiding other peoples files to conjure up a supporting document file to frighten you into paying.

 

the other thing ofcourse is the debt is now WAY passed the SB date..ofcourse the original claimform paused the clock, but its a compelling point toward them using a speculative claimform to halt the SB clock..they didn't expect you to defend as always..85% don't!

 

have you ever sent Halifax an SAR...might pay you to do so and see if they have the same documents..bet they don't :wink:

 

dx

 


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DX its a template default notice with blackouts...very often used by Shoos.


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:rockon:


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Posted (edited)

I agree dx100uk, very dodgy.  However, I am not sure if this is enough of a defence from what Andy has said.  Andy, in response to your question about scale of 1-10,  I would say I am around a 8/10 in preferring not to have a CCJ/charging order.  However, I was wondering if I could play this tactically, see how far I get, and request Tomlin order at last minute if it looks like the CCJ is more likely, but am unsure as to the timescales of court processes and whether this is feasible.  I could also appeal any CCJ if it comes to it with the help of a solicitor? I have sent Halifax a SAR, and have a received a letter from them stating that I should get the information by 5/8/19.

 

 

Edited by Islabop

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I think id await to see what Halifax has / has not got?

surely if they have nothing that supports the template shoos have sent, this strengthens your case?


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Given that this is merely a threat at this stage....and they may make application.....and that they have imposed a 14 day limit to add pressure to you to decide.

And that you would like to avoid a CCJ and CO...it is possible to suggest a settlement by way of a Tomlin Order but it must be expressed within the 14 days.

 

Should an application be made and served on you..they will have paid the fee which is not refundable for N244s...therefore I doubt a TO would be considered or offered post application...unlike a normal hearing trial date as par course of normal directions if there was no stay in place.

 

Their application would be two fold to convince the court with good reason why its taken over 4 years to get disclosure and lift the stay and also to persuade the court that there is good reason for Summary Judgment and dispense with the normal directions and trial.

 

The paperwork you have uploaded would appear...although barely legible....to be enough to convince a court that they have a claim.....apart from a valid default notice...but everything else implying one was sent...the screen shot is irrelevant and proved in past cases that is not evidence that one was served or whether valid pursuant to section 87/88 of the CCA 1974.

 

So what's the options.....take a risk and see if they make application..and fight that with objections re the DN and see if they allow the claim stay to be lifted ?

Offer to settle no by way of a Tomlin Order ?

 

I suppose we come back to my last point and how desperate you are to avoid a CCJ/CO...then you will know which option to take.

 

Andy


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Posted (edited)

I have a couple of further questions if I may,

 

How likely is it that the objections I raise to the N244 application would be successful, and if so, what would be the outcome?

 

If the stay is lifted, I would seek the advice of a solicitor as I would not want to face the prospect of going to court without legal assistance as I am not confident that I would be able to articulate my defence in legal terms effectively.  Would the cost of solicitor fees (around £800 estimate) outweight any potential costs of a Tomlin order? How would I go about arranging a Tomlin order?

 

 

 

   

Edited by Islabop

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you shouldn't ever need a solicitor in a civil debt case

a waste of money always.


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