Cabot/Nolans SPC Claim - Newday Marbles Card

[dx100uk]

AFAIK a default on your credit file is not proof a default notice was ever issued. there are many ways it can be marked defaulted which is why a defaulted date is important, i'e after 6mts of a default status (1,2 etc) being reported by the OC, if it got to 6 the CRA providers used to automictically mark a debt as 8 = defaulted but not enter a date as they can't.

 

a default notice letter issuance gives the original creditor the 'option' to mark your file as defaulted ...doesn't say when mind nor they will or have to.

 

however,

section 87/88 is clear in that a default notice must be issued using the correct format and contain specific information for it to be valid. Without producing a copy of the DN or evidence from the original creditor upon what is contained, how can these strict condition stated under the CCA be proved to have been complied with?? 

 

p'hapd we should have sent an SAR to newday, but, it's not for YOU to prove section 87/88 was/wasn't complied with, and anyway, if you did find such info, say in the account/comms log...you'd obviously keep it to your self

 

the claimant is duty bound to prove their case.

 

[dx100uk]

something i just spotted that gives you the idea of how to portray the story and write you statement

obv CPR is not scottish so replace with your 4a reply text for docs.

 

merge this with the above , and ref the rest of the court hearing stating each time the claimant has clearly been asked to produce the DN but has failed.

 

1st Draft - reviewed several statements 

 

I was a bit unsure about adding more about the section 78, although they took a very long time the did provide the CCA - any help appreciated 

 

In The *******County Court

Claim No. *********

Between **********Claimant

and

*************** Defendant

 

 

I am the defendant in this case and make this Witness statement in support of my defence in this claim. The matters set out below are within my own knowledge, except where I indicate to the contrary.

 

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 written off as a capital loss and claimed against taxable income. Idem Capital securities issue 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 purchase’s debts (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. It is accepted that I have in the past had financial dealings with HBOS. That being a Credit card Agreement.

 

4. After seeking advice this led me to check all paperwork I held with creditors, from this I could not find any Credit Agreement relating to the account the claimant is referring to.

 

6. I therefore sought clarification and requested copies of the agreements from the claimant by way of a section 78 request for the alleged amount.

  

7. A Letter before claim pursuant to Pre Action Protocol was issued by the claimant 06/09/2019. I made a request for the following documents:

 

·         A copy of the Default Notice

·         A copy of the Notice of assignment

·         A complete set of statements detailing exactly how the debt has accrued detailing

·         All transactions

·        Any additional charges applied since the account was terminated

·         A statement  of all payments received.

 

The claimant to date has failed to comply completely with my request and has not provided me with the required Default Notice.

  

 

8 .On the 13/11/19 the claimant issued a claim form through the county court business centre. On receipt of the claim form I made a CPR 31.14 request.

  

9. A CPR 31.14 request was sent 25/11/2019 via Royal Mail signed for and shows as received 27/11/19. A Request for the following documents was made:

 

·            Default Notice

·            Full statement of account

 

 

The claimant to date has failed to comply and disclose the default notice.

 

Conclusion

 

To date no Default Notice has been produced.

  

The claimant has still yet to comply with my CPR 31.14 request with regard to clarity of any valid default notice issued, as yet I have never received an original or seen a copy of a valid default notice from the claimant.

 

Mediation confirmed that the claimant could not produce the Default notice document 

 

Therefore for the above reasons the claim bought by the claimant is without merit and an abuse of the court process. It would be far more gracious and forthright for the claimant to admit that they do not have possession of the correct valid paperwork and this is an attempt to convince the court that the claimant can disclose the legal valid documents on which its claim relies on.

 

Until such time the claimant can comply and disclose a Default Notice they are not entitled while the default continues, to enforce the agreement pursuant to section 87 (1) of the Credit Consumer Act 1974.

 

 I **********, the defendant, believe that the facts stated in the witness statement are true.

 

 

Signed………………………….

Dated……………………………

 

 

 

[StandFirm11]

SUBMISSIONS FOR THE RESPONDENT.docx

 

Thanks DX, first draft attached.

 

I want to possibly mention about arrears in more detail but not sure where or how. something along the lines of if the claimants position is to seek arrears then this would form part of the overall debt. An Assignor cannot assign part of the debt without creating equitable assignment and therefore OC (New Day) would need to be included in proceedings.

 

Any edits, or suggestions would be massively appreciated.

[dx100uk]

very good effort just tighten it up a bit, 

 

i have had a reply from Andyorch.  

 

particularly with regard to that deed..

the rest of it if read carefully is understandable

Quote

" No a deed  ... cant be regarded as  NOA...the Deed is completely separate and does not form part of the process of Assignment (England).

From memory Assignation in Scotland the law in Scotland and England differs when it comes to assigning rights under a contract.

 

In Scotland an assignation need not be in writing, and intimation is all that is needed to give the assignee a right effective against all parties. Apart from the terminology, the principal differences in England are as follows.

 

Under the Law of Property Act 1925 the assignment must be in writing, the entire benefit must be assigned, and notice must be given to the other contracting party. If any of these elements are missing there may still be an equitable assignment – under which an assignee would typically need to join the assignor as a party to any action under the contract.

 

The burden of a contract cannot be assigned; it has to be novated – one contract is effectively rescinded and a new one entered into with different parties, so by its very nature consent is needed.

 

With regards to the arrears question...well you have already answered that...arrears = balance claimed..the agreement has been terminated and as per sec87 (1) evidence of service must be  provided."

 

 

[StandFirm11]

Thanks DX, any specific areas you can point me to to tighten up?

 

Also about the assignations. If I'm reading that correctly it actually goes against me. It states "intimation" is all that is required in scotland.  It says the principle differences in England are as follows... Then goes on to the law of property section.

 

There doesn't seem to be any prescribed form of intimation for Scots law (I've searched and can't find anything). So Nolans letter may be accepted as intimation.

 

Letter states

Assignor - New day ltd

Our client - Cabot

 

Should I just put my whole focus on the DN argument?

 

Maybe I'm not understanding correctly but their position they have stated is that they are seeking arrears. So if I can show that the account has defaulted (credit file) and therefore a DN is required, my position should be quite strong, yes?

 

I just need to find a good way of succinctly explaining the arrears element. I think I've explained the DN argument ok.

[dx100uk]

35 minutes ago, StandFirm11 said:

So Nolans letter may be accepted as intimation.

nolans are not the debt buyer- the claimant is, doesn't matter what silly nolans say.

 

the important line above is this one:

The burden of a contract cannot be assigned; it has to be novated – one contract is effectively rescinded and a new one entered into with different parties, so by its very nature consent is needed.

 

there to date has been no intimation from cabot to YOU in writing.

leave it in.

 

https://legal-dictionary.thefreedictionary.com/novated

 

as for the DN, simply tighten or focus upon the fact that under the CCA there MUST be proof of service of a DN and it must be in the correct format etc etc as i wrote before.

 

dx

 

 

 

 

 

[dx100uk]

ensure you answer these three conclusion directly by refering to each one.

 

that should tie everything you are stating quite nicely

 

Conclusion
In all the circumstances [he Claimants believe that as
a) the full debt has been admitted
b) the Response Form contains 110 relevant defence to the action
c) the Productions (and Judicial Intimation thereof) demonstrate that any expanded defence is demonstrably without
foundation

Decree should be granted against the Respondent together with expenses.

[StandFirm11]

Thanks Dx,

 

I've made some revisions, I wonder if I've clarified the arrears argument enough? because they will likely try to tie me up and throw jargon at me about why they can seek arrears.

 

Any advice would be appreciated.

 

Also, is it enough to just quote the CCA Act, or do I need to upload the CCA act itself as a document I rely upon? I don't want something silly like that to cause me to lose this.

 

SUBMISSIONS FOR THE RESPONDENT.docx

Edited November 10, 2020 by StandFirm11

[dx100uk]

On 09/11/2020 at 16:05, dx100uk said:

Scottish Law States: The burden of a contract cannot be assigned; it has to be novated – one contract is effectively rescinded and a new one entered into with different parties, so by its very nature consent is needed.

 

with regard to intimation (notice of assignment) you need to slip in the above 

 

Quote

section 87/88 is clear in that a default notice must be issued using the correct format and contain specific information for it to be valid. Without producing a copy of the DN or evidence from the original creditor upon what is contained, how can these strict condition stated under the CCA be proved to have been complied with?? 

 

 am also concerned you repeatedly refer to the DN but never get to the point of why you mention it so many times.

it might be an idea to remove some of the repeated ref to it , and replace one of the refs with the above.

[StandFirm11]

Thanks DX, do you think I should remove the copy and paste from the Act then? that should tidy it up more. Is it enough just to state "refer to section 87/88"?

Also do I have to submit the Act as a document I rely upon for the sherrif to refer to? or is it something the sheriff will refer to themselves?

 

Sorry for the barrage of questions, I just need to have this submitted by close of business today 11/11/20

Edited November 11, 2020 by StandFirm11

[StandFirm11]

 

Thanks Dx. I've removed the repitition, it now reads as a timeline through points 1 - 8, then I clarify issue regarding the default notice and itimation of assigment.

SUBMISSIONS FOR THE RESPONDENT.docx

[dx100uk]

be careful with how you spell sheriff 

you have it wrong in your submission too.

 

no harm in a short section in your text but i would also do as nolans have done and refer to it as a page or section exhibit and inc that.

never assume the sheriff will have anything 

 

don't worry about being a bit late on submission either

 

i also think that you should specifically at the start refer to nolans NOT abiding by the sheriffs orders, if you have not already, by not exchanging 1st by the 2nd nov with you but direct to the court early. 

[StandFirm11]

Thanks Dx, I've tidied it up a bit and  added about the failure to exchange. I will also submit the CCA exert as a doc for the sheriff to refer to.

 

Do you think this is clear enough and has enough information?

 

SUBMISSIONS FOR THE RESPONDENT.docx

[StandFirm11]

Also, I thought I should add I need to submit this within the next hour or so to reasonably comply with the sheriff order, by close of business 11/11.

[StandFirm11]

Just received email from nolans to court, copying me in.

 

"Please find attached herewith, Written Submissions for the Claimants. Authorities are currently being collated and will be lodged with the Court and Respondent by tomorrow. However, to give advance notice, List of Authorities is attached herewith so that the parties at least know which authorities are being relied upon by the Pursuers.

 

The Respondent has been copied into this email by way of intimation and final submissions will also be posted to the Respondent. Draft submissions were also intimated by post.

 

We wish to bring to the Court's attention that we have not received either draft nor final submissions from the Respondent. We have no notice of the Respondent's position therefore our preparation is hampered. The Claimants are thus prejudiced by the Respondent's failure to adhere to the Sheriff's Order dated 1st October 2020."

 

 

They claim to have posted the written submissions to me but I haven't received anything. Seems like another tactic from them. The only post I received was a list of evidence with account suspension letters from OC. I double and tripple checked this and no written submissions were included.

 

Any advice here DX? I'd rather just get everything submitted now and not give them anything to bring up.

[dx100uk]

your looks ok now 

 

as i said nolans pull every trick in the book.

 

 

 

[dx100uk]

scan up anything extra they have sent 

if it contains ref to cases no need for the scans of those just the case ref so we can look things up.

 

dx

 

[StandFirm11]

Their list of authorities/docs is same as they list in their written statement.

 

1. Section 87 of CCA

2. Promontoria RAM –v- Moore 2017 Court of Session 88 

3. Law of Contract in Scotland, McBryde Paragraph 12.02.

 

Both case law is in reference to assignation, nothing in relation default notice.

[dx100uk]

great well those cases are already discussed here so just re read here before the hearing.

i would expect the sheriff to somewhat agree on the NOA with them but not regarding the default notice issue.

i've helped on numerous here and locally regarding no DN issue or not needed and only lost one where that was sadly what we called judge lottery.

 

typically the DN issue revolves around nolans or my other favourite friends PRA, trying to bamboozle the sheriff with mountains of crap,

 

you need to be clear and firm that XYZ and ABC do not apply etc etc and be able to reason why stating the criteria/rules in the CCA .

 

a good one is the Scottish ruling on something like pra v govan law in the the court of appeal in scotland

they agreed the statute barring date was DN+14days. if a DN was not required that would not have been passed down.

[StandFirm11]

Thanks Dx, what happens if I lose? Can the amount increase? 

 

Also I was thinking if the Sheriff does side with Nolans, since they state they are cleaming arrears, shouldn't they only be enititled to a smaller sum?

 

They sent a copy of notice of arrears (from OC) which was dated about 14 days before the account got assigned to Cabot, and they were asking for about £270 in arrears to be paid.

Edited November 13, 2020 by StandFirm11

[dx100uk]

we mostly see costs fixed at £100

 

you might find this useful reading 

 

 

[StandFirm11]

Thanks Dx, just had a read, interesting stuff. I guess the one thing going against me for this is that it is a telephone hearing due to new covid process, so they actually don't have to factor in additional costs of going to a hearing etc. So it costs them nothing really to pursue claims to a hearing just now.

 

So I think there's close to 0% chance that they pull out before the hearing.

 

I just need to keep the focus around the DN issue. I also think the sheriff is quite a new/recent appointment so I'm not sure if that's something that might go against me.

 

At the last CMD, I gave my speech about the DN and referred to section 87/88  and importance of it etc etc and the Sheriff simply just put it to Nolans who responded and said it wasn't necessary. The Sheriff then immediately said they would set a hearing.

 

I thought about it more  and if the Sheriff was giving credit to my argument about the DN, surely they would give a further order for Nolans to provide the DN? instead of calling for a hearing.

 

I read through a lot of cases and most of them are dismissed before an actual hearing, that's what is getting me a bit worried.

[dx100uk]

good luck 

 

dx

[StandFirm11]

Hey Dx, so I lost, probably my fault but nothing I can do about it.

I explained every point regarding Section 87/88.

Sheriff did not agree that enforcement of a security is court action and did not agree that default notice is required when assigning all rights.

Nolans argued that sums were "repayable on demand" and the agreement was not terminated but only assigned to Cabot. The Sheriff agreed with this.

 

I argued that for the debt to have sold, the agreement must have been terminated and therefore a DN is required. Sheriff stopped me and advised it has been assigned and Cabot have aquired all rights and not terminated

 

I argued that Cabot cannot be the Creditor, they are simply debt purchasers. The Sheriff pointed out that in my defence I state ". 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."

 

I argued that for the debt to have been sold, the agreement must have been terminated and therefore a DN is required. Sheriff stopped me and advised it has been assigned and Cabot have aquired all rights and not terminated.

 

I got a bit flustered and lost my way at this point.

 

Where did I go wrong? For future reference because I know I messed up here. I didn't expect to be grilled so hard, I thought it would be the other way about and Nolans would be getting grilled.

 

Sheriff lottery? like you said.

 

 

 

[StandFirm11]

I also just wanted to say a huge thanks to DX and all the other support I received for this.

 

Losing was likely my fault as I hadn't fully prepared for everything that might have been thrown at me.

I realise now that I should have challenged the "repayment on demand" argument for Nolans as this relates to overdrafts and not credit cards. A very costly mistake for me but hopefully this is something others can learn from too.

 

Also, I believe the sheriff was very close to dismissing (I honestly thought he was just about to) as he was asking Nolans if a DN had been issued in the prescribed form and agreed with my position entirely, until Nolans countered with the "repayable on demand" argument.