Cabot/Mortimer claimform - old Halifax current account debt

[Mdg123]

Name of the Claimant ?  Cabot Financial - Mortimer Clarke Solicitors

 

Date of issue – 14th October 

 

AOS due -  2nd November (2 weeks plus 5 days) 

Defence due - 14th November (33 days total) 

 

Particulars of Claim 

 

1.Monies due under current account facility xxxxxxxxxxxx.

 

1.The claimants claim is for the balance outstanding under the facility provided by Halifax to the defendant.

 

2.It was a term of the bank account that any debit balance would be repayable by the defendant in full on demand.

 

3.The defendant has failed to repay the amount due following the service of a demand.

 

4.The debt was assigned to the claimant.

 

5.The claimant therefore claims

1. 5k

2. costs

 

What is the total value of the claim? £5.5k
 

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

I was threatened with court action but I'm not sure if I received the correct pre action protocol.

I was looking out for it but didn't think I had received it.

Shamefully I did not keep the letters I received to be able to double check. 
 

Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? Yes
 

Did you inform the claimant of your change of address? Yes

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

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

Do you recall how you entered into the agreement...On line /In branch/By post ? Online 
 

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. Debt purchaser
 

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? Yes
 

Have you been receiving statutory notices headed “Notice of Sums in Arrears”  or " Notice of Arrears "– at least once a year ? I believe so
 

Why did you cease payments? I was preparing to be declared bankrupt and advised to do so by CAB. 
 

What was the date of your last payment? 8/7/16
 

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? No as I was planning to go bankrupt. 

 

AOS done just preparing CPR and CCA now. Lets just hope these bottom feeding womble heads can't get any docs from Halifax! Fingers crossed!

[Mdg123]

For the CCA what number do i use for a current account debt? 77/78/79

Edited October 15, 2020 by Mdg123

[AndyOrch]

You cant make a CCA request for a current account.

[Mdg123]

Thanks Andy. Done a search for current account threads on the site but haven't been able to find much. I have typed in current account claimform but there is nearly 19k results. Are you able to point me in the right direction so i can read up please?

[Mdg123]

Never mind changed the search settings have found what i needed!

[Mdg123]

Ok folks. Have completed the CPR for current accounts ready to mail. I'm also doing an SAR to Halifax as both debts are registered with them as the OC. 

 

Just a quick question with regards to the SAR that it is to HBOS plc? And on the draft template i used there is no mention of a fee in less they request one but on other threads i've read that there is a fee?

 

Have started formalising no paper work / holding defences for both and will get them up poste haste for a check over by Andy when he gets a chance to peruse.

 

As ever your advice is much appreciated

[Mdg123]

1.    Monies due under current account facility xxxxxxxxxxxx. The claimants claim is for the balance outstanding under the facility provided by Halifax to the defendant. It was a term of the bank account that any debit balance would be repayable by the defendant in full on demand.

 

2.    The defendant has failed to repay the amount due following the service of a demand.

 

3.    The debt was assigned to the claimant.

 

4.    The claimant therefore claims 1. 5k 2. costs

 

Defence

 

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.  

 

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor Halifax Bank Plc. It is denied that I am indebted for the alleged balance claimed.

 

2. Paragraph 2 is denied I have never been served a Notices of Assignment in accordance with s.136 Law of Property Act 1925.

 

3. Paragraph 3 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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.

 

4. Paragraph 4 is denied. 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 Abbeyicon National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

5. As per Civil Procedure icon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. The claimant is also put to strict proof to:-.  

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which this claim is based on.

(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 with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim. (f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.  

 

6. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the *******. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.  

 

7. 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.  

[dx100uk]

bar 5b, IMHO you need to address non receipt to date of the service of a demand notice in its own reply para?

 

note not due till nov 14th (not 16th)

[Mdg123]

Thanks Dx. I have tidied the defence up with your suggestions amended. Does it look right now? Thanks!

 

1.    Monies due under current account facility xxxxxxxxxxxx. The claimants claim is for the balance outstanding under the facility provided by Halifax to the defendant. It was a term of the bank account that any debit balance would be repayable by the defendant in full on demand.
 
2.    The defendant has failed to repay the amount due following the service of a demand.
 
3.    The debt was assigned to the claimant.
 
4.    The claimant therefore claims 1. 5k 2. costs
 
Defence
 
1. 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.  

 

2. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim. 

 

3. The Claimant’s Particulars of Claim fail to state when the agreement was entered into.
 
4. Paragraph 1, Whilst I accept that I have in the past held a current account with Halifax Bank Plc. I have not serviced this account since 08/07/2016 due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. The amount claimed is far in excess of any agreed overdraft limit with Halifax Bank. I deny that the account exceeded an agreed overdraft limit due to overdrawing of funds and claim that this is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue. 

 

5. Paragraph 2 is denied as the original creditor has failed to serve a Notice served under 76(1) and 98(1) of the CCA1974 Demand / Recall Notice and the Claimant is put to strict proof to evidence any breach. 

 

6. Paragraph 2 is further denied as i am unaware of Halifax Bank ever providing me with a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand / Recall Notice and Notice of Assignment.

 

7. Paragraph 3 is denied. I am not aware or ever receiving any Notice of Assignment pursuant to the Law of Property Act 1925. 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. Paragraph 4 is denied. 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 Abbeyicon National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.
 
9. As per Civil Procedure icon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed. The claimant is also put to strict proof to:-.  

 

a. Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, which this claim is based on.
b. Provide a breakdown of their excessive charging/fees levied to the account with justification.
c. 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. (f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.  
e. Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.
 
10. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the *******. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.  
 
11. 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.  
 

[AndyOrch]

And again same as your other thread court claim......you cant state a simple denial to what you have advised in your post # 1.

 

Andy

[Mdg123]

Oh gosh no of course i don't want to perjure myself! Thanks Andy. This is why i wanted to get them up early for you to have a gander at. Hadn't even thought about that.

 

Do they look good apart from the denials?

[AndyOrch]

1.    Monies due under current account facility xxxxxxxxxxxx. The claimants claim is for the balance outstanding under the facility provided by Halifax to the defendant. It was a term of the bank account that any debit balance would be repayable by the defendant in full on demand.
 
2.    The defendant has failed to repay the amount due following the service of a demand.
 
3.    The debt was assigned to the claimant.
 
4.    The claimant therefore claims 1. 5k 2. costs
 
Defence
 
1. 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.  

 

2. 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.

3. Paragraph 1 is noted.Whilst I accept that I have in the past held a current account with Halifax Bank Plc. I have not serviced this account since 08/07/2016 due to the punitive charges and interest being applied which made the account untenable and impossible to facilitate. The amount claimed is far in excess of any agreed overdraft limit with Halifax Bank.

 

4. Paragraph 2 is noted. Again as above reasoning and contend that any alleged balance is a result of unfair and extortionate bank charges/penalties being applied to the account. It is therefore denied that I am indebted for any alleged outstanding residue. 

 

5. Paragraph 3 is noted.

 

6. Paragraph 4 is denied. 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. As per Civil Procedure icon 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, which this claim is based on.
b. Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

c. Provide a breakdown of their excessive charging/fees levied to the account and quantify how the Claimant has reached the amount claimed.
d. Evidence how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.  
 
8. On receipt of this claim I immediately requested documentation by way of a CPR 31.14 request, which was received by the Claimant on the *******. The Claimant has failed to comply with this request. Therefore the claimant in their non compliance to my requests have frustrated my attempts to clarify their claim and against pre action protocol should be considered when the question of costs arise.  
 
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.  

 

[Mdg123]

This is fantastic thank you so much Andy!

[Mdg123]

A little update for anyone keeping track:

 

-Defence submitted (for anyone wishing to use Andy's excellent defence above )

-Letter back from Cabot with an update about my CCA request that i never sent off for this claim? They have asked OC for the relevant documentation. As they are unable to provide the documentation i have requested the credit agreement is not enforceable.

 

I will wait ackn from court and Mortimer about defence and then wait to see if it gets stayed. Then i will forget about it in less i get back any responses apart from these.