Cabot/hudsons claimform - old barclaycard debt

[joghuj]

No I don´t know how to construct a witness statement and I´ll have difficulty in getting it to court on time. I can fax it in probably but won´t get it through the post in time.

 

Can anyone help with witness statement please?

[tomterm8]

Witness Statement

 

In X County Court Claimant(CLAIMANT)

Between and Your Name(DEFENDANT)

 

This argument is tendered in response to the witness statement submitted by the claimant. It is intended to be read in conjunction with the defence I have already submitted.

 

ARGUMENTS ASSOCIATED WITH THE REQUIREMENTS FOR PROPER SERVICE OF AN ASSIGNMENT

I note that the claimants claim they sent three notices of assignment to me. I did not receive these documents before the trial. Notwithstanding this, I put the claimant to strict proof that the requirements for service of notices of assignment were complied with. These are specified in the Law of Property Act 1925 as requiring the use of registered mail for service by post. If the claimant can not prove that the notice of assignment was properly served, I respectfully submit it has no standing before the court.

Notwithstanding the above, the Claimant has not served upon me or filed any contract of assignment. If the claimant is unwilling to provide this document, I do not know how it seeks to prove that the assignment was completed with all legal requirements fulfilled.

The sections referenced below were obtained from the statute law online database :

 

136. Legal assignments of things in action.

 

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

(2) This section does not affect the provisions of the M2Policies of Assurance Act, 1867.

10. The relevant provisions for service of notices under the act are set out in

 

s196. law of property act 1925.

 

Regulations respecting notices.

— (1) Any notice required or authorised to be served or given by this Act shall be in writing.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [F1by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

FAILURE OF THE CLAIMANT TO PROVIDE AN ENFORCEABLE CREDIT AGREEMENT

I have received documents from the claimant that purport to be the credit agreements.

 

These documents do not contain all the required terms in the required format specified in the Consumer Credit (Agreement Regulations) 1984 and must be improperly executed according to s61 of the consumer credit act 1974.

 

I refer in this section to the alleged agreement, provided by the claimant.

These documents do not appear to contain the prescribed terms under

The Consumer Credit (Agreements) Regulations 1983. I would also like to refer to Wilson & Anr v Hurstanger Ltd [2007] EWCA Civ 299

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 singlthat all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

It appears that the alleged agreement provided is an application form, contingent on future acts and not binding on either party until those acts have been completed. As such they are a pre-contractual document and is an agreement to enter into a prospective agreement. In the document, they have inserted a condition precedent, which essentially means they are dispensing with the normal rules of offer and acceptance in contracts and saying that until such time as they are satisfied with their checks, the agreement is not binding. So if it didn't become binding upon either party signing it, when did it? And is it possible that the terms of the agreement changed between my signing the application form, and the execution of the agreement.

It is my view that the agreement is void under s59(1) of the consumer credit act 1974. It is therefore denied that the alleged credit agreements are void for the purposes of enforcement by the courts.

 

Further, asa cancellable agreement,the claimant has provided no evidencethat they ever sent me any notice of my cancellation rights in accordance with s62,63, or 64 of the act. . I do not recall that they have ever done so, and in consequence, unless the claimant provides evidence otherwise (which would be hearsay evidence, which the claimant has not given me notice of according to the civil evidence act 1995 s2) the alleged agreement is improperly executed.

 

It is respectfully submitted that, for the reasons discussed in this section the agreements are improperly executed, and are not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983. Each agreement was made before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

 

Further, the requirement of s127 (3) of the consumer credit act 1974 is that unless the court is satisfied that a document containing the debtors signature and all prescribed terms exists the court is precluded from enforcing this agreement. The Claimant has not filed with the court such a document.

 

I draw the courts attention to Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch) thus:

 

'What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…’

 

FAILURE TO PROVIDE DEFAULT NOTICE

The claimant has not provided any evidence as to when any default notice was served, or what method that default notice was served, neither has it provided copies of these alleged defaults

I dispute that any default notice issued was accurate, since the amount claimed contains penalty charges, which I believe to be under The Unfair Contract Terms Act 1977 and The Unfair Terms in Consumer Contracts Regulations 1999. The Default Notice had to be accurate to be enforceable; the inclusion of penalty charges renders it legally invalid.

 

I believe the facts stated to be the truth,

 

XXXXX

 

 

 

I note that I CAN'T read the application forms, so you will have to check yourself whether they contain the prescribed terms. The above is only for guidance, read through it and ammend at will. I would contact pt23242352823 (you know the mod;) ) for help, ask him nicely to check through the witness statement - it was only quicky cobbled together, i am sure it can be improved. I'm not really visting CAG very often any more.

 

Good luck.

[joghuj]

Many thanks again for your efforts Tomterm. Who is pt23242352823? Don´t think I´ve had any contact with him.

[Jeff2000]

Many thanks again for your efforts Tomterm. Who is pt23242352823? Don´t think I´ve had any contact with him.

 

 

 

 

Hi joghuj,

 

 

I think you mean http://www.consumeractiongroup.co.uk/forum/member.php?find=lastposter&t=128460!

 

Very helpful indeed, but also extremely busy!

 

 

Regards, Jeff.

[joghuj]

Can anyone tell me what the situation with the court will likely be when I show them that Kings Hill are Dormant and can´t sue? Are Cabot able to refile another claim immediately or can the current claim be ammended? If the claim is rejected for this then Cabot can just file another one I guess?

[joghuj]

The 3rd directions hearing was last Friday. This was a very short hearing, the judge was only interested in the application notice from Hodsons and nothing else.

 

Basically it was just that Cabot are saying that they cannot get a copy of the application form for one of the disputed accounts - it has been destroyed. That was all that was mentioned in the hearing, less than 10mins in there.

 

Anyway, now I've got the final hearing on the 8th July. Should I make the court aware now about this business with the company names (i.e. Cabot to Kingshill and vice-verca) and that I will be mentioning that in court? Any other things I should know before the final hearing?

 

Cheers

[andrew1]

The 3rd directions hearing was last Friday. This was a very short hearing, the judge was only interested in the application notice from Hodsons and nothing else.

 

Basically it was just that Cabot are saying that they cannot get a copy of the application form for one of the disputed accounts - it has been destroyed. That was all that was mentioned in the hearing, less than 10mins in there.

 

Anyway, now I've got the final hearing on the 8th July. Should I make the court aware now about this business with the company names (i.e. Cabot to Kingshill and vice-verca) and that I will be mentioning that in court? Any other things I should know before the final hearing?

 

Cheers

 

Be absolutely sure of your facts about this Jughuj. The dates and company numbers.

 

Kingshill (No1) Ltd pre 15 January 2007 was Registered in England & Wales Companies House Number 3757424 - this is the company which bought the alleged debt and owns it

 

The company bringing the action against you in this court is Kingshill No1 Limited registered number 03514391 .

 

Just check with any firm of solicitors or legal help-line you have to be absolutely sure of what the court might respond with when you inform them. You could even telephone the court and ask.

 

I would imagine Cabot will start the process all over again, but that's their call and you could, if it went to the hearing ask the judge to consider Cabot paying your costs for this wasted exercise.

[joghuj]

Just been checking through all the correspondance and found that the original court claim was in the name 'CABOT FINANCIAL (UK) LTD', see attached.

 

Further documents from court then changed to 'KINGS HILL (NO1) LTD'.

 

I'm not sure how the name of the claimant has changed after the original claim. Does this change the situation?

originalclaim.doc

[joghuj]

Just been checking through all the correspondance and found that the original court claim was in the name 'CABOT FINANCIAL (UK) LTD', see attached.

 

Further documents from court then changed to 'KINGS HILL (NO1) LTD'.

 

I'm not sure how the name of the claimant has changed after the original claim. Does this change the situation?

 

Any comments?

[joghuj]

Any comments?

 

Anybody have any more advice please? Court is in a few days time..

[andrew1]

So the claim is actually in the name of Cabot Financial(UK)Ltd and dated 1st of June 2007 which ties in with the fact that the Company who bought the debt(Kingshill (No.1)Ltd ) who changed their name to CF UK Ltd on 15th Jan 07 and the company now raising the claim are indeed one of the same.

 

It scotches your argument that the wrong company is suing you. The paperwork you have received thereafter is what? - If it is just supporting their claim, then the paperwork would be in the name of Kingshill...what else have you had?

 

Have you had your agreement, do you have any defence?

[joghuj]

As far as I can see, all the court documents (i.e. notice of app/general form of judgment etc.) all have the claimant as Kings Hill (No1) Limited. I've not received any agreement at all, only 2 application forms (one of them cannot be found). I've posted a defence, I'll post a copy if you'd like to see it. Tomterm provided this along with a skeleton argument and witness statement.

 

I'm in court tomorrow by the way.

[andrew1]

I saw them before if that's the one's you are referring to...I'm no whizz on court procedures, but if they have no agreements then you have that I guess. I'd stress to the Judge the confusion they are creating and tell him you still don't know if they have the right company due to the change over. Cabot will do a couple of things. They will try and intimidate you in the Lobby with the costs issues and what this will cost you - tell him to get on his bike..and so long as you know what you are arguing in there you hopefully won't have too hard a time, but don't expect Cabot to play fair - they won't, be prepared for every eventuality and if you can or have already, write something out to explain the situation to the judge like a skeleton argument, because sometimes it's easier than trying to say things when feeling intimidated..just make sure you give the opposing solicitor a copy before you go in and then give a copy to the judge.

 

 

I wish you well....if it all goes well...ask the solicitor afterwards to remember two things 1) Consumer Action Group 2) the Cabot Fan Club...Good luck.

[joghuj]

Also, does anyone know how Cabot add interest to there accounts? I've been looking at the statements from them and for instance, one balance is 5113.09 at 3/2/04 and then a 12% interest is added on 25/3/06 at 1390.20.

Would this be monthly type charges at an APR of 12%?

[joghuj]

I saw them before if that's the one's you are referring to...I'm no whizz on court procedures, but if they have no agreements then you have that I guess. I'd stress to the Judge the confusion they are creating and tell him you still don't know if they have the right company due to the change over. Cabot will do a couple of things. They will try and intimidate you in the Lobby with the costs issues and what this will cost you - tell him to get on his bike..and so long as you know what you are arguing in there you hopefully won't have too hard a time, but don't expect Cabot to play fair - they won't, be prepared for every eventuality and if you can or have already, write something out to explain the situation to the judge like a skeleton argument, because sometimes it's easier than trying to say things when feeling intimidated..just make sure you give the opposing solicitor a copy before you go in and then give a copy to the judge.

 

 

I wish you well....if it all goes well...ask the solicitor afterwards to remember two things 1) Consumer Action Group 2) the Cabot Fan Club...Good luck.

 

Cheers. Should I print out my original skeleton argument and witness statement and hand that to the judge? I would have thought they have these already?

[pt2537]

OK they are only entitled to add the interest at the rate on the agreement

 

now if they are claiming for the interest under the county courts act 1984 @ 8% per annum they are not entitled to it and you should draw the courts attention to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database

[joghuj]

OK they are only entitled to add the interest at the rate on the agreement

 

now if they are claiming for the interest under the county courts act 1984 @ 8% per annum they are not entitled to it and you should draw the courts attention to The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) - Statute Law Database

 

They charged the interest up to 2 days before issuing the county court claim.

 

I can't read for sure any APR on the application forms, there is something on one of them that looks like 5.9%. One of the statements from original creditor shows a monthly rate of 1.385%. Are they bound to charge at the rate being charged when they took the debt?

 

The only reference in the link to a rate is 'This Order provides for certain county court judgment debts to carry interest at the same rate as that payable on High Court judgments under section 17 of the Judgments Act 1838 (currently 15 per cent)'. If you have time to expand on this I would appreciate it.

 

Cheers

[pt2537]

3) Interest shall not be payable under this Order where the relevant judgment— (a)

is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974 F2 ;

 

 

 

What i meant was if they are claiming statutory interest under s69 county courts act 1984

[joghuj]

I've just received a courier delivery from Hodsons - Trial bundle and statement of costs. Lots of pages, mainly copies of previous correspondance but also added records of phone calls made - mainly wrong numbers or no answer. One of the statement of accounts has changed, the previous one they sent to me had a wrong addition and they've corrected it.

 

Also included is a general form of judgment which I've not seen before issue on 13th June to Hodsons - 'It is ordered that 1. The order dated 14th March 2008 is varied in that the claimant need not supply a copy of the executed consumer credit agreement with RBS account number XXXX the same having been previously destroyed.'

 

Also here is the Claimants Witness statement. Lots of background info explaining the company name changes. They state that interest has been applied at 12% pa. The rest is probably fairly standard summary of the case from their viewpoint.

Edited July 7, 2008 by joghuj

[andrew1]

I think they've been reading your thread joghuj all that info about the change of names ? LOL...just make sure you have it right that's all.. I'd still tell the Judge that it has all been confusing how Cabot project themselves, Kingshill No1 / Cabot Financial/ Cabot Financial Group/ Cabot financial(UK)Ltd - these are all separate companies they lob into one 'Cabot Group' - I think you've had enough advice to get on with - no need confusing or repeating - just GOOD LUCK tomorrow.we'll all be in there with you..

[Vulture_Bank]

can you post up a copy of the default notice they have presumably served on you

[joghuj]

I've just received a courier delivery from Hodsons - Trial bundle and statement of costs. Lots of pages, mainly copies of previous correspondance but also added records of phone calls made - mainly wrong numbers or no answer. One of the statement of accounts has changed, the previous one they sent to me had a wrong addition and they've corrected it.

 

Also included is a general form of judgment which I've not seen before issue on 13th June to Hodsons - 'It is ordered that 1. The order dated 14th March 2008 is varied in that the claimant need not supply a copy of the executed consumer credit agreement with RBS account number XXXX the same having been previously destroyed.'

 

Also here is the Claimants Witness statement. Lots of background info explaining the company name changes. They state that interest has been applied at 12% pa. The rest is probably fairly standard summary of the case from their viewpoint.

 

Please any more last minute advice on this pack of documents (if you want a PM with any parts posted I will do that as I'm not sure I should post any of it on the forum). Anything anyone can think of please post it as my head is in a bit of a muddle. But in any case, whatever the result, thanks to the many people that have taken a lot of their time to help me out so far.

[joghuj]

I think they've been reading your thread joghuj all that info about the change of names ? LOL...just make sure you have it right that's all.. I'd still tell the Judge that it has all been confusing how Cabot project themselves, Kingshill No1 / Cabot Financial/ Cabot Financial Group/ Cabot financial(UK)Ltd - these are all separate companies they lob into one 'Cabot Group' - I think you've had enough advice to get on with - no need confusing or repeating - just GOOD LUCK tomorrow.we'll all be in there with you..

 

I've posted at the same time I think, or just not refreshed the page. You're probably right, it did occur to me as well. Thanks for your help.

[joghuj]

can you post up a copy of the default notice they have presumably served on you

 

I'm not sure I have a default notice. I'll take another look through the pack again but I don't think they have served one. Please check later, got to get the kids bathed and sleeping then I'll post back.

[Vulture_Bank]

I'm not sure I have a default notice. I'll take another look through the pack again but I don't think they have served one. Please check later, got to get the kids bathed and sleeping then I'll post back.

 

THE text below is taken from a defence where the claimant seems to have said in his particulars of claim that a default notice was not needed

 

(the default i mean is the default issued by the original creditor not any default notice issued cabot )

 

" 32. In addition, the claimant states at point 4 in their particulars that that there is no need to rely upon service of a default notice in accordance with section 87(1) of the Consumer Credit Act 1974. The defendant rejects this assertion

 

33. Section 87 clearly sets out that a default notice is a prequsite before a creditor can become entitled to take any action in respect of a regulated credit agreement. For the avoidance of doubt I have included the relevant sections of the Consumer Credit Act 1974 below

 

87. Need for default notice.

- (1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

 

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

©to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

(e) to enforce any security.

And further more section 88 states

 

88. Contents and effect of default notice

.

- (1) The default notice must be in the prescribed form and specify-

 

(a) the nature of the alleged breach;

 

(b) if the breach is capable of remedy, what action is required to remedy it and the date before which that action is to be taken;

 

© if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less than seven days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those seven days have elapsed.

 

(3) The default notice must not treat as a breach failure to comply with a provision of the agreement which becomes operative only on breach of some other provision, but if the breach of that other provision is not duly remedied or compensation demanded under subsection (1) is not duly paid, or (where no requirement is made under subsection (1)) if the seven days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed terms about the consequences of failure to comply with it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

34. Therefore the claimants statement that service of a default notice is not required is clearly in error of law and the above sections of the Consumer Credit Act 1974 clearly sets out that service is a requirement and the defendant puts the claimant to strict proof that a default notice which is fully compliant with the requirements of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) as to its form and contents, was served upon the defendant

 

35. The case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 sets out the importance of a valid default notice and confirms the consequences of non-compliance. Therefore if the claimant cannot produce proof that a compliant default notice has been served, the defendant requests that the court strike out the claimants claim on the grounds of having no reasonable prospect of success especially when considering points 4,5 & 6 above"