Restons Solicitors /MBNA/ Cabot County Court Claim

[lizzy33]

Hi
I need some advise please

Today I have received a Claim form from Cabot Financial who seem to be using Restons Solicitors. (dated 20th June. took a week to get here and I have only 14 days to respond...now 7 days)
The claim states

The Claimant claims payment of the overdue balance due from defendant under a contract between the defendant and MBNA dated on or about xx/08/2002 and assigned to the claimant on xx/12/2005 in the sum of £xxxx.xx

Long story shortened down. I basically went through a messy break up from an ex partner and burried my head in the sand (stupid I know) I haven't had any contact with regards to this debt since around May/June/July 2008. I don't know the exact date but it is not showing on my credit report anymore so asuming it is over 6 years. Does this mean its possibly Statute Barred ? how do I find out ? if its not on my credit report does that mean it is deffo over 6 years ? if is Statute barred why are they taking this to court. Are they just trying to scare me...its working.

I really don't want to respond to this as everywhere I look on forums its saying to have no contact but this is a claim in court . If I do nothing I'll end up with a CCJ.

I would apprciate any help as this has consumed my head all day and will continue to until I have some answers.

[Kafka]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Hello and welcome.

It looks as if this might be statute barred, but even that doesn't stop some DCAs trying it on in the hope that you don't know how to defend. Often DCAs will file at court in order to stop Limitation, with just days to go.

The first thing you need to do is to acknowledge the service and state that you will be defending all of the claim. That will then add an extra 14 days to the 14 already given.

You need to take urgent action now to force disclosure of documentation, but before you do that:

Is your statement above the full POC from the form or is there more?
Did you receive a Letter Before Action threatening legal action?
Do you still have all the paperwork relating to this account?

[lizzy33]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Hi
Thanks so much for your reply

in answer to your questions


1) The only other part is
Particulars a/c no : xxxxxxxxxxxxxxxxxx
date 22/05/2014 ( not sure where that date came from )
default balance £xxxx.xx
Postal Ref Nil

2) yes I received a letter dated May 22 2014 through regualr post

3) no I took this card out in 2002 so have no paperwork only acount numbers.

Thanks again I will acknowledge this afternoon.

[Kafka]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

20th June is the date of issue, and several days are added to that to give you the date of service, which is when it is deemed to have arrived with you. The time counts from the date of service, not the date of issue, but to get the extra 14 days you must immediately acknowledge service and state that you will defend the whole claim. That's all you need to do now with the court and that will buy more time.

If you don't have the documentation, then we can't be certain if you have paid towards or acknowledged the debt within 6 years (if not in Scotland). If you plead Limitation as a defence then the onus is on them to prove activity within 6 years up to 20 June 2014. the down side of this is that if your defence rests on that and they can produce something then you have no defence left.

The normal way to deal with these claims from DCAs for old accounts is to challenge whether they can produce a valid copy of the original agreement, because that is a requirement of taking legal action. If you challenge them to produce this and they can't, then effectively this kicks the claim into touch. Despite the legal requirement to have this in order to file at court, DCAs rarely do, and if you challenge them they panic and agree to a delay while they frantically contact the original lender for a copy. We don't know whether MBNA do have it, but as the account opened in 2002 is likely that they don't have it as most CC companies only started keeping the proper records after the bank charges movement started challenging them over this about 8 years ago.

If it were me I would send the following off tomorrow morning by registered post:

1) Acknowledgement of service stating that you intend to defend the whole claim.

2) CPR 31.14 Request to the named contact on the claim, which is presumably Restons Solicitors? This is a request under the Civil Procedure Rules requiring them to disclose key documentation so that you can frame a defence. If they fail to do this in time the claim can be stalled.

3) CCA request to MBNA to obtain a valid copy of the original credit agreement, for a statutory fee of £1.

4) Personally, I would also send a Subject Access Request to MBNA as well, to obtain all of the personal data they hold on you as a statutory right for a £10 fee. They have 40 days to comply, but in the hope/expectation that neither will supply the agreement through your actions 2) and 3), this will provide you with a fuller picture of the account, with regard to agreement, default, penalty charges added and assignment. This can help you if they do still press the claim, and it can also help if any other DCA tries the same thing in future.

Await others' comments before moving, but be prepared to get the letters sent tomorrow morning. make sure you fully understand what you are doing and why and ask if you don't. You might like to look at other similar threads that people can refer you to. This is a recent one of mine, where I didn't send SAR because I already did that years ago and know what they have, and they didn't produce the agreement then.
http://www.legalbeagles.info/forums/...iestly-v-Kafka

[Amethyst]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

If it were me I would send the following off tomorrow morning by registered post:

1) Acknowledgement of service stating that you intend to defend the whole claim.

2) CPR 31.14 Request to the named contact on the claim, which is presumably Restons Solicitors? This is a request under the Civil Procedure Rules requiring them to disclose key documentation so that you can frame a defence. If they fail to do this in time the claim can be stalled.

3) CCA request to MBNA to obtain a valid copy of the original credit agreement, for a statutory fee of £1.

4) Personally, I would also send a Subject Access request to MBNA as well, to obtain all of the personal data they hold on you as a statutory right for a £10 fee. They have 40 days to comply, but in the hope/expectation that neither will supply the agreement through your actions 2) and 3), this will provide you with a fuller picture of the account, with regard to agreement, default, penalty charges added and assignment.

Absolutely agree. links to relevant letters below


1: ACKNOWLEDGE THE CLAIM - you can do this online usually at www.moneyclaim.gov.uk
You'll need your claim reference and password from the front of the claim form

2: Send A CCA REQUEST to the CLAIMANT ( see here )
This applies to all credit cards / loans / hire purchase / store cards type debt. It doesn't apply to Mobile Phones / Utilities or Overdrafts.

3: Send a CPR request to the CLAIMANT'S SOLICITORS ( see here )
This applies to everything unless they happen to have supplied you with a bunch of paperwork to back up their claim (v. unlikely)



SAR request is ->> http://www.legalbeagles.info/forums/...otection-Act-)

[Celestine]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Great advice above from Kafka, the only point I'd disagree with is that the CCA request should go to Cabot...NOT MBNA. This is simply because the debt appears to have been sold under LOPA 1925 from MBNA to Cabot. Therefore all duties under s.78 (1) now fall to Cabot. It is correct however, that Cabot will need to go back to MBNA to request the agreement. But thats their problem frankly.

Plus, this also means that CABOT will (hopefully) not have complied with the s.78 request, placing THEM in breach; which means they (who after all are suing) will not be able to enforce the agreement.

[Kafka]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

My mistake about the destination for the CCA request LOL

Can you confirm that you are OK to get all of this off in the morning?

Also, did this claim come from the bulk centre at Northampton rather than another court? :juge:

[lizzy33]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Hi yeah I can do this over the weekend.
I have an appointment with CAB on Monday morning but after speaking to them on the phone I don't hold up much hope of them having the level of advise you guys have.

If it turns out they do have documentation but all activity is still over 6 years ago, would it still be statute barred? Would the CCA request be regarded as acknowledgment that the debt is mine ?

yes the letter came from Northampton.

Thanks to everyone. This is an amazing site :-)

[Celestine]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Thank you.

Yes, the CAB advice may not be as detailed, but to be fair to their front line advisors....they are not fully experienced with CCA litigation. Its a complex subject and a forum works very well to share the knowledge we do know and understand.

If last payment was over 6 years ago, then it is likely to be time barred. Sending the CCA request will not reset the clock.

[Kafka]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Statute barring is the best defence because it is not possible to argue with it or interpret it in any way, and if you defend on that then the onus is on the Claimant to prove that you have formally acknowledged the debt or made a payment towards it within the required period of 6 years. In your case you aren't certain, so if you used that as a slam-dunk defence and they produce something then you are stuffed. Its possible in this case that activity after so long has been flagged up by the Limitation period ending, and they may have filed this now to catch the 6-year period just before it ends. You can't take that risk, although it can form part of the defence anyway.

Even if they can overcome that one, their failure to produce a copy of the original agreement should be enough to enable you to establish that they have no legal right to sue for the debt. The debt would still technically exist - as with a statute-barred debt - but they cannot enforce it through the courts, which is what they are seeking to do.

Typically, a CC from 12 years ago will not have the relevant documentation on file, so when the requests go in they will panic and ask MBNA for stuff they no longer have. We'll see what happens when they get your requests. Send these recorded/signed for so you can track when they arrive and have proof.

[lizzy33]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Great I'll get that done today then. Thanks

[lizzy33]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Hi Guys

I have gone through my old files today and found that I asked for the signed contract on 12/06/08 and Cabot supplied them on 01/12/08. Which basically means Cabot already have a copy of the signed contract albiet 6 years old.

I have the letter typed up and ready to send again but not sure now. Can someone please advise. I think I may be stuffed 12/06/08 would of been the last time I had any contact with them . I'm going to look at my bank statements to see when the last payment was made. have a arrrrrrrrrrrrr

[panther12]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Knowing restons any cpr31 request will be met with their usual template response saying the documents are not "mentioned" in the particulars so 31.14 has no effect. To be certain of SB perhaps it's worth a request under cpr18 for specific information on what date was the last payment made to this account.

[lizzy33]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

Last payment was made 4th Aug 08

[Kafka]

Re: Restons Solicitors /MBNA/ Cabot County Court Claim

It looks as if Limitation is out as a defence then because they will have proof. This is as I expected in post #2.

Can you post up the copy of the credit agreement with personal details redacted?
The fact they supplied something doesn't automatically mean that its valid and complies.