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Thread: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

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  1. #51
    FaithForever's Avatar

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Maybe a slight alteration to the first version,

    "Should you choose to ignorethe above or attempt to circumvent the Rules I will inter alia use this as adefence which I will submit to the Court with other documentation by the deadline."







    - - - Updated - - -

    Maybe a slight alteration to the first version,

    "Should you choose to ignore the above or attempt to circumvent the Rules I will inter alia use this as a defence which I will submit to the Court with other documentation by the deadline."

  2. #52
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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Hi
    I guess that explains how you have access to Hasbury. I had to log into the library to see it and that was as an e book.

    Remember I am a glass half empty kind of person, been kicked in the nuts too often not to be.

    I do think paring it back is a good idea and I'm glad you should have the skills to sort them out if they try to log it as a defence.

    Sadly too many people here do not have that experience and while I always want the debt purchasers to get a good kicking sadly it is not always the case. I know some do settle before court because for them that is the best solution.
    Any advice or opinions I offer are based on my experience dealing with personal debt as well as other life events.
    I have no formal legal training
    Any advice is offered without liability
    If in doubt take professional legal advice or contact the CAB

  3. #53
    FaithForever's Avatar

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    Smile Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by warwick65 View Post
    Hi
    I guess that explains how you have access to Hasbury. I had to log into the library to see it and that was as an e book.

    Remember I am a glass half empty kind of person, been kicked in the nuts too often not to be.

    I do think paring it back is a good idea and I'm glad you should have the skills to sort them out if they try to log it as a defence.

    Sadly too many people here do not have that experience and while I always want the debt purchasers to get a good kicking sadly it is not always the case. I know some do settle before court because for them that is the best solution.
    The Halsbury quote is a bog standard one that I borrowed as I'm short on time. The 5th Edition is difficult to get online. How could they log it as a defence if it's online? Surely the Defence has to come from my partner through his secure login? If they knowingly presented it to the Court as his Defence, it would be obstruction of justice.

    If I can get this settled by SB for my partner I will. Sorry to disappoint.
    FF
    xx

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Hi Faith
    If course you should go for the easy option and as I said I want you to win.
    I have no idea how it was done but it was reported on here as having happened.
    Defences don't have to be done online, they can be done by post or email and their is often more flexibility with a LiP
    Any advice or opinions I offer are based on my experience dealing with personal debt as well as other life events.
    I have no formal legal training
    Any advice is offered without liability
    If in doubt take professional legal advice or contact the CAB

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by warwick65 View Post
    Hi Faith
    If course you should go for the easy option and as I said I want you to win.
    I have no idea how it was done but it was reported on here as having happened.
    Defences don't have to be done online, they can be done by post or email and their is often more flexibility with a LiP
    My partner sent Drydens a short SB letter today.
    Will update when I have more news.
    FF

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Hi All,

    I finished the Defence. Have fun reading it. I intend to put it in on Sunday or Monday. My partner sent Cabot a Statute Barred letter. They had a look at his credit file and tried to hide their enquiry but the credit agency informed my partner. Interesting that they should be looking, to see whether anything was recorded on my partner's credit file, which it isn't, because it is over six years. lol. The Defence is still being lodged, in case they try to win by default. Don't take notice of the spacings, they have gone to pot on your site.


    IN THE NORTHAMPTON COUNTY COURT CASE NO: XXXX
    BETWEEN
    Cabot Financial (UK) Limited
    Claimant

    AND

    xxxxxxxxxxxxxxxx
    Defendant


    DEFENCE
    1. I, xxxxx, the Defendant, received the claim form, Claim No: xxxxx, from the Northampton County Court Business Centre, Northampton County Court on xxxxxx.
    2. I, as Defendant, deny each and every allegation in the Claimant’s Particulars of Claim unless specifically admitted in this Defence.
    3. The Claimant states in the Particulars of Claim that their claim is for an Agreement regulated under the Consumer Credit Act 1974. The Claimant’s Particulars of Claim do not state what type of Agreement it was, or which Section of the Consumer Credit Act 1974 applied, when the sum or account was recalled and the alleged agreement terminated, how much of the amount of £xxxxxxx is capital or charges or interest and if charges what type of charges.
    4. I require the Claimant to provide all of these details.
    5. I admit previously having entered into an agreement with Capital One Bank (Europe) PLC for provision of credit under Account No: xxxxx.
    6. I deny ever having entered into an agreement with the Claimant.
    7. I contend that the alleged debt is statute barred pursuant to the provisions of Section 5 of the Limitations Act 1980 in that the last payment or acknowledgement of the debt was made over six years ago and no further acknowledgement or payment has been made since that time to date. The claim is denied.
    8. The Claimant’s claim to be entitled to payment of £xxxxx or any other sum, or relief of any kind is denied.
    9. I require the Claimant to provide proof in the form of documentary evidence that the alleged debt is not statute barred.
    10. I attach a copy of a letter to the Claimant dated xxxxx informing the Claimant that this matter is statute barred. (Doc 1)
    11. As I stated at 5. above I had entered into an agreement with Capital One Bank (Europe) PLC for provision of credit under Account No: xxxxx. Capital One added Payment Protection Insurance (PPI) to my account without my requesting it and without my knowledge. I complained to the Financial Ombudsman Service.
    On xxxxx Name of Ombudsman , Ombudsman, of the Financial Ombudsman Service, gave his Decision in my favour that the PPI had been mis-sold. I attach a copy of that Decision which ordered both a money award and gave a Direction. (Doc 2)
    I would point out that this was not an adjudicator of the Financial Ombudsman Service who made a Decision, but it was an Ombudsman who gave his Decision. I accepted the Decision and the FOS confirmed by letter dated xxxxx that because of my acceptance the Decision had become binding on both Capital One and myself.
    The Ombudsman ruled that I should be placed back in the position I would have been in had the PPI policy not been sold. He instructed Capital One, the ‘owner’ of the account, to deconstruct and reconstruct the account, as per the attached Decision, and further, to set out in writing to me how Capital One had calculated the compensation so ordered.
    Capital One did not comply with the Ombudsman’s Ruling. They listed the PPI premiums and made a partial refund to my account of £xxxxx leaving a balance of £xxxxx. This was not a reconstruction and reconstruction of the account as Ordered, so it resulted in only a partial payment being made by Capital One off the total that should have been refunded to me.
    I have deconstructed and reconstructed the account and I attach a copy of my spreadsheet with full and proper steps shown. (Doc 3) The total owed to me at the date of Judgment was £xxxxx. The payment refunded to the account by Capital One was £xxxxx, leaving a balance of £xxxxx owing to me. With the interest ordered by the Ombudsman, the total amount owing to me at the date of Judgment was £xxxxx
    A. The difference between the closing balance with PPI and without: £xxxxx
    B. Interest at 8% pa simple on any credit balance
    Cabot Financial (UK) Limited insist that they have purchased the account. They are therefore liable and responsible for complying with the Ombudsman’s Decision under the Financial Services and Markets Act 2000.
    Under this Act an Ombudsman’s Decision is legally enforceable in court. I attach FOS Factsheet which details the procedure in enforcing an Ombudsman’s Decision in Court. (Doc 4)
    1. ‘If the Complainant notifies the Ombudsman that he accepts the determination, it is binding on the respondent and the complaint and final.’ Under FSMA 2000, S228 (5)
    2. A Money award, including interest, which has been registered in accordance with consumer credit rules may: (a) if a county court so orders in England and Wales, be recovered by execution issued from the county court (or otherwise) as if it were payable under an order of that court.’ FSMA 2000, Schedule 17, 16D (a)
    E+W+S+N.I.3. Compliance with a direction under subsection: (a) is enforceable by an injunction.’ FSMA 2000, Enforcement of Ombudsman Directions, Section 229 (9) (2) (b)
    As the Decision has not been complied with, I am counter-claiming the amount of £xxxxx plus County Court Compound Interest of 8% plus costs plus damages plus compensation from xxxxx to the date of settlement hereunder.
    I respectfully ask the Court to enforce the Ombudsman’s Decision.
    12. I contend that Claimant Cabot Financial (UK) Limited is not licensed with the Financial Conduct Authority and so does not have permission or authority to collect debts. A copy of the Financial Conduct Authority register entry relating to the Claimant is attached herein as evidence that the Claimant is not currently licensed with the Financial Conduct Authority and indeed has not been so since xxxxx. (Doc 5)
    Should the Claimant contend that they are entitled to act by association under the licence of one of their Financial Conduct Authority-licensed sister companies or their parent company using any other Cabot or Marlin name I would counter this argument by stating that they are prevented from so doing by the Hicks v Walker and Reynolds Judgment, a copy of which I append. (Doc 6)
    13. I respectfully request that this Court consider whether the relevant Police Authorities be enjoined to these proceedings and/or invited to investigate a possible criminal offence by the Claimant contrary to the Consumer Credit Act 1974, S21, S39 and S40, occasioned by the Claimant seeking to unlawfully act as a debt collector by commencing these proceedings, and having reference to 11. above.
    14. I respectfully request that this Court act upon my request at 12. above if it so chooses.
    15. The Claimant is not licensed with the Financial Conduct Authority but has sought by commencing this Claim and producing documents to obtain money from me in contravention of Section 40 of the Administration of Justice Act, S40 (1) (a) (c), and (d), (2), more particularly:-
    S40 Punishment for unlawful harassment of debtors.
    (1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he;

    (c) falsely represents himself to be authorised in some official capacity to claim or enforce payment, or

    (d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

    (2) A person may be guilty of an offence by virtue of (a) (a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.
    Under 14. above Drydens Limited acting as solicitors for the Claimant have also contravened S40 (2).
    These are criminal offences and I respectfully request that this Court consider whether the relevant Police Authorities be enjoined to these proceedings and/or invited to investigate a possible criminal offence by the Claimant contrary to the Administration of Justice Act (1) (c) and (d) and (2), occasioned by the Claimant and their solicitors acting in such as a manner as described under 15. above.
    16. I respectfully request that this Court act upon my request at 14. above if it so chooses.
    17. I proffer as a Complete Defence my contention that the action of the Claimant at 11. above is illegal and under ex turpi causa non oritur actio (“no action can arise from an illegal or immoral act”).
    “No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then the Court says he has no right to be assisted. It is upon this ground the Court goes; not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff.”
    Lord Mansfield CJ, Holman v Johnson (1775) 1 Cowp 3411
    18. I contend that should the Claimant be successful in its claim and take possession of the whole or part of the sum of money they are claiming under this their claim, a criminal offence under the Proceeds of Crime Act 2002 would have been occasioned as Cabot Financial (UK) Limited are unlicensed by the Financial Conduct Authority as a debt collector.
    19. I respectfully request that this Court consider whether the relevant Police Authorities be enjoined to these proceedings and/or invited to investigate a possible criminal offence by the Claimant contrary to the Proceeds of Crime Act 2002, occasioned by the Claimant seeking to unlawfully take possession of the whole or part of the sum of money they are claiming under this their claim, and having reference to 15. above.
    20. I respectfully request that this Court act upon my request at 18. above if it so chooses.
    21. On xxxxx I sent a request to the Claimant requesting sight in accordance with
    CPR 31.14 of the following documents.

    1. Agreement between the Defendant and Capital One, Account No: xxxxx iincluding Terms thereto.

    2. Notice of Assignment to Cabot Financial (UK) Limited.

    3. Deed of Assignment to Cabot Financial (UK) Limited dated xxxxx (the date stated in the Claimant’s Particulars of Claim).

    4. All requests to me for payment/s, from Capital One and from Cabot Financial (UK) Limited and from Drydens Limited trading as Drydensfairfax Solicitors from the date that Account No: xxxxx was opened to xxxxx.

    At the date of filing this Defence the Claimant has not sent any of these documents to me.
    22. On xxxxx I sent a request to the Claimant, together with the statutory £1.00 fee, for a copy of the original Agreement pursuant to Section 78 of the Consumer Credit Act 1974. At the date of submitting this Defence I have not received this document from the Claimant.
    23. The Claimant has failed to comply with Section 78 (1) of the Consumer Credit Act 1974 and by virtue of Section 78 (6) of the Consumer Credit Act 1974 cannot enforce the agreement.
    24. The Claimant’s Particulars of Claim fail to state the date upon which the Agreement between myself and Capital One Bank (Europe) PLC commenced.
    25. The Claimant’s Statement of Case states that the account was assigned from ‘Capital One’. This is incorrect. I do not recall receiving notice of this assignment.
    26. It is denied that Capital One served any Default notice on myself pursuant to S87 of the Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon me.
    27. I have tried to contact the Claimant to ask if we may agree to extend the time period allowed for filing of my Defence pending my receipt of their documents (as allowed under CPR 15.5), but they have not picked up the telephone to me. I have therefore been unable to make said request.
    28. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my Defence, and I would ask that the Claimants bear the costs of the amendment/s.
    29. I respectfully request that the Court Orders the Claimants to provide the necessary documentation in order for me to fully plead my case. In the absence of the documents I respectfully request that Judgment be awarded for me, the Defendant, with costs, damages and compensation.
    30. Under Civil Procedure Rule 16.5 (4) where the claim includes a money claim, a Defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless the Defendant expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.
    Statement of Truth
    I, xxxxx, the Defendant, believe that the facts stated in this Defence are true.
    Signed: _______________________________
    Print Name: xxxxx
    Dated: ________________________________

  7. #57
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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    ignore E + W + N + SI. No idea what that is.
    FF
    xx

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    open up each paragraph as a judge I would give up before I start to read it, presentation ?

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by MIKE770 View Post
    open up each paragraph as a judge I would give up before I start to read it, presentation ?
    Seriously?

    This site doesn't keep the formatting when cutting and pasting a Word document. I did state in my post, 'Don't take notice of the spacings, they have gone to pot on your site.'

    The Defence is perfectly set out in its real format.

    Any comments on the substance are invited.
    FF
    xx

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by FaithForever View Post
    ignore E + W + S + NI. No idea what that is.
    FF
    xx
    England+Wales+Scotland+Northern Ireland.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by FaithForever View Post
    Seriously?

    This site doesn't keep the formatting when cutting and pasting a Word document. I did state in my post, 'Don't take notice of the spacings, they have gone to pot on your site.'

    The Defence is perfectly set out in its real format.

    Any comments on the substance are invited.
    FF
    xx
    =

    take heed and not criticise , that is a comment on substance!

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    spacing once posted can be achieved in the reply section

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by charitynjw View Post
    England+Wales+Scotland+Northern Ireland.
    Ah, mystery solved. Thank you.

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    My only comments would be that the defence should be the basics and attachments and case law should possibly be kept to the WS.

    I appreciate you want to kill the claim dead now but by revealing all your legal arguments now you give them more time.

    Have you actually counter claimed? This would, I think be done when you acknowledged the claim and ticked the appropriate box

    Additionally, earlier in the thread you said you were not going to mention any potential illegality - clearly you have changed your mind.

    If you are submitting online you may find it too long although I am not sure of the character/lone count allowed @charitynjw @MIKE770 might now. I also do not think online allows attachments


    Just one final comment- people on this forum generally comment in good faith, are not professionals and I think it is uncalled of, for you to make abrasive comments when someone has missed a line or two of what is a long post.
    Last edited by warwick65; 14th October 2017 at 17:31:PM.
    Any advice or opinions I offer are based on my experience dealing with personal debt as well as other life events.
    I have no formal legal training
    Any advice is offered without liability
    If in doubt take professional legal advice or contact the CAB

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Claim responses & directions:
    ccbcaq@hmcts.gsi.gov.uk



    try to submit using the above and add attachments, been told it works from others in the past

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    case law is normally in the WS stage, as they have less time to trash any defence if have substance to? i.e. more informative than the defence stage.

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    I'm certainly no expert, so I may be barking up the wrong tree.
    I'm trying to get my head around-

    You quote s 40(1) Administration of Justice Act.
    3(A) of that section is
    [
    F1
    (3A)
    Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.]
    So on to CPUTR
    s29
    Validity of agreements

    29. An agreement shall not be void or unenforceable by reason only of a breach of these Regulations.
    CAVEAT LECTOR

    This is only my opinion - "
    Opinions are made to be changed --or how is truth to be got at?" (Byron)

    You and I do not see things as they are. We see things as we are.
    Cohen, Herb

    There is danger when a man throws his tongue into high gear before he
    gets his brain a-going.
    Phelps, C. C.

    "They couldn't hit an elephant at this distance!"
    The last words of John Sedgwick

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    Smile Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by warwick65 View Post
    My only comments would be that the defence should be the basics and attachments and case law should possibly be kept to the WS.

    I appreciate you want to kill the claim dead now but by revealing all your legal arguments now you give them more time. I agree - this is a concern but I don't want to get to the WS stage. They are showing signs of worry about it being SB'ed so I thought I'd give them many reasons to not proceed. If it works for me it might work for others - that's why I've posted the whole thing up. I know it's a pig to read. It's also been a pig to do.

    Have you actually counter claimed? This would, I think be done when you acknowledged the claim and ticked the appropriate box Yes, I have counter claimed/fully defended'.

    Additionally, earlier in the thread you said you were not going to mention any potential illegality - clearly you have changed your mind. Well I thought, why not? What is that quote? 'Bad things happen when good people do nothing?'

    If you are submitting online you may find it too long although I am not sure of the character/lone count allowed @charitynjw @MIKE770 might now. I also do not think online allows attachments I found this in the Practice Directions and I will put it here for anyone after this post. It's 25 pages when printed out by the Court admin staff on A4 sheets, using both sides. Not attachments - scanned as one doc with an Appendix after the Defence.


    Just one final comment- people on this forum generally comment in good faith, are not professionals and I think it is uncalled of, for you to make abrasive comments when someone has missed a line or two of what is a long post.
    Actually I agree, it does read as abrasive - perhaps so because I am deep in the Defence with my 'legal' head on, trying to perfect it. Busy cutting it and taking out details at the moment. I suppose I can't blame a stranger for not knowing that I would have the spacing down-pat. Perhaps I should have put a smiley face after 'Seriously?'

    So it was read it like this
    . 'Seriously? ' or maybe a winking smiley?


    - - - Updated - - -

    PRACTICE DIRECTION 5B – COMMUNICATION AND FILING OF DOCUMENTS BY E-MAIL
    This Practice Direction supplements rule 5.5
    Contents of this Practice Direction
    Scope and Interpretation
    1.1 This practice direction provides for parties to communicate and file specified documents with the court by e-mail in proceedings to which the Civil Procedure Rules apply.

    1.2 This practice direction—

    (a) does not apply to proceedings which were issued in or transferred to the Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court, the Mercantile Court, and the Admiralty Court, at the Royal Courts of Justice, Rolls Building, London (together, “the Rolls Building Jurisdictions”); and

    (b) only applies to claims started under Practice Direction 7E (Money Claim Online) if the claim has been sent to a County Court hearing centre.
    1.3 In this practice direction–

    (a) ‘specified document’ means a document listed in the e-mail guidance (‘the e-mail guidance’) on Her Majesty’s Courts and Tribunals Service (‘HMCTS’) website as a document that may be sent to a specified e-mail address;
    (The e-mail guidance can be found at: https://www.justice.gov.uk/courts/em...idance#canfile)

    (b) ‘specified e-mail address’ means the email address for a court office which has been published on the Courts and Tribunals Finder website at: https://courttribunalfinder.service.gov.uk/courts/; and

    (c) references to “e-mailing a court” mean e-mailing a court office at its specified e-mail address.
    Back to top
    Communications and documents which may be sent by e-mail
    2.1 Subject to paragraphs 2.2 and 2.3, a party may e-mail the court and may attach or include one or more specified documents to or in that e-mail.

    2.2 In the High Court—

    (a) a party must not e-mail an application or other document to the court where a fee is payable for that document to be filed with the court; and

    (b) the length of any attachments and total size of an e-mail must not exceed the maximum which the appropriate court office has indicated it can accept.

    2.3 In the County Court—

    (a) if a fee is payable in order for an e-mailed application or other document to be filed with the court, a party must, when e-mailing the court—

    (i) provide a Fee Account number, credit card number or debit card number which the party has authority to charge for the applicable fee; and

    (ii) authorise the court to charge the applicable fee to that Account or card number;

    (Further information about using the Fee Account service may be found at: https://www.justice.gov.uk/courts/fe...ent-by-account)
    (b) when printed out on both sides of A4 paper, the following documents, together, must not exceed 25 sheets of paper in total—

    (i) the e-mail;

    (ii) any attachments, including any e-mail or document embedded in any attachment; and

    (iii) copies of the documents in paragraphs (i) and (ii) that the court will serve where service is requested or required under the rules;

    (c) only one e-mail, including any attachments, may be sent to the court to take any step in the proceedings and a party may not send another e-mail or a hard copy of any additional document as part of that step; and

    (d) the total size of an e-mail, including any attachments, must not exceed 10.0 megabytes.

    2.4 The court may refuse to accept any application or other document, including any attachment, e-mailed to the court where—

    (a) a party does not comply with the provisions in paragraphs 2.2 or 2.3; or

    (b) a fee is payable pursuant to paragraph 2.3(a) and the court has not been able to charge the fee to the Account or card number provided by the sender.
    Back to top
    Technical specifications
    3.1 An e-mail sent to the court must—

    (a) include the name and telephone number of the sender and an address for contact, which can be an e-mail address; and

    (b) be in plain text or rich text format rather than HTML.

    3.2 Subject to paragraph 3.3, correspondence and documents may be sent as either text in the body of the e-mail, or as one or more attachments.

    3.3 Completed forms that are prescribed by a rule or practice direction must be sent as attachments.

    3.4 Where a prescribed form requires that one or more documents must be attached to that form, that document or documents must be attached to the e-mail to which the form is attached.
    (Court forms may be downloaded from HMCTS website at: http://hmctsformfinder.justice.gov.u.../FormFinder.do)

    3.5 Attachments must be sent in a format supported by the software used by the court office to which it is sent. The format or formats which may be used in sending attachments to a particular court office are listed in the e-mail guidance.

    3.6 Where proceedings have been started, the subject line of the e-mail must contain the following information—

    (a) the case number;

    (b) the parties' names (abbreviated if necessary); and

    (c) the date and time of any hearing to which the e-mail relates.
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    Further provisions
    4.1 Where a party sends an e-mail to the court they must not send a hard copy of that e-mail or any attachment to the court.

    4.2 Where an e-mail, including any attachment, is sent pursuant to this practice direction and the e-mail is recorded by HMCTS e-mail software as received by the court at or after 4.00pm and before or at 11.59pm—

    (a) the date of receipt of the e-mail will be deemed to be the next day the court office is open;

    (b) the date of issue of any application will not be before that date; and

    (c) any document attached to that e-mail will be treated as filed on that date.

    4.3 It remains the responsibility of the party sending an application or other document to the court pursuant to this practice direction to ensure that it is received or filed within the applicable time limits, taking into account the operation of this practice direction.

    4.4 A court officer may reply by e-mail where the response is to a message received at a specified e-mail address.

    4.5 If a document sent by e-mail requires urgent attention, the sender should contact the court by telephone.
    Back to top
    Statements of truth
    5.1 Where a party wishes to file a specified document containing a statement of truth by e-mail, that party should retain the document containing the original signature and file with the court a version of the document satisfying one of the following requirements—

    (a) the name of the person who has signed the statement of truth is typed underneath the statement; or

    (b) the person who has signed the statement of truth has applied a facsimile of their signature to the statement in the document by electronic means.

    5.2 The Court may require a party to produce the document containing the original signature.
    Back to top
    Updated: Monday, 30 January 2017

  19. #69
    Diana M's Avatar

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by FaithForever View Post
    I understand that a debt is Statute Barred provided 6 years have passed from the date of the last payment and that there has been no acknowledgment of the debt (there has not). The Ombudsman Decided in my partner's favour. Cap1 sold on the account to another collector, who my partner wrote to asking for the money owed. They sold it onto yet another collector, who my partner wrote to again. They sold it to Cabot, who were chasing him so he wrote to Cap1 asking them to comply and deconstruct and reconstruct the account. In late 2015 Cap1 wrote to my partner saying they no longer had anything to do with the account. Cabot wrote to my partner early 2016 spewing out the same rubbish. As my partner has never and does not acknowledge the debt I believe I need to press Cabot to prove that this is not Statute Barred.
    Going back to post # 3 - you are not party to these legal proceedings.

    You are asking an internet forum to approve a Defence on behalf of the Defendant who is not you.

    I (my firm) would not do that because of the risks involved.

    Is you partner (the Defendant in these proceedings) fully aware of the situation?

    I have raised the issue of an unlicensed Claimant. I've not said why/how that matters in civil (not criminal) legal terms.

    You (for whatever reason) have decided that the court should be advised of your legal view which appears to be based on criminal issues.

    That's not the view my firm takes. It's your personal view for whatever reason.

    I'm not going contribute further to your thread but I will say this "think like a Judge" who reads your partner's Defence which basically says "call 999" in Paragraph 13 (?).

    I wish your partner well with these proceedings against him.

    Di
    I am a Litigation Executive at Joanna Connolly Solicitors a firm which specializes in consumer credit.

    This forum’s site rules don’t allow me to give advice by PM but if you need to contact me please email di@joannaconnollysolicitors.co.uk. Our initial advice is always free.


    Any posts I make on LegalBeagles are for information and discussion purposes only and shouldn't be seen as legal advice. Any advice I provide is without liability. If you are unsure please seek formal legal guidance or contact your local citizens advice bureau at https://www.citizensadvice.org.uk

  20. #70
    warwick65's Avatar

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    I have just looked at the consumer credit act and in the latest available version online the sections you have quoted have been removed
    https://www.legislation.gov.uk/ukpga/1974/39/contents

    If I, without any legal training can see this, what will a trained solicitor or paralegal make of it

    I do think you are leading your partner down a very dangerous road but that is just my opinion.

    I know this is a small claims court but costs can still be and are awarded against losing parties.

    It is of course possible that they will discontinue rather than face a hearing but equally as the defendant is a LiP they may decide to field a barrister and throw significant resources at it- after all, at some point this licence issue will need resolving and if it was easy I suspect it would have been done by now.

    I know of a recent case where a different company did field a barrister against a 2K claim. I am sure they had their reasons.
    Any advice or opinions I offer are based on my experience dealing with personal debt as well as other life events.
    I have no formal legal training
    Any advice is offered without liability
    If in doubt take professional legal advice or contact the CAB

  21. #71
    FaithForever's Avatar

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by Diana M View Post
    Going back to post # 3 - you are not party to these legal proceedings.

    You are asking an internet forum to approve a Defence on behalf of the Defendant who is not you. Spoken like a true lawyer, lol. Not exactly 'approve', just comment on in an open forum, but with hindsight, absolutely right about the Defendant thing. lol.

    I (my firm) would not do that because of the risks involved. Too true.

    Is you partner (the Defendant in these proceedings) fully aware of the situation? Yes, of course. He's been doing the PPI calculations cos he's better at Excel than I am, and in fact we're just reading through the Defence, which I have cut back considerably, before he signs it. After all, he has to understand what he says in court if it gets that far, and be happy with it.

    I have raised the issue of an unlicensed Claimant. I've not said why/how that matters in civil (not criminal) legal terms. Okay. I wouldn't dream of holding you to account. It's just a forum where I really appreciate everybody's views - 'views' being the operative word. My partner and I are responsible for our own actions and for the outcome of any of those actions.

    You (for whatever reason) have decided that the court should be advised of your legal view which appears to be based on criminal issues. Not exactly. Actually it was a post by PT2537 on 'that other site' on 6th October 2015 that started me on that path, but I've held back and taken all that out of the Defence anyway, as when I read it I thought it was 'over-egging the pudding' for the result we want to achieve. I think the most important thing is to get them to scurry away using SB. Then we'll be done with it and done with all the stress.

    That's not the view my firm takes. It's your personal view for whatever reason. Okay.

    I'm not going contribute further to your thread but I will say this "think like a Judge" who reads your partner's Defence which basically says "call 999" in Paragraph 13 (?). It's already out. That item is watered down to just pointing out that Cabot are not licensed, so please don't worry on that score.

    I wish your partner well with these proceedings against him. Thank you, and thank you everybody on this thread. I only expect to post once more, to let you know the outcome.

    Di
    Thank you again, and thank you everybody on this thread. I only expect to post once more, to let you know the outcome.

  22. #72
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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Evening Faith, you've been very busy Good work. This is just a suggestion to bring it down to a defence, as opposed to what seems like a full skeleton argument. Be careful with an allegations of illegality too- sure that's been said previously..... Maybe something between the two? ( while I was farting about trying to bring it down to a more manageable size I see conversation has moved on a bit so feel free to ignore lol - but definately cut it down a lot ) ( also check the dates on the FOS re statute barring - I don't know the date of the FOS adj vs date of default - do you actually ever have 6 yrs without acknowledgment ??)





    IN THE NORTHAMPTON COUNTY COURT
    CLAIM NO: XXXX
    BETWEEN
    Cabot Financial (UK) Limited
    Claimant
    AND
    xxxxxxxxxxxxxxxx
    Defendant

    DEFENCE



    1. I, xxxxx, the Defendant, received the claim form, Claim No: xxxxx, from the Northampton County Court Business Centre, Northampton County Court on xxxxxx.

    2. I, as Defendant, deny each and every allegation in the Claimant’s Particulars of Claim unless specifically admitted in this Defence.

    3. The Claimant states in the Particulars of Claim that their claim is for an Agreement regulated under the Consumer Credit Act 1974.

    4. On xxxxx I sent a request to the Claimant requesting sight in accordance with CPR 31.14 of the following documents;

    i. Agreement between the Defendant and Capital One, Account No: xxxxx including Terms thereto.
    ii. Notice of Assignment to Cabot Financial (UK) Limited.
    iii. Deed of Assignment to Cabot Financial (UK) Limited dated xxxxx (the date stated in the Claimant’s Particulars of Claim).
    iv. All requests to me for payment/s, from Capital One and from Cabot Financial (UK) Limited and from Drydens Limited trading as Drydensfairfax Solicitors from the date that Account No: xxxxx was opened to xxxxx.

    At the date of filing this Defence the Claimant has not sent any of these documents to me.

    5. On xxxxx I sent a request to the Claimant, together with the statutory £1.00 fee, for a copy of the original Agreement pursuant to Section 78 of the Consumer Credit Act 1974. At the date of submitting this Defence I have not received this document from the Claimant.

    6: The Claimants statement of case states that the account was assigned to themselves from Capital One. I do not recall receiving notice of this assignment. The Claimant is required to evidence that the rights and duties under the alleged agreement have been legally assigned to them.

    7. It is denied that Capital One served any Default notice on myself pursuant to S87 of the Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon me.

    8. The Claimant has failed to comply with Section 78 (1) of the Consumer Credit Act 1974 and by virtue of Section 78 (6) of the Consumer Credit Act 1974 cannot enforce the agreement.

    9: Further, or in the alternative, the account on which the Claimant's claim is based is subject to a Financial Ombudsman ruling dated xxxxxxxxxxxxxxx regarding mis-sold payment protection insurance (PPI).

    10: The Ombudsman's ruling ( EXHIBIT A) was accepted by the Defendant and the original creditor (Capital One). The effect of the ruling was that Capital One were required to recalculate the account to put me back in the position I would have been in had the PPI not been applied. The subsequent refund to the account, had it been correctly calculated and applied, would have left the account in a credit, rather than a debit, postion.

    11: Capital One failed to comply with the ruling and, it is pleaded in the Claimant's statement of case, have assigned the rights and duties of the account to the Claimant. The Claimant are therefore liable and responsible for complying with the Ombudsman’s Decision under the Financial Services and Markets Act 2000. The Claimant is required to provide their calculations and demonstrate that the Ombudsman's ruling has been complied with.

    12: Further, or in the alternative, I contend that the alleged debt is statute barred pursuant to the provisions of Section 5 of the Limitations Act 1980 in that the last payment or acknowledgement of the debt was made over six years ago and no further acknowledgement or payment has been made since that time to date. The Claimant has previously been notified of this position and is required to evidence the alternative.13: Further, or in the alternative, The Claimant is not authorised to carry on the activity of Debt Collection or Administration by the Financial Services Authority. Collection of a debt arising from a regulated Consumer Credit agreement constitutes a Regulated Activity within the meaning of the Financial Services & Markets Act 2000 (Regulated Activities) Order 2001 (‘RAO’) (Section 39F) and therefore the Claimant is acting in contravention of Section 19 of the FSMA 2000 and is not entitled to bring this claim.


    Statement of Truth
    I, xxxxx, the Defendant, believe that the facts stated in this Defence are true.
    Signed: _______________________________
    Print Name: xxxxx
    Dated: ________________________________
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

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  23. #73
    Amethyst's Avatar

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    The other issue that I have is that the FOS decision is enforceable in court if they failed to comply, but they partially complied and it wasn't taken further after informing them they hadn't complied - again I don't know dates between the FOS decision and this claim / the debt being sold on, so whether it was complained about then nothing happened and it was left for ages, or if you were still mid complaint about the calculations. So although you have the ruling, it's not a specific amount of money so isn't as straightforward as if the Ombudsman had awarded a specific sum.

    ( When an ombudsman ruling isn't a specific sum it is a different kind of claim in the court to turn it into a judgment - all gets stupidly complicated - so for future ref always try and get the ombudsman to pin down a specific money award then it's just a quick application to get a court judgment for enforcement purposes )

    So really just saying to be wary of that on the FOS ruling argument.
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

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  24. #74
    Amethyst's Avatar

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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by warwick65 View Post
    I have just looked at the consumer credit act and in the latest available version online the sections you have quoted have been removed
    https://www.legislation.gov.uk/ukpga/1974/39/contents
    ooo which bits ? although I only noticed s78 and s87 stated in the long defence
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

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  25. #75
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    Default Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

    Quote Originally Posted by Diana M View Post

    I'm not going contribute further to your thread but I will say this "think like a Judge" who reads your partner's Defence which basically says "call 999" in Paragraph 13 (?).
    Di
    lol, indeed, I thought the same, not a good path to go down. It is a tricky one to put in pleadings though - any ideas how to plead unlicenced = not able to claim debt - without bringing 'criminal' into it ?
    “We may not win by protesting, but if we don’t protest we will lose. If we stand up to them, there is always a chance we will win.” Hetty Bower

    Any advice I provide is given without liability, if you are unsure please seek professional legal guidance.

    Find Solicitors offering fixed fees on our sister site - JustBeagle.com

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