Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

[pauulss]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Nemesis

Should i reply to Restons letter asking for the again - saying their reasoning is unsatisfactory and it my right to have sight of the CPR 31.14
and i refute their reasons laid out in their letter.

Would this aid my case any better ?

or am i best waiting until my defence is due if i have i have nothing from Cabot i can claim lack of documents via my defence ?

Sorry for all the questions, but im learning all the time and just want to make sure i do things right - cheers Nemesis
The reading of the forum so far im about 80% clear how things work just need to make show my head is taking it in correctly

[nemesis45]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Better to pursue Cabot, Restons will com up with the CCBC not allowing attachment of docs so CPR31. 14 is not relevant to small claims.

A reminder to Cabot that unless they have the original signed and executed agreement their case is pointless.

[debbbs]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

I have had dealings with Restons.

There response proves they do not have the documents to support the claim.

At some point during these proceedings they will have to come up with something. Put in a defence. Its than up to Restons/Cabot to decide if they want to pay to have the case transferred to your court. If they do you'll recieve notification from your court + an allocation questionairre, with this you will submit a Draft order Directions, this is your CPR request, the judge will give them 21 days to comply.

Personally, the best way to deal with these people is to attack. Respond to Restons stating that they had not complied and you do not recognise the debt. Tell them that unless they discontinue the claim you will be issuing there client with a costs order for costs and undue distress. It seems that they are fishing.

Have you had any correspondence from Cabot prior to this?

When did you last recieve a statement?

[pauulss]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Thanks for taking to time to reply Debbs - much appreciated
Where you wrote "proves they do not have the documents to support the claim." this is reassuring

Have you had any correspondence from Cabot prior to this? Last letter i got was from Marlin which i believe is owned by Cabot in November 2014 saying next steps they were taking was initiating CCJ

When did you last recieve a statement? never had a statement from them ever i dont think, so long ago since a payment was made, i cant recall if the payment were to cabot or another DCA

[pauulss]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Better to pursue Cabot, Restons will com up with the CCBC not allowing attachment of docs so CPR31. 14 is not relevant to small claims.

A reminder to Cabot that unless they have the original signed and executed agreement their case is pointless.

Hi Nemesis

i have penned a follow up chasing letter for the CCA from Cabot

Is this OK to send to Cabot to speed them up and aid my case ?

Cabot Financial UK Limited
1 Kings Hill Avenue
Kings Hill
West Malling
ME19 4UA

Dear Sir/Madam

Re:− Account Number MBNA XXXXXXXXXX

This is my second letter to you about this alleged account above. Further to my letter I sent to you on 23rd December 2014,
Royal Mail Signed For Reference : XXXXXXXXXX &
Postal Order payment for costs reference voucher ID XXXXXXXXXXXXXXX

Royal Mail tracking online shows the letter as delivered & recieved
Signee name for letter: XXXXXXX
Date: 24 December 2014, XX:XXam

Within the letter I stated time of 5 working days to provide me with the documentation, this has now lapsed without even acknowledgement of my original letter

This letter this is my second letter & follow up requesting the same documentation, please supply a copy of my Consumer Credit Agreement as is my entitlement under sections 77-79 of the Consumer Credit Act 1974.

I have to have this in order to submit a defence by at the very 18th January 2015 at the very latest, 10 days from the date of this letter. So I would appreciate you provide my requested documentation as soon as possible

f I am not in receipt of this documentation by 18th January 2015 I will have no option than to submit this in my defence to your court claim.

Unless they have the original signed and executed agreement raising this claim case is pointless.

I require you to provide me with a true copy, or reconstituted copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit.

Your obligation also extends to providing me with a statement of account. As I can confirm delivery of my original letter, you are already in receipt of a £1 postal order, which represents payment of the statutory fee payable under the Consumer Credit Act. I understand that a copy of my credit agreement should be supplied within 5 working days from the date of this letter.

If it is your view that you are not the creditor, s.175 of the CCA1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189.

I understand that under the Consumer Credit Act, creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

If I am not in receipt of this documentation by this date I will have no option than to submit none receipt of documents in my defence

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

Yours faithfully,


XXXX XXXX

[nemesis45]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Hi,

One point jumps straight out at me the Statutory Time Scale for A CCA request is 12 + 2 Working Days from the date of the request.

Weekends and Bank Holidays do not count. The limit is Statutory and one cannot imposes ones own conditions.

Letter needs reducing down to essential points avoid duplication, too much detail will loose the reader an important points will be missed.
Ref: County Court Claim No.xxxxxxxxxxx
Sir/ Madam

I refer you to my previous correspondence regarding the claim for an alleged debt to xxxxxxxxxxx in the sum of £xxxxxxxxxxx.

Cabot to date has failed to respond to or comply with may lawful request made under sections 77/78 of CCA 1974 (as amended)

A statutory time scale of 12 + 2 Working Days is allowed for compliance and until Cabot supplies a fully compliant copy of the alleged agreement this matter remains unenforceable in court.

If Cabot is unable to produce the document or believes one does not exist it must immediately inform me in of its inability to comply with my request.

I understand that Cabot has claimed that it has 40 days to comply with such a request this contention is rejected.

Use signed for post. (if a name of a Cabot employee is on their letters use that name in the address. Alternatively address as Private & Confidential to Mr Ken Stannard CEO Cabot Europe.

[pauulss]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

thanks nemesis i will send your revised letter off today

[nemesis45]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Happy to help:tinysmile_twink_t2:

[pauulss]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Thanks again Nemesis Letter has just been mailed out 1st class recorded delivery see what they come back with next

While im still on with this today, i am preparing my defence statement ahead of time today, i can amend as and when things progress

This week i have checked my credit file on experian/equifax and noddle and there is no entries of this alledged debt Cabot are asking for. No defaults, to regular payment. Nothing at all on my file from Cabot relating to the debt

Original particulars of claim on court papers were:
Received a claim? Yes
Issue Date: 16/12/2014
Date of papers received: 19/12/2014
Amount approx: £5400
Claimant: Cabot Financial (UK) Limited
Solicitor: Restons Solicitors Limited - Nigel Petrie Coe
Original Credit: MBNA


Particulars of Claim:


The claimants claims payment of the overdue balance due from the Defendant(s) under a contract between Defendant(s) and Mbna dated on or about Jan 24 2002 and assigned to Claimant on Apr 28 2004 in the sum of £5400


PARTICULARS a/c no **********
DATE 28/11/2014
Default Balance £5400
Post Refrl Cr NIL
TOTAL £5400

Would it aid my defence by including the none presence of ANY Cabot info on my credit file ? If, YES. What is the best way to word in in lgeal terms ??


here is my draft defence
-----------------------------------------------------------------------------------------------
DEFENCE
-----------------------------------------------------------------------------------------------
1:I received the claim XXXXXXX from the NORTHAMPTON County Court on 19^thDecember 2014

2: Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3: This claim appears to be for a credit card agreement regulated under the Consumer Credit Act 1974.

4: It is admitted that the Defendant has previously entered into an agreement with MBNA for provision of credit.

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

The particulars of claim fail to state when the agreement was entered into, they state on or around 24th January 2002

6.The Claimants statement of case states that the account was assigned from MBNA to CABOT FINANCIAL (UK)LIMITED on April 28^th 2004.The Defendant does not recall receiving notice of this assignment.

7. It is denied that MBNA served any Default notice on the Defendant pursuant to s87 Consumer Credi Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

8. On the 23^rdDecember 2014 I sent a request for inspection of documentsmentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Restons Solicitors Limited. I requested the Claimant provide copies of the CONTRACT between myself and MBNA .

9. Restons Solicitors Limited has not sent any of these documents to me.

10.On the 23^rd December 2015 I sent a formal request for a copy of the original agreement to Cabot Financial (UK) Limited pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.

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

12: I have asked the Claimant if we may agree to extend the time period allowed for filing of my defence pending receipt of documents (as allowed under CPR 15.5), but they have not replied.

13.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 he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

14. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

16. It is denied that the Claimant is entitled to the relief as claimed or at all.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.



Signed…………………………………………

Dated............................................. ..... ....


-----------------------------------------------------------------------------------------------


Many thanks everyone

[nemesis45]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Looks good well though out and easy to amend as required !!

A point: Not on CRA files means the default was more than 6 years ago and has been removed.

[pauulss]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Not on CRA files means the default was more than 6 years ago and has been removed.

Thanks Nemesis - glad my template looks good.
Not on CRA files and shows as over 6 years old does that not mean i can add statute barred ? Im afraid i cannot recall the exact date when last payment was made against this MBNA/Cabot account.

Because it is not showing on my CRA file, no payment arrangement in place. No default showing on file = 6 years+ debt

On this basis can i 'assume' it is classed as statute barred

Does this aid my case/defence as there is no link to me?
Is it worth mentioning current credit file and no record of debt in my defence ?

[nemesis45]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Emmm date of default more than 6 years ago so would you have made any payment other than to MBNA?

Thoughts going round in my head will be back.

[pauulss]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

The agreement and payments to MBNA stopped around late 2003, it got passed to DCAs after that
So it is 6 years + since i paid MBNA anything

The court papers claim Cabot were assigned the debt in April 2004
I had £1 token payment being made to various DCAs until March 2010 when i cancelled paying anything realising i was never going to get out of this hole.

There is a £1 showing on my March 2010 bank statement to Cabot but i cannot be sure if it was for this debt or another.
as my debts have been passed across many DCAs

[nemesis45]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Hi, no chance of a statute barred defence here at the moment because of surety of dates
However given the age of the account Cabot must have an proper copy of the original signed
and executed agreement a " reconstituted agreement" is unacceptable,.

I am very tempted to suggest sending a " a why not give up" letter to Restons while waiting for documents to be supplied.
e.g.

Dear Restons

I refer to County Claim No,xxxxxxxxx in which Restons act on behalf of Cabot Financial this alleged debt was assigned to Cabot some 10 years ago and no attempt has been made to enforce the debt in that time, where as no action should be started after years from the date of the cause of action.

I also refer you to the fact that this alleged debt arises from agreement signed prior to April 2007 and Cabot must produce a proper copy of the Original signed an executed regulated agreement to prove that any such alleged debt may exist.
I respectfully suggest that Restons advises its " client " to withdraw this claim so as to save court time and further costs,

Your decision of course, if I can help further please come back to me.

nem

[Amethyst]

Re: Court Claim : Cabot / Restons / MBNA VS Pauulss 16-12/2014

Looks fine so far Paul, don't know what you are worrying about, honestly. It does need some work, There's a little bit of rewording needed and you need to take out the erroneous square brackets you've left on from the example defence, and I reckon you can put in the uncertainty over whether you have made any payments in the past 6 years and stick the burden of proof onto their shoulders - mention nothing on your credit file, and not knowing exactly what this debt is etc..... There's no credit agreement come back, they have not sent the DN or the notice of assignment - they need to do all of that to get anywhere on the claim. Despite what others might tell you elsewhere - if there is no Consumer Credit Agreement or a reconstruction of such then they just cannot obtain a judgment against you.

MBNA usually seem to be able to come up with a signature page but missing all the accompanying terms and conditions. Cabot usually take up to 40 days to produce. Restons rarely agree to an extension. So it is likely you will be needing to put your defence in to court.

Stick with it, keep your chin up and if they do suddenly come up with the documents and proof of payments and everything is perfect then we'll help you try negotiate with them for an installment affordable plan that you could do under a Tomlin order thus avoiding a CCJ.

If the worst comes to the worst and they got a CCJ against you, what is the worst they can do ? really ?

This is likely to be your first of a few claims judging by what you said early on in the thread - each will be different but stick with it and keep you confidence up - it is a game of chess - they will try and make you knock your King over before you need to.... we're here to help you stand up to them.