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Timeline:
() = Entries out of chronological order
22 Feb 2021 - Date of Claim
01 Mar 2021 - Acknowledgement of Service submitted requesting 28 days to submit defence
27 Mar 2021 - Deadline to submit defence (as confirmed by the Court)
(25 Mar 2021) - Made first contact with Mortimer Clarke (acting on behalf of Cabot)
(26 Mar 2021) - Requested CCA from Mortimer Clarke by email / requested extension of time while awaiting documentation
29 Apr 2021 - Revised deadline after extension of time agreed between the parties
(22 Apr 2021) - Mortimer Clarke confirm request for CCA from original creditor (Halifax) only submitted on this day following chase up call (nearly 4 weeks after initial request)
(27 Apr 2021) - Requested further extension of time to await documentation owing to CCA request not being submitted by Claimant until 22 Apr 2021
13 May 2021 - Revised deadline after additional extension of time agreed between the parties
Issue:
Mortimer Clarke are refusing to extend the deadline further to await production of the CCA. Instead they wish to seek a judgement by default following a letter, dated 16 Mar 2021, in which they stated they had not received a response to the Claim Form which they claim gives them the right to have judgement entered in their favour. (I have however checked with the Court who have confirmed I have until 13 May 2021 to submit my defence free from judgement being entered against me).
I have based my defence on your example defence and am seeking to rely on the fact that the Claimant cannot enforce the agreement having not complied with s78(1) Consumer Credit Act 1974 even though the money is owed.
Given that the matter relates to a defaulted credit card debt with Halifax of approximately £5700 plus costs from March 2008, which was assigned to Cabot in February 2020, I anticipate that the CCA will be produced in time as I suspect it is not old enough to have been mislaid. Accordingly I am not viewing this as a way of avoiding repayment but as a mechanism to prevent a judgement being entered without the opportunity to negotiate further with the Claimant.
When I first contacted Mortimer Clarke I asked if we could agree a payment plan, without proceeding to Court, however they refused and offered the following 2 options:
Given that the default is due to drop off my credit files in August 2023 I am very keen to avoid a CCJ being entered. I do not however have the means to repay the debt in full. Having prepared an income / expenditure budget I can only offer a maximum month payment of £35. I do however have a close family friend who is willing to give me a one off payment of £3000 plus £510 costs in full and final settlement to avoid a CCJ being entered against me. They also cannot afford to repay the debt in full, nor would I expect them to; I am grateful enough for the sum they have offered and the opportunity to potentially avoid a CCJ.
Questions:
So, my specific questions in regard to my strategy when negotiating with Mortimer Clarke are:
() = Entries out of chronological order
22 Feb 2021 - Date of Claim
01 Mar 2021 - Acknowledgement of Service submitted requesting 28 days to submit defence
27 Mar 2021 - Deadline to submit defence (as confirmed by the Court)
(25 Mar 2021) - Made first contact with Mortimer Clarke (acting on behalf of Cabot)
(26 Mar 2021) - Requested CCA from Mortimer Clarke by email / requested extension of time while awaiting documentation
29 Apr 2021 - Revised deadline after extension of time agreed between the parties
(22 Apr 2021) - Mortimer Clarke confirm request for CCA from original creditor (Halifax) only submitted on this day following chase up call (nearly 4 weeks after initial request)
(27 Apr 2021) - Requested further extension of time to await documentation owing to CCA request not being submitted by Claimant until 22 Apr 2021
13 May 2021 - Revised deadline after additional extension of time agreed between the parties
Issue:
Mortimer Clarke are refusing to extend the deadline further to await production of the CCA. Instead they wish to seek a judgement by default following a letter, dated 16 Mar 2021, in which they stated they had not received a response to the Claim Form which they claim gives them the right to have judgement entered in their favour. (I have however checked with the Court who have confirmed I have until 13 May 2021 to submit my defence free from judgement being entered against me).
I have based my defence on your example defence and am seeking to rely on the fact that the Claimant cannot enforce the agreement having not complied with s78(1) Consumer Credit Act 1974 even though the money is owed.
Given that the matter relates to a defaulted credit card debt with Halifax of approximately £5700 plus costs from March 2008, which was assigned to Cabot in February 2020, I anticipate that the CCA will be produced in time as I suspect it is not old enough to have been mislaid. Accordingly I am not viewing this as a way of avoiding repayment but as a mechanism to prevent a judgement being entered without the opportunity to negotiate further with the Claimant.
When I first contacted Mortimer Clarke I asked if we could agree a payment plan, without proceeding to Court, however they refused and offered the following 2 options:
- Repay the total amount in 3 monthly instalments to avoid a CCJ
- Offer a monthly payment which would result in a CCJ being entered against me
Given that the default is due to drop off my credit files in August 2023 I am very keen to avoid a CCJ being entered. I do not however have the means to repay the debt in full. Having prepared an income / expenditure budget I can only offer a maximum month payment of £35. I do however have a close family friend who is willing to give me a one off payment of £3000 plus £510 costs in full and final settlement to avoid a CCJ being entered against me. They also cannot afford to repay the debt in full, nor would I expect them to; I am grateful enough for the sum they have offered and the opportunity to potentially avoid a CCJ.
Questions:
So, my specific questions in regard to my strategy when negotiating with Mortimer Clarke are:
- In my defence submission, am I able to admit that I have previously entered into an agreement with Halifax for the provision of credit without prejudicing the fact that I am seeking to defend the claim on the grounds of non compliance with s78(1) CCA 1974?
- At what point should I make my full and final settlement offer to Mortimer Clarke? Will I be given an opportunity after the eventual production of the CCA to amend my defence to include this offer or can the Claimant seek to have judgement entered against me on production of the CCA having not heard my offer, in which case am I better making the offer at the same time as submitting my defence, subject to the production of the CCA?
