MCOL claim from Cabot/Mortimer Clarke

[foobar]

My immediate concern is that there is an application hearing listed for (a week Friday (25th)) next Monday (21st) on the request under 31.14, and that may need to be withdrawn. If the case proceeds to trial, I am very much not in a position to pay any judgment on the original amount within 30 days, let alone any additional costs.

Re: the DQ, do I need to do anything other than address this in the complaint to the Court Manager, or do I need to raise it with anyone else? Do I need to ask for one to be sent and/or the trial date vacated? Do I need to complete and send one anyway?

[echat11]

My immediate concern is that there is an application hearing listed for a week Friday (25th) on the request under 31.14, and that may need to be withdrawn. If the case proceeds to trial, I am very much not in a position to pay any judgment on the original amount within 30 days, let alone any additional costs.

Re: the DQ, do I need to do anything other than address this in the complaint to the Court Manager, or do I need to raise it with anyone else? Do I need to ask for one to be sent and/or the trial date vacated? Do I need to complete and send one anyway?

a) My immediate concern is that there is an application hearing listed for a week Friday (25th) on the request under 31.14, and that may need to be withdrawn.

Yes, email the Court and the Creditors solicitors withdrawing the application as they have now complied with the request.

b) Re: the DQ, do I need to do anything other than address this in the complaint to the Court Manager, or do I need to raise it with anyone else?

It's an Admin issue, so the Court Manager can deal with it, but you should have lodged a Complaint months and months ago.
Raising a Complaint now, with the Hearing so close, I'm not sure what they will do. No you don't need to raise it with anyone else.

c) Do I need to ask for one to be sent and/or the trial date vacated? Do I need to complete and send one anyway

You'll have to see what they say before any of those questions can be answered.

[foobar]

It's an Admin issue, so the Court Manager can deal with it, but you should have lodged a Complaint months and months ago

Are we getting confused over the timescale? This was barely a couple of weeks ago. When I was following up with the listings team originally, the staff member did say in relation to the trial listing that they "had to perform some gymnastics to fit it in", so it does seem like things have been moving a little quicker than usual at the local court.

I have called the court to ask about both this and the application. The confirm that they have no record of DQs being requested or received, and that they referred my original request for an explanation to a judge (who then just listed the application and gave no further explanation). They have told me that both the initial decision to directly allocate and list for trial and the subsequent listing of the application are judicial actions, not admin issues, and there would be nothing they could do, other than refer any queries to a judge. I take from this that there's no point in me pursuing a complaint via the Court Manager.

For the application, the court have suggested that if I just ask for it to be withdrawn it would probably go before a judge anyway, and I'm concerned that there may be costs implications there. They suggested agreeing a consent order to withdraw the application, and there would be no fee because the application itself has already been "paid for" (via HWF). Which of these two would you suggest?

In the meantime, I'm firing up the scanner for the documents to see if there is anything I'm missing.

[echat11]

Are we getting confused over the timescale? This was barely a couple of weeks ago. When I was following up with the listings team originally, the staff member did say in relation to the trial listing that they "had to perform some gymnastics to fit it in", so it does seem like things have been moving a little quicker than usual at the local court.

I have called the court to ask about both this and the application. The confirm that they have no record of DQs being requested or received, and that they referred my original request for an explanation to a judge (who then just listed the application and gave no further explanation). They have told me that both the initial decision to directly allocate and list for trial and the subsequent listing of the application are judicial actions, not admin issues, and there would be nothing they could do, other than refer any queries to a judge. I take from this that there's no point in me pursuing a complaint via the Court Manager.

For the application, the court have suggested that if I just ask for it to be withdrawn it would probably go before a judge anyway, and I'm concerned that there may be costs implications there. They suggested agreeing a consent order to withdraw the application, and there would be no fee because the application itself has already been "paid for" (via HWF). Which of these two would you suggest?

In the meantime, I'm firing up the scanner for the documents to see if there is anything I'm missing.

a) Are we getting confused over the timescale? This was barely a couple of weeks ago. When I was following up with the listings team originally, the staff member did say in relation to the trial listing that they "had to perform some gymnastics to fit it in", so it does seem like things have been moving a little quicker than usual at the local court.

I'm concerned that you have a Hearing in a few weeks. If you can't get it relisted, then you need to prepare for it.

b) I have called the court to ask about both this and the application. The confirm that they have no record of DQs being requested or received, and that they referred my original request for an explanation to a judge (who then just listed the application and gave no further explanation). They have told me that both the initial decision to directly allocate and list for trial and the subsequent listing of the application are judicial actions, not admin issues, and there would be nothing they could do, other than refer any queries to a judge. I take from this that there's no point in me pursuing a complaint via the Court Manager.

Admin sends DQ's to the parties not the Judge. Something is clearly wrong, as to why they weren't sent out.
If the DQ's are not received back from the parties, then the Court may give any direction it considers appropriate.

c) For the application, the court have suggested that if I just ask for it to be withdrawn it would probably go before a judge anyway, and I'm concerned that there may be costs implications there. They suggested agreeing a consent order to withdraw the application, and there would be no fee because the application itself has already been "paid for" (via HWF). Which of these two would you suggest?

Consent seems to be the best approach as your worried that there maybe cost implications.

[foobar]

Wednesday: Wrote to MC including a draft consent order along the lines of "1. Application withdrawn. 2. No order as to costs."
Thursday am: No response received, wrote to court directly.
Thursday pm: I get an odd response from MC (attached redacted), thanking me for withdrawing my defense and admitting the claim (!?), and that they expect the hearing to go ahead (put a pin in this).
Friday am: Called court for update, was told judge was awaiting a reponse from claimant.
Friday pm: Got email from court saying they hadn't responded so the judge declined to withdraw.

Hearing was this morning. The judge opened with a summary of where he thought the case was, then proceeded to hit about half the talking points I'd prepared unprompted, tearing into the solicitor over the delay of 5 months, then asking if I thought that was a fair summary. "In stronger language than I'd have used, but yes, sir." He asked me why I was withdrawing the application, I told them that they'd finally complied with my request, and that there was no point ordering them to do what they'd already done. Judge agreed, and said he would enter an order along the lines of "1. Application withdrawn. 2. No order as to costs." I was given leave to file an amended defence, but the trial date was going to stay.

Remember that pin? Turns out that MC had made an application to strike out my defence and apply for summary judgment, and had not agreed to withdraw my application because they were seeking to use the hearing to get this application heard. I don't know the details of this, and the judge wouldn't disclose the details, other than that it had been made, but that it had not been listed and on that basis he wasn't going to deal with it. Judge directed that it be listed for the same time as the trial and that the hearing extended to accommodate it. I expect I'll see it in the coming days.

So now I have until 4pm Friday to pull together the bundle, statements, and an amended defence.

[foobar]

Attached are some of the documents from the bundle of documents that I received last week. I've not included all the card statements they sent, but I've included:

1. The cover letter, which for some reason is dated for the end of August. They say they have "enclosed a copy of [my] Defence for ease of reference." (They have not.) They claim that my "application for Strike out" was misguided because "you made no application for disclosure" (apart from the one they're referring to), and "our client is not in default of any orders in that regard" (because none were made, that's what the hearing was originally for).
2. The original agreement, reconstituted, with timestamp for signatures for both parties and IP address.
3. An updated agreement, redacted only to remove the case number at the bottom. The first page makes clear there is no personalised information, it contains no figures other than standard fees and the worked examples.
4. Another updated agreement, again with no personalised information.
5. The default notice, dated Christmas Day (what a lovely gift). Do the public holidays need to be accounted for in the deadline they give, and have they been?
6. The assignment notices from both ends, with an "account number" that does not appear to resemble either the card number or the reference that Cabot subsequently assigned to it.

Do I have anything to go on in any of these documents?

[echat11]

Will take a look, you need to concentrate on finding 'anomalies'.

The following isn't an 'anomaly':

'They say they have "enclosed a copy of [my] Defence for ease of reference.'

[foobar]

What, explicitly and specifically, am I looking for? I don't see anything in particular in the library that may be helpful, but I may be missing something.

Does the fact that the subsequent variations do not state rates (or indeed anything at all) count for anything?

Does the fact that Cabot themselves haven't directly responded to the CCA request count, or is the response from MC enough to satisfy this?

On the matter of amending the defence, paragraphs 5, 6, 7, 12, 13, 16 and 17 of my original look to be redundant. What, if anything, needs to replace them, and which parts will need to be supported with a witness statement?

[echat11]

Check agreement for prescribed terms etc -

https://lawzone.legal/when-is-a-cred...unenforceable/

Check the Default Notice for prescribed form etc -

https://www.legislation.gov.uk/ukpga...efault-notices

[foobar]

Default notice looks to be compliant.

Agreement 1:

• Appears to be a reconstituted copy agreement, but neither cover letter nor copy agreement states this (CONC 13.1.4(2))
• "How much can you borrow?" - I cannot tell whether or not this is compliant with p.7 Sch.1 of the Agreement Regs 2010 (I think it could be case d) but I'm not sure)
• Does not appear to include a cancellation notice, but I cannot tell whether one is needed

Agreements 2 & 3:

• Does not include interest rates, stating "XX.X%", and the worked examples state an assumed credit limit of £X,XXX.XX instead of £1200. Would that be an incomplete statement of the varied terms for CONC 13.1.4(6)(b)?
• Does not include name and address.
• States that this information will be on the back of a "welcome letter" which in both cases is not included in the bundle.

The bundle includes some of the account statements, and some of these include notices that the interest rates are changing following BoE rate changes. Does this cure the lack of the rates in Agreements 2 & 3?

Also need an answer to my last question before on the amended defence: "What, if anything, needs to replace (the bits that no longer apply), and which parts will need to be supported with a witness statement?"

[echat11]

The bundle includes some of the account statements, and some of these include notices that the interest rates are changing following BoE rate changes. Does this cure the lack of the rates in Agreements 2 & 3?

No, there has to be a starting point so you can see if a 'variation' has taken place'.

Also need an answer to my last question before on the amended defence: "What, if anything, needs to replace (the bits that no longer apply), and which parts will need to be supported with a witness statement?"

You don't need to amend your Defence, all the anomalies can be evidenced in your Witness Statement.

Sometimes we get members who post, but who have enough knowledge to progress their own case.

[foobar]

Well now I'm just confused. I thought the whole point of making the disclosure application is to get the information so that one can file a proper defence in place of the stock standard one that basically says "dunno mate", and I have been given until Friday to do exactly that.

On the anomalies, I have noticed that the guidance on compliance requires the inclusion of varied agreements under s.82(1), but s.82(1A) says that "does not apply to a variation in the rate of interest charged under an agreement not secured on land". So ... do the rates need to be included there or not? I'm sure I've seen previous threads here where it's been advised that they do, but that wording is pretty explicit.

I've also read through again and found that there is no cancellation/withdrawal statement in there. I'm not sure if it would be a cancellable agreement under s.67, but I'm not seeing anything in s.66A which would make it not subject to withdrawal.

I've drafted a proposed "kitchen sink" WS. Paragraphs will be automatically numbered in the template I have, and I'll label up the exhibits in order mentioned once finalised. I've put in some placeholders (A,B, etc.) to refer to later:

[heading omitted]
I, [REDACTED], being the Defendant in this case will state as follows:
1. I make this Witness Statement in support of my Defence in the present claim.
n. On or around 20 April 2024, I received a claim form from the Civil National Business Centre at Northampton County Court.
A. The Particulars of Claim referred to a purported credit card agreement, but gave no information that would allow me to identify it.
n. The Particulars of Claim alleged a default, but gave no information as to when this occured.
n. On 1 May 2024 I made a written request to the Claimant for them to provide me with a copy of the relevant agreement, as entitled to do so pursuant to s.78 Consumer Credit Act 1974 (c.39) - hereafter CCA. A copy of this was sent to the Claimant's solicitors. (See exhibit X.)
n. On 9 May 2024 I made a written request to the Claimant's solicitors requesting that the Claimant provides copies of all documents mentioned in its Statement of Case pursuant to CPR 31.14. (See exhibit X). I also sought an extension of time for filing my defence to the claim, in accordance with CPR 15.5.
n. On 17 May 2024, conscious of the upcoming deadline to file a defence, I made an application to the court to compel this disclosure and allow amendment of a defence. (See exhibit X.)
B. On 20 May 2024, having received no response to my request for an extension of time, I filed the provisional defence, noting that it was incomplete, and referring to the application made.
C. The application was ordered transferred to the [REDACTED] County Court on 9 September 2024. On receipt, it was listed for hearing for 21 October 2024, and the claim listed for trial for 11 November 2024.
n. On or around 14 October 2024, around a week before the hearing, I received from the Claimant's solicitors a bundle of documents in response to my request, originally made some five months prior. (See exhibit X.)
n. Having received the documents from the Claimant, I examined them, and I found them to be fully responsive to my original request, save for one document which was not disclosed.
n. On 16 October 2024, I contacted the Claimant stating my intent to withdraw the application, with a draft order in terms that the application be withdrawn and no order made for costs, seeking their consent for the withdrawal, and urging them to contact the court to inform of the same. (See exhibit X.)
n. Early on the afternoon of 17 October 2024, having not received a response from the Claimant, I contacted the court directly to seek withdrawal. (See exhibit X.)
n. Later on the afternoon of 17 October 2024, I received a response from Claimant's solicitors refusing consent to withdraw the application. (See exhibit X.)
n. On the afternoon of 18 October 2024, I received a response from the court, stating that the Claimants had not responded and the hearing would proceed as listed. (See exhibit X.)
D. On 21 October 2024, [REDACTED] entered an order withdrawing the application, with no order made for costs, in substantially the same form as was proposed in the draft consent order.
n. The Financial Conduct Authority's Sourcebook on Consumer Credit - hereafter FCA and CONC - states at 13.1.4(2):
The firm can reconstitute a copy. It can do this by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records. If the firm does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the customer that this is a contemporaneous copy.
X. One of the documents disclosed by the Claimant is a purported copy agreement of a "Credit Card Agreement regulated by the Consumer Credit Act 1974". The covering statement by the Claimant's solicitors does not state whether this is a contemporaneous copy or a reconstituted copy.
n. Also, stated at CONC 13.1.4(4):
The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.
Y. There is no mention of the right of withdrawal under s.66A CCA, or whether the agreement is cancellable under s.67 CCA.
n. Further, FCA state at CONC 13.1.4(6):
If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also either:
(a) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,
(b) a clear statement of the terms of the agreement as varied.
Z. The varied agreements contain no specific information relating to the executed agreement. They do not include any fees or interest rates, which are prescribed terms. Indeed, these details are stated to be "on the back of your welcome letter". This appears to be a document that is incorporated by reference into the agreement but has not been provided.
n. It is my belief that, based on paragraphs X, Y, and Z above, that the Claimant has not fully satisfied its obligations under s.78(1) CCA, and therefore by virtue of s.78(6) the Claimant is barred from enforcing the agreement.
n. Further, based upon the conduct referred to in paragraphs C to D above, I believe the Claimant has conducted itself unreasonably, both in the delay in disclosure and in opposing a proposed consent order that was later ordered in substantially the same form.
[Statement of Truth]

1. Do I really not need to amend the defence, particularly as I'm about to give a witness statement that may contradict it? Would the history between A and B be enough to explain that?

2. Does the part between C and D need to be there? The trial is going before the same judge as the application, so that history will be known.

3. What's the meaning of s.82(1A)? Is it that the latest/varied versions don't need to include rates, or is it that if they're only changing the rates they don't need to issue a full variation?

[echat11]

Sometimes we get members who post, but who have enough knowledge to progress their own case.

[foobar]

I'm sorry, I don't follow. I'm mentally and physically exhausted from having to turn around both an application and the substantive case in a little over a week. My brain is frazzled and I can't process subtlety right now.

Is the WS okay? Is there anything that shouldn't be there? Is there anything I'm missing? Am I missing an exhibit I need to reference?

[echat11]

I'm sorry, I don't follow. I'm mentally and physically exhausted from having to turn around both an application and the substantive case in a little over a week. My brain is frazzled and I can't process subtlety right now.

Is the WS okay? Is there anything that shouldn't be there? Is there anything I'm missing? Am I missing an exhibit I need to reference?

The best thing for you to do is book an appointment with you local Law Centre / CAB.
They can provide the support you need.