Court Claim - Cabot Financial / Sainsburys - 5-5-2015

[basil68]

Received a claim? Yes
Issue Date: 5-5-2015
Amount approx: 4085
Claimant: Cabot Financial
Solicitor: Mortimer Clarke
Original Credit: Sainsburys

Particulars of Claim:
By an agreement between SAINSBURYS (SAIN) & the Dendant on or around 08/11/2002 ('the Agreement') SAIN agree to issue the Defendant with a credit card upon the terms & conditions set out therein. In breach of the agreement the Defendant failed to make the minimum payments due & the agreement was terminated. The agreement was assigned to the Claimant. The claimant therefore claims 3820.53

Stat Barred? No

Have sent: Acknowledged the Claim, Sent a CCA request, Sent a CPR 31.14 request

Other Info:
Hi.
This is for an old cc debt, that I payed gbp 1, since I am disabled and on benefit, till 2012 when other two collection agencies started to chase me for the same debt and Cabot Financial canceled my 1 pound gbp agreement requesting me to pay a brand new agreement to which I never replied to. Even if i made regular 1 pound payments, it still counted so the debt is not statue barred.

However since I was chased by other debt collection agencies for the same debt with different amounts. The original credit card never went beyond 2200 limit. I genuinuly wanted to inspect the document relating to the particular of claims. I received from Mortimer Clarke their written agreement to extend of 28 days under CPR 31.15. I have emailed the court today to enable them to update the date by which I need to file the defence which is now 6th July.

What I need to help with at this stage is:

1) if I dont receive the documents but simply the statement (which is not even mentioned in the particular of claims) showing my 1 pound payments. Should I contact them asking to withdraw or should I go directly to ask the court to strike off.
2) If I go for the latter as I am intitled to free submission (due to be on wealthfare) and on the CPR 31.14 request I say "any charges for non compliance will be a Claimant responsability" I don't really know in reality if I need to fill the expense exemption.

I know I am trying to figure out all in advance. Would be good to be well prepared.

At this stage I dont even know if is worth to mention to Mortimer Clarke that I am in receipt of disability benefit as they could take that as weakness in my trying to avoid court or payment and insist I sent them a financial statement, which I can if that would help them to decide if is worth to withdraw. PLease if someone can help me understand would be enormously grateful.

[basil68]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

In reality should I sit and wait for the documents or try to negotiate based on my circumstances.

I heard also that people have won on the basis Debt Collection Agenciesthey were offered to buy the debt for pennies on the pounds,( which in turns they enflated the amount by adding their purchase price to termination documents too).
The Debt Sale process was without my acknowledgement. Sainsbury did not make offer to clear the debt for the equivalent amount prior to selling to debt collectors.

any experience with this type of defense. should I request termination notice from sainsbry directly?

thanks

[FlamingParrot]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Welcome aboard

I'm sorry your first post was missed. :sorry:

In reality should I sit and wait for the documents or try to negotiate based on my circumstances.

If they don't supply the documents you can file a defence based on their non-compliance. I take it they haven't responded to your CCA request either. Lack of compliance with a CCA request is a bar to enforcement, unless they manage to come up with a properly executed agreement.

You should be able to negotiate at any stage right up to the hearing so I'd leave it a bit longer, let's see if they can come up with anything.

I heard also that people have won on the basis Debt Collection Agenciesthey were offered to buy the debt for pennies on the pounds,( which in turns they enflated the amount by adding their purchase price to termination documents too).

I haven't heard of any cases that have been won on those basis in court. The fact they paid pennies means debt purchasers often accept lowish offers in Full & Final settlement but does not stop the court from enforcing.

The Debt Sale process was without my acknowledgement. Sainsbury did not make offer to clear the debt for the equivalent amount prior to selling to debt collectors.

Debt sales are transactions between two parties that do not involve the debtor. They should have sent you a notice of assignment but they don't need to inform you beforehand. Did you receive such a notice? That should also have been requested on your CPR request.

any experience with this type of defense. should I request termination notice from sainsbry directly?

Not exactly based on the arguments you mention above but we do have a generic defence for those cases where the claimant fails to supply documents, however, since you still have another month to go, it's a little too early for that.

You'll find the example defence here: http://www.legalbeagles.info/forums/...t-Court-Claims

[basil68]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Thank you FlamingParrot, so glad you took the time to help.

Today I haved received a letter from Cabot saying they will provide the cca and statement within 40 days

I have already asked the court for 28 days under Cpr 15.5 should I write to them again?

Secondly as expected there is no mention in Cabot financial's letter of anything relating to the assignment and to the default,

I originally used the template for cca (that include requests for assignment and default) and sent it to Cabot
I then used CPR 31.14 template and sent it to the solicitor mortimer clarke who replied in writing agreed to provide documents (does not say which) allowing 28 days extension.

I am tempted to write to cabot making clear all of the documents are needed this is the letter I prepared
not sure if is needed or incorrect any ideas?

here is the letter not yet sent.

Dear Mr xxxxx,


Court Claim Number: xxxxxxx - Cabot Financial vs MYNAME a debt allegedly previously owed to Sainsbury bank.

 I acknowledge receipt of your letter dated xxxxx Where you ask for 40 days to provide me me with
1) a copy of the credit agreement
2) statement of account
3) and original and varied conditions from original lenders

However you failed already to include the requested :
"signed true copy of the deed of assignment of the above referenced agreement that you allege exists"

Your solicitors has also informed me that you agreed to a 28 days extension to provide all documents mentioned in the particular of claims allowed under CPR 15.4. Since the letter did not specify which documents find a summary of what was originally asked below :

a) The Credit Agreement
b) The Default Notice
c) The assignment

Following you agreed to ensure compliance with your CPR 31 duties I asked the court for an extension of 28 days to the date for filing my defence as allowed under CPR 15.5. Considering the new deadline for submission is now 4pm 06 july 2015 I would appreciate you might comply with those terms as not further extetnsion is possible .

I am sure you are aware that failure to comply with a formal request under s.77 to s.79 of the Consumer Credit Act means they are barred from enforcing any alleged debt.

if you should fail to comply in time, 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. You could also consider to contact the court at any time to withdraw the claim If you are unable to comply with this request and believe that you will never be able to comply within the reasonable time allowed under CPR 15.5.


I do hope this will not be necessary and look forward to hearing from you.



yours faithfully

[FlamingParrot]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Today I haved received a letter from Cabot saying they will provide the cca and statement within 40 days

That's their standard template response to any CCA requests, which is silly since the law allows 12 + 2 working days, 40 days is for response to a SAR.

I have already asked the court for 28 days under Cpr 15.5 should I write to them again?

It's not up to the court to grant an extension, the extension has to be agreed between the parties, then the defendant must inform the court of the agreement. Only one extension of up to 28 days can be agreed. On a previous post you say you have already emailed the court after getting Mortimer Clarke to agree to an extension.

Secondly as expected there is no mention in Cabot financial's letter of anything relating to the assignment and to the default,

I originally used the template for cca (that include requests for assignment and default) and sent it to Cabot

The CCA request does not include requests for the notice of assignment and default notice, what letter did you send?

I then used CPR 31.14 template and sent it to the solicitor mortimer clarke who replied in writing agreed to provide documents (does not say which) allowing 28 days extension.

That seems to be a standard response from them.

I am tempted to write to cabot making clear all of the documents are needed this is the letter I prepared
not sure if is needed or incorrect any ideas?

First of all, they have appointed Mortimer Clarke to act for them so all correspondence should be addressed to them as their legal representatives. The CCA request is an exception because it does not relate to the claim itself, you are entitled to send a CCA request at any time as long as there's a balance outstanding and no judgment has been obtained. Sending a CCA request to a law firm often results in them replying they are under no obligation because they are not the creditor, which is actually the case, that's why they are sent directly to the account owner.

From what I see above, MC have just agreed to an extension and you have another month to go so I'd give them some time before chasing up the CPR request and saying that if they don't comply, you'll have no option but to apply for an unless order. I would probably also say at that point that if they can't obtain the documents, they should save everyone time and further costs by discontinuing the claim.

If they decide to proceed you would have the choice of either applying for the unless order or filing the generic defence of no documents. Non-compliance with a CCA request is part of that defence, regardless what their template letter says, the CCA does not allow 40 days.

[nemesis45]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi,

40 days for a CCA request is a nonsense often use by Cabot when it's unsure of it' ground.
Make a note of the day you send/have sent the CCA request after 12 +2 Working Days if
Cabot has failed to comply the debt is unenforceable until the agreement it provided.
So a careful check is needed on that.

A CCA is Only for a Copy of the Agreement and a Current Statement of the Account (Nothing else can be requested)
CPR 31.14 is again specific only documents specifically mentioned in the Particulars of Claim can be requested.

Notices of Assignment and Default are requested by CPR31.14 Until the claim is allocated to a track in this case the small claims track.

A Deed of Assignment is a commercially sensitive and confidential document (i.e. the contract between the original creditor and the debt purchaser and in any event you have little to gain from its production as it would be very heavily redacted.
The creditor/and/or the debt purchaser will have provided an Notice of Assignment on which they can rely in court.

As neither NOA/DOA nor Default notice is mentioned in the POC you cannot request them under CPR 31.14.

What have you received so far if anything ?

nem

The default notice like an NOA is a generic document and creditors do not have to keep hard copies an note upon the internal records is applied that a DN was sent on a specific date the creditor/ debt purchaser can rely on this or could produce a document showing what you would have received.

[basil68]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

HI Nemesis45
thanks for the heads up my mistake. yes the documents in the 31.14 letter I sent the solicitors are

The Credit Agreement
The Termination
the assignment



as from POC. So far I got nothing I only agrred to an extension with MC, and notified the court in writing.

As FlamingParrot also suggested I will be waiting a while, in order to receive them.

Thanks

[basil68]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi
Can someone advise further as the deadline to either fill in a defense or else apply for an unless order N244 is fast approaching. They need to be sent thursday and at present nothing has been received.

My personal circumstances make a N244 more appealing. Being disabled means that is harder for me to attend a hearing both phisically and mentally. However I am left with the dilemma that having the debt (although not for the inflated amount claimed or recognize the DCA authority over it) will make an application for a strike out to be interpreted as a mean to avoid my duties to repay it.

I saw the example on the forum on how to fill N244, what I am confused is the section concerning payment
"The Claimant shall pay the Defendants costs in this application."

Does it mean I dont need to fill EX160, or do I fill it anyway and then is up to the court to decide who pays it?

If anyone could help me understand this hopefully final stages, I would be grateful.

Thanks

[basil68]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi
Can someone advise further as the deadline to either fill in a defense or else apply for an unless order N244 is fast approaching. They need to be sent thursday and at present nothing has been received.

My personal circumstances make a N244 more appealing. Being disabled means that is harder for me to attend a hearing both phisically and mentally. However I am left with the dilemma that having the debt (although not for the inflated amount claimed or recognize the DCA authority over it) will make an application for a strike out to be interpreted as a mean to avoid my duties to repay it.

I saw the example on the forum on how to fill N244, what I am confused is the section concerning payment
"The Claimant shall pay the Defendants costs in this application."

Does it mean I dont need to fill EX160, or do I fill it anyway and then is up to the court to decide who pays it?

If anyone could help me understand this hopefully final stages, I would be grateful.

Thanks

[FlamingParrot]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi
Can someone advise further as the deadline to either fill in a defense or else apply for an unless order N244 is fast approaching. They need to be sent thursday and at present nothing has been received.

My personal circumstances make a N244 more appealing. Being disabled means that is harder for me to attend a hearing both phisically and mentally.

If you apply for an unless order the court is likely to order a hearing.

However I am left with the dilemma that having the debt (although not for the inflated amount claimed or recognize the DCA authority over it) will make an application for a strike out to be interpreted as a mean to avoid my duties to repay it.

The unless order is not an application to strike out, it's an application to get the court to order them to disclose the documents they are relying on, which they should have had before issuing the claim. It's not to do with avoiding your duties but getting the claimant to do theirs, i.e. supply the documents. Strike out is viewed by the courts as a last resort, when there is no other option.

I saw the example on the forum on how to fill N244, what I am confused is the section concerning payment
"The Claimant shall pay the Defendants costs in this application."

Does it mean I dont need to fill EX160, or do I fill it anyway and then is up to the court to decide who pays it?

If anyone could help me understand this hopefully final stages, I would be grateful.

Thanks

No, you still need to fill in the EX160 fee remission form, otherwise you'd have to pay for the application. You are seeking the court to order the claimant to pay because it's them who are in default but only the court can decide on the matter of costs, all you can do is ask. As with any litigation, costs always follow the event, even if the court orders your costs to be reimbursed, you'd still have to pay the fees up front (or apply for remission).

[basil68]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi FlamingParrot,
thank for your time and explenation very clear.

I have now filled the forms relating to N244,
I have noticed though those needs to be sent before a defence is due, mine is due next Monday july 6 so I can sent it either today or tomorrow? or need to wait till the end of the week anyway?

also as I need to put both a 7 day date from the order for claimant compliance, if I send it in today for instance, this will coincide with the date my defence would have to be sent (which instead for now is not needed any longer), in other words 06 July, provided I do this, then what I need to put as a date for the 21 days to have sufficient time to inspect the documents? is it this 21 days from the 7 days to comply? in this example 21+6=27 july

Also when filling Draft Order for Directions, i notice those lines:

Before District Judge Sitting at the Northampton County Court CC BC, 4th floor, St Katharine's House, 21-27 St Katharine's Street, Northampton Northamptonshire, NN1 2LH, on the ............. day of .............. 2014

UPON reading the Defendant’s Application Notice dated .......Todays Date.........

should I leave the County court date blank as above or put today's date there as well ?

may be is obvious but I thought I better ask those dates i find a bit difficult working dates out

Thanks in advance

[basil68]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi

I sent the n244 that was rejected on the basis my income proof for exemption of fees was more than 3 month old, I now served a defence instead although this is one day late, hoping that will still be accepted by the court. Could not be more disappointed at this stage

[nemesis45]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi

I sent the n244 that was rejected on the basis my income proof for exemption of fees was more than 3 month old, I now served a defence instead although this is one day late, hoping that will still be accepted by the court. Could not be more disappointed at this stage

Not a fan of Unless Orders myself. I think you are better advised to send in your defence if documents are not disclosed/supplied the debt cannot be enforced without the agreement. So non compliance can be to your advantage.

nem

[sloane82]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi Reading through the notes and sorry to hear about the circumstances that you are in first of all do yo have all of the statements for the credit card?. Also if you do not have them get hold of an SAR Subject Acess Request it has all information on the transactions that you made. Did you have any PPI on the card if so claim that back. Contact the FOS Financial Ombudsman Service and make a Complaint 1 with the Company and 2 with Cabot Financial write to the companies saying by law that you are in Financial Difficulty and that you can only make a £1 a month this is the legal amount that you can pay.

[nemesis45]

Re: Court Claim - Cabot Financial / Sainsburys - 5-5-2015

Hi Reading through the notes and sorry to hear about the circumstances that you are in first of all do yo have all of the statements for the credit card?. Also if you do not have them get hold of an SAR Subject Acess Request it has all information on the transactions that you made. Did you have any PPI on the card if so claim that back. Contact the FOS Financial Ombudsman Service and make a Complaint 1 with the Company and 2 with Cabot Financial write to the companies saying by law that you are in Financial Difficulty and that you can only make a £1 a month this is the legal amount that you can pay.

FOS will not be interested while the court procedure is in motion. The PPI is the responsibility of the company that sold it( if there is any PPI of course).

nem

- - - Updated - - -

Hi

I sent the n244 that was rejected on the basis my income proof for exemption of fees was more than 3 month old, I now served a defence instead although this is one day late, hoping that will still be accepted by the court. Could not be more disappointed at this stage

Basil, do you consider yourself a " vulnerable" person if so have you advised the claimant?

nem