Need Help with written full pleaded Defence

[armand76]

Hi All,

Can you please help on what to do next, I been to the court and the judge agree to set aside the judgment for debt upon the condition that I file and serve a fully pleaded defence within 21 days.

Its basically me vs Cabot Financial for Citi Credit Card debt, which I believe the last payment made was around March 2008, also I have no acknowledgement of debt.

Is there is example I could use for my fully pleaded defence as this is Statue Barred debt so not sure what else to write on my defence.

Thanks for you help

[teaboy2]

Re: Need Help with written full pleaded Defence

Bumping for you - [MENTION=49370]Kati[/MENTION] will probably be able to help or know someone who can!

[jon1965]

Re: Need Help with written full pleaded Defence

Here are some sample defences http://www.legalbeagles.info/forums/...t-Court-Claims

Have you , or did you ever send a S78 request ?

Of course Statute barred is an absolute defence and once you say that then it is up to Cabot to prove it is not . You say the last payment was 2008, do you know when it was defaulted . Is the account on your credit file ( I ask because if the account was defaulted more than 6 years ago it will have come off and it will make it easier to claim SB)

[armand76]

Re: Need Help with written full pleaded Defence

Thanks, I have not send a S78 request, should I do this with my defence. it still showing in credit report as its been defaulted.

[Kati]

Re: Need Help with written full pleaded Defence

You should send the request asap ... when is your defence due in (the 21 day limit)?

[nemesis45]

Re: Need Help with written full pleaded Defence

Hi All,

Can you please help on what to do next, I been to the court and the judge agree to set aside the judgment for debt upon the condition that I file and serve a fully pleaded defence within 21 days.

Its basically me vs Cabot Financial for Citi Credit Card debt, which I believe the last payment made was around March 2008, also I have no acknowledgement of debt.

Is there is example I could use for my fully pleaded defence as this is Statue Barred debt so not sure what else to write on my defence.

Thanks for you help

Hello Armand,
Does this account show on your credit files? If you haven't checked try Noddle it's free online, if it does not show it indicates that the default entry has been removed after 6 years have elapsed since the account was defaulted.
Statute Barred is a complete defence.

You start your defence as Follows.

Claim No.............................. Judgement set aside on Date.................In the xxxxxxxxxxx Court Judge..................:

Between ...............................

and

Your name and address.

1. On the order of Judge xxxxxxxxxxxxxxxx I submit the following defence to the original claim.

2. I believe that the alleged debt under the provisions of the Limitations Act 1980 prior to the claim being issued.

3. To the best of my knowledge and belief no payment or unequivocal written acknowledgment has been made in regard to the alleged debt since xx xx xxxx.

4. It is my contention that the Claimant Cabot Financial must provide unequivocal proof that the alleged debt is not statute barred.

Statement of Truth I Mr........................ Confirm that the above is the truth to the best of my knowledge and belief.


Signed............................................ ......Dated....................................... ....:


Armand if there is anything else we can use to back up the SB claim e.g. bank statements, letters please post them here and we can amend the draft.

nem

[jon1965]

Re: Need Help with written full pleaded Defence

Send the S78 request to Cabot with a £1 cheque or postal order.

Dear Sirs,
Reference: 123456789
I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974).
I require that you 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 (12 + 2 days).
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. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties. Your attention is drawn to ss.5(2), 3(b), 6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).
I also remind you of your duties, in line with recent FCA Consumer Credit Sourcebook (CONC) guidelines surrounding Unenforceability I presume you're aware that it suggests that 'sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements'. This simply means that under these sections a debtor can pay £1 to get:
1. a copy of their agreement
2. copies of some of the other documents mentioned in their agreement
3. a statement of account
If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:
1. make the debtor pay the debt before they're supposed to
2. get a court judgment against the debtor
So, in line with these (FCA CONC) guidelines, and the Consumer Credit Act, please find attached my £1 payment, which is the statutory fee to request any such documentation regards this account - note that these funds are not to be used for any other purpose. If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.
I do, expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the prescribed time-scales quoted however, in the meantime, I require that you clarify your position on this point as failure to do so, even by omission or lack of a response, will be regarded as an attempt to deliberately misrepresent or conceal the legal position regarding this matter to which an appropriate complaint will be made to the Financial Conduct Authority.
Yours faithfully,

They will almost certainly be unable to comply within the time scale so that can be part of your defence.
Do you have the original particulars of claim, if so you could send a CPR 31.14 request to the solicitors . On that they have 7 days to reply so their refusal could be included in your defence
I suspect cabot will try to claim that the default date is the start of the limitations act but IMO it is also worth arguing that according to the Limitations Act the account is statute barred because no payment or acknowledgment has been made since xxxxxx

Hope that helps

[armand76]

Re: Need Help with written full pleaded Defence

Thanks, I will use the above to send my defence and will wait for the reply from the court. do I just send this to the court?

[nemesis45]

Re: Need Help with written full pleaded Defence

Nothing else to add?? Nothing else to back up??

nem

[jon1965]

Re: Need Help with written full pleaded Defence

Thanks, I have not send a S78 request, should I do this with my defence. it still showing in credit report as its been defaulted.

Hello Armand,
Does this account show on your credit files? If you haven't checked try Noddle it's free online, if it does not show it indicates that the default entry has been removed after 6 years have elapsed since the account was defaulted.
Statute Barred is a complete defence.

You start your defence as Follows.

Claim No.............................. Judgement set aside on Date.................In the xxxxxxxxxxx Court Judge..................:

Between ...............................

and

Your name and address.

1. On the order of Judge xxxxxxxxxxxxxxxx I submit the following defence to the original claim.

2. I believe that the alleged debt under the provisions of the Limitations Act 1980 prior to the claim being issued.

3. To the best of my knowledge and belief no payment or unequivocal written acknowledgment has been made in regard to the alleged debt since xx xx xxxx.

4. It is my contention that the Claimant Cabot Financial must provide unequivocal proof that the alleged debt is not statute barred.

Statement of Truth I Mr........................ Confirm that the above is the truth to the best of my knowledge and belief.


Signed............................................ ......Dated....................................... ....:


Armand if there is anything else we can use to back up the SB claim e.g. bank statements, letters please post them here and we can amend the draft.

nem

I feel a bit more than just a SB defence is needed because it is still on the credit file as stated, hence getting the S78 off

[jon1965]

Re: Need Help with written full pleaded Defence

So
S78 request to Cabot
CPR to the solicitors
Your defence using a mix of statute barred as described by Nem and the defences posted sent to the court probably 2 days prior to your 21 days running out (to be safe) . Send everything RM signed for , in fact maybe the defence special delivery if you can afford it

[nemesis45]

Re: Need Help with written full pleaded Defence

Thanks, I will use the above to send my defence and will wait for the reply from the court. do I just send this to the court?

For instance did you make any requests for documents when the original claim was issued?
What was the submission put forward on the application to set this judgement aside.

nem

[armand76]

Re: Need Help with written full pleaded Defence

I did not had time to reply to court claim so I requested for the judgement to be set aside and the court granted that, I have not requested any documents yet. Is it a good time to request for all this documents now?

[nemesis45]

Re: Need Help with written full pleaded Defence

I did not had time to reply to court claim so I requested for the judgement to be set aside and the court granted that, I have not requested any documents yet. Is it a good time to request for all this documents now?

OK a request under sections 77/78 of the Consumer Credit Act 1974 to Cabot there is a statutory fee of £1 to pay a cheque or postal order "endorsed for statutory fee only".

As this debt was subject to a CCJ now set aside Cabot may try to decline to comply, if they do then we can sort that out if & when it happens.

So send as follows to Cabot:

Sir/Madam.

I refer to County Court Claim No. xxxxxxxxxxxxxxxxxxxx and the Judgement set aside by Judge................ on.......................... in the XXxxxxxxx County Court.

I formally make a request for a copy of the agreement relating to the alleged debt which was the subject of this claim I enclose herewith the statutory fee of £1 as required for a request made under sections 77/78 of CCA 1974.

Cabot is reminded that is has 12 + 2 working days to comply with this request. Considering that Cabot has obtained a judgement in this case ( now set aside) I would expect it to have such documentation readily to hand.
This information is required to assist me in formulating a defence to be file on date..................:

A prompt response is required.

Send by signed for post, do not use a PO Box Number in Cabot's address.

nem

[armand76]

Re: Need Help with written full pleaded Defence

Shall I mention that I have requested S78 and CPR 31.14 in my defence and that I am waiting for respond for that.