URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Finance

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

If it was a student account you dont pay any charges on the account. Plus this was 8 years ago the account is now Statute Barred dont pay anything LLoyds are to blame. Do you have any other accounts with them?.

no i don't have anything with Lloyds.

the date for Statute Barred, does that come into effect from date of default or date of opening the account ? because i opened the account in 2007, but it defaulted in 2013. Thanks. And is there any templates for what i should write in my defence? Thanks.

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

i don't really know my what my ‘limitation period’ is as i don't know when my last payment or acknowledgement of the debt was.

[nemesis45]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Thanks Nem.

Quick question : what should i write in my defence ? Can i mention I have asked for the above and they didn't agree?

And that I tried solve it out of court but they would accept any of my proposals ? or should I say i accept liability and am willing to pay in monthly payments, subject it to not being declared as a CCJ ?

Many thanks

- - - Updated - - -

thank you

You've got it everything that has been declined, ignore, not complied with should form part
of your defence.

Take a look at some of the defences posted on other threads, make a draft and post here then we can go
through it with you.

nem

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

You've got it everything that has been declined, ignore, not complied with should form part
of your defence.

Take a look at some of the defences posted on other threads, make a draft and post here then we can go
through it with you.

nem

Hi Nem,

Thank you.

This is what I am going to write in my defence:
--------------------
Monday, November 30, 2015

Claim No: xxxxxx

In the Northampton County Court

Claimant: CABOT Financial (UK) Limited – AND – Defendant

CASE SUMMARY – Defence

1. I am the Defendant in this case.

2. On 26/10/2015 the Claimant submitted a claim to Northampton County Court stating their particulars of claim.

3. I returned the Acknowledgement of Service on 13/11/2015.

Defence

By virtue of Section 5 of the Limitations Act 1980, I believe it to be over 6 years since any acknowledgement in writing or payment was made against this alleged account and therefore this debt is Statute Barred. This action should not have been brought against me, as it is in my view, an abuse of the Court Process and the Claimant is put to the strictest of proof. ( I am not sure about this one whether i can include this ? )

4. The Defendant denies monies are owed to the Claimant as alleged in the Particulars of Claim and does not recognize the assertion that any debt has been Legally Assigned to the Claimant and as such the Claimant is put to the strictest of proof, including but not limited to:


i) Pursuant to s.74A and s.74B of the Consumer Credit Act 1974 (CCA1974) the Original Signed Overdraft Credit Agreement, along with a copy of the original Terms & Conditions and any subsequent changes in said Terms & Conditions (referred to as the ‘Contract within the Particulars of Claim) and show how the Defendant has entered into an agreement.
ii) Show how the Claimant has reached the amount claimed by proving a full Statement of the Account referred to, including details of all payments made and calculation of how interest was charged against each item listed, leading to the Alleged Debt of £ 646.39.
iii) Also, as this is an Alleged Debt, I believe Penalty Charges may have been applied to the Account and as such may be unlawful under the Unfair Consumer Contract Terms Regulations 1999. Therefore, I would request details of each and every Penalty Charge applied to the Account along with details of their lawfulness (i.e. if the charge is stated as being for ‘Administration’ what Administration was undertaken to support the Penalty Charge being applied) along with details of any Interest imposed against each Penalty Charge applied.
iv) Show how and when the agreement was breached and provide notice by way of Notice of Sums in Arrears served by the Original Owners along with a copy of the Default Notice from the original owners of the Alleged Debt and Certified Copies of how this was served upon the Defendant.
v) Show how the Claimant has the legal right, either under statute or equity to issue a claim by providing the following:

a) A copy of the Default Notice served and Certified Copies of how this was served upon the Defendant.
b) As claimant has stated the debt was ‘assigned to the claimant on July 17 2013’ a copy of the Legal / Absolute Assignment, (as per Section 136 of the Law of Property Act 1925), including, but not limited to, a copy of the Deed of Assignment and / or Deed of Tripartite Novation, duly executed in accordance with Sections 74 (as amended) of the Law of Property Act 1925.
c) A copy of how the Defendant was served with the aforementioned Legal / Absolute Assignment.
d) A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was Served upon the Defendant.
e) Details of the costs paid by the Claimant to the Original Owner for the Alleged Assignment of the Agreement on Jul 17 2013 (as referenced in the Particulars of Claim).

vi) As per Civil Procedure rules 16.5(4), it is expected that the Claimant prove the allegation (as set out in the Particulars of Claim) that the money is owed.
vii) Also, should any amount be inclusive of interest, the Defendant denies interest is payable in accordance with Section 69 of County Courts Act 1984 and again the Claimant is put to the Strictest of Proof.
viii) Also, in my defence, I am not a Solicitor and after having read the Particulars of Claim I cannot see any legislation has been quoted in support of the Claimants claim against me, which leaves me unsure under which Statutory Instrument this Claim has been brought. Therefore, again to be able to properly defend this claim I would request full details of the actual legislation the Claimant believes gives them a right to make this claim, as surely no claim can succeed without this being quoted in the Particulars of Claim?

Please note I request under Civil Procedure Rule 39A (3.3) any documents upon which the claimant intends to rely are brought to any subsequent hearing for examination.

It is my firm intention, should the claimant fail to provide the required documentation to verify any alleged debt, to enter Form N244 to have the claimant's claim struck out with prejudice.

Statement of Truth

I believe the facts stated in this defence are true.

Dated this day 30th November of year 2015.

Signed

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

Thanks

[nemesis45]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Hi Nem,

Thank you.

This is what I am going to write in my defence:
--------------------
Monday, November 30, 2015

Claim No: xxxxxx

In the Northampton County Court

Claimant: CABOT Financial (UK) Limited – AND – Defendant

CASE SUMMARY – Defence

1. I am the Defendant in this case.

2. On 26/10/2015 the Claimant submitted a claim to Northampton County Court stating their particulars of claim.

3. I returned the Acknowledgement of Service on 13/11/2015.

Defence

By virtue of Section 5 of the Limitations Act 1980, I believe it to be over 6 years since any acknowledgement in writing or payment was made against this alleged account and therefore this debt is Statute Barred. This action should not have been brought against me, as it is in my view, an abuse of the Court Process and the Claimant is put to the strictest of proof. ( I am not sure about this one whether i can include this ? ) Yes include this!

4. The Defendant denies monies are owed to the Claimant as alleged in the Particulars of Claim and does not recognize the assertion that any debt has been Legally Assigned to the Claimant and as such the Claimant is put to the strictest of proof, including but not limited to:


i) Pursuant to s.74A and s.74B of the Consumer Credit Act 1974 (CCA1974) the Original Signed Overdraft Credit Agreement, along with a copy of the original Terms & Conditions and any subsequent changes in said Terms & Conditions (referred to as the ‘Contract within the Particulars of Claim) and show how the Defendant has entered into an agreement. Existence of such an agreement will depend on when the OD started before 2011 it was not applicable.

) Show how the Claimant has reached the amount claimed by proving a full Statement of the Account referred to, including details of all payments made and calculation of how interest was charged against each item listed, leading to the Alleged Debt of £ 646.39. The claimant I think would not be expected to hold such details. The £649 would be the balance of the debt purchased + Court and solicitors costs.

iii) Also, as this is an Alleged Debt, I believe Penalty Charges may have been applied to the Account and as such may be unlawful under the Unfair Consumer Contract Terms Regulations 1999. Therefore, I would request details of each and every Penalty Charge applied to the Account along with details of their lawfulness (i.e. if the charge is stated as being for ‘Administration’ what Administration was undertaken to support the Penalty Charge being applied) along with details of any Interest imposed against each Penalty Charge applied. Once again this would not be in the hands of the claimant, such detail would be more applicable to a Subject Access Request to the original creditor.

iv) Show how and when the agreement was breached and provide notice by way of Notice of Sums in Arrears served by the Original Owners along with a copy of the Default Notice from the original owners of the Alleged Debt and Certified Copies of how this was served upon the Defendant.Overdrafts are subject to different rules, a Demand for Immediate Repayment of the OD is issued if not responded to then a Final Demand for Immediate Repayment In Full is issued which will state that a default will be placed if the repayment is not made. Did you receive such letters.

v) Show how the Claimant has the legal right, either under statute or equity to issue a claim by providing the following:

a) A copy of the Default Notice served and Certified Copies of how this was served upon the Defendant. See Above.

b) As claimant has stated the debt was ‘assigned to the claimant on July 17 2013’ a copy of the Legal / Absolute Assignment, (as per Section 136 of the Law of Property Act 1925), including, but not limited to, a copy of the Deed of Assignment and / or Deed of Tripartite Novation, duly executed in accordance with Sections 74 (as amended) of the Law of Property Act 1925. It is highly unlikely that this would be produced voluntarily or by order of the court, The Deed of Assignment is the contract between the creditor and the debt purchaser and is considered commercially sensitive and confidential. Even if it were to be disclosed it would be extremely redacted. Notice of Assignment sent by the creditor and or the debt purchaser is what you ask for.

c) A copy of how the Defendant was served with the aforementioned Legal / Absolute Assignment. See above.

d) A copy of the Alleged Notice of Assignment sent by the original creditor to the Defendant and details of how this was Served upon the Defendant. See above.

e) Details of the costs paid by the Claimant to the Original Owner for the Alleged Assignment of the Agreement on Jul 17 2013 (as referenced in the Particulars of Claim). NO What the debt purchaser paid for the debt is not relevant to this claim.

vi) As per Civil Procedure rules 16.5(4), it is expected that the Claimant prove the allegation (as set out in the Particulars of Claim) that the money is owed
.
vii) Also, should any amount be inclusive of interest, the Defendant denies interest is payable in accordance with Section 69 of County Courts Act 1984 and again the Claimant is put to the Strictest of Proof.

viii) Also, in my defence, I am not a Solicitor and after having read the Particulars of Claim I cannot see any legislation has been quoted in support of the Claimants claim against me, which leaves me unsure under which Statutory Instrument this Claim has been brought. Therefore, again to be able to properly defend this claim I would request full details of the actual legislation the Claimant believes gives them a right to make this claim, as surely no claim can succeed without this being quoted in the Particulars of Claim? Small Claims procedures.

Please note I request under Civil Procedure Rule 39A (3.3) any documents upon which the claimant intends to rely are brought to any subsequent hearing for examination.

It is my firm intention, should the claimant fail to provide the required documentation to verify any alleged debt, to enter Form N244 to have the claimant's claim struck out with prejudice.

Statement of Truth

I believe the facts stated in this defence are true.

Dated this day 30th November of year 2015.

Signed

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

Thanks

See my notes above, in my opinion the defence is far to complicated.
The Deed Of Assignment and Novation is also not going to help you.

Please have a look at some of the other threads and keep the defence more
concise. Staute Barred is a complete defence.
nem

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Hi Nem,

Thank you for that. I will revise the defence and post it shortly. I also discovered that Restons are in breach s.19 FSMA 2000. The FCA Licence LAPSED on the 30th September 2015!!!

Does that mean they have no right to make a claim against me after that date?

Thanks,

[sloane82]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Ok go and find out when the first charge was made on your account and when the last one was made. the Unfair Consumer Contract Term Regulations 1999 there will have been penalty charges to be honest you could have turned around on LLoyds about this if you would have done this a few years ago. Ok find out when the charges were made the dates and hope for the best on it being Statute barred. After the case is closed. Contact Cabot and write a letter to Restons also saying for the inconvenience caused you would like money back for the phone calls written letters undue harrassment etc.

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Ok go and find out when the first charge was made on your account and when the last one was made. the Unfair Consumer Contract Term Regulations 1999 there will have been penalty charges to be honest you could have turned around on LLoyds about this if you would have done this a few years ago. Ok find out when the charges were made the dates and hope for the best on it being Statute barred. After the case is closed. Contact Cabot and write a letter to Restons also saying for the inconvenience caused you would like money back for the phone calls written letters undue harrassment etc.

Hi,

I spoke to a legal adviser and it looks like Restons might be claiming on the grounds that "Restons don't need to be authorised as they would be entitled to rely on the exemptions in the FSMA RAO, which allows for solicitors to undertake regulated work that is incidental to their main work. For a solicitor, litigation is a main daily activity, it follows that any litigation which involves a regulated activities, then the solicitors would be able to rely on the exemption under the RAO."
"
This fact makes my whole defense invalid, as if they do have the exemption in FSMA RAO, that means they have all right to claim the money? Or am I possibly mistaken?

Thanks

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Restons don't need to be regulated by the FCA no, they are a solicitors firm, however if they are acting on consumer credit debt on instruction from an unregulated company then that is a problem ( Cabot's problem not Restons) However Cabot do seem to have got around the FCA regulation issue.

Pretty sure you had other things in your defence besides the regulatory status of Cabot though ?

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Restons don't need to be regulated by the FCA no, they are a solicitors firm, however if they are acting on consumer credit debt on instruction from an unregulated company then that is a problem ( Cabot's problem not Restons) However Cabot do seem to have got around the FCA regulation issue.

Pretty sure you had other things in your defence besides the regulatory status of Cabot though ?

Yes I did, but was just making sure my defence has some validity. Even if they come back and say they dont need to be regulated, they still need to prove the rest I have asked for. Lets see what they come back with. They have 28 days to answer from today I believe.

[sloane82]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

From what i've read what you have put up about Restons they need to be regulated as they cant just turn around and take money off you if they are not regulated they need to know the legal precedings and how to go about this or anyone could try and do it Reston's will not suceed as the claim is now statute barred as it is now over 6 years old. You do not legally owe them a penny as the original provider was with lloyds it has been passed over to them. It doesnt really make any sense to be honest as in a court of law your solicitor will argue the laws and mention to the judge that Restons need to be lawfully regulated it makes me laugh about debt collection agencies. They target the people that are vulnerable as this debt is now statute barred and they are having a go at yourself they have to be careful about this. What was your circumstances to get yourself into debt?.

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Hi Guys,

I have received Restons defence now and have enclosed this for you reference. I have also included a copy of my defence in the next thread.

They have now agreed for mediation on this.

What would you advise as next steps on this. I have sent my small Claims questionnaire back to my local court today as well, and have accepted mediation service.

Thanks,

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Here is my defence as well. Couldn't put all attachments in one thread.

[alpha2k15]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Here is my defence as well. Couldn't put all attachments in one thread.

Remaining attachments enclosed.

[Amethyst]

Re: URGENT HELP NEEDED PLEASE - Country Court Claim - Restons Solicitors / Cabot Fina

Alpha, just came across your post when looking for something else, how are things going on this ? you appear to have been missed completely since getting the response from Restons and going to the effort of posting it up I hope you'll accept my apologies xxxx