**DISCONTINUED** Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

[NoviceLLB]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

I have googled Harrington Brooks, they took over the FreshStart accounts.

If it is not Aquacard then I have no idea who it could be!!

[charitynjw]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

????????????????:confused2:

Btw, from post no 8

CPR 31.14 relates to a right to inspect a document and can be distinguished from standard disclosure of evidence during the course of proceedings.

Pedants.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31#31.14
Inspection and copying of documents

31.15 Where a party has a right to inspect a document–
(a) that party must give the party who disclosed the document written notice of his wish to inspect it;
(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request

We believe that you may have already "inspected" the documents to which you make reference because on various dates in the past they would have been sent to you by another party such as the original creditor.

So what?
You've asked for them, they must send them or tell you why they can't/won't.
Refer them to CPR 31.15

We would be grateful if you could confirm what documents you have in your possession or control relating to this matter to avoid duplication over document inspection. We will then take our client's instructions.

I would ignore this at present.
It's clearly a fishing attempt to find out what info you have, & can be dealt with as & when necessary.
If it were me, I would respond to the CPR letter (post #8), asking again for the info requested by me on xxxxxx date.
You have a bit of leeway re disclosure - They have 7 days after receiving request. (see above CPR 31.15)

Do not chase the CCA letter for the agreement, etc. (post #7)
The (alleged) debt owner, Cabot, cannot take action while they fail to send this info.
http://www.legislation.gov.uk/ukpga/1974/39 Section 78

Finally, I have seen elsewhere an attempt by solicitors to bamboozle someone by saying that the case will probably end up in Small Claims court, which is governed by CPR 27.
Although the statement is probably true, the case has not yet been allocated to 'track'.
Until it is, CPR 31 is applicable.

& remember to get proof of postage. (You can ask for free certificate of posting at a PO
Better still send it Recorded Signed For - http://www.royalmail.com/delivery/bu...ecorded-signed

This is only my opinion - "Opinions are made to be changed --or how is truth to be got at?" (Byron) (and me :biggrin1: )

[charitynjw]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

[QUOTE=NoviceLLB;

I may have a default notice for Aquacard, but I will need to check. Will this help me at all?

[/QUOTE]

Maybe, so please dig it out if you can.

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

4. On receipt of the claim the Defendant requested copies of any documents or information that would support the claim. The request was made on 23rd December 2015 (sent by recorded delivery) by CPR 31.14 and under section 78 Consumer Credit Act 1974. The Claimant has failed to provide any evidence of assignment/balance/breach/contract/agreement.

In your defence I would expand ( preferably split to its own para ) on the request under s.78(1) which has not been complied with and therefore by virtue of s.78(6) the claimant is unable to enforce the agreement while he remains in default of that request

10. On the [Date] I sent a formal request for a copy of the original agreement to [Claimant] pursuant to section [77 or 78] of the Consumer Credit Act 1974 along with the statutory £1 fee.

11. The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.

as opposed tp

4. On receipt of the claim the Defendant requested copies of any documents or information that would support the claim. The request was made on 23rd December 2015 (sent by recorded delivery) by CPR 31.14 and under section 78 Consumer Credit Act 1974. The Claimant has failed to provide any evidence of assignment/balance/breach/contract/agreement.

Also I think they get a bit much leaway here

Until such time the Claimant can disclose the necessary documents that this claim relies upon the Claimant’s claim is denied.

maybe

The Claimant has declined to disclose any further information or documentation regarding their claim to allow the Defendant to assess his position further. The Claimant’s claim is denied.

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

On the Harrington Brooks, payment in Jan 2010 issue, yes it will most likely mean it is not statute barred - Harrington are/were acting on your instructions.

Aqua was Bank of Scotland before it was moved to New Day

[nemesis45]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

CPR 31.14 applies to debts that are likely to be allocated to the small claims track
only until the claim is actually allocated to the track.

Many of the " solicitors " within the debt collection " industry " will decline to comply
on these grounds.

I find reminding them of the fact that the claim has not been allocated and that failure to
comply will be brought to the attention of the court via defence a witness statement just
to put them on notice is the best one can do.

The alternative is to apply for an " unless order" which is costly and if challenged cost will increase.

The CCA request although is effectiveness has been depleted by the provision of " reconstituted "
agreements is far more important than CPR 31.14.
New Day provides numerous branded store cards as well as it's Aqua brand.

nem

[NoviceLLB]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

Amethyst, many thanks for your reply.

I will need to submit the defence tomorrow and have redrafted it as per your comments. Is the below ok in your opinion?


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


DEFENCE


1. The Defendant contends that the Particulars of Claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR 16.5 (3) in relation to any particular allegation to which a specific response has not been made.


2. The Defendant has no recollection of the account details or the amount referred to in this claim. The Claimant has declined to disclose any further information or documentation regarding their claim to allow the Defendant to assess his position further. The Claimant’s claim is denied.


3. The Defendant is not aware of any Assignment of any alleged debt nor has any recollection of any Notice of Assignment pursuant to the Law of Property Act 1925.


4. On the 23rd December 2015 the Defendant sent a formal request for a copy of the original agreement to the Claimant pursuant to section 78 of the Consumer Credit Act 1974 along with the statutory £1 fee.


5. The Claimant has failed to comply with s.78(1) Consumer Credit Act 1974 and by virtue of s.78(6) Consumer Credit Act 1974 cannot enforce the agreement.


6. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.


7. Therefore the Claimant is put to strict proof to:


a) show how the Defendant has entered into an agreement or contract; and
b) show what finance and/or services and/or goods they refer to;
c) show how the Defendant has reached the amount claimed for; and
d) show how the Claimant has the legal right, either under statute or equity to issue a claim;


8. As per Civil Procedure rule 16.5(4) it is expected that the Claimant prove the allegation that the money is owed.


9. By reason of the facts and matters above it is denied that the Claimant is entitled to the relief claimed or any relief at all.


Statement of Truth
The Defendant believes that the facts stated in this Defence are true.


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

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

Yes that's better - I reckon that's fine to submit now.

[NoviceLLB]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

@charitynjw, I have tracked down the default notice. Please see below for the text contained within it.

I note that the copy of "the current Office of Fair Trading information sheet on default" quoted below was not included within the letter sent to me.


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

[my address at the time redacted]

Aqua Card Services
PO Box 333
HALIFAX 2UB
Telephone: 0800 587 5770
Opening Hours:
8:30am to 8:30pm Monday Friday
8:30am to 12:30pm Saturday


1st July 2009

CREDIT CARD AGREEMENT.
ACCOUNT NUMBER: [redacted]
CREDIT LIMIT: £300.00
OUTSTANDING BALANCE: £414.46

Dear [redacted],

IMPORTANT - YOU SHOULD READ THIS CAREFULLY

This is a default notice served under Section 87(1) of the Consumer Credit Act 1974.

You have breached your conditions by going £114.46 over your credit limit. Your conditions state that you must not let your account go over your credit limit or use your account if it is already over its credit limit. This is stated in condition 7.1.

You must pay £114.46 into your credit card account number [redacted] before 15th July 2009.

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

We will terminate our agreement with you and close your credit card account [redacted]. You must pay the full balance owing on your account immediately. If you do not do this, we may take legal proceedings against you and/or instruct a debt collection agency to recover any amount you owe us on your account.

You and any authorised user(s) must stop using your card(s) immediately. Your card(s) must be cut in two pieces through the magnetic strip on the back of the card(s) and returned to us at the address overleaf before 15th July 2009. If your card(s) have already been returned, please ignore this request.

If you have not paid the amount requested above within 28 days of the date of this letter or made satisfactory proposals to do so, we will pass details of the default to a licensed Credit Reference Agency and this will be recorded on your credit file.

IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY OTHER ACTION REQUIRED BY THIS NOTICE. YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN ORDER ALLOWING YOU OR ANY SURETY MORE TIME.

You should be aware that if we take you to court and get a judgement against you requiring you to pay us the money you owe us under the agreement, you may have to pay us both the amount of the judgement and interest under the agreement on all the sums owed by you at the date of the judgement until you have paid these in full. This means that even if you pay off the whole amount of the judgement, you may still have a further sum to pay.

IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE, FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU.

This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains important information about your rights and where to go for support and advice. If it is not included, you should contact us to get one.


Yours sincerely,

Charlotte Gurnell,
Senior Operations Manager.

Please note we may register a default at the credit reference agencies to which we subscribe.

A credit reference agency is an organisation; licensed under the Consumer Credit Act 1974 that retains information concerning the financial status of Individuals. Lenders, such as ourselves, may pass on information about customers to these agencies and this can be shared with other lenders. Lenders may refer to these agencies for information to help them make decisions such as whether to open accounts or provide credit. Lenders also use the information to aid in debt recovery matters, prevent fraud and money laundering, and to manage customer accounts. Please note that, because an individual's financial details can be shared with other lenders in this way, if information on a defaulting account is added to your file with a credit reference agency, it may adversely affect your ability to obtain credit in the future.

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[NoviceLLB]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

[MENTION=6]Amethyst[/MENTION] thank you, I have submitted the defence.

[NoviceLLB]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

@nemesis45 and @charitynjw, many thanks for your comments on responding to Mortimer Clarke Solicitors.

I have drafted a letter to respond to them with (below) - do you think it is fine to send?

Additionally, any thoughts on their comment where they say:
"We confirm our client is willing to agree to an extension of 28 days, for you to file your defence. Pursuant to CPR 15.5(2) please notify the court in writing of the agreement."


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

Dear Sirs,

Thank you for your letter dated 14/01/2016.

I refer you to CPR 31.15, and remind that that my request for documents under CPR 31.14 was made on 23^rd December 2015. This request was sent by Royal Mail recorded delivery and proof of delivery confirms that it was received by you on 29^th December 2015. A copy of this request was sent to your client Cabot Financial (UK) Limited on 23^rd December 2015 by Royal Mail recorded delivery, and likewise proof of delivery confirms that it was received by your client on 29^th December 2015.

Despite this, you have failed to comply with my request for documents under CPR 31.14 and have not supplied me with the documents requested, or explained why you cannot or will not comply with my request, within 7 days after the date on which you received the request. You have failed to comply with your obligations under CPR 31.15.

Furthermore, I remind you that the claim has not been allocated to a small claims track court, therefore CPR 31 is applicable. Your failure to comply will be brought to the attention of the court via a defence witness statement.

I therefore ask that you respond to my request under CPR 31.14 dated 23^rd December 2015 and ensure that the documents requested are sent to me by Friday 29^th January 2016.


Yours faithfully,


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

[charitynjw]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

Good morning I think you will need to find out from fresh start exactly when the last payment was made, if your date is correct the alleged debt was statute barred when the claim was issued.

nem:carolers:

On the Harrington Brooks, payment in Jan 2010 issue, yes it will most likely mean it is not statute barred - Harrington are/were acting on your instructions.

Aqua was Bank of Scotland before it was moved to New Day

Thanks for finding the DN.
At that stage payments had probably ceased by the end of May 2009 or before
Unfortunately, because of Freshstart/Harringtons involvement (acting on behalf of yourself), & evidence of payment in Jan 2010, unless you could show that there was some mistake in that evidence, it looks as if Cabot have slipped in by the skin of their teeth, & Stat Barred isn't going to fly.

Ah well, onwards & upwards - you've shaken the CCA 78 & CPR 31 trees, so see what drops out!

[Debtrelief]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

So Harrington Brooks is a CMC (credit management)?


Aquacard seems to be run by NewDay Ltd (formerly SAV Credit) https://en.wikipedia.org/wiki/NewDay_(company)

I can't find any mention of Bank of Scotland, who are on the particulars of claim, being linked to Aquacard.

Aqua card was run by Bank of Scotland, before NewDay Ltd (formerly SAV Credit) - apologies just realised this was covered in a prev post

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

Additionally, any thoughts on their comment where they say:
"We confirm our client is willing to agree to an extension of 28 days, for you to file your defence. Pursuant to CPR 15.5(2) please notify the court in writing of the agreement."



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Sorry misseed this today - http://legalbeagles.info/forums/show...filing-defence for informing the court xx

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Limited / Bank of Scotland - 21-12-2015

The Default Notice looks fine, but they haven't provided it to you have they - that's from your original copy ? Be interesting then if they do provide a copy whether it matches...