Cabot Financial (Restons Solicitors) V Me - Some advice please

[Boris]

Hi All,

I wonder if you could give me some advice please?

I have a credit card debt for just over £3K dated July 2010 and unpaid since January 2012 due to financial difficulties.

Cabot Financial via Restons Solicitors brought a claim against me in July 2015 at which time I defended the claim by asking for copies of the agreement, terms and conditions and notice of assignment.
I also filed a CPR18 request. No information was forthcoming (aside from Restons advising me that my CPR 31.14 request - which you will see I did not make - was not valid) and the claim was stayed in Sept 15.

In August 2016 Restons wrote to me making me an offer to agree to half the debt and all would be finished. I declined.

In September 2016 they provided me with a legible copy of the agreement signed by me (but not the creditor)
The terms and conditions which they say were in force at the time
A complete statement of the account showing all transactions.

They have given me until this Friday to withdraw my defence and have sent me form N9A to do so otherwise they will advise their client to make an application to strike out my defence and enter a judgement against me.

My question is, do I have any where to go with this now?

They have not provided me with the notice of assignment and there is no evidence that the terms and conditions they have sent me were in force at the date of the agreement.

I welcome your thoughts on this matter.

[nemesis45]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Hi ,

Before commenting further could you please post copies of the documents you received after removing you name /address/claim number.

nem

[Boris]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Claim form attached, what else would you like sight of?

[nemesis45]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Claim form attached, what else would you like sight of?

Hello Boris,.

The Particulars of Claim are extremely sparse so anything else have received will help.

nem

[Boris]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Ok attached is all correspondence

Many thanks

[Boris]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

and more correspondence attached

[charitynjw]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Hi Boris

In your filed defence (referred to by Restons in the last letter of 30th Sept 2016), did it contain words to the effect of

"In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment."

(This from the our forum defence example template http://legalbeagles.info/forums/show...t-Court-Claims )

[Boris]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Sadly not

[charitynjw]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Sadly not

Shame about that.

You can amend your defence, but obviously you need to provide a suitably acceptable version which gives a reasonable basis for disputing the claim.
For instance

The terms and conditions which they say were in force at the time

Have you any reason to challenge the T&C's? (ie any proof that the ones supplied are not as at inception of the agreement).
Or anything else?

[Boris]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Hi,

How do I go about amending my defence and on what basis?

I cannot prove the T & Cs are not the ones in force at inception unfortunately, but then they can't prove they were either.

What about the notice of assignment?

Should they a) provide it and b) prove that Cabot accepted the assignment? and c) prove that it is an absolute assignment?

Thanks

[charitynjw]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

Hi,

How do I go about amending my defence and on what basis?

I cannot prove the T & Cs are not the ones in force at inception unfortunately, but then they can't prove they were either.
They have provided evidence; I guess the reverse burden is now on you to show that it's not correct.

What about the notice of assignment?

Should they a) provide it and b) prove that Cabot accepted the assignment? and c) prove that it is an absolute assignment?
You seem to be au fait with the Law of Property Act.
From what I've seen, evidence to the fact that a compliant NoA was sent (ie a signed statement to that effect) would probably be sufficient to satisfy the burden of proof. (Balance of probabilities).
I'm not sure what you mean by "Cabot accepted the assignment", though.
Thanks

####

[Boris]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

I wouldn't say I am totally au fait, just trying to get to grips with it :tinysmile_hmm_t2:

I read the following (I think it was somewhere on this forum):
"The assignment may be a document passing between the assignor and the assignee, or a written demand from the assignor to the debtor that the debtor pays or discharges his obligations to the assignee. In the latter case, in order to be an effective assignment rather than merely and authority to pay a third party, there must be evidence that the assignee consented to the arrangement between the assignor and the debtor (see Curran V Newpark Cinemans Ltd)"

In any case they do need to provide the notice of assignment surely?

[charitynjw]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

In the debt purchase world there is usually a Deed of Assignment via which the assignor transfers the benefits of the debt to the assignee. They will probably claim that this is a commercially sensitive document & so exempt from disclosure. It will probably cover a portfolio of debts (hundreds, possibly thousands of them). In cases I've seen where it has been disclosed, it has been so heavily redacted that it was practically useless.
A Notice of Assignment needs to be served on the debtor in order for the individual assignment to be 'absolute'.
This can be served by the original creditor (or current owner if already assigned), or by the new assignee (ie 'under the hand of the assignor'). Sometimes both send notification.
LoPA 1925 s136

[Boris]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

So as the notice of assignment was requested as part of my defence I can ask for it then?

[charitynjw]

Re: Cabot Financial (Restons Solicitors) V Me - Some advice please

So as the notice of assignment was requested as part of my defence I can ask for it then?

If it is mentioned in the Claimant's Particulars of Claim.
We normally suggest that all documents stated in the PoC are requested via CPR31.14.
I note that you used CPR 18?