Cabot, mortimer clarke solicitors threat of court action.

[R0b]

Re: Cabot, mortimer clarke solicitors threat of court action.

What are your thoughts on the paperwork? Do you recall making those £5.00 payments with the latest one being 25 November 2011?

You said the car was sold some years ago, did you sell the car and keep the proceeds yourself?

The Order from the judge appears to be ambiguous (you've left your name in there once so I suggest you redact that). It says:

"The Defendant do return the goods ... and the claimant's title to the goods be transferred to the defendant". If the goods are returned to them then how can title be transferred to you?

In any event, there's an almost wishy washy argument that the Funding Corporation claimed the delivery up of the car plus the unpaid balance remaining yet the Judge appeared to have only ordered the delivery up of the car and not the unpaid balance. Therefore, the claim by Cabot could be seen as a second action which was already determined previously in 2010.

Wouldn't solely rely on that argument given there has been payments after that date which they could potentially argue as an acknowledgement of the debt but could be validly raised. Once a cause of action has been held to exist and raised by the claiming party, it may not be re-litigated again at a later stage in subsequent proceedings, with a couple of exceptions.

[ashley01283]

Re: Cabot, mortimer clarke solicitors threat of court action.

I think the amounts could be right as it is something I would offer although I couldn't confirm.
The car was sold and I kept the funds.
There is a payment for over £1000 on the statement too from an insurance payout (the insurers paid them direct) as the car was written off in 2011 and I kept and repaired the car myself.

Do I try and get them to prove I made payments?
Where do I go from here ?

[R0b]

Re: Cabot, mortimer clarke solicitors threat of court action.

It's a bit difficult for me to say where to go from here as it is you who has to decide what you would like to do. You've suggested you do not want a CCJ so you could offer to settle or make repayment instalments, but they could refuse and issue proceedings against you, at that point you have to decide whether to admit or defend it.

In terms of a defence you could:

- Put them to poof as to how the payment was made and if from a bank account what the account number / sort code was and then you could try and cross reference by contacting the bank to see if payments were in fact made out of that account.

- Plead Res Judicata, that is a decision in which a court with jurisdiction has disposed of a case which is settled once and for all and cannot be re-litigated. It is based on two principles, that it is in the interest of the public for there to be finality in the litigation and that defendants should not be harassed twice concerning the same set of circumstances. A recent Supreme Court case has held that, once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. So a party may not bring subsequent proceedings to challenge an earlier outcome.

Looking at the particulars of claim, the Funding Corporation brought a claim for (1) the return of the car or the cash value as an alternative and (2) the balance remaining under the agreement which was £4,994.23. The Judge appeared to have given judgment on the return of the car only, there was no order as to the repayment of the outstanding balance. As the cause of action for the outstanding balance was raised in the 2010 proceedings, and the Funding Corporation succeeded in the order for the car but not the outstanding balance, I assume they did not challenge this. On that basis, the right to claim the outstanding balance is extinguished and arguably, Cabot could not bring a fresh claim to recover the outstanding balance where it has been claimed in earlier proceedings.

In your long list of documents, do you see any Default Notice letter at all or a letter of termination?

I would perhaps suggest you try and seek some free initial legal advice or perhaps initial advice at a low fixed cost to see what your options are.

I've tagged [MENTION=55034]nemesis45[/MENTION] and [MENTION=87380]Diana M[/MENTION] to see if they can assist on the terms and conditions or the credit agreement side of things, or perhaps offer something else I may have not thought of.

[ashley01283]

Re: Cabot, mortimer clarke solicitors threat of court action.

Yes there are default notices and termination letters. But the termination letters are not dated but the amounts on them can be cross referenced with the account statement. So I assum I can write back to cabot and point out that a judgement has been made and it cannot be returned to court. Just to see what they reply.
Is it right they have 40 days to return a CCA?
They did notify me this would be the case within the 12+2 days.