Cabot and Restons CCJ

[nelsonian]

Hi all..

I am not entirely certain how the site works in terms of advice for cases of legal advice so I apologise if I am being presumptious by asking for advice.

I have read a variety of threads on here about consumers who have been threatened with legal action by a combination of Restons Solicitors and Cabot Financial and I now find myself in the same position. I have been sent letters by Restons Solicitors and as of this week I have now received a Claim Form from the Northampton Bulk Centre in relation to a unsecured loan of £15k going back to 2005 that was with Lloyds Bank.

I am now extremely worried and would be grateful for any advice that anyone could offer please as I have no legal expertise.

Here is the history to date in terms of communication with Restons and more recently the court claim form:
November 2015: Restons send me a letter requesting I pay them £15,672 in relation to a debt with Cabot Financial, who bought the debt from Lloyds Bank
November 2015: I reply to Restons stating it is statute barred as I do not recall making a payment on this account within the last 6 years
November 2016: Restons reply to my letter dated November 2016 claiming I made a few payments in the latter part of 2010 of £1 and £139 in March 2011 and attach a very vague print off of the payments against my name. It wasn't very clear where they got this from nor did it have any bank details in my name.
December 2016: I respond to Restons (recorded delivery) and state that I don't owe Cabot Financial any money and send a letter quoting the CCA act request for information and incude a postal order for £1. I quoted section 61 of the CCA using a template I found online.
December 2016: Restons respond and send back my postal order stating that neither they nor their client have to provide me with any documentation relating to this account
December 2016: I respond to the last Restons letter stating that they do have to provide me with the information as they are acting on behalf of Cabot but if they don't then who do I write to
5th January 2017: Restons reply stating that I need to write to Cabot to get the information I request with payment of £1
10th January 2017: I write to Cabot (1st class mail only) requesting all the required documentation based on sections 61 and 127 of the CCA to provide the original signed agreement, transfer of debt from lloyds to Cabot etc, including a postal order for £1. I never got a response from Cabot.
21st March: I receive a claim from from the Bulk Centre in relation to this
22nd March: I write another letter to Cabot requesting the same information as per my letter dated 10th January (all the required documentation based on sections 61 and 127 of the CCA to provide the original signed agreement, transfer of debt from lloyds to Cabot etc.) and postal order for £1. I used recorded delivery this time.
23rd March: I complete the Acknowledgement of Service using the MoneyClaim website to extend the time to respond by another 14 days to allow Cabot to send me all the documentation I requested.

I have researched online and discovered that as this agreement was taken out before 2007 (November 2005) then Cabot need to provide me with the original signed agreement with specific prescribed terms as described in sections 65 and 127 of the CCA. I wanted to know if this is correct and if so then do they need to provide the original copy or a reconstituted version?

If their claim that I made payments as they stated is correct and can be proved then will a court decide that this is suffiecient to make me pay the full amount, even if they can't provide all the required documentation based on this agreement have the pre-2007 requirements?

If anyone can provide any help and advice on this I would be grateful and I apologise if I have mis-used this service.

many thanks

Nelsonian

[Guest]

Re: Cabot and Restons CCJ

They do not have to send original agreement as a copy of it is good in law. I am afraid that this debt is still enforceable unless you can prove otherwise. Sorry

[nelsonian]

Re: Cabot and Restons CCJ

They do not have to send original agreement as a copy of it is good in law. I am afraid that this debt is still enforceable unless you can prove otherwise. Sorry

Thanks Suzysue. In terms of providing the copy, do you know exactly what they need to provide as this agreement was taken out before April 2007? I'd be grateful of any information you can provide please.

[Guest]

Re: Cabot and Restons CCJ

They can provide documents as proof of the debt such as the signed agreement and other documents.

[Kati]

Re: Cabot and Restons CCJ

They do not have to send original agreement as a copy of it is good in law. I am afraid that this debt is still enforceable unless you can prove otherwise. Sorry

not necessarily ... pre 2007 they need to have an original agreement to comply with the cca, it's only after that the re-constituted will suffice.

Thanks Suzysue. In terms of providing the copy, do you know exactly what they need to provide as this agreement was taken out before April 2007? I'd be grateful of any information you can provide please.

I'll tag those that should be able to point you to the correct legislation ... [MENTION=6]Amethyst[/MENTION] @Celestine @pt2537 @nemesis45 @Diana M @Joanna C
Hopefully one of those will pop on and advise you asap

[Guest]

Re: Cabot and Restons CCJ

A copy is good in law to prove the original exists. If all else fails then a judge can look into what has been done and we can see that you paid £1 and £139 in March 2011 and 2010 which proves there is a contract.

[Kati]

Re: Cabot and Restons CCJ

A copy is good in law to prove the original exists. If all else fails then a judge can look into what has been done and we can see that you paid £1 and £139 in March 2011 and 2010 which proves there is a contract.

pre 2007 a reconstituted agreement will only suffice if the dca can provide statements/letters etc... PLUS it has to have all the amendments that have occurred between then and now - and PROVE the OP took out the debt and acknowledged it (easier said than done with one before 2007 than after )

[Guest]

Re: Cabot and Restons CCJ

Kati, so your saying that if the creditor does not send copy of signed agreement then debtor can run off with the ££££

[Diana M]

Re: Cabot and Restons CCJ

A copy is good in law to prove the original exists. If all else fails then a judge can look into what has been done and we can see that you paid £1 and £139 in March 2011 and 2010 which proves there is a contract.

Are you sure about that?

I'm not.

My boss made that clear when she was the leading solicitor in the Carey v HSBC case http://www.joannaconnollysolicitors.co.uk/

Even if you were right (and I don't believe you are) there are many other reasons for a debt not to be enforceable in court.

Di

[Guest]

Re: Cabot and Restons CCJ

Ask your boss this...... What if i keep the original signed agreement and burn it?

[Guest]

Re: Cabot and Restons CCJ

CAREY V HSBC BANK PLC, YUNIS V BARCLAYS BANK PLC AND SIMILAR: QBD 23 DEC 2009

March 11, 2017 dls Banking, Consumer,
carey_hsbcQBD2009
References: [2009] EWHC 3417 (QB), [2010] Bus LR 1142, [2009] CTLC 103
Links: Bailii, Times
Coram: Waksman QC J
Ratio: (Manchester Mercantile Court) The court considered the effects in detail where a bank was unable to comply with a request under section 78 of the 1974 Act to provide a copy of the agreement signed by the client.
Held: The court set out to give guidance on these issues. A photocopy of the signed document was not required, and a reconstruction would do, though as matter of good practice and so as not to mislead the debtor it is clearly desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. The document produced need not be in a condition such that if it were signed it would be satisfy the requirements for regulation. What mattered was that it provided what was needed clearly and without misleading the debtor. Also, regulation 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request.
Waksman QC J set out costs principles on a discontinuance: ‘(1) when a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
(2) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
(3) however, if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
(4) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;
(5) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he has not himself contributed;
(6) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.’

[warwick65]

Re: Cabot and Restons CCJ

Suzy
you are comparing eggs and fish



The carey judgement was about s77-79 not execution of the agreement.

I think ink I may disagree with Kati and say, if a genuine copy of the original agreement existed that may suffice but they need to prove it is genuine.

For the OP
If you have received a claim
http://legalbeagles.info/forums/show...it-Court-Claim

However as it is over £10000 I strongly advise taking legal advice

[Diana M]

Re: Cabot and Restons CCJ

Hello Nelsonian

I'd like to help you with your claim if I can.

Try not to be sidetracked by chatter and background noise.

This appears to be a claim for over £15k which may be allocated to the Fast Track (where the loser pays the winner's legal costs) so let's focus.

What is the claim Issue Date?

From what you say you have filed your Acknowledgement of Service.

You have 33 days from the claim Issue Date to file your Defence.

From what I can gather this was a £15k unsecured loan from Lloyds opened in 2005 which has since been assigned to a debt purchaser (Cabot) who has instructed Restons solicitors to issue legal proceedings against you.

You believe this debt may be Statute Barred. It may be, it may not but let's explore that option.

It's best to throw everything including the kitchen sink into a Defence.

So my first advice is to send a Subject Access Request to Lloyds to establish the full history of this debt. This may prove invaluable as legal proceedings travel through the system.

I can see you've already sent a s.77-79 CCA request and have had no meaningful response. Good.

Have you sent a CPR 31.14 Request yet?

I'd like know exactly what is stated in the Particulars of Claim to see whether you should send a Part 18 request too.

Can you type out the POC removing any information which could identify you.

Di

[Guest]

Re: Cabot and Restons CCJ

Are you sure about that?

I'm not.

My boss made that clear when she was the leading solicitor in the Carey v HSBC case http://www.joannaconnollysolicitors.co.uk/

Even if you were right (and I don't believe you are) there are many other reasons for a debt not to be enforceable in court.

Di

Loan was made under duress?

[Guest]

Re: Cabot and Restons CCJ

Suzy
you are comparing eggs and fish



The carey judgement was about s77-79 not execution of the agreement.

I think ink I may disagree with Kati and say, if a genuine copy of the original agreement existed that may suffice but they need to prove it is genuine.

For the OP
If you have received a claim
http://legalbeagles.info/forums/show...it-Court-Claim

However as it is over £10000 I strongly advise taking legal advice

Give the full citation please.