Restons - possible application to lift Stay. Advice needed

[sar2004]

hi all

Bit of background:
I received a claim form from Restons in relation to a Capital One/Cabot debt - this was issued 1st June.
I acknowledged service, sent the standard letter to Restons (CPR) and Cabot (CC Act) by recorded delivery as per usual instructions on this website.
I did everything on time.
I received the standard response from restons by way of two letters, 1 saying they do not accept electronic signatures and so wont acknowledged my letters and the other saying that the Particulars of Claim have enough information for me to admit to the claim.
I did not reply to either letter - I simply filed my defence.

I received nothing from Restons and the claim is now stayed.

This morning I receive a letter from Restons saying that Cabot has found documentation which they enclose a copy of. They say this is enough for them to prove my knowledge and use of the account and either I admit the claim, make an offer or they will make an application to lift the stay, strike out my defence and enter judgment against me.
The document they enclose is a letter from Cabot, it is addressed to me and it says the full amount owed and that they bought the account I held with Capital 1.

My issue is that I have no idea if this debt is mine - long history to this which I wont bore you all with, but if the debt is mine then I will pay it somehow. I just want to see the credit agreement to show this - I don't think it is too much to ask.
Copy of an assignment notice just proves they sent me an assignment notice - still doesn't show the debt is mine. Well that is my view anyway. I also don't know if the amount they claim is even correct?

Has anyone else been in this position?
Can I do anything to prevent them lifting the stay?
xx

[MIKE770]

Re: Restons - possible application to lift Stay. Advice needed

@diana M

[sar2004]

Re: Restons - possible application to lift Stay. Advice needed

Anyone?

[MIKE770]

Re: Restons - possible application to lift Stay. Advice needed

[MENTION=87380]Diana M[/MENTION]

[warwick65]

Re: Restons - possible application to lift Stay. Advice needed

I suppose a couple of quick wuestion
When do they say, or you think the account was opened?
Approx how much was the claim for?
What did you plead in your defence?

Restons are wiley buggers

In response to your cca request did Cabot respond at all
The digital signature is probably not enough for your cpr request but should be for your cca request
Did you send the fee with the cca request?

[nemesis45]

Re: Restons - possible application to lift Stay. Advice needed

hi all

Bit of background:
I received a claim form from Restons in relation to a Capital One/Cabot debt - this was issued 1st June.
I acknowledged service, sent the standard letter to Restons (CPR) and Cabot (CC Act) by recorded delivery as per usual instructions on this website.
I did everything on time.
I received the standard response from restons by way of two letters, 1 saying they do not accept electronic signatures and so wont acknowledged my letters and the other saying that the Particulars of Claim have enough information for me to admit to the claim.
I did not reply to either letter - I simply filed my defence.

I received nothing from Restons and the claim is now stayed.

This morning I receive a letter from Restons saying that Cabot has found documentation which they enclose a copy of. They say this is enough for them to prove my knowledge and use of the account and either I admit the claim, make an offer or they will make an application to lift the stay, strike out my defence and enter judgment against me.
The document they enclose is a letter from Cabot, it is addressed to me and it says the full amount owed and that they bought the account I held with Capital 1.

My issue is that I have no idea if this debt is mine - long history to this which I wont bore you all with, but if the debt is mine then I will pay it somehow. I just want to see the credit agreement to show this - I don't think it is too much to ask.
Copy of an assignment notice just proves they sent me an assignment notice - still doesn't show the debt is mine. Well that is my view anyway. I also don't know if the amount they claim is even correct?

Has anyone else been in this position?
Can I do anything to prevent them lifting the stay?
xx

Clarify please.

No credit agreement either a proper copy or a reconstituted one?
Just a copy of a notice of assignment from Cabot.

If so there is no proof that the debt is yours or enforceable.

nem

[Diana M]

Re: Restons - possible application to lift Stay. Advice needed

Is this the same claim as the one in these other threads? If so maybe [MENTION=49370]Kati[/MENTION] can merge them to keep the history in one place.

Thread No 1 > http://legalbeagles.info/forums/show...ht=#post740055

Thread No 2 > http://legalbeagles.info/forums/show...ht=#post740594

Thread No 3 > this one

Di

[Diana M]

Re: Restons - possible application to lift Stay. Advice needed

They say this is enough for them to prove my knowledge and use of the account and either I admit the claim, make an offer or they will make an application to lift the stay, strike out my defence and enter judgment against me.

If that's what their letter said then they're getting a bit ahead of themselves since only a DJ can strike out a Defence and enter judgment against you - Restons have no power to do that.

This claim is for £550. The Claimant will have to pay to lift the stay and they'll have to pay to make an Application for a Summary Judgment (which is what they seem to be threatening).

Hopefully someone will look at the claim from a commercial point of view so they don't go ahead with their threat.

There is nothing you can do to prevent them lifting the stay but since they've not complied with your s 77-79 CCA Request the debt remains unenforceable unless or until they do.

I see no need for you to reply to that letter.

Di

[Diana M]

Re: Restons - possible application to lift Stay. Advice needed

Looking at this post on your other thread it seems that Restons may not have been told that you sent a CCA Request to their client (is the Claimant Cabot or Capquest?).

Did you fix that problem?

If not then maybe the response to their latest letter should be a copy of your CCA Request to Capquest (or Cabot?) so they are fully aware of the legal position (non compliance with s.78).

I sent a CPR letter to Restons on 12th June and a CCA letter to Cabot the same date. The Cabot letter had the £1 postal order and both sent recorded.
I have not had a response from Cabot.
. . . . .
They are not aware of any s77/78 request to Capquest and want evidence of that - am I obliged to send them proof. I can do of course if needed but not sure why I should do.

You've asked them (Restons) for documents under CPR 31.14 but you've not said exactly which ones you ask for.

Di

[sar2004]

Re: Restons - possible application to lift Stay. Advice needed

Hi All,

apologies for the delay in responding. Had some personal difficulties taking up my time.
Very grateful for those who have responded so far.

So in response to the above questions:

When do they say, or you think the account was opened?
they say May 2014
Approx. how much was the claim for
366.10 but that includes fees so debt was 291.10
What did you plead in your defence
In summary
I denied knowledge of the contract or entering into it - required them to prove
denied notice of arears served - required them to prove
denied receiving notice of assignment - required them to prove
denied receiving default notice - required them to prove
sent CPR request - nothing received
sent CCA request - nothing received
I used template from here, tailored to my facts.

The difficulty I have is that on my street (it is a long street) there are three houses with the same number. The street changes name at various points. All three houses often get each other’s mail. Normally not an issue as we just pop over and say, “oh this is for you”. However, there was a period when we had issues as one house was empty and mail went missing. I suspected it was delivered to empty house in error but could not prove it - new tenants moved in and someone who cleaned the house prior to that says they returned all mail they found 'to sender'. So, it is possible Cabot sent letters but it is also possible they went to the wrong house.

In response to your CCA request did Cabot respond at all
only responded to part of request in that they sent notice of assignment but outside the time limit in the request

Did you send the fee with the CCA request?
Yes by postal order
Looking at this post on your other thread it seems that Restons may not have been told that you sent a CCA Request to their client (is the Claimant Cabot or Capquest?).


Sorry it is Cabot.

Did you fix that problem?
No, I didn’t respond to them. I felt it was for Cabot and Restons to communicate between each other.
You've asked them (Restons) for documents under CPR 31.14 but you've not said exactly which ones you ask for.
I asked for a copy of the contract, notice of assignment within 7 days of the request. I received a copy of the notice of assignment 6 weeks outside the time limit in my CPR request. I have not received a copy of the contract.

By way of additional information, one month after sending the CCA request to Cabot, I received a letter from Cabot (not Restons) thanking me for my CCA request and saying that they do not currently have the information on file. However, they say they have requested the information from the original lender. They go on to say that
“your credit agreement is currently unenforceable which means we are not permitted to obtain a judgment against you”
This seems to go against what Restons are saying!

Does this mean that as it stands, the debt is unenforceable UNTIL the point at which they have all the information I requested in the CCA request OR it is unenforceable forever? If it is the former then they could find it all in 2 years’ time and start the ball rolling again. Don’t like the idea of it hanging over my head!

Thanks guys xx

[sar2004]

Re: Restons - possible application to lift Stay. Advice needed

Other point to note - grateful if this has any bearing on matters -

The Claimant is Cabot Financial (UK) Limited - they don't have FCA licence do they?
Can they carry out this action against me under Cabot Europe or something like that tho?

[warwick65]

Re: Restons - possible application to lift Stay. Advice needed

Other point to note - grateful if this has any bearing on matters -

The Claimant is Cabot Financial (UK) Limited - they don't have FCA licence do they?
Can they carry out this action against me under Cabot Europe or something like that tho?

The licensing issue is really rather complex or so it seems and not one that is easily argued by an ordinary person - maybe at some point we will get case law as opposed to persuasive law on this but until then.....

You would probably need a lawyer to argue that and for the amount of your claim it is juts not realistic

The claim has already been brought so I think it would be entirely uneconomic , if even possible, for them to alter the name of the claimant. It is not as if they can discontinue and pass the debt to someone else because you have filed a defence

[sar2004]

Re: Restons - possible application to lift Stay. Advice needed

The licensing issue is really rather complex or so it seems and not one that is easily argued by an ordinary person - maybe at some point we will get case law as opposed to persuasive law on this but until then.....

You would probably need a lawyer to argue that and for the amount of your claim it is juts not realistic

The claim has already been brought so I think it would be entirely uneconomic , if even possible, for them to alter the name of the claimant. It is not as if they can discontinue and pass the debt to someone else because you have filed a defence

Well the claim was issued in 2017 and their licence expires in 2015 - hence me thinking that they were unable to enter into debt recovery action with me because they need a licence to do that don't they, or am I oversimplifying matters?

[sar2004]

Re: Restons - possible application to lift Stay. Advice needed

Just checked documents and the notice of assignment was sent by Cabot (Europe).
The claimant in this matters if Cabot Financial UK Ltd?

[warwick65]

Re: Restons - possible application to lift Stay. Advice needed

That is interesting

The problem you have is that you need them to sign a statement of truth prior to telling them

Remember in the small claims track you do not have to disclose all the documents you hold although it might be seen as being deceptive I am really not sure

On balance I think I would leave it to them to prove the assignment- if it is in the defence you can ask them, in your witness statement to provide the deed of assignment

I suppose what you need to say is that you have never received a notice of assignment from cabot (uk)

I am hoping that for a relatively modest sum and a good defence ( and potentially a good WS) they might discontinue although be prepared for them not to.

A case like this may well be a good case for mediation (if they haven't discontinued) where you can make a small offer over some months . I am not suggesting you follow any path just giving you some options to explore.