Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

[carlos1867]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Also, it seems there may be things ongoing in relation to Cabot Financial (UK) (if I'm understanding things correctly from what I've picked up). Is it worth including their potential license 'issue' in my defence?

[carlos1867]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Quick update - defence submitted Sunday night, confiremed as being received on Monday.

So now the other side has 28 days to respond to the defence? I'm assuming bank holidays don't count so that will take us to around 18th January?

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Around then yes, if you hear nothing up to about a week after that give the court a call and check on the status of the claim as it may well be put on hold ( stayed).

[carlos1867]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Superb, thanks!

[Caretaker237]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Hi Carlos,

The comments provided by Diana M regarding the issue of S87(1) DN and the Cause of Action are important.

District Judges are going off the date on the S87(1) DN as the Cause of Action. They aren't considering the last missed payment to be the date of accrual for the Cause of Action. This is vital to consider when using the Statute Barred defence.

If the S87(1) DN was issued within six years of the date on which legal proceeding began, then the Statue Barred defence is almost bound to fail, even if the last missed payment was outside of the six year time limit. What is important is whether or not a copy of the S87(1) DN is contained in the claimants evidence bundle. You wont have that yet, but they only need to enclose a reconstituted copy, which will almost certainly guarantee its presence in the evidence bundle once they proceed to that stage.

I am speaking from recent experience. On December 2017 in County Court I lost in a claim brought by Cabot's via Restons Solicitors. This was originally a Capital One debt sold to Cabot.

My defence was a Statute Barred defence, and I had proof of the last missed payment which was four months outside of the six year time limit. The S87(1) DN was issued within six years of the date on which legal proceedings began, and the Judge ruled in favour of the claimant.

They sent a Barrister from Temple Row Chambers in Birmingham. It was far from one sided but the Courts seem to be going with the date on the S87(1) DN and not the last missed payment date.

The claim had been stayed for almost two years. The stay was lifted without question.

There is a lot of debate regarding the accrual of the Cause of Action date for a Statute Barred defence, but the S87(1) DN is what is being accepted by the District Judges. Try finding anyone online who has used the defence successfully in Court where the S87(1) DN was issued within six years from proceedings and you will draw a blank. There is a reason for that.

There are a lot of misleading posts titled "WON" regarding Statute Barred claims, when in fact all were discontinued by the claimants. That's not the same as winning an argument in court.

In most of the discontinued claims the S87(1) DN was issued and dated outside of the six year time limit from when the legal proceedings began, and therefore the claim in those cases would not have succeeded in court where a Statute Barred defence was raised. That's the big difference.

Things to consider and I hope this helps.

Regards and good luck.

[Amethyst]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

[MENTION=110010]Caretaker237[/MENTION] This may be of interest to you if you haven't read it already - http://legalbeagles.info/forums/show...-on-limitation - which agrees with what you have said regards Judge's current viewpoint on the DN being required for cause of action. Hopefully it will go on to be appealed further.

We do now always try and mark cases as discontinued rather than won if they have been discontinued rather than won in court.

Since BMW v Hart the statute barring argument from last payment has been on very thin ice (wrongly IMO) so we've generally tried to ensure it is 6 years from default or termination rather than just last payment if that is the only ground of defence being used.

[warwick65]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

I am not sure if we know exactly what the defence was but your case is absolute proof you should go into court with more than just a SB argument.
If a comprehensive defence has been entered the claimant has a whole host of things to prove. Not just was a compliant DN issued but cca request assignment etc.

In my cap 1 case this week we did not plead SB but there was no DN compliant or otherwise and no attempt at a recon.

I am sorry you lost, I'm guessing it was a decent amount if they sent a barrister.

[warwick65]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Caretaker, I was not disagreeing with your comments by the way. Did you ask if you could appeal and is it worthwhile

[carlos1867]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Appreciate the comments from all involved.
When I was reading up on the matter prior to posting on here, there seems to be a fair amount of confusion around when the 6 year period begins.
Think just a case of waiting and seeing what documents arrive over the next few weeks from Cabot. And also what appears from the SAR to Cap One.

[warwick65]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Appreciate the comments from all involved.
When I was reading up on the matter prior to posting on here, there seems to be a fair amount of confusion around when the 6 year period begins.
Think just a case of waiting and seeing what documents arrive over the next few weeks from Cabot. And also what appears from the SAR to Cap One.

Without knowing an outline of your defence its difficult to comment - was it just SB ?

[carlos1867]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Without knowing an outline of your defence its difficult to comment - was it just SB ?

Apologies, didn't get chance to post up before submitting. Things were a bit manic at the weekend.
Defence was based on Example from the top of the page. SB was mentioned, alongside lack of documentation and this not being provided upon formal request.

[warwick65]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Apologies, didn't get chance to post up before submitting. Things were a bit manic at the weekend.
Defence was based on Example from the top of the page. SB was mentioned, alongside lack of documentation and this not being provided upon formal request.

That's good as it gives you options such as non compliance with S78 or no DN or even no Notice of assignment

[carlos1867]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

That's good as it gives you options such as non compliance with S78 or no DN or even no Notice of assignment

I can post a copy of the defence up if needed/it will help in due course. But yeah, I'm not solely hanging my hat on the SB argument.

[carlos1867]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Quick update prior to Xmas. Letter received yesterday from Mortimer Clarke, enclosing a copy of a letter dated 19/10/2015 saying the debt had been assigned from Capital One to Cabot Credit Management Group (not Cabot Financial UK Ltd, does this make a difference?)
They state the original agreement was entered in to on 1/8/2011 and terminated on 18/01/2012. No copy of agreement has been sent and they say will be sent in due course.

They state the debt isn't SB, not because of the date of default but because their client says a payment was made on 14/3/2012.
I don't recall making a payment then, and I guess it begs the question who it was paid to. They've already said the agreement with Cap One was terminated nearly 2 months before that date, but not assigned to Cabot until 2015.
Is it worth responding by letter to MC asking for details/proof of this payment being made and who it was from and to?
The assignment letter is confusing. Cabots letter says that Cabot Credit Management Group have bought the account and Cabot Financial (Europe) will be managing and responsible for it. On the Important Info attached overleaf, this says that Cabot Financial (UK) are the legal owner?

[carlos1867]

Re: Court Claim - Cabot Financial (UK) Ltd / Capital One - 15-11-2017

Hope everyone had a good Christmas.

So, with reference to the above, am thinking of sending a letter to MC today, asking for info on the alleged payment being made (e.g., amount, date, how paid). Maybe a daft question, but if I send this, it won't be detrimental in anyway will it, such as classing as written acknowledgement of the debt?

As an aside, I think this shows the importance of a SAR to original creditor, which one poster questioned the use of in an earlier post.