Advice needed please - Mortimer Clarke / Cabot / Tesco

[Sardine]

I'm doing that tomorrow. I originally sent one to Cabot in May 17 but they put the claim on hold because they couldn't provide it

Thanks for all your help

[Amethyst]

This is the POC.



It does state the agreement was taken out in 2002 - which matches the hand written agreement they have sent.

HOWEVER you believe that that application made in 2002 was declined due to the balance transfer issue ( and poss other reasons but not important it was declined ).

You then later applied to Tesco again,and was accepted, but that application was made online at some point after 2004 and it's that account that was used and had a debt on. I don't know when it defaulted, doesn't seem to say in any of the docs/letters -- do you have any idea and does anything show on your credit file at all ?

( there isn't an online agreement in those documents btw only terms that attach to the handwritten agreement (in the booklet thingy originally) and then terms at default )

[Amethyst]

I'm doing that tomorrow. I originally sent one to Cabot in May 17 but they put the claim on hold because they couldn't provide it

Thanks for all your help

No problem. Sorry if I'm repeating myself a little I'm just making sure I've got the right situation so we know which was to go with regards this application to lift the stay.

There's no default notice or actual list of transactions, or a notice of assignment for that matter to be seen, but tbh it's not mentioned in the defence and I think you had only sent a CCA request... so we'll have to engineer it in and get an order for a defence amendment if the stay is lifted. They've taken their time to come up with the wrong stuff.

Link to SAR letter for Tesco ( again sorry lol ) Subject Access Request Letter

and just for ref.

My defence was: I intend to defend this claim and state the following:

I do not believe that I owe this money. Therefore, I wrote to Cabot and Mortimer Clarke Solicitors on 27 April 2017 upon receipt of the CCJ claim D7xxxxxxxxxxxxxx. I requested a copy of the credit agreement and full account details enclosing £1 payment from Cabot and informed Mortimer Clarke that I had written to Cabot.

I received a response from Mortimer Clarke Solicitors dated 03.05.17 stating that they do not hold the documentation and that they have asked their client to provide it and they would come back to me as soon as they can and that they have placed the matter on hold and no further action will be taken.

I have a copy of all correspondence.

As I haven't had received any documentation from Cabot or Mortimer Clarke Solicitors and they have now informed me that they have placed the matter on hold and will take no further action for the meantime then I have been unable to file a proper defence to this claim.

Docs they say they've provided ( they haven't actually provided the transaction list from Tesco or the notice of assignment from Tesco though )




Ok.

I'll be back in't morning xxx

[Sardine]

This is the POC.



It does state the agreement was taken out in 2002 - which matches the hand written agreement they have sent.

HOWEVER you believe that that application made in 2002 was declined due to the balance transfer issue ( and poss other reasons but not important it was declined ).

You then later applied to Tesco again,and was accepted, but that application was made online at some point after 2004 and it's that account that was used and had a debt on. I don't know when it defaulted, doesn't seem to say in any of the docs/letters -- do you have any idea and does anything show on your credit file at all ?

( there isn't an online agreement in those documents btw only terms that attach to the handwritten agreement (in the booklet thingy originally) and then terms at default )

Yes that's right, it was declined on the grounds of me being a second signatory so they said it wasn't my balance to transfer. I only wanted it for the transfer reason so wasn't bothered they had turned it down

[Sardine]

No problem. Sorry if I'm repeating myself a little I'm just making sure I've got the right situation so we know which was to go with regards this application to lift the stay.

There's no default notice or actual list of transactions, or a notice of assignment for that matter to be seen, but tbh it's not mentioned in the defence and I think you had only sent a CCA request... so we'll have to engineer it in and get an order for a defence amendment if the stay is lifted. They've taken their time to come up with the wrong stuff.

Link to SAR letter for Tesco ( again sorry lol ) Subject Access Request Letter

and just for ref.

Docs they say they've provided ( they haven't actually provided the transaction list from Tesco or the notice of assignment from Tesco though )




Ok.

I'll be back in't morning xxx

Is the defence what I need to put on the Court paperwork where it says if it should go down the small claim track? What about the mediation box, do I need to say yes or no? Sorry, lots of questions

[Amethyst]

What was this ' Extract of Statement of Account ' that they mention in their letter ? Was there actually anything ? ( I can't see a copy in the docs so far and think you said they hadn't sent it so just checking )

[Amethyst]

I don't think the appplication has been heard despite the Direction Questionnaires, as the order does not state the stay has been lifted, only that it is a defended claim....but either way I think you need to put your case forward for when the county court is allocated ( your local court) and they look at the papers to issue directions in the case.....


So.... N180 form ( Directions Questionnaire ) info - pretty straight forward, and yes tick yes to mediation. Some guidance
https://legalbeagles.info/library/gu...questionnaire/

Then with the DQ you want to include a response to the application …. needs work so this is just a starting point this morning xxx

How certain are you on dates ? ( ie that it was 2002 that was declined and post 2004 that was accepted and then used for spends?- I think I'm concerned because you first mentioned 1998 as the date for the first application )


DRAFTING WORK IN PROGRESS DO NOT USE INPUT WELCOME ETC....




In the xxxxxxxxxxxxxx County Court

Claim No. xxxxxxxxxxxx

Between:

Cabot Financial

Claimant

and

Sardine

Defendant

----------------------------------------------------------------------------------------------------

WITNESS STATEMENT OF SARDINE

-----------------------------------------------------------------------------------------------------

: I am SARDINE of XXXX ADDRESS XXXXX and make this Witness Statement to contest the application of the Claimant to lift the stay and proceed in the case.

2: The Claimant states in their application that they "allowed the proceedings to be automatically stayed to enable the parties to narrow the issues". I dispute that this was the case at all. The Claimant was, at the time the case was stayed, in default of a formal Consumer Credit Act s.78 request and had been unable to provide any documents requested.

3: My Defence entered in the case stated the position clearly
"I haven't had received any documentation from Cabot or Mortimer Clarke Solicitors and they have now informed me that they have placed the matter on hold and will take no further action for the meantime then I have been unable to file a proper defence to this claim."

4: My Defence was that "I do not believe I owe this money". I am still of that opinion.

5: The Claimants Particulars of Claim state "By an agreement between Tesco Personal Finance Plc & the Defendant dated on/around 23/02/2002 ("The Agreement") Tesco Personal Finance Plc agreed to issue the Defendant with a credit card"

6: This is denied.

5: I wrote to the Claimant in April 2017 requesting further information and copies of documents relating to their claim ( EXHIBIT A)) however the Claimant only responded in xxxxxxx 2017 stating they did not hold the documents ( EXHIBIT B)

6:The Claimant failed to respond to the court following service of my Defence in the case and it was 'stayed' on /around xxxxxx 2017. It is now December 2018, over a year later, and the Claimant continues to fail to evidence their claim.

7: The Claimant remains in default of my formal Consumer Credit Act request for a copy of the original agreement under s.78. Therefore under section 78(6) they are unable to enforce the agreement.

8. In xxxxxx 2018 the Claimant finally provided an agreement (EXHIBIT C), The document produced is an Application that I made to Tesco Personal Finance for a credit card on xxx/xxx/ 2002.

9: The Application was declined by Tesco Personal Finance Plc. The agreement was not executed and no card or credit facility was provided.

10: The Application requested a balance transfer from another credit card. This transfer did not take place. Tesco Personal Finance Plc informed me at the time that the application had been declined because the card from which I wanted to make a balance transfer from was not in my name, and I was only a second signatory on the account. This was absolutely fine and I had no concerns about the application being declined at the time.

11: Therefore it is my contention that the agreement produced by the Claimant is entirely irrelevant to their claim and their production of such in response to my request for information constitutes a default of their obligations under the Consumer Credit Act 1974 and they remain unable to enforce the agreement.

12: I have requested copies of transactions made on the alleged account however the Claimant has failed to provide this information.

13: I do have concerns that potentially something went wrong in Tesco's system and the balance transfer request may have been applied to the card account before the application was denied, and the sum may have built up with interest over the years. However this is simply guesswork on my part as I have been provided with no details of any transactions on the account. It is essential that the Claimant produces the relevant information.

14: It is therefore my contention that the account/agreement in this case is statute barred pursuant to s.5 of the Limitations Act 1980.

14: No default notice has been produced by the Claimant and it is denied that I ever received a Default Notice. Had I received a Default Notice for the agreement on which the Claimant relies, I would have raised serious concerns with Tesco Personal Finance Plc, due to my belief that the application had been declined and I had not made any transactions on the account.

15: With regards to letters …..


16: I have now, since receiving the application document copy from the Claimant, sent a request for copies of my personal data held by Tesco Personal Finance Plc. I await a response.

[Sardine]

What was this ' Extract of Statement of Account ' that they mention in their letter ? Was there actually anything ? ( I can't see a copy in the docs so far and think you said they hadn't sent it so just checking )

Hi Amethyst, all they sent are the documents I sent to you - I have posted the SAR to Tesco Finance today by recorded delivery

[Sardine]

I don't think the appplication has been heard despite the Direction Questionnaires, as the order does not state the stay has been lifted, only that it is a defended claim....but either way I think you need to put your case forward for when the county court is allocated ( your local court) and they look at the papers to issue directions in the case.....


So.... N180 form ( Directions Questionnaire ) info - pretty straight forward, and yes tick yes to mediation. Some guidance
https://legalbeagles.info/library/gu...questionnaire/

Then with the DQ you want to include a response to the application …. needs work so this is just a starting point this morning xxx

How certain are you on dates ? ( ie that it was 2002 that was declined and post 2004 that was accepted and then used for spends?- I think I'm concerned because you first mentioned 1998 as the date for the first application )


DRAFTING WORK IN PROGRESS DO NOT USE INPUT WELCOME ETC....




In the xxxxxxxxxxxxxx County Court

Claim No. xxxxxxxxxxxx

Between:

Cabot Financial

Claimant

and

Sardine

Defendant

----------------------------------------------------------------------------------------------------

WITNESS STATEMENT OF SARDINE

-----------------------------------------------------------------------------------------------------

: I am SARDINE of XXXX ADDRESS XXXXX and make this Witness Statement to contest the application of the Claimant to lift the stay and proceed in the case.

2: The Claimant states in their application that they "allowed the proceedings to be automatically stayed to enable the parties to narrow the issues". I dispute that this was the case at all. The Claimant was, at the time the case was stayed, in default of a formal Consumer Credit Act s.78 request and had been unable to provide any documents requested.

3: My Defence entered in the case stated the position clearly
"I haven't had received any documentation from Cabot or Mortimer Clarke Solicitors and they have now informed me that they have placed the matter on hold and will take no further action for the meantime then I have been unable to file a proper defence to this claim."

4: My Defence was that "I do not believe I owe this money". I am still of that opinion.

5: The Claimants Particulars of Claim state "By an agreement between Tesco Personal Finance Plc & the Defendant dated on/around 23/02/2002 ("The Agreement") Tesco Personal Finance Plc agreed to issue the Defendant with a credit card"

6: This is denied.

5: I wrote to the Claimant in April 2017 requesting further information and copies of documents relating to their claim ( EXHIBIT A)) however the Claimant only responded in xxxxxxx 2017 stating they did not hold the documents ( EXHIBIT B)

6:The Claimant failed to respond to the court following service of my Defence in the case and it was 'stayed' on /around xxxxxx 2017. It is now December 2018, over a year later, and the Claimant continues to fail to evidence their claim.

7: The Claimant remains in default of my formal Consumer Credit Act request for a copy of the original agreement under s.78. Therefore under section 78(6) they are unable to enforce the agreement.

8. In xxxxxx 2018 the Claimant finally provided an agreement (EXHIBIT C), The document produced is an Application that I made to Tesco Personal Finance for a credit card on xxx/xxx/ 2002.

9: The Application was declined by Tesco Personal Finance Plc. The agreement was not executed and no card or credit facility was provided.

10: The Application requested a balance transfer from another credit card. This transfer did not take place. Tesco Personal Finance Plc informed me at the time that the application had been declined because the card from which I wanted to make a balance transfer from was not in my name, and I was only a second signatory on the account. This was absolutely fine and I had no concerns about the application being declined at the time.

11: Therefore it is my contention that the agreement produced by the Claimant is entirely irrelevant to their claim and their production of such in response to my request for information constitutes a default of their obligations under the Consumer Credit Act 1974 and they remain unable to enforce the agreement.

12: I have requested copies of transactions made on the alleged account however the Claimant has failed to provide this information.

13: I do have concerns that potentially something went wrong in Tesco's system and the balance transfer request may have been applied to the card account before the application was denied, and the sum may have built up with interest over the years. However this is simply guesswork on my part as I have been provided with no details of any transactions on the account. It is essential that the Claimant produces the relevant information.

14: It is therefore my contention that the account/agreement in this case is statute barred pursuant to s.5 of the Limitations Act 1980.

14: No default notice has been produced by the Claimant and it is denied that I ever received a Default Notice. Had I received a Default Notice for the agreement on which the Claimant relies, I would have raised serious concerns with Tesco Personal Finance Plc, due to my belief that the application had been declined and I had not made any transactions on the account.

15: With regards to letters …..


16: I have now, since receiving the application document copy from the Claimant, sent a request for copies of my personal data held by Tesco Personal Finance Plc. I await a response.

Hi Amethyst, I thought the 1998 was the date they were claiming it was applied for, I must have muddled it up with the date I moved into my address

I will await the finished version and get it in the post ASAP

[Sardine]

Hi Amethyst,

I've read through the letter and can't think of anything else to add, I tried to go back on my bank statements to 2002 but they only go back 7 years so I can't use old bank statements as evidence unfortunately

I've added all dates and info to the document and completed the Questionnaire. I'll print all the paperwork today that I sent to you and post that along with the Questionnaire

What does point 15 refer to? Are they the letters I sent to you?

I feel like I'm actually getting somewhere now, no wonder people just pay or take a handful of tablets, it's quite scary the way the Court just fires off paperwork that's difficult to understand and gives creditors unlimited time to hash together so called evidence!

[Amethyst]

15.... I think we should add all the letters you have sent them and they've replied between the claim and now, so the judge can see just how much 'narrowing the issues' has actually taken place ... can you do a list ? Or have you added those already ?

[Amethyst]

Does your bank statement show ANY payments to Tesco finance ? Nothing on your credit file ?
If not we should add that too - they haven't pleaded a default date so it may be over six years even if they get the right account.

[Sardine]

15.... I think we should add all the letters you have sent them and they've replied between the claim and now, so the judge can see just how much 'narrowing the issues' has actually taken place ... can you do a list ? Or have you added those already ?

Hi Amethyst, yes I can send a copy of all the letters, I can't see any payments to Tesco but I used cheques a lot up to 2014 so I can't be sure? There's nothing on my Experian report at all for Tesco ...

[Amethyst]

Might be SB anyway then. I can't even remember the last time I wrote a cheque.

So include something before ...

14: It is therefore my contention that the account/agreement in this case is statute barred pursuant to s.5 of the Limitations Act 1980.

To say along the lines of.... I have checked my credit file which shows the last six years credit records, and checked on my personal current account ( back to 2014) and I cannot see anything at all relating to the alleged account or any account with Tesco Personal Finance Plc.

And where you have put the letters list something along these lines;


17: The Claimant brought their claim in XXX 2017 and I have been requesting evidence of the account ever since. The only documents I have received appear to relate to an application that was declined and no evidence of any sums owing has been provided.

18.Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed. It is my contention that they have failed to do so despite having been allowed over a year, and the claim may be considered an abuse of process.

19.Should the court be minded to allow the Claimant's application to lift the stay, I respectfully request the court orders the Claimants to provide the necessary documentation in order that I may fully plead my case else the Claim should stand struck out. In the event that the relevant documents are received from the Claimant, I will then be in a position to amend my defence, and would ask that the Claimants be ordered to bear the costs of the amendment.


Might be a bit rambling there but have a fiddle and put the whole statement together and see how it feels And send a copy to the claimant as well as to the court.

[Sardine]

Might be SB anyway then. I can't even remember the last time I wrote a cheque.

So include something before ...

14: It is therefore my contention that the account/agreement in this case is statute barred pursuant to s.5 of the Limitations Act 1980.

To say along the lines of.... I have checked my credit file which shows the last six years credit records, and checked on my personal current account ( back to 2014) and I cannot see anything at all relating to the alleged account or any account with Tesco Personal Finance Plc.

And where you have put the letters list something along these lines;


17: The Claimant brought their claim in XXX 2017 and I have been requesting evidence of the account ever since. The only documents I have received appear to relate to an application that was declined and no evidence of any sums owing has been provided.

18.Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed. It is my contention that they have failed to do so despite having been allowed over a year, and the claim may be considered an abuse of process.

19.Should the court be minded to allow the Claimant's application to lift the stay, I respectfully request the court orders the Claimants to provide the necessary documentation in order that I may fully plead my case else the Claim should stand struck out. In the event that the relevant documents are received from the Claimant, I will then be in a position to amend my defence, and would ask that the Claimants be ordered to bear the costs of the amendment.


Might be a bit rambling there but have a fiddle and put the whole statement together and see how it feels And send a copy to the claimant as well as to the court.

Thanks Amethyst, you've been a great help, I'll get it done today and send it recorded delivery to both the Court ad the solicitors. I'll keep you updated as to the outcome