Advice needed please - Mortimer Clarke / Cabot / Tesco

[pt2537]

yes it has

[Amethyst]

Published anywhere?

This is literally all we have on the matter. I know further cases have been mentioned but no evidence of any ruling has been produced as far as I have seen. And from what I know on this case (which isn't a lot) is Phelan went on to win overall on appeal but on matters not involving consideration of the authorisation issue? ( overdraft and cca )

MFS Portfolio Ltd v Phelan

: four day appeal before HHJ Walden Smith upholding the applicability of the exemption in paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001. This exemption from the need for FCA authorisation

is commonly relied upon by debt purchasers who enter servicing arrangements with authorised servicers, who are often within the same corporate group. The borrowers unsuccessfully argued that debt purchasers are not entitled to rely on this exemption when issuing proceedings: issuing is an activity that cannot be delegated to the servicer, but has to be undertaken by the purchaser, who has title to the debt;

[Sardine]

At the allocation hearing I said they had not provided the default notice or signed agreement so they said they had until 24th May to provide everything. They sent paperwork that arrived on 24th May but just the application form again and no default notice. They also included the deed of assignment with nothing to say it is my account and the letter from 2012, both of which weren't provided with the SAR request.
I don't have any proof that I didn't have an account between 2002 - 2006
I can't see what it says on the application either, I've taken a really close up picture for you
No I didn't do a balance transfer the second time I applied, I needed the money for double glazing
The historic terms are the ones with 3/4 columns the other ones say current? (That's what's written on the front of them anyway.
I did get SAR paperwork from Tesco, I think that mentioned PPI, it did, I've emailed them to you

[Sardine]

At the allocation hearing I said they had not provided the default notice or signed agreement so they said they had until 24th May to provide everything. They sent paperwork that arrived on 24th May but just the application form again and no default notice. They also included the deed of assignment with nothing to say it is my account and the letter from 2012, both of which weren't provided with the SAR request.
I don't have any proof that I didn't have an account between 2002 - 2006
I can't see what it says on the application either, I've taken a really close up picture for you
No I didn't do a balance transfer the second time I applied, I needed the money for double glazing
The historic terms are the ones with 3/4 columns the other ones say current? (That's what's written on the front of them anyway.
I did get SAR paperwork from Tesco, I think that mentioned PPI, it did, I've emailed them to you

I can't upload the stamp so I've sent it to you by email

[Sardine]

have we checked to see if the Claimant is authorised to undertake activities like debt collecting , if they arent then there can be an argument made that they cannot recover the debt through court this is well and truly arguable

How can I check that? It's Mortimer Clarke solicitors who are dealing with the Court stuff

[Amethyst]

The claimant is Cabot Financial (UK) isn't it? They don't hold authorisation in their own right, but rely on an exemption under the Financial Services Markets Act to use their 'parent' company's authorisation (Cabot Credit Management I believe )…. without authorisation it is a criminal offence to undertake debt collection activities on regulated consumer credit agreements. That's a very simplistic explanation though it's quite an involved arguments and there are a number of threads on the forum regarding the issue. It's still a bit contentious only as we haven't seen an actual judgment or ruling agreeing that they may not use their parent company's authorisation - there was a judgment saying the opposite, but it was appealed, and then not decided on one way or the other - apparently there have been a couple other cases which have come down the other way but we haven't seen any evidence of those. The only cases I have heard of have been pushed into fast track ( and thus increasing the costs risk ). So yes it is arguable, but its a gamble IMO - Paul may well know more of what the current situation is with it. pt2537

[Sardine]

Yes it is Cabot Financial UK

[Sardine]

Hi all, a Court date was set for 31st Jan 2020, I received a different/slimmer bundle of papers from Mortimer Clarke in October 19 which I didn't even respond to.* I then received a letter on 15th Jan from Mortimer Clarke telling me how much I'll owe them when I lose followed by a letter from the Court on 16th Jan saying they haven't paid the fee !!!!!, I've attached them.* What are they playing at? I'm fuming that the Court just allows them to keep lodging the claim as many times as they like, this has gone on for nearly 2 years now, and apparently it can go on for ever

[pt2537]

Hi all, a Court date was set for 31st Jan 2020, I received a different/slimmer bundle of papers from Mortimer Clarke in October 19 which I didn't even respond to. I then received a letter on 15th Jan from Mortimer Clarke telling me how much I'll owe them when I lose followed by a letter from the Court on 16th Jan saying they haven't paid the fee !!!!!, I've attached them. What are they playing at? I'm fuming that the Court just allows them to keep lodging the claim as many times as they like, this has gone on for nearly 2 years now, and apparently it can go on for ever

i fear you could have missed a trick here

If the Court order contained a sanction for not complying and paying the fee, then the sanction takes effect the minute they breach, and if they breach then they must make an application for relief from sanctions, until they do they are dead in the water.

Now you dont make any mention to this having been done? has it? perhaps we need to know as sanctions take effect right way no pay no claim , thats normally how it works, what does the court order say?

[Amethyst]

Next Thursday give the court a call to see if Mortimer Clarke have applied to set aside the strike out for non payment of the fee, and if they have paid the fee.

Had you already sent your witness statement and documents or were they only ordered for 14 days before the hearing ? ( reading back those were sent months ago - did new ones get ordered with the new hearing dat ? - *anything new in the 'small bundle' they sent in October ?)

The hearing has been vacated so if MC do apply to reinstate the claim it will be a new hearing date.

[Amethyst]

pt2537 - the order

[Sardine]

Next Thursday give the court a call to see if Mortimer Clarke have applied to set aside the strike out for non payment of the fee, and if they have paid the fee.

Had you already sent your witness statement and documents or were they only ordered for 14 days before the hearing ? ( reading back those were sent months ago - did new ones get ordered with the new hearing dat ? - anything new in the 'small bundle' they sent in October ?)

The hearing has been vacated so if MC do apply to reinstate the claim it will be a new hearing date.

Hi Amethyst, I sent my statement in April 18 for the May date, I didn't see the point in sending another one following their bundle in October as I wasn't told to by anyone.* When I got the letter dated 15th I tried to call the Court on 16th to question the date as I hadn't heard anything from the Court since May so wanted to check if the 31st was correct.* I couldn't get through so was going to try again the next day but came home to the Court letter. The small bundle has nothing new in it.* I'm completely confused, will I get another hearing date and be able to submit further paperwork?**

[Amethyst]

At the moment there is no claim as they have been struck out - however it seems likely they will apply to set that order aside and proceed with the claim ( probably claiming some admin error) - so all you can do is wait and see. I'd still call court late next week to see if anything's happened - also probably ask how come you didn't receive notice of the January hearing in the first place.

[Amethyst]

You didn't attend a hearing in April last year did you ?
by telephone or otherwise ?*

[Amethyst]

Or was it a hearing of their application to lift the stay where they were ordered to provide documents by 24th May ? ( just reading back I can't see mention of your attending a hearing )