Cabot /Mortimer Clark fraudulent claim?

[Victorian]

Hi all,

I need some advice. Cabot and Mortimer Clark started a court case for £2.7k against me awhile back. I submitted a defence saying I need signed proof of alleged loan agreement. They sent me info, but on their court case they claimed I made a payment of £50 which is untrue, and now I received a letter from them saying That I never made a £50 payment and they will reduce the overall debt by £50.

As this was submitted on the court claim this is a fraudulent claim on their behalf. Do I have legal grounds to request to either the court or Mortimer Clark to cease this court claim as the £50 claim was fraudulent, or what steps should I now take?

The claim was put on hold whilst they were providing the documents I requested, and now they say Cabot may instruct them to continue with the County Court Claim and I should contact them with a settlement proposal. The alleged debt is 4 years old so not statute barred.

Any help pn how to proceed will be greatly appreciated as I have about one week before I need to reply. Thanks.

[R0b]

Hello

It is very dangerous to submit a defence based solely on providing proof of the agreement. If you want to dismiss the claim you will need to make an application to strike out the claim or seek summary judgment but I think based on what you describe, I do not think you would get the claim thrown out entirely. They have accepted a payment of £50 was not made and have agreed a deduction of that amount so if you're going to argue the claim was fraudulent then you need to prove that the remaining amount was not payable by you and they knew you were not the debtor.

Based on what you have said, it doesn't sound too good if you go all the way to a hearing so you may want to consider a settlement to avoid a CCJ unless you can afford to pay the amount claimed within 30 days of the judgment (assuming you lose).

A word of caution for future reference, a lot of debt purchasers do not have the relevant records at the time to be able to pursue a claim but they do so anyway on minimal information. So when you challenge the claim with a defence saying that they haven't provided documents or information, they deliberately put the matter on hold so the claim sits in limbo until they can locate the documents from the original creditor - if the court does not hear back from the claimant wishing to proceed then the claim is 'stayed' until the claimant asks the court to continue. This gives them all the time in the world to source the information they need and when they do, they'll supply it and reinstate the claim knowing they have overcome your defence and unless an error has been made, their chances of success are looking so much better whereas yours are much worse.

Personally I think it's a flaw in the system and certainly it's an abuse of process to do this but it requires the debtors to take action by making an application to strike out the claim, though unfortunately debtors don't know this or they don't want to do anything hoping it will go away - I've seen some claims being put on hold for several years before the claimant comes back and wants to proceed. Maybe something to consider if you find yourself in a similar situation.

[Victorian]

Thanks for taking the time to reply, I really do appreciate it. What would be a reasonable settlement amount in your opinion and how does this negotiation process work?

If I found myself in this situation in the future what would be a reasonable timeframe to ask the court to strike out the claim if I used this defence again?

Finally what other defences could have been used for this situation?

Many thanks.

[R0b]

You've not said what the debt relates to but since it is Cabot I will take a punt and assume it is loan-related debt of some kind. If that is the case, then in no particular order, there may have been several options in terms of the defence:

1. Was the debt properly assigned and transferred to Cabot? Things get messy when the debt has been passed around several times and the onus is on Cabot to show there was proper notice given to you each time.

2. Debt that is subject to the consumer credit act 1974 means you can send a notice accompanying a £1 cheque or postal order requiring them the provide you with the signed copy of the contract or a reproduced version, including all terms and conditions that may have been updated since you first signed the contract. If they don't respond within 12 working days, they can't enforce the agreement. 'Enforcement' in this sense means they can still take you to court, but if they are successful and still haven't provided the relevant documentation, they won't be able to enforce the judgment such as sending bailiffs round to your house.

3. Has a default notice been provided, if not, the onus again on Cabot to prove it was sent (but not necessarily received). Problems again arise where multiple debt purchasers are involved.

There may be other options but is very fact specific to the individual though the above are common defences raised. As to settlement options, You can try with half and work your way up here but they're in the driving seat here and I can't see why they would accept a lower sum of money if they can pursue the full amount. If you are looking to pay less than the sum claimed, the only way I can see you leveraging this is by offering a lump sum of sorts and tell them you have this available right now as full and final settlement but if they continue their claim that money may not be available anymore and their chances of receiving the sums claimed in the short term are unlikely. No guarantees but lump sum offers stand a better chance.