Cabot / Mortimer Clark lifting a Stay from Aug 23

[Archella]

Hi,

Wish I'd posted on here previously:

Received a claim? Yes/No: Yes
Issue Date: Augsut 23
Have you Acknowledged the Claim?: Yes
Total Amount Claimed : ( approximately please do NOT use EXACT figure given on the claim form, round up to next £100 or £1000) £10,100
Claimant’s Name: Cabot Financial
Solicitors Firm: Mortimer Clarke
Original Creditor: Zopa
Original Debt (eg. Credit card/Loan/Overdraft) : Loan
Particulars of Claim: ( Please type out in full excluding names/account numbers/exact amounts ): By an agreement between Zopa & the Defendant on or around 24/03/2017 ("the Agreement") Zopa agreed to loan the Defendant monies. The Defendant did not pay the instalments as they fell due. The Agreement was terminated foilowing the service of a default notice. The Agreement was assigned to the named Claimant. Cabot Credit Management Group Limited, acting as servicing agent of the named Claimant through its Appointed Representative (Cabot Financial (Europe) Limited), has arranged for these proceedings to be issued in the name of the claimant. The named claimant therefore claims 1. £10k 2. Costs (no value)

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): last payment made Nov 2019. Default on my credit file Jan 2019.
List any letters you have sent (eg: CCA/ CPR ): CCA Requested, along with default notice

Any Other Information or Background Details:

Claim was defended in Aug 23. I requested CCA, MC responded saying the account on hold as they didn't have the required documentation.

Dec 24 (I'm certain they do this over Christmas intentially) they wrote to me saying they would make an application to lift the stay unless i made an offer of payment.

They've attached a reconstituted agreement, this lists my name, and address as c/o Zopa.
Signatures are literlly typed "signed by the borrower on 18/03/2017 at 15:50 and Signed by Lender on 03/03/2017 at 22:35"

I have looked at the guidence for a reconstituted agreement but i don't confidently understand it. Am i correct to say the agreement is not enforceable with the above?

I've also had a letter telling me the claim is being sent to my local court.

[echat11]

Hi Archella

Welcome to LB

You requested a CCA agreement, did you request the Default Notice and Notice of Assignment?

https://lawzone.legal/when-is-a-cred...0unenforceable.

https://www.handbook.fca.org.uk/hand...ate=2016-03-07

[Archella]

Hi, thank you for responding. Yes, included in the same pack they have sent me a copy of a default notice and letter of assignment but not proof of service of either - nothing obvious stands out from either of them.

[echat11]

'not proof of service of either' What do you mean? You should have requested them before you filed your Defence through CPR 31.14.

The CCA Agreement they have sent, does the reference number at the very bottom of the page tie up with when the account was opened?

You need to check if the Default Notice was served correctly according to their Terms and Conditions.

You need to check if the Notice of Assignment is Compliant, has all the correct details.

[Archella]

Hi,

I mean they have not sent me proof of service of either the default notice, or the letter of assignment.

For the CCA there is no referrence number at the bottom of the page. Only the signatures as mentioned above and then lots of terms and conditions. My name and c/o Zopa as an address not the address i was living at.

I will check for compliance of the notice of assignment

I will check the default notice was served correctly.

I'll report back - thanks

[Archella]

Can't find anything in the terms and conditions relating to how they would serve a Default notice, it mentions using a collections agent and charging for this service but not a default notice.

[echat11]

Hi,

I mean they have not sent me proof of service of either the default notice, or the letter of assignment.

For the CCA there is no referrence number at the bottom of the page. Only the signatures as mentioned above and then lots of terms and conditions. My name and c/o Zopa as an address not the address i was living at.

I will check for compliance of the notice of assignment

I will check the default notice was served correctly.

I'll report back - thanks

a) I mean they have not sent me proof of service of either the default notice, or the letter of assignment.

What they will probably do is produce a screen print out to show it was sent out.

b) For the CCA there is no referrence number at the bottom of the page. Only the signatures as mentioned above and then lots of terms and conditions. My name and c/o Zopa as an address not the address i was living at.

It should have your address.

c) I will check for compliance of the notice of assignment

o.k.

d) I will check the default notice was served correctly.

o.k.

[Archella]

Thank you, so can i argue the CCA is unenforceable given there is no address on it?

As it is a reconstituted agreement, is there a possiblity they can just reconstitute it again and just add in my address?

What should my next steps be?

[echat11]

Thank you, so can i argue the CCA is unenforceable given there is no address on it?

As it is a reconstituted agreement, is there a possiblity they can just reconstitute it again and just add in my address?

What should my next steps be?

Yes it should have the prescribed terms i.e.it should have your name, address, etc. Let them lift the 'stay', that will be part of your Witness Statement / Evidence. Wait for further instructions from the Court.

Did you send the original creditor a Subject Access Request?

https://legalbeagles.info/library/gu...ccess-request/

[Archella]

Ok, bit of an update.

I had my hearing to lift the stay in Feb and application for summary judgement.

The application to lift the stay was granted, however summary judgement was not. The judge said that i made some good points, however he wanted me to resubmit my defence as he said it was clear that it had come from website forumms (which it had, i didn't use your template)

Here is my new defence template below, it is due back to the court before Thursday.

Mortimer clarke state the cca is reconstituted, but Zopa do not. The agreement does not state it is reconstituted.

Is there somewhere i can send my Credit agreement to for it to be reviewed? I don't really understand it. It doesn't contact my address at the time, only my name and c/o the lender.
Signatures are: signed by me and date, and signed by lender and date.

There are a few notice of assignment letters, 1 from Zopa to me, another from p2p lending to me. But nothing between p2p lending and Zopa.

I believe Cabot should have been sending me a yearly statment of account?.

I have had 1 statement in in 2023 covering a period from 2019-2023, but nothing since.




1.The Defendant received the claim [Claim Number] from the [Name of Court – often Northampton or Salford] County Court on [Date you received the claim] (to be added)

2.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3.This claim is for a Loan agreement regulated under the Consumer Credit Act 1974.

4.It is admitted that the Defendant has previously entered into an agreement with Original Creditor for provision of credit.

5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.

6.The Claimant’s Particulars of Claim states the agreement was entered into on or around 24/03/2017

8.The Claimants statement of case states that the account was assigned from Zopa to Cabot financial, but does not specify when this took place. The Defendant does not recall receiving notice of this assignment.

9.It is denied that Zopa served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

10.On the 08/09/2023 The Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Mortimer Clarke. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

11. Around the 10/10/2023 The claimant confirmed that they were placing the account on hold while obtaining the documents requested.

12.No communication was received until 25/11/2024 when I received a letter giving me 28 days to read through the pack provided.

13. On the 09/12/2024 The Defendant asked the Claimant by telephone for extra time to review the documents provided as it was Christmas, and they had taken 14 months to respond to me.

14. On the 11/12/2024 The Claimant processed an application to lift the stay and request summary judgement.

15.The Claimant has failed to comply with [s77 (1) / s 78 (1)] Consumer Credit Act 1974 and by virtue of [s77 (4) / s 78 (6)] Consumer Credit Act 1974 cannot enforce the agreement.

16.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.

17.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

18.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

19.It is denied that the Claimant is entitled to the relief as claimed or at all.

Statement of Truth

Thanks for your help

[echat11]

a) The application to lift the stay was granted, however summary judgement was not. The judge said that i made some good points, however he wanted me to resubmit my defence as he said it was clear that it had come from website forumms (which it had, i didn't use your template)

O.K., although the 'Stay has been lifted', you can put something in the Defence, that the Creditor didn't act to Lift the Stay for XX number of months. If I forget remind me.

b) Here is my new defence template below, it is due back to the court before Thursday.

O.K.

c) Mortimer clarke state the cca is reconstituted, but Zopa do not. The agreement does not state it is reconstituted.

They should have stated in a covering letter, that the agreement is 'Reconstructed', so you are not 'mislead' into thinking that it is a 'True' copy.

d) Is there somewhere i can send my Credit agreement to for it to be reviewed? I don't really understand it. It doesn't contact my address at the time, only my name and c/o the lender.
Signatures are: signed by me and date, and signed by lender and date.

If it doesn't have you address, then it doesn't comply with the CCA 1974. Check it with the Law Zone link in post 2.

e) There are a few notice of assignment letters, 1 from Zopa to me, another from p2p lending to me. But nothing between p2p lending and Zopa.

The only Notice of Assignment letters which are relevant are the ones which have been sent to you.

f) I believe Cabot should have been sending me a yearly statment of account?.

That is correct.

I have had 1 statement in in 2023 covering a period from 2019-2023, but nothing since.

Clearly that is another anomaly.


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You need to fill in the XXXXXX and right reasons in 15 as to why the stay shouldn't have been lifted (it has been lifted, so point 15 might be ignored).

Read it a couple of times, send a copy to the Court and the Creditors solicitors.

1.The Defendant received the claim XXXXXXX from Northampton County Court Centre on XXXXXXXXX.

2.Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3.This claim is for a Loan agreement regulated under the Consumer Credit Act 1974.

4.It is admitted that the Defendant has previously entered into an agreement with Original Creditor for provision of credit.

5.The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards to the claim.

6.The Claimant’s Particulars of Claim states the agreement was entered into on or around 24/03/2017

8.The Claimants statement of case states that the account was assigned from Zopa to Cabot financial, but does not specify when this took place. The Defendant does not recall receiving notice of this assignment.

9.It is denied that Zopa served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant. The Claimant is required to prove that the any Default notice relied upon complied with the requirements of s88(4A) Consumer Credit Act 1974 and that the notice was in the prescribed form as required by The Consumer Credit Enforcement Default and Termination Notice Regulations 1983.

10.On the 08/09/2023 The Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to Mortimer Clarke. I requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment.

11. Around the 10/10/2023 The claimant confirmed that they were placing the account on hold while obtaining the documents requested.

12.No communication was received until 25/11/2024 when I received a letter giving me 28 days to read through the pack provided.

13. On the 09/12/2024 The Defendant asked the Claimant by telephone for extra time to review the documents provided as it was Christmas, and they had taken 14 months to respond to my request.

14. On the 11/12/2024 The Claimant processed an application to lift the stay and request summary judgement.

15.The claimant should have a very good reason for waiting XX months to make an application notice to lift a stay. To lift a stay the judge should apply the test of "appropriateness".

In applying this test Chief Master Marsh considered in a 2016/17 case involving the Football Association Premier league LTD v O'Donovan (2017) EWHC 152 (Ch)

1. Whether the claimant had an adequate explanation for the delay

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

2. Whether the claimant's claim has (at least) a real prospect of success

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

3. The defendant's behaviour and whether any of the delay was caused by the defendant

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

4. The nature and extent of any prejudice the defendant would suffer in the event that the stay is lifted

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

5. Whether any attempts were made by the claimant in the 6 months to revive the claim

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Note this case was for a 6 month delay not XX months

16.The Claimant has failed to comply with s77 (1) Consumer Credit Act 1974 and by virtue of s77 (4) Consumer Credit Act 1974 cannot enforce the agreement.

17.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.

18.The Defendant respectfully requests the court orders the Claimants to provide the necessary documentation in order for The Defendant to fully plead his case else the Claim should stand struck out.

19.In the event that the relevant documents are received from the Claimant, the Defendant will then be in a position to amend his defence, and would ask that the Claimants bear the costs of the amendment.

20.It is denied that the Claimant is entitled to the relief as claimed or at all.

Statement of Truth

Make sure the Statement of Truth is correct.

[Pezza54]

It's a pity you didn't oppose the lifting of the stay with a witness statement. 14 months is far too long for a claim to be stayed
You could along with your defence, enclose a witness statement saying you feel it is very unfair for this claim to be proceeding again after such a long time
State you thought the claim has been abandoned, you have suffered stress and anxiety again, you would suffer financial hardship if the claim was successful etc

[Archella]

Thank you for replying, do i need to specfiy why the credit agreement does not comply, or is this left for a hearing?

I've not received any default notices, but the ones i mention were included in the claimants witness pack.

[Archella]

It's a pity you didn't oppose the lifting of the stay with a witness statement. 14 months is far too long for a claim to be stayed
You could along with your defence, enclose a witness statement saying you feel it is very unfair for this claim to be proceeding again after such a long time
State you thought the claim has been abandoned, you have suffered stress and anxiety again, you would suffer financial hardship if the claim was successful etc

Hi,

I did say all that in the hearing, the judge said the lifting of the stay was automatic, and not part of the hearing as such. The hearing was for summary judgement, he said the claimant was entitled to lift the stay if they wished, which completely threw me to be honest.

[Pezza54]

The judge was wrong, lifting the stay is not automatic
Beaglepup was recently successful in opposing the lifting of a stayed claim. There is legal precedence and judges should now use the "test of appropriateness" when making a decision about lifting the stay

If you lose the case you may want to think about making an appeal (on the grounds the judge said lifting the stay is automatic) If necessary ask for the judge's permission to appeal at the end of the trial