Cabot/Nolans solicitors

[Jkbradders]

I have a simple procedure claim due on 15th may, I have requested a cca request and sar request from Cabot on 1st April but have not received any response, I filed these copy letter requests with the court pending the hearing, however I today received correspondence from Nolan's solicitor saying the following:
for your reference we will continue with this action as our clients are not seeking to enforce an agreement under the Consumer Credit Act 1974 but rather to recover a simple debt following the termination of such an agreement
Can anyone advise?

[Jkbradders]

Can anyone help?

[atticus]

tagging sederunt as this appears to be taking place north of the border.

[echat11]

When was the last payment made to the account?
Has the debt been acknowledged in writing in the last 5 years?

What Nolans are saying is that the claim should be dealt as a 'simple contract debt' and not an agreement regulated under the CCA 1974.

I don't think it changes anything for you regards the case that you are making, they still haven't complied with your CCA request that should
reflected in your Defence.

[Pezza54]

The solicitor's letter states that the agreement was terminated
To prove the agreement was effectively terminated, the creditor needs to show that the default notice was served on the debtor

Please read section 87 of CCA 74, and

"Limitation and section 87 of the Consumer Credit Act 1974" at www.hendersonchambers.co.uk

This article refers to a decision by the appeal court in Doyle v PRA Group (UK) Ltd 2019. The sheriff would be impressed if you can quote that case including the decision without referring to notes

If the claimant's solicitor is unable to produce the default notice, in my opinion you should base your defence on the above

[Jkbradders]

No payment has ever been made to Cabot/Nolans, I think MBNA did issue a default notice but I honestly don't remember, Nolans have loaded an assignment letter from MBNA and Cabot to the case file but I know I never ever received them by mail.... any further help would be appreciated

[Pezza54]

Is the default notice on the case file?

[Jkbradders]

No default notice on the case file, I am assuming they... Nolans will leave it to the last minute if they have it....

[Pezza54]

If they leave it to the last minute they run the risk of the sheriff refusing to accept it at the hearing
If they haven't got it, in my opinion your defence should on the lines that the claimant has failed to prove the agreement was legitimately terminated etc (see post 5)

[Jkbradders]

Will they still have to comply with my cca and sar requests as I still have not received these, these were sent to Cabot on 1st April, my thinking being is that without details of the agreement how can I defend legal termination or notice of termination.....

[echat11]

Will they still have to comply with my cca and sar requests as I still have not received these, these were sent to Cabot on 1st April, my thinking being is that without details of the agreement how can I defend legal termination or notice of termination.....

Read carefully what Pezza has posted in his posts.

Your Defence includes what Pezza has posted and that the Claimant hasn't complied with your CCA request under the CCA 1974.

In your Defence you've stated 'The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement'.

The SAR request has no 'bearing' on the case, only that if they don't comply, then you can lodge a complaint with the ICO.

S 78 providing it's a Credit Card.

You need to prepare what you will say.

[Pezza54]

No payment has ever been made to Cabot/Nolans, I think MBNA did issue a default notice but I honestly don't remember, Nolans have loaded an assignment letter from MBNA and Cabot to the case file but I know I never ever received them by mail.... any further help would be appreciated

You would do better to say at the hearing " I don't recall MBNA sending me a default notice" rather than "I think MBNA did issue a default notice but I honestly don't remember"

[Jkbradders]

Update... Had a case management hearing on 8th may, judge paused case for 6 months as Cabot had not lodged any documents other than a copy of assignment notice, is 6 months pause normal?

[Pezza54]

Please read cpr 3.1 (2) (g)
Except where these rules provide otherwise, the court may -
stay the whole or part of any proceedings generally or until a specified date or event

6 months seems excessive. You should check with the court if "months" is correct or it was meant to state "weeks"
Did the order state that the claim would be struck out if the claimant failed to file the documents by the deadline?
Will the claimant have to make an application to lift the stay?

[Pezza54]

When you receive official correspondence from the court about the stay or adjournment can you please post the wording on the order/direction