Claim discontinued, Cabot now claiming.

[Viano]

Re: Claim discontinued, Cabot now claiming.

By the way, I really do need to get in some sort of defence to Northampton in the next few days. How do I defend this..............please.

V

[Amethyst]

Re: Claim discontinued, Cabot now claiming.

Defence from previous claim that was discontinued

In the xxxxxxxx county court
Claim number

Between

xxxxxxxxxxx- Claimant

and


Viano- Defendant




Defence

1. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

2. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

3. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form as laid out in Practice Direction 16. Paragraph 7.3.

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has not been served attached to the claim form.

4. Consequently, I deny all allegations on the particulars of claim and do not know what case I have to meet

The Credit Agreement

5. On the xx/xx/2007 I wrote to the Claimant requesting a true copy of the executed credit agreement pursuant to section 78(1) of the Consumer Credit Act 1974. The claimant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

6. On the xx/xx/2007 in response to my request I received a copy of an application form from the claimant (Attached to this defence marked ST1) on inspection I found the form supplied was very hard to read and therefore did not comply with regulation 2(1) of Statutory instrument 1983/1557 which states

2 Legibility of notices and copy documents and wording of prescribed Forms
(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the [background medium upon which the information is displayed].

7. Therefore it is averred that the claimant has failed to discharge their obligations under section 78(1) of the Consumer Credit Act 1974 and as a result are not entitled by way of section 78 (6) of the Consumer Credit Act 1974 to enforce this agreement while their non compliance continues

8. Notwithstanding point 7, it is noted that the form claimed to be a valid credit agreement (exhibit ST1) does not contain any prescribed terms as laid out in Statutory instrument 1983/1553 (Consumer Credit (Agreements) Regulations 1983)

9. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
1. Number of repayments;
2. Amount of repayments;
3. Frequency and timing of repayments;
4. Dates of repayments;
5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

10. The terms laid out in point 9 terms do not appear to be contained within the agreement

Document Headed Conditions of Use


11. In addition to the Application form supplied by the claimant in response to my request made on xx/xx/2007 there was a separate sheet entitled Conditions of use. There are certain required terms within this document, however this document does not appear to be linked to the Application form. In addition I consider this does not comply with the Requirements of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) as the Regulation say that all the schedule one information should be contained "within the agreement" not on a separate document headed terms and conditions or in this case Conditions of Use

12. I suggest that this document shows no relation to the application provided and there is no clear link between the application form (Exhibit ST1) and the Conditions of Use (Exhibit ST2) therefore I put the claimant to strict proof that these Conditions of Use actually relate to this application form

13. On the 27/09/2007 I wrote to Barclay card outlining my concerns with regards to the legibility of this application form and informing them that they had failed to comply with the requirements of the Consumer Credit Act 1974.

14. On 08/11/2007 I received a reply from the claimant see attached marked (Exhibit ST3). The claimant failed to address my concerns and insisted that they had complied with the requirements of the Consumer Credit Act 1974

Build up to proceedings

15. The claimant's representative's optima wrote to me on the xx/xx/2007 informing me that they would be instigating proceedings in x days. They did this even though the account was dispute and it had been drawn to the attention of the Claimant that this was the case. Additionally the claimants response to my letter disputing the account and the credit agreement was received after the letter before action, thus giving me little chance to attempt to resolve this dispute before the claimant instigated proceedings

16. I believe this in itself is unreasonable and not in accordance with pre action protocols laid down in the Civil Procedure Rules in that the claimant has failed to take reasonable steps to resolve this dispute before instigating litigation



Enforcement of the Agreement

17. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 9 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

18. With regards to the Authority cited in point 17, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

Failure to enclose documents relied upon in the Particulars of Claim

19. Further to the case, on xx/xx/2007 I requested the disclosure of information pursuant to the Civil Procedure Rules, which is vital to this case from the claimant. The information requested amounted to copies of the Credit Agreement referred to in the particulars of claim and any default or termination notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made by the original creditor. Also any other documents the Claimant seeks to rely on, including any default notices or termination notice, and a copy of the Notice of Assignment required to give the claimant a legitimate right of action.

20. To Date the claimant has ignored my request under the CPR and I have not received any such documentation requested. As a result it has proven difficult to compose this defence without disclosure of the information requested, especially given that I am Litigant in Person


21. The claimant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists

The Default Notice

22. On xx/xx/2007 I received a letter from Mercers debt collection Limited who claimed to be representing Barclaycard. The letter was headed Default Notice served under section 87(1) Consumer Credit act 1974. The letter cannot be a valid default notice as it fails to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) in particular schedule 2(2) points 1-11 which set out the statutory form that a Default Notice must follow for it to comply with S87 (1) Consumer Credit Act 1974

23. Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful termination of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to my credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

24. Notwithstanding the Fact that no valid credit agreement which complies with the Consumer Credit Act 1974 and subsequent Regulations made under the Act has been produced, it is averred that no valid default has been served upon me and there fore the claimant is precluded from taking such action until a Default Notice is served in the correct form containing the correct information laid out by SI 1983/1561

25. Consequently I put the claimant to strict proof that a default notice in the prescribed form and content was served.

Conclusion

26. The claimant has failed to supply any supporting documents with the claim form and has ignored my request for information. In addition I believe the claimant has acted unreasonably in bringing this action and further believe the claimants action should be viewed as vexatious. It is requested that the court strike out this claim as there is no prospect of success in view of the matters pleaded above

27. Further more, without full disclosure I am unable to prepare a defence to the documents, which the claimant will be seeking to rely upon, nor can I reasonably consider what case I have to answer.

28. In addition, if the claimant cannot produce a credit agreement in the prescribed form signed in the prescribed manner by debtor and creditor, the court is precluded from making an enforcement order under s127 (3) Consumer Credit Act 1974 and it is requested that the court use its powers under section 142 Consumer Credit Act 1974 to declare the agreement unenforceable and strike out the claimants case accordingly

29. In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16.

30. Alternatively, I respectfully request a stay in proceedings until such time as the claimant complies with the requests outlined in paragraph 5 above or until the court orders its compliance with the same. I will then be in a position to file a fully particularised defence and counterclaim and will seek the courts permission to amend my statement of case accordingly.

31. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in xx/xx/xxx the Consumer Credit Act 1974 is the relevant act in this case.




Statement of Truth


I, believe the above statement to be true and factual


Signed .....................

Date

ignore the silly blue bits they are just cag's thing.

[Amethyst]

Re: Claim discontinued, Cabot now claiming.

So thats an embarassed defence, have no further docs been supplied either by BC or Cabot ?

So update that to include the discontinuance and assignment to Cabot issues.

You'd best pm pt seeing as he assisted you with the original case, he'll have a better idea what the historicals of this are, I'm kinda starting blind and would take me a fair while to get up to speed, and you dont have a lot of time.

[Viano]

Re: Claim discontinued, Cabot now claiming.

Thanks Ame,

No, I've had nothing (so far as I can know) from Barclays and only what's been detailed above from Cabot.

I 'll try pt again, I thought he was taking a well earned sabatical.

V

[WendyB]

Re: Claim discontinued, Cabot now claiming.

If it's of any use, I used the discontinuance theme when Bryan and co tried it on. Bryan had discontinued then I got another N1 turn up. I can't remember now if it was Bryan or another DCA that filed the second N1. It's on my thread here somewhere but am on my mobile ATM so can't do a link. Anyway I wrote to them pointing out the error if their ways and quoting CPR 38 and next thing I knew it got discontinued with an apology.

[Amethyst]

Re: Claim discontinued, Cabot now claiming.

Reading your thread OTR - sounds a bit stressy - not suprised they dropped it I doubt if they knew if they were coming or going and Optima ditched it halfway through.

Your witness statement on this debt should be a few hundred pages lol.

Who was the fountain court bod ?

And found the CCA

http://i241.photobucket.com/albums/f.../Viano-CCA.jpg

and back

[Viano]

Re: Claim discontinued, Cabot now claiming.

Thanks Wendy,

I'd like a link to that thread when you can please.

V
------------------------------- merged -------------------------------
Ame, the (separate) T's & C's are further down the same page.

V

[Amethyst]

Re: Claim discontinued, Cabot now claiming.

couldnt find them, but got them from photobucket easier

[Viano]

Re: Claim discontinued, Cabot now claiming.

Hi Ame,

The Fountain Court whiz was, and probably still is Sebastian Said.

V

[volvo]

Re: Claim discontinued, Cabot now claiming.

subbing

[Viano]

Re: Claim discontinued, Cabot now claiming.

Welcome along for the ride Volvo

V

[WendyB]

Re: Claim discontinued, Cabot now claiming.

Here you go N1 served AGAIN - Bryan Carter - SORTED AGAIN !!! - Legal Beagles Consumer Forum

It drags on a bit but you'll get the general idea. Forgot to mention, is the N1 for the whole amount due? Cos if it's not you could mention abuse of process, that's usually enough to shut them up and get them to discontinue

[Angry Cat]

Re: Claim discontinued, Cabot now claiming.

As ever, I am concerned about costs!

It would appear that PPI was taken out at the point of application or, perhaps my eyes are deceiving me?

Has the OP been provided with the docs. that relate to same? (PPI Policy and the Inception Terms of said Policy)

If, the embarassed defence is to be submitted, then at AQ stage the OP should make request an 'Order for Directions'.

Hopefully PT, will be along to advise fully

[Amethyst]

Re: Claim discontinued, Cabot now claiming.

Hi Ame,

The Fountain Court whiz was, and probably still is Sebastian Said.

V

Wow, quite a CV. So it was he who advised BC to ditch the first attempt. Sounds hopeful.

have you replied to Cabots part 18 now?


With this application being for two products (the visa card and the mastercard) is this new claim from Cabot the same card as the original claim from Optima ?

[Viano]

Re: Claim discontinued, Cabot now claiming.

Hi Ame,

I am replying to the Form of Content part today, the rest when I have it all together.

No 'tis the other card, but materially the same. The original Claim appears not to distinguish between the cards.

The original Claim was by Barclays Bank and an amount was claimed, not a specific card. In the current claim issued by Cabot the PoC's state 'The Claimant is the Assignee of a Debt(s) from Barclaycard'.

FYI in May 08 I received from Optima a letter and statements by way of disclosure. The letter clearly shows that both cards are subject to s78, and both sets of statements were included. Also both accounts were mentioned in the disclosure list. Both account were mentioned in my Witness Statement. Thereafter it is referred to as Barclays v Viano.

Barclays were as you know advised to discontinue.

V