Cabot Financial v d0nnyoz - 17 June 2014

[d0nnyoz]

Hello

I think this might be visiting a VERY old claim but slightly worryingly, I have received this claim out of the blue, after about 5 years of nothing.
This is the usual claim based on "an agreement between CitiFinancial and the defendant" but this one has some history.
Firstly, I served a CCA on Cabot in December 2008 which they failed to respond to. I then wrote to them again in May 2009 stating they had failed to respond and the account (with them) had entered default. I also stated that they needed to cease processing any data relating to this account under section 10 of the DPA (rightly or wrongly!).
I also stated they were not permitted to take any action against this account whilst it remains in dispute. I have heard nothing from them since these letters. And no, out of the blue, a County Court claim.

So I need to some advice on how to bury this as I think (in fact I know) this is Cabot trying it on, but not only do I think this is easily put to bed, I think it might be illegal based on the above info??
I know the first step is to send an Acknowledgement of Service so I should do that, right?
In the help notes the next step is to request a CCA, but this was already done in 2008, so what course do I take?
I can send a CPR to the solicitors (Mortimer Clarke) but I'm thinking this can be challenged on the above grounds initially in that this is an illegal claim??

Any help?

Thanks in advance....

[Amethyst]

Re: Cabot Financial v d0nnyoz - 17 June 2014

It isn't illegal no. The CCA only makes an agreement unenforceable while the default continues. Bringing court action isn't classed as enforcement - but getting judgment is - so basically while they are in default of the CCA request they cannot obtain judgment (presuming you defend the claim properly)

Yes you should send a CCA request to the claimants (CABOT) and a CPR 31.14 request to Mortimer Clarke - and of course acknowledge the claim.
They should also have followed preaction protocols and sent you a letter before action so you can add that in defence later on.

Do you recall when you last acknowledged or paid the debt, when did it default ? If it was over 6 years ago from the date of the claim you could be statute barred, which would be a full defence.

[Amethyst]

Re: Cabot Financial v d0nnyoz - 17 June 2014

CPR 31.14 example letter http://www.legalbeagles.info/forums/...ic-information

CCA example letter http://www.legalbeagles.info/forums/...y-of-Agreement

[d0nnyoz]

Re: Cabot Financial v d0nnyoz - 17 June 2014

Thanks Amethyst, and thanks for the links.
What does the previous CCA and CPR mean in this case??

Particularly like you last line about statute barred, but I concede I don't really know what that means?!

[d0nnyoz]

Re: Cabot Financial v d0nnyoz - 17 June 2014

Just checked my letters and I made a payment on this account on 23rd June 2008, so just inside the 6 year statute barred period. I suspect that is why Cabot have started this claim at this point. Does the claim have any effect on the 6 year period?

[Amethyst]

Re: Cabot Financial v d0nnyoz - 17 June 2014

If you last paid or acknowledged the debt before June 2008 then the debt might not be collectable under the limitations act 1980 section 5.

“An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

Also Financial Conduct Authority states the following rules:

"...a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period." 7.15.4

"A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred." 7.15.8


ie. If you havent spoken with the creditor or paid anything in the last six years then you might not be liable to pay it.

[Amethyst]

Re: Cabot Financial v d0nnyoz - 17 June 2014

Just checked my letters and I made a payment on this account on 23rd June 2008, so just inside the 6 year statute barred period. I suspect that is why Cabot have started this claim at this point. Does the claim have any effect on the 6 year period?

Bugger that's tight, but yes that's that argument out of the water, and yes it will be why they've suddenly whacked in a court claim, to prevent it going statute barred.

[Amethyst]

Re: Cabot Financial v d0nnyoz - 17 June 2014

CCA letter will ask for a copy of the agreement which the creditor MUST comply with in order to enforce the debt. (Consumer Credit Act 1974 s.77-79 )

CPR will ask the creditor for copies of the documents which it is relying on to bring the claim, if they have no documents to bring the claim they can't rely on anything and you could get their claim struck out. (Civil Procedure Rules 31.14 )

[d0nnyoz]

Re: Cabot Financial v d0nnyoz - 17 June 2014

So I need to respond to the court with an Acknowledgement of Service?
Then send the CCA to who? The court, Cabot or the solicitors? (I've already issued a CCA to Cabot in December 2008)
And how do I respond to the court (with a defence)?
And who and when does the CPR go to?

Thanks again in advance.

[Amethyst]

Re: Cabot Financial v d0nnyoz - 17 June 2014

So I need to respond to the court with an Acknowledgement of Service?
Then send the CCA to who? The court, Cabot or the solicitors? (I've already issued a CCA to Cabot in December 2008)
And how do I respond to the court (with a defence)?
And who and when does the CPR go to?

Thanks again in advance.

Acknowledge the claim to the court - if its from Northampton you should be able to do this online at moneyclaimonline - tick intend to defend in full - its not binding so you can change to admission later if you like - the acknowledgement just serves to extend the date you have for filing your defence to 28 days from service rather than 14.

Send the CCA to Cabot

Send the CPR request to the solicitors

[d0nnyoz]

Re: Cabot Financial v d0nnyoz - 17 June 2014

Just a quick question regarding the CCA.
I requested a CCA from Cabot in December 2008 and they failed to comply so do I have grounds to declare the claim void based on the fact they failed to respond?

[Celestine]

Re: Cabot Financial v d0nnyoz - 17 June 2014

No, it won't be void, but you will be able to use that CCA request in your defence :tinysmile_twink_t2:

[d0nnyoz]

Re: Cabot Financial v d0nnyoz - 17 June 2014

Hi all, and thanks for the advice thus far!
But I've had movement, or at least responses.

Firstly, I received a response to my CPR request from the solicitors which was short and sweet.
"We are taking instructions from our client regarding your CPR 31.14 document request and will come back to you as soon as we can."

They also state their client is "willing to agree to the extension of 28 days for you to file your defence. Pursuant to CPR 15.5(2) please notify the court in writing of the agreement."
Firstly, I didn't know they had to agree to this extension, rather it was my right!
But secondly, is there any action I need to take here regarding notifying the court as they state? I'm not sure what I need to notify them of?

I then get a letter back from the debt company (Cabot) thanking me for my CCA request. They state they currently do not have this information on file but they have requested this under Section 77/78 of the CCA 1974 from the original lender.
They then go on to say that they anticipate they will be able to provide this information within 40 days. If they are unlikely to obtain the information, they will write to me again.

My first thought is that I thought they had to provide this information within 12 days?? Or is that just the time they have to respond?
Secondly, I have letters from Cabot from over 6 years ago stating the same thing and they were not able to provide the agreement from the original lender.

What are my next steps?
Do I need to write to the court? I can't wait for 40 days as I only have 28 days to file a defence of which I have about 14 days left.
Can I ask the court for a further extension or can I ask they simply strike it off?

Thanks, in anticipation.

[d0nnyoz]

Re: Cabot Financial v d0nnyoz - 17 June 2014

Any further help on this topic?
I'm getting slightly twitchy!

[Amethyst]

Re: Cabot Financial v d0nnyoz - 17 June 2014

Have you informed the court of both parties agreement to an extension? You can do this by email to the court.

Sounds like standard responses so far. If you get to within a week of the end of the extension (which is your original defence date plus 28 days) and you still have no documents then you will need to start putting a defence together. The lack of compliance with your CCA request is a good start