Cabot Financial/Restons

[princealbert40]

Hello
Having had court papers from Cabot/restons. I have accknowledged & submitted defence. Defense filed with the court 27/08/14. Since then I have heard nothing at all. How long has the claimant got before this can be action can be thrown out?
Any advice much appreciated.

[Kati]

Re: Cabot Financial/Restons

Is this the same case?
http://www.legalbeagles.info/forums/...-marlin-lowell

[Amethyst]

Re: Cabot Financial/Restons

Hello
Having had court papers from Cabot/restons. I have accknowledged & submitted defence. Defense filed with the court 27/08/14. Since then I have heard nothing at all. How long has the claimant got before this can be action can be thrown out?
Any advice much appreciated.

They have 28 days after receiving the defence, you could write to the court asking to strike out the claim if you liked. Presumably the defence is no credit agreement ?

[princealbert40]

Re: Cabot Financial/Restons

Hello
Thank you for your reply
Yes that is my defence.
How do i ask the court to strike it out as I have been online and can see no options for this
Many Thanks

[princealbert40]

Re: Cabot Financial/Restons

Sorry......................... Nealy forgot had letter from Restons asking me to withdraw my defence.

[Amethyst]

Re: Cabot Financial/Restons

Of course, they usually do that, and threaten summary judgment etc. When did you get that letter?

To ask the court you have to send them a letter asking them to consider striking out the claim as an abuse of process. We might need to reply to Restons first though depending what they said.

The court might come back and ask you to file an formal application but cross that bridge if we come to it.

[princealbert40]

Re: Cabot Financial/Restons

Got the letter from Restons about a month ago. They said I should have CCA from when I applied for the card etc and they will have my defence struck out etc etc I have not responded to them as there is nothing new to add and as I say the last line was almost pleading me to withdraw my defence which is simply despite previous requests they can not provide a CCA. They also state the deed of assignment can not be seen because it has comercially sensitive information on it.

[Amethyst]

Re: Cabot Financial/Restons

Okay bit late to reply so don't worry about that, I reckon a letter to the court would be enough to get it struck out. I'll find a draft for you.

[Amethyst]

Re: Cabot Financial/Restons

Something along these lines - I haven't seen the particulars of claim on your case so could do with that info to formulate the request to the court.

FAO: Court Manager - Case Ref: XXXXXX

The claim was issued on xxxxxxxxxxxx 2014 and defence submitted on xxxxxxxxxxxxxxxxx 2014. The Claimant has failed to respond to the Defence and the case has now been stayed.

The Defendant respectfully asks the Court to to exercise discretion on its own initiative under CPR 3.2 and PD3A(1) to strike out the claim form.

I have stated in my defence that my understanding of the claim is that it regards payments due under an agreement for a regulated sum for running credit. On xxxxxxxxxxx 2014 I paid the statutory fee to the creditor and requested a copy of the executed agreement and other relevant information prescribed in s.78(1) Consumer Credit Act 1974. Despite repeated requests, no further information or any signed statement from the creditor in lieu has been received from the Claimant.

Under s.78(6) Consumer Credit Act 1974 a creditor who fails to provide the information requested in s78(1) is not entitled, while the default continues, to enforce the agreement.

In the absence of proper information, the Claimant was unable at the time of issue to formulate a claim against me and has issued the claim in an attempt to prevent the limitation period expiring. The claim is therefore an abuse of process.

As the time has now expired for any further statement of case on behalf of the Claimant, I ask that following CPR 3.2 and PD3A 2-3 1 the claim be brought to the attention of a judge to consider a strike out of the claim form on the following grounds:

Pursuant to CPR 3.4(2)a the Claimants statement of case does not contain all the facts necessary for the purpose of formulating a complete cause of action and therefore discloses no reasonable grounds for bringing a claim.

Further or alternatively, pursuant to CPR 3.4(2)b it is an abuse of process to issue a claim form in the absence of knowledge of any basis for a claim, and in circumstances where the claimant is unable to formulate a claim at the time of issue. In the circumstances of this case, the Claimant has no reasonable grounds or evidence upon which to serve the claim form.

Further or alternatively, pursuant to CPR 3.4(2)b it is an abuse of process to issue a claim form which the Claimant is not entitled to enforce.

Further or alternatively, pursuant to CPR 3.4(2)c in the absence of any identifiable cause of action, the claim form does not contain a concise statement of the nature of the claim and is therefore a failure to comply with CPR rule16.2(1)a.

Alternatively I invite the court to exercise discretion on its own initiative under CPR 3.2 and PD3A(1) to strike out the claim form.

Yours sincerely

[princealbert40]

Re: Cabot Financial/Restons

Many Thanks for the letter.
Will send it recorded delivery on Monday
Thank you once again.

[princealbert40]

Re: Cabot Financial/Restons

Hi. Quick question, In the absence of a CCA etc as is still the case., how can I get Cabot to remove the default on my credit file? Any guidance greatly appreciated.

[FlamingParrot]

Re: Cabot Financial/Restons

Hi. Quick question, In the absence of a CCA etc as is still the case., how can I get Cabot to remove the default on my credit file? Any guidance greatly appreciated.

The absence of a CCA is not grounds to get a default removed. On McGuffick v RBS it was established that reporting to the CRAs does not constitute enforcement so they are allowed to record a default even in the absence of enforceable paperwork.

You may want to look at the more recent Grace v Blackhorse case which refers to an agreement that was irredeemably unenforceable (as ruled by a court), however, it also refers to where the parties agree that the agreement is unenforceable:

The clear message coming out of this case is that where a credit agreement is found to be unenforceable or where the parties accept the agreement is unenforceable, the creditor should not seek to argue that the debtor is a defaulter without clarifying that the agreement is unenforceable and if the system cannot support such recording then the Default should not be registered at all.

Not that the case refers to an unenforceable agreement, i.e. where the agreement is available but has been found not to be enforceable by a court due to defects on the agreement itself as opposed to an agreement where a copy hasn't been supplied to you (but which may or may not be enforceable if it existed).

[princealbert40]

Re: Cabot Financial/Restons

The absence of a CCA is not grounds to get a default removed. On McGuffick v RBS it was established that reporting to the CRAs does not constitute enforcement so they are allowed to record a default even in the absence of enforceable paperwork.

You may want to look at the more recent Grace v Blackhorse case which refers to an agreement that was irredeemably unenforceable (as ruled by a court), however, it also refers to where the parties agree that the agreement is unenforceable:



Not that the case refers to an unenforceable agreement, i.e. where the agreement is available but has been found not to be enforceable by a court due to defects on the agreement itself as opposed to an agreement where a copy hasn't been supplied to you (but which may or may not be enforceable if it existed).

Many thanks for your assistance.
I have today heard from RESTONS.
Cabot have instructed them to disscontinue this action, so no longer have threat of court/ccj hanging over me. I would point out that this is after NUMEROUS BULLYING letters from RESTONS. However they also state that any default notice WILL NOT be removed and is valid from date of default for a period of six years, which in my case is another three years.
So any advice of how to deal with CABOT one again as RESTONS are not now dealing with the matter?

[nemesis45]

Re: Cabot Financial/Restons

Many thanks for your assistance.
I have today heard from RESTONS.
Cabot have instructed them to disscontinue this action, so no longer have threat of court/ccj hanging over me. I would point out that this is after NUMEROUS BULLYING letters from RESTONS. However they also state that any default notice WILL NOT be removed and is valid from date of default for a period of six years, which in my case is another three years.
So any advice of how to deal with CABOT one again as RESTONS are not now dealing with the matter?

Well done!! both PA and [MENTION=6]Amethyst[/MENTION].

nem

[FlamingParrot]

Re: Cabot Financial/Restons

Many thanks for your assistance.
I have today heard from RESTONS.
Cabot have instructed them to disscontinue this action, so no longer have threat of court/ccj hanging over me. I would point out that this is after NUMEROUS BULLYING letters from RESTONS. However they also state that any default notice WILL NOT be removed and is valid from date of default for a period of six years, which in my case is another three years.
So any advice of how to deal with CABOT one again as RESTONS are not now dealing with the matter?

WELL DONE! :cheer2::cheer2::cheer2::cheer2:

The claim has been discontinued, so you no longer need to deal with Cabot either.