Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

[MIKE770]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Seriously?

This site doesn't keep the formatting when cutting and pasting a Word document. I did state in my post, 'Don't take notice of the spacings, they have gone to pot on your site.'

The Defence is perfectly set out in its real format.

Any comments on the substance are invited.
FF
xx

=

take heed and not criticise , that is a comment on substance!

[MIKE770]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

spacing once posted can be achieved in the reply section

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

England+Wales+Scotland+Northern Ireland.

Ah, mystery solved. Thank you.

[warwick65]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

My only comments would be that the defence should be the basics and attachments and case law should possibly be kept to the WS.

I appreciate you want to kill the claim dead now but by revealing all your legal arguments now you give them more time.

Have you actually counter claimed? This would, I think be done when you acknowledged the claim and ticked the appropriate box

Additionally, earlier in the thread you said you were not going to mention any potential illegality - clearly you have changed your mind.

If you are submitting online you may find it too long although I am not sure of the character/lone count allowed [MENTION=5553]charitynjw[/MENTION] @MIKE770 might now. I also do not think online allows attachments


Just one final comment- people on this forum generally comment in good faith, are not professionals and I think it is uncalled of, for you to make abrasive comments when someone has missed a line or two of what is a long post.

[MIKE770]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Claim responses & directions:
ccbcaq@hmcts.gsi.gov.uk



try to submit using the above and add attachments, been told it works from others in the past

[MIKE770]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

case law is normally in the WS stage, as they have less time to trash any defence if have substance to? i.e. more informative than the defence stage.

[charitynjw]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

I'm certainly no expert, so I may be barking up the wrong tree.
I'm trying to get my head around-

You quote s 40(1) Administration of Justice Act.
3(A) of that section is

[

F1

(3A)

Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.]

So on to CPUTR
s29

Validity of agreements

29. An agreement shall not be void or unenforceable by reason only of a breach of these Regulations.

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

My only comments would be that the defence should be the basics and attachments and case law should possibly be kept to the WS.

I appreciate you want to kill the claim dead now but by revealing all your legal arguments now you give them more time. I agree - this is a concern but I don't want to get to the WS stage. They are showing signs of worry about it being SB'ed so I thought I'd give them many reasons to not proceed. If it works for me it might work for others - that's why I've posted the whole thing up. I know it's a pig to read. It's also been a pig to do.

Have you actually counter claimed? This would, I think be done when you acknowledged the claim and ticked the appropriate box Yes, I have counter claimed/fully defended'.

Additionally, earlier in the thread you said you were not going to mention any potential illegality - clearly you have changed your mind. Well I thought, why not? What is that quote? 'Bad things happen when good people do nothing?'

If you are submitting online you may find it too long although I am not sure of the character/lone count allowed @charitynjw @MIKE770 might now. I also do not think online allows attachments I found this in the Practice Directions and I will put it here for anyone after this post. It's 25 pages when printed out by the Court admin staff on A4 sheets, using both sides. Not attachments - scanned as one doc with an Appendix after the Defence.


Just one final comment- people on this forum generally comment in good faith, are not professionals and I think it is uncalled of, for you to make abrasive comments when someone has missed a line or two of what is a long post.

Actually I agree, it does read as abrasive - perhaps so because I am deep in the Defence with my 'legal' head on, trying to perfect it. Busy cutting it and taking out details at the moment. I suppose I can't blame a stranger for not knowing that I would have the spacing down-pat. Perhaps I should have put a smiley face after 'Seriously?'

So it was read it like this. 'Seriously? ' or maybe a winking smiley?


- - - Updated - - -

PRACTICE DIRECTION 5B – COMMUNICATION AND FILING OF DOCUMENTS BY E-MAIL
This Practice Direction supplements rule 5.5
Contents of this Practice Direction

Scope and interpretation	Para. 1.1
Communications and documents which may be sent by e-mail	Para. 2.1
Technical specifications	Para. 3.1
Further provisions	Para. 4.1
Statements of truth	Para. 5.1

Scope and Interpretation
1.1 This practice direction provides for parties to communicate and file specified documents with the court by e-mail in proceedings to which the Civil Procedure Rules apply.

1.2 This practice direction—

(a) does not apply to proceedings which were issued in or transferred to the Chancery Division of the High Court, the Commercial Court, the Technology and Construction Court, the Mercantile Court, and the Admiralty Court, at the Royal Courts of Justice, Rolls Building, London (together, “the Rolls Building Jurisdictions”); and

(b) only applies to claims started under Practice Direction 7E (Money Claim Online) if the claim has been sent to a County Court hearing centre.
1.3 In this practice direction–

(a) ‘specified document’ means a document listed in the e-mail guidance (‘the e-mail guidance’) on Her Majesty’s Courts and Tribunals Service (‘HMCTS’) website as a document that may be sent to a specified e-mail address;
(The e-mail guidance can be found at: https://www.justice.gov.uk/courts/em...idance#canfile)

(b) ‘specified e-mail address’ means the email address for a court office which has been published on the Courts and Tribunals Finder website at: https://courttribunalfinder.service.gov.uk/courts/; and

(c) references to “e-mailing a court” mean e-mailing a court office at its specified e-mail address.
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Communications and documents which may be sent by e-mail
2.1 Subject to paragraphs 2.2 and 2.3, a party may e-mail the court and may attach or include one or more specified documents to or in that e-mail.

2.2 In the High Court—

(a) a party must not e-mail an application or other document to the court where a fee is payable for that document to be filed with the court; and

(b) the length of any attachments and total size of an e-mail must not exceed the maximum which the appropriate court office has indicated it can accept.

2.3 In the County Court—

(a) if a fee is payable in order for an e-mailed application or other document to be filed with the court, a party must, when e-mailing the court—

(i) provide a Fee Account number, credit card number or debit card number which the party has authority to charge for the applicable fee; and

(ii) authorise the court to charge the applicable fee to that Account or card number;

(Further information about using the Fee Account service may be found at: https://www.justice.gov.uk/courts/fe...ent-by-account)
(b) when printed out on both sides of A4 paper, the following documents, together, must not exceed 25 sheets of paper in total—

(i) the e-mail;

(ii) any attachments, including any e-mail or document embedded in any attachment; and

(iii) copies of the documents in paragraphs (i) and (ii) that the court will serve where service is requested or required under the rules;

(c) only one e-mail, including any attachments, may be sent to the court to take any step in the proceedings and a party may not send another e-mail or a hard copy of any additional document as part of that step; and

(d) the total size of an e-mail, including any attachments, must not exceed 10.0 megabytes.

2.4 The court may refuse to accept any application or other document, including any attachment, e-mailed to the court where—

(a) a party does not comply with the provisions in paragraphs 2.2 or 2.3; or

(b) a fee is payable pursuant to paragraph 2.3(a) and the court has not been able to charge the fee to the Account or card number provided by the sender.
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Technical specifications
3.1 An e-mail sent to the court must—

(a) include the name and telephone number of the sender and an address for contact, which can be an e-mail address; and

(b) be in plain text or rich text format rather than HTML.

3.2 Subject to paragraph 3.3, correspondence and documents may be sent as either text in the body of the e-mail, or as one or more attachments.

3.3 Completed forms that are prescribed by a rule or practice direction must be sent as attachments.

3.4 Where a prescribed form requires that one or more documents must be attached to that form, that document or documents must be attached to the e-mail to which the form is attached.
(Court forms may be downloaded from HMCTS website at: http://hmctsformfinder.justice.gov.u.../FormFinder.do)

3.5 Attachments must be sent in a format supported by the software used by the court office to which it is sent. The format or formats which may be used in sending attachments to a particular court office are listed in the e-mail guidance.

3.6 Where proceedings have been started, the subject line of the e-mail must contain the following information—

(a) the case number;

(b) the parties' names (abbreviated if necessary); and

(c) the date and time of any hearing to which the e-mail relates.
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Further provisions
4.1 Where a party sends an e-mail to the court they must not send a hard copy of that e-mail or any attachment to the court.

4.2 Where an e-mail, including any attachment, is sent pursuant to this practice direction and the e-mail is recorded by HMCTS e-mail software as received by the court at or after 4.00pm and before or at 11.59pm—

(a) the date of receipt of the e-mail will be deemed to be the next day the court office is open;

(b) the date of issue of any application will not be before that date; and

(c) any document attached to that e-mail will be treated as filed on that date.

4.3 It remains the responsibility of the party sending an application or other document to the court pursuant to this practice direction to ensure that it is received or filed within the applicable time limits, taking into account the operation of this practice direction.

4.4 A court officer may reply by e-mail where the response is to a message received at a specified e-mail address.

4.5 If a document sent by e-mail requires urgent attention, the sender should contact the court by telephone.
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Statements of truth
5.1 Where a party wishes to file a specified document containing a statement of truth by e-mail, that party should retain the document containing the original signature and file with the court a version of the document satisfying one of the following requirements—

(a) the name of the person who has signed the statement of truth is typed underneath the statement; or

(b) the person who has signed the statement of truth has applied a facsimile of their signature to the statement in the document by electronic means.

5.2 The Court may require a party to produce the document containing the original signature.
Back to top
Updated: Monday, 30 January 2017

[Diana M]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

I understand that a debt is Statute Barred provided 6 years have passed from the date of the last payment and that there has been no acknowledgment of the debt (there has not). The Ombudsman Decided in my partner's favour. Cap1 sold on the account to another collector, who my partner wrote to asking for the money owed. They sold it onto yet another collector, who my partner wrote to again. They sold it to Cabot, who were chasing him so he wrote to Cap1 asking them to comply and deconstruct and reconstruct the account. In late 2015 Cap1 wrote to my partner saying they no longer had anything to do with the account. Cabot wrote to my partner early 2016 spewing out the same rubbish. As my partner has never and does not acknowledge the debt I believe I need to press Cabot to prove that this is not Statute Barred.

Going back to post # 3 - you are not party to these legal proceedings.

You are asking an internet forum to approve a Defence on behalf of the Defendant who is not you.

I (my firm) would not do that because of the risks involved.

Is you partner (the Defendant in these proceedings) fully aware of the situation?

I have raised the issue of an unlicensed Claimant. I've not said why/how that matters in civil (not criminal) legal terms.

You (for whatever reason) have decided that the court should be advised of your legal view which appears to be based on criminal issues.

That's not the view my firm takes. It's your personal view for whatever reason.

I'm not going contribute further to your thread but I will say this "think like a Judge" who reads your partner's Defence which basically says "call 999" in Paragraph 13 (?).

I wish your partner well with these proceedings against him.

Di

[warwick65]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

I have just looked at the consumer credit act and in the latest available version online the sections you have quoted have been removed
https://www.legislation.gov.uk/ukpga/1974/39/contents

If I, without any legal training can see this, what will a trained solicitor or paralegal make of it

I do think you are leading your partner down a very dangerous road but that is just my opinion.

I know this is a small claims court but costs can still be and are awarded against losing parties.

It is of course possible that they will discontinue rather than face a hearing but equally as the defendant is a LiP they may decide to field a barrister and throw significant resources at it- after all, at some point this licence issue will need resolving and if it was easy I suspect it would have been done by now.

I know of a recent case where a different company did field a barrister against a 2K claim. I am sure they had their reasons.

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Going back to post # 3 - you are not party to these legal proceedings.

You are asking an internet forum to approve a Defence on behalf of the Defendant who is not you. Spoken like a true lawyer, lol. Not exactly 'approve', just comment on in an open forum, but with hindsight, absolutely right about the Defendant thing. lol.

I (my firm) would not do that because of the risks involved. Too true.

Is you partner (the Defendant in these proceedings) fully aware of the situation? Yes, of course. He's been doing the PPI calculations cos he's better at Excel than I am, and in fact we're just reading through the Defence, which I have cut back considerably, before he signs it. After all, he has to understand what he says in court if it gets that far, and be happy with it.

I have raised the issue of an unlicensed Claimant. I've not said why/how that matters in civil (not criminal) legal terms. Okay. I wouldn't dream of holding you to account. It's just a forum where I really appreciate everybody's views - 'views' being the operative word. My partner and I are responsible for our own actions and for the outcome of any of those actions.

You (for whatever reason) have decided that the court should be advised of your legal view which appears to be based on criminal issues. Not exactly. Actually it was a post by PT2537 on 'that other site' on 6th October 2015 that started me on that path, but I've held back and taken all that out of the Defence anyway, as when I read it I thought it was 'over-egging the pudding' for the result we want to achieve. I think the most important thing is to get them to scurry away using SB. Then we'll be done with it and done with all the stress.

That's not the view my firm takes. It's your personal view for whatever reason. Okay.

I'm not going contribute further to your thread but I will say this "think like a Judge" who reads your partner's Defence which basically says "call 999" in Paragraph 13 (?). It's already out. That item is watered down to just pointing out that Cabot are not licensed, so please don't worry on that score.

I wish your partner well with these proceedings against him. Thank you, and thank you everybody on this thread. I only expect to post once more, to let you know the outcome.

Di

Thank you again, and thank you everybody on this thread. I only expect to post once more, to let you know the outcome.

[Amethyst]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Evening Faith, you've been very busy Good work. This is just a suggestion to bring it down to a defence, as opposed to what seems like a full skeleton argument. Be careful with an allegations of illegality too- sure that's been said previously..... Maybe something between the two? ( while I was farting about trying to bring it down to a more manageable size I see conversation has moved on a bit so feel free to ignore lol - but definately cut it down a lot ) ( also check the dates on the FOS re statute barring - I don't know the date of the FOS adj vs date of default - do you actually ever have 6 yrs without acknowledgment ??)

IN THE NORTHAMPTON COUNTY COURT

CLAIM NO: XXXX

BETWEEN

Cabot Financial (UK) Limited

Claimant

AND

xxxxxxxxxxxxxxxx

Defendant

DEFENCE

1. I, xxxxx, the Defendant, received the claim form, Claim No: xxxxx, from the Northampton County Court Business Centre, Northampton County Court on xxxxxx.

2. I, as Defendant, deny each and every allegation in the Claimant’s Particulars of Claim unless specifically admitted in this Defence.

3. The Claimant states in the Particulars of Claim that their claim is for an Agreement regulated under the Consumer Credit Act 1974.

4. On xxxxx I sent a request to the Claimant requesting sight in accordance with CPR 31.14 of the following documents;

i. Agreement between the Defendant and Capital One, Account No: xxxxx including Terms thereto.
ii. Notice of Assignment to Cabot Financial (UK) Limited.
iii. Deed of Assignment to Cabot Financial (UK) Limited dated xxxxx (the date stated in the Claimant’s Particulars of Claim).
iv. All requests to me for payment/s, from Capital One and from Cabot Financial (UK) Limited and from Drydens Limited trading as Drydensfairfax Solicitors from the date that Account No: xxxxx was opened to xxxxx.

At the date of filing this Defence the Claimant has not sent any of these documents to me.

5. On xxxxx I sent a request to the Claimant, together with the statutory £1.00 fee, for a copy of the original Agreement pursuant to Section 78 of the Consumer Credit Act 1974. At the date of submitting this Defence I have not received this document from the Claimant.

6: The Claimants statement of case states that the account was assigned to themselves from Capital One. I do not recall receiving notice of this assignment. The Claimant is required to evidence that the rights and duties under the alleged agreement have been legally assigned to them.

7. It is denied that Capital One served any Default notice on myself pursuant to S87 of the Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon me.

8. The Claimant has failed to comply with Section 78 (1) of the Consumer Credit Act 1974 and by virtue of Section 78 (6) of the Consumer Credit Act 1974 cannot enforce the agreement.

9: Further, or in the alternative, the account on which the Claimant's claim is based is subject to a Financial Ombudsman ruling dated xxxxxxxxxxxxxxx regarding mis-sold payment protection insurance (PPI).

10: The Ombudsman's ruling ( EXHIBIT A) was accepted by the Defendant and the original creditor (Capital One). The effect of the ruling was that Capital One were required to recalculate the account to put me back in the position I would have been in had the PPI not been applied. The subsequent refund to the account, had it been correctly calculated and applied, would have left the account in a credit, rather than a debit, postion.

11: Capital One failed to comply with the ruling and, it is pleaded in the Claimant's statement of case, have assigned the rights and duties of the account to the Claimant. The Claimant are therefore liable and responsible for complying with the Ombudsman’s Decision under the Financial Services and Markets Act 2000. The Claimant is required to provide their calculations and demonstrate that the Ombudsman's ruling has been complied with.

12: Further, or in the alternative, I contend that the alleged debt is statute barred pursuant to the provisions of Section 5 of the Limitations Act 1980 in that the last payment or acknowledgement of the debt was made over six years ago and no further acknowledgement or payment has been made since that time to date. The Claimant has previously been notified of this position and is required to evidence the alternative.

13: Further, or in the alternative, The Claimant is not authorised to carry on the activity of Debt Collection or Administration by the Financial Services Authority. Collection of a debt arising from a regulated Consumer Credit agreement constitutes a Regulated Activity within the meaning of the Financial Services & Markets Act 2000 (Regulated Activities) Order 2001 (‘RAO’) (Section 39F) and therefore the Claimant is acting in contravention of Section 19 of the FSMA 2000 and is not entitled to bring this claim.


Statement of Truth
I, xxxxx, the Defendant, believe that the facts stated in this Defence are true.
Signed: _______________________________
Print Name: xxxxx
Dated: ________________________________

[Amethyst]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

The other issue that I have is that the FOS decision is enforceable in court if they failed to comply, but they partially complied and it wasn't taken further after informing them they hadn't complied - again I don't know dates between the FOS decision and this claim / the debt being sold on, so whether it was complained about then nothing happened and it was left for ages, or if you were still mid complaint about the calculations. So although you have the ruling, it's not a specific amount of money so isn't as straightforward as if the Ombudsman had awarded a specific sum.

( When an ombudsman ruling isn't a specific sum it is a different kind of claim in the court to turn it into a judgment - all gets stupidly complicated - so for future ref always try and get the ombudsman to pin down a specific money award then it's just a quick application to get a court judgment for enforcement purposes )

So really just saying to be wary of that on the FOS ruling argument.

[Amethyst]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

I have just looked at the consumer credit act and in the latest available version online the sections you have quoted have been removed
https://www.legislation.gov.uk/ukpga/1974/39/contents

ooo which bits ? although I only noticed s78 and s87 stated in the long defence

[Amethyst]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

I'm not going contribute further to your thread but I will say this "think like a Judge" who reads your partner's Defence which basically says "call 999" in Paragraph 13 (?).
Di

lol, indeed, I thought the same, not a good path to go down. It is a tricky one to put in pleadings though - any ideas how to plead unlicenced = not able to claim debt - without bringing 'criminal' into it ?