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

[MIKE770]

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

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

[warwick65]

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

Just because i do actually care

Is this your defence? If so it needs the statement of truth adding

I only ask because solicitors have been known to submit letters as defences to the court thereby causing more problems as you have to seek to amend the defence

If it is your defence may I suggest you add to it and include things such as non compliance with CCA request, no default notice etc

As I have been told on several occasions it is always best to have a fallback position
A case in point- they went in with 4 defences points , one of them being non compliance with S78 . They won on 4 and lost on 1 . I wouldn't want you to use the 1 that you may lose on.

Remember , many judges do not like 'debt avoiders'

[FaithForever]

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

Just because i do actually care

Is this your defence? If so it needs the statement of truth adding

I only ask because solicitors have been known to submit letters as defences to the court thereby causing more problems as you have to seek to amend the defence

If it is your defence may I suggest you add to it and include things such as non compliance with CCA request, no default notice etc

As I have been told on several occasions it is always best to have a fallback position
A case in point- they went in with 4 defences points , one of them being non compliance with S78 . They won on 4 and lost on 1 . I wouldn't want you to use the 1 that you may lose on.

Remember , many judges do not like 'debt avoiders'

This is not my defence. This is a letter I am sending to the solicitors drawing to their attention that it is statute barred.
If a defendant wins on 4 how can the judgment be against them?

- - - Updated - - -

sorry Mike - What?

[warwick65]

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

I should have said, won on 3 but lost on 1 - overall it was a win but if they had gone in with just the one that lost- they would have lost.

just be aware that the solicitors may lodge this with the court as your defence- it has happened before

Can I ask- do you know what those hundreds of paragraphs say and mean because it is possible the letter will be added to the trial bundle (if it gets that far) and you could be questioned on them.

Remember this is a small claim and while the law you state should be good you are not a lawyer ( or are you) . Another thing to be aware of, it would not be you who was addressing the court but your partner unless you were given a right of audience which I hear rarely happens

- - - Updated - - -

If you need to email your defence, Mike was giving you the email address

I had to email my acknowledgement of service

[FaithForever]

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

Hi,

I am not a solicitor but I do have experience as a legal advocate representing clients in county court (a while back) and whilst I do know what all those bits mean I think I might pare it back and just send a simple statute barred letter, ie,

"I do not acknowledge any debt to you or any other company ororganisation that you claim to be representing.

Dear Sir/Madam


Account No: xxxxxxxxxxx

You have contacted me regarding the account with the above reference number,which you claim is owed by myself.

I would point out that under the Limitation Act 1980 Section 5:

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

I would point out that in their Consumer Credit sourcebook, theFinancial 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 withthe customer during the limitation period." 7.15.4

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

The last payment or acknowledgement of this debt was made over six yearsago and no further acknowledgement or payment has been made since that time.Unless you can provide evidence of payment or written acknowledgement from mein the relevant period under Section 5 of the Limitation Act, I suggestthat you are no longer able to take any court action against me to recover thealleged amount claimed.

I await your written confirmation that no further contact will be madeconcerning the above account and confirmation that this matter is now closed.

I look forward to hearing from you.

Yours faithfully"

Or maybe something in between. Any preferences, anybody?
KR
FF

[FaithForever]

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

Maybe a slight alteration to the first version,

"Should you choose to ignorethe above or attempt to circumvent the Rules I will inter alia use this as adefence which I will submit to the Court with other documentation by the deadline."







- - - Updated - - -

Maybe a slight alteration to the first version,

"Should you choose to ignore the above or attempt to circumvent the Rules I will inter alia use this as a defence which I will submit to the Court with other documentation by the deadline."

[warwick65]

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

Hi
I guess that explains how you have access to Hasbury. I had to log into the library to see it and that was as an e book.

Remember I am a glass half empty kind of person, been kicked in the nuts too often not to be.

I do think paring it back is a good idea and I'm glad you should have the skills to sort them out if they try to log it as a defence.

Sadly too many people here do not have that experience and while I always want the debt purchasers to get a good kicking sadly it is not always the case. I know some do settle before court because for them that is the best solution.

[FaithForever]

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

Hi
I guess that explains how you have access to Hasbury. I had to log into the library to see it and that was as an e book.

Remember I am a glass half empty kind of person, been kicked in the nuts too often not to be.

I do think paring it back is a good idea and I'm glad you should have the skills to sort them out if they try to log it as a defence.

Sadly too many people here do not have that experience and while I always want the debt purchasers to get a good kicking sadly it is not always the case. I know some do settle before court because for them that is the best solution.

The Halsbury quote is a bog standard one that I borrowed as I'm short on time. The 5th Edition is difficult to get online. How could they log it as a defence if it's online? Surely the Defence has to come from my partner through his secure login? If they knowingly presented it to the Court as his Defence, it would be obstruction of justice.

If I can get this settled by SB for my partner I will. Sorry to disappoint.
FF
xx

[warwick65]

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

Hi Faith
If course you should go for the easy option and as I said I want you to win.
I have no idea how it was done but it was reported on here as having happened.
Defences don't have to be done online, they can be done by post or email and their is often more flexibility with a LiP

[FaithForever]

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

Hi Faith
If course you should go for the easy option and as I said I want you to win.
I have no idea how it was done but it was reported on here as having happened.
Defences don't have to be done online, they can be done by post or email and their is often more flexibility with a LiP

My partner sent Drydens a short SB letter today.
Will update when I have more news.
FF

[FaithForever]

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

Hi All,

I finished the Defence. Have fun reading it. I intend to put it in on Sunday or Monday. My partner sent Cabot a Statute Barred letter. They had a look at his credit file and tried to hide their enquiry but the credit agency informed my partner. Interesting that they should be looking, to see whether anything was recorded on my partner's credit file, which it isn't, because it is over six years. lol. The Defence is still being lodged, in case they try to win by default. Don't take notice of the spacings, they have gone to pot on your site.


IN THE NORTHAMPTON COUNTY COURT CASE 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. The Claimant’s Particulars of Claim do not state what type of Agreement it was, or which Section of the Consumer Credit Act 1974 applied, when the sum or account was recalled and the alleged agreement terminated, how much of the amount of £xxxxxxx is capital or charges or interest and if charges what type of charges.
4. I require the Claimant to provide all of these details.
5. I admit previously having entered into an agreement with Capital One Bank (Europe) PLC for provision of credit under Account No: xxxxx.
6. I deny ever having entered into an agreement with the Claimant.
7. 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 claim is denied.
8. The Claimant’s claim to be entitled to payment of £xxxxx or any other sum, or relief of any kind is denied.
9. I require the Claimant to provide proof in the form of documentary evidence that the alleged debt is not statute barred.
10. I attach a copy of a letter to the Claimant dated xxxxx informing the Claimant that this matter is statute barred. (Doc 1)
11. As I stated at 5. above I had entered into an agreement with Capital One Bank (Europe) PLC for provision of credit under Account No: xxxxx. Capital One added Payment Protection Insurance (PPI) to my account without my requesting it and without my knowledge. I complained to the Financial Ombudsman Service.
On xxxxx Name of Ombudsman , Ombudsman, of the Financial Ombudsman Service, gave his Decision in my favour that the PPI had been mis-sold. I attach a copy of that Decision which ordered both a money award and gave a Direction. (Doc 2)
I would point out that this was not an adjudicator of the Financial Ombudsman Service who made a Decision, but it was an Ombudsman who gave his Decision. I accepted the Decision and the FOS confirmed by letter dated xxxxx that because of my acceptance the Decision had become binding on both Capital One and myself.
The Ombudsman ruled that I should be placed back in the position I would have been in had the PPI policy not been sold. He instructed Capital One, the ‘owner’ of the account, to deconstruct and reconstruct the account, as per the attached Decision, and further, to set out in writing to me how Capital One had calculated the compensation so ordered.
Capital One did not comply with the Ombudsman’s Ruling. They listed the PPI premiums and made a partial refund to my account of £xxxxx leaving a balance of £xxxxx. This was not a reconstruction and reconstruction of the account as Ordered, so it resulted in only a partial payment being made by Capital One off the total that should have been refunded to me.
I have deconstructed and reconstructed the account and I attach a copy of my spreadsheet with full and proper steps shown. (Doc 3) The total owed to me at the date of Judgment was £xxxxx. The payment refunded to the account by Capital One was £xxxxx, leaving a balance of £xxxxx owing to me. With the interest ordered by the Ombudsman, the total amount owing to me at the date of Judgment was £xxxxx
A. The difference between the closing balance with PPI and without: £xxxxx
B. Interest at 8% pa simple on any credit balance
Cabot Financial (UK) Limited insist that they have purchased the account. They are therefore liable and responsible for complying with the Ombudsman’s Decision under the Financial Services and Markets Act 2000.
Under this Act an Ombudsman’s Decision is legally enforceable in court. I attach FOS Factsheet which details the procedure in enforcing an Ombudsman’s Decision in Court. (Doc 4)
1. ‘If the Complainant notifies the Ombudsman that he accepts the determination, it is binding on the respondent and the complaint and final.’ Under FSMA 2000, S228 (5)
2. ‘A Money award, including interest, which has been registered in accordance with consumer credit rules may: (a) if a county court so orders in England and Wales, be recovered by execution issued from the county court (or otherwise) as if it were payable under an order of that court.’ FSMA 2000, Schedule 17, 16D (a)
E+W+S+N.I.3. ‘Compliance with a direction under subsection: (a) is enforceable by an injunction.’ FSMA 2000, Enforcement of Ombudsman Directions, Section 229 (9) (2) (b)
As the Decision has not been complied with, I am counter-claiming the amount of £xxxxx plus County Court Compound Interest of 8% plus costs plus damages plus compensation from xxxxx to the date of settlement hereunder.
I respectfully ask the Court to enforce the Ombudsman’s Decision.
12. I contend that Claimant Cabot Financial (UK) Limited is not licensed with the Financial Conduct Authority and so does not have permission or authority to collect debts. A copy of the Financial Conduct Authority register entry relating to the Claimant is attached herein as evidence that the Claimant is not currently licensed with the Financial Conduct Authority and indeed has not been so since xxxxx. (Doc 5)
Should the Claimant contend that they are entitled to act by association under the licence of one of their Financial Conduct Authority-licensed sister companies or their parent company using any other Cabot or Marlin name I would counter this argument by stating that they are prevented from so doing by the Hicks v Walker and Reynolds Judgment, a copy of which I append. (Doc 6)
13. I respectfully request that this Court consider whether the relevant Police Authorities be enjoined to these proceedings and/or invited to investigate a possible criminal offence by the Claimant contrary to the Consumer Credit Act 1974, S21, S39 and S40, occasioned by the Claimant seeking to unlawfully act as a debt collector by commencing these proceedings, and having reference to 11. above.
14. I respectfully request that this Court act upon my request at 12. above if it so chooses.
15. The Claimant is not licensed with the Financial Conduct Authority but has sought by commencing this Claim and producing documents to obtain money from me in contravention of Section 40 of the Administration of Justice Act, S40 (1) (a) (c), and (d), (2), more particularly:-
S40 Punishment for unlawful harassment of debtors.
(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he;

(c) falsely represents himself to be authorised in some official capacity to claim or enforce payment, or

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.

(2) A person may be guilty of an offence by virtue of (a) (a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.
Under 14. above Drydens Limited acting as solicitors for the Claimant have also contravened S40 (2).
These are criminal offences and I respectfully request that this Court consider whether the relevant Police Authorities be enjoined to these proceedings and/or invited to investigate a possible criminal offence by the Claimant contrary to the Administration of Justice Act (1) (c) and (d) and (2), occasioned by the Claimant and their solicitors acting in such as a manner as described under 15. above.
16. I respectfully request that this Court act upon my request at 14. above if it so chooses.
17. I proffer as a Complete Defence my contention that the action of the Claimant at 11. above is illegal and under ex turpi causa non oritur actio (“no action can arise from an illegal or immoral act”).
“No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then the Court says he has no right to be assisted. It is upon this ground the Court goes; not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff.”
Lord Mansfield CJ, Holman v Johnson (1775) 1 Cowp 3411
18. I contend that should the Claimant be successful in its claim and take possession of the whole or part of the sum of money they are claiming under this their claim, a criminal offence under the Proceeds of Crime Act 2002 would have been occasioned as Cabot Financial (UK) Limited are unlicensed by the Financial Conduct Authority as a debt collector.
19. I respectfully request that this Court consider whether the relevant Police Authorities be enjoined to these proceedings and/or invited to investigate a possible criminal offence by the Claimant contrary to the Proceeds of Crime Act 2002, occasioned by the Claimant seeking to unlawfully take possession of the whole or part of the sum of money they are claiming under this their claim, and having reference to 15. above.
20. I respectfully request that this Court act upon my request at 18. above if it so chooses.
21. On xxxxx I sent a request to the Claimant requesting sight in accordance with
CPR 31.14 of the following documents.

1. Agreement between the Defendant and Capital One, Account No: xxxxx iincluding Terms thereto.

2. Notice of Assignment to Cabot Financial (UK) Limited.

3. Deed of Assignment to Cabot Financial (UK) Limited dated xxxxx (the date stated in the Claimant’s Particulars of Claim).

4. 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.
22. 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.
23. 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.
24. The Claimant’s Particulars of Claim fail to state the date upon which the Agreement between myself and Capital One Bank (Europe) PLC commenced.
25. The Claimant’s Statement of Case states that the account was assigned from ‘Capital One’. This is incorrect. I do not recall receiving notice of this assignment.
26. 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.
27. I have tried to contact the Claimant to ask if we may agree to extend the time period allowed for filing of my Defence pending my receipt of their documents (as allowed under CPR 15.5), but they have not picked up the telephone to me. I have therefore been unable to make said request.
28. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my Defence, and I would ask that the Claimants bear the costs of the amendment/s.
29. I respectfully request that the Court Orders the Claimants to provide the necessary documentation in order for me to fully plead my case. In the absence of the documents I respectfully request that Judgment be awarded for me, the Defendant, with costs, damages and compensation.
30. Under Civil Procedure Rule 16.5 (4) where the claim includes a money claim, a Defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless the Defendant expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.
Statement of Truth
I, xxxxx, the Defendant, believe that the facts stated in this Defence are true.
Signed: _______________________________
Print Name: xxxxx
Dated: ________________________________

[FaithForever]

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

ignore E + W + N + SI. No idea what that is.
FF
xx

[MIKE770]

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

open up each paragraph as a judge I would give up before I start to read it, presentation ?

[FaithForever]

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

open up each paragraph as a judge I would give up before I start to read it, presentation ?

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

[charitynjw]

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

ignore E + W + S + NI. No idea what that is.
FF
xx

England+Wales+Scotland+Northern Ireland.