Claim from Cabot

[Foxyflugel]

Hi Guys

Need your opinions on this please.

I received a claim form from Cabot (Citibank apparently OC).

As per usual, the POC were very very vague.

I sent them CPR 31.14 on 8/2/12. Received a reply agreeing to an extension - enclosed noa, etc etc - but no agreement.

Received nothing!!

Put in a defence saying that I cannot defend properly until agreement received blah blah - just so they didn't shaft me and get judgement by default - right to amend my defence etc.

They they sent a reply to my defence and said they will let me have the outstanding docs 'in due course'!!

Now - in the meantime there was a nagging memory that this was a matter that I approached in 09. They said they couldn't find the agreement and sent me a chq for £1 (being my return fee).

I have since located this letter and also a letter from Opus (who had the debt before Cabot) - copied to me which they sent my solicitors saying it is 'unenforceable' - then the meaning of unenforceable , but I should still make payments blah blah.

Now, my question is, how do I bat this back to them?? The deadline for aq is 18/5/12!!

There will be no agreement forthcoming as they can't find it and have admitted this!! No recon or anything.

What do I do??

I was thinking of writing to the solicitors - (and enclosing a copy of said letters - or do I keep them as my ace card at court? aq?) but I am a bit anxious as I thought this would form a major part of the case - no agreement - not enforceable - but others have said that this doesn't always work!!

I can't get my head around how they can issue a court claim without an agreement and be successful - surely this is a pivotal document?? This claim in over £5k which makes me even more anxious - costs etc.

Any advice guys?

Many thanks as always.

Foxy

[basa48]

Re: Claim from Cabot

I would simply return the AQ (completed), but in the meantime write to Cabot explaining that they have already written saying they have no agreement and that if this situation is the same now it is unlikely a claim would be successful and may well involve them in costs.

Keep it brief and do not offer a copy of the previous letter admitting no agreement. If necessary let them sue, but it will cost them.

I think you are being scammed into thinking a recon is OK for a claim. To an inexperienced debtor this may work, but for someone who can put together a half decent defence it is bound to fail.

[Guest]

Re: Claim from Cabot

Hi

I wonder if Estoppel would apply here?

Peter

[bluebottle]

Re: Claim from Cabot

Hi

I wonder if Estoppel would apply here?

Peter

It might well do, Peter. What's your view on an order to strike-out?

[Guest]

Re: Claim from Cabot

HI
I think it may be worth mentioning in a defense that the claimant is estopped, i don,t know how the court would react but there is nothing stopping the debtor from raising the point.

This is the trouble with county courts and technical defenses presented by a LIP, sometimes they just don't want to listen and there is not a lot you can do unless you appeal to a higher court.

Also

The problem is that courts can enforce(theoretically) even if an agreement is not produced. Many creditors say that they have cases where they have successively enforced in such cases.
I think that as Basa says it would depend on the debtor and his response to the creditor.

As mentioned in Wakesman the act only says that it matters that an agreement was signed, there is no requirement for one to be produced.(to satisfy section 127(3))
If the creditor can show on the balance of probabilities that an agreement would have been signed then the court will enforce.

This is why the debtor must ensure to make a positive assertion that no agreement was signed,or that there were was no prescribed terms, if he says he cant remember, or they may have been there at execution of the document, the balance of probabilities may be weighed in the direction of the claimant.

There has been cases where the creditor has produced a witness to say that prescribed terms would have been present and the court has accepted there word for it, they could do the same for a signed document.( I don't know if the court would accept this, but the possibility exists)

On the other hand there has been a resent case sere a creditor produced a witness to give such a statement and the debtor successfully suppressed their evidence by claiming hersay. However this was done by a barrister not an LIP going back to my earler point

Sorry digressing

Peter

[Foxyflugel]

Re: Claim from Cabot

Hi guys

Thanks for this.

Basa - they didn't even send me a recon - just a letter saying they can't find it. I always believed that if they did not satisfy your request for an agreement (or a recon version) they were in breach and they couldn't enforce etc until it was satisfied.

What is the general consensus then?

1.I fill in the aq and write to Cabot seperately to advise them of the letters from Citi and Opus but don't enclose copies of the letters?

or

2. Go for a strike out? If so, how do I do this - on the aq?

What is estoppel?

Thanks as always

Foxy :tinysmile_aha_t:

[basa48]

Re: Claim from Cabot

Hi guys

Thanks for this.

Basa - they didn't even send me a recon - just a letter saying they can't find it. I always believed that if they did not satisfy your request for an agreement (or a recon version) they were in breach and they couldn't enforce etc until it was satisfied.

What is the general consensus then?

1.I fill in the aq and write to Cabot seperately to advise them of the letters from Citi and Opus but don't enclose copies of the letters?

or

2. Go for a strike out? If so, how do I do this - on the aq?

What is estoppel?

Thanks as always

Foxy :tinysmile_aha_t:

My understanding is if they haven't produced even a recon then they are prevented from further legal action under s78

(6) If the creditor under an agreement fails to comply with subsection(1) (i.e. supply an agreement - even a recon) —

(a) he is not entitled, while the default continues, to enforce the agreement;

(my emphasis)

I would wait for a response to your letter and / or the aq before thinking of strike out.

Estoppel as I understand it is the civil courts equivalent of double jeopardy, where an action for essentially the same thing cannot be brought more than once. However i did think an action had to be concluded (i.e. adjudged) before it was relevant. I maybe wrong.

[Guest]

Re: Claim from Cabot

Estoppel definition

A rule of law that when person A, by act or words, gives person B reason to believe a certain set of facts upon which person B takes action, person A cannot later, to his (or her) benefit, deny those facts or say that his (or her) earlier act was imprope

[Foxyflugel]

Re: Claim from Cabot

What about sending another S78 request and negotiating an extension until this is fulfilled - and see what they come back with?? or is the fact that they couldn't find it in Nov 10 or Jan 11 a good indication that nothing will have changed?

Also, I maybe thinking too much here !! If they send me a recon and say that will have been what I signed at that time - then how can they prove that I DID actually agree to those t&cs without an original doc & signature. I don't believe I ever signed anything tbh.

Foxy

[Foxyflugel]

Re: Claim from Cabot

Just a quick update guys. After much consideration and someone being highly recommended - I have placed this in the hands of the big boys. It is a real weight off my shoulders!!

Can't wait - fingers crossed. Will keep you all posted.

Foxy

[Guest]

Re: Claim from Cabot

Not sure what this means, but i do hope you have not given any money to any CMC/solicitor.

Peter

[mystery1]

Re: Claim from Cabot

In reply to your PM on Cag, i'm not familiar with negotiating with solicitors. However as that was one with illegible docs i'd seek advice from your highly recommended big boys.

M1

[Foxyflugel]

Re: Claim from Cabot

PB - by 'big boys' I mean professionals in this field and no monies have been exchanged,

M1 - I PM'd you on CAG - why didn't you reply on there?That has no connection with LBF! Your post wasn't helpful and was quite abrupt. If you do not want to give advice then please don't - but refrain from posting sarcastic remarks - on the incorrect thread!! The illegible docs were in connection with my sisters's claim - not mine!!

[mystery1]

Re: Claim from Cabot

PB - by 'big boys' I mean professionals in this field and no monies have been exchanged,

M1 - I PM'd you on CAG - why didn't you reply on there?That has no connection with LBF! Your post wasn't helpful and was quite abrupt. If you do not want to give advice then please don't - but refrain from posting sarcastic remarks - on the incorrect thread!! The illegible docs were in connection with my sisters's claim - not mine!!

If that's how you interpret what i said you're wrong.

Good luck with all your threads.

M1

[Guest]

Re: Claim from Cabot

PB - by 'big boys' I mean professionals in this field and no monies have been exchanged,

Good to hear it, a lot of sharks out there and not all of them are creditors/dca's, just a friendly word of caution.

Peter