hahaha I wont ask how much wine

I'm sure you can imagine Eggy

The relief was immense, I cried ....

The wine was good later though

So sorry to keep you all waiting, I know you love it really !

The case was actually dismissed at the Final Hearing

Morgans/Cabot (or Cabeau as they were referred to by the usher and Judge, hence P1's ref above - I am reliably informed that it means "mutt" - that figures!) were given a very hard time by the Judge. He was obviously very much "up" on Consumer Law.

He tore into them from the very beginning about the heavily redacted "Account Supply Agreement" (Assignment) and asked where the original was. Morgans said that they may be able to find it somewhere and he said "so you don't know where it is then" and they replied that they may be able to lay their hands on it. He asked them by what law were they able to blank out so much of the document and they said that it was "Company Policy" to do that. When asked why, they said it was because there was "commercially sensitive information" on there. He wasn't pleased about that either and asked them, once again, by what law to which they admitted, there wasn't one. My name (in fact, nobody's name) appeared anywhere on the Assignment and mine was printed on a separate sheet which could have come from anywhere which he pointed out to them. There was a "Schedule" referred to in the Assignment which said that it was attached "hereto" - it wasn't. When he asked Morgans where this schedule was they said that they were sent the information on two "Data Discs" - he wasn't happy about that either as this information should've been available in document form and presented at the hearing.

He also wasn't happy that I had ever received a Notice of Assignment as they had no proof of this. Again, all they had was a photocopy of a template letter. He picked up on the fact that the OC's name was spelt incorrectly too (I'd missed that!).

He did touch on the Agreement but only briefly, just stating that one of the prescribed terms was incorrect (the repayments were out by pence) but didn't elaborate. He just kept going back to the heavily redacted Assignment.

Morgans pulled a few tricks before the hearing, the first one being a letter to me last Friday with a Claimant's Statement of Costs for £6,500 - no joke! I did have a little wobble on this as I had decided to go to the final hearing without anyone representing me. In some respects, I think that was a wise move.

When I got to the court, I was asked by the security guard if I wished to speak to the representative from Morgans and I said that I had taken legal advice and wouldn't be speaking to them. About ten minutes before the hearing was about to take place the security guard came to me and said that he had been given two documents to give to me by Morgans. They were two court cases, namely Wilson v Hurstanger (which I already knew about) and a little known Northern Irish case. I took a quick glance at the Irish one and just put it to the back of the Trial bundle.

There were no originals presented of anything, it was all photocopies.

When my claim was allocated to the SCC, this judge made Cabot amend their POCs twice. From the orders that he sent out, I could tell he was not a happy bunny. Unfortunately, at my preliminary hearing, I got a different judge who basically told me to just pay up and stop wasting the court's time.

I'm glad that it went to a final hearing and I got the original judge.

To be honest, I never got a chance to say hardly anything. All that work I'd put in swatting up! I think he had their cards marked before we got in there.

This was an eleven year old debt for a computer that never really worked right from the start. I did get ticked off by the judge for not mentioning the fact that it didn't work properly in my Defence but as it was so long ago, I wasn't sure it was relevant at the time and only brought it up at the preliminary hearing. I'd already paid half the amount to the finance company before losing my job and being unable to pay. Cabot had added at least half again in interest which was picked up on and they admitted their "error" and took the interest off, therefore halving the debt.

I did make an offer to stop it getting this far and they refused it. Bad move IMO.

So case dismissed, no costs awarded to either party. It really is "end of" so to speak. Only taken 12 months of pure stress!

I enquired about obtaining a transcript of the final hearing as to be honest, so much was said by the judge, I couldn't write it all down quick enough.

Just for info, if you require a transcript, if you ask the court, they will send you out a list of their recommended transcribers. You choose the one you want, fill in a form from the court, the court send the recording to the transcriber, they type it up and send it back to the court who get the judge to OK it, then it gets sent out to you. It's not cheap but if there are any of the CFC reading this, we could all chip in .........

I honestly think justice was done - I could've kissed that judge at the end

There are a few special people who have helped me through this. I don't need to thank them on here as I've already done that behind the scenes. You know who you are

GO BO, GO BO

Suffice to say Cabot got a hammering in court OH YEAH BABY

This is a *WON IN COURT* thread after today but for some reason, I can't seem to get to page 18

I'm a little the worse for wear but will try and post full details on Thursday night - it's been a very long day and I'm celebrating

I can indeed CAR "

WOOOOOOOOOOOOOOOOOOOOOOOOOOO HOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOOO

The Hedgey is a WIIIIIIIIIIIIIINNNNNNNNNNNNNNNNEEEEEEEEEEEEERRRRRRRRRRRRRRRRRRRRR

Nice one hun xxx

:whoo:

No updates yet P1 - hoping there will be one in the next week or so

Hi gh

The 7 days I gave them was up on Monday, they received my Part 18 by recorded delivery on 1st November and I still haven't had a reply.

I'll do the draft order as you've said thanks.

Will let you know how it goes

OMG Andrew, can't believe I missed this - talk about wooooooo hooooo

Fantastic result !!!!

So pleased for you sweetie x

I'm still awaiting a response to my last Part 18 from Morgans. My defence was due tomorrow and I can't finalise it without their reply. I've contacted the court who've said that I need to fill in an N244 and pay £40. I've downloaded the form but I'm a bit stuck as it asks whether I've attached a draft order. Do I need to do a draft order or can I simply fill in the box to ask for an extension of time to file my defence due to not receiving a response to my last Part 18 request?

TIA

Wot no Bookie??????

CAG wouldn't be CAG without Bookie would it?

I hope you re-consider Bookie. So many people benefit from your advice, it would be a shame for your to disappear altogether

Sorry gh - cleared

When was your last S78 on this account? post assignment? who was the creditor on that agreement?

 

 

 

Last CCA request was post assignment gh. The Creditor was Nova Retail Finance.

 

imho you need to blow gaping holes in their POC wherever you can that's one for starters as any response to an S79 should have the creditors name & address - well if they have bought it lock, stock & barrel then their name should appear ...

 

 

Didn't think about that - cheers!

 

Agreement headed wrongly

TCC & TAP are both wrong, but only by 4p - but they are prescribed terms

No remedies statement - esp. important considering the goods were faulty & Bo didn't realise the lender was jointly liable (seller went bust iirc)

 

Is there an 'easily legible' copy of the T&Cs yet? - if not they cannot get a judgement against (as long as you did do an S79)

 

 

No, still no T&Cs from '99 at all but I noticed on the Cabot SAR that they had requested them from Hitachi Nova.

 

Is there any term *anywhere* for them to add interest over and above the 'total amount payable' where in the agreement is the TAP variable upon breach?

 

 

I don't know as I still haven't seen T&Cs.

 

Bear in mind the APR 19.9% IS NOT a rate of interest for the agreement. It is purely a cost of borrowing indicator.

The APR would remain the same whether the 892.42 was added at the outset in one lump as a fee or whether it was added daily as interest etc.

That blows contractual interest out

 

S69 interest is not applicable on agreements where there is already an applicable interest rate.

 

 

Yes, that bit's stuck thanks.

 

A CCA by its definition has a rate of interest (even if it's 0) therefore S69 does not apply (I think it's S69(4) for the quote)

 

My thoughts so far and all jmho as always

And very valid ones too gh.

Part 18 going off tomorrow honestly !

Apologies for not posting sooner. Had a 'mare with amended POCs so I've had to type the whole lot out!

IN THE XXXXXXXXXX COUNTY COURT

CLAIM NO: XXXXXXXXX

CABOT FINANCIAL (UK) LTD – Claimant

And

XXXXX XXXXXXX – Defendant

PARTICULARS OF CLAIM

1. The Claimant is and was at all material times a purchaser of debt.

2. On XX December 1999 the Defendant entered into a written agreement (“the contract”) with Hitachi Nova (“the Assignor”). The contract is an agreement for fixed sum credit and is regulated by the Consumer Credit Act 1974 (“the Act”). A copy of the contract is attached marked ‘A’.

3. Under the terms of the contract the Assignor was to provide £X,XXX.XX as a loan to the Defendant for the purchase of a computer.

4. It was an express prescribed term of the contract that the Total Charge for Credit would be £XXX.XX. The total amount payable by the Defendant under the contract was therefore £X,XXX.XX, being the cumulative amount of the Total Charge for Credit and the Loan. The monies under the contract were duly provided on or around XXX May 2000.

5. The contract also contained an express prescribed term specifying how the Defendant would repay the total amount payable (“the repayment term”). The Defendant was to re-pay by way of 48 monthly instalments of £XX.XX.

6. The Defendant has breached the repayment term.

PARTICULARS OF BREACH

In breach of the repayment term the Defendant:

(i) Failed to pay the instalment of £XX.XX due under the contract on around around XXX May 2002.

(ii) Failed to pay any instalment due under the contract or failed to make any payment at all for the period between XXX May 2002 and XXX April 2006.

(iii) Has made only 23 payments out of the 48 payments prescribed, pursuant to the repayment term.

(iv) Has failed to pay the 25 remaining payments prescribed, pursuant to the repayment term.

(v) Has failed to pay the accrued arrears on the account.

7. As a result of the Defendant’s breach of contract, the Claimant has suffered loss, having become entitled to the claimed sum for the reasons outlined below and the Defendant having failed to remedy her breach of the repayment term.

PARTICULARS OF ENTITLEMENT

7.1 On XXX September 2003 the Assignor legally assigned all of its rights, title and interest under the contract with the Defendant, to the Claimant. The amount assigned to the Claimant was the arrears of £X,XXX.XX.

7.2 On XXX September 2003 Notice of Assignment was given to the Defendant by sending the same by ordinary post, to the Defendant by sending the same by ordinary post, to the Defendant’s last known address namely XXXXXXXXXXXXXXXXXXXXXXXXXXXX

7.3 The Claimant has applied interest to the Defendant’s account at a rate of 12% per annum. Having acquired rights, title and interest under the contract the Claimant was entitled to apply the contractual rate of interest which is higher. The total amount of interest applied by the Claimant is £X,XXX.XX.

7.4 Since assignment the Defendant has failed to remedy her breach of the repayment term. The Defendant has made a total payment of £XXX.XX to the Claimant. The Claimant has received no payment from the Defendant since XXXX September 2007.

7.5 For the foregoing reasons the Claimant is entitled to the sum of £X,XXX.XX , being the arrears and interest due in relation to the Defendant’s account.

AND the Claimant claims:

(i) £X,XXX.XX being the outstanding monies due,

(ii) Interest under Section 69 of the County Courts Act 1964 in the sum of £XX.XX to the date hereof and thereafter accruing at £X.XX per day until Judgment.

(iii) Costs.

STATEMENT OF TRUTH

I believe the fact stated in this Particulars of Claim are true and I am duly authorised to sign this statement of truth.

Signed:

Name: XXX XXXXXXXX

Position: Litigation Associate

Dated: XXXX October 2010

They've attached the Agreement and all the paperwork they provided me with so far.

I've rung the court today and have been told that the Judge is preparing an order for me to submit an amended Defence within two weeks.

Sorry will have to come back to you all tomorrow - just had yet more bad news on the personal front...

Originally Posted by gh2008

Interesting they only quote costs of £1k IMHO they are trying to cap YOUR costs to 2/3 of theirs when they lose

The 'normal' costs to this point would be over £3k with £3k the quote for going to the hearing

 

@BO I would seriously consider a Part18 request to clarify the current status of the account.

If it is terminated then when and by whom was it terminated

and if it has not been terminated then who is the current creditor as you wish to see a copy of the current agreement together with all T&Cs.

My thoughts still stand re a Part18 request ....

 

The account is either

still live - in which case who is the creditor

terminated - in which case when & by whom & where is the DN.

 

If they reply saying it has 'ended', then there are no arrears, as arrears by their definition are only on an active account .... (you can have 'arrears at termination' but not arrears on a terminated account)

Yes, totally agree gh, Part 18 request in the pipeline ;-)

But the DJ has requested the DN in his/her Order

 

Hadituptohere

He did! But they've sent everything they've got to the court including amended POCs. Still no T&Cs though. It will depend on what he thinks of their reply I suppose. They haven't complied with the order though...

I take it this was for a loan then? I assume that they are claiming no default notice is needed if the loan agreement has come to an end and they are asking for the whole amount which is now classed as arrears... it shouldnt be allowable tho if this was a rolling credit agreement such as a credit card/store card.

 

S.

Yes it was a credit/finance agreement. They make no mention of the DN in the POCs though, they just state that it was not a legal requirement to provide a DN on their covering letter.

Thanks Pabrmu

Lots to update Caggers on.

I've received my SAR back from Cabot on disc (just on the 40 days!). Not gone through it with a fine toothcomb yet but I notice on my account history, a request to Hitachi for the T&Cs. Will have a good read through it.

Also received SAR back from Hitachi - very thin on the paperwork. Something else to go through.

But the biggie is that Morgans/Cabot have now submitted full POCs to the court within the time allowed. They state on their covering letter that there was no legal requirement to serve a Default Notice.

Where to go from here?

Hmmmmm! It don't work like that ... we be doing pasties in our lunch break. We were discussing a Pasty Eden fest for next summer ... that could include a weekend ...

Count me in wooooo

indeed.

 

our last Pasty Eden outing was truly great.... and such a long time ago...

It can be re-lived 8)

I could murder a pasty right now - any chance you could make it a weekend then I could come down and sample a "real" pasty?

We need to take one step at a time, here, though, as there's no guarantee that the Judge issuing that Order will be the Judge to hear the claim.

 

Sorry to p on your bonfire, but someone needed to say it before we all get a little too excited.

 

Now, if you do get that Judge, I'd like to be a fly on the wall, please...

Car you can pee on my parade love, the amount of personal crap I have going on at the moment, nothing would surprise me now. As I said, I don't count chickens.....

If I get that judge, you will be there never mind the fly. I'll get you a pint afterwards

BO, this is excellent news, well done.

Just shows the DJ lottery up again though, we had similar POC, AQ etc etc, and I have a date for mine, hopefully sense will prevail in the end for both if us.

Well done again, this is a good move!

DC.

Thanks DC. I may have got lucky, you never know. I really need to read your thread. Hope that it works out for you though

Hi

 

Glad you have won with the DJ lottery, l didn't win but l feel happy every time that someone else does,,

 

Cups

Not necessarily cups but hey, maybe I got lucky for once in my life. Sorry that you didn't win yours. I may have read your thread, can't remember now I've read so many. Will put it on my "to do" list which is never ending LOL

Please send your DJ to my court!!!!

Hey girl I know where he is and if I could send him I would. We need more DJs like him I think! Perhaps I am in the wrong job

Thanks guys, think you have the judge to thank for that one - obviously done his homework 8-)

Not counting chickens but may just put the Part 18 off for a while !!

Sorry I'm PMSL here and it's only just gone 6am - where on earth did you get that Avatar Car - love it

Thanks Haditup, it's going to be a long two weeks methinks.....