County Court Claim

[stupot59]

Thanks for the reply Car2403...Perhaps I am guilty of not asking a direct question, but I would certainly appreciate comments/suggestions from any other CAG member who has more experience in these matters than I do....I do not wish to push ahead in my own merry way, only to come a cropper over something that I could have addressed at an earlier stage...

 

I am interested in receiving opinions about the documents provided by the claimant and his solicitors and whether or not other caggers feel my case is strong or weak.

 

Remember it is not a question of the debt's existence..The issue is whether or not Cabot have the right to pursue it. Did they act lawfully and correctly in :

1. Not ensuring a Notice of Default was served on me by the OC

2. Not providing a Notice of Assignment at the alleged point of re-assignment.

3. Providing "representation" copies of Notices of Assignment from OC and themselves, long after the point when they should have been provided.

4. Providing an alleged Deed of Assignment which could be applied to anybody, owing to its lack of specifics and which date is inconsistent with a letter I have from the OC agreeing to a repayment plan with myself.

 

Thanks for all replies..Oh I nearly forgot...here is a question mark...?

 

stupot59

[car2403]

Thanks for the reply Car2403...Perhaps I am guilty of not asking a direct question, but I would certainly appreciate comments/suggestions from any other CAG member who has more experience in these matters than I do....I do not wish to push ahead in my own merry way, only to come a cropper over something that I could have addressed at an earlier stage...

 

My point is, if you were getting it very wrong, someone would have noticed and told you.

 

I am interested in receiving opinions about the documents provided by the claimant and his solicitors and whether or not other caggers feel my case is strong or weak.

 

Remember it is not a question of the debt's existence..The issue is whether or not Cabot have the right to pursue it. Did they act lawfully and correctly in :

1. Not ensuring a Notice of Default was served on me by the OC

2. Not providing a Notice of Assignment at the alleged point of re-assignment.

3. Providing "representation" copies of Notices of Assignment from OC and themselves, long after the point when they should have been provided.

4. Providing an alleged Deed of Assignment which could be applied to anybody, owing to its lack of specifics and which date is inconsistent with a letter I have from the OC agreeing to a repayment plan with myself.

 

Well, for me, if the debt isn't in dispute, but the legality of the claim brought is in question, it's a one for you to decide, sadly. If it were me, I'd be looking to resolve it with either a full and final settlement for a %-age of the debt, (if I could afford it) or the same in installments that I can afford. (If I couldn't afford the F&F)

 

Yes, assignment is an important issue for the Court claim, but unless you can convince the Judge that it's fatal - which it is, but it's the Judge you have to convince - it doesn't mean the debt is owed. What happens if they return it to the OC, then the OC goes ahead and sues? (Unlikely, but not impossible)

 

Thanks for all replies..Oh I nearly forgot...here is a question mark...?

 

stupot59

 

Ah, there you go, you see, a question. Hope this answers it for you?

[stupot59]

Today I received the Allocation Questionaire document from my local court so it appears the claimant wishes to proceed, despite my last letter to their solicitors, within which I gave them the opportunity to discuss mediation.

 

Can somebody please assist me with this ? I do not want to lose the case on a technicality because I have not followed the rules properly.

 

Now that the other side have produced very flimsy documents in my view, in response to my "embarrassed" defence, what is my course of action in submitting an amended defence ?

 

To recap :

 

I had a repayment agreement in writing from the OC to which I was obeying to the letter. In the midst of this period of agreement I received the 1st letter from Cabot "thanking me for my payment" and instructing me to "contact them to discuss a repayment plan."

 

There was no Default Notice served by the OC.....No Notice of Assignment from either the OC or the DCA.

 

Cabot were served with a CCA request and after much squirming produced a questionable photo copy of an "agreement" which the so-called Prescribed Terms appear to have been added, and which does not carry the signature of any officicial from the OC.

 

Cabot sent me two "Representations" of Assignment Notice letters from themselves and the OC...Both were dated current to the despatch, i.e. not when they should have been sent, many months prior. Both, in my view, look like copy and paste efforts, hastily put together.

 

There seems little doubt in my mind that Cabot are fully aware that they are on stoney ground with this one and have put together spurious documentation in support of their claim.

 

However, as mentioned in prior posts, I do not deny a debt exists, only the claimant's right to pursue it. It would prove a sad turn of events indeed if DCAs such as Cabot could get away with such a poor and questionable standard of business practice..This is the main reason for my defending this claim.

 

Who thinks I should settle ?

 

Stupot59

[stupot59]

Any responses from you leagal eagles out there ?

[stupot59]

Also..if I agree to use the Court's mediation service does it count as a CCJ if I end up having to concede?

 

AND....if I use the mediation service, do I still have to pay the £35 fee ??

 

Come on guys....I know you're out there....I can hear you breathing !

 

Stupot59

[car2403]

Today I received the Allocation Questionaire document from my local court so it appears the claimant wishes to proceed, despite my last letter to their solicitors, within which I gave them the opportunity to discuss mediation.

 

This is to be expected. They will need concede this case, IMHO, as they always have the option to win the Judge lottery and get Judgment despite your defence as a result.

 

Can somebody please assist me with this ? I do not want to lose the case on a technicality because I have not followed the rules properly.

 

Now that the other side have produced very flimsy documents in my view, in response to my "embarrassed" defence, what is my course of action in submitting an amended defence ?

 

You will need to amend your defence if you submitted the embarrassed defence and they have now provided documentation in response. If you don't, your defence may be struck out as not meeting the claim, now the documentation is there to support it.

 

To recap :

 

I had a repayment agreement in writing from the OC to which I was obeying to the letter. In the midst of this period of agreement I received the 1st letter from Cabot "thanking me for my payment" and instructing me to "contact them to discuss a repayment plan."

 

Have you continued with this payment arrangement? The issue being is that it's their perogative to accept the arrangement, or not. A Judge may consider them unreasonable to have accepted it, then change their minds and start trying to collect the whole amount, but ultimately, the whole amount is owed, legally, so that's more of a moral argument. He may well order Judgment against you, but award costs against the other side, as that is the case, then, to compensate you. This doesn't stop the debt being enforced.

 

There was no Default Notice served by the OC.....No Notice of Assignment from either the OC or the DCA.

 

These issues are both fatal to their case. If the Judge lottery doesn't work in your favour, they will likely be overlooked as technicalities. You need to prepare arguments, included in your defence, to counter that possibility.

 

Unfortunately, these things probably don't effect the enforceability of the debt, as the Judge will probably allow them time to send a NOD and start over again, staying the claim.

 

Cabot were served with a CCA request and after much squirming produced a questionable photo copy of an "agreement" which the so-called Prescribed Terms appear to have been added, and which does not carry the signature of any officicial from the OC.

 

Their missing signature isn't fatal, as s.127(3) doesn't require a creditor signature. I'd put this issue out of your head, then, as it does you no favours.

 

Is there some proof that the agreement was originally flawed and has since changed? Do you have a copy of the original, for example?

 

Cabot sent me two "Representations" of Assignment Notice letters from themselves and the OC...Both were dated current to the despatch, i.e. not when they should have been sent, many months prior. Both, in my view, look like copy and paste efforts, hastily put together.

 

I've discussed the NOA issues above.

 

You need proof of these allegations if they are to be of use to you, I'm afraid.

 

There seems little doubt in my mind that Cabot are fully aware that they are on stoney ground with this one and have put together spurious documentation in support of their claim.

 

Again, where's the proof, exactly?

 

However, as mentioned in prior posts, I do not deny a debt exists, only the claimant's right to pursue it. It would prove a sad turn of events indeed if DCAs such as Cabot could get away with such a poor and questionable standard of business practice..This is the main reason for my defending this claim.

 

Good, but don't use the "I admit the debt, but defend the claim" speech in Court, or you will lose. If you admit the debt, there is no defence. If you have a defence, there is no claim. You need to decide your stance, whether you can argue your case sufficiently successfully to convince a Judge and whether you have the balls to take this on.

 

Who thinks I should settle ?

 

Stupot59

 

See above

 

Also..if I agree to use the Court's mediation service does it count as a CCJ if I end up having to concede?

 

No, but the outcome of the mediation may well be a consent order, which could say that Judgment is given in the form of a CCJ or not - usually, as an incentive to settle, they will agree to a payment scheme and if you miss a payment, they will seek Judgment forthwith. Usually. That's IF mediation works.

 

AND....if I use the mediation service, do I still have to pay the £35 fee ??

 

Which £35 fee? Is that the AQ fee? If so, the Claimant pays the AQ fee, not the Defendant - there is no fee for a Defendant to submit an AQ.

 

If you go for mediation, the Claim will still likely need to be allocated, so the fee will be payable - just not by you.

 

Come on guys....I know you're out there....I can hear you breathing !

 

Stupot59

 

Indeed. Panting, actually, after catching up with the thread and answering many questions. I hope this helps. I realise some of it might not be what you want to hear, some of it may even be a shock to you at this stage, but I always think these things need saying now and again to keep folk grounded. Without someone pointing out the pitfalls, you (and only you can!) can't make a fully informed decision as to how to proceed.

 

Will be around this weekend, hopefully, to assist further, if you need it.

 

In the meantime, I suggest you revisit this whole thread, the advice given to date, and take stock of your situation.

 

[stupot59]

Many thanks for all of your helpful information car2403...

 

With regard to proof of a spurious CCA, I have none !...only my suspicions and gut feeling that if the DCA is willing to botch together assignment notice letters, it's more than likely that they will do the same with an agreement in order to make it look enforceable. On the copied agreement itself, it has been pointed out to me already in this thread that some text alignments look wrong. I do not have a copy of the original agreement, regrettably, but do recall that it was a single page. Being from the Finance Industry myself, it is unlikely indeed for me to have signed a document where the so-called "Prescribed Terms" followed after the signature and on to another page... my point being that signature boxes usually follow the T's & C's ...not precede them....or am I wrong ?

 

Re Notice of assignment letters....The only proof I can offer would be that the documents provided are not orginals and bear dates long after the point where they would have normally been sent to me. I repeat that the DCA's solicitors have stated that these "representation" letters have been produced because the originals are "stored electronically."

.....I find that arguement a bit thin for a debt that is current and not really that old !

 

Of course I cannot prove that I did not receive originals, but all correspondence between myself and the OC plus the DCA is on file and follows in sequence. I have requested via a SAR to the OC all docs. held about me but so far have only received back copies of monthly statements, no CCA, no Default Notice, no Notice of Assignment.

 

However, bearing in mind that I acknowledge the debt to Goldfish and not Cabot, but my chances of winning the case look like nothing better than 60/40 against me, based on your info, I have decided to tick the Court Mediation Box and see where we go from there.

 

I may need some help sorting out what I may be expected to repay as I am on a low income and repaying other debts.

 

Assuming the DCA and I agree a repayment program through mediation, can I logically expect to have any adverse information about this debt to be removed from my credit history ?

 

stupot59

[car2403]

With regard to proof of a spurious CCA, I have none !...only my suspicions and gut feeling that if the DCA is willing to botch together assignment notice letters, it's more than likely that they will do the same with an agreement in order to make it look enforceable. On the copied agreement itself, it has been pointed out to me already in this thread that some text alignments look wrong. I do not have a copy of the original agreement, regrettably, but do recall that it was a single page. Being from the Finance Industry myself, it is unlikely indeed for me to have signed a document where the so-called "Prescribed Terms" followed after the signature and on to another page... my point being that signature boxes usually follow the T's & C's ...not precede them....or am I wrong ?

 

I'm sure I can't answer these issues without physically seeing the paperwork.

 

The Judge will hear both sides and make a decision - if you can convince him you are right on the balance of probabilities, it's then up to the other side to argue their case and the Judge decides in the end.

 

Re Notice of assignment letters....The only proof I can offer would be that the documents provided are not orginals and bear dates long after the point where they would have normally been sent to me. I repeat that the DCA's solicitors have stated that these "representation" letters have been produced because the originals are "stored electronically."

.....I find that arguement a bit thin for a debt that is current and not really that old !

 

Yes, I think that's fair enough argument.

 

Of course I cannot prove that I did not receive originals, but all correspondence between myself and the OC plus the DCA is on file and follows in sequence. I have requested via a SAR to the OC all docs. held about me but so far have only received back copies of monthly statements, no CCA, no Default Notice, no Notice of Assignment.

 

Correct - can't prove a negative. You have to focus on their duty to supply you with one, in the main, and the fact what you've received doesn't meet that duty.

 

However, bearing in mind that I acknowledge the debt to Goldfish and not Cabot, but my chances of winning the case look like nothing better than 60/40 against me, based on your info, I have decided to tick the Court Mediation Box and see where we go from there.

 

Fair do's. If you go to Mediation, the claim will still continue, you (or they, more accurately) will have to inform the Court if it's settled.

 

I may need some help sorting out what I may be expected to repay as I am on a low income and repaying other debts.

 

There are some financial income and expenses spreadsheets in the library. I'd suggest you complete them as accurately as possible, the offer some of the residual income on a F&F settlement basis, by installments. Ultimately, getting to agree to settle is more important than how you repay the debt if they do agree, so maybe a without prejudice save as to costs letter is in order outlining your interest in settling and asking them to confirm which terms they would consider appropriate in the circumstances. You can then either agree with the amount, but offer installments, or forget about the option of settling. Getting the negotiation going should be the goal, there.

 

Assuming the DCA and I agree a repayment program through mediation, can I logically expect to have any adverse information about this debt to be removed from my credit history ?

 

Unlikely - you can add that in to the discussions, but they will hit you over the head with it again and again rather the capitulating.

[stupot59]

Thanks again !

 

Last question before I send off the AQ back to court :

 

If I tick the Mediation box is it still advisable to write a summary of details in the Other Information section, concerning the claimants production of the questionable documents after my embarassed defence was submitted? Or should I just leave that section blank ?

 

Thanks again car2403

 

stupot59

[car2403]

Re-read my post above - I think you need to amend your defence? In which case you need to ask for permission of the Court to do so, as part of the AQ.

[stupot59]

Okay, I will request the Court to allow me to submit an amended defence and write that in the Other Information section of the AQ form.

 

Thanks again,

[stupot59]

I have today received a copy of the claimant's AQ from their solicitor. Should I be reacting to this in any way ?

 

I note that in the Settlement Section they have ticked boxes stating that they wish to settle, but are not willing to use the court to arrange a mediation appointment. Their reasons are "We will endeavour to give advance disclosure, thereafter mediation may be considered appropriate."

What does this mean?

 

In the costs section they have placed a reasonable figure in "Costs to date" but the "Estimate of overall costs likely to be" they place a figure of over £1000....Am I able to dispute this or do anything about this somewhat inflated number? If mediation takes place is the claimant still justified in claiming costs ?

 

Incidentally, I have not heard back from the court yet, with regard to permitting me to submit an amended defence...But I guess the Christmas Hols and cold weather may have had an impact on this.

 

Thanks,

 

stupot59

[stupot59]

Anybody out there ?

 

Meanwhile, happy new year to all....let's hear it for the 2nd decade of the 2000's !!.....Blimey, where did that last 10 years go ???

 

stupot59

[stupot59]

Can somebody give me some help with regard the latest document received from the claimants solicitors ??

 

When these things drift like this I am always thinking that I am not doing what I should with regard to responding to correspondence.

 

I have not heard back from the court with regard to the mediation issue and I'm getting a bit concerned that owing to my inactivity the next will be something dramatic falling through my letterbox.

 

Thanks

[car2403]

The latest document being the Claimant's AQ? If so, there's nothing you need to do - both parties submit AQ's, the Court considers them and issues directions. Here, you've asked for one thing, they are asking for another, but the Court is yet to order anything, so just sit tight until you hear from the Court with some Directions, etc.

 

If they've asked for a stay to settle, it's standard to have a 1 month stay to allow the parties to attempt settlement negotiations, but then the claim will progress normally after that period if no party has notified the Court of a settlement. In which case, you should be allowed to amend your statement of case after the stay expires and the Court will tell you what you need to do by when.

 

HTH.

[stupot59]

Thanks for that car2403..

 

What is your opinion about the claimant's solicitors estimated legal costs ?

I'm not keen on another £1000 being added to the original sum....I would be looking to be going for a reduced F&F which I can repay over time, as I am on a low income.

 

Happy New year to you...Hope you are not suffering too much from the snow and ice.

 

stupot59

[car2403]

Snow? Snow? SNOW?!... Been snowed in for 3 days, so don't get me started on snow...

 

Anyhoo, standard scare tactics to try to throw you off the scent and have you discontinue. Seems to have worked?

 

If you are looking to settle, I would do it ASAP, however, as these costs may be awarded against you if the Court thinks you've behave unreasonably. (Not likely, IMHO)

[stupot59]

I wrote to the claimant's solicitors in early Feb, pointing out the absence of a Default Notice from the original lender, plus the absence of any notice of assignment from either OL or DCA at time of the alleged assignment.

 

I offered a scenario in my letter which supposed a debtor in a similar situation as myself being invited by the claimant to acknowledge the debt on the basis of a reduced sum, which can be afforded from the debtors monthly income. The reply I have received is this :

Quote:

 

We refer to your letter dated 8th February 2010.

Concerning default notices. The claimant accepts that Goldfish did not send to you a default notice. Your account was assigned to the claimant pre-default. Under term 19.1 of the terms and conditions of your agreement with Goldfish, you agreed that Goldfish could transfer the agreement ir any of their rights and/or responsibilities under it to any company, firm or other person at any time.

You will note that the nature of Goldfish's right to assign your account to the claimant was unqualified and they were certainly not precluded, either contractually or statutorily, from assigning your account before sending you a default notice.

Concerning notice of assignment the Claimant submits that you were indeed sent Notice of Assignment on 26th March 2008. The claimant has produced proof thereof and itis contended is that the proof provided suffices to prove their claim on the balance of probabilities.

If you wish to consider your position please kindly let us have, in writing, your proposals for settlement of this matter.

If you do not wish to make any offers, the matter will proceed to trial.

Yours faithfully,

.....

Unquote..

 

Of course, the terms and conditions referred to in paragraph 1 are those included in the bodged together alleged CCA which was sent to me as part of the claimant's case. Notwithstanding this so-called clause in the "agreement" is there any legal compulsion for the original creditor to send the debtor a Default Notice prior to assigning a debt to another party ?

 

I am prepared to negotiate a settlement with the claimant but if I have valid points to make which will assist with this negotiation I wish to be sure of my facts.

 

Thanks..

 

stupot59

[IdaInFife]

There is no need for a default notice before passing to a third party, a default notice is required to:

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.