Court Papers arrived - DebtControl V Cabot/MSDW

[Debtcontrol]

Hello,

 

Long time since I have been on here, due to personal circumstances etc. To tell the truth thanks to the excellent advice I have received on here from so many, DCA have stopped hassling me almost entirely and I have been living my life!

Got home from working away yesterday however and had Court Papers waiting for me from Morgan Stanley Dean Witter / Cabot re a CC I had with them in 2000-2003. Quite a shock, but given the advice already received, I can't understand why they have done it really.

Heres a link to the original post when I first stopped paying the DCA and wrote to them - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/205931-debtcontrol-msdw-cabot.html

 

Got a few questions now for all the excellent people on here....

 

1. Can anyone give me advice on completing the Claim Form please?

2. Why would they pursue this in the courts when all I have ever received is a copy of my application that doesn't satisfy the requirements? Or am I misguided here?

3. What do I need to consider in my response to the Claim Form?

4. Given your experience, what's the best course of action here?

 

I have copies of the original letter sent to Cabot, their replies and the following:

Reply on 22/07 stating that a copy of my CCA was enclosed

Copy of Application form that is ineligible (no interest rate, no prescribed terms etc).

Mail Merge copies of supposedly 'True Representations' of docs sent to me in the past re Notice of Assignment, isn't even addressed to me.

 

I have attached what I believe to the the relevant docs to this post, if anyone needs any-more info, please ask.

Includes the last letter I sent to them on the advice of Clemma.

 

Any help / advice would be most grateful, I have no issues with taking this the whole way, which seems inevitable now, just would like a bit of help and a little guide if at all possible - this stage is brand new to me, plus an opinion on my chances here would be great.

 

Thanks for reading!

MSDW CABOT CCA responses 220709.pdf

MSDW Application Form response 140809.pdf

MSDW Cabot reply to their app form response 200809.pdf

[Huff&Puff]

When was the last payment or written acknowledgement made? Because it could well be stat barred as well as them having an unenforceable agreement.

 

I don't understand why crackpots pursue these cases either, surely they have others that stand more chance of success? Anyway, get the defence in straight away that you will defend all. Then you want to send a CPR request. Have a read of this thread:

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/159445-getting-them-reveal-their.html

[debt4get]

make sure you acknowledge receipt of court papers and that you are going to enter a defence....

[Debtcontrol]

Hello,

 

Huff&Puff & Debt4get - thank you both so much for replying.

 

Unfortunately, before I found this site I was paying repayments to Cabot for around a year, so its not Statute Barred.

 

I have found another letter from them that may be relevant, so I have attached it here.

 

I guess my next steps are:

 

1. Acknowledge receipt online

2. State I am entering a defence

3. Send off the letter to Cabot re CPR as per Huff&Puff's advice / thread link.

 

Next question - do I choose the option to defend all or defend all with a counter claim?

 

Many thanks to all for reading; Any assistance most welcome.

msdw response 180909.pdf

[debt4get]

defend all...

[Debtcontrol]

defend all...

 

Thanks....

 

I notice on Moneyclaim.gov that you can ask for 28 days to defend, any advantage in this? Date of issue was 1st March 2010.

[debt4get]

depends..if you want more time to get your ducks in order so to speak...just make sure that you have acknowledged and said you intend to defend...i also suggest you start having a look at the cabot threads especially the court case ones...there seems to be no rhyme or reason which cases cabot actually take to court will try to find link for you otherwise just put it into search engine at top of page

[Debtcontrol]

depends..if you want more time to get your ducks in order so to speak...just make sure that you have acknowledged and said you intend to defend...i also suggest you start having a look at the cabot threads especially the court case ones...there seems to be no rhyme or reason which cases cabot actually take to court will try to find link for you otherwise just put it into search engine at top of page

 

OK, will ask for more time, brand new to this.

 

Thanks for the advice again - reading through the forums now, interesting reading.

[ScabHunter]

Hi,

 

I've been asked to look in on this one because it involves Cabot. So far, the advice which has been given is exactly right, but make sure you word the CPR 31.14 letter correctly. Cabot POCs tend to be incredibly vague, and CPR 31.14 only allows you to request sight of a document mentioned in the statement of case.

 

Try if you can to formulate your own defence, as you are the one who will have to argue its points in court. Read threads and try to find the answers yourself because it will put you in a better position, but if you have any questions please ask away. I will get email notifications whenever anyone posts to this thread.

 

SH

[Debtcontrol]

Hi,

 

I've been asked to look in on this one because it involves Cabot. So far, the advice which has been given is exactly right, but make sure you word the CPR 31.14 letter correctly. Cabot POCs tend to be incredibly vague, and CPR 31.14 only allows you to request sight of a document mentioned in the statement of case.

 

Try if you can to formulate your own defence, as you are the one who will have to argue its points in court. Read threads and try to find the answers yourself because it will put you in a better position, but if you have any questions please ask away. I will get email notifications whenever anyone posts to this thread.

 

SH

 

Hello, thanks for replying and welcome!

 

The POC is as follows:

The claimant is the Assignee of a Debt(s) from Morgan Stanley Credit Card Reference xxxxxxxx.

Notice of Assignment having been given to the Defendant in writing. Despite demand for payment 50xx remains due. The claimant claims 53xx and interest under s.69 County Courts Act 1984 and costs.

 

I have found a CPR31.14 template here - http://www.consumeractiongroup.co.uk/forum/legal-issues/245042-northampton-conty-court-la.html

 

I have so far got the following into a letter, plan to send this + CPR 18 request off RD tomorrow unless you can advise otherwise?

 

CPR 31.14 Request

On 1st March 2010, I received the Claim Form in this case issued by you out of the Northampton county court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of the documents mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version to include an obligation to recover and preserve such version which is now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

 

Yours sincerely

[debt4get]

yep looks fine make sure you send it rec. delivery and keep all paperwork

[Debtcontrol]

yep looks fine make sure you send it rec. delivery and keep all paperwork

 

Hello, both going Rec Del tomorrow.

 

Last question(s) for tonight

Do I have to do anything re letting the court now I have requested these at this time, or do I just send them to Cabot and wait and see?

I have acknowledged the claim online, so I have until 15th March 2010 to submit my defence I assume - if nothing arrives from them before then do I just submit an embarrased defence? Whats the likely next step from that, or is that getting ahead of myself?

 

Thanks again for taking the time to read, means a lot.

[debt4get]

nope just send the letter..are cabot using a solicitor? if nothing arrives then you are quite correct you enter an embarrassed defence

[Debtcontrol]

nope just send the letter..are cabot using a solicitor? if nothing arrives then you are quite correct you enter an embarrassed defence

 

I think they are, the address on the claim form is Morgan Solicitors, 5 Mitchell Court Way.

Should I send both requests to them I assume?

[ScabHunter]

The CPR 31.14 letter you have printed here requests sight of the agreement but not the notice of assignment. You can include that as well as it is mentioned in the statement of case.

 

SH

[debt4get]

Dear Sir,

 

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

 

On (date) I received the Claim Form in this case issued by you out of the (Name) county court.

 

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

 

[Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored][delete if no such request was delivered]

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

 

2 the assignment*

 

 

3 the default notice*

 

 

4 the termination notice*

 

 

5 [any other documents mentioned in the Particulars of Claim]*

 

 

 

[Although your claim is for a sum which is not more than £5,000.00 and will in all likelihood be allocated to the small claims track for determination upon my delivering a defence, at this moment in time I have not delivered my defence and the case has not been allocated to a track. In consequence the provisions of CPR 27(2) are of no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise]#

 

 

# delete if claim for a sum exceeding £5,000.00

 

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

 

I do hope this will not be necessary and look forward to hearing from you.

 

 

[Debtcontrol]

Folks, many thanks. Will revise letter now and send both CPR 18 & 34 requests to Morgans Solicitors by Rec Del first thing tomorrow.

[Debtcontrol]

Hello, couple of questions. I have acknowledged my claim online, it states to use that service if you would like 28 days to defend, However I can see no confirmation of this so unsure if my defence has to be in for 15th March? If it hasn't done it, does anyone know how to check and extend it, I can't see anyplace. Failing that, I have until 15/03 to defend, does this mean close of play on the 15th or 14th. Lastly, If I have to put in a defence online for the 15th, I have had no replies to the 2 CPR requests I sent off, so can anyone help me with an embarassed defence?

Just dont want to fall foul of anything here on a technicality.

In summary, I need assistance with the following please:

 

1 the actual last point you can submit a defence. My date of service is 1st March, so is it 15th March - by then or by the end of the day

 

2 How can you check that you have requested an extension to defend successfully?

 

3 Can anyone assist with an embarrassed defence for 15th March please.

Many thanks.

[cymruambyth]

An embarrassed defence.

I think it automatically goes to 28 days + for AOS, total of 33 days.

This embarrassed defnce can be submitted online as it is less than 8000 characters.

1. I, XXXX of XXXXX make this statement as my defence to the claim brought by XXXXX.

 

2. The claimant’s particulars of claim are vague and fail to disclose any cause of action; they appear to be an abuse of the process in that they fail to deal with the basic rules of pleading in accordance with the CPR, even allowing for the constraints of the bulk issue system.

 

3. No documents supporting the claims in the particulars have been offered and despite two requests to the claimant for further information via CPR 31.14 dated XXX 2009 and XXXX 2009, both sent by recorded delivery, none has been forthcoming and as a result I cannot plead in defence to the claim.

 

4. Without clarification of the claimant’s claim, the defendant is extremely disadvantaged and as the claimant’s claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

 

5. Further to the above 4 paragraphs, the defendant is unable to plead effectively or at all. The defendant is embarrassed.

 

Statement of truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

Signed:

XXXX

XXXX 2009

[debt4get]

In the Northampton County Court

Claim number xxxxxxxxx

 

 

Between

 

xxxxxxxx- Claimant

and

xxxxxxxxxxxxxxxx- Defendant

 

Defence

 

1. I xxxxxxxxxxxx of xxxxxxxxxxxxxxxxxx am the defendant in this action and make the following statement as my defence to the claim made by xxxxxxx

 

2. Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants Particulars of Claim and put the claimant to strict proof thereof.

 

3. The Defendant is embarrassed in pleading to the Particulars of Claim as it stands at present, inter alia: -

 

4. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16. In this regard I wish to draw the courts attention to the following matters;

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or proceeding the alleged cause of action. No particulars are offered in relation to the nature of the written agreement referred to, the method the claimant calculated any outstanding sums due, or any default notices issued or any other matters necessary to substantiate the claimant's claim.

 

b) A copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has not been served attached to the claim form.

 

c) A copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged account, has not been served attached to the claim form.

 

d) ) It is denied that any notice of assignment was served by either the claimant or the original creditor and I put the claimant to strict proof thereof

The Claimant has failed to comply with section 136(1) of the Law of Property Act 1925, by furnishing a Notice of Assignment in respect of that which is denied that is inaccurate, W.F.Harrison and Co Ltd v Burke [1956].

The defendant requires sight of the deed of assignment of the debt. In addition the defendant requires proof of service of the Notice of Assignment in accordance with s196 of the Law of Property Act 1925 which is required to give the claimant a legitimate right of action in their own name since it appears this is an assigned debt. the reason the defendant requests this information is inter alia to clarify the dates are correctly stated on all documents , the defendant notes that if there are errors in the assignment it may be rendered in effectual in law per W F Harrison and Co Ltd v Burke and another - [1956] 2 All ER 169

 

5. Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the claimant has a valid claim against the defendant.

Consequently, it is proving difficult to plead to the particulars as matters stand.

 

 

 

hope this helps can add if need be..

as to date of service you would be better getting it in on the day before...

the only way i suppose you could check is by ringing to see if extension to defend has been accepted

 

[debt4get]

there we go bit like buses if you wait long enough a couple turn up

[Debtcontrol]

Hello, thank you so much for the help; it's so appreciated, really is.

I will submit thus defence tomorrow then, the 14th. If the documents I have requested turn up next week, can I then change my defence? Sorry if that's a daft question, I am researching this as much as I can but I can't find anything on changing online submissions. Thanks again.

[Debtcontrol]

there we go bit like buses if you wait long enough a couple turn up

 

Ha ha, yes; all much appreciated though

[cymruambyth]

THis sentence in my version covers that unlikely event.

4. Without clarification of the claimant’s claim, the defendant is extremely disadvantaged and as the claimant’s claim appears without merit, the defendant asks to be allowed to submit a fully particularised defence should the claimant provide copies of the original documents he will rely upon.

[Debtcontrol]

Hello, thanks for the reply, putting together my defence now.

 

I have read the user guide on the MoneyClaim website, and it states:

 

Defendant User Guide

 

Acknowledgment of ServiceAcknowledgment of Service

 

Responses should be filed within 14 days of service of the claim. However, if you need more time than this, filing an Acknowledgement of Service extends this total time for filing a response to 28 days from the date of service.

If you wish to file an Acknowledgement of Service, you should do so within 14 days of service of the claim form otherwise judgment may be entered against you. You may still be able to file an Acknowledgement of Service between 14 and 28 days from the date of service, if judgment has not already been entered against you, within this period.

 

I have filed an acknowledgement of service on 9th March, that's confirmed in my case particulars on the website. Copy from site -

Claim status

A claim was issued against you on 1 March 2010.

Your Acknowledgment of Service was received by the Court and processed on 9 March 2010.

 

Therefore I now have until 29th March to file my defence.

 

My question is now - should I wait to the day before until submitting a defence? I guess I wouldn't submit an embarrassed defence now as the documentation I have requested may turn up before 29th March?

 

Think I know the answer, just looking for a 2nd opinion really.

 

Thanks a lot for reading.