Cabot/Restons Claimform - old Halifax Current account OD debt

[skanker]

i intend to take the advice given on here 100% i just needed more info on it as i have no experience of solicitors at all.

 

I certainly have no intention of signing it thats for sure tho i should have just fired off a page of scribbles with my original letter!

[mikeymack2002]

They are talking about this I think This request is made within the provisions contained in s34 (6) of the Data Protection Act a SAR needs to be signed. You can add security features to your signature. Here is what the ICO say including template letters see here >> https://ico.org.uk/for-the-public/personal-information/ This may be of use to you but your time is short...

 

 

Failing everything else keep the letters from them and produce them in your Court bundle in case you need to rely on them... Here is what the .gov site says see here re: part 31 disclosure >> https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

[skanker]

Many thanks!

[mikeymack2002]

You are in great hands here so just follow the advice.. Good luck...

[AndyOrch]

They are talking about this I think This request is made within the provisions contained in s34 (6) of the Data Protection Act a SAR needs to be signed. You can add security features to your signature. Here is what the ICO say including template letters see here >> https://ico.org.uk/for-the-public/personal-information/ This may be of use to you but your time is short...

Failing everything else keep the letters from them and produce them in your Court bundle in case you need to rely on them... Here is what the .gov site says see here re: part 31 disclosure >> https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31

 

I'm sorry MM but neither are applicable to a CPR 31.14 request...pre standard disclosure.

 

Andy

[skanker]

just state in your defence that the claimant has frustrated all attempts to clarify the basis of this claim by way of a CPR 31.14 request and has declined to respond.

Andy

 

Morning All

 

Other than the above i have to admit i am struggling to come up with the basis of my defence.

Reading about other successful defences i see the following term in their defence claim.

 

"I have had an Account in the past with whatever bank. However I am unaware of any legal assignment or Notice of Assignment allegedly served with regards to such & such Limited"

 

I have been paying Cabot a token £1 sum up until March 2015, surely this is not an option for my own defence?

 

Any advice is most welcomed

[dx100uk]

nicked from andyorch

 

 

adapt to suite etc

 

 

Heres a more detailed version of an overdraft defence...obviously you would have to edit to suit your particulars....

 

 

1. It is admitted with regards to the Defendant entering into an Agreement referred to in the Particulars of Claim ('the Agreement') with the original creditor Lloyd TSB Bank.

 

2. The defendant denies that the account exceeded the agreed overdraft limit due to overdrawing of funds but is as a result of unfair and extortionate bank charges/penalties being applied to the account.

 

3. I refute the claimants claim is owed or payable. The amount claimed is comprised of amongst others default penalties/charges levied on the account for alleged late, missed or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbey National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

4. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

5. The claimant is denied from added section 69 interest within the total claimed that as yet to be decided at the courts discretion.

 

6. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

The claimant is also put to strict proof to:-.

 

(a) Provide a copy agreement/facility arrangement along with the Terms and conditions at inception, that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of their excessive charging/fees levied to the account with justification.

(d) Show how the Claimant has reached the amount claimed.

(e) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(f) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

7. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated 4 March 2014 namely the Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

..............

 

or

 

Particulars of Claim

1.The claim is for the sum of 2470.56 in respect of monies owing pursuant to an overdraft facility under account number XXXXXX XXXXXXXXXX.

2.The debt was legally assigned by Santander UK Plc to the claimant and notice has been served.

3.The Defendant has failed to repay overdrawn sums owing under the terms and conditions of the bank account.

 

The Claimant claims:

The sum of 2470.56 Interest pursuant to s69 of the county courticon Act 1984 at a rate of 8.00 percent from the 7/04/2015 to the date hereof 14 days is the sum of 7.58Daily interest at the rate of .54

Costs

 

 

Defence

 

The Defendant contends that the particulars of the claim are vague and generic in nature. The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

1. It is admitted with regards to the Defendant once having had banking facilities with the original creditor Santander Bank. It is denied that I am indebted for any alleged balance claimed.

 

2. Paragraph 2 is denied.I am not aware or ever receiving any Notice of Assignment pursuant to the Law and Property Act 1925. It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

 

3. Paragraph 3 is denied. The Original Creditor has never served notice pursuant to 76(1) and 98(1) of the CCA1974

Any alleged amount claimed could only consist in the main of default penalties/charges levied on the account for alleged late, rejected or over limit payments. The court will be aware that these charge types and the recoverability thereof have been judicially declared to be susceptible to assessments of fairness under the Unfair Terms in Consumer Contracts Regulations 1999 The Office of Fair Trading v Abbeyicon National PLC and others (2009). I will contend at trial that such charges are unfair in their entirety.

 

4. As per Civil Procedureicon Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

The claimant is also put to strict proof to:-

 

(a) Provide a copy agreement/overdraft facility arrangement along with the Terms and conditions at inception that this claim is based on.

(b) Provide a copy of the Notice served under 76(1) and 98(1) of the CCA1974 Demand /Recall Notice and Notice of Assignment.

© Provide a breakdown of all excessive charging/fees and show how the Claimant has reached the amount claimed.

(d) Show how the Claimant has the legal right, either under statute or equity to issue a claim.

(e) Show how they have complied with sections III & IV of Practice Direction - Pre-action Conduct.

 

5. On receipt of this claim I requested documentation by way of a CPR 31.14 request dated April 2015 namely the Agreement and Termination Demand Notice referred to in the claimants Particulars of Claim. The Claimant has failed to comply with this request.

 

By reason of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

 

Regards

Andy

[skanker]

Many thanks DX

[dx100uk]

no costs in small claims

[skanker]

Ok, amended below. i did try to edit my previous post but i cant for some reason

 

PARTICULARS OF CLAIM

 

The claimant claims payment of the overdue balance due from the defendant under a contract between the defendant and Bank of Scotland dated on or about June 22 1995 and assigned to the claimant on August 03 2012

 

 

1. The Defendant contends that the particulars of claim are vague and generic in nature.

The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2.I have held an Account in the past with Halifax Bank of Scotland. However I am not aware of any legal assignment or Notice of Assignment allegedly served with regards to Cabot Financial (UK) Limited.

 

3.It is therefore denied with regards to the Defendant owing any monies to the Claimant,

the Claimant has failed to provide any evidence of assignment/balance/breach requested by CPR 31. 14,

 

Therefore the Claimant is put to strict proof to:

(a) show how the Defendant has entered into an agreement; and

(b) show how the Defendant has reached the amount claimed for; and

© show how the Claimant has the legal right, either under statute or equity to issue a claim;

 

4.As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

5.On the alternative, ias the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974.

 

6. On receipt of the claim form the Defendant sent a formal CPR 31.14 request dated 26/01/2016 for a copy of the overdraft facility agreement, Notice served under Sections 76(1) and 98(1) of the CCA1974, notice of assignment and a statement of account showing how the amount claimed has been reached, which form the basis of this claim.

 

As per the County Claim forms directions this request was addressed to Restons Solicitors Limited and acknowledged in writing 03/02/2016. However, the claimants representative has dismissed any obligation to provide requested documents and has yet to comply.

 

Therefore the claimant in their none compliance to my requests have frustrated my attempts to clarify their claim.This is against pre action protocol should be considered when the question of costs arise.

 

7.By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.

Edited February 15, 2016 by Andyorch
Tweaked

[skanker]

Hi Folks.

 

Sorry to be a pain but can someone take a look at my edited defence please and advise?

Especially section 6 and if its actually relevant to my particular case. Also section 2, do i contradict myself due to my previous £1 token payments to Cabot?

 

Cheers

[dx100uk]

2. Paragraph 2 is denied.I am not aware of, nor ever received any Notice of Assignment pursuant to the Law and Property Act 1925.

It is denied that the Claimant has the right to lay a claim due to contraventions of Section 136 of the Law of Property Act and Section 82A of the consumer credit Act 1974. The Claimant has yet to provide a copy of the Notice of Assignment its claim relies upon.

[skanker]

Thanks for the clarification DX. I'll get this sent off tonight when i finish work.

 

Cheers!

[dx100uk]

via mcol online don't use the postal system

 

i'd p'haps let andyorch check it first mind

 

no need to rush mind as its not due till 4pm friday

[skanker]

No worries mate. I'll wait till i hear from Andy first then.

 

Cheers

[Guest]

revised dx para 2 there is better if not aware of/received any assignment, dont admit things that dont need to be admitted.

[AndyOrch]

Hi Folks.

 

Sorry to be a pain but can someone take a look at my edited defence please and advise?

Especially section 6 and if its actually relevant to my particular case. Very relevant...its an assigned debt Also section 2, do i contradict myself due to my previous £1 token payments to Cabot? Not really ...just because you paid the odd quid does not mean you ever received the NoA

Cheers

 

Defence tweaked

 

Regards

 

Andy

[skanker]

Thanks for the info Andy, i'll fire off post 65 via mcol later today (minus links)

 

Being dyslexic im finding this whole process rather tough but i much appreciate all the advice i've received on here. It's helped a lot.

 

Cheers

[skanker]

Hi Guys.

 

Update on my situation:

 

Today i collected my SAR parcel from the bank and it's huge. Five inches thick of all sorts of information that will take me a week to read.

 

I've scanned through it quickly and have found a copy of my original bank account application from 1995. I have also found a copy my overdraft application relating to the above debt.

 

Would really appreciate some advice on this if someone could please oblige?

 

Thanks

[dx100uk]

look at the account statements

see how much you have been charged in penalty fees over the years.

like letter/unpaid dd fee/late/over/phone call etc

 

dx

[skanker]

Thanks DX, Will have a butchers this weekend and see what i can dig out.

[skanker]

Still looking through all my SAR paperwork but it's just occurred to me i've had no letters from either Cabot or Restons since i acknowledged and defended the claim.

 

Lots of un answered phone calls yes but no post, is this normal procedure?

[dx100uk]

next move is the claimants

 

 

they have 33 days to decide from the filing date of your defence

else the claim gets stayed

and they'll be extra fees for them to pay to proceed it further

[skanker]

Hi DX

 

Many thanks for the info tho im confused now as the post defence letter i received from the courts tell me 28 days from when claimant receives my defence?

 

I was more concerned (if that makes sense) about the lack of communication from Cabot/Restons as i presumed if they had a leaky case they would attempt to get me to settle for a smaller sum, the lack of contact does have me a little worried i have to admit

[dx100uk]

Means nothing

 

28+5 days service=33