Cabot/Restons claimform - cap1 card 'debt'

[pcforum1]

Name of the Claimant ? Cabot Financial (UK) Limited

 

Date of issue – 22 Dec 2015

 

Date of issue XX + 19 days ( 5 day for service + 14 days to acknowledge) = XX + 14 days to submit defence = XX (33 days in total) - =Saturday, 23 January 2016

 

What is the claim for – the reason they have issued the claim?

The Claimant claims payment of the overdue balance due from the Defendant(s) under a contract between the Defendant(s) and Capital One dated on or about Jan 14 2010 and assigned to the Claimant

Particulars a/c no xxxxxxx

 

DATE ITEM VALUE

03/12/2015 Default Balance 300.00

Post Refri Cr NIL

TOTAL 300.00

What is the value of the claim? 300.00 + 35 court + 50 Solicitor = 385.00

 

Is the claim for a current account (Overdraft) or credit card/loan account or mobile phone account? Credit

 

When did you enter into the original agreement before or after 2007? After

 

Has the claim been issued by the original creditor or was the account assigned and it is the Debt purchaser who has issued the claim. Debt Purchaser

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? No

 

Did you receive a Default Notice from the original creditor? No receipt of

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ? No

 

Why did you cease payments? Financial issues

 

What was the date of your last payment? Unknown, approx 2009

 

Was there a dispute with the original creditor that remains unresolved? No

 

Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt mgnt plan? No

[pcforum1]

Is it too late to request CCA and CPR31.14 because of the court deadlines?

I have drafts for both letters ready to send out today (today Sunday Post Office closes at 5pm), do I need to change the timescale in the CPR letter from 7 days to 3 days for example?

[AndyOrch]

Is it too late to request CCA and CPR31.14 because of the court deadlines?

I have drafts for both letters ready to send out today (today Sunday Post Office closes at 5pm), do I need to change the timescale in the CPR letter from 7 days to 3 days for example?

 

No not too late.....dont state a date on the CPR.

[pcforum1]

Remove the 7 days entirely?

 

So remove the following?

"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."

[AndyOrch]

Remove the 7 days entirely?

 

So remove the following?

"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."

 

Yes

[pcforum1]

Letter from Restons dated Jan 14 stating that no response has been received and they've requested judgment in default.

Need help with the defence please, because the 33 days is tomorrow.

No reply or acknowledgement of either CCA request or CPR31.14.

 

Please help.

[pcforum1]

DEFENCE

 

 

1. I, xxxxxxxxx of xxxxxxxxxxxxxxxx am The Defendant in this action and make the following statement as my defence to the claim made by CABOT FINANCIAL (UK) LIMITED.

 

2. Except where otherwise mentioned in this defence, The Defendant neither admit nor deny any allegation made in The Claimant’s Particulars of Claim and put The Claimant to strict proof thereof.

 

3. 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 civil procedure rules. (Even allowing for the constraints of the bulk issue system)

 

4. No documents supporting the claim in the particulars have been offered which The Defendant needs to establish what agreement it is that this action is based upon and so The Claimant's claim appears without merit.

 

5. On receipt of the claim form The Defendant sent a CPR 31.14 request for a copy of the agreement, notice of assignment and a statement of account showing how the amount claimed has been reached which form the basis of this claim.

 

6. The Defendant also sent a formal request pursuant to s.77/78 of the Consumer Credit Act 1974 for a copy of the agreement.

 

7. It has been confirmed via the Royal Mail website that the above letters were received and signed for.

 

8. To date the claimant responded to the CPR 31.14 request stating they are unable to fulfill the defendant’s request at the current time.

 

9. To date no response has been received from The Claimant for the request of Consumer Credit Act 1974 agreement.

 

10. As a result, the Claimants claim does not contain sufficient particulars to permit me to file a properly particularised and pleaded defence. The Defence is at a disadvantage to respond to this claim. Consequently, The Defence deny all allegations on the particulars of claim and put the Claimant to strict proof thereof.

 

11. It is denied that I have an agreement with CABOT FINANCIAL (UK) LIMITED.

 

12. If, which is not admitted, such an agreement exists, the precise terms and date of any such agreement are not admitted. I do not have in my possession any such agreement and am not therefore able to comment thereon. The Claimant is put to strict proof as to the date and terms of such agreement.

 

13. Without admission that any cause of action is shown by The Claimant it is denied that The Defence indebted to The Claimant as alleged or at all.

 

14. It is alleged the Claimant has an agreement and there has been an Assignment. Within the proof of claim it was stated that there had been an assignment to the Claimant on a date which was given as 14/01/2010. As such it is contended that no such Notice of Assignment has been served pursuant to Section 136(1) of the Law of Property Act 1925. Without a Notice of Assignment, The Assignment is merely equitable and The Claimant is put to strict proof to disclose this and prove that this claim can commence in their own name.

 

 

15. AND the Defendant Seeks an order that The Claimant’s action is struck out or otherwise is dismissed on the grounds that any claim cannot succeed.

 

i. Alternatively if the court decides not to strike out The Claimant’s case, it is requested that The Court orders full disclosure of the requested documents pursuant to the civil procedure Rules.

 

ii. The Defendant respectfully asks the permission of The Court to amend this defence if or when The Claimant provides full disclosure of the requested documents and allows inspection of the original documents.

 

 

 

 

Statement of Truth

 

The Defendant believes that the facts stated in this defence are true.

[AndyOrch]

Please do not submit the above.......

 

Take a peek in the following forum and look at the defences already proved successful.

 

http://www.consumeractiongroup.co.uk/forum/forumdisplay.php?190-Legal-Successes

[pcforum1]

okay I was about to submit that as that is where I took reference from the legal success page archive, that particular draft was from there.

Can you give any idea where it's gone wrong or at least give a stronger example case link?

thanks.

[pcforum1]

The Claimant claims payment of the overdue balance due from the Defendant(s) under a contract between the Defendant(s) and Capital One dated on or about Jan 14 2010 and assigned to the Claimant

Particulars a/c no xxxxxxx

 

DATE ITEM VALUE

03/12/2015 Default Balance 300.00

Post Refri Cr NIL

TOTAL 300.00

 

 

 

Defence Statement

 

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.

 

The claim is denied with regards to an amount due under an agreement.

The Claimant/Solicitor has been unable to disclose any agreement or statements on which its claim relies upon.

 

The Defendant is unaware of any legal assignment the claimant refers to within its particulars and deny the notice was served pursuant to the Law of Property Act 1925.

 

On receipt of this claim the Defendant requested information pertaining to this claim from Wright Hassall Solicitors by way of a CPR 31.14.

To date I have yet to receive a compliant response.

 

The Defendant requested information pertaining to this claim from Cabot Financial (UK) Limited by way of a Section 77/78 request.

To date I have yet to receive a response complying with the request.

 

Therefore with the courts permission the Claimant is put to strict proof to:

 

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

 

(b) Show and disclose how the Claimant has reached the amount claimed for;

 

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

 

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

 

On the alternative, if 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.

 

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

Edited January 22, 2016 by Andyorch
Edited

[AndyOrch]

That's better ...I have removed the statement of truth as it not required if submitting through MCOL

 

And I have added the last point missed off.(in blue)

[pcforum1]

Thank you, do I copy and paste all of that, from "The Claimant claims payment ....." to "... claimed or any relief" ??

[pcforum1]

ahh thank you very much Andy.

[AndyOrch]

The particulars in red as just for me to cross check...you do not submit them....the blue is an addition to your defence.

[pcforum1]

Good, I thought as much, just making sure!

[pcforum1]

Today received a response.

Restons sent the full CPR 31.14 request letter back claiming it is unsigned, when it is already signed.

They also state they will not acknowledge receipt nor provide any response to unsigned documents sent to them.

What are they trying to do? Stall?

[theoldrouge]

typical unhelpful nonsense from restons, youve submitted your defence, so next move is theirs

[pcforum1]

Cabot letter today stating "Your credit agreement is currently unenforceable, which means we are not permitted to obatin a judgment or decree against you in court...." etc.