cabot/Restons Claimform- Cap 1 credit card 'debt'

[BrokeGirl22]

Name of the Claimant ? Cabot Financial UK

 

Date of issue – . 12 Feb

 

What is the claim for – ?

 

 

1.The claimant claims payment of the overdue balance due from the defendant under a contract

betwen the defendant and capital one dated on or about april 18 2013

and assigned to the claimant on sep 28 2015

22/01/16 default balance 305.70

What is the value of the claim? 305+costs

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

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

 

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? Yes

 

Did you receive a Default Notice from the original creditor? Yes

 

Have you been receiving statutory notices headed “Notice of Default sums” – at least once a year ?

No, I have Notice of sum in arrears 5/10/14,

Notice of default 2/11/14,

Statement of default 4/12/2014

All sent directly from Capital One

 

Why did you cease payments? Repayments got out of hand & I did not seek help when I should have done.

 

What was the date of your last payment? Unsure, all statements were online, I have no paper statements for reference

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 managemnent plan? No

 

I have acknowledged service & believe there are many default charges in this balance which I would like to contest.

The POC is now incorrect as I made a payment on 10th Feb & I'm due to make another on 11th March

as per a letter I sent letter which I sent to Restons prior to receiving their claimform,

this letter has been returned to me stating they will not acknowledge receipt or respond to any letters

without my signature claiming they must be sure who they are corresponding with,

after they were sure enough of my identity to issue court paperwork to me of course!

I'm assuming I need to send a cpr.13.14 now but can I simply initial the letters rather than using my signature?

Also how will I tackle the charges issue?

 

Thanks for reading this, all help is greatly appreciated

[martin2006]

Its CPR 31:14 just to clarify And yes get that sent.

There is no requirement other than restons dont like it, for you to sign any letter you send. Put X if you like.

 

With regard to reclaiming fees etc you will need the statements, ive had success in the past just by simply ringing and politely asking for copies, a SAR may take too long now a claim has been issued.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?436761-Arrows-Drydens-claimform-old-Cap1-Credit-Card-debt/page2

 

Have a read of the thread above and look at any other links within it

 

And a CCA to cabot

 

Until you have the paperwork you will be looking for a no paperwork/holding defense.

 

Do not miss your deadlines to respond, do it on mcol and do not lose your log in details

[BrokeGirl22]

Yes thank you for clarifying that one for me! Just to update the thread - I sent a cca & CPR 31.14 on Tuesday, both have been returned to me unacknowledged as my original letter was stating they will not respond to unsigned paperwork so now I'm a little lost. Do I just submit the no paperwork defence & see what happens? I am already registered with MCOL so I'll submit online.

[Andyorch]

Yes just proceed to your defence...but refer within the defence that they have failed to comply to your request.Post your intended defence here first before submitting.

 

Andy

[BrokeGirl22]

Ok thank you, I'm on it now will post again when it's ready.

[BrokeGirl22]

Here is my drafted defence, I have used the thread linked by Martin2006 & justice.gov as reference, I'm hoping this makes sense?

 

Particulars of Claim

 

1.The claimant claims payment of the overdue balance due from the defendant under a contract

between the defendant and Capital One dated on or about april 18 2013 and assigned to the claimant on sep 28 2015

 

22/01/16 default balance 305.70

 

Defence

 

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 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

The Particulars of Claim are denied with regards to an amount due under an agreement. The Claimant/Solicitor has refused to comply with my requests for any agreement or statements on which its claim relies upon.

 

On receipt of this claim I requested information by way of a Section 78 request.

 

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

 

To date they have refused to comply and remain in default.

 

On receipt of this claim I requested information pertaining to this claim by way of a

 

CPR 31.14 request. To date the Claimant/Solicitor has refused to provide a compliant response.

 

Therefore with the court’s permission the Claimant is put to strict proof to:

 

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

 

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

 

© show how the agreement was legally terminated to allow the claimant relief.

 

(d) 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, it is expected that the Claimant prove the allegation that the money is owed.

 

5. 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.

 

6. 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 March 11, 2016 by Andyorch
Particulars brought down

[martin2006]

Looks good but please wait till Andy/DX have confirmed as i am not the expert in this area

[Andyorch]

" The Particulars of Claim are denied with regards to an amount due under an agreement. The Claimant/Solicitor has refused to comply with my requests for any agreement or statements on which its claim relies upon. "

 

That's not a reason to deny any debt being owing......the claimant is not obliged to disclose any documents until later in the process...at standard disclosure after you have submitted your defence.

 

Andy

[BrokeGirl22]

I see, what I want to state is that the amount on the claim form is incorrect, when the claim was received one payment had been made on the account as per the first letter I sent (which was ignored) prior to the claim being issued & at this point two payments have now been made.

How would you suggest I word it? I'm getting my brain tied in knots with all this legal terminology.

[Andyorch]

"I have acknowledged service & believe there are many default charges in this balance which I would like to contest.The POC is now incorrect as I made a payment on 10th Feb & I'm due to make another on 11th March as per a letter I sent letter which I sent to Restons prior to receiving their claim form, this letter has been returned to me stating they will not acknowledge receipt or respond to any letters without my signature claiming they must be sure who they are corresponding with,after they were sure enough of my identity to issue court paperwork to me of course! "

 

How many payments have you made in total since its inception 2013?

[BrokeGirl22]

I'm not sure, but I did make payments prior to the account defaulting. Am I barking up the wrong tree with my defence? Recently I have made just the two, Restons sent me a letter that said they were asking for the full amount if not they would issue claim, failing that their client may accept installments. So I sent an offer letter saying I would make a payment on 11th of each month & made a small payment the day I sent the letter as a gesture to try & sort this out. The letter came back unacknowledged the payments are not being returned to me though.

[Andyorch]

No your not barking up the wrong tree.....I would advocate everyone defend any claim from these clowns...Its just the above opening paragraph that requires attention to make it CPR compliant.

None disclosure will become part of the defence but you cant make it the priority reason for defence...the rest of the defence is fine..as that was the way I wrote it.

 

What date is your defence due?

[BrokeGirl22]

I believe it's due on Tuesday 15th, the date on the claim form is 12 feb I'll be working on it over the weekend. Thank you so much for your help.

[BrokeGirl22]

Can someone advise if this is an appropriate defence? I've done a lot of digging around in the legal successes forum but to be honest the more I read the more confused I get!

 

Particulars of Claim

 

1.The claimant claims payment of the overdue balance due from the defendant under a contract

between the defendant and Capital One dated on or about april 18 2013 and assigned to the claimant on sep 28 2015

 

22/01/16 default balance 305.70

Defence

 

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 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

 

2. Paragraph 1 is noted. I have in the past had financial dealings with Capital One .I am unaware of what alleged debt the claimant refers to having failed to adequately particularise its claim or state any alleged breach or whether they have ever issued a Default Notice pursuant to sec88 of the CCA1974.

 

3.I am unaware or recall of Notice of Assignment pursuant to the Law of Property Act 1925 ever being served.

 

4 On receipt of this claim I requested by way of a section 78 request a copy of the alleged agreement.The claimant has failed to comply within the requisite time period and therefore remain in default of said request.

 

I have also made a request under CPR 31.14 request to validate any documents the claimant wishes to rely upon.To date the Claimant/Solicitor has refused to provide a compliant response.

 

Therefore with the court’s permission the Claimant is put to strict proof to:

 

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

 

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

 

© show how the agreement was legally terminated to allow the claimant relief.

 

(d) 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, it is expected that the Claimant prove the allegation that the money is owed.

 

5. 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.

 

6. 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 March 13, 2016 by Andyorch
Edited.

[martin2006]

Andy is your man for this brokegirl, there are 1 or 2 things i might change but let andy have a look, this is a learning area for me

[Andyorch]

Defence amended.

[BrokeGirl22]

Thank you andyorch & martin2006 I'm assuming I include the POC in the defence? I'll submit this today & wait to see what happens next, thanks again guys for the all the advice!

[Andyorch]

Thank you andyorch & martin2006 I'm assuming I include the POC in the defence? I'll submit this today & wait to see what happens next, thanks again guys for the all the advice!

 

No dont include it...that is only for reference whilst checking the defence to the particulars.

[BrokeGirl22]

Ahhh ok (blonde moment there) cheers andyorch

[BrokeGirl22]

UPDATE - Defence was filed in good time & acknowledged by the court, then a couple of weeks later I received a letter including an N9A from Restons stating they refuse to provide any documentation on the grounds that I should have them, stating they have no knowledge of a valid S.78 request or fee ( that would be because they returned those to me & a CPR 31.14 refusing to acknowledge anything that does not bear my signature) & also asking that I withdraw Defence & admit liabilty or they will make an application to strike out my Defence/Summary Judgement & have me ordered to pay their costs for doing so.

Can someone enlighten me as to what to do next? As they're refusing to acknowledge anything unsigned & I don't want to start speaking with them over the phone I don't know what to do! Would it be useful if I post the full letter? Obviously minus personal data.

[Andyorch]

File and ignore it.....its a standard action by this Solicitor..you can detail all the above in your witness statement if they wish to proceed to the next stage.

 

Andy

[martin2006]

Well aren't they chancing their arm a bit? Trying a bit of intimidation there, nothing more, you don't have to comply with anything other than instruction from the court at this point

 

Follow the instructions from the courts, not Reston, cheeky burgers, they are now refusing to comply in writing!!

 

Won't look good for them in court that.

 

The next step should be referral to mediation which you obviously agree to

[BrokeGirl22]

Thanks Gents I'll set about drafting a witness statement while I wait, they've given me plenty of material to work with so far

[Andyorch]

Thanks Gents I'll set about drafting a witness statement while I wait, they've given me plenty of material to work with so far

 

They may not proceed ...I would wait for Notice of Allocation (Court Directions) first.