Cabot and the ever increasing debt

[flyboy80]

Hi Guys,

 

Please can somone offer any advice to a County Court Claim form received from Northampton County Court.

 

P.O.C stating :-

The claimant is the assignee of a debt from HBOS

Card ref number XXXX

Notice of assignment having been given to the defendant in writing.

Despite demands for payment XXXX remains due.

The claimant claims XXXX and interest under s.69 County Courts Act 1984 and costs.

 

Not sure if Carbooters still monitor the forums so I don't want to reveal too much info,

but originally I batted them away some time ago when they first contacted me in 2008

informing me that they had "bought" the account.

 

 

The account in question was put into dispute with BOS over charges in 2006, and had not been resolved from then.

 

I requested from Cabot then copies of credit agreement and enclosed the required fee,

that was duly returned to me uncashed - I still have this.

 

It took them 2 months and 2 weeks to contact me with a photocopy of my application form

bearing my signature and a photocopy of the T's and C's.

 

Also included were copies of my acount transactions on unheaded paper not showing which bank etc it related to etc.

I also recieved a letter from Halifax telling me that they have given me notice of assignment in respect to the balance due.

 

 

The strange thing was to me it did not look correct as the X in the Halifax logo was black

and all letters that I had dealing with them - the logo was blue.

 

 

Also as with all business letters from banks and these institutions,

there is normally an address to respond to or phone number.

On this letter it was signed by a "Euan McPherson" no other contact details.

I decided to keep the letter anyway because something did not sit right with it!

 

Fast forward and so I started to get a million phone calls each day from Cabots, these I batted away because

a) I don't like them

b) they were threatening and rude

c) I had a hard enough time trying to stay afloat with redundacy looming.

 

Fast forward to 2010 and after constant phone calls, one day

I inadvertantly made a token payment to them,

I guess it was my moment of weakness - they kept bugging me

- some may know what it's like! - but then I re-read the forums here and realised that I may had been duped by them!

 

I decided from then not to talk to them

- I issued them with a Telephone Harrasment letter and ignored all calls.

 

Soon everything stopped

- until I started getting letters from their Solicitors

- threating courts etc.

I recieved the court papers this month and simply acknowledged the claim online.

 

I now have some time to defend myself - so here goes and also so that I am clear and not missing anything :-

 

a) What papers do I request from them and under which CPR do I need ?

 

b) Do they have legal claim ?

- I refer to this as I did not recieve a copy of the Deed of Assignment from HBOS to Cabot,

which raises my point about the colour of the logo on the LOA that I do have.

Would this be genuine?

 

c) Statements sent could be from anywhere bank or could be reconstituted. They have not mentioned this in POC?

 

d) Are they allowed to claim interest on this ?

 

My credit file has two entries now for the same debt. Is this possible or can one be removed?

 

I acknowledged the papers to give myself time to think

and construct a good defence to get this struck out so any help that can be given would be greatly appreciated.

[the_shadow]

Hi,

 

This thread should help you http://www.consumeractiongroup.co.uk/forum/showthread.php?241827-Legal-Action-how-to-start-off.-IMPORTANT-IF-YOURE-BEING-SUED

 

a) What papers do I request from them and under which CPR do I need ?

 

See the thread above... normally you'd want to see the application/agreement with terms and conditions, notice of assignment, default notice. You have already stated above that you have the NoA although you believe it invalid because it comes from the assignee rather than the assignor, if I remember correctly the LoP act 1925 states you must be told, but not by who so I dont think thats a good argument.

 

b) Do they have legal claim ? - I refer to this as I did not recieve a copy of the Deed of Assignment from HBOS to Cabot, which raises my point about the colour of the logo on the LOA that I do have. Would this be genuine?

 

See prev response

 

c) Statements sent could be from anywhere bank or could be reconstituted. They have not mentioned this in POC?

They dont have to be the original statements if they were sent under SAR, just enough to show you the information stored about you, the evidence required by court would have to be enough to link an account with you with the money owed etc.

 

d) Are they allowed to claim interest on this ?

NOT unless the original terms allowed it and if so they are not allowed better interest rates than the original agreement afaik.

 

HTH

 

S.

[alangee]

Just one other thing on interest. I believe that they have to give you 30 days notice if the interest rate changes. If they do not give that notice, they cannot charge you interest. Normally the interest from the OC is frozen prior to sale, so Cabot need to give you notice if it is to be reinstated (all this is of course providing they actually own the account, and as the shadow says, if it is in the agreement).

 

Alan

[flyboy80]

Many thanks for your responses. I will look to send for details that they are going to be relying on .... let's see what they have !!

[cymruambyth]

Just a word of warning, re the interest, my local DJ stated that although I was not notified by Cabot of the interest rate being charged for their intertest, I was fortunate because this rate was lower than the normal rate .............

[pt2537]

Hmmm, i see a difficulty here

 

Cabot havent actually pleaded correctly. They havent said there was an agreement, nor have they pleaded a Default notice or notice of sums in arrears

 

They havent even pleaded a breach of contract.

 

So

 

This is a headache for them if you make it such, but if you let them off the hook then you are doing yourself a disservice.

 

I wrote to them for a client a while ago, you may be able to adapt the letter to assist you

 

here goes

 

We have reviewed the particulars of the claim against our client and have reviewed your letter to our client dated 2011.

 

Our client’s position is that the particulars of claim lack the depth and detail to be considered adequate. It is noted that the Claim was issued through the County Court Bulk Centre, which has a character limit of 1024 characters. However the Bulk Centre rules clearly state that if the Claim cannot be particularised within this limit then it must be issued via the local court. Furthermore CPR 16 does not give a Claimant the right to avoid pleading his case adequately so that he can use the Bulk Centre to issue his claim.

 

Your Clients pleaded case is some 300 characters including spaces which leaves 700 characters at your clients disposal and which remain unutilised, this in itself shows the lack of care on your clients part. The Claim could have contained a far greater depth of information than what has been included unless it is the case that you do not know the facts of the case against our client. We would like to draw your attention to the case of Nomura International Plc v Granada Group Ltd & Ors 2 All ER (Comm) 878 where the Claimants claim was struck out for failing to plead adequately the nature of the claim or to set out adequately even in a rudimentary fashion the facts of the claim against the Defendant. We believe this case would be relevant to our clients’ application.

 

The pleaded claim is insufficient, there is no mention of a contract, nor is the mention of a breach of contract, what the breach was, what the degree of default was, whether or not a default notice was issued, whether or not the underlying contract was regulated by the Consumer Credit Act 1974 or whether the debt relates to an unregulated agreement. Also there is no details as to the assignment, date of assignment date of notice of assignments, all of which are extremely important to this matter and ought to be pleaded within your clients claim.

 

We note that your letter of the 28th March 2011 alludes to disclosure of documents occurring at the standard disclosure stage, however, we would point out that given the lack of detail within the pleaded case our client cannot plead a Defence. Furthermore, if our client were to file a Defence it would be nothing more than a bare denial of the Claim and would undoubtedly need amending once disclosure did occur. We consider placing our client in this position to be unreasonable and not in accordance with the overriding objective nor would it be in accordance with the requirements of CPR rule 16 given your client must know what it is its claim is based upon, and if based upon a written contract then it ought to be pleaded as such by mention of that document within the pleadings.

 

Therefore our instructions are to apply for an order compelling your client to replead its claim and to disclose documents mentioned within the amended pleadings within 14 days thereof. We shall exhibit your letter of the 2011 to support our client’s application. We shall also seek costs on the indemnity basis.

 

However, should you wish to avoid a contested application then we would be prepared to discuss terms on consent with costs in our clients favour.

 

If we do not hear from you by 4pm on the 2011 we will file our clients application without further notice.

 

 

[flyboy80]

As always PT2537, you ride to the rescue again, thank you very much for your input.

My thoughts on the POC were initially along the same lines as there was not sufficient information regarding the claim to suggest how or why the debt came into being. The POC facts were simple statements that on the face of it could be made up by anyone.

I was looking into the Notice of Assignment, and the correct procedures it should be issued - whether Absolute Assignment would have been necessary to disclose, which incidently has not been received. I will send an amended version to them to see if the cages are rattled !

[flyboy80]

Hi Guys,

 

As yet I have not received anything back from the Claimants. Do I have to wait for them to respond, or do I need to

contact the court to let them know what correspondence has been sent, and that I have not received a reply?

[flyboy80]

Still no word from them, can someone advise my next move?

 

Many thanks

[the_shadow]

Well if you were to follow the advice given by PT2537...

If we do not hear from you by 4pm on the xx/xx/xxxx 2011 we will file our clients application without further notice.

I take it you put a date in the line above? if you did then you have indicated you would send an application for repleading and disclosure....Personally I think you should apply for a strikeout or if the judge declines, an unless order... this will need to be done on an N244 application and be supported by a draft order asking for strikeout or unless order along with a witness statement referring to the letter you have sent.I'm afraid the only way this is going somewhere is if you take the bull by the horns, when does your defence have to be in by? as soon as that time has passed Cabot can apply for judgment against you without it even being seen by a judge.S.

[flyboy80]

Hi Shadow,

 

I did put a date in, and time is as they say "up" ! - I understood that when I acknowledged the claim it gave me further time

to enter my defence. I need to apply for a strikeout, if I follow what you are saying as I do not want to give them time to apply for anything. Can N244 be completed online ?

Regards

[the_shadow]

Cool,

 

I'm afraid the court service hasnt quite caught up with the 20th Century and hence you have to fill in the N244 on the courts website (its a PDF file) and print it out then and there... you need to do three copies, keep one yourself, two to court who will serve one copy onto the claimant.

 

The N244 can either be:-

 

a) Issue a strikeout due to the poor particulars and their refusal to re-issue a new set of POCS or in the event the judge wants to give them another chance an unless order which states they have until xx date to redo the particulars of claims.

 

b) Issue an application for disclosure and repleading of the particulars of claimIf you make it too legalise you will be taken as understanding everything that goes on within the court system so its better imho if its plain language and even better if you set it out clearly what you want the judge to do and why in a concise format as these are busy important people who appear not to like reading too much

 

Both applications will need to be accompanied by a witness statement which sets out whats happened and includes the letters sent etc etc and a draft directions.

 

S.

Edited May 12, 2011 by the_shadow

[the_shadow]

Apologies for the lack of spaces... the new forum doesnt like my work computer's browser so I'll re-edit when I get home

[flyboy80]

Can't really understand this one - got home today to find a judgement awaiting me in favour of Solicitors plus interest.

I sent the papers off last week when I got back from working away.

No wonder I had no response..... gutted ...really gutted.... it appears that I was too late in responding to the courts.

Is there anything that I can do now?

[the_shadow]

[sigh] We try to drill into people that court timescales for defendants are Key, it matters not day to day life in the eyes of the court, I'm afraid they take a dim view of missed timescales.

 

So, ok we are where we are... did you get the application in BEFORE the deadline for filing a defence at least?

 

S.

[flyboy80]

No it appears that I did not Shadow, I have myself to blame, and this to anyone reading should be indication as to complete on time and not take your eye off the ball - no excuses, I have made things harder for myself.

Anyway enough self pity moment is now over.... let's redress the situation...

[the_shadow]

Ok, all you can do then is to apply to set aside the judgement and use the fact that the claimant didnt respond to your requests for more information and that you have an application in process at present to get that disclosure and allow you to enter a defence.

 

So you need form N244 from the hmcourts website, take a look and give us a shout when/if stuck.

 

S.

[flyboy80]

Hi Guys,

 

Sent off the required forms - just received notification that this has now been transferred to different court - miles away from me.

How do I get the proceeding transferred to a court near me?

[the_shadow]

Seems strange, should have been transferred to YOUR local court, as they are a business and you are a LiP.

 

I would give the court that its been transferred to a ring in the morning and see what they say, will probably take a formal application to move it tho.

 

S.

[flyboy80]

Hi Guys,

 

A quick update, I sent my form to Set Aside to court dealing with the case, and phoned them in regards to transferring to my local court.

I received a General Form of Judgment or Order back stating the following :-

 

It is ordered that

 

Upon the claim having been electronically transferred to the bulk charging order unit of

XXX Court at the claimants request for the purpose of issuing an application for a charging order,

but no application having yet been received and

Upon reading the response to the transfer notice,

It is ordered that :-

1) This case be electronically transferred to the defendants home court

2) Any applications to be issued at that court.

 

Does this mean that I have to contact my "local" court again for a Set Aside ?

Are Cabot allowed to go for a Charging Order so soon?

Is my set aside no longer valid ?

 

Any input would be appreciated .

 

Many thanks

[the_shadow]

It says "all applications issued", I would ring your local court and ask what these applications are, set aside or charge or both :-/

 

S.

[cymruambyth]

It has gone to your local court. Contact them to check on what is happening, the applications that you have made should have also been transferred for a local J to decide.

[cymruambyth]

You type quicker! Less waffle.......

[gettingsorted]

could i have some input please am struggling with the same issues

http://www.consumeractiongroup.co.uk/forum/showthread.php?278373-Citi-Cards-and-Cabot&p=3449134#post3449134

thank you

[flyboy80]

Hi Guys,

 

I received paperwork from Local Court for hearing. This is in 7 days - can I still request paperwork from Solicitor, to use in the hearing or do I need to attend to request more time for this to be actioned?

 

Kind Regards