Cabot /Mortimer Claimform - Newday Fluid Card - stayed - Now N244 - Summary Judgement ***Claim Discontinued***

[albouk]

This debt was originally for a Newday Fluid credit card which has since been sold to Cabot Financial and is now being pursued by Mortimer Clarke.

 

When Mortimer Clarke began to chase the debt I asked for the credit agreement, default notice and deed of assignment, this was not produced at the time of asking, they claim it was sent out in their witness statement!

 

They sent out a LBA 6 months later on the 25^th March 2021 which we did ignore because of the lack of evidence, on the 28^th March 2021 they issued a claim.

 

I did defend the claim stating they had not shown the debt existed as they failed to provide the credit agreement, default notice and deed of assignment. The case was left stayed until late February 2023 and now they are applying for Summary Judgement.

 

2 other things to note,

in their witness statement they state they sent out the documents asked for in the defence on the 18^{th of} February 2022,

upon checking the document in the witness statement it was sent to an email address belonging to my partner which is a surprise since all previous contact was via post and he does not remember getting it.

 

They did send a warning about applying for summary judgement back in September 2022 but again we ignored this because we didn’t have the documents.

The first time we have seen the requested documents is upon receiving the bundle from the court last week.

 

The hearing is on the 28^th March 2023.

 

This and all other debts defaulted back in summer 2019 ideally, I do not want a CCJ.

The only anomaly I can see to argue my case is that we never did receive a default notice at the time even though one has been included as evidence.

 

I have on a “without prejudice save as to costs” basis attempted to come to an arrangement with them.

I offered £500 as a full and final settlement or £100 per month for the full debt.

This was rejected as they have been advised to pursue for Summary Judgement even though in their witness statement, they would be happy to accept monthly payments if I lose.

 

They then sent an email stating they would ask the court for costs totalling around £750.

 

Any help would be appreciated.

[albouk]

Thanks for the quick response!

 

I have received an N244 in the post, I will scan all the docs in the morning and get them uploaded.

 

N244

 

N244 .pdf

[albouk]

I’m not sure who has added the MBNA to the text or title of this post, it wasn’t me. The card was a Newday Fluid.

 

The IP address is ours I investigated that. I don’t remember taking out the card at all!

 

After looking at the bundle of evidence they have submitted I can see 2 points to go back at them with which may be enough to stop the summary judgement.

 

1. I don’t recall receiving a default notice, as this is a purchased debt they are relying on information from Newday. They have provided a default notice but have failed to show proof of service.

 

2. In the credit agreement page 21 onto 22 of the exhibits “how can the agreement be ended”  it states they can cancel the agreement giving 2 months’ notice and then goes on to say in the same headed section about repeated missed payments etc. At the bottom it states “we will give you advance notice and the chance to fix the breach before taking these steps”. As a default notice is a termination of the agreement could I argue even if the default notice was served they didn’t give me 2 months as in the agreement. I know in other credit agreements I have they clearly differentiate between normal termination and default termination.

 

What are your thoughts?

[albouk]

So you think settle before hearing if possible?

 

do you think my 2 points above are weak arguments? 

[albouk]

Thanks for your assistance 

[albouk]

What about notice of sums in arrears. I’ve never had any notices after the debt was assigned. CCA 1974 s86(d) states the agreement is unenforceable during a period of non compliance. Notices should be provided at least every six months. 

[albouk]

Yes I agree they were being sent before default but they still have to send them until a judgement is given at least annually.

 

 

[albouk]

Do you have your own post up with your claim? Im fighting this one on a couple of technical defences.

[albouk]

After reviewing my witness statement Mortimer Clarke have stated their client is willing to accept a settlement of £600 which was my last offer to them! Thats because they have absolutely no chance in winning their case. I have told them to proceed to Tuesday’s hearing, where they will either have their claim dismissed or have it sent to trial and have to pay my costs and their own expenses.

[albouk]

I will be able to share that dependant on the outcome of Tuesdays hearing or if they walk away from the case before then. I don’t want to jeopardise anything just yet.

 

After reviewing the letter again, it stated let us know if you don’t want to settle for £600 so we can take further instructions from our client. So, I called to give them every opportunity to walk away from the case before Tuesday’s hearing. Let’s see what happens between now and then. I will update this post as soon as I have anything more to share.

[albouk]

Maybe but I won’t upload until the case is resolved either way. The other day you told me I had no defence. This statement was also compiled from research I’ve done outside of this forum. If you feel I’m being unreasonable or its against your rules, then I’m happy to remove my account.

[albouk]

It didn’t even make it to court, after I refused to settle for £600 they swiftly wrote back and discontinued the case. I’ve not had a chance to upload the statement yet but hopefully get around to it this weekend. 

[albouk]

To be honest it was very rushed, and I believed the points raised (deed of assignment & statutory notices) at best would have taken it to trial or had the case adjourned giving me more time to negotiate a settlement. I didn’t believe it would be discontinued. I can only assume a problem was lurking with the assignment because the statutory notices could have easily been resolved.

[albouk]

No problem, I will have it up this weekend.