Cabot/hudsons claimform - old barclaycard debt

[joghuj]

Don't know if this is relevant or not for the defence but having just checked through the letters from Cabot/Hodsons before sending copies to court I noticed that the original court claim form had three original accounts/debts in the particulars, A, B & C.

The 2 LBA's which were late from Hodsons(Cabot) were for A & C only.

The 2 letters stating 'not creditor' etc.. were for B & C only.

The letter stating '8-10 weeks' etc.. was for account A only.

 

I had noticed something earlier but not really examined all the account numbers, sorry. Anything I should do about that?

[tomterm8]

Don't know if this is relevant or not for the defence but having just checked through the letters from Cabot/Hodsons before sending copies to court I noticed that the original court claim form had three original accounts/debts in the particulars, A, B & C.

The 2 LBA's which were late from Hodsons(Cabot) were for A & C only.

The 2 letters stating 'not creditor' etc.. were for B & C only.

The letter stating '8-10 weeks' etc.. was for account A only.

 

I had noticed something earlier but not really examined all the account numbers, sorry. Anything I should do about that?

 

I've amended the letter - you'll have to include the account numbers where appropriate.

 

This case is quite complicated:)

[Jeff2000]

You mean, something like:

 

 

 

Case Manager

 

In the matter of XX Vs Joghuj

 

Claim No: XXXX

 

In Court Name

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Your Address

 

Date

 

Court Address

 

 

 

 

 

Dear Sir or Madam,

 

I am writing to you to request that the court use its discretionary powers under the civil procedure rules to strike out the above claim since I am embarrassed in responding it for the following reasons:

 

1. The claim does not show any cause of action.

 

The claim does not describe the nature of any default, does not reference the terms and conditions allegedly broken or provide evidence of any breach, neither does it indicate that the proper procedures for notifying this default have taken place as required by the Consumer Credit Act 1974.

 

2. The claimant does not have any right of action.

 

All claims relate to credit agreements regulated by the Consumer Credit Act 1974.

 

Only a Creditor or Owner of the debt is entitled to seek a court order to enforce a debt under the consumer credit act, 1974 s141. I enclose a letter (Letter A) which is a template letter sent in relationship to accounts no XXXXX and no XXXXXX in which the claimant states that it is not the creditor for the purpose of the Consumer Credit Act, 1974 since it has allegedly acquired only the rights and not the obligations under the alleged credit agreements.

 

For the purposes of the act, a new owner is not created by the assignment of the rights (but not the duties) of a creditor. I refer to the definition of owner in s189(1) of the act:

 

“owner ” means a person who bails or (in Scotland) hires out goods under a consumer hire agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer hire agreement, includes the prospective bailor or person from whom the goods are to be hired;

 

 

 

 

3. The claimant has failed to provide proper notice of court action

 

The claimant failed to provide me with proper notice of proceedings, in order to investigate this claim. On 29th May 2007 two template letters from Hodsons Solicitors in respect of accounts no XXXXX and no XXXXXX. These letters were received by the defendant on the 7th June. This letter requested payment within 7 days from letter date or Court proceedings will be issued. I enclose this letter. (Letter B)

 

This letter was not in the prescribed form for a default notice under the Consumer Credit Act 1974, and did not give the proper notice period required in such a default notice. In any case, despite giving 7 days notice to rectify any alleged default, the Claimant issued its claim on or before 1st June.

 

Point 4.3© of the pre-trial protocols states that the claimant

"

ask for a prompt acknowledgement of the letter, followed by a full written response within a reasonable stated period;

 

 

(For many claims, a normal reasonable period for a full response may be one month.) "

 

and Point 4.3(a) and 4.3(b) require that such a letter:

 

"4.3 The claimant's letter should –

(a)give sufficient concise details to enable the recipient to understand and investigate the claim without extensive further information;

(b)enclose copies of the essential documents which the claimant relies on;"

 

 

No opportunity was given to me to investigate any of these claims. Further, the claimant failure to provide a copy of the credit agreement both with the initial claim letter, and after a reasonable request for disclosure despite its apparent statutory duty under the consumer credit act 1974 to provide the credit agreement or, if not the creditor, to request that the creditor supplies the credit agreement and to abide by the OFT Debt Collection Guidance which states that they must halt collection procedures while investigating a reasonable dispute.

 

4. The claimant did not investigate whether there was an enforceable claim before starting court action.

 

Under the Consumer Credit Act 1974 a consumer credit agreement made before April 2007 is not enforceable unless a legible document containing all the prescribed terms and signed by the debtor exists. The claimant has been asked to supply these documents with respect to each account it claims is in default on numerous occasions and has failed to do so.

 

5. Failure to include all persons entitled to the remedy

 

Cabot has claimed that they are entitled to apply for judgement in this matter, and that the original creditor under the alleged agreement in relationship to acount no's XXXX and XXXX retains the duties under this agreement. Since the creditor would be entitled to the same remedy, this claim is improper as it does not include the Creditor as a party to the action. I quote the civil procedure rules:

 

19.3 (1)Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the court orders otherwise.

 

If the court decides not to strike out the claim, I would ask that the court order disclosure by the claimant on its own initiative, and in respect of each debt claimed, since the claimant is currently frustrating proceedings by failing to provide crucial information that I have requested in order to pursue my defence and counter claim, and has stated that it may take as many as 10 weeks to provide this information. I enclose a copy of the request for information, and the response of the Claimants solicitors. (Letters C & D )

 

 

Thank you for your help in this matter,

 

Yours truly,

 

XXX.

 

Enc –

A – Leter dated XXX ( response claiming not the creditor)

B- Letter dated XXX ( letter before action)

C – Leter dated XXX ( Request for Disclosure )

D – Letter dated XXX (letter saying it will take them 8-10 weeks to provide information)

 

 

EDIT: added point 5. That'll fox cabot:) lol.

 

 

 

Hi,

 

 

Excellent letter!

 

You don't mind if I copy it for future use, should the need arise, do you?

 

 

Regards, Jeff.

[tomterm8]

Jeff, all letters I post on the forum can be freely copied, distributed, and altered by any member to fit the circumstances of each individual case. All advice is offered without prejudice, and with the strict understanding that I am not a lawyer.

[Jeff2000]

Jeff, all letters I post on the forum can be freely copied, distributed, and altered by any member to fit the circumstances of each individual case. All advice is offered without prejudice, and with the strict understanding that I am not a lawyer.

 

 

Hi tomterm,

 

 

Many thanks!

 

 

Jeff.

[joghuj]

Hi all,

 

Just an update. I've sent the document in post #78 to both the court and Cabot. Also, today, I received what I imagine is a standard court letter acknowledging receipt of the defence I sent a few days ago.

What surprised me, is that the letter now mentions Kings Hill (No1) as the claimant. This is the first time they have been mentioned on any correspondance from the court/Cabot/Hodsons. Everything previous was all in Cabot's name. Now, I know who Kings Hill are from reading other threads on this forum but should I question the appearance of this name with the court or just let it lie?

 

 

KINGS HILL(NO1) LIMITED -v- JOGHUJ

 

I acknowledge receipt of your defence. A copy is being served on the claimant (or the claimant's solicitor) The claimant may contact you direct to attempt to resolve any dispute. If the dispute cannot be resolved informally, the claimant will inform the court that he wishes to proceed. The court will then inform you of what will happen.

 

Where he wishes to proceed, the claimant must contact the court within 28 days after receiving a copy of your defence. After that period has elapsed, the claim will be stayed. The only action the claimant can then take will be to apply to a judge for an order lifting the stay.

[tomterm8]

Not sure I would bother, even cabot don't seem to remember whether they are Kingshill or Cabot (Financial) Ltd. Maybe PM tbern or seahorse.

 

Now a letter, this time only registered, to the original creditor:

 

YOUR ADDRESS

 

DATE

 

CREDITOR ADDRESS

 

Dear Sir or Madam,

 

RE: IMPENDING LEGAL ACTION IN RELATION TO ACCOUNT NUMBER XXXXX

 

With regard to the above account, a company KINGS HILL(NO1) LIMITED in a recent court claim has stated that you have assigned them the rights and not the duties of the above credit agreement.

 

Can you confirm that this is the case, since if this is the case i intend to apply for your company to be added as a party to this court case and to issue a counter claim for all unlawful penalty charges in relation to the account. I will also seek full disclosure of your costs in relation to these penalty charges, and I may also bring a counter claim for libel against your organisation in respect of any incorrect default information recorded at the credit reference agencies.

 

If you do not reply within 14 days of the receipt of this letter, I will take further legal action in respect of this court case.

 

Yours Sincerly,

 

XXX.

 

Yours sincerly

[tomterm8]

Oh yeah, do it in respect of each account... if they are all the same creditor, reference each account in question.

[joghuj]

Just out of interest, what response are you hoping for from the creditors and how will this help?

 

Cheers

[tomterm8]

They will say that the debt was an absolute assignment. Cabot are claiming that the DoA is a equitable assignment.

 

When you get the Deed of Assignment, it will show it was an absolute assignment but since cabot have knowingly claimed it as equitable, and failed to comply with the duties of the contract it would leave them open for a counter claim in equity for breach of contract.

 

Also, as the data controller, they have not kept their records complete and accurate, and so there is a counterclaim on the basis of a breach of the Data protection principals.

 

There are a few other interesting surprised on this, since Cabot has misled you during the lead up to a court case in respect of a debt, they are liable for criminal prosecution, and since they have not got all relevant information on the account they are liable for criminal prosecution under the Money Launcering Regs 2003.

 

basically, if you can show they've misled you before the action, then Cabot are jumpsuit wearing toast.

[debt_mountain]

Not sure I would bother, even cabot don't seem to remember whether they are Kingshill or Cabot (Financial) Ltd. Maybe PM tbern or seahorse.

 

Now a letter, this time only registered, to the original creditor:

 

YOUR ADDRESS

 

DATE

 

CREDITOR ADDRESS

 

Dear Sir or Madam,

 

RE: IMPENDING LEGAL ACTION IN RELATION TO ACCOUNT NUMBER XXXXX

 

With regard to the above account, a company KINGS HILL(NO1) LIMITED in a recent court claim has stated that you have assigned them the rights and not the duties of the above credit agreement.

 

Can you confirm that this is the case, since if this is the case i intend to apply for your company to be added as a party to this court case and to issue a counter claim for all unlawful penalty charges in relation to the account. I will also seek full disclosure of your costs in relation to these penalty charges, and I may also bring a counter claim for libel against your organisation in respect of any incorrect default information recorded at the credit reference agencies.

 

If you do not reply within 14 days of the receipt of this letter, I will take further legal action in respect of this court case.

 

Yours Sincerly,

 

XXX.

 

Yours sincerly

 

this is an excellent idea, your letter is alittle more refined than mine was. I did it with the 4 accounts with Cabot and so far 2 have replied and tried to doge the bullit and even if there is no intention of actually dragging them to court it will atleast get some more info to hit Cabot/Hodsons over the head with.

[NitrousOxide]

And like you've posted earlier Tomterm, you cant sue if it's not absolute assignment?

Hence asking the bank on their position.

Either way helps the defendent.

[joghuj]

Just been reading the 1970 thread and noticed the change to local court. Should I be putting a request in for this now or not?

[tomterm8]

Just been reading the 1970 thread and noticed the change to local court. Should I be putting a request in for this now or not?

 

it's automatic. It'll happen when you get to the Allocation questionairre stage.

[tomterm8]

DCA Address

 

DATE

 

Your Address

 

Dear Sir/Madam,

 

RE: CLAIM : CLAIM NUMBER

 

I write in relation to the claim action you have brought against me. While I do not admit any liability for this alleged debt I note our mutual obligation to investigate all means of a speedy and equitable settlement of the court action if possible.

 

 

I am, therefore, writing to invite you to offer your proposals for the settlement of these matters.

 

I reserve the right to show a copy of this letter to the court.

 

Yours Sincerly

 

 

 

FAX / e-mail the contact no with the above form. The letter is a tactical move, so you can tell the judge that you asked the claimant for a settlement proposal at trial. If you don't make the effort, the trial judge often gets angry:)

[joghuj]

Before I send this letter can you tell me whether asking for offers for proposal of settlement isn't admitting a debt? If I receive offers but don't accept them, how will I stand in the court's eyes?

 

Thanks again for the advice.

[tomterm8]

Before I send this letter can you tell me whether asking for offers for proposal of settlement isn't admitting a debt? If I receive offers but don't accept them, how will I stand in the court's eyes?

 

Thanks again for the advice.

 

The original letter did not admit liability, but I've made it stronger to save you from worrying. You are entirely within your rights to refuse any offer, although you might chose to make a counter offer you were happy with (court is always a risk)

[joghuj]

I've just received an Allocation Questionnaire, and confirmation that the case has move to my local office. Is there anything I should know about this form?

Some parts are not clear to me (most of them really), should I have a one month stay for settlement? Pre-action protocols? I presume I have followed protocols?

I presume I don't need expert evidence, although one of you guys would be useful! Written expert evidence?

Small-claims track, fast track or multi-track? Estimate for final hearing, what?

Proposed directions?

[elizabeth1]

I've just received an Allocation Questionnaire, and confirmation that the case has move to my local office. Is there anything I should know about this form?

Some parts are not clear to me (most of them really), should I have a one month stay for settlement? Pre-action protocols? I presume I have followed protocols?

I presume I don't need expert evidence, although one of you guys would be useful! Written expert evidence?

Small-claims track, fast track or multi-track? Estimate for final hearing, what?

Proposed directions?

 

 

Instructions for completion of this form is here

 

http://www.consumeractiongroup.co.uk/forum/bank-templates-library/11644-allocation-questionnaires-guide-completion.html

 

 

I will email you now

[tomterm8]

I've just received an Allocation Questionnaire, and confirmation that the case has move to my local office. Is there anything I should know about this form?

Some parts are not clear to me (most of them really), should I have a one month stay for settlement? Pre-action protocols? I presume I have followed protocols?

I presume I don't need expert evidence, although one of you guys would be useful! Written expert evidence?

Small-claims track, fast track or multi-track? Estimate for final hearing, what?

Proposed directions?

 

I think ylou are working from http://www.hmcourts-service.gov.uk/courtfinder/forms/n150_1001.pdf?

 

stay for settlement I would go no.

 

Location of trial, no.

 

Preaction protocols, no, in part 2.

 

In D, all of it.

 

Applications, no

 

Witnesses none,

 

Experts, none.

 

Track - go for appropriate ( see below)

 

trial or final hearing 1 hour 30 minutes.

 

proposed directions - I'll think about this

 

Costs - don't fill in

 

Other information - I'll think about this

 

 

 

 

 

determining track

How much money is the claim for? (i.e. under 5,000 = small claims track, 5,000-15,000 fast track, 15,000 + multi-track).

 

 

Under pre-action protocol you would select "No". They didn't follow the correct

[joghuj]

proposed directions - I'll think about this

 

Costs - don't fill in

 

Other information - I'll think about this

 

Hi Tomterm, do you have any more thoughts on these items as I need to send my AQ in soon. Cheers.

[tomterm8]

For proposed directions, select NO.

 

For other information select

 

Have you attached documents to this questionairre "yes"

have you served them upon the claimant "yes"

If so, what date did they recieve them - Put in date of receipt.

 

In other information, write:

 

"The claimant did not attach any relevant documents to its Letter Before Action, and the notice period was inadequate to respond, since I recieved them after the claim started. Further, for one of the debts mentioned, it provided no Letter before Action whatsoever. To mitigate this disability, I sent the attached document asking for disclosure. i have recieved an acknowledgement, stating that they intend to provide the doucmentation within 21 days, but that it might take 8-10 weeks to supply. No further information has been submitted by the claimant."

 

 

Attach a copy of the letter. Phone the court, and find out how many copies of this you need to send... i think it is 3, but I'm not sure:)

[9Lives]

Well here I go, my first post. (only been a member for 6 months!!)

I've been reading this thread for some time now, and it is almost identical to my dealings with cabot.

I've sent off CCA request at the end of June, after receiving a claim form form Northampton, and got the same response. I have then followed this up with the S.A.R - (Subject Access Request), to which they have replied asking for a £10 fee before they can all that I asked for.

Is this correct, I knew that the fee applies usually, but the SAR relates to their court claim so shouldn't they be sending it as back up to the case, free of charge ??

[tomterm8]

Well here I go, my first post. (only been a member for 6 months!!)

I've been reading this thread for some time now, and it is almost identical to my dealings with cabot.

I've sent off CCA request at the end of June, after receiving a claim form form Northampton, and got the same response. I have then followed this up with the S.A.R - (Subject Access Request), to which they have replied asking for a £10 fee before they can all that I asked for.

Is this correct, I knew that the fee applies usually, but the S.A.R - (Subject Access Request) relates to their court claim so shouldn't they be sending it as back up to the case, free of charge ??

 

They are entitled to charge a reasonable fee to cover their photocopying etc, and £10 may be reasonable.

 

They are not, however, entitled to delay the 40 days of a Data Protection request, if you made the request under the Civil Procedure Rules.

[joghuj]

Received some post just before the weekend. First was a letter from Hodsons stating simply 'We enclose herewith a copy statement for your perusal'. Attached to this were 3 pages headed 'COPY STATEMENT' and indicating an account balance from about 4 years ago. All 3 pages reference one account (for 3 different months) only and no mention of the other 2 accounts that they are pursuing.

 

Also received a date for a directions hearing in Oct.

 

Is there anything I should be acting on at the moment? Also, could someone point me to any relevant info I need before attending the hearing?

 

Cheers all