Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence ASAP

[wannabe debt free]

Hi, I hope you can help me. The basic facts are as follows:

• I am writing on behalf of my husband, who is very ill.
• He received a claim form through Northampton Business Centre.
• Claim form dated 29th July 2014
• He received Claim form on 1st August 2014
• I acknowledged service online on 5th August 2014
• CCA Request sent to Cabot Financial Uk with £1.00 Postal Order on 7th August 2014 by Special delivery, received and signed for on 8th August 2014 (nothing received from them till date 28th Augst 2014)
• CPR 31.14 Request sent by Special Delivery on 7th August 2014, signed for on 8th August 2014 (nothing received from them till date 28th Augst 2014)
• Sent SAR with £10.00 Postal order first to Lloyds on 7th August 2014, got letter back on 13th August 2014 no record of acount with them; postal order returned
• Sent a new SAR to Bank of Scotland on 14th August 2014 (no reply yet, I know got 40 days)
• Last known payment date 22nd July 2008 (Credit Card Statement)

POC are as follows:

By an agreement between Bank of scotland (Aqua Card)
("BOS") & the Defendant on or around 29/05/2007
("the Agreement") BOS agreed to issue the
Defendant with a credit card upon the terms
& conditions set out therein. In breach of
the agreement the defendant failed to make
the mimimum payments due & the Agreement
was terminated. The Agreement was assigned to the Claimant on
15/03/2010.
THE CLAIMANT THEREFORE CLAIMS:
521.39


PLEASE I NEED HELP IN DRAFTING A STATUTE BARRED DEFENCE. I ALSO WANT TO KNOW WHEN IS THE LAST DAY TO SEND A DEFENCE AND ANY ADVICE OR HELP YOU CAN GIVE.

Thanks in advance.

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

Can anyone please help? I am so stressed. Please can someone help me

[Amethyst]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

• Claim form dated 29th July 2014

That will make your defence due by
Sunday, August 31, 2014

Just reading rest xxx

[Amethyst]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

• Last known payment date 22nd July 2008 (Credit Card Statement)

It may be argued that it did not become statute barred until two months after that date (ie. when they could have, under the terms of the contract, terminated the contract and thus the cause of action accrued )

But don't worry you have enough other stuff to be defending on and we'll still include it as it's a fluffy area.

• CCA Request sent to Cabot Financial Uk with £1.00 Postal Order on 7th August 2014 by Special delivery, received and signed for on 8th August 2014 (nothing received from them till date 28th Augst 2014)

That will be the main bit of the defence, as whilst they remain in default of that they can't enforce the debt.


Let me draft something for you to be getting on with defence wise.

And try not to stress you've done everything right and we can get the defence sent in tomorrow then you'll have a month before you need to deal with anything further (usually)

[skilganon]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

hi,

if the date on the claim form is 29th july then the last day to submit your defence is 31st august so really needs sorting, you can submit your defence online.

i also have to ask what makes you so sure that this is statute barred ? if the 'agreement' was entered into in may 2007 your husband must have defaulted very soon after receiving the CC ?

when was the last time a payment was made towards this debt, has it been acknowledged at all since the last payment was made ?

[Amethyst]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

Okay this is just a draft outline for you to get you started xxx




1: I received the claim [Claim Number] from the Northampton County Court Business Centre on 1st August 2014

2: This claim is for a Credit Card agreement regulated under the Consumer Credit Act 1974.

3: It is admitted that the Defendant has previously entered into an agreement with the Bank of Scotland for provision of credit by way of a ''Aqua'' Credit Card. However due to the length of time that has passed since allegedly entering into any agreement the Defendant no longer holds his own records.

4: It is the Defendants belief that the last payment and acknowledgement on this account was over 6 years ago and accordingly considers the debt to be statute barred by virtue of Section 5 of the Limitation Act 1980.

5. The Claimants statement of case states that the account was assigned from Bank of Scotland to Cabot Financial on 15th March 2010. The Defendant does not recall receiving notice of this assignment.

6. The Defendant has not been sent any statement of account showing how the sum claimed has accrued. The Defendant is unaware of there being a debt owing on the account.

7. It is denied that Bank of Scotland served any Default notice on the Defendant pursuant to s87 Consumer Credit Act 1974. The Claimant is required to prove that a compliant Default Notice was served upon the Defendant.

8: On the 7th August 2014 the Defendant sent a request for inspection of documents mentioned in the claimants statement of case under Civil Procedure Rule 31.14 to Mortimer Clarke Solicitors. The Defendant requested the Claimant provide copies of the Agreement, Default Notice and Notice of Assignment . The request was sent by Royal Mail Special Delivery and was received and signed for on the 8th August 2014.

9. Mortimer Clarke Solicitors has not sent any of these documents to the Defendant

10. On the 7th August 2014 the Defendant sent a formal request for a copy of the original agreement to Cabot Financial pursuant to section 78(1) of the Consumer Credit Act 1974 along with the statutory £1 fee. The request was sent by Royal Mail Special delivery, and was received and signed for on 8th August 2014 .

11. No documents have been sent to the Defendant. The Claimant has failed to comply with s 78 (1) Consumer Credit Act 1974 and by virtue of s 78 (6) Consumer Credit Act 1974 cannot enforce the agreement.

12. In order to try and find out information regarding the alleged debt I sent a formal Subject Access Request under the Data Protection Act and enclosed a £10.00 Postal order to the Bank of Scotland on 14th August 2014. I understand the Bank of Scotland have 40 days to respond to my request.

13. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore It is expected that the Claimant be required to prove the allegation that the money is owed as claimed.

14. At this stage without documentation I am unable to plead fully to the claim. I request the court orders the Claimants to provide the necessary documentation in order for me to fully plead my case else the Claim should stand struck out.

15. In the event that the relevant documents are received from the Claimants I will then be in a position to amend my defence, and would ask that the Claimants bear the costs of the amendment.

16. As things stand the Defendant denies the Claimant is entitled to claim the relief claimed or at all.

Statement of Truth

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



Signed …………………………………………

Dated .................................................. ....

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

Sorry for the late response, had to sort out my husband and kids ( full time carer). Our youngest son died in 2008 and things went down hill for a while, as you can imagine. So the lapse in payments happened around that time.

Found a letter dated 6/11/2008, with heading "Account is now Closed". The balance was £485.93. Arrears £44.57, from Aqua.

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

P.s. Thanks to all of you, for all your replies thus far.

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

@ Skilganon, thanks to you too. The last payment date was 22/07/2008. To my knowledge he has not acknowledged the debt since that date.

As already stated, our youngest son died that year.

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

@ Amethyst, thanks so much for the draft defence, you are a life saver. I will send the defence online tomorrow. Xxx

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

Morning Amethyst, I logged on to MCOL to submit the defence and I am unable to do so. Under available options, there is a message: A BAR HAS BEEN PUT IN PLACE ON THIS CLAIM. YOU CANNOT RESPOND TO THE CLAIM AT THIS TIME.

Please help, I do not understand what this means. I have been trying to get through to Northampton County Court Business Centre all morning, with no success.


PLEASE HELP!!!


Thanks

[Amethyst]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

Weird, someone else had the same. You can submit your defence by email (print it to PDF and attach to a covering email ) however I would really want to speak to the court to find out why the bar is on the claim. It may be a glitch with their system, or they might have put your acknowledgment in as a defence in error.

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

Ok. Thanks. Waiting to speak to someone at Northampton C.C.Bus C. I will update you asap.

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

UPDATE: Just as you advised Amethyst, I have been told to send the defence by email to mcol@hmcts.gsi.gov.uk.

he said it was strange as my Acknowledgement of a Service states I intend to defend all of the claim.

under Response forms on MCOL, It states.: IF YOU ADMIT ALL OF THE AMOUNT CLAIMED, COMPLETE THE ADMISSION FORM .

[wannabe debt free]

Re: Cabot Fin Uk & Mortimer Clarke Solicitors;Statute Barred; need help with defence

Do you feel they have entered mi intention to defend the whole claim incorrectly ? I am so confused.