Debt - Statute Barred?

fatbelly

They started a court claim within the 6 years so it would not be statute barred. 

The question is whether they could reactivate that claim after a six-year gap. i have seen it done but it's very unusual and they don't sound like they are considering it at the moment

You could 

ignore
offer a payment plan
offer a sum  in full & final settlement

Money18

Hi Fatbelly, thank you for getting back to me..

I was thinking to send a CCA Request to the original lender before considering any offers, so I'm clear on my position..

I should have also mentioned that within the SARS documents introduction, they wrote:  "Whilst conducting our searches we discovered that we do not hold copies of your credit agreements or statements from the original lender. As previously advised we recommend you contact CFS/Barclays Partner Finance for this information should you want copies of these."

Should I also write back to Cabot and ask them to send the Notice of default that they did not send as requested - or since they didn't include it with the SARS documents, does that mean they also do not have it?

 - And if so, should I also ask the original lender for the Notice of default?

 - Is it important that they provide the Notice of default if they try to reactivate the court claim?

I also requested the following in the SARS Request:

• Copies of all documents evidencing the steps taken by the claimant’s representatives to verify that the address used to serve me was my address/last known address at the date of purported service
• Copies of any applications made to extend the time for service after becoming aware that I was not residing at the address used at the time of service

 - Again since they didn't include these with the SARS documents, does that mean they or their solicitors didn't do this - or should I write back to them again to request these?:

Re Notice of issue of claim - What is this exactly? Is this a letter sent by their solicitors threatening court action before the claim was issued?

Just_Di

Money18 said:

Anyone here know the answers to above?

My apologies for not reading every post on your thread, but I'm not sure you are going about this in the best way.

A claim was issued by Cabot in 2013. Mortimer Clarke Solicitors were/are instructed. The claim was served on an address where you were not living, but I can't see what happened after that (legally speaking).

Was there a Default Judgment entered by Mortimer Clarke because you (understandably) failed to file your Acknowledgement of Service within 19 days of the Claim Issue Date? If that was the case you'd be looking at making an Application for a set-aside which would be mandatory not discretionary for the court.

If successful that would put you back in the position you were in before the CCJ - you would have a claim to Defend. It usually makes sense to ask the Claimant's solicitors to consent to a set-aside in order to save costs.

They could also be asked to consent to the set-aside and Discontinue, or even consent to the claim being Dismissed, depending on the potential strength of your Defence.

If there hasn't yet been a Default Judgment then you may need to act fast to prevent one.

Once there is a CCJ the debt owner no longer has to comply with any s77-79 CCA Request. But if there isn't yet a CCJ then send a CCA Request to Mortimer Clarke solicitors a.s.a.p. 

Have you contacted MCOL (NCCBC) to check the current status of this claim (assuming it was bulk issued by them). You can call them on 0300 123 1057.

Do you have the exact name of the Claimant - is it Cabot Financial (UK) Ltd who are not authorised by the FCA so cannot lawfully issue legal proceedings (there's been a recent court ruling on this legal issue)?

Again, my apologies for not making time to read all the previous posts which may have already tackled some of these issues.

EDIT: I can now see from your SAR that the claim was issued in 2013 and has been stayed ever since.

So what you need to do is make an Application to strike out their claim.

Di

Just_Di

Money18 said:

I was thinking to send a CCA Request to the original lender before considering any offers, so I'm clear on my position..

I should have also mentioned that within the SARS documents introduction, they wrote:  "Whilst conducting our searches we discovered that we do not hold copies of your credit agreements or statements from the original lender. 

. . . . Should I also write back to Cabot and ask them to send the Notice of default that they did not send as requested - or since they didn't include it with the SARS documents, does that mean they also do not have it?

 - And if so, should I also ask the original lender for the Notice of default?

 - Is it important that they provide the Notice of default if they try to reactivate the court claim?

I also requested the following in the SARS Request:

• Copies of all documents evidencing the steps taken by the claimant’s representatives to verify that the address used to serve me was my address/last known address at the date of purported service
• Copies of any applications made to extend the time for service after becoming aware that I was not residing at the address used at the time of service

 - Again since they didn't include these with the SARS documents, does that mean they or their solicitors didn't do this - or should I write back to them again to request these?:

Our posts crossed.

I can now see that Mortimer Clarke have admitted to not having the the documentation they need to succeed in this case which they should have had before they issued the claim let alone three years later!

Don't give them any more time to get their house in order. Maybe a Summary Judgment Application by you is the way forward.

Lawyers have a saying "we do not litigate through correspondence". 

I also note that the Claimant (may) be Marlin Financial Services who are not FCA authorised i.e. not Cabot.

Di

Money18

Thank you for your help @Just_Di

Sorry I don't know anything about Summary Judgment Applications..

If I submit a Summary Judgment Application as you suggested, could this potentially cause Cabot to fight the case and argue for a CCJ against me?

The Claimant originally was Marlin Europe I Limited - apparently now one of Cabot's purchasing companies.

The most recent correspondence has come from Cabot - on their letters it says: Cabot Financial (Europe) Limited is an Appointed Representative of Cabot Credit Management Group Limited which is authorised and regulated by the Financial Conduct Authority with firm reference number 677910.

The original lender assigned the debt though to Marlin Europe I Limited, saying that MEI have appointed Marlin Financial Services as their servicing agent to manage your account on their behalf. All contact regarding this account should now be directed to Marlin Financial Services.

The last letter from Marlin was in 2013 before they instructed Mortimer Clark Solicitors to submit the court claim, also in 2013.

In the SARS documents, there is no correspondence saying the debt was transferred to Cabot from Marlin.. 

The next letter after Marlin in 2013 and their court claim submission, was from Cabot in Oct 2019 saying welcome to Cabot, asking for payment.

I don't know if Marlin were regulated by the FCA in 2013?

Is this relevant in arguing against any claim re-activation?

On Cabot's site here: https://help.cabotfinancial.co.uk/s/article/Who-are-our-regulators?language=en_US

It says: "Purchasing companies are exempt from being authorised by the FCA as they only own the debt, engaging CCM Group to recover and/or administer the debts on their behalf.

The UK purchasing companies in the CCM Group are Cabot Financial (UK) Limited, Marlin Capital Europe Limited, MCE Portfolio Limited, MFS Portfolio Limited, Marlin Europe I Limited, Marlin Europe II Limited, ME III Limited, ME IV Limited, Marlin Europe V Limited, Marlin Europe VI Limited, and Cabot Financial Portfolios Limited.

Operational companies are permitted to carry out debt recovery and/or administration activities as a result of the CCM Group being authorised to appoint them as representatives by the FCA.

The operational company, which is an appointed representative of the CCM Group, is Cabot Financial (Europe) Limited."

I was thinking to send a CCA Request to check if the debt is in fact enforceable first..

I note that when writing a CCA Request Letter, a creditor must provide a copy of the agreement on request within 12 working days, or he becomes unable to enforce the agreement while his default continues.. and the letter should be sent to the original creditor or to the debt collection company if the debt has been assigned to them.

So Cabot are writing to me but Marlin was assigned the debt, and Cabot said they do not have the CCA and I should write to the original lender for it..

So, do you think I should send a CCA Request Letter to Cabot (&/or Marlin?) and not the original lender (even though Cabot said to write to the original lender), as Cabot will have to provide the agreement within 12 working days and if they don't they will not be able to enforce the debt or re-activate the court claim?

Should I also write back to Cabot and ask them to send the Notice of default that they did not send as requested - or since they didn't include it with the SARS documents, does that mean they also do not have it?

- And if so, should I also ask the original lender for the Notice of default?

- Is it important that they provide the Notice of default if they try to reactivate the court claim?

I also requested the following in the SARS Request:

• Copies of all documents evidencing the steps taken by the claimant’s representatives to verify that the address used to serve me was my address/last known address at the date of purported service

• Copies of any applications made to extend the time for service after becoming aware that I was not residing at the address used at the time of service

- Again since they didn't include these with the SARS documents, does that mean they or their solicitors didn't do this - or should I write back to them again to request these?:

Re Notice of issue of claim - What is this exactly? Is this a letter sent by their solicitors threatening court action before the claim was issued?