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Help Needed please with Mortimer Clarke

edited 30 November -1 at 1:00AM in Debt-Free Wannabe
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  • Thank you Di for your very helpful responses although Im afraid Im still to pluck up the courage to phone the NCCBC.

    Can I just ask why I can't just leave this? If they filed the claim a year ago and they still haven't requested judgement, what are the chances of them doing so now? They have now located me at my new address (thats where the Tomlin order was sent) so why has over a year passed since they issued the claim, its obviously not affecting my credit file.

    I am thinking of writing back, doing the CCA request, asking them to prove that a payment was made in 2012 (I'm still not sure this is correct) whilst still denying any knowledge of the debt - I thought it may be worth also mentioning to them that I am a stay at home parent and I don't work or claim any benefits (I am wholly reliant on my partner) in the hope that its all too much trouble for them to bother amending the claim, paying the fee, re-isuing the papers, complying with the CCA etc if they are not going to get anything reasonable back at the end of it. What do you think?

    By the way its not a mortgage shortfall debt.
  • edited 14 September 2018 at 5:06PM
    Just_DiJust_Di Forumite
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    edited 14 September 2018 at 5:06PM
    I am thinking of writing back, doing the CCA request, asking them to prove that a payment was made in 2012 (I'm still not sure this is correct) whilst still denying any knowledge of the debt

    I completely understand your hesitation to phone the NCCBC contact centre, I feel the same way too some days :)

    However it's hard to decide your next move while boxing in the dark. You need the facts in order to protect your legal position.

    You say this is a £26k debt so I doubt they'll walk away without making an effort to either persuade you to pay (sign the Tomlin Order) or continue with the legal proceedings (seek a Default Judgment since you've not filed an Acknowlegment of Service or your Defence).

    I strongly suggest you send the s 77 - 79 CCA Request asap. Once a Judgment is granted they no longer have a statutory duty to comply with your request and you'll have lost the opportunity to defend the claim on that legal argument if you attempt to set aside the CCJ.

    Was the original account a Northern Rock unsecured loan, which year was it taken out, how much was it for? Can you remember whether it was a Regulated or Unregulated loan (they didn't always get that bit right)? Was it linked to a Northern Rock Together Mortgage?

    Lawyers have an expression "we don't litigate through correspondence". If you start asking them to prove things or get into any kind of debate about evidence then you risk saying/doing something which could harm your case.

    Sadly they won't take any notice of the fact that you haven't got the funds to pay now. Debt purchasers tend to think of the long term. They like the certainty of a CCJ then they hope that your financial circumstances will improve as the years go by.

    Is the debt purchaser, and possible Claimant, Cabot Financial Ltd or Cabot Financial (UK) Ltd.?

    Di
  • Right I dd the CCA Request a week ago & today I received a response - They say:-

    Our client has provided us with the following documentation

    1. Loan agreement with terms & conditions (This is a single page document with what appears to be my signature at the bottom - dated August 2005)
    2. Statement of account from original creditor
    3. Letter dated 2013 advising that the debt had been assigned
    4. signed statement of account on behalf of the claimant (note this has all the interest added onto it, plus court fees plus further interest - the interest they said they did not wish to claim and would therefore have to amend their claim for)

    It then goes on to say
    "Please be advised that Under the Financial Conduct Authorities Consumer Credit sourcebook (rule 13.1.4) a firm is able to reconstitute a copy of the agreement and there is no obligation to provide a copy which includes a copy of the signature (confirmed by the case Carey V HSBC Bank 2009)

    They then say that they consider the agreement is now enforceable , if you disagree, please explain why?

    Its almost like they are testing me to see how much I know and whether Im likely to cause them trouble in court - if you can shed any light or give any help on a response, I would be so grateful

    Thanks in advance
  • Just_DiJust_Di Forumite
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    " . . . a firm is able to reconstitute a copy of the agreement and there is no obligation to provide a copy which includes a copy of the signature (confirmed by the case Carey V HSBC Bank 2009)

    They then say that they consider the agreement is now enforceable , if you disagree, please explain why?

    Its almost like they are testing me to see how much I know and whether Im likely to cause them trouble in court - if you can shed any light or give any help on a response

    I read that to say they're admitting the credit agreement is reconstituted when they quote Carey v HSBC Bank 2009. Joanna Connolly was the lead solicitor on that case so I know a thing or two about what will pass the test of 'honesty and accuracy' of reconstituted documents :)

    They are asking you to tell them what's wrong with their documentation so they can attempt to remedy the problem.

    I've already advised you to contact the court (NCCBC) to establish the status of this claim because you are vulnerable to a CCJ unless you file your Defence.

    Di
  • Just_DiJust_Di Forumite
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    Right I dd the CCA Request a week ago & today I received a response - They say:-

    Our client has provided us with the following documentation

    1. Loan agreement with terms & conditions (This is a single page document with what appears to be my signature at the bottom - dated August 2005)
    2. Statement of account from original creditor
    3. Letter dated 2013 advising that the debt had been assigned
    4. signed statement of account on behalf of the claimant (note this has all the interest added onto it, plus court fees plus further interest - the interest they said they did not wish to claim and would therefore have to amend their claim for)

    . . . . if you can shed any light or give any help on a response, I would be so grateful

    It's difficult for me to comment on those documents without actually seeing them, but Mortimer Clarke solicitors will know that s 77-79 CCA is for "infomation" purposes not "proof" purposes. This means that they can satisfy s 77 - 79 by sending you 'something' but whether that 'something' passes the test of other sections in the Act is a different story.

    I'm not aware of the solicitor telling you they needed to amend their Particulars of Claim. I thought they had sent you a Tomlin Order to sign, perhaps to avoid the need for them to make an Application to the court to amend the POC.

    Can you answer my previous question about who is the Claimant in these legal proceedings (i.e. Mortimer Clarke's client). Is it Cabot Financial Ltd or Cabot Financial (UK) Ltd or maybe Marlin? This is very important and possibly central to your Defence.

    Di
  • Just_DiJust_Di Forumite
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    Assuming the Claim is still live - they say it was issued a year ago - is there no time limit for them to request judgement default'


    No there is no time limit for the Claimant to request a Default Judgment (CCJ).

    You've engaged in coreespondence/phone calls with them so you are aware that there is a claim (please check with NCCBC). It would hard to argue that you didn't file a Defence because you didn't know you needed to.

    Di
  • Hi
    The claimant is Marlin who purchased the debt (a Northern Rock unsecured Loan)

    The first I knew of this claim was a letter I received on 15th August which said

    "We confirm that a claim was issued at .... (old address) on 31st August 2017 for the amount of £26k.... including interest in the sum of £9k..... Our client did not wish to claim interest. We apologise this happened. This was an administrative error on our behalf and we are taking proactive action to address this. We have been instructed by our client to remove the interest and make an application to re-serve the claim form. This will involve making an application to court to amend proceedings and re-serve them on you.

    They then go on to say that they would like to give me the opportunity to settle the account without further action and propose the Tomlin Order.

    I'm not sure why they have left a year between the original claim and sending me this letter.

    In response to the CCA Request, all they have sent me is a one page document which states the amount borrowed, the APR, and a small box of Key information. Is it not relevant that they are asking me why I don't see it as enforceable? Are they not supposed to send the full credit agreement with all the correct prescribed terms and conditions therein?
    Thank you
  • its Marlin Europe V Limited if that gives more information
  • Just_DiJust_Di Forumite
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    In response to the CCA Request, all they have sent me is a one page document which states the amount borrowed, the APR, and a small box of Key information. Is it not relevant that they are asking me why I don't see it as enforceable? Are they not supposed to send the full credit agreement with all the correct prescribed terms and conditions therein?

    I can't answer that question without seeing the documents which they have sent you.

    It's a £26k claim so I doubt they'll walk away.

    You've not filed your Defence. I have advised you to contact NCCBC to get the case details so you are in a position to deal with this claim before they enter judgement against you (a CCJ) and proceed to the enforcement stage.

    Part 18 Questions may help you but that depends on what is pleaded in the Particulars of Claim which NCCBC can send you if you ask them.

    Do you own your own home or rent?

    Di
  • Hi Di - I don't think they can enter judgement as they have already put it in writing that the amount on the claim is wrong and that they only wish to claim for £16k - they have already said that they would have to amend the claim and have the papers re-served on me - at which point I can file a defence I presume?

    Regards to my own personal circumstances I have just had a baby at the age of 44 - I don't work & don't intend ever going back to work to be honest. My home is in my partners name & I down own a car - There would not be any enforcement options open to them anyway even if they wee successful
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