Re: Cabot and Restons Conspiracy to Defraud

by Guest Mon Nov 13, 2017 5:26 pm

Hi barnwebb

i'm no expert, but it looks like (and i could be wrong) that the judge was flipping jurisdiction. The reason i say this is because the judge gave case law,;said case law was relevant here.

Isn't case law common law jurisdiction? i suspect (and i'm still learning ) once judge mentioned case law/common law you could have demanded the presence of the claimant. If he's not there, case dismissed.

Hopefully someone will be along soon to set us both straight.......

Cheers!

by Candor Mon Nov 13, 2017 5:56 pm

There are specific rules in the CPR for "specific disclosure" that only apply under the proviso of invoking equity, while case law is generally thought of as an "at law" matter, you can use case law in equity also.

You accept a redacted copy of a deed because they can involve details of separate parties who have privity, further you should not use only one precedent case to affirm a point, the more the better, three is best.

Debt-less would have been able to explain this further, but as you say he got booted so I guess its lets hope the DCA's remain slack and sloppy, which is the premise that the current three letter process operates on.

If the OC turns up with title interest and rights the game is over, unless you have more knowledge.

Tiggy made a good point of etiquette in court, never cut others speech , but when it's your turn you make sure you finish and get everything on the record, if it's not on the record you have nothing to appeal later, and don't let the judge talk all over you either, as they sometimes try to do..

by Tiggy Mon Nov 13, 2017 8:44 pm

iamani wrote:Hi barnwebb

i'm no expert, but it looks like (and i could be wrong) that the judge was flipping jurisdiction. The reason i say this is because the judge gave case law,;said case law was relevant here.

Isn't case law common law jurisdiction? i suspect (and i'm still learning ) once judge mentioned case law/common law you could have demanded the presence of the claimant. If he's not there, case dismissed.

Hopefully someone will be along soon to set us both straight.......

Cheers!

Not quite sure what you mean Iamani, a County Court is a common law court, common law is 'law in common' also known as case law and County Court Judges use case law to make decisions.

Case law is a decision previously made by a Higher Court Judge (County Court Judges can't set a precedent) and if that case is similar (common) to yours then they will apply that case law decision to your case.

A claimant doesn't have to appear if they have a Solicitor representing them, as a Solicitor has a Right of Audience,.

by Candor Mon Nov 13, 2017 10:33 pm

Tiggy the county court also has concurrent jurisdiction, I would hazard a guess that is what iamani was alluding to, however they have a quantum limit I think its 30k, so you would only contest jurisdiction on either quantum or if its a special procedure, of say a trust that would be for chancery.

Yes they do flip between at law and equity all the time, equally they can merge two cases together without notice, rather like they do with counter claims (part 20 (ex parte if in high court), as I have seen them do, the whole process is one of budget and economy for the stakeholders in HMCTS that is what the over-riding rules are, maximise profit and securities and reduce costs.

CPR rules are best understood in conjunction with practice directions, they give you the over-riding objectives in clearer words.

by barnwebb Wed Nov 15, 2017 5:52 pm

Thanks for your input iamani, Candor & Tiggy.

What do I do next if anything at all ?

If Cabot can’t find the Default Notice will the claim automatically be struck out using my original application or will there be another hearing ?

What then happens to the costs order that Restons got tagged to it, does that get cancelled with the strike out ?

As they sent in the costs order three or four days before the hearing would I be able to send a costs order at all if it is struck out ?

If they do find the DN I guess I’m screwed.

I’ll have to bully a solicitor somewhere to give me some free time as Cabot said in their letter last year that I’m not on the DoA so if that is true it needs checking as I’m apparently not allowed to look at it and if I’m not on it then that would be fraud don’t you think ?

by Guest Wed Nov 15, 2017 10:43 pm

Hi

Tiggy - despite Candor's noble and inspired effort to spare my blushes (cheers buddy!) i suspect i may be displaying my lack of basic knowledge. i assumed he had been 'charged' (he was seeking discharge) which is a commercial term - and i thought commerce didn't use case-law/common-law/equity. And if they were flipping then why shouldn't he? Anyways.....

Candor - thanks for the extra info.

Barnwebb - i don't know nearly enough to try to explain how T.H.E.Y. shafted you there - i'm sure Candor or Tiggy or indeed any of the big guns could explain it. i know nothing and i would advise ANYONE to take the advice of those people over my opinion.

Having said that, i can hazard an opinion on what debt-less was trying to tell you:

You are the Original Creditor and the bank has deceived you as to its intentions and obligations towards you, in as much as they deceived you as to the status of the parties and the nature of your relationship. They used your 'res' by trading your note for profit far and above your agreed repayments without telling you. They hid the fact that it was a trust relationship so they could use and 'inherit' your profit (that you were unaware/ignorant of) when you fail to claim it in the prescribed manner (a bit like one's children really).

i think debt-less was trying to say you could reassert your correct status and put right the situation (to the extent that Lloyd s will compensate you for their 'high-handedness' ) with an appropriate letter or two....

Cheers!

by barnwebb Thu Nov 16, 2017 9:48 am

Thanks iamani.

I don't really know anything about that angle of inquiry/action reasserting my correct status etc as I've not really come across it before and will have to research it to see if it is viable at all. I haven't seen anything relating to people using it to their advantage of the previous goodf site either but I guess that doesn't mean it's not there .... somewhere ! Smile

by Guest Thu Nov 16, 2017 11:46 am

Hi barnwebb

It is probably something we should all be looking into for future use. i barely have a grasp on the concept myself so not really in the position to tell you how to make use of it.

Not all of people's successes are publicised, for reasons that may not become apparent to you until you yourself are in the same situation. It is possibly for this reason that we have yet to discover and utilise the best 'remedies'.

The Troy vids are great at explaining status and lots of other things, if you haven't watched them you might want to find them on ceylon's various channels on YT.

Cheers!

by barnwebb Fri Nov 17, 2017 12:12 pm

Thanks iamani.

by barnwebb Sun Dec 03, 2017 7:17 pm

OK, I've been trying to find out why I got stung for costs when the case hasn't even been concluded and they've been given an extra three months. It was explained to me that because they successfully argued for a set aside of my strike out then in effect my strike out request failed so they were awarded costs against me.

Surely that can't be even remotely fair or legit as what happens when the three months are up and (hopefully) they fail to produce the missing documents to verify their claim?

Do I get my costs money back? Does my strike out automatically become valid? Do I have to reapply for the strike out? Do I have to put in my own costs order?

I get a very uneasy feeling that the judge was totally on their side and I was just an irritation to be pushed down.

I'm not done yet !

by Tiggy Sun Dec 03, 2017 7:39 pm

barnwebb wrote:OK, I've been trying to find out why I got stung for costs when the case hasn't even been concluded and they've been given an extra three months. It was explained to me that because they successfully argued for a set aside of my strike out then in effect my strike out request failed so they were awarded costs against me.

Surely that can't be even remotely fair or legit as what happens when the three months are up and (hopefully) they fail to produce the missing documents to verify their claim?

Do I get my costs money back? Does my strike out automatically become valid? Do I have to reapply for the strike out? Do I have to put in my own costs order?

I get a very uneasy feeling that the judge was totally on their side and I was just an irritation to be pushed down.

I'm not done yet !

Because you made the application you're liable for the costs if that application fails.

It sounds as though the Judge in ordering them to produce the documents did so under a General Order and not as a part of your application.

You now have an order for costs against you which is unfortunately, irrespective of what the final outcome is, that order will stand.

If the claim is below £10k and they lose the claim you could possibly start a completely new claim for the value of costs, on the basis that they would never have been awarded if they hadn't brought the doomed claim in the first place, BUT I would take legal advice before you did this just to be certain it's legally feasible.

If the original claim is above £10k and they lose, you could ask for those costs to be reimbursed to you.

by barnwebb Mon Dec 04, 2017 4:20 pm

Thanks for that explanation Tiggy, all very annoying that whether I win or lose I'm potentially ripped off anyway.

Having looked at the order it does say "General Form of Judgement or Order" so I guess that makes it a General Order.

It also says my order was set aside so does that mean it reactivates so to speak if after the 3 months they fail to come up with the goods ?

I've been trying to pin down anyone who can direct me to all this supposed case law in which reconstituted garbage is perfectly fine to use to screw money out of people but haven't as yet been successful.

Getting info outside of goodf seems to be like extracting blood from a stone. I wasn't sure of the timescale of payment as it wasn't on the order but now I've been told that I have to pay up within 14 days of the order as a standard. 'Everyone knows that', I was told, except me it seems.

I haven't paid them as I'm currently on maximum overdraft so have stalled them with a letter.

The claim is below £10k.

There seems to be pages of debt collection solicitors out there who will work for the collectors but I haven't found any yet who will work for the defendants.

Any thoughts ?

by Tiggy Mon Dec 04, 2017 5:06 pm

barnwebb wrote:Thanks for that explanation Tiggy, all very annoying that whether I win or lose I'm potentially ripped off anyway.

Having looked at the order it does say "General Form of Judgement or Order" so I guess that makes it a General Order.

It also says my order was set aside so does that mean it reactivates so to speak if after the 3 months they fail to come up with the goods ?

I've been trying to pin down anyone who can direct me to all this supposed case law in which reconstituted garbage is perfectly fine to use to screw money out of people but haven't as yet been successful.

Getting info outside of goodf seems to be like extracting blood from a stone. I wasn't sure of the timescale of payment as it wasn't on the order but now I've been told that I have to pay up within 14 days of the order as a standard. 'Everyone knows that', I was told, except me it seems.

I haven't paid them as I'm currently on maximum overdraft so have stalled them with a letter.

The claim is below £10k.

There seems to be pages of debt collection solicitors out there who will work for the collectors but I haven't found any yet who will work for the defendants.

Any thoughts ?

I'd have to see the order to see the consequences of them not producing the documents but basically, the order you obtained is now dead and gone - unless you want to apply again to set aside this latest order (wouldn't recommend it).

Reconstituted (agreement?) it's Carey (& others) vs HSBC.

It payment within 14 days for all types of orders, or you can apply to Vary the Order (form N245) and offer a repayment plan, costs £50 or free if on benefits of low income. Or offer one direct.

This is a consumer credit solicitor, may give you some advice but I doubt he would take the claim on as it's under £10k and they wouldn't get costs awarded. https://paulatwatsonssolicitors.wordpress.com/tag/unenforceable-credit-agreement/

by barnwebb Tue Dec 05, 2017 3:13 pm

Thanks Tiggy, I'll see what I can conjure up but I think I might be on the last death throws of this case unless a handy miracle occurs.

by barnwebb Fri Dec 08, 2017 9:49 am

Hi Tiggy, I forgot to tell you what the order said. Spacing is as on the form. The set aside is my strike out attempt. Nothing is mentioned about any consequence of them not coming up with the documents after the 3 months. I think I've been thoroughly stitched up.

On the point of the reconstituted agreement, surely it needs to still show the interest rate and the credit limit etc?? They've only come up with one page that has my name, address and signature, is that all that is required now?

IT IS ORDERED THAT
1. The order of 7th July 2017 (drawn on the 14th July 2017) be set aside.

2. The claim be stayed for a period of 3 months.
3. The Defendant do pay the Claimants costs assessed at £823.20

by Tiggy Fri Dec 08, 2017 12:46 pm

barnwebb wrote:Hi Tiggy, I forgot to tell you what the order said. Spacing is as on the form. The set aside is my strike out attempt. Nothing is mentioned about any consequence of them not coming up with the documents after the 3 months. I think I've been thoroughly stitched up.

On the point of the reconstituted agreement, surely it needs to still show the interest rate and the credit limit etc?? They've only come up with one page that has my name, address and signature, is that all that is required now?

IT IS ORDERED THAT
1. The order of 7th July 2017 (drawn on the 14th July 2017) be set aside.

2. The claim be stayed for a period of 3 months.
3. The Defendant do pay the Claimants costs assessed at £823.20

So they haven't actually given a written order for the production of any documentation or given any consequences of failure?

The agreement to be enforceable has to have all the prescribed terms. If it doesn't and you want to use the lack against the claimant, it has to have been in your original defence, otherwise you have to apply to change your statement of case, you can't just introduce it at the final hearing.

by Tiggy Fri Dec 08, 2017 12:47 pm

Tiggy wrote:
barnwebb wrote:Hi Tiggy, I forgot to tell you what the order said. Spacing is as on the form. The set aside is my strike out attempt. Nothing is mentioned about any consequence of them not coming up with the documents after the 3 months. I think I've been thoroughly stitched up.

On the point of the reconstituted agreement, surely it needs to still show the interest rate and the credit limit etc?? They've only come up with one page that has my name, address and signature, is that all that is required now?

IT IS ORDERED THAT
1. The order of 7th July 2017 (drawn on the 14th July 2017) be set aside.

2. The claim be stayed for a period of 3 months.
3. The Defendant do pay the Claimants costs assessed at £823.20

That's odd, so they haven't actually given a written order for the production of any documentation or given any consequences of failure, was it just stated verbally during the hearing?

The agreement to be enforceable has to have all the prescribed terms. If it doesn't and you want to use the lack against the claimant, it has to have been in your original defence, otherwise you have to apply to change your statement of case, you can't just introduce it at the final hearing.

by barnwebb Sat Dec 09, 2017 9:01 pm

Hi Tiggy,

I think I’ve shot myself in the foot as in my original defence concerning the CCA I just had …………. The Defendant denies monies are owed to the Claimant as alleged in the Particulars of Claim and does not recognise the assertion that any debt has been Legally Assigned to the Claimant and as such the Claimant is put to the strictest of proof, including but not limited to:

I. Pursuant to s.77-79 of the Consumer Credit Act 1974 (CCA1974) the Original Signed Consumer Credit Agreement, along with a copy of the original Terms & Conditions and any subsequent changes in said Terms & Conditions (referred to as a ‘contract’ within the Particulars of Claim) and show how the Defendant has entered into an agreement.

II. Show how the Claimant has reached the amount claimed by proving a full Statement of the Account referred to, including details of all payments made and calculation of how interest was charged against each item listed, leading to the Alleged Debt of £……...

III. Also, as this is an Alleged Debt, I believe Penalty Charges may have been applied to the Account and as such may be unlawful under the Unfair Consumer Contract Terms Regulations 1999. Therefore, I would request details of each and every Penalty Charge applied to the Account along with details of their lawfulness (i.e. if the charge is stated as being for ‘Administration’ what Administration was undertaken to support the Penalty Charge being applied) along with details of any Interest imposed against each Penalty Charge applied.

IV. Show how and when the agreement was breached and provide notice by way of Notice of Sums in Arrears served by the Original Owners along with a copy of the Default Notice from the original owners of the Alleged Debt and Certified Copies of how this was served upon the Defendant.

And then …………..

I believe that the Consumer Credit Agreement is unenforceable due to the date/age of the original agreement, 1986 (Pre-April 2007) and that if any copy of the CCA is produced it will not have the signature of both parties - Debtor and Creditor/or their representative and dated.

Much to my annoyance the one reconstituted page they came up with had exactly ……….. the signature of both parties - Debtor and Creditor/or their representative and dated.

Before the hearing I sent the court and the others, Cabot/Restons, a ‘Witness Statement’ rather than applying a change of statement of case or defence. This had …………. The alleged CCA provided is entirely invalid and unenforceable at law for the following reasons:

* Any copy of the Agreement lawfully requested by the debtor under section 78 of the Consumer Credit Act 1974, must be a valid and true Certified Copy of the Original Agreement - in this instance, reconstituted agreements are not valid, true copies and unacceptable.
THE COPY PROVIDED IS NOT AN ORIGINAL NOR A CERTIFIED COPY

* The Agreement must contain a Credit Limit, or a reference that the Credit Limit will be set at a later date, or a statement that no Credit Limit is required.
THE COPY PROVIDED DOES NOT

* The Agreement must declare the APR% rate, monthly and/or annually.
THE COPY PROVIDED DOES NOT

* The Agreement must contain a date/or indication of a date such as weekly, monthly or annually, for payments to be made, or state a date will be decided upon later, or that monthly statements will be provided to show the date of required payment.
THE COPY PROVIDED DOES NOT

* The Agreement must contain ALL Terms and Conditions in existence on the date of signing.
THE COPY PROVIDED DOES NOT

* The agreement must be legible, and the type face distinguishable from the background colour.
THE COPY PROVIDED IS NOT FULLY LEGIBLE

* ALL of the above, must be contained within a single, signed document.
THE COPY PROVIDED DOES NOT CONTAIN THE ABOVE

The judge asked me if I had received the CCA copy and I said yes but it isn’t original or certified and doesn’t comply. Their barrister then rabbited on about case law and allowing reconstituted CCA due to some fire in the past and you can’t expect originals if they have been burnt to ash etc. ( On a tangent this made me think that if I have a wad of cash and my house burns down, as long as I have photocopies then I can still spend it …. ha, as if that would work )

Anyway, the judge just agreed with everything she said and also told me that case law had superseded the Lord Denning ruling and prevented me from seeing the Deed of Assignment as it is a private document. ( I’ve since spoken to a solicitor who knows their stuff who said that what the judge said was actually not true )

After awarding their costs against me, despite my protests that why should I be paying their costs when they haven’t provided legitimate proof of claim he then asked the barrister how much time would she like, will three months be enough to find the missing documentation, with which she said that should be enough.

I can’t remember what the judge said after that but he closed the hearing and I left, not in a very good mood.

I don’t recall the judge saying anything about any consequences for not producing the documents and the only mention of producing them was when he allowed the extra three months.

I think the judge basically couldn’t give a monkeys as he appeared to be very bored with the whole thing and spoke to the barrister most of the time. I felt that I was just an irritation to him as I didn’t understand all the “legalese” that he and the barrister were spewing and asked several times what it all meant.

Basically, I think I’m shafted.

by Tiggy Sun Dec 10, 2017 12:18 pm

You could use the first section and expand on it (ie you've asked for the terms & conditions etc.), but you don't have to do anything at the moment.

Wait for the 3 month period to expire, see what they come up with and take it from there.

by barnwebb Sun Dec 10, 2017 4:43 pm

ok, thanks, and if after the three months there is silence or they just haven't managed to come up with the documents how do I go about finishing them off ?

And if they do come up with the documents I guess it's game over and a big bill for me.

by Ausk Mon Dec 11, 2017 8:31 am

barnwebb wrote:Hi Tiggy,

After awarding their costs against me, despite my protests that why should I be paying their costs when they haven’t provided legitimate proof of claim he then asked the barrister how much time would she like, will three months be enough to find the missing documentation, with which she said that should be enough.

I can’t remember what the judge said after that but he closed the hearing and I left, not in a very good mood.

I don’t recall the judge saying anything about any consequences for not producing the documents and the only mention of producing them was when he allowed the extra three months.

Is there any particular reason you did not ask the judge why he was so generours with time and laxity of proof?

Words like bias, failure of impartiality, miscarrage of justice and perhaps even dirty hands come to mind (because they have been overly generous to the prosecution.)

Hopefully Tiggy will give her perspective on how we might be able to manage a similar situation in the future so we dont get aught out a second time.

by Tiggy Mon Dec 11, 2017 1:34 pm

A Judge, especially in the Small Claims Track, works on a balance of probabilities and will have been working to the assumption that the debt was due and owing.

There's not much that you can do at this stage, they'll either come up with the required paperwork or they won't. I certainly wouldn't risk another application to get it dismissed.

If they don't hopefully, they'll discontinue, if they do you'll have to assess your options.

by barnwebb Mon Dec 11, 2017 4:06 pm

Ausk, I had never been in court before and although I thought I was mentally prepared, in reality when it came to the crunch I was way out of my depth and was trampled underfoot. Certainly a learning experience.

I've been told, a bit late, that I only had 21 days to appeal the decision which is a tad annoying as I had thought it was longer than that.

I might consider doing a deal in advance of the end deadline to avoid the potentially crippling costs that I'm sure will be added if they win. Many options and not all good ones.

by Tiggy Mon Dec 11, 2017 7:46 pm

barnwebb wrote:Ausk, I had never been in court before and although I thought I was mentally prepared, in reality when it came to the crunch I was way out of my depth and was trampled underfoot. Certainly a learning experience.

I've been told, a bit late, that I only had 21 days to appeal the decision which is a tad annoying as I had thought it was longer than that.

I might consider doing a deal in advance of the end deadline to avoid the potentially crippling costs that I'm sure will be added if they win. Many options and not all good ones.

You can only appeal a final order (ie this wasn't a Final CCJ type of decision so you wouldn't be able to appeal it). You had the option to apply to set aside the order that had been made but you only had 7 days to apply (set asides and appeals are different) look at a copy of the order they sent you, it should say it on the bottom.

As this is a claim under £10k it is within the Small Claims Track, which is covered by Civil Procedure Rule 27, which basically, means they can't add on any Solicitors costs (costs are restricted under the small claims track).

The application you made was made outside of CPR 27 (ie outside of the Small Claims Track) and is covered by a completely different Civil Procedure Rule, which is why they were able to request costs.

There's no need to rush into any decision at this point, just see what they come up with.

by barnwebb Mon Dec 11, 2017 9:47 pm

Actually the Order has no information on it about set aside or appeals or anything other than the three points (of the order) I’ve already uploaded.

So my strike out was under a different set of rules allowing them to screw me for costs, well that’s a bit of a sods law special eh.

I hope you’re right about not getting any more costs added if I decide to wait until the end. Eeeek !!

Restons are bugging me over the money now but I’ve told them I can’t pay the costs order until January, which is actually true but they probably won’t believe me. (I sent a copy to the court as well, I don’t know if that will hang me as technically I’m breaking the order I guess)

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