Elizabeth1 v Cabot

[elizabeth1]

Today I went to court with my husband to deal with a case against Cabot Financial (UK) Ltd and Cabot Financial (Europe) Ltd.

These companies had previously tried to take my husband to court over two Credit Card accounts in December last year. We didn't recognise the companies involved so defended their claim by asking for the CCA's and Subject Access Request's for the accounts involved.

There were no CCA's and the Subject Access Request consisted of mainly generic letters with a recent dates on - so could have been for anybody anywhere? As a result of this Cabots were struck out of court - Judge had ordered Cabots to provide the necessary papers to prove their claim they failed to do so.

It was then that months were spent writing letters trying to get to the bottom of what Cabots were doing. It seemed that our friends in Cabot wouldn't show anything more than an Application Form to represent the CCA. WW wrote and told us that "we are not going to chase you for these accounts/debts - we are just going to keep writing crap to the CRA's and adding interest to these accounts". Naturally - that isn't a charming prospect is it? SO WE FILED A COURT CLAIM AGAINST THEM

In our Court Claim against the two Cabot companies (remember one buys the debt - the other processes the paperwork) we asked for ALL THE PAPERWORK.

Cabots filed a Defence using their solicitors HODSONS who basically filled our letterbox with the same old papers - totally irrelevant generic crap.

TODAY we had the AQ HEARING Cabots/Hodsons sent in a Local Locum solicitor lady - she was very nice. She was briefed by her clients to push to fast track hearings so that Cabots could push to get costs off us etc.. Now baring in mind that this claim wasn't about money - it was about PAPERWORK - the lady kept twisting and wriggling and trying her best to complicate matters to gain fast track in court.

Everytime it came to Hubbies turn to speak she interupted and kept bringing other issues which were nothing to do with the claim into the mix. The poor judge was looking confused and worried and the amount of papers in the folders to date = baffling!! Well I must say I got fed up and was there to help my hubby - two heads being better than one and all that. I then decided it was time to tell judge what we REALLY wanted.

A SINGLE DOCUMENT REPRESENTING EACH OF THE ACCOUNTS IN QUESTION IN THE FORM OF AN ENFORCEABLE CCA WITH THE CORRECT TERMS AND CONDITIONS TO REPRESENT THE CORRECT TIME OF ISSUE OF THE CARDS INVOLVED IN THE CASE.

It was simple - the Hodsons person screwed faces at the skeleton argument I presented judge with and she made several attempts to complicat matters by throwing other documents across to Judge like sale agreements etc.. she did earn jher dosh by trying really - the point I made was to keep the Claim simple at this stage and show Judge that the CCA was the foundation document the other papers didn't matter until a point where the CCA was proved to be correct and fully enforceable.

Fortunately the argument used was clear and simple and Judge issued an Order to Cabots to provide the relevant CCA's with all of the correct terms and condition as per an enforceable agreement. Cabots have 8 weeks to do this in or be struck out of court again.
Now let's see how they manage to complicate that order!!!

I post below the skeleton argument used to get this result today.

[elizabeth1]

Skeleton Argument
For the Attention of Case Manager

In the Matter of
Claimant V's
Defendants (1) Cabot Financial (Europe) Ltd
(2) Cabot Financial (UK) Ltd

CLAIM NUMBER -

1. This argument is intended to elucidate and clarify the issues that appear to the defendant to be hampering the speedy and equitable resolution of this court case, in order to expedite the directions hearing and management of the case. It is intended to be read in conjunction with the defence I have already submitted.

BACKGROUND TO THE CASE AND PREVIOUS LEGAL ACTION
2. The defendant brought a case against me on 4th December 2006, alleging that I had defaulted on two credit agreements. Case xxxxxxx issued at Rugby County Court and later transferred to xxxxx County Court at my request for a local Hearing. 3. After several disclosure requests, and a court order, the defendant failed to provide any enforceable credit agreement and the case was struck out on xxx xxx 2007.
4. Despite the fact that the court has already struck out the claims, the defendant continues to report inaccurate data about myself, despite a section 10 notice to cease and desist such processing, and has indicated its intention to continue updating such information(exhibit 1)

5. Subsequently, the defendant has provided within their Defence two documents it claims are the executed credit agreement (see attached, Exhibits 2 and 3). I respectfully submit that the defendant is bound to these claims by virtue of s172 of the Consumer Credit Act 1974.
6. It is my belief that these credit agreements are unexecuted, and that the court should use its powers under section 141 of the consumer credit act to determine the rights of the parties.
7. Further, it is my contention that this is unwarranted, and that by registering and updating default information on an unexecuted agreement, the defendant is attempting to bypass the will of parliament.
UNEXECUTED CREDIT AGREEMENTS
8. I refer in this section to both alleged agreements, exhibits 2 and 3.

9. Under s59(1) it appears that such agreements are void. It is therefore denied that these alleged credit agreements are valid for the purposes of enforcement by the courts.

10. In respect of that which is denied, if the court should decide that these are not void by virtue of s59(1) :

11. It is respectfully submitted that these agreements are improperly executed because they do are not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983. Each agreement was made before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

12. Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since these documents do not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.
13. The claimant requests that the court use its powers under section 141 of the consumer credit act to determine the rights of the parties.

Data Protection Issues
14. It is the contention of the claimant thatthe defendant has unlawfully processed data, in so far as it is updating data held by third party credit reference agencies, and for the reasons given in this section

15. Thedefendantat no pointnotified me that it was processing my data; this is in contravention of the data protection principals of the data protection act 1998 ("the act") schedule 1, part 2, s2 & s3.

16. The defendant, knowing that no legal obligation exists between the defendant and I, and by continuing to report the account as in arrears is failing in its duty to process data accurately, as required under schedule 1, part 2, s 7 of the act.
17. Having entered no lawful contract with the defendant, or the original creditor, (the alleged agreements having always been invalid as improperly executed) the defendant is now, and has always, been processing my personal data unlawfully with no legitimate interest in contravention of schedule 1, part 2, s9 of the act.
18. The defendant admitted, in a letter dated, 28 march , that it considers the amount outstanding "irrecoverable"; it is my contention that, knowing this to be the case (that is, that there was no basis in law to attempt to recover any money under the agreement), it is against both the spirit and letter of the law that a creditor should be able to continue to process data, and distribute that data including allegations of bad faith (that is, a default, or arrears on a credit agreement) rendered unenforceable by law.
19. It is further my contention that by updating the information at the credit agency, the defendant is continuing to process this data. The information at the credit reference agency expressly states that the defendant is the creditor, and having purchased all rights and duties under the agreement it is the data controller for the purpose of the data protection act 1998.
20. It is respectfully submitted that, a debt rendered unenforceable in the courts by the express will of parliament should not be enforced by any means whatsoever, and that the protections rendered by virtue of the consumer credit act should protect the claimant against unfounded allegations of default or arrears made by the defendant. The attention of the court is drawn to Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch) thus:

'What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…’

21. Further, it is the contention those at all relevant times this credit agreement was unexecuted, and that therefore there is not, and has never been, any lawful obligation to repay monies to the defendant, and that as a consequence any allegations that such an obligation exists are unfounded.
REQUEST FOR COURT ORDER
22. In view of this skeleton argument, I respectfully request the court determine the rights of parties to the credit agreement.
23. Further, I respectfully request pursuant to section 14 of the act, that the court order, the defendant cease and desist processing my personal data, that it requires any third party the defendant has disclosed my data to destroy this data.

[Bookworm]

Stickied at Rory's request.

[itsamomentintime]

any updates on this one?

[elizabeth1]

Originally Posted by itsamomentintime

any updates on this one?

YES sorry I had replied with update on my thread recently - I forgot about this sticky.

Next Hearing is on 15th January 2008. This is for allocation of track etc..

Cabot's have simply replied to Courts previous Order and sent to us a repeat of the same paperwork copies of application & reply card - nothing like what we have asked for sight of so we do continue with this case.

[bucksmills]

Hi ;

Am I correct in saying that if these DCAs such as cabot cannot supply a CCA then they have no grounds to demand payments ????????
I was rushed to hospital following collapse while walking and told later poss brought on by stress.
Iam retired on a small pension and as an earlier result of illness and loss of job was unable to pay my credit cards and overdraft.
These have been sold on so in the event they cannot produce the original CCA do they have no case???????? and if I pay monies I cannot afford (which I have ) and it makes me ill which it obviously is does that constitute admittance on my part and nullifies the possibility of no CAA.

Many thanks for any help

[rory32]

in the event they cannot produce the original CCA do they have no case????????

Yes.

and if I pay monies I cannot afford (which I have ) and it makes me ill which it obviously is does that constitute admittance on my part and nullifies the possibility of no CAA.

The copy of the agreement is a legal requirement. Without this the debt/account can not be enforced even in a court of law. The fact that payments have previously been made is irrelevant.

I would suggest that you start a thread on your own personal circumstances where you will receive a lot of advice and help.

[MilkTrayMan]

Hi bucksmill!

Originally Posted by bucksmills

...Am I correct in saying that if these DCAs such as cabot cannot supply a CCA then they have no grounds to demand payments ????????...

Many thanks for any help

The answer to your question is basically...YES!!!

I would advise U to read through as many Threads as U can concerning this first, so that U get to understand the principals.
When U feel that u are ready, start your OWN Thread + Post your development, so that other Members can assist U if U have any queries.

The basics are that if the DCA can't produce a TRUE Copy of the Original Credit Agreement, as per the CCA 1974, within 12 working days, then U can LEGALLY withhold payment to them, cos it is THEY that have Defaulted.

If, after One further Calendar Month the DCA still haven't provided it, the DCA has committed an offence + the 'alleged' Debt becomes 'Unenforceable'.

Be mindful of the various amendments that have been enacted recently though, as these may apply to U.

Best of Luck!...

[MilkTrayMan]

<Note to Self>: Learn to Type Quicker!!!...

[bucksmills]

many thanks am coming back to you later

[bucksmills]

Hi Folks ;

Many thanks for help the forum the site everything.
I am reading reading reading.
I now have what i believe to be a sensible and very pertinent Q
The following is an extract from the Limitations act 1980 which most if not all of you folks will know.

Creditors are given a fixed period of time to chase their debtors, which is outlined in the Limitations Act 1980. The time scale mainly depends on the type of debt and can be extended at the courts discretion. The time limit begins when you last admitted owing the money or made a payment.

Where the debt has been sold on to A and then to B who lets assume cannot provide a CCA then even if money has been paid to them (because I was not wiser) then as was pointed out in an earlier post I CAN STOP paying and demand the CCA which most likely will not be forthcoming in which case as I understand from info gleened here then the debt is NOT enforceable.
IN ADDITION would the weight of law also be in my favour if the original seller lets say Barclays sold this debt on OVER 6 years ago so on the one hand the current aledged debt holder has no CCA and the original holder if they do have one are over the 6 year limit.

Many thanks

As advised I am reading and gleening with a potential plan of picking of one of my creditors re CAA claim and see how I fare.

[car2403]

The Limitation Act probably doesn't function here, as you've paid under the original agreement - albeit to a different party to that agreement due to assignment or sale of the debt.

What the Limitation Act doesn't do, is effect the legal status of any query you make regardint the debt under the CCA. Making a s.77/s.78 request effectively places the account "in dispute" which means they shouldn't be collecting, or attempting to collect, on that account until the dispute is resolved to YOUR satisfaction. This is the reason why you've been told to withhold payment - without satisfying your dispute, they can't legally enforce the debt against you.

I suggest you start your own thread, in the relevant sub-forum, bucksmills, so we can give you detailed advice on how to handle/proceed with your issue. It's all very well reading around the forums for background understanding, but when it comes down to querying your own account, we can't offer specific advice on someone's elses thread.

[Hadituptohere]

Any News on this thread???????

[elizabeth1]

Well yesterday was fine really - case has been adjourned till after June 2008. Hodsons Solicitors who are defending for Cabots sent along the same lady representative with a remit to apply for fast track and costs at anycost - she estimates somewhere upto £15k so they won't settle for less than fast track (like the track is Cabots/Hodsons decision anyway? who do they think they are?).

Couple of reasons for this adjournment - we know the defaults are due to drop off in June 2008 - damage is already done to us due to the longevity of Cabots damaging our reputation writing to CRA's - we reminded Judge damages were at descretion of court if applicable at that point. Our position was - at this stage even going straight for another hearing it was going to be sometime June/July time so default period was complete then - so we'd be running up costs for something that had finished? So it was better to make Judge see this now?

Cabot's still haven't supplied any CCA's as per the order issued by court previously - so 15 months and they still happy that an application form is an agreement (chortle chortle - what planet are they on?) they'd still like more time for coming up with the CCA. Also they offer absolutely no legal argument against what is said in our skeleton argument - Judge is convinced we make sense - Hodsons Rep says to Judge she had no argument in what we were saying either (= she couldn't muster up a defence for her clients either???? ).

Case will be relisted after June where we can decide whether to persue Cabots for Damages for their full 6 years of Damaging hubbies reputation or whether we discontinue claim completely and incurr no further cost risk elements etc.. because default period naturally ends then. (we can assess the likely damage costs if we decide to continue actions)

Hodsons Rep says it is likely that Cabots would want to pursue us for costs to date whether we pursue claim at that point or not - Judge replied that he wasn't happy with that idea and he recommended each party bare their own costs - and he wrote this in the files and made sure it was on the audio tape too - so there will be no confusion later should Cabot try it on chasing costs. (ha ha ha geez that made me happy!!) - because it was an allocation hearing Judge couldn't issue and order - so he made sure it was down in file to avoid later confusions.

So what we did was basically hold Cabots back - have given ourselves opportunity to see whether they do quit writing to the CRA's and defaults drops off - Cabots have to pay their own costs so far - which they'll not be happy about. Our aim was to not see Judge allocate a track to this claim until we could properly assess damages due and whether defaults ended naturally in June - we can decide ourselves then whether we want to continue for damages etc.. or whether we want to discontinue and sue for Damages at that point - the decision will be ours.

But we are happy with this result - as the default end dates played a big part in the angle we took yesterday - also we haven't incurred any unreasonable costs ourselves - also this means Cabots pay their own costs and will have to wait and see what we decide to do - they will be unable to chase us any further regarding default balances and costs - so all in all Cabots didn't get anywhere at all - BUT we got exactly what we wanted
Hodsons representative tell's Judge she wants costs for her clients and rambles loads of crappy stuff purely to throw focus off their wrong doing - so Judge tells her "how can you apply fast track for costs when you don't know what the costs and damages are now?" she didn't reply.