Litigation - tbern123 V Cabot Financial (Uk) Limited

[tifo]

received a response from FOS stating that :

"we only consider issues against debt collecting agencies for events that took place on or after 6 April 2007"

So ... no help with existing complaints?

[ScarletPimpernel]

A shame they don't make that clear on their website or literature!

[tifo]

yes, but it means anything the DCA does after this date and is a new complaint may be covered.

[Jeff2000]

Originally Posted by tifo

yes, but it means anything the DCA does after this date and is a new complaint may be covered.

Yes, so just wait until they p*** you off again, then complain!


Jeff.

[tbern123]

Originally Posted by tifo

received a response from FOS stating that :

"we only consider issues against debt collecting agencies for events that took place on or after 6 April 2007"

So ... no help with existing complaints?

No offence, tifo but when I saw your post, I couldn't believe it....

I called the FOS and it is true, contrary to what is on their website, they will only investigate events after 6 April 07.

Thanks for letting us know, very much appreciated. I had been waiting on a response from them...

[tifo]

no problem tbern ... your fight with Cabot is also an inspiration ...

thanks for the rep.

[Donel261]

Just reading the CCA 1996, in particular "default notices"

Notice of default sums
After section 86D of the 1974 Act (inserted by section 11 of this Act) insert-
"86E Notice of default sums
(1) This section applies where a default sum becomes payable under a regulated agreement by the debtor or hirer.
(2) The creditor or owner shall, within the prescribed period after the default sum becomes payable, give the debtor or hirer a notice under this section.
(3) The notice under this section may be incorporated in a statement or other notice which the creditor or owner gives the debtor or hirer in relation to the agreement by virtue of another provision of this Act.
(4) The debtor or hirer shall have no liability to pay interest in connection with the default sum to the extent that the interest is calculated by reference to a period occurring before the 29th day after the day on which the debtor or hirer is given the notice under this section.
(5) If the creditor or owner fails to give the debtor or hirer the notice under this section within the period mentioned in subsection (2), he shall not be entitled to enforce the agreement until the notice is given to the debtor or hirer.
(6) The debtor or hirer shall have no liability to pay any sum in connection with the preparation or the giving to him of the notice under this section.

Errrrm, we all have Kings Hill (No 1) defaults on our credit records but (1) what right did they have to place it there in the first place and (2) where was the "notice" that they were going to enter such a default against us upon purchasing the debt?????

[tbern123]

Originally Posted by tbern123

2. By a letter dated 12th May 2006, Cabot Financial (Europe) Limited, acting as agent of the Defendant and on its behalf, informed the Claimant that:

i) HSBC's rights under the HSBC account had been assigned to the Defendant;
ii) the balance outstanding and due to be repaid by the Claimanton the HSBC account was £*,***.**
iii) accounts assigned to the Defendant were serviced by Cabot Financial (Europe) Limited;
iv) Cabot Financial (Europe) Limited was authorised to receive payment on behalf of the Defendant and all correspondence should be addressed to Cabot Financial (Europe) Limited;
v) information about the Claimant's debt might be sent to the Credit Reference Agencies; and
vi) any information obtained would be used for the purpose of collecting debt.

This is what they have stated in their defence. However this is what the letter actually states.. No mention of rights... But account gets a few mentions

[tbern123]

Originally Posted by tbern123

18. The Defendant is unable to prove the Claimant consented to the disclosure of his personal date in relation to the HSBC account by HSBC to third parties. HSBC has retained no copy of the agreement for the HSBC account.

Got that right sherlock !! But remember ACCOUNT !!!!!

[tbern123]

Just remembered I have not updated this thread.....

Anyway.....

Here is an email I sent to Cabot in relation to their defence:


----- Original Message ----- From: tbern123
To: wwellinghoff@cabotfinanci al.com
Cc: kmaynard@cabotfinancial.c om ; gcrawford@cabotfinancial. com ; ntodd@cabotfinancial.com ; cbowyer@cabotfinancial.co m
Sent: Sunday, April 29, 2007 10:00 PM
Subject: Your Defence - Claim No. 6qz96662



Dear Sirs

Please find below my response to your defence. Please note I have brought to the attention of the Court, your mistakes and incorrect statements.

Regards

tbern123

28 April 2007

The Court Manager
Dartford County Court
Court House
Home Gardens
Dartford
Kent
DA1 1DX


Dear Sir / Madam

Further to your letter of 26 February 2007, in relation to the Courts order for the Defendant, to file and serve a fully pleaded Defence complying with CPR 16.5 on or before 9th April 2007. I have not received a sealed copy of the Defence from the Court. However, the legal representative of the Defendant has provided me with a copy of the Defence they submitted. As per Civil Procedures Rule 16.7, I would like to take this opportunity to reply to the Defence submitted by the Defendant.

As per my Particulars of Claim, I am seeking exemplary damages, in respect of:

1. The Defendant made no attempt to establish the validity of the alleged debt.
2. Distress caused by letters and phone calls from Defendants, agents Cabot Financial (Europe) Ltd.
3. Defendant has been unable to provide evidence of the agreement by Claimant. As such is unable to establish that Claimants consent had been given to process his personal data (as defined by Data Protection Act 1998 and has committed an offence under the DPA 1988 (schedule 2. 1 The data subject has given his consent to the processing.)
4. Defendant has committed an offence/s under the CCA 1974 s77, s78 and s97, in relation to requests made by the Claimant for documentation.
5. Defendant has committed an offence/s by the disclosure of personal data (as defined by the Data Protection Act 1998 to their appointed agent, Cabot Financial (Europe) Ltd.
6. Claimant claims compensation as detailed in the Data Protection Act 1988 (Part II, Rights of Data Subjects and Others, section 13. 1).
7. Claimant seeks compensation and damages of £500. (compensation calculated using the Financial Ombudsman guidelines for awards for non-financial loss)

The Civil Procedure Rule 16.5 Content of Defence (5) states;

(5)
Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.



Particulars of Claim

Point One
The Defendant made no attempt to establish the validity of the alleged debt.
As the Defendant has failed to respond to point one of my claim, I assume that they admit that they made no attempt to establish the validity of the alleged debt. Further more, point 18 of their defence confirms that no actual documentation exists. Therefore, they have been unable to prove that a debt existed and even if, which is not admitted that a debt existed the Claimant was the debtor in this instance.

Point Two
Distress caused by letters and phone calls from Defendants, agents Cabot Financial (Europe) Ltd.

The Defendant, has also failed to respond to point 2 of claim. I again assume that they admit that distress was caused by letters and phone calls from the Defendants appointed agents Cabot Financial (Europe) Limited.


Point Three
Defendant has been unable to provide evidence of the agreement by Claimant. As such is unable to establish that Claimants consent had been given to process his personal data (as defined by Data Protection Act 1998 and has committed an offence under the DPA 1988 (schedule 2. 1 The data subject has given his consent to the processing.)

This has been freely admitted by the Defendant in point 18 of their defence.

Point Four
Defendant has committed an offence/s under the CCA 1974 s77, s78 and s97, in relation to requests made by the Claimant for documentation.

The Defendant denies that they are the creditor for the purposes of the CCA 1974 and also deny receiving the statutory fee, for a request made under the CCA 1974. The CEO of Cabot Financial is Mr Ken Maynard, he is also the Chairman of the Debt Byers and Sellers Group, of which Cabot is a member. In a recent article in the Credit Online Magazine, Dr Roger Lucas of the Debt Buyers and Sellers Group , states:

“Roger Lucas, of the Debt Buyers and Sellers Group, said: "When we take assignment of debts we stand in the place of the original creditor so it’s only right we should have the same obligations and rights."
In relation to the Defendants claim they they did not receive the statutory fee. I can confirm that I made my initial request via email on 8 September 2006, followed by a letter with a cheque for £3.00 enclosed. I am disappointed, but not surprised that the Defendant has waited until now (7 months following my request) to bring this to my attention.

Point Five
Defendant has committed an offence/s by the disclosure of personal data (as defined by the Data Protection Act 1998 to their appointed agent, Cabot Financial (Europe) Ltd.

The Defendant denies that they disclosed my personal data to their appointed agents, even though as confirmed by point 1 of their defence, it was the Defendant that purchased the account from HSBC.

Point Seven
Claimant seeks compensation and damages of £500. (compensation calculated using the Financial Ombudsman guidelines for awards for non-financial loss)

As complaints relating to the Defendant, now full within the remit of the Financial Ombudsman Service, they should be fully aware of the guidance that has been published.

I would also like to take this opportunity to inform the court that the defence filed by the Defendants, has been written to deliberately mislead the Court. In response to point 2 of their defence, the Defendant is fully aware that their letter of 12th May 2006 does not say

HSBC's rights under the HSBC account had been assigned to the Defendant.

Their letter actually states:

The account you held with HSBC, was purchased by the Cabot Financial Group.

Kings Hill (No.1) Limited is the legal owner of the account, referenced overleaf.
(3)This letter acts as notice of the assignment of your account to Kings Hill (No.1) Limited and as such should be kept.

I have taken the liberty of highlighting the word account, as contrary to the Defence filed by the Defendant, there is no mention of debt, or assignment of rights.

The fact that the account and not only the rights were assigned, is also confirmed by point 3 of their defence. The letter from HSBC, also clearly states:

" I am writing to inform you that the above account was sold by HSBC Bank plc to Kings Hill No.1 Limited on 2 May 2006.

"This means that the effective owners of the above account are now Kings hill No.1 Limited"

The Defendant, also confirms in point 10 of their defence that the account has been reassigned to HSBC

Please note the use of the word account. There is no reference to a debt or the assignment of rights.

It would also appear that the Defendant has confused themselves with the Claimant. Please refer to point 26 of the defence. I have made a claim, against them for the distress they have caused me, not for the distress I have caused them. If it pleases the court, I am able to provide copies of the correspondence, referred to within this letter.

I would like to take this opportunity to respectfully request that the Defendants defence, be struck out by the Court, on the basis that they have failed to fully respond to my claim and have deliberately attempted to mislead the court.

Regards




tbern123

[tbern123]

I also sent this to Dean Spencer at Hodsons, I received a very quick and polite response, saying that he will revert to his clients...


----- Original Message ----- From: tbern123
To: Dean.Spencer@hodsonlines. co.uk
Cc: wwellinghoff@cabotfinanci al.com
Sent: Monday, April 30, 2007 11:31 PM
Subject: Claim 6QZ96662

Dears Sirs

Please forgive the requirement to email you both directly. In relation to the Defence you filed in response to my claim 6QZ96662, could you please clarify one particular point for me. I also respectfully ask that you respond to this email and do not ignore it, as per my previous emails sent to Cabot Financial (Europe) Limited.

Can you explain why in the capacity of Head of Compliance for Cabot Financial (Europe) Limited, your defence was signed by Mr Wellinghoff. For the avoidance of doubt, the Defendant in this matter is Cabot Financial (UK) Limited (formerly Kings Hill (No.1) Ltd).

I am confused as to why the Defence was signed from a different company. My confusion also relates to Mr Wellinghoff's involvement in relation to this matter as he is not employed directly by the Defendant.

Please excuse my lack of legal understanding, can you please explain how in relation to the Civil Procedure Rules, this is permissible.

Regards



tbern123

[InKogneeToh]

Originally Posted by tbern123

Can you explain why in the capacity of Head of Compliance for Cabot Financial (Europe) Limited, your defence was signed by Mr Wellinghoff. For the avoidance of doubt, the Defendant in this matter is Cabot Financial (UK) Limited (formerly Kings Hill (No.1) Ltd).

I am confused as to why the Defence was signed from a different company. My confusion also relates to Mr Wellinghoff's involvement in relation to this matter as he is not employed directly by the Defendant.

Please excuse my lack of legal understanding, can you please explain how in relation to the Civil Procedure Rules, this is permissible.


tbern123

Nice one!!

[ODC]

Tbern you are a star. Lets hope Crapbot do not offer you a job