Litigation - tbern123 V Cabot Financial (Uk) Limited

[tbern123]

Sorry about taking so long.. I had a lot of typing to do...

Anyway, I would really appreciate your comments and suggestions in relation to my situation.

Any typos are my fault and not Cabots, as I was having probs scanning their defence, I retyped it myself.

That is except at the end when they get confused and think that they have the Claimant.... Wonder who checked their defence....


On a side note, please take a couple of minutes to please sign these petitions:

Petition to: Restict Access to Consumers White Data By the Debt Purchase Industry.

Petition to: Introduce legislation to give better protection from harrassment by Debt Collection Agencies.

[tbern123]

24th December 2006, 16:25

Originally Posted by tbern123

In light of the above letter, I have today started legal proceedings via moneyclaim online against Kings Hill No.1 Ltd in relation to the alleged HSBC account for undislosed damages.

Moneyclaim only has a limited space for the particulars of claim, here are the details of my claim. Please note this is ONLY in relation to the HSBC dispute...

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

Claimant claims breach of his right of privacy under article 8 of the HRA
1998 by Defendant.

Defendant has committed an offence/s by the disclosure of personal
data(as defined by the Data Protection Act 1988 to their appointed agent, Cabot Financial (Europe) Ltd.

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

Claimant claims compensation as detailed in the Data Protection Act 1988 (Part II, Rights of Data Subjects and Others, section 13. 1). Claimant also claims compensation for an offence/s committed by Defendant under the

CCA 1974 (s.77, 78 and 97) and HRA 1998 (article Claimant seeks compensation and damages of £X

[tbern123]

28th December 2006, 19:47

Originally Posted by tbern123

I checked with moneyclaim today

The following information relates to your claim:

Claim Description: Breach of Legal Rights
Claim Number: 6QZ96662
Status of this Claim: Issued
Your claim request has been accepted. The Defendant has 14 days from the date they are served with the claim, to reply.

[tbern123]

5th January 2007, 15:23

Originally Posted by tbern123

Just checked moneyclaim online, Kings Hill are disputing my claim for £500..... So now, I'll get my day in court.........

[tbern123]

6th January 2007, 12:50

Originally Posted by tbern123

lol, I think they are going to need some help...

I recieved their defence to my claim today.... The solicitors acting on their behalf are Hodsons Solicitors (no surprise there) as followers of the Cabot's threads, people will know the relationship with this firm and that they share an address with the Messageing Service Ltd (or whatever they call themselves)

3. Defence

1. The Defendant denies having committed an offence (s) under S77, S78 and 97 of the Consumer Credit Act 1974
2. The Defendent denies that the Defendant has breached the Claimants rights to privacy under Acticle 8 of the Human Rights Act 1998
3.The Defendant denies that it has committed an offence under th Data Protection Act 1988.
4. At all material times the Defendant was a company which was a part of the Cabot Financial group of companies which operate from 10 Kings Hill Avenue, Kings Hill, West Malling, Kent.
5. The Defendant company is a vehicle by which portfolios of debt are purchased from credit card companies and other similar financial organisations.
6. Cabot Financial (Europe) Limited is a company whcih administers accounts aquired by the Defendant (Cabot).
7. It is admitted that following a request for information made by the Claimant a request was made by Cabot as administrators of the debt to HSBC for documentation. HSBC were unable to supply such copies. In consequence HSBC has taken the said debt back into its ownership.
8. The Defendant in any event puts the claimant to strict proof that it was a 'creditor' for the purposes of the Consumer Credit Act 1974 and not an assignee of the debt.
9. The Defendent denies that the Claimant is entitled to the relief claime or at all

For reasons I will explain later on today, I am very pleased with this defence and honestly speaking this is better then I was hoping for.

It would appear that their Solicitors have not actually read the CCA 1974 and they have also contradicted themselves.

[tbern123]

12th January 2007, 23:22

Originally Posted by tbern123

The Court Manager
Dartford County Court
Home Gardens
Dartford
Kent
DA11 1DX

Dear Sir / Madam

Please find enclosed my completed Allocation Questionnaire (Small Claims Track). Further to section G, please find below my response to the defence provided by Hodsons Solicitors, on behalf of their client, the defendant Kingshill No.1 Ltd. Please note I am able to provide copies of the correspondence referred to in my response.

The defence that has been submitted confuses me, as response 7 contradicts response 1, 2 and 3. The Defendant’s Solicitors also appear to be confused to whom they are representing. Contrary to their defence response 6, the Defendant is in fact Kingshill No.1 Limited, not (Cabot). I would ask the Court to clarify the defence that has been submitted.

1. The Defendant denies having committed an offence (s) under s77, 78 and 97 of the Consumer Credit Act 1974.

As confirmed in a letter dated 29th September 2006, their ref: Isabel/1465790 from Ms Emma Robertson, Customer Relations Department, Cabot Financial (Europe) Limited. My initial request for information under the Consumer Credit Act 1974 was made on 8th September 2006.

In a further letter from Ms Emma Robertson, dated 16th October 2006:

‘We are writing to advise you that to date, we have not received any information from HSBC relating to the above account.’

Finally, I received a letter from Ms Robertson, dated 18 December 2006 confirmed:

‘Unfortunately, HSBC Bank plc have been unable to provide us with copies of the request information and have therefore recalled your account. We can confirm that your account has subsequently been reassigned to HSBC plc.’

Following my request made on 8th September 2006, the defendant has been unable to provide me with the documentation as specified within, the Consumer Credit Act 1974. This is also admitted in section 7 of the defendant’s defence:
7. It is admitted that following a request for information made by the Claimant a request was made by Cabot as administrators of the debt to HSBC for copy documentation. HSBC were unable to supply such copies.

Furthermore, in an emaildated 31st October 2006, I received from Ms Justine Horton, Team Leader, Customer Services Department, Cabot Financial (Europe) Ltd:

“Any requests for documentation under s77 and s78 of the Consumer Credit Act 1974 still have to be forwarded to the originators and as a result it is very unlikely that the documentation can be provided within the prescribed period. Cabot is not being obstructive regarding this matter - we are reliant on the originators”

This statement clearly demonstrates the contempt and lack of understanding the Defendant has in relation to its obligations under the Consumer Credit Act 1974.

I would like to take this opportunity to remind the court, of the content of the Consumer Credit Act in relation to s77, 78 and 97.

77. Duty to information to debtor under fixed-sum credit agreement.
(4) If the creditor under an agreement fails to comply with subsection (1) -
(b) If the default continues for one month he commits an offence

78. Duty to information to debtor under running-account credit agreement
(6) If the creditor under an agreement fails to comply with subsection (1) -
(b) If the default continues for one month he commits an offence.

97. Duty to give information
(1) The creditor under a regulated consumer credit agreement, within the prescribed period after he has received a request in writing to that effect from the debtor, shall give the debtor a statement in the prescribed form indicating, according to information to which is practical for him to refer, the amount of the payment required to discharge the debtor’s indebtedness under the agreement, together with the prescribed particulars showing how the amount is arrived at.
(3) If the creditor fails to comply with subsection (1) -
(b) If the default continues for one month he commits an offence

Summary

As admitted in their own Defence, the Defendant has been unable to provide me with the documentation I requested under s77, 78 and 97 of the Consumer Credit Act 1974. As confirmed by the Consumer Credit Act 1974, the Defendant has committed an offence under three sections of the Consumer Credit Act 1974.

2. The Defendant denies that the Defendant has breached the Claimants rights to privacy under Article 8 of the Human Rights Act 1998.

Firstly, I would like to confirm the content of Article 8 of the Human Rights Act 1998:

ARTICLE 8

RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

Without my permission, the Defendant commenced the processing of my personal data and continued to disclose my personal data to their self appointed agents Cabot Financial (Europe) Limited. As soon as the Defendant purchased this account, they’re appointed agents Cabot Financial (Europe) Limited continued to bombard me with letters and phone calls demanding payment. I feel this continued harassment, demonstrated the Defendants disrespect for my private and family life.

3. The Defendant denies that it has committed an offence under the Data Protection Act 1988.

The Defendant processed personal data relating to the Claimant, as defined by the Data Protection Act 1988, without the permission or knowledge of the Claimant. The Defendant also disclosed personal data relating to the Claimant, as defined by the Data Protection Act 1988, to their appointed agent Cabot Financial (Europe) Ltd, without the permission of knowledge of the Claimant.

I would like to take this opportunity to refer the court to an email dated 31st October 2006, I received from Ms Justine Horton, Team Leader, Customer Services Department, Cabot Financial (Europe) Ltd:

“When purchasing accounts we are not supplied with any documentation (i.e. copy agreements or statements of account) and therefore any requests for such have to be forwarded to the originators to be retrieved from their archives - as I am sure you can appreciate this can be a lengthy process”

As confirmed by the Defendants appointed agent when they purchase accounts they are not supplied with any documentation. On this basis, I am unable to ascertain why the Defendant assumed they were permitted to process and disclose my personal data.

I can confirm that the Defendant and their appointed agent is registered separately, with the Information Commissioner’s Office as Data Controller’s.

On the 5th September 2002, the Defendant registered with the Information Commissioner’s Office as a Data Controller. Their Data Protection Register, reference is Z7064593 On the 26th April 2001, the Defendant’s appointed agent Cabot Financial (Europe) Ltd registered with the Information Commissioner’s Office as a Data Controller. Their Data Protection Register, reference is Z5415234.

Data Protection Act 1988

PART I

PRELIMINARY

Basic interpretative provisions. 1. - (1) In this Act, unless the context otherwise requires-

"data controller" means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;

"personal data" means data which relate to a living individual who can be identified-

Fair Processing Notice

As clearly stated on the Information Commissioner’s Office own website http://www.ico.gov.uk/ :

Q: What do I need to put in my fair processing notice, which is given to individuals before I process their information?

You will need to outline what and how information is going to be processed. This is to make sure the individual knows exactly what is going to happen to their information and how it is going to be used. You shouldn't be doing anything with personal information unless the individual is made aware.

I can confirm that I have never received a Fair Processing Notice from the Defendant.

4. At all material times the Defendant was a company which was a part of the Cabot Financial group of companies which operate from 10 Kingshill Avenue, Kingshill, West Malling, Kent.

As the defendant is fully aware, both the Defendant and their appointed agents are registered with Companies House as different Limited Companies. I do however accept that both the Defendant and their appointed agent are part of a group of companies.

5. The Defendant company is a vehicle by which portfolios of debt are purchased from credit companies and other similar financial organizations.

This is not in dispute and is not relevant to my claim.

6. Cabot Financial (Europe) Ltd is a company which administers accounts acquired by the Defendant (Cabot)

Contrary to the Defendants response (Cabot) is not the named defendant. Kingshill No.1 Limited is the defendant. I would ask the court to clarify with Hodsons Solicitors, exactly who they represent.

7. It is admitted that following a request for information made by the Claimant a request was made by Cabot as administrators of the debt to HSBC for copy documentation. HSBC were unable to supply such copies. In consequent HSBC has taken the said debt back into its ownership.

Sadly, this frank admission contradicts the rest of the defence filed on behalf of the Defendant.

8. The Defendant in any event puts the claimant to strict proof that it was a ‘creditor’ for the purposes of the Consumer Credit Act 1974 and not an assignee of the debt.

I am disappointed the Defendant is not fully converse with the Consumer Credit Act 1974 and I welcome the opportunity to put to strict proof that the Defendant was a ‘creditor’ for the purpose of the Consumer Credit Act 1974.

I would like to take this opportunity to refer the court to the correspondence I have received from HSBC and Cabot Financial (Europe) Limited.

a) HSBC state in their letter of 12th September 2006:

“I am writing to inform you that the above account was sold by HSBC Bank plc to Kingshill No.1 Ltd on 2nd May 2006.

This means that the effective owners of the above account are Kingshill No.1 Limited”.

Cabot Financial (Europe) Ltd, have provided me with a statement dated 31st October 2006 that confirms that this account was acquired by Kingshill No.1 Limited on 2nd May 2006.

Furthermore, in a letter from Cabot Financial (Europe) Ltd dated 18 December 2006, they state:

"We can confirm that your account has subsequently been reassigned to HSBC Bank plc"

As I am sure Hodsons Solicitors as qualified legal representative of the Defendant, they are fully aware that the Consumer Credit Act 1974 clearly states:

189. Definitions
"Creditor" means the person providing credit under a credit consumer agreement or the person to whom his rights and duties under the agreement have passed by assignmentor operation of law, and in relation to a prospective consumer credit, includes the prospective creditor'

I feel that the correspondence from HSBC, Cabot Financial (Europe) Ltd and the above extract from the Consumer Credit Act 1974 are strict proof that for the purpose of the Credit Consumer Act 1974, the Defendant was a “creditor” of this debt.

9. The Defendant denies that the Claimant is entitled to the relief claim or at all.

I have based my claim for £500.00 based on the Financial Ombudsman’s guidelines for awards for non-financial loss. I appreciate that the Financial Ombudsman Service, do not currently govern Debt Collection Agencies, however their guidelines are a finance industry accepted way to calculate compensation.


Regards




tbern123

[tbern123]

16th January 2007, 19:00

Originally Posted by tbern123

Ok, just checked with Royal Mail

Letter to Mr Dean Spencer
Letter to Mr Maynard (Kings Hill No 1)
Letter to Court Manager

All delivered.... So now the ball in well and truely in their court....

[tbern123]

8th February 2007, 12:38

Originally Posted by tbern123

Just called the court for an update... My claim is being reviewed by a judge and I should hear more in another 4-6 weeks...

[tbern123]

28th February 2007, 18:34

Originally Posted by tbern123

Finally had a response from the Court

1) My claim has been allocation to the small claims court
2) I have to serve a fully pleased Particulars of Calim by 12th April
3) Defence has to file a fully pleaded Defence by 9 April

I am a little disappointed, as I was really please with what I have previously sumitted. But on the other hand alot of information has come to light since I first made my claim, so this will be a good chance to add one or two things lol

[tbern123]

My New Particulars of Claim:

11th March 2007, 00:04

Statement of Facts


On 2nd May 2006, the Defendant, Cabot Financial (UK) Limited (previously called Kings Hill (No.1) Ltd) purchased, an account from HSBC Bank Plc. Following numerous letters and phone calls from the appointed agents of the Defendant, on 8th September 2006, the claimant made a request under sections 77, 78 and 97 of the Consumer Credit 1974 for a copy of the executed credit agreement and supporting documentation to establish the validity of the alleged debt.


On 18 December 2006, the Defendants appointed agents Cabot Financial (Europe) Ltd, confirmed that they were unable to provide any documentation in relation to this alleged debt. On 28th January 2007, the Claimant made a Subject Access Request, under the Data Protection Act 1988, for details of the information held by Defendant.

On 20 February 2007, the Defendants, Solicitors (Hodsons) wrote to the claimant and confirmed that they did not hold any data in relation to the Claimant.


The Defendant disclosed the Claimants personal data, as defined by the Data Protection Act 1998 to their appointed agents Cabot Financial (Europe) Limited without the consent or knowledge of the Claimant. As confirmed in their letter of 19 February 2007, Cabot Financial (Europe) Ltd, subsequently disclosed this Data to their solicitors Hodsons and to UK Changes.


The Defendant refutes, they are the Creditor for the purpose of the Consumer Credit Act 1974. However, as confirmed by HSBC Bank Plc and subsequently by the Defendants agents Cabot Financial (Europe) Limited, the Defendant purchased the account from HSBC Bank Plc, as confirmed by section 189 of the Consumer Credit Act 1974, they became the creditor. Please refer to, UNADKAT & Co (ACCOUNTANTS) LTD And ASHOK BHARDWAJ .V. The TREASURY SOLICITOR [2006] EWHC 2785 (Ch) paragraph 2, (by virtue of of a debt assignment, the interested party becomes the creditor).

The Claimant is seeking exemplary damages, in relation but not limited too:

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 199 and has committed an offence under the Data Protection Act 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 198 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)

[tbern123]

Ok, I finally received their new defense yesterday. To make further discussion as easy as possible, I will post each point individually...