Cabot County Court Claim Form

[joghuj]

Andrew is quite right. I thought I had a grasp on things but it's a different matter in court. I don't feel nervous in court any longer but legal training is needed for sure.

I had some false hope in that the previous judge was down Cabots throats from the off and ordered disclosure of documents. This judge was immediately with them and their arguments. I mentioned the order for disclosure but this was largely ignored. So it depends on which judge you have as well.

I can see clearly how the case was wrong and queried the fact about Cabot claiming to not being a creditor, but again judge agreed with them. I pointed out that if they were not the creditor by definition then it follows that I then have absolutely no rights or protection under the CCA1974! He seemed to confirm this, although not very clear in his answer.

I'll be ringing CAB this morning and arranging an application to Bar probono I think. I feel somewhat obliged to take it further really, for my own benefit and for others. Not like I want to run a crusade for the saviour of the people or anything but the whole matter does make me feel uncomfortable.

There is a lesson to be learnt here, just wish it wasn't me that had to learn it this way.

[B3rty]

Paul...The point I am making is we need to understand these things to be able to present the legal argument in court if and when it happens...

If we prepare for s.77/78 and use 127(3) but the judge doesn’t accept the assignment is Absolute and the contract is terminated on DN then unless we can present a good LOP case anything else is immaterial

[joghuj]

Can anyone tell me where I can get a full transcript of Wilson v Robertsons EWHC 1425?

[meanbean]

Its here:-
Wilson v Robertsons (London) Ltd. [2005] EWHC 1425 (Ch) (05 July 2005)

[42man]

Disappointed at reading this, and the judge is probably an ex partner of Hodsons....the first judge was being fair, the second was fighting for the claimant....ridiculous, some consistency would have been good......some good points raised afterwards about the assignments and the interest too..

[42man]

Just spotted this post from Cabot !!!!

So - they don't like these forums !!

[joghuj]

Been studying the sale agreement between Barclaycard and Cabot a bit and just wondered what you might think of this;

- The sale of each Account the subject of the relevant Offer in the manner herein contemplated:
will be effective to pass to the Buyer unencumbered equitable title thereto and the benefit thereof (including in such context, all Collections and other rights in connection therewith received after the relevant Determination Date in relation to such Offer) to the Buyer; and is made in compliance with all laws and regulations applicable to the Seller on the date of such sale (including, without limitation, all laws and regulations relating to the holding and transfer of personal data).

Is that meaning it is an equitable assignment?

[joghuj]

and this on the next page..

With respect to any Data Transfer, the Buyer warrants to the Seller that it will (i) only use the information and other data the subject of a Data transfer for the purposes of carrying out its obligations under this Agreement and otherwise in its position as (following acceptance of the relevant offer) creditor to the Accountholders in substitution for the Seller and (ii) take all appropriate technical and organisational measures against unauthorised or unlawful processing of the Data and against loss or destruction of, or damage to, the Data.

This is only in the OC to Cabot agreement but will the fact that it names Cabot as Creditor in this document hold up in an appeal?

[surfaceagentx20]

Sorry you lost this one. I wish it had been different.

I was asked to look at this and pass on my 2 cents worth about the propsects of any appeal.

As I understand this case, not having read any of the posts pre-dating the post announcing the Defence was lost, it is a case brought by a Claimant having the benefit of a claim by way of assignment to money under an agreement which was regulated by The Consumer Credit Act.

I do not know the level of Jude who decided this case, how it was disposed of (trial, summary judgment) the amount of the claim and the track to which it was allocated. Knowing this would be important in considerinng any appeal.

The judge decided an assignment was possible. I would agree to this extent: that what may be assigned is that which is capable of being assigned and, where money is concerned, that which is lawfully due and can be lawfully recovered by the OC (the receivables).

Evidently the agreement in question had been terminated by the OC when it was acquired by the Claimant. I suspect it was terminated for default in which event would have required the earlier service of an effective default notice. A proper area to test is whether the default notice was served and met the requirements of section 88. If it did and there was non-compliance, then following non-compliance the OC was lawfully entitled to terminate and demand early payment (ie payment of all the credit owing under agreement). At that point in time, the OC has the power to assign all its receivables under the terminated agreement as a debt lawfully due.

On the other hand, if it could not be shown that the default notice was served and met the requirements of section 88, it follows the OC would have had no right to terminate and claim early payment. The classic Woodchester v Swayne scenario. That the agreement was terminated would constitute a breach of the agrement since the agremeent enabled (I presume) the debt to be repaid by instalments and, following Woodchester, the only sum which might lawfully be recovered at that time would be instalments which were in arrear.

It seems to me that in the latter alternative [breach of s87(1)] and where the OC has terminated, all that the OC may assign is the right to the arrears. It can not assign a right of which it is not seized or a right which it is prohiited from exercising.

The question of the default notice was taken at the hearing. But the point seems to have been advanced on the basis that there was a duty on the part of the Claimant to serve a default notice. No point appears to have been taken regarding whether the OC served a valid Default notice. The judgment lacks any reference to issues of this kind which suggests to me they weren't advanced. That may have been because the Defendant accepted there had been compliance with section 87 and 88, I don't know. If no point was taken of this kind then I would agree with the judge. The concept of the default notice is to warn the debtor that a consumer credit agremeent is at risk of termination with other consequences if there is a failure to comply. The default notice has no application to an agreement post termination.

If the default point was not advanced in the way outlined above but limited to saying the Claimant owed a duty to first serve a default notice, I think the point was bad.

Next was the question about notice of assignment (NOA) and whether it was served. This is a straight contest of fact. There was the Defendant's first hand evidence that it had not been received and there was the Claimant's evidence to the contrary and which was dependant upon the retrieving of information contained in a database kept by them. I do not know who gave evidence for the Claimant and whether that person was able to say, 'I entered the information into the database, the information I entered was accurate and complete etc.', ie give first hand evidence like the Defendant was.

Either way, the Judge had the benefit of the Defendant's direct evidence that the NOA had not been received, so it is perverse for the judge to say (if the note is correct) [1] 'D says he didn't receive them' and then go on to say [2] 'D not given any evidence to support the contention that NOA were not received'. Eh? Run [1] past me again!

It seems to me that the evidence I have heard of would suggest that a reasonable conclusion might be reached that the Claimant had not discharged the burden of proof that on a balance of probability the NOA was delivered. That is not to say there is no conceivable way in which a Judge might properly reach the conclusion that it had been served. Just that it's hard to swallow and I wouldn't have decided that point in the Claimant's favour.

Nonetheless, the absence of service would not lead to an adverse judgment if the claimant's entitlement was made out on other essential, more worthy grounds, since to do otherwise would lead to a potentially inequitable result.

The other points are akin to the default notice point, that is, that the Claimant stood in the shoes of the OC as if the contract had not been terminated by the OC. Clearly the agreement had been terminated (but I am no wiser about whether it was terminated in a manner giving rise to the rights under s87(1) or terminated in a manner which did not give rise to any rights other than to the arrears.)

For the same reasons given by me in relation to the default notice, I think the Judge was right on these other points too.

In those circumastances and no issue being taken with whether the OC complied with sections 87 and 88, I fear the case was rightly decided and prospects for appeal would be poor.

That still doesn't stop me being sorry for the outcome.

x20

[joghuj]

Thanks for your input, you clearly know your stuff.

I, too am sorry for the outcome as the debt has now risen by £11K with costs and expenses of witness\claimant staying in the best hotels in town.

Anyway, thanks for your time. I may have some more questions over the next few days if you don't mind me PM you?

[joghuj]

I think Surfaceagent has summed the whole thing up quite well. I'll still be contacting Probono to see what they say however.

I'm pretty much stuffed by the look of it, I could of maybe paid the debt off in reasonable time but it's gone from £17K to £28K with the court proceedings and I would be about 253 years old by the end. After ageing 10 years in the past year I don't hold up much hope off reaching that spritely age.

I can't stomach the fact that I have to pay all that back, especially as the debt was purchased for maybe £2K. I'm wondering about a lot of things, I received a court claim 5 days before a LBA for instance so had no opportunity to resolve the debt. We'll see if pro bono can offer anything but I'm doubting that now.

I suppose an option still open is bankruptcy, big call but maybe that is the way to go. I earn a fair salary, own a property (negative equity of course) and 3 kids to support so my disposable is limited.

If it was anyone else (i.e. the OC) then I would think different perhaps.

At least the sun is shining this evening...

[tinkerbell20]

Originally Posted by surfaceagentx20

Sorry you lost this one. I wish it had been different.

I was asked to look at this and pass on my 2 cents worth about the propsects of any appeal.

As I understand this case, not having read any of the posts pre-dating the post announcing the Defence was lost, it is a case brought by a Claimant having the benefit of a claim by way of assignment to money under an agreement which was regulated by The Consumer Credit Act.

I do not know the level of Jude who decided this case, how it was disposed of (trial, summary judgment) the amount of the claim and the track to which it was allocated. Knowing this would be important in considerinng any appeal.

The judge decided an assignment was possible. I would agree to this extent: that what may be assigned is that which is capable of being assigned and, where money is concerned, that which is lawfully due and can be lawfully recovered by the OC (the receivables).

Evidently the agreement in question had been terminated by the OC when it was acquired by the Claimant. I suspect it was terminated for default in which event would have required the earlier service of an effective default notice. A proper area to test is whether the default notice was served and met the requirements of section 88. If it did and there was non-compliance, then following non-compliance the OC was lawfully entitled to terminate and demand early payment (ie payment of all the credit owing under agreement). At that point in time, the OC has the power to assign all its receivables under the terminated agreement as a debt lawfully due.

On the other hand, if it could not be shown that the default notice was served and met the requirements of section 88, it follows the OC would have had no right to terminate and claim early payment. The classic Woodchester v Swayne scenario. That the agreement was terminated would constitute a breach of the agrement since the agremeent enabled (I presume) the debt to be repaid by instalments and, following Woodchester, the only sum which might lawfully be recovered at that time would be instalments which were in arrear.

It seems to me that in the latter alternative [breach of s87(1)] and where the OC has terminated, all that the OC may assign is the right to the arrears. It can not assign a right of which it is not seized or a right which it is prohiited from exercising.

The question of the default notice was taken at the hearing. But the point seems to have been advanced on the basis that there was a duty on the part of the Claimant to serve a default notice. No point appears to have been taken regarding whether the OC served a valid Default notice. The judgment lacks any reference to issues of this kind which suggests to me they weren't advanced. That may have been because the Defendant accepted there had been compliance with section 87 and 88, I don't know. If no point was taken of this kind then I would agree with the judge. The concept of the default notice is to warn the debtor that a consumer credit agremeent is at risk of termination with other consequences if there is a failure to comply. The default notice has no application to an agreement post termination.

If the default point was not advanced in the way outlined above but limited to saying the Claimant owed a duty to first serve a default notice, I think the point was bad.

Next was the question about notice of assignment (NOA) and whether it was served. This is a straight contest of fact. There was the Defendant's first hand evidence that it had not been received and there was the Claimant's evidence to the contrary and which was dependant upon the retrieving of information contained in a database kept by them. I do not know who gave evidence for the Claimant and whether that person was able to say, 'I entered the information into the database, the information I entered was accurate and complete etc.', ie give first hand evidence like the Defendant was.

Either way, the Judge had the benefit of the Defendant's direct evidence that the NOA had not been received, so it is perverse for the judge to say (if the note is correct) [1] 'D says he didn't receive them' and then go on to say [2] 'D not given any evidence to support the contention that NOA were not received'. Eh? Run [1] past me again!

It seems to me that the evidence I have heard of would suggest that a reasonable conclusion might be reached that the Claimant had not discharged the burden of proof that on a balance of probability the NOA was delivered. That is not to say there is no conceivable way in which a Judge might properly reach the conclusion that it had been served. Just that it's hard to swallow and I wouldn't have decided that point in the Claimant's favour.

Nonetheless, the absence of service would not lead to an adverse judgment if the claimant's entitlement was made out on other essential, more worthy grounds, since to do otherwise would lead to a potentially inequitable result.

The other points are akin to the default notice point, that is, that the Claimant stood in the shoes of the OC as if the contract had not been terminated by the OC. Clearly the agreement had been terminated (but I am no wiser about whether it was terminated in a manner giving rise to the rights under s87(1) or terminated in a manner which did not give rise to any rights other than to the arrears.)

For the same reasons given by me in relation to the default notice, I think the Judge was right on these other points too.

In those circumastances and no issue being taken with whether the OC complied with sections 87 and 88, I fear the case was rightly decided and prospects for appeal would be poor.

That still doesn't stop me being sorry for the outcome.

x20

So does this mean that a creditor who does not have an enforceable agreement cand terminate it and sell it on and at that point whether the agreement has the prescribed terms or not is irrelevant??

[pt2537]

No tinks it does not, a Consumer credit agreement which is unenforceable against the debtor cannot become enforceable, it is not possible

[tinkerbell20]

Originally Posted by pt2537

No tinks it does not, a Consumer credit agreement which is unenforceable against the debtor cannot become enforceable, it is not possible

Very relieved to hear that PT as I am incourt soon as they say with Howard Cohen & GE Money and no enforceable agreement................ ... Rankine argument is being used too..................

[joghuj]

Am I correct in thinking, as I said before, that regardless of enforceable agreement or not, if the agreement is terminated the debtor has no rights at all due to DCA not having any duties (CCA 1974 or otherwise)?

It seems that after termination, I have nothing to argue in regards our favourite act!

[gettingthere]

I have a le