Ok so I sent the letter as per Havinastella's post and have now had a response from Cabot.
I refer to your letter received on 24th of June 2008 and our previous correspondence.
As previously advised under the Consumer Credit Act 1974 section 78(1), there is no obligation to provide a true and complete copy of the credit agreement if there is no longer a true and complete copy of the credit agreement in existence. Nor is there an obligation upon us to provide a full statement of account, copy of a deed of assignment and or a copy of a default notice. As a result the information we have provided to you, clearly complies with section 78 of the CCA 1974.
With regards to the requirements of the agreement regulations 1983/1553 concerning the form and content of the agreement, these regulations do not deal with this matter, as it is the CCA that deals with this matter as primary legislation. Section 189(4) of the CCA states:
"A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it."
Section 61 of the CCA , which deal with the "signing of documents", states:
"A regulated agreement is not properly executed unless
(a) A document in the prescribed form itself containing all the prescribed terms and conforming to the regulations (Consumer Credit (Agreement) Regulations 1983) under section 60(1) is signed in the prescribed manner both by the debtor...
(b) The document embodies all the terms of the agreement, other than the implied terms..."
The word "embodies" does not mean "contain" as you have stated. The word "embody" (in contrast to "contain" which is set out in subsection (a) of section 61) means that the document need not set out all the terms itself, but may refer to another document setting out the terms under section 189(4). In this instance on the application form it is clear that the Terms and Conditions are mentioned and therefore you are incorrect in stating that the agreement cannot be set out in difference documents.
As to prescribed terms, this is covered in section 61(a), above, where it mentions "contains". The terms and conditions have set out all the prescribed terms as required under the Consumer Credit (Agreement) Regulations 1983 and therefore there can be no argument as to the validity of the form and content of the agreement.
Please be advised that Section 127(3) of the CCA has now been repealed due to the CCA 2006, however, this is not retrospective to agreements commencing 6 April 2007. The section deals with Enforcement orders in cases of infringement and subsection (3) states:
"The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debotr or hirer (whether or not in the prescribed manner)."
As above mentioned, all the provisions have been complied with and therefore there is no consideration to be given by the Court as to whether the agreement is unenforceable or not. All proper legal and regulatory provision, including prescribed terms, are stated in the agreement.
In conclusion, we are perfectly within our rights to enforce the debt against you as your arguments are clearly unfounded and you have no basis for your dispute or claim for failing to pay the outstanding balance under the credit agreement. Therefore I would recommend you contact our collections department, within the next 14 days, to discuss the options available to you in order to settle this account. If we do not hear from you within this time frame we shall consider taking further action against you for the recovery of the outstanding balance.
Ok now my first reaction is that they are trying to throw lots of legal information at me in an attempt to confuse me, which they have partly done!
I dont have the knowledge to know if some of what they have said is true, but I do know they seem to have confirmed that the original agreement does not exist (if it ever did). Now they seem to be basing their latest argument on their insistence that the application form they have sent clearly states that the Terms and Conditions are mentioned.
I have been over the form and the only thing I can make out, because the text is so illegible (I have even looked through a magnifying lense!), is the part which states "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms".
If this is the statement they are referring to then surely this doesnt constitute referring to a separate document, because it doesnt?
If they are referring to another part of the form then how am I supposed to know if they are correct if the copy is so illegible?
I would really like some thoughts on what to do next because this is starting to really annoy us but we are also worried about any legal action they may take.