Cabot reply to CCA....what next??

[nowayjose]

Now Ive got the hang of Photobucket here are the T&Cs:-

 

No sign of my signature on any of these???...

[nowayjose]

Oh I forgot to mention they also sent a leaflet for 'your complaint and the ombudsman'

[shane5408]

Hiya,

 

I've asked a MOD to move your thread to the Cabot forum, you'll find plenty of seasoned veterans there to contribute!

 

The agreement they are relying on is a typical rapid reply, precontractual application form. As previously stated the lack of prescribed terms on an alleged agreement that falls under the remit of the CCA 1974 renders it irredeemably unenforcable by virtue of s127(3).

 

With regard to the t&c's the Regulations are quite clear the prescribed terms and other key financial information should be on the agreeent itself, nowwhere does it state they may be found in a completely separate document titled T&c's, it says they must be shown clear and whole, and not interspersed with any other inforamtion.

 

Further, if we look at case law set in Wilson v Hurstanger it strengthens the above:

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

 

For the reasons stated above I think the agreement is unenforcable.

 

 

kind regards,

shane

 

 

____________________________________________

All advice is offered freely & without prejudice

 

 

If my post has been useful to you please click the scales

[nowayjose]

Thanks Shane...just as I thought if this is all they have to offer then surely the agreement is unenforceable....

In their letter they state that 'However as detailed above, Cabot has been provided with a copy of the agreeement from Providian and therefore, this satisfies all obligations of both parties...... If this is the case then why cant they send ME the copy of the agreement???

Can anyone help with a reply to this letter:confused:

 

TYVM

 

NWJ;)

[rory32]

Thread moved to Cabot Forum

[Seahorse]

As they quite clearly state that they consider they have done all you have asked of them, in their opinion, I see no reason to bother writing back to them other than to say, "Thank You for your comments, which fail to show you are entitled to collect on this alleged debt. You should note that I now feel that this is a matter for the FOS"

 

And complain to the FOS.

 

Bitter experience has shown that there is no reasoning with these "people", so once they've had their say as per above, I think it only right to move the game on to the next level and complain to all and sundry once you've reached this point.

[nowayjose]

Thanks Seahorse;)

I definately dont want to ignore them so is there a template letter for non compliance of a CCA request....and a template letter to send to the FOS.. looking forward to your replies...NWJxxx

[Seahorse]

No template letters for either. But I would simply draft a letter as above. You really don't need to say much more than that, as THEY will trot out their template-o-matic to tell you they abide by all the rules, laws regs, have set out their position previously, and will highlight the bits to show what a naughty person you are, and they are Mighty and Right, and will particularly bring to your attention the "if any" part of the CCA about responding to a CCA request.

 

If you want to be a little more to the point, you could do something along these lines:

Dear Sam

 

Thank you for your letter of [DATE XXX], in which you appear to be under the misapprehension that the documentation you have supplied equates to a properly executed copy of an agreement regulated by the Consumer Credit Act of 1974.

 

I see from your letter that you accept that the document is, in fact, a pre-contractual APPLICATION FORM. You will also be aware, although I suspect I would be foolish to hope that you would admit in writing, that this application form does NOT in actual fact become a properly executed credit agreement just because you say so.

 

In view of the above, I am unable to accept that the debt which you allege I owe is due to you, for reasons which should be all too obvious. Unless you can support your claim by producing an agreement containing all the prescribed terms as per the Act, I shall have no alternative but to refuse your request for payment. Further, unless you acknowledge that you will no longer be seeking to recover this disputed debt, I shall have no alternative than to escalate this complaint to a higher lever, which may include, but is not limited to, reporting your conduct to the Financial Ombudsman Service.

 

For the avoidance of doubt, although I assume your overpaid legal team will be fully aware, you would be foolhardy to attempt to enforce this alleged debt through the legal system with the documentation you have hitherto supplied; I shall of course be pleased to vigorously defend any action that you might contemplate in that regard. A small hint too, if I may. Section 127(3) has NOT been removed from the 1974 act, and remains a valid point of law on which to base a defence. I should not really have to attempt to educate you about this, but apparently you are under the impression that the Consumer Credit Act 2006 may be applied retrospectively. I wish to disabuse you of that notion before you have an opportunity to test your theory in a court of law. Be aware however, that I am prepared to argue the point in front of a judge if you decide to continue with your flawed reasoning.

 

Hugs and Kisses,

 

NWJ

 

Something like that anyway. You can miss out the hugs and kisses bit obviously.

 

As for the FOS, you can download a complaint form from their website. Ask if you need help filling it in.

[nowayjose]

Brilliant Seahorse... have copied and pasted and will send off after Christmas now... not gonna give another thought until then... will keep you posted on any replies... and I will def need your help for the FOS complaint form when they reply with the usual bullsh**.

Thanks youre sooo clever;-)

 

Merry Christmas:p

NWJx

[Seahorse]

HAHA. Clever? Just got too much time on my hands is all. :lol:

 

Merry Christmas everyone. Even you lot slaving away at Cabot Towers. I hope Santa brings you a better job for the New Year. One that doesn't destroy your souls.

[Seahorse]

Copy and paste again. I noticed a couple of errors that I've now corrected. :o

[nowayjose]

Will do... thanks again NWJxxxx

[nowayjose]

Well its been a long time since Ive heard from these lovely people but another letter received today as follows:-

 

 

Dear Mr XXXX

 

Our further response to your complaint.

 

I refer to your letter, which was received on the 7th Jan 2007 and our previous correspondence.

 

Initially, please accept our apologises for the delay in responding to you and we regret that you feel that this matter has still not been resolved to your satisfaction.

 

We have investigated this matter and believe that your arguments are immaterial and unfounded. We have taken advice from our Legal Department in relation to this matter, more specifically regarding the enforcement of your agreement under the Consumer Credit Act 1974, and we have set out the accurate postition below.

 

You have stated that Cabot has not provided you with an executed agreement.

 

As previously advised that although the original copy may not be available, Providian has supplied Cabot with a copy of the original which you signed and satisfies all requirements of both Providian and Cabot. Under section 78 of the Consumer Credit Act 1974 it states "the creditor.... shall give the debtor a copy of the executed agreement (if any)" and stresses the words "if any". Cabot has been provided with a copy of the agreement from Providian and therefore, this satisfies all obligations of both parties. In addition Cabot has provided you with the relevant Terms and Conditions applicable to your credit agreement, which you would have originally been provided with, at the time you opened the above account.

 

On reviewing our records I can confirm that you have made regular payments to Cabot up to April 2007. Subsequently your actions acknowledge the above account. In addition you have received funds available and therefore it is clearly the case that you have signed and agreed to the terms of the credit agreement in order to receive and utilise the credit card accordingly.

 

As a result of the above, 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. In conclusion, we are perfectly within our rights to enforce the debt against you and respectfully request that you pay the outstanding balance on your agreement within the next 14 days, failing which we shall consider taking further action against you for the recovery of the outstanding balance.

 

We trust we have set out our final position and look forward to receiving the full and outstanding balance of £445.18 within the next 14 days.

 

Yours sincerely

 

Chris Atkins

Customer Assurance Team Leader.

 

Any clues on how to reply to this one....... BTW originally the amount outstanding was £560.23 and now they are asking for £445.18 (dont know where they got that figure from???

 

Thanks All

 

NWJx

[pt2537]

Well,

 

i have an email from Francis Bennion , the man who wrote the CCA 1974 and in his email he clarifies what the (if any) clause means, this is an extract from the email

 

Only if there was no written agreement in the first place is the creditor excused from supplying a copy.

 

so if they are saying that they are relying on the if any to get out of supplying it, they have just shot themselves in the foot

[Rhia]

I also emailed Professor Goode (who is the definitive expert on the CCA) before Christmas and he confirmed to me that the "if any" usually refers to an overdraft which comes under CCA but does not have a written agreement.

Cabot is totally wrong if they are trying to say you don't have to have an agreement. You (or rather they) do.

[Seahorse]

But let's just accept for the moment that there IS no agreement to produce. They obviously CAN'T supply one in that case, and so fail miserably to comply. In that case, Sir Francis Bennion is correct, and Cabot therefore win the "if any" argument. But this means they ALSO fail the "gimme your dosh" argument, since there being no agreement, they are stuffed as far as having any chance in court.

 

Foolhardy as it might seem for Cabot to proceed to court on the basis of there being no agreement, it IS possible they will have a go. But you are safe in the knowledge that Sir Francis Bennion has this to say about the sort of tosh Cabot SAY is a properly executed agreement...

 

As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County TrustLtd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.

[nowayjose]

Interesting.. thanks for your replies any idea on my next move???;-)

[Seahorse]

You mean, apart from a letter saying "Come and have a go if you think you're hard enough." ???

[nowayjose]

Well something along those lines anyway:D

[davey77]

Did you ever send a complaint to the FOS about this nowayjose?

[shieldblaster]

Hi nowayjose I am in a simlar position with Cabot and haven't heard a peep from them for several months now and I'm just in the process of taking action to have my default removed because of lack of CA amongst other things.

 

I have included my response to a virtually identical letter(template?) they sent me. Feel free to knock it about and use it if it would help in anyway and good luck

 

The reason for me asking for their complaints procedure in the letter is that until you have completely exhausted their procedures or they have given you their final answer or haven't heard from them in 8 weeks the FO are unlikely to respond to any complaint you make in my experience.

 

Hope this helps

 

Mick

 

 

 

 

Cabot Financial (Europe)

1 Kings Hill Avenue

Kings Hill

West Malling

ME19 4UA

 

Dear

 

CABOT REFERENCE

 

Further to your letter dated 30 August 2006. I would concur with everything you say if you had provided me with, a copy of the original agreement signed by the creditor and myself. But up to date all you have supplied me with is an application form for credit and I would like to draw your attention to my letter dated 5 August where I have clearly stated why this application form is not acceptable as a true, signed copy of the original agreement.

 

Applying for credit is not entering into a credit agreement as you have stated in your letter. An agreement is only entered into when both parties have agreed on terms and conditions, that they have BOTH signed the agreement, that the agreement clearly states the prescribed terms for the purposes of sections 61(1)(0)and 127(3) of the Consumer Credit Act 1974. These prescribed terms are as follows with a running account (credit card) agreement

• Amount of credit
  
• Repayments
  
• Rate of interest
  
• Credit limit

What you have provided me with states none of these terms.

 

 

In light of the above it would appear that you are not legal owners of this alleged debt, and that the debt is unenforceable as stated in the Consumer Credit Act 1974, even a court of law is precluded from ruling on an agreement that does not contain all of the prescribed terms and is signed by both debtor and creditor, as already stated in my previous letter.

 

It therefore follows that you also have no legitimate interest, nor any lawful reason why you should be processing my personal data and I therefore insist that you remove any of my personal details from your files, whether manual or electronic, and that you also desist from passing my personal data to any third parties as you have no legal right to do so.

 

Might I also remind you that you are not allowed under the Consumer Credit Act 1974 to apply charges or interest to any account that is in dispute, and that as you have failed to provide me with a true, signed copy of the original credit agreement you will now be committing a criminal offence by pursuing said alleged debt.

 

In order for me to prepare to take action against you to have this debt ruled unenforceable I would also give you 7 days notice to provide me with details of your complaints procedure so that I can exhaust all available channels prior to applying to the court.

 

Yours sincerely

 

 

+++++++++++++++++++++++++++++++++++++++++++++++

[nowayjose]

Brilliant Shieldblaster, that will do nicely... and I thought they wrote that letter just for ME:lol:

 

 

Will copy and paste now and send first thing tomorrow TYVM:)

 

Good luck in your battle with Cabot;-)

[shieldblaster]

You are most welcome Thanks for your support

[Seahorse]

Brilliant Shieldblaster, that will do nicely... and I thought they wrote that letter just for ME:lol:

 

HAHAHAH. No, it's more a case of, Complaint is at stage X, so press key Y, to produce template Z.

 

You don't imagine for one moment that Cabot would dare let their employees think for themselves, do you?????

[nowayjose]

Oh well, just when I thought they had gone quiet another load of bull was sent to me this morning...

 

Dear Nowayjose

 

Repaying your account

 

The Cabot Financial Group has recently bought the account you held with Providian and we have tried to contact you previously. Its now vital that you contact us urgently to discuss your account.

 

If we dont contact us to agree a suitable repayment plan we ll have to move your account to the next stage of our collection process.

 

Our aim is to help customers get their accounts cleared - so do contact us immediately!

 

Peter Anderson

Customer Liaison Manager

 

 

They never cease to amaze me... they have 'RECENTLY' bought the account back in October 2007.. at that time they were asking for £445.18, then in Dec 2007 they wanted £560.23 and today they want £603.70... with no explanation on how they calculated these figures.

Can anyone give me some help on how to reply to this letter bearing in mind they have still failed to provide me with a properly executed CCA.

 

Thanks

NWJ x