Monument and Cabot Default Mysteries

[duncan_disorderly]

I had a CC account with Monument. Due to illness and a prolongd period off work with depression, I was unable to afford the monthly payments. At the time I was trying to negotiate a reduced payment with Monument, but every figure I wrote to them, they refused to accept.

 

Eventually they defaulted the account, and not being savvy in these matters at the time, I paid little attention to the consequences. When I got back to work, I remortgaged to sort things out, but when I phoned Monument to settle the account, they refused to take a payment as settlement as they had sold the debt to Cabot the week before.

 

Since joining the site I have been trying to get things sorted. I got my Experian file and found 2 defaults recorded, 1 from Barclaycard (Monument) and another from Cabot. Both obviously were for the same account.

 

I have managed to get Barclaycard to remove the default record, but now that I have got all my paperwork together, I have discovered some strange things.

 

Monument recorded the default in September 2006 and I have found the default notice relating to this. But I also found another default notice from them sent to me in May 2006. This was attached to a letter headed "Final Notice: Pending Acount Closure".

 

They followed this up with a letter a month later in June 2006 headed "Final Demand". The first sentence reads:

 

You have failed to comply with the terms of the default notice and accordingly your credit card account has been closed and we are making a final demand for the full amount you owe on your credit card account.

They then sent another default notice in July, and then the final one in Septemeber which is the one recorded with the CRA's. Meanwhile from the first default notice in May to the final one in September, the balance rose by £400 in interest payments alone.

 

Now the question is, if they originally sent a default notice in May and then closed the account in June - how could they continue to add interest and serve 2 further default notices, if the account had been closed?

 

Also, I have sent Monument a claim for over £600 in penalty fees - so does this invalidate any default notice as the balance and arrears quoted would have been technically incorrect because of those fees?

 

Finally, how do I approach the situation with Cabot?

[car2403]

The first thing to do is establish that the debt is legal, if the assignment that seems to have taken place is also legal and what paperwork they have relating to the account/Default Notices to prove they've followed the prescribed process.

 

Have you SAR'd Barclaycard and CCA'd Monument? If not, this is probably the first step.

 

In my mind, they can't Default an agreement then continue to add interest post-Default/Termination. It is possible there's a term in the agreement that allows this, but I think that's unlikely.

 

It's generally believed that an account can't be Defaulted more than once, unless the debtor agrees to the enforcement of the account in such a way.

 

What is the claim to Monument based on? Do you have statements showing these charges? What level (%-age) of the Default amount is made up of charges?

 

If the charges are "de minumis" (a small, insignificant error in the Default Notice) it will invaldiate the Default.

 

You are better off challenging the enforceability of the agreement, using prejudice caused by unlawful Default of an unenforceable agreement without a Court Order to add to your case, IMHO. The Documentation is a must though.

 

If you haven't already, SAR the creditor and CCA the DCA.

[duncan_disorderly]

I already had all statements from Monument except for 1 month. The claim is for unlawful penalty charges for late payment and overlimit fees and also mis-sold PPI. They have already offered 50% of the charges and all the PPI premiums, and I have refused. Letter of refusal returned with strong arguments for full refund. The charges represented about 15% of the debt and the PPI premiums another 5%.

 

I have CCA'd and SAR'd Cabot asking for all info held, copy of credit agreement and copy of deed of assignment etc. If I SAR Monument, what should I ask for, as I basically have all the statements already to hand, and all other info should come from Cabot?

 

I am also going to write to Experian to challenge the default entry from Cabot, but at least to get a notice of correction added until this is sorted.

 

Thanks

 

Duncan

[car2403]

If you have already had statements from Monument that should be enough - the rest (copy of agreements, etc) should come from Cabot.

 

Have you included Default removal as part of that charges claim? In my experience, (because I didn't and had to issue again after reclaiming!) you're better off doing all this in one claim. What stage of claiming are you at? It might be worth amending your POC at this point, which will start the claim from scratch again, but will save you time/money in the future.

 

The Experian thing is a waste of time - but still do it, as you can include the CRA's as Defendants to your Default removal claims at a later stage! (And really "P" them off!) Experian will check with their customers to see if they agree to Default removal and they won't! A Notice of Correction is alright, but as most Credit Applications are processed/scored automatically this isn't really taken in to account. It's worth writing to the CRA's - including a Surleybonds letter and s.10/s.12 DPA Notices - just so you can include them in the proceedings at a later stage.

[duncan_disorderly]

Have you included Default removal as part of that charges claim? What stage of claiming are you at?

 

I am still at prelim letter stages with these claims. My original letter to Monument was for charges and default removal. They offered 50% charges which I refused. They were refusing to remove default, but I had also written to Experian to query the 2 entries - one from Barclaycard (Monument) and 1 from Cabot. Experian wrote to Barclaycard who have told them to remove that entry.

 

Therefore if Monument now offer a return of all charges, there is no point in court action with them as there is no default from them registered.

 

The problem default lies with Cabot. I assume the best option is now to hope that Cabot fail to come up with a valid CCA.

 

If Monument agree to refund all the charges without Court action, they will be making their offer as a "gesture of goodwill". Will this prevent using the argument of an invalid default notice due to miscalculation of arrears of arrears and balance, and the associated unlawful recisssion of contract argument with potential damages?

 

The Experian thing is a waste of time - but still do it, as you can include the CRA's as Defendants to your Default removal claims at a later stage! (And really "P" them off!) Experian will check with their customers to see if they agree to Default removal and they won't! A Notice of Correction is alright, but as most Credit Applications are processed/scored automatically this isn't really taken in to account. It's worth writing to the CRA's - including a Surleybonds letter and s.10/s.12 Data Protection Act Notices - just so you can include them in the proceedings at a later stage.

 

Is it worth using the s.10/s.12 notice to prevent Experian from processing my data using automated processes forcing any potential searches to be done manually, therefore showing up notices of correction?

[car2403]

If Monument offer you shouldn't accept without considering the other implications - a F/F settlement on the charges claim without a "I do not waive my rights in relation to any other issue on this accout" note will prevent you from claiming again. Be careful when accepting anything - seek advice from a site helper/mod by PM if need be first.

 

 

Definately worth doing the s.10/s.12 thing to all parties - including CRA's. It's a waste of time in that you won't get the response you deserve, but you need to prove to the Court that you are trying!

[duncan_disorderly]

I sent S.A.R - (Subject Access Request) and CCA to Cabot on 7 January. They confirmed receipt of the CCA request on 10th but have still not sent the CCA. So they went into default on 28 January and will have committed their offence if still outstanding on 28 February. Received this letter from Cabot on 2 February:

 

Dear Sir

 

Your request under the Consumer Credit Act 1974

 

We recently wrote to you informing you that the original lender is experiencing a delay in obtaining information from their archives (loosely translated as WTF is it....we can't find it!). Although 24 days have passed since your request, we hope to be able to send the information to you shortly. (I'm sure you do as the 12+30 days are fast apporaching.) We will remind the original lender that your information remains outstanding and should be processed as a matter of urgency.

 

We apologise for any inconvenience you may have experienced as a result of this delay. (the more delay, the better as far as I'm concerned)

 

The status of your account

 

Your account shall remain on hold until further notice. (I should think so!)

 

Contacting Cabot

 

If you have any queries about your account or any payment options, call one of our helpful customer advisers on 01732 524615. (I think I'll give this one a miss if you don't mind!)

 

Yours sincerely

I received their pathetic attempt at a S.A.R - (Subject Access Request). It did not contain DoA, deed of sale, CCA agreement, or even a statement of interest and charges since they took over the account. So this has been sent today:

 

Dear Sir

 

 

 

I DO NOT ACKNOWLEDGE ANY DEBT WITH YOUR COMPANY

 

Further to my Data Subject Access Request of 7 January 2008 I received the documentation you have sent to me.

 

However, I must inform you that you have not complied fully with my request, in that I requested copies of ALL data held by Cabot in relation to my account. I specifically requested copies of the following:

• Copies of all original executed Consumer Credit Act agreements for each account held in my name.
  
• Details of all assignments, whether equitable, absolute, legal or otherwise, of the account and documentary evidence of such assignment.
  
• Details of all manual intervention that has taken place on accounts held in my name, with documentary evidence of such.
  
• A signed copy of the Original Deed of Assignment and Deed of Sale of this account.
  
• An up to date statement of the account.
  
• Details of any charges and interest added to the account since assignment and the rate of such charges and interest applied.
  
• A complete list of credit reference agencies and other companies with whom you have shared my data.
  
• The name of your Data Controller.

The above information was missing from the documents sent to me.

 

If you do not hold any of the above items, I request that you send me a reply with each of the above items listed in order followed by a statement that you are not in possession of or do not hold the item.

 

Having received the statutory payment for such a request, please arrange for the remainder of the information listed above to be sent to me within the next 7 days (or in its absence, a statement confirming this fact). Failure to fully comply with a Data Subject Access request will result in a complaint being made to the Information Commissioners Office.

 

Yours faithfully

Will wait to see what they come back with.

 

[duncan_disorderly]

After a second attempt to squeeze unlawful charges and fees for mis-sold PPI from Monument, they have sent us their FINAL RESPONSE letter, which was basically a cut and paste of their first letter.

 

It even still mentions that fact that they will maintain the default marker on the CRA's even though Barclaycard have instructed Experian to remove it, as it is also being marked by Cabot.

 

So, it looks like it is off to small claims court for this one. Now the question is, do I incorporate anyhting in the claim relating to the defaults? As I said, have requested Experian to remove the default marker from their file, but I don't know yet whether defaults for both barclaycard (monument) and Cabot appear in Equifax and Call Credit. We are applying for their files today.

 

As I had requested in my reply that the default markers should be removed from these 2 as well, and they sent me back an identical letter to their first as a FINAL RESPONSE, it looks like they have done nothing.

 

Also, as they recorded this default in September 2005 - and based on the earlier fact that I found another default notice in my records that they had sent in May, followed by a notice of account closure in June - how could they have continued to add a further £400 in interest and charges and then default a "closed" account again in September and record with the CRA's?

 

Does this not make the second default unlawful, with them already having closed the account 3 months earlier?

 

And is there an argument that the default notices were incorrect in that they contained unalwful charges as part of the balance, invalidating it as per Woodchester Lease Management Services Ltd v Swain & Co NLD [1998]?

 

So if I am to incorporate the default into this claim for charges - how should it be approached?

 

Anyone any ideas on how to word the POC incorporating the deafauts? If this route was successful, it may force Cabot to also remove the defaults. Or should action against Monument be solely for the panalty charges?

[renegotiation]

I think you'll find it will be exactly the same with Equifax and Callcredit.

[rory32]

Now the question is, do I incorporate anyhting in the claim relating to the defaults?

Yes, it makes them easier to remove.

Does this not make the second default unlawful,

You can only apply one default for the action that brought about the default. When the account was sold the default should have then been registered in the new owners name.

And is there an argument that the default notices were incorrect in that they contained unalwful charges as part of the balance, invalidating it as per Woodchester Lease Management Services Ltd v Swain & Co NLD [1998]?

There is, but the judge may not agree with it. Some do, some don't.

Anyone any ideas on how to word the POC incorporating the deafauts?

I'll dig one out if I can find it.

[duncan_disorderly]

You can only apply one default for the action that brought about the default. When the account was sold the default should have then been registered in the new owners name.

 

The default was registered in the new owner's name...Cabot. But the defaults from Barclaycard (monument) still remained on the CRA records also. When we contacted Experian, they wrote to Barclaycard who said to remove it. We have still to check Equifax and Call Credit.

 

When I challenged Monument over the default via an official complaint, their reply was:

 

This was added by Monument correctly, due to the non-receipt of the minimum payment, and will not be amended until full payment of the monies outstanding has been received. The entry by Cabot Financial is just a continuation of the current outstanding debt, classed as the same. On full receipt of the monies outstanding, this will "drop off" and will leave the default entry by Monument standing alone.

 

I replied stating that Barclaycard had agreed to remove the entry from Experian and asked them to remove the same from the other CRA's. They sent me there final response letter with the same info pasted from their original, so didn't even look at the content of the complaint reply! Can you believe these people!

 

However my question regarding the defaults, and if the second one in September was unlawful, was the fact that they had defaulted the account in May and supposedly closed the account in June for not remedying the May default notice. How could they then continue to add interest and charges and re-default the account in September?

 

 

I'll dig one out if I can find it.

 

Thanks Rory -

[duncan_disorderly]

Here is the paper trail of the default notices:

 

The first default notice was sent on 16 May 2006 requiring remedy by 30 May. Fist of all are they not supposed to allow an extra 2 days for service of notice, then 14 days to remedy?

 

 

We were not able to remedy the default notice, so we were sent a FINAL DEMAND on 19 June 2006 saying that the account was now closed, and that they were marking the account as default with the CRA's.

 

So if the first default wasn't remedied and the account was closed, how could they issue another default notice on 3 July 2006 requiring remedy by 17 July.... which again was not remedied, and another on 14 September requiring remedy by 28 September?

 

 

It was the final default notice that eventually appeared on the CRA records after 28 September, with date of default as 28 September 2006. Of course by then they were able to have hiked up the default balance on the account.

[duncan_disorderly]

Well Monument have replied with their FINAL RESPONSE which was no more than a cut and paste of their earlier letter.

 

They have totally ignored the points raised in my letter, even leaving in the paragraph about keeping on the default with the CRA's, even though Barclaycard have removed the same from Experian.

 

Will now follow up with other CRA's, issue county court proceedings for the charges and complain to the FOS about them ignoring the second complaint letter. Also a complaint to the ICO about their ignorance of their obligations relating to the default markers.

[duncan_disorderly]

Had sent this letter to Cabot requesting further information on original S.A.R - (Subject Access Request):

 

Dear Sir

 

 

 

I DO NOT ACKNOWLEDGE ANY DEBT WITH YOUR COMPANY

 

Further to my Data Subject Access Request of 7 January 2008 I received the documentation you have sent to me.

 

However, I must inform you that you have not complied fully with my request, in that I requested copies of ALL data held by Cabot in relation to my account. I specifically requested copies of the following:

• Copies of all original executed Consumer Credit Act agreements for each account held in my name.
  
• Details of all assignments, whether equitable, absolute, legal or otherwise, of the account and documentary evidence of such assignment.
  
• Details of all manual intervention that has taken place on accounts held in my name, with documentary evidence of such.
  
• A signed copy of the Original Deed of Assignment and Deed of Sale of this account.
  
• An up to date statement of the account.
  
• Details of any charges and interest added to the account since assignment and the rate of such charges and interest applied.
  
• A complete list of credit reference agencies and other companies with whom you have shared my data.
  
• The name of your Data Controller.

The above information was missing from the documents sent to me.

 

If you do not hold any of the above items, I request that you send me a reply with each of the above items listed in order followed by a statement that you are not in possession of or do not hold the item.

 

Having received the statutory payment for such a request, please arrange for the remainder of the information listed above to be sent to me within the next 7 days (or in its absence, a statement confirming this fact). Failure to fully comply with a Data Subject Access request will result in a complaint being made to the Information Commissioners Office.

 

Yours faithfully

Received their reply today as below:

 

 

This reply raises some questions.

 

• Since they did not list the documents as requested, is this reply an admission that they do not have a deed of assignment or deed of sale for this account?
  
• They have not, despite their reply, supplied me with a statement of charges and interest added since date of assignment. How can they be adding interest and charges if they have never seen the CCA? How do they know what rate of interest to be adding? Surely there must be some sort of data relating to this account of interest rate applied?
  
• They have failed to provide details of CRA's that they report data to.
  
• Finally, they state that the data controller is Cabot Financial (UK) Ltd. From earlier reading I thought that they had earlier stated that Cabot Financial (UK) Ltd did not hold any data and that all data was held and processed by Europe Ltd. So who is the data controller? Who is processing the data? What data is REALLY held and by whom, and who is processing this?

What should be the next stage, a complaint to the ICO?

[andrew1]

UK Ltd buy the debt and have (Europe)Ltd acting as their servicing agents. When UK Ltd buy the debt they do not bring with it any records other than name address amount, default date and contact numbers, they have no more idea that the debt is legally enforceable than I do. They will not send you any copies of letters they have sent, just generic ' similar' documents with merge arrows and a date they 'could have sent it'. The DOA, haloo letters and goodbye letters as they are known will all be created by Cabot Financial (europe)Ltd and you are supposed to believe this is proof you were sent them. They often send out the hallo letters and the goodbye letters in the one envelope (which is contrary to their sales agreement between the bank and themselves ( we know, the Cabot Fan Club have copies) when it states they should go out in separate envelopes to save confusion. The OC should, under the CCA inform you themselves.

 

I would send a copy of your letter with your complaint to the Information Commissioner and to Trading Standards asking why is it that with so many thousands of people complaining about this company TS are allowing them to continue to send out such drivel with the intention of clouding the consumers mind and intimidating them under false pretenses.

 

Just keep asking for what they are legally obliged to supply you. Nothing more nothing less - that's all our campaign is about.

 

Interest is another issue. I was under the impression interest can only be charged if you make an arrangement and do not keep to it, BUT...if your debt was for £1000 say, and they bought it at 8% of it's face value ( which they do) that's £80. IF they had to borrow to buy that debt and paid the 8% statutory interest ( don't mix up the two 8%'s) then that interest costs them £6.40. when they buy the debt of £1000 they are quite legally entitled to ask you for the full amount ( the fact they buy @ 8% is just business and nothing to do with us - hard though that may be to accept,) however, they then begin charging you the debtor the £1000 and 12% interest, that's £120 p.a.interest that's about 1500% profit - which I'd call unjust enrichment wouldn't you? Something to speak to your MP about and TS....

 

 

 

 

Sarah

[tomterm8]

This might be of interest to you: http://www.consumeractiongroup.co.uk/forum/letter-templates/131232-credit-reference-agencies-multiple.html#post1379291

 

you send it to the credit reference agency NOT cabot.

[duncan_disorderly]

Thanks for the replies guys.

 

I have issued complaints to both the ICO and TS today over their lack of providing required information. I have also sent them the following s10 DPA notice requiring them to stop processing my data.

 

Dear Sir

 

STATUTORY NOTICE UNDER SECTION 10 DATA PROTECTION ACT

 

I wrote to you on 7 January 2008 requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and I have received nothing in relation to my request. This can lead me to only one conclusion, being that no signed credit agreement exists in relation to this account.

 

I find it difficult to understand why Monument have not forwarded a copy of the original signed agreement if it exists and can only conclude that Monument and Cabot do not understand the Consumer Credit Act 1974 or are attempting to mislead me.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking. I am sure your legal department understands, that not providing this evidence would conflict with Pre-Action Protocol 4.6 and would make your position extremely hard to justify should this matter go to court.

 

Please note, you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with the credit reference agencies. Should you refuse to comply, you must within 14 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’, you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Should you fail to respond within 14 days, I will expect that this means you agree to remove all such data.

 

Furthermore, you should remember that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear legal dispute and therefore the following applies:

 

• You may not add any further interest or charges to this account.

• You may not pass this account to any third party.

• You may not issue a default notice related to this account.

• You may not register any information in respect of this account with any of the credit reference agencies.

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

I look forward to your final decision on this complaint within 14 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

Yours faithfully

[angel_1]

hiya duncan

 

how did this progress in the end, i have a problem with monument and i fear i could be going to a dca soon,,,

 

any help much appreciated, ciao maz