BB v Cabot Appeal

[RobinWayRobinme]

Hi Beau, spent longer than thought reading trhough your thread. Hope the following is helpful in preparing your appeal application. Main thing to concentrate on at moment is to get your grounds of appeal drafted. Will look in later to see if I can be of any help there.

Robin

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=13399&d=1255723683

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=13398&d=1255723683

[BeauBrummie]

Thanks Robin,

 

Just starting to go through what you have given me, and absorbing the info.

 

Thank you sooooo much:)

 

Beau

[RobinWayRobinme]

Hi Beau

Just a couple of quick thoughts for you to explore.

1. I don't fully understand why the DJ linked your case to Mcguffick as that case related to an agreement that was temporary or redeemable enforceabilty. Your case, as far as I can ascertain, relates to an agreement where unenforceability can be said to be permanent or irredeemable.

2. Mcguffick also touched on enforcement and showed that reporting to CRA was not enforcement.

 

You will need to get a transcript of judgment for your appeal and I agree with an earlier post by Cym that your case does not appear to be similar to Mcguffick. However, is your case more about a debt that is irredeemably unenforceable (stated in Mcguffick by Flaux) and not covered by judgment in mcguffick. Would seem to me this is one of your grounds as is the assignment being lawful at the time preceedings commenced (Law Property Act 1925).

 

Was the amount of the SJ for a sum of arrears you would agree with?

 

The above is my own opinions and I believe you need help from others more knowledgeable than me, but I will help wherever I can

Robin.

[BeauBrummie]

You will need to get a transcript of judgment for your appeal and I agree with an earlier post by Cym that your case does not appear to be similar to Mcguffick. However, is your case more about a debt that is irredeemably unenforceable (stated in Mcguffick by Flaux) and not covered by judgment in mcguffick. Would seem to me this is one of your grounds as is the assignment being lawful at the time preceedings commenced (Law Property Act 1925).

 

Was the amount of the SJ for a sum of arrears you would agree with?

 

 

Hi Robin,

 

Sorry, I do not quite follow the section in red, are you talking about two different parts of the McGuffick case? One being the legal argument, and the other the final decision?

 

The SJ is an amount which includes some penalty charges in the original POC which I did raise with the judge. The judge advised me to write to Cabot and ask for refund!! There is a further £2k+ of charges interest added by Cabot since they "aquired" the account.

 

So if you argue that the agreement is iredeemably unenforceable then no I do not agree with the SJ as it obviously includes charges added by a company whose assignment is not legal, or that they do not have aggreement to add charges to----am I on the right lines here??

 

Beau

[RobinWayRobinme]

Hi Beau,

Sorry if last post a bit missleading. I was just trying to ascertain how the DJ in your case was using McGuffick because if you have an agreement that is irredeemably unenforceable (thought i picked up on earlier posting in ypur thread that it was) mcguffick would appear to be irrelevant. Would really like other opinions on this point though as your appeal will no doubt have to deal with mcguffick.

 

Was the issue re assignment from OC brought up in SJ hearing? This I believe is a valid ground.

[BeauBrummie]

Hi Beau,

Was the issue re assignment from OC brought up in SJ hearing? This I believe is a valid ground.

 

 

Yes it was, by me on more than one occasion but the DJ thought it was irrelevant:mad: This will of course be on the transcript of the hearing.

 

DJ thought that I was should not concern myself with the assignment as it was between the OC and Cabot and therefore nothing to do with me, and DJ continued that I should have to pay one or the other so what did it matter who I paid----I then tried to bring in the differences between "Absolute" and "Equitable" assignments but to no avail, it was not my argument I was told.

 

I have to say though that if DJ had it in his mind that the agreement was enforcable, then that is why some of the arguments went against me.

 

I had 3 main arguments

 

1) Agreement not enforceable

2) No Valid DN

3) No proof of type of assignment.

 

My arguments fell down at the first hurdle and the rest is history as they say

 

Beau

 

 

 

Beau

Edited November 9, 2009 by BeauBrummie

[BeauBrummie]

Hi Beau,

Sorry if last post a bit missleading. I was just trying to ascertain how the DJ in your case was using McGuffick because if you have an agreement that is irredeemably unenforceable (thought i picked up on earlier posting in ypur thread that it was) mcguffick would appear to be irrelevant. Would really like other opinions on this point though as your appeal will no doubt have to deal with mcguffick.

 

Quite agree Robin, I think DJ may have missed that or shall we say misdirected himself!!

 

Beau

[vint1954]

Yes it was, by me on more than one occasion but the DJ thought it was irrelevant:mad: This will of course be on the transcript of the hearing.

 

DJ thought that I was should not concern myself with the assignment as it was between the OC and Cabot and therefore nothing to do with me, and DJ continued that I should have to pay one or the other so what did it matter who I paid----I then tried to bring in the differences between "Absolute" and "Equitable" assignments but to no avail, it was not my argument I was told.

 

I have to say though that if DJ had it in his mind that the agreement was enforcable, then that is why some of the arguments went against me.

 

I had 3 main arguments

 

1) Agreement not enforceable

 

If the agreement was not enforcable, then that stands on it's own.

 

2) No Valid DN

 

9.3 of the 2006 ammendments, precludes the creditor from enforcing if there is no valid DN

 

3) No proof of type of assignment.

 

The assignment is your business. The OC need to issue you with a legal NOA.

 

My arguments fell down at the first hurdle and the rest is history as they say

 

Beau

 

 

 

Beau

Seems you got a poor Judge. Your appeal should go well though.

As previously said, McGuffick is only concerned with redeemably unenforcable agreements, not iredeemably unenforcable agreements. The DJ has got himself confused.

[RobinWayRobinme]

Quite agree Robin, I think DJ may have missed that or shall we say misdirected himself!! Misdirected certainly seems to be the case. Can be quite costly to us LiP's

 

Beau

 

Yes it was, by me on more than one occasion but the DJ thought it was irrelevant:mad: This will of course be on the transcript of the hearing. Yes it will be in transcript. However, you will only need transcript of the DJ's judgment. Not a prob for you as the argument was made by you at the hearing and can be included as a ground.

 

DJ thought that I was should not concern myself with the assignment as it was between the OC and Cabot and therefore nothing to do with me, and DJ continued that I should have to pay one or the other so what did it matter who I paid Think this shows DJ's complete lack of understanding of relevance of assignment as it certainly does matter to you----I then tried to bring in the differences between "Absolute" and "Equitable" assignments but to no avail, it was not my argument I was told. Sounds as is you were trying to educate DJ as to the difference. At end of day either its equitable and OC should be party to the claim or it is absolute allowing Cabot to claim in their own name but only after NOA properly served on you.

 

I have to say though that if DJ had it in his mind that the agreement was enforcable, then that is why some of the arguments went against me Agree, did DJ elaborate as to why he thought agreement was enforceable?.

 

I had 3 main arguments

 

1) Agreement not enforceable

2) No Valid DN

3) No proof of type of assignment. Not necessary type of assignment. If they issued their claim in their own name, they have proceeded on basis of absolute assignment therefore before issuing the claim they must properly serve NOA. Check out Law Property Act 1925 S136(1) requires that for the assignment of a debt to be effective, express notice in writing must be given to the debtor. S196(4) prescribes the requirements for giving notice by post. ie registered letter. The Recorded Delivery Service Act 1962 states recorded delivery equivalent to registered delivery letter and Postal Services Act 2000 schedule 8 states any reference to registered post is construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery)

 

My arguments fell down at the first hurdle and the rest is history as they say Would say that first hurdle they must prove is properly served NOA before claim against you was issued as without it they had no cause of action at that time.

 

Beau

Beau

Your 3 main grounds appear valid, but with order changed (NOA first), plus adding that DJ misdirected himself re relevance of mcguffick.

Hope this is of some help. Would still like to see some other opinions on this though, particularly in view of fact they said that they were only making a claim for the arrears.

Robin

[RobinWayRobinme]

Just noticed your post vint. Good to get further input. Will just add that it doesn't have to be OC who serves NOA. However, Beau has right to have sight of actual assignment between OC and cabot to prove NOA is correct.

Robin

[kitchenboy]

Just to add something to the issue of assignment, there is something called "the rule of prejudice" I can't find much info about it but it seems to be very relevant to assignment as it awards protection to the debtor against issues which may be commenced without the debtor being party to them.

 

If they can't provide original the original t&c's with your signature then how can they prove you consented to absolute assignment?

[BeauBrummie]

Can someone clear something up for me in my own mind, if the assignment is "absolute" then the assignee is fully responsible for administering the account under CCA 1974 if the account falls under the act.

 

By this I mean if you fall into arrears with say a payment plan, you should at least get a letter before action, followed by a default notice, followed by either termination of the account or legal action.

 

This info is not only usable for case, but also another case that I have with CL Finance who did actually send me an NOA that says it is "absolute" but have not sent a DN.

 

Thanks

 

Beau

[BeauBrummie]

Your 3 main grounds appear valid, but with order changed (NOA first), plus adding that DJ misdirected himself re relevance of mcguffick.

Hope this is of some help. Would still like to see some other opinions on this though, particularly in view of fact they said that they were only making a claim for the arrears.

Robin

 

Hi Robin,

 

Thanks for all the info,

 

I may have misled everyone on here into thinking that I did not have a NOA---sorry, I was trying to ascertain the type of assigment which Robin you have now cleared up in as much as it must be assumed it is an "Absolute" transaction has taken place. There is in existance a NOA sent to me as per witness statement from Cabot.

 

I also have, which was sent with their witness statement a copy of the "Account Sale Agreement" between Kings Hill (No1) limited and Barclays Bank dated November 2006. This is where I may have become confused into thinking that I should have the right to know about the type of agreement. I have seen other threads where this type of sale was deemed illegal because it was signed offshore somewhere (Eire) I think.

 

Any thoughts

 

Beau

[BeauBrummie]

Just another little nugget for everyone perusal, I have just found a letter that states that my account is "closed" from December 2005 some 14 months before Cabot decided to buy it!!! Dont know if it has any relevance.

 

Beau

[vjohn82]

Just another little nugget for everyone perusal, I have just found a letter that states that my account is "closed" from December 2005 some 14 months before Cabot decided to buy it!!! Dont know if it has any relevance.

 

Beau

 

I would say that technically the debt still existed for the period of the Limitation Act. It all depends on what the letter explicitly states; are they stating they are writing the balance off?

 

Some companies may well do something called a charge off where they are removing bad debts from their accounting but the debt still exists to either be enforced in the future by the company or sold as either an individual account or as part of a portfolio (the latter being more likely).

 

Crikey... I'm up late... been struggling to sleep since my set aside hearing

[RobinWayRobinme]

Can someone clear something up for me in my own mind, if the assignment is "absolute" then the assignee is fully responsible for administering the account under CCA 1974 if the account falls under the act. YES

 

By this I mean if you fall into arrears with say a payment plan, you should at least get a letter before action, followed by a default notice, followed by either termination of the account or legal action. Assignee takes on all reposponsibilties of CCA

 

This info is not only usable for case, but also another case that I have with CL Finance who did actually send me an NOA that says it is "absolute" but have not sent a DN. Assignee takes on account as is at time of assignment. ie OC may have served a DN

 

Thanks

 

Beau

Robin

[vint1954]

Just noticed your post vint. Good to get further input. Will just add that it doesn't have to be OC who serves NOA. However, Beau has right to have sight of actual assignment between OC and cabot to prove NOA is correct.

Robin

Useful to know about the assignment. I had always assumed that the NOA had to come from the OC.

 

Vint

[BeauBrummie]

Ok, I need to get my grounds of appeal on paper now.

 

I am getting slightly confused as to the best way to put this forward----sometimes to much reading not enough thinking!!.

 

Ground 1

 

The main argument would appear to be the NOA. As I have previously posted I have a copy of the "Account Sale Agreement" since found that it is incomplete!! this arrived only 2.5 hours before the hearing!!

 

I have a letter which Cabot sent purporting to be the NOA and a letter which I also now know has been "created" by Cabot from Monument.

 

It is interesting to note that I have 2 versions of the assigment : 1 to Kings Hill No 1 and the other to Cabot Financial (UK) Ltd some 10 days later. Can I question the validity here??

 

Ground 2

 

In their WS Cabot state that they do not have to comply with S87 because they do not wish to :

 

Terminate

Demand Early repayment

Recover possession of land

Treat any right as terminated or restricted

Enforce any Security

 

But simply State " The sums claimed by the claimant as the assignee relate to arrears only"

 

So if this is the case they should only be claiming arrears in their POC ??

 

Ground 3

 

I need guidance on the relationship between the McGuffick case on "tempory enforceability" and the irideemable enforceability and then relate that to my appeal ---a bit lost on this one.

 

Do I need to submit a WS a this stage or do I just need to submit my Appellant Notice?

 

Any help would be greatly appreciated.

 

Beau

[veryweary]

Sending you good luck on your appeal as it seems you have had a rough deal with this jusdgement.

 

My simple understanding is you were defending on the unenforceability of a CCA using s61 s65 and 127) and lost due to the judges's misinterpretaion of the McGuffick case which clearly states it has no relevance where 61 65 and 127 is in question. That would have been the main thrust of your defence if the judge had'nt struck out the case in favour of Cabot, with the NOA and Default Notice coming along later as addtional points of your argument.

 

Therefore I'm confused to why the NOA is your main point in the appeal. If you win your appeal then your case will be heard in detail and you would get the chance to raise the NOA and Default Notice as additional ammo then.

 

And is Cabot's claim that they are not enforcing merely claiming arrears not also irrelevant? If the CCA is ruled unenforceable due to non compliance with s61 s65 and s127, then it doesn't matter if Cabot are claiming partial arrears or the full amount, as being an agreeement regulated by the Consumer Credit Act, Cabot have no other avenue to try and claim this money.

 

If I'm talking a load of nonsense my apologies in advance, Will probably be fighting my own battle with Cabot in the future and just trying to understand the reasoning.

[volvo]

subbing

 

VOLVO

[BeauBrummie]

Thanks for your comment veryweary,

 

 

I have had a good look at the Mcguffick judgment and I am now very dubious about an appeal---and other stuff on the case from solicitor firms etc who seem to think that it is relevant and are all taking advice.

 

I have sent a PM to member PT2537 as I believe his valued opinion would be usefull here

 

The thing is I am running out of time!! only got until Tues 17 to get it to appeal court.

 

If I do not appeal, I suppose I could go for a set aside at a later date but again I am unsure.

 

Anyway, any Cabot spys---- You have not won yet!!

 

Beau

[vjohn82]

Have you clicked on the red triangle to bring it to the atttention of the site team?

 

Thanks for your comment veryweary,

 

 

I have had a good look at the Mcguffick judgment and I am now very dubious about an appeal---and other stuff on the case from solicitor firms etc who seem to think that it is relevant and are all taking advice.

 

I have sent a PM to member PT2537 as I believe his valued opinion would be usefull here

 

The thing is I am running out of time!! only got until Tues 17 to get it to appeal court.

 

If I do not appeal, I suppose I could go for a set aside at a later date but again I am unsure.

 

Anyway, any Cabot spys---- You have not won yet!!

 

Beau

[BeauBrummie]

Have you clicked on the red triangle to bring it to the atttention of the site team?

 

 

Thanks VJ,

 

No I have not tried that, never felt the need!! But maybe it is time

 

Thanks

 

Beau

[cymruambyth]

Hi, just letting you know I'm still supporting you, but am not in a position to offer help. Try the red triangle because if no-one can help they can often conjure up someone who can!

[BeauBrummie]

Update,

 

Dont know why, I did not write to the Judge specifically for this, but I have today received an order that states my permission to appeal has been extended from the normal 21 days to 90 days--- ie almost end of Jan 2010!!!

 

Do you think the Judge has had a look at what Judgement was passed and decided that maybe he has misdirected himself? Accompanying the order was EX107 Tape transcript request form------its like he wants me to appeal. So look out Cabot Game on.

 

Beau