From Monument to.......Cabot

[cymruambyth]

If I could afford to appeal I would, if I new of a direct access barrister I would. If I had the money to sort things out i would not be in this position!

[foolishgirl]

Oh dear Cy, another score for the Southern judiciary.

 

I would be interested to know where in Carey it says unrelated T&Cs & reply cards are enforceable agreements, particularly when there is no signature box for execution. Carey only dealt with docs supplied under S78 not what is required as proof in court. Howeve it seems 'balance of probabilites' is now an acceptable reason for ignoring the provisons of the actual law.

 

I am so sorry. You really did not deserve this result.

[cymruambyth]

Trouble was, I quoted my carey bits in presentation of my legal arguments then they followed and quoted a different part. In January this DJ didn't know Carey but agreed with it!

[Rhia]

This is ridiculous and I am so sorry for you Cymru. There is little point in having consumer laws if the Judges make it up as they go along and Carey has muddied the waters and actually added to the confusion, not clarified.

[middenmess]

Not the best of days then:-(

[cymruambyth]

Not the best of days then:-(

 

Actually, until the DJ started pontificating, it wasn't a bad day as their case seemed to be a bit shakey, but if DJ said balance of probabilities once, he said it half a dozen times. He misdirected himself on several points but hey I only wanted to see the law of the land not that of the local judiciary!

[andrew1]

Sorry to hear this Cymruambyth. Iam also sorry if I misled you on the 12% on the 'terminated' agreement. I get so angry with this interest business when they only pay around 8-10% for the account face value and then charge interrest on the full balance due. Whether they buy the rights or not, they only had to finance 8-10% of the value, not the full amount. That's for another day but Judge didn't help did he and how many times do we see this happening time after time to the LIP?

 

Really sorry and it doesn't give me any pleasure knowing they are watching it happen on here too..

[babybear39]

FFS!!!

 

At least you had the guts to stand up for yourself.

 

What was the judgement?

[cymruambyth]

Everything that they wanted every bit of interest that they requested and costs, though they were deemed excessive, so 1 hour and VAT were remeoved!

However, our ever so knowledgeable DJ pointed out that if we make an arrangement to pay with cabot within a set timescale we won't have a CCj registered. I did question this; I'm not sure who was the most surprised to hear this Cabot or me!

[babybear39]

No CCJ? Even though he found in favour of the claimant??? Strange...

[Rhia]

How does that work. Cymru the whole thing is a mess. I don't think Andrew mislead you over the interest either. I think it's this (and will be happy to be contradicted) they confused you and the Judge with the assignment. If the OC has assigned the debt via the provisions of the original agreement then they are assigned the rights but not the duties however and as Babybear's own correspondence shows below the DCA is considered the creditor for the purposes of s77/78. It is not possible to contract out of the CCA. It was Parliament's wish that it was brought in to protect consumers and so, if Cabot has a properly assigned debt it has to abide by the CCA.

http://www.consumeractiongroup.co.uk/forum/showthread.php?147392-CCA-DCAs-and-the-Unfair-Commercial-Practices-Directive

 

We know Carey and all sorts have queered the pitch since BabyBen's letter but let's assume the assigned debt is enforceable then Cabot has to obide by s82 of the Act to vary the interest rate.

s82. "Where, in a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect until notice of it is given to the debtor or hirer in the prescribed manner."

It says a lot more but this is the crux of it. If Cabot has not given you notice under s82 in the prescribed manner that they have changed the interest rate they are in trouble.

 

These are Professor Benion's notes on this and he was the architect of the CCA

http://www.francisbennion.com/pdfs/fb/1977/1977-006-consumer-credit-act-pt3.pdf

 

What I think has happened is that Cabot has claimed it is terminated and sold on to them under the Law of Property Act which gives them a lump sum debt (and as Andrew rightly states they buy this for peanuts and come after you for the full amount plus interest) to which they have added their own 12% interest rates - which relates to, well nothing apart from their own greed. They have contracted you out of the CCA but it is not possible to do this. The CCA takes precedence but your Judge was probably not aware of the distinctions and saw the barrister and you as a LiP and went along with them.

 

There is still no agreement which even shows that Cabot or any third party had any right to be assigned a debt. If pre 2005 then s172 (3) comes in and then there's the effects of the new Unfair Relationships under the UTCCR. I am just a lay observer but there seems so much wrong with this it's difficult to know where to start and I really don't get how you don't have a CCJ. Can you get a copy of the hearing?

 

We really need an expert to tell us if I am right or wrong here but I would apply for an appeal and get a direct access barrister but I know that's not always possible.

[cymruambyth]

Thanks for all your comments.

I pointed out to the DJ that under s82 I had to be notified of a change of interest, I was when I received the statement after proceedings were issued!

At one point he also mentioned recognised practises within the industry!

He changed what had been argued at one point in his summing up! I had said t&cs were not attached, cabot aid they were provided with the application, which was a detached form to return,DJ stated that the reply form was detached from the t&cs, a leaflet folded in 3!!

Oh and did I forget to mention, the DN did not allow enough time, but because I hadn't tried to repay the outstanding balance in the intervening years on the balance of probabilities I would not have repaid it if i had an extra 3 days!

I left feeling angry, the more I think, the more I feel that the civil judiciary stinks.

I do not believe in conspiracy theories, but wonder if guidance on interpretation has been given to save the collapse of the banking system which the country could not sustain.

[Docman]

If the period is a de minus issue, why did Parliament increase the period from 7 to 14 days not by some Ministerial order or secondary legislation but by a section in the Act itself. Parliament must have felt the length of the period was more than 'de minimus'. Grounds for appeal if you want to try.

[Rhia]

I do not believe in conspiracy theories, but wonder if guidance on interpretation has been given to save the collapse of the banking system which the country could not sustain.

 

And there I believe you have hit the nail on the head.I am not a tin foil hatter either but it is obvious with some of these judgements, including the OFT one, that someone has had a word in some other one's ear.

 

This whole stuff about lending Ireland £7bn appears to be to help bail out their banks further as our banks are implicated. It all stinks...and don't get me going on this royal wedding we're all having to pay for. Rant over.

[citizenB]

Cym, I have just seen this. I am so sorry.

[cymruambyth]

Another little nugget that i forgot to add, the date stamp on the reply form is an industry accepted practice as the signature of the creditor, even though there was no signature box etc

[babybear39]

It's a complete disgrace, end of.

 

The queen should pay for all of the royal wedding. After all, she is the richest woman on the planet!!!

[Duffers Mum]

Sorry to hear this don't know why we bother trying really, after all the stupid judges seem to constantly come down on the side of the DCA's. Think it might be time for me to make a f&f to Crapot, don't fancy the court route and losing

 

Wish I had some funds to give you towards an appeal.

[alangee]

Cym

 

You say that, according to Cabot, the reply card was a detached form from the T&C's. In that case, why didn't the T&C's they provided have that form attached? If it was a true copy of the T&C's, then the reply card should have been attached.

 

Alan

[cymruambyth]

I know! The DJ however, interpreted it differently:-x

[Rhia]

Cymru - Docman has hit the nail on the head. The 14 days for adefault notice is statutory the Judge has no discretion in the matter. What he seemed to think you may or may not do is irrelevant.

There is a good case called Peyman-v-Lanjani which supports this.

[the_shadow]

Cymru - Docman has hit the nail on the head. The 14 days for adefault notice is statutory the Judge has no discretion in the matter. What he seemed to think you may or may not do is irrelevant.

There is a good case called Peyman-v-Lanjani which supports this.

 

 

But with the ruling of Brandon vs Amex and the implication that its case law its not relevant unless the debtor tries to repay within the 14 days and is denied or the original creditor takes enforcement steps before the 14 days have expired. We'll have to wait until the 6th Dec to hear anything about the verbal appeal application.

 

S.

[gh2008]

But with the ruling of Brandon vs Amex and the implication that its case law its not relevant unless the debtor tries to repay within the 14 days and is denied or the original creditor takes enforcement steps before the 14 days have expired. We'll have to wait until the 6th Dec to hear anything about the verbal appeal application.

 

S.

 

IMHO Brandon does not cover a situation where the date is explicitly stated incorrectly.

 

In Brandon, the date was stated as "14 days from the receipt of this notice" NOT an exact date.

The argument was that the wording of the DN includes " within 14 days of the date above" - and the only date present was the date of issue, so Brandon argued that this date should be the one used.

 

The DJ then ruled that 14 days from the date of receipt was clear enough and no prejudice was caused by the somewhat ambiguous wording.

 

Where a specific date is stated and that date is incorrect then the DN does NOT comply with the CCA.

 

again jmho

[the_shadow]

not disagreeing with what youre saying but in the current judicial climate case law is subject to the mischief rule imho.

 

 

s.

[gh2008]

..... in the current judicial climate case law is subject to the mischief rule imho.

 

 

s.

 

I think we're *all* agreed there .....