Cabot (goldfish) - Is this defendable?

[gettingthere]

Earlier this year I received notification that a 'Goldfish' credit card account had been assigned to Cabot. I immediately sent them a S.78(1) CCA 1974 request - I then received the normal Cabot holding letters until receiving a pack of documents from them. These documents included an application form, copy of terms & conditions (obviously recent ones as they have date of 05/08 on together with the penalty charges being £12.00), they also talk about Barclays bank on them, statements but with the last two years missing, copies of assignment notice and welcome letter from Cabot.

 

The application form is a Morgan Stanley Dean Witter one which does not appear to have the prescribed terms on it and has not been signed by the bank. I have received no original terms and conditions as referred to on the application form. The application form copy also has a bar code sticker across some of the small print which also says 'application form'.

 

What I would like some advice on if possible is if it is going to be possible to defend any action they may bring against me or should I be looking to come to a payment arrangement with them.

 

I have posted copies of some of the documentation sent - they do say they have fulfilled the obligations placed on them under S78 of the CCA 1974 and are now free to resume collections on this account.

 

Any advice would be gratefully received.

 

 

 

[Docman]

Short answer is no. I couldn't see the prescribed terms and it does not appear to have been signed by the creditor. Current T&Cs will be needed for any court action as well.

[creditcardmug]

Hi, if there are no prescribed terms on the document you signed, then its unenforceable, also the T&Cs above are current ones (the date is at the bottom right), this is unacceptable, they must be from the time you signed, and are therefore meaningless.

 

I'm surprised they managed to find that MS app form though, they cant find mine

[gettingthere]

Thanks for confirming my thoughts - I will draft a letter and put it up on here to see what people think.

[Guest dvdriley]

The form you posted is clearly headed "application form". It is not a credit agreement.

[pt2537]

not entirely true DVD

 

a "document" signed by the debtor containing the prescribed terms is what is required for enforcement so an application can fulfil that requirement

[gettingthere]

This application form does not appear to contain any of the prescribed terms as required in law. Also I have not had sight of the terms and conditions that would have applied to application form when signed. The original application form was for a Morgan Stanley Dean Witter account (I had never heard of 'Goldfish until cabot wrote to me).

 

I have drafted the following letter using bits from various threads I have read through. Has anyone any suggestions before I mail it to them?

 

"I refer to my previous correspondence with you and particularly my request made under S78(1) Consumer Credit Act 1974 dated xxxxxx. I also refer to your letter and enclosures dated xxxxxx but only received today, the contents of which are noted.

 

I note that you have sent me the following copy documents:

 

a) A Morgan Stanley Dean Witter credit card application form unsigned on behalf the bank.

b) An incomplete copy of some current terms and conditions which appear to relate to Barclays Bank.

c) Copy of computer printouts (statements) for the period xxxxxxto xxxxxx, nothing for the last two years.

d) Representation of notice of assignment allegedly sent by Goldfish (undated)

e) Copy of illegible letter from Cabot.

 

You have not enclosed a copy of the terms and conditions that would have been applicable at the date the application form was signed.

 

The document sent purporting to be a credit agreement (application form) does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553

 

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

 

127(3) 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 debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

Further more, since the prescribed terms referred to above do not appear within the application form you have supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the agreement and not a separate document, case law confirms this opinion

 

I refer you to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299.

 

”[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

"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 S.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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1."

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection.

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

 

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

 

As it stands, the document supplied by you is not a valid credit agreement nor is it enforceable by any court.

 

 

What I Require

 

I require you to produce a compliant copy of my credit agreement to confirm that I am liable to you for this debt, a mere copy of the same application form will not suffice, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence.

 

Since the agreement is unenforceable, it would be in everyone’s interest to consider the matter closed and for you to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages.

 

Also to clear up any misunderstanding that there may be please note that I am only prepared to communicate with you in writing. Should it be your intention to arrange a ‘home visit’, please remember that there is only an implied license under English Common Law for certain people to visit me on my property without express permission: the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd (1959 2 Q.B per Lord Evershed M.R).

 

Please therefore take note that, I revoke license under English Common Law for you, or your representatives to visit me at my property and if you do so without my permission, you will then be liable to damages for tort of trespass. You would also be conspiring in a trespass if you sent someone to visit me nevertheless.

 

I respectfully request a response to this letter in 14 days

 

 

 

Yours faithfully

 

 

gettingthere

Edited August 9, 2008 by gettingthere

[creditcardmug]

Looks good to me

[Docman]

Gettingthere,

 

If you have 'Notice of Assignment', can I suggest checking which company it came from? The loan application is from Morgan Stanley Dean Witter Ltd but I think they changed their name a while ago.

 

I had MSDW credit card which is similar to yours but the NOA I've had is from Morgan Stanley International Bank Ltd. Now, companies do change their names but cannot change their registration numbers. By careful examination of company registration numbers on both the application and the NOA, it appears that on mine that they are two different numbers and hence two different companies. I never had any notice of assignment between the two MS companies and I bet nobody else has. Can you read what's on yours?

[gettingthere]

The assignment notice allegedly sent by 'Goldfish' but which I believe is a standard letters sent out from cabot as it bears no account numbers and just states that Goldfish bank Limited has sold and assigned my credit agreement to Cabot Financial (UK) Ltd. This notice bears Barclays Plc registration number which is 1026167. The current terms and conditions also contain this registration number. The application form contains no company registration numer at all that I can see. However I have found out that Morgan Stanley Dean Witter UK Capital Ltd (the only one registered with the Dean Witter included) registration number is 03769004.

 

Up until cabot first wrote to me in March this year I thought I was paying MSDW. I had no idea that the account had ever changed names to Goldfish and was part of Barclays. Surely I should have received notice that the account had been assigned to Goldfish or Barclays at some stage.

 

I have now received another letter from Cabot thanking me for my recent payment (what payment?) and with amount owing having increased by over £200 since the beginning of the month.

[creditcardmug]

Hi just for clarity the Morgan Stanley accounts were bought by goldfish,goldfish were then bought by Barclays, all this in the space of less than a year.

They are having trouble locating "agreements" for both MS and GF accounts (if they even exist), and are therefore trying to cobble together anything they think will satisfy their obligation under s78.

All this does not however mean that what they supply could be successfully used in court, quite the opposite in fact.

Cabot are an absolute shower, and dont even understand that under the new legislation this year THEY are the "creditor" as far as requests under s78 are concerned.

[Guest dvdriley]

brilliant letter

[Rhia]

Just subscribing as MOH has same issue with Goldfish. Your letter is excellent and MOH is in the process of pennings something very similar. I am just wondering if it would be a good idea for all Morgan Stanley/Goldfish folks to register their links on one thread. I will start a new one with this exact thing in mind.

It will simply be to see how many are out there and give a quick link to others.

[creditcardmug]

Just subscribing as MOH has same issue with Goldfish. Your letter is excellent and MOH is in the process of pennings something very similar. I am just wondering if it would be a good idea for all Morgan Stanley/Goldfish folks to register their links on one thread. I will start a new one with this exact thing in mind.

It will simply be to see how many are out there and give a quick link to others.

 

Yes good idea

[trumpetmaest]

good idea

[gettingthere]

The expected telephone calls have now started from 08009172225 (which will not be answered but a log kept of them all) but I will give them a few days to digest my letter before writing back again.

[straftat]

"Morgan Stanley accounts were bought by goldfish"

 

Thanks for the info , the Cabot clowns are writing to me about a goldfish card and i was mystified as id never had one but i did have a Morgan Stanley one.

 

i have cca them and await the usual nonsense about them not being the original creditor

[gettingthere]

Being an impatient type and with a lot of free time on my hands I have decided to start getting ready for any future litigation they may bring.

 

I am starting with a S.A.R to Morgan Stanley, this is the first one of these I have done so could I have advice on whether the following is correct please?

 

'Data Protection Act 1998

Subject Access Request

 

Dear Sir/Madam

 

ACCOUNT NUMBER: - XXXXXXXXXXXX

 

Please supply me with a complete list of transactions and charges relating to the above account. Alternatively, a complete set of statements for that period will be acceptable.

 

Additionally, where there has been any event in my account history over this period which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you.

 

If you are unable to supply this data because there has been no such manual intervention, then please be so kind as to confirm this in your response.

 

Also please provide me with a true copy of the executed credit agreement made under The Consumer Credit Act 1974 for the above account number.

 

I also require to see a copy of any default notice served on this account together with proof of service.

 

This account has recently been assigned to The Cabot Financial Group. Please provide me with a copy of the assignment notice sent to me together with proof of posting.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply. Furthermore, if I discover that you have levied disproportionate penalties against me, then I shall be reclaiming them, and also reclaiming the enclosed £10 Data Protection Act subject access request fee.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

 

Yours faithfully,

 

 

[signature]'

[miffedpuppy]

In case you missed this

http://www.consumeractiongroup.co.uk/forum/legal-issues/151570-goldfish-interesting.html

 

And I belive they in turn were taken over by Barclys on the 14/03/08

[sussex1]

subscribing, similar docs received

[gettingthere]

Well I had a reply from Cabot acknowledging my letter (Post 7) telling me that the letter had been passed onto the relevant department who would rely to me in due course. They also said that interest was accruing on the account in the 'background' and that was why the balance had increased by £200.00.

 

Since then I have received two calls every day which I do not answer as I have 'choose to refuse'.

 

There has been no proper reply to my letter though.

[creditcardmug]

They say interest is accruing, it would be interesting to know where on the app form you signed it says they can do this?

[gettingthere]

They say interest is accruing, it would be interesting to know where on the app form you signed it says they can do this?

 

My thoughts exactly - it doesn't!

[wealthy]

subbing

[gettingthere]

Well I've still had no reply to my letter (post 7) so I sent them a wake up letter at the end of October (no they haven't replied to that either) as they have been phoning me twice a day for the last few months despite me asking them not to. I never speak to them as I have choose to refuse - it's just irritating for the six rings! They are now using a new number to ring me on which is 08450702610.

 

I have recently checked my credit file and find that they are updating a default originally placed in 2003 - I know this should drop off next year but I have found the original default notice and this is dated 2002 and should have fallen off already as others have.

 

The question is whether it is worth doing anything about this and if so what?

 

Any advice would be appreciated plus is there a definitive letter I can send to stop them making the telephone calls as although I do not answer them they often cause me a walk to find the phone!