ihpj vs. Citi Cards - court paper received -claim struck out!! now what???

[newbloke]

with reference to sec 82 again , even if the alleged agreement contains a power of variation, if credit limit is changed or charges relating to defaults are amended as they were in 2006 by the oft, then si 1983/1553(agreements regs) stipulates that a modifying agreement has to be issued, and as far as im aware not 1 creditor has done this, thus unenforceable under sec 85 quote

SCHEDULE 8

REGULATED MODIFYING AGREEMENTS

Part I

Information to be Contained in Documents Embodying Regulated Modifying Agreements Varying or Supplanting

Earlier Credit Agreements

7. Modifying agreements under which the

provisions relating to any credit limit under an

earlier agreement for running-account credit are

varied, including a change to or from there being

no credit limit.

The varied credit limit under the modified

agreement expressed as--

(a) a sum of money;

(b) a statement that the credit limit will be

determined by the creditor from time to time under

that agreement and that notice of it will be given

by him to the debtor;

© a sum of money together with a statement that

the creditor may vary the credit limit to such sum

as he may from time to time determine under that

agreement and that notice of it will be given by

him to the debtor; or

(d) in a case not falling within head (a), (b) or ©

above, either a statement indicating the manner in

which the credit limit will be determined and that

notice of it will be given by the creditor to the

debtor or a statement indicating that there is no

credit limit.

Timing of repayments

11. Modifying agreements under which-- The timing of repayments to be made under the

modified agreement expressed by reference to one

or more of the following--

(i) the amount of the credit to be provided under an

earlier agreement for fixed-sum credit is varied or

supplemented;

(a) the dates on which each repayment is to be

made;

(ii) the repayment provisions of an earlier

agreement for fixed-sum or for running-account

credit are varied or supplemented; or

(b) the frequency and number of the repayments

and the date of the first repayment or a statement

indicating the manner in which that date will be

determined;

(iii) any charge included in the total charge for

credit in relation to an earlier agreement for fixedsum

or for running-account credit is varied or

supplemented.

© a statement indicating the manner in which the

dates of the repayments will be determined;

Variable rates or items

18. Modifying agreements which are required

under paragraph 14, 15 or 16 to disclose an APR in

relation to the modified agreement and under

which the rate or amount of any item included in

the total charge for credit in relation to the

modified agreement will or may be varied (other

than a variation in consequence of an event which

is certain to occur)

A statement indicating that in calculating the APR

in relation to the credit to be provided under the

modified agreement no account has been taken of

any variation which may occur under that

agreement of the rate or amount of any item

entering into that calculation.

[Charges

22. Modifying agreements under which any

provision for charges under an earlier agreement

are varied, including a variation to or from there

being no such charges.

(1) A list of any charges payable under the

modified agreement to the creditor upon failure by

the debtor or a relative of his to do or refrain from

doing anything which he is required to do or

refrain from doing, as the case may be, or a

statement indicating that no such charges are

payable as the case may be.

(2) A statement indicating any term of the

modified agreement which provides for charges

(a) not required to be shown under (1) above; or

(b) included in the total charge for credit.]

 

so as you can see, even if an agreement contains the power of variation, they still have to be modified, hope that helps, merry xmas one and all, and a prosperous new year

[ihpj]

Newbloke,very much appreciate your post - however I don't completely follow! Will try to get my head round it

[ace55]

ihpj

Have you managed to get your head around this one yet?

[ihpj]

ihpj

Have you managed to get your head around this one yet?

 

No mate - seems a bit too clever for me. I'm going to stick with what I know and can understand!

 

I haven't heard a *PEEP* from them either - and we're well into the New year now. As ever, will post up what (if anything) I get from them (or their Monkeys).

 

Happy New Year to the CAG!

[Dotty50]

subbing

 

New to Citi but not to CAG!

[ihpj]

** UPDATE **

 

Just looking to update my threads - nothing to add from Citi (or their lackeys!). Good luck toe everyone in the meantime, stay strong!

[ihpj]

** UPDATE / ACTION **

 

As is the case, haven't heard anything from Citi (or their Monkeys) until now

 

I received a letter from our friends at Cabot informing that they have bought the debt [from Citi] and all communication (including payments!) should now be made to them. Also included was a letter from Citi stating that they have indeed sold my account to Cabot.

[ihpj]

** REVIEW **

 

As a review then, here is a quick update as to where I am with Citi (now Cabot):

 

1. 12/2008 - CCA Request sent.

2. 01/2009 - Reply received from Citi (Post # 35).

3. 08/2009 - Account terminated notification from Citi (Post # 85).

4. 08/2009 - I never got any DN from them, so I wrote to them

seeking CLARIFICATION (never received a response from Citi).

5. 09/2009 - I then get a random mailing from Citi advising they are

LOOKING for my CCA?

6. 02/2010 - I get a bundle from Citi giving me, what they suggest, is a

copy of my CCA, as well as the current T+Cs.

7. 09/2010 - Most recent is the letter from Cabot (above).

 

Citi seem as bent as Mr. Dizaei - they already told me in #4 they have terminated my account, but then tell me in #5 they are looking for my CCA - what the deuce? And then have sold on my account to Cabot.

[ihpj]

** QUESTION **

 

So, now if Cabot decide to instigate proceedings, could someone please sketch out for me my plan of action? Thank you!

[Enron]

Citi are not playing ball with third parties, and haven't not supplied them with copies of the executed agreements to date (even if they have purchased accounts) -- just mailed them the T&C with your details inserted.

 

You should have received a "Notice Of Assignment" to legally complete any transfer/sale of an account. A meer letter outlining the transfer does not suffice.

 

Likelihood is that your executed agreement with Citi is either not enforeceable, they have an incomplete original, or have destroyed the executed agreement.

 

As with all these things the decision is yours, however if they were to proceed with legal action (which is doubtful) you could CPR31.16 request to view the original executed agreement -- as the new account owner would be seeking an enforecement order on the basis of it.

 

You would not be seeking to avoid any such alleged debt that they believe is due, but establish that the documentation is legally compliant and properly executed -- if obviously it is not there is room for negotiation in reaching a resolution outside of a courtroom.

[WelshMam2009]

Yeah, I've had the same letter from Cabot and have not received any CCA from Citi. I imagine that they've off-loaded a stack of agreements for pennies.

 

What I find interesting is that they state that they will be charging interest at 12% on the account. Can anyone advise how best to respond to this?

[Enron]

I will enquire with heads that are wiser than mine.

 

If there is a default registered against the account, after 6 years it should drop off your credit file.

 

If you have not received a proper "Notice Of Assignment" then its interesting, they could have purchased the account (though I thought all Citi accounts were going to a different party), could be more underhand tactics possibly.

 

Also I would be tempted to ask Cabot on what basis are they charging interest, considering that you have not seen the document you signed when requested.

[WelshMam2009]

Also I would be tempted to ask Cabot on what basis are they charging interest, considering that you have not seen the document you signed when requested.

 

Thanks for your input Enron. That was the sort of approach I was thinking of taking i.e. show me the signed agreement where I have stated that I am willing to pay interest.

 

I normally don't jump to respond immediately to these letters so will leave it a while before replying. However, I do like to be prepared and know how I am going to respond...if that makes sense!

[Enron]

Theres another person who has PMd me that has had their account sold to Cabot, will give you their username if you want -- as you both appear to be in the same boat.

 

Might be an idea to familiarise yourself with how Cabot operate by looking at other threads on here.

 

Any problems with harassment by phone, then I would suggest writing to the OFT and Trading Standards - and letting Cabot know you will be doing it. (PM me if you have problems).

 

Likewise in the unlikely case they take you to court, your can submit a CPR31.16 request to court to view the original executed agreement -- which Cabot would be seeking an enforcement order on the basis of.

[WelshMam2009]

Thanks again Enron...I've found a good little Cabot thread which I'm reading through at the moment. It involves an Egg agreement which they did actually supply to Cagger Spamheed after a while. Will be interesting to see what they produce for Citi agreements!!

 

Link here for those interested in getting an insight into Cabot!

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?225933-Spamheed-vs-Cabot

[Enron]

Laura Cooke and Dollydimples have also had their accounts sold to Cabot, I would suggest getting in touch with those members as well.

[the_shadow]

Laura Cooke and Dollydimples have also had their accounts sold to Cabot, I would suggest getting in touch with those members as well.

 

Add me to the mix

 

S.

[sequest]

I am in very similar situation with Citi.

My account was defaulted, terminated and sold to Cabot, all whilst Citi were in default of a CCA request.

The following section from the OFT regarding a case in the Commercial Courts would seem to reinforce the view that enforcement cannot take place whilst the account is in dispute from a Section 77/78 request:

:

In a recent judgment,

25 the Commercial Court held, in a case under

section 77 of the Act, that passing details of a debt to a credit reference

agency and related activities do not constitute enforcement. It also held

that steps taken with a view to enforcement, including demanding

payment from a claimant, issuing a default notice, threatening legal

action and the actual bringing of proceedings, are not themselves

'enforcement'. On the other hand it confirmed that obtaining judgment

against the debtor was enforcement, as were the actions listed under

sections 76(1) and 87(1),

26 notwithstanding that some of the actions

'less obviously' amounted to enforcement. These actions are demanding

earlier payment, recovering possession of goods or land, treating any

right conferred on the debtor by the agreement as terminated, restricted

or deferred, enforcing any security and terminating the agreement.

5.3 In drawing a distinction between actions which were and were not

enforcement, no definition of enforcement was given the court, but it

would appear that it was distinguishing between actions based on the

exercise of contractual rights (which would be enforcement) and other

actions intended to obtain payment which did not involve the exercise of

a contractual right.

24

Sections 77(4), 78(6) and 79(3). A declaration under section 142(1) of the Act (with the

consequent application of section 106 (rendering securities ineffective) is not available, as

section 142(1) does not apply to unenforceability consequent upon sections 77(1), 78(1) and

79(1).

25

McGuffick –v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm)

26

Paragraph 74 of the judgment.

OFT1175con | 24

[the_shadow]

Whilst the OFT have indeed issued interim guidelines on s78 responses and the consequences, you will note they acknowledge that the courts say "enforcement" is only the actual obtaining a judgement and accordingly all the other things can go on.. chasing, phoning, demanding, taking you to court etc etc... all the OFT says is that it would look on a creditor using these methods when looking at licencing renewals in a bad light...

 

S.

[sequest]

It is this paragraph that I thought was interesting as it mentions 'less obvious' methods of enforcement:

 

26 notwithstanding that some of the actions

'less obviously' amounted to enforcement. These actions are demanding

earlier payment, recovering possession of goods or land, treating any

right conferred on the debtor by the agreement as terminated, restricted

or deferred, enforcing any security and terminating the agreement.

[sequest]

Any opinions on how this recent High Court Appeal case regarding CPR requests for Agreements, might affect future cases.

 

https://www.eversheds.com/uk/home/articles/index1.page?ArticleID=templatedata\Eversheds\articles\data\en\Financial_institutions\Alan_Kneale_v_Barclays_Bank_plc

[the_shadow]

Any opinions on how this recent High Court Appeal case regarding CPR requests for Agreements, might affect future cases.

 

https://www.eversheds.com/uk/home/articles/index1.page?ArticleID=templatedata\Eversheds\articles\data\en\Financial_institutions\Alan_Kneale_v_Barclays_Bank_plc

 

Not really relevent to this thread but I will say its unwise for a LiP to go down this route now unless very very sure of compelling reasons why you should see the document prior to court.

 

S.

[WelshMam2009]

Not really relevent to this thread but I will say its unwise for a LiP to go down this route now unless very very sure of compelling reasons why you should see the document prior to court.

 

S.

 

I've quickly read the Evershed's article and am rather surprised to say the least at the outcome. Surely, the whole point of disclosure is to avoid going to court, if at all possible? Surely the executed agreement must be shown at some point?

 

Also, the article seems to suggest that an agreement isn't required to determine enforceability??

 

...the conclusion in this case that there was no need to see the executed document to decide whether the agreement was enforceable.

 

In my case, I never signed an agreement with Citi. I was accosted at a service station and approached to sign up for a charity credit card. This was later taken over by MBNA, I think, with the People's card, and finally rested with Citi.

 

I have only ever received a copy of current terms and conditions in response to my CCA request. It would be interesting if Cabot did send me a reconstitued agreement though as I'm sure the company details would be incorrect.

[SteveH2508]

I think that Citicard (and MBNA) have a fundamental difficulty with the cards which they bought from other companies. They cannot adduce evidence in court as to their procedures when first issuing a card, so they cannot use the decision in Kneale v Barclays Bank to 'bypass' the evidential need for an original copy agreement.

 

If the card was not originally provided by the claimant I would think that you have a strong argument for distinguishing your case from Kneale.

[the_shadow]

Woah there peeps, dont forget Eversheds will always put a positive spin on it...

 

Apologies ihpj for a mini-hijack.

 

It should be pointed out that Kneale did not put forward ANY positive reasoning why the agreement was non-compliant just that they needed to see it, the judge clearly wasnt having that. Remember Kneale was the claimant in this case and as such it was up to them to provide evidence proving their point of view not vice versa.

 

Therefore in any defence I think it more than ever now key to state that you believe the prescribed terms were not met with in the original agreement and put the claimant to strict proof of otherwise.

 

S.