Letter from Cabot re CCA Help please

[vexlitigant]

Bada Bing

 

I'm reading through a copy of that letter from Cabot now, and will comment back here soon. Meanwhile, give yourself some additional encouragement and light relief by visiting this site: Cabot Financial - How they treat one of their customers.

 

More soon, Vex

[vexlitigant]

Ok Bada Bing

 

First of all, I’d always expect a DCA, or even the original creditor to dispute your claimed position. Expect this to happen once or perhaps twice. You should see these as efforts to try and convince you that all you have researched and all that you have been told is full of errors and inaccuracies.

 

I expect this kind of aggressive behaviour from DCA’s to continue with greater frequency. As more people challenge their debts, the DCA’s are being pushed into a corner and their collecting is becoming harder.

 

Taking their letter in order:

 

“However please be advised that although the original copy may not be available, MBNA has supplied Cabot with a copy of the original which you signed and satisfies all requirements of both MBNA and Cabot.

 

In my opinion this is deliberately mischievous, and tells you nothing. It claims that all requirements are satisfied. It is an irrelevant point.

 

Under section 78 of the Consumer Credit Act 1974 it states "the creditor... shall give the debtor a copy of the executed agreement (if any)" and stress the words "if any". Cabot has been provided with a copy of the agreement from MBNA and therefore, this satisfies all obligations of both parties.

 

First of all, their line on “if any”. In other words, if there isn’t any, then there will be nothing to give the debtor, and nothing more can be done.

 

Secondly, they state that Cabot has been supplied with a copy of the agreement from MBNA, and satisifies all abligations of both parties. This is another load of nonsense. It may well satisfy each of them, but is has not satisfied your request and will not satisfy a judge.

 

Now onto the rest of the letter from these credit perverts….

 

“This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms". You shall also note on the credit agreement that under the heading "Declaration" it states "Credit Agreement regulated by the Consumer Credit Act 1974", Therefore, this constitutes a valid credit agreement, which is regulated by the Consumer Credit Act 1974 and under the terms of the agreement”.

"With regards to the requirements of the agreement regulations 198311553 concerning the form and content of the agreement, these regulations do not deal with this matter, as it is the CCA that deals with this matter as primary legislation. Section 189(4) of the CCA states:"

 

I will not give them the benefit of the doubt that the additional 1 in there is a typo. SI 1983 1553 DOES apply. They are talking B***S***. So that you are completely happy that you are not being fed nonsense, the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) DO apply……………

 

 

For an agreement to be compliant with the regulations it MUST embody WITHIN the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

For your information in case you are unsure. 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--

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)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.

 

The copies that you have attached to your thread are woefully short of having any of this in one document. Without being able to read the text (because of the poor copy) there isn’t even enough words for a start. Perhaps they have one in braile !!!!

 

Just so that there is no room for confusion, and this bit always helped me in my endeavours for a debt free existence……

 

The person who wrote the Consumer Credit Act 1974 sets it out quite nicely, and as this has been copied into this site on many, many threads…

 

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.

 

The agreement cannot be set out in separate documents. It has to be within the ‘frame’ of one – complete – in other words their fanciful words in their point (b) are the words of a desperate drone.

 

Hope that makes sense. Apologies if there are any typos of my own. I've been cutting and pasting

 

 

Cheers, Vex

[vexlitigant]

Sorry Bada Bing

 

Between my last post and this i popped out to watch the football. I've had one too many beers by now (i know its early) to give you a decent response. I'll look at the next point that you have raised, and offer you my tip tomorrow.

 

Another link you kight like to cast you eye over on this site is via user 'Joe Blow' - former employee of MBNA:

 

http://www.consumeractiongroup.co.uk/forum/mbna/129987-i-used-work-mbna.html?highlight=default

 

Logging back in tomorrow

 

Thanks, Vex

[vexlitigant]

Any ideas as to how I should reply to this part?

"With regards to your query relating to the notice of assignment of your debt, please note that the copy sent to you on 13 November 2008 was a representation of the letter originally sent on 20th September 2001, as stated clearly at the top of the letter."

 

The letter they enclosed with the application form they sent was on MBNA headed paper, had an original signature from "Stuart Ashcroft Asset Sales Manager" and was dated 10 November 2008. Contrary to what they say above, there was nothing to say this was a "representation" of an original. What does this "representation" mean? Is this legal? I've looked on threads regarding assisgnment and think it isn't but would appreciate some clarification if anyone has any knowledge of this.

 

Thanks.

 

BB

 

Bada Bing

 

Taking this, together with what we have adressed, I propose the following draft for you. It contains the whole response. You should read through this, add adresses and dates etc DO NOT SIGN - DIGITAL SIGNATURES ONLY (i have a link to a CAG tutorial if you need to know how to do this) and ammend if you need to. You may need to, as I have made some assumptions in the latter part of the draft relating to the Default Notice. As I have no copy in front of me, AND as I doubt whether they can get a copy or indeed have one, AND because of their word 'representation' which implies a recreation.

 

Due credit to tomterm8, from who I have plagiarised his info on Default notice content.

 

-------------------------------------------------------------

 

Dear Mr Perring

 

Thank you for taking the time to draft your letter, postmark xx xxx 2008, and received by me on xx xxx 2008.

 

Taking the points that you have raised in order, here is my response. I feel obliged to notify you here that I intend this to be my final letter to you. My answers to your points will make the reason for this decision clear and unambiguous.

 

“However please be advised that although the original copy may not be available, MBNA has supplied Cabot with a copy of the original which you signed and satisfies all requirements of both MBNA and Cabot.

 

In my opinion, and that of people assisting me with this matter this is deliberately mischievous, and tells me nothing. It claims that all requirements are satisfied. My position is that this is an irrelevant point.

 

"With regards to the requirements of the agreement regulations 19831553 concerning the form and content of the agreement, these regulations do not deal with this matter, as it is the CCA that deals with this matter as primary legislation. Section 189(4) of the CCA states:"

 

For an agreement to be compliant with the regulations it MUST embody WITHIN the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974.

Let me make my point quite clear. To this end I will recite here a quote from the person who actually drafted the words of the Consumer Credit Act (as amended by certain Statutory Instruments including SI 1983 / 1553)………

 

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.

 

 

So, to date you have failed in your attempt to convince me that I owe any ‘debt’ to you, or any other agency or organisation on this matter.

 

Although, the remainder of this letter could be viewed as being academic – the ‘agreement’ is unenforceable, so whether or not a default notice was served upon me, and whether or not that default notice may or may not have contained the correct information is like your first point in your letter to me – irrelevant, I will still take the time to make this point clear also.

 

With regards to your query relating to the notice of assignment of your debt, please note that the c , ,November 2008 was a representation of the letter originally sent on 20th September 2001, as stated clearly at the top of the letter.

 

Before I jump straight to the information that must be contained in a default notice, again I must express with interest your choice of words. ‘Representation’ is indeed an interesting choice of words, and tells me that you are hiding the fact that what you are purporting to be a default notice, and one that applies to me, has been recreated, most likely not related to the ‘agreement’ to which you are contacting me.

 

The following information must be contained in the default notice:

I.a description of the agreement sufficient to identify it

II.the name and a postal address of the trader

III.the name and a postal address of the customer

IV.a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974

V.details of the part or parts of the agreement which, according to the trader, the customer has breached

VI.details of the nature of the alleged breach of the agreement specifying clearly the matters complained of

VII.if it is possible for the customer to put the matter right, details of what he is required to do in order to achieve this, and the date before which he is required to do so. This date must be at least seven days after the date of service of the notice, or

VIII.if it is not possible to put the matter right (for example, where goods have been damaged beyond repair), details of the amount (if any) required to be paid as compensation and the date before which it should be paid. This date must be at least seven days (fourteen, if after 1st October 2006) after the date of service of the notice.

 

Point to note:

The date of service of the notice is the date on which the trader either delivers or sends the notice by post to the customer. Where a notice is sent by post, allowance should be made for delivery time when calculating the date by which the breach must be remedied.

Where any action is required under VII or VIII above, the following statement must appear immediately after:

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

 

The following statement must appear immediately before the specification of the action to be taken by the trader:

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]

 

The words in square brackets are to be omitted or deleted if it is not intended to take any action to enforce any security

 

In summary, as I have already made clear, I do not owe any debt to you. Your responses to me have proven that there are insufficient grounds for you to pursue your enquiry, and therefore I request that you now abstain from any further correspondence. Should you continue to pursue this, I WILL defend any actions that you may continue to pursue, AND I will consider actions of my own in lieu of that.

 

Your Faithfully

 

Bada Bing

[vexlitigant]

Bada Bing

 

Thanks to PT for his comments, any lingering doubts that you might have had should be thoroughly put to rest now.

 

Vex