Please help with CABOT - debt's doubled!!

[stikky62]

Ok,,, I've just been on moneyclaim.gov and acknowledged service stating I wish to defend all.

 

Here is a link to my thread with the CCA they provided (post #1) and the T & C's (post # 18 ) with regards to all this: http://www.consumeractiongroup.co.uk/forum/showthread.php?156683-Cabot-CCA-Enforceable

 

Bear with me here,,but, What is my next step?

I'm guessing it would be a CPR 31.14 to disclose the paperwork Cabot are relying on in this case before I submit a defence. This paperwork would be is the CCA and T& C's would it not? Would that just result in them sending me the same photocopys again? - which aren't exactly 'legible' by the way,,I can only read them with a magnifying glass!

Could someone please double check that CCA and T&C's in that link I posted above and re-assure me I'm not backing a loser here - what exactly is my defence?. The more I read on this site, the more confused I seem to get and lose track of what I'm doing - sorry about that.

[unclebulgaria67]

CPR 31.14 or Part 18. If the forms are not legible and they will be using other evidence, I thought that Part 18 was the one to use. Perhaps others will clarify.

[Fester Tester]

Section 127(3) of the CCA is your friend where there is no agreement, or in your case, where the agreement is total fairy stories.

[stikky62]

"Section 127(3) of the CCA is your friend where there is no agreement, or in your case, where the agreement is total fairy stories."

 

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).

 

Am I right in thinking the arguement here isthe alledged CCA is unenforceable because there are no prescribed terms on the document itself and/or although the form mentions Terms and Conditions on a seperate document which I am supposed to have seen (and looking at section 12 of the application form - signing for) the terms and conditions should also be signed seperately?

 

Sorry if this is a silly question, I need to ask though, just so I can understand it all better.

 

Getting back to the T&C's I was provided with following a CCA request in July 2008, should there not be some clause or other which says MBNA can sell the debt to a third party and the third party can then add interest etc? - as Cabot have done - hence the reason I started this thread. I've had a good look at them and I can't find anything.

 

Also, I think it was asked earlier, but is there, or does it make a difference between being the Assignee of a debt, and the purchaser?

I received a notice in Oct 2001 from Cabot Financial Group saying the account I held with MBNA had been 'purchased' by Cabot. Then in July 2008 following a CCA request the month before, I received a letter of confirmation from MBNA saying the account had been assigned to Cabot. (I dont remember ever receiving a notice from MBNA back in 2001 - but I could be wrong)

The court paper says assignee too - does it matter? Do Cabot own this or are they just working for MBNA?

[Fester Tester]

You pretty much understand things correctly, but you'd do well to examine what you have that they claim to be an agreement, and understand exactly why it is unenforcable. If indeed, that is the case. If it is missing prescribed terms, then identify exactly what makes the agreement non compliant. It's one thing to be told that your agreement is toilet paper. Quite another to face court and have to explain to a judge why this is so.

 

As to the T&C's, I have NEVER seen an agreement that doesn't state somewhere that the agreement may be assigned to a third party. So if that's what you have, it is a rare beast indeed. And would make the assignment total nonsense. Look carefully, as I am sure you are missing it somewhere.

 

If you are correct though, Cabot has absolutely no right whatsoever to this account. And the ICO would be very interested indeed to discover that the OC has shared your data without your having agreed to it.

[stikky62]

Hi Fester Tester

 

I've had another careful look and I think you may be right. The following are 2 parts of the T&C's which I missed first time round. I take it these are the parts that say the agreement may be assigned to a third party? There is nothing else.

13d - We may reveal your personal information:

· to any person we transfer any of our rights or obligations to under any agreement we may have with you

15 General

 

15c. We may transfer our rights or obligations under this agreement or arrange for any other person to carry out our rights or obligations under this agreement. You may not transfer any of your rights or obligations under this agreement

[Fester Tester]

That's the bad boy I meant, yes.

[stikky62]

I thought it might be,,,, bit of a dream to think it could have been that easy

 

On my other thread regarding the CCA, Pinky69 said: " what you received was an application form with no credit limit, interest rate or repayment scedule - these are the prescribed terms - and they must be in the same section as the signature box(Consumer Credit (Agreements) Regulations 1983)."

 

Does anyone know where I can download/see a copy of the Consumer Credit (Agreements) Regulations 1983 - I searched but cant find it anywhere?!?!

[stikky62]

Cancel that request - I've found it

[stikky62]

Here's a link to Consumer Credit (Agreements) Regulations 1983:> http://www.johnpughschambers.co.uk/Consumer_Credit_(Agreements)_Regs_1983.pdf

 

PINKY69 - Am I right in thinking the relevant part of those regulations is on page 7,,,,, 6, Signing of Agreement para. (1) ?

[Fester Tester]

I think you'll find Pinky got fed up of CAG's petty shenanagins and has burgered off to pastures new.

 

I'd tell you where, but mentioning the forum-that-shall-not-be-named, results in reprisals of Gestapo-like proportions. Or at least, the name gets filtered out because of CAG's paranoia.

 

I'll simply say that it rhymes with eagle, and has a dog's name in it.

 

Now watch me get CAGbotted.

[stikky62]

Oh no, she hasn't has she?

Dam, Pinky had been advising me since I started the other thread and has always said how easy this would be to defend,,,I was kinda hoping she'd tell me how exactly.

 

Right then, I think I know where I'm heading with this (defence - unenforceable) so I'll get my facts together over the next few days (which Acts, regulations etc) and come back for advice, thanks:)

[the_shadow]

Stikky62,

 

Fraid I cant hand hold you through the process like Pinky would but a couple of things:-

 

a) Check the Notice of Assignment, was it for Cabot (UK) or Cabot (Europe), its Cabot (UK) who have taken you to court and HAVE to be the owners of the debt at the point of initiating the claim.

b) s69 interest, They are not entitled to claim s69 interest on a CCA1974 regulated agreement, if you cant find the info on here to add to your defence I'll upload it for you.

c) Should also add they have never given a complete breakdown of the debt and how it suddenly ballooned from 2k to 4k in that 18day period.

 

HTH

 

S.

[stikky62]

Hi The_Shadow,,, and thnaks for contributing.

 

a) I received a letter from Cabot Financial (EUROPE) Ltd in Oct 2001 saying they had 'purchased' the account. I received cconfirmation of this (possibly for the first time) when I CCA'd Cabot in 2008 and a letter arrived from M.B.N.A in July that year stating MBNA had 'assigned' the account to Cabot Financial (EUROPE) Ltd.

The First time I've seen anything from Cabot Financial (UK) Ltd or seen their name mentioned was in the letter f5rom Morgans and on the claim form.

 

b) Yes, please upload it for me - I'm not too sure what it is I should be looking for - which section of which acts etc etc.

 

c) The strange thing is, when they produced the CCA they included a print out of payments made and dates etc,,,including the 'correct' balance as it should have been at the time - £2210.Including this court claim, its up to £5332 now!!

 

stix

[stikky62]

btw

 

The defence I was looking at so far was 127 (3) & 61 (1) (a) of CCA 1974 and schedule 6 - signing of agreement - Consumer credit (agreement) regs 1983/1553.

I am on the right track aren't I?

[the_shadow]

Hi The_Shadow,,, and thnaks for contributing.

 

a) I received a letter from Cabot Financial (EUROPE) Ltd in Oct 2001 saying they had 'purchased' the account. I received cconfirmation of this (possibly for the first time) when I CCA'd Cabot in 2008 and a letter arrived from M.B.N.A in July that year stating MBNA had 'assigned' the account to Cabot Financial (EUROPE) Ltd.

The First time I've seen anything from Cabot Financial (UK) Ltd or seen their name mentioned was in the letter f5rom Morgans and on the claim form.

 

b) Yes, please upload it for me - I'm not too sure what it is I should be looking for - which section of which acts etc etc.

 

c) The strange thing is, when they produced the CCA they included a print out of payments made and dates etc,,,including the 'correct' balance as it should have been at the time - £2210.Including this court claim, its up to £5332 now!!

 

stix

 

Ok

 

For a)

 

Cant find the technical wording but basically they have NO standing in the court as Cabot UK is seperate from Cabot Europe who according to your NoA own the debt. If you search around for some of the HFO threads, the same thing has been done there and they'll be a defense which mentions this I'm sure. Its enough to issue a strike out if you so wish.

 

For b)

It is denied that the claimant may claim interest under the County Courts Act 1984 S69 as the purported agreement is a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states this may not be claimed

The regs mentioned state:-

The general rule

2.—(1) Subject to the following provisions of this Order, every judgment debt under a relevant judgment shall, to the extent that it remains unsatisfied, carry interest under this Order from the date on which the relevant judgment was given.

 

(2) In the case of a judgment or order for the payment of a judgment debt, other than costs, the amount of which has to be determined at a later date, the judgment debt shall carry interest from that later date.

 

(3) Interest shall not be payable under this Order where the relevant judgment—

(a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974[2] ;

 

For c) I would send off CPR18 letter asking for information on how the figure was arrived at... dont advise them of your differing figure, just ask for a clear breakdown of the account.

 

Just my thoughts tho....

 

S.

[stikky62]

Thanks the_shadow

 

I'll search around and see what I can find on your answer to a). One thing though, if it was struck out for that reason, could Cabot then come back and claim under the (Europe) company name - or maybe they'd just assign it over and start again?

 

c) I'll send the CPR18 first thing monday ;-)

[the_shadow]

Thanks the_shadow

 

I'll search around and see what I can find on your answer to a). One thing though, if it was struck out for that reason, could Cabot then come back and claim under the (Europe) company name - or maybe they'd just assign it over and start again?

 

c) I'll send the CPR18 first thing monday ;-)

 

The claimant would need to apply for permission to the court to a) Change the claimant or b) Attempt to take you back to court once your defence has been entered. (Needs confirmation tho)

 

S.

[Fester Tester]

Oh, THIS is interesting.

 

In actual fact, it is CF(UK)Ltd who purchase and own the debt.

 

CF(Europe)Ltd service the account. i.e. Try like buggery to collect on it. They do NOT own it. So if your NoA says they do, the NoA is bolleaux. Make them prove in court that they bought it. They won't be able to, since UK buy the accounts. Always. So NoA is nonsense.

 

Doesn't mean they won't issue a corrected NoA. Maybe. I'm confused though, cos their templating system is set up to send the same guff out to everybody, with the only variable being data pertinent to the recipient; Name, address, account details etc.

[stikky62]

Good Evening. Can someone please confirm the following is correct as to a cpr part 18 request, and ready for posting, thanks ;-) :

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

 

IN THE NORTHAMPTON (CCBC)

county court

CLAIM NO: xxxxxxxxx

 

 

BETWEEN:

CABOT FINANCIAL (UK) LTD

Claimant

 

and

 

xxxxxxxxxxxxxxx

Defendant

 

_________________________ _________________________ ___________________

CPR

part 18 REQUEST FOR FURTHER INFORMATION

_________________________ _________________________ ___________________

 

 

To: Cabot Financial (UK) Ltd

 

Please provide a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

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

 

I think it's good to go, but I sure wouldn't mind some confirmation

 

Quick question - The court paper claim was dated July 30th, I have acknowledged service, does this mean I have until September 1st to submit a defence?

 

One last thing, if a member of the site team is watching, can this thread be moved to the 'legal issues' forum? I'm not sure if it should be in there or not?!?!

[the_shadow]

Good Evening. Can someone please confirm the following is correct as to a cpr part 18 request, and ready for posting, thanks ;-) :

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

 

IN THE NORTHAMPTON (CCBC)

county court

CLAIM NO: xxxxxxxxx

 

 

BETWEEN:

CABOT FINANCIAL (UK) LTD

Claimant

 

and

 

xxxxxxxxxxxxxxx

Defendant

 

_________________________ _________________________ ___________________

CPR

part 18 REQUEST FOR FURTHER INFORMATION

_________________________ _________________________ ___________________

 

 

To: Cabot Financial (UK) Ltd

 

Please provide a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

 

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

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

 

I think it's good to go, but I sure wouldn't mind some confirmation

 

Quick question - The court paper claim was dated July 30th, I have acknowledged service, does this mean I have until September 1st to submit a defence?

 

One last thing, if a member of the site team is watching, can this thread be moved to the 'legal issues' forum? I'm not sure if it should be in there or not?!?!

 

Its a bit formal, you only need to write it as a letter but just stating at the top that this is a CPR18 request but its in your own hand and will suffice.

 

As to moving to the legal section, Ill hit the red triangle and request a site team member do that for you.

 

S

[maroondevo52]

Thread moved to Legal Issues.

[stikky62]

Thanks the_shadow, i'll follow your suggestion and de-formalise it a bit.

 

maroondevo52 - Cheers for the movement ;-)

[stikky62]

Good evening,,well, morning,, all

 

I was just looking at the copy of the 'CCA' I was sent (http://www.consumeractiongroup.co.uk/forum/showthread.php?156683) because I was just reading on another thread the bit in CCA 1974 61 (1) (a) about the signature of both debtor and creditor being required, when something occured to me; I don't know if it relevant at all ????

Looking at my 'CCA', my signature is in a nice box which says..' this is a credit agreement,,,blah blah,,,'signature of customer...', but their signature seems to have been placed anywhere (its on the right side over 'part 12',,, though what the title to part 12 is exactly I cant make out even with a magnifyer)

Is this allowed?(for want of a better word) Should their signatue be in a 'box' somewhere or following a little sentence which says something like 'signed on behalf of MBNA'',,,,'signature of creditor.'....or something similar???

[the_shadow]

Fraid a stamp on the side or a quick signature with date are fine for the act. Exactly because the act just states it must be signed means just that, it has to be signed, there is no formal requirement for a box stating as you have suggested I'm afraid.

 

S.