OHH Cabot is back...

[rnscotch]

A little over 2 years ago i requested a CCA on a Vanquis debt that cabot where now saying was there's, in the end they could not provide me with the CCA so i got the usual letter saying "They where still waiting on the requested info from the original lender" and they would freeze my account until they have the info requested (how kind of them ehh).

 

So as i said that was two years ago, so imagine my surprise when i get an A4 sized envelope with what they claim is the CAA.

 

What they have actually sent is a copy of the original application form, it's one of those really old forms which you moisten to seal and is actually written in my handwriting. It is barely legible, but you can see the signature clearly. There are no prescribed terms, no account number, credit limits or interest rates on the form, is this enforceable? They say in the letter "copy of your Application Credit Card Agreement regulated by the Consumer Credit Act 1974".

 

What kind of shenanigans are they trying to pull here as it is clearly not a copy of the CCA but a copy of an Application. I am pretty sure this is not enforceable.

[shredder10]

Im no expert but 42man posted this to help me with cabot.

 

 

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

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

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

[cerberusalert]

Thank you for your response to my letter dated xxxxxx 2008, making a formal request for a true copy of the original credit agreement for the above account under the Consumer Credit Act 1974 (Sections 77-79).

 

The documents you supplied me appear to be no more than an application form, and as such are not a satisfactory response to my request. Nowhere on the front of the document is there any reference to the prescribed terms and conditions that such an agreement must contain. I must assume that these are unconnected documents and once again inadequate to satisfy your obligations.

 

As you are aware you are obliged to provide me with a true copy of my agreement as defined under Section 189 of the CCA 1974. and I consider that you have failed to comply with my request for these documents

 

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested documents. This deadline has now passed and I have not received the requested documents from you.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable & I therefore consider that this account is in dispute with immediate effect & it follows that all payments to this account are suspended forthwith.

 

I draw your attention to the legal requirement that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

You must not demand any payment on this account, nor am I obliged to offer any payment to you.

You must not add any further interest or charges to this account.

You must not pass this account to any third party.

You must not register any information in respect of this account with any of the credit reference agencies.

You must not issue a default notice on this account

I hereby give you notice that if you proceed with any of the above actions, I will file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.

 

Yours faithfully

[DocH]

A little over 2 years ago i requested a CCA on a Vanquis debt that cabot where now saying was there's, in the end they could not provide me with the CCA so i got the usual letter saying "They where still waiting on the requested info from the original lender" and they would freeze my account until they have the info requested (how kind of them ehh).

 

So as i said that was two years ago, so imagine my surprise when i get an A4 sized envelope with what they claim is the CAA.

 

What they have actually sent is a copy of the original application form, it's one of those really old forms which you moisten to seal and is actually written in my handwriting. It is barely legible, but you can see the signature clearly. There are no prescribed terms, no account number, credit limits or interest rates on the form, is this enforceable? They say in the letter "copy of your Application Credit Card Agreement regulated by the Consumer Credit Act 1974".

 

What kind of shenanigans are they trying to pull here as it is clearly not a copy of the CCA but a copy of an Application. I am pretty sure this is not enforceable.

 

As you say, if it does not contain the prescribed terms it is unenforceable. You may like to send them this, don't sign it with your usual signature:

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

 

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

 

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

PRINT NAME (DON'T SIGN)

[rnscotch]

Cheers folks... will let you know if they reply back. Most likely they will try to defend what they have done.

[rnscotch]

Hi,

 

I got my reply back from crapbot.. a whole 2 pages of guff, i can see them trying to push this to the end but my resolve is greater than there's basically they are saying the following...

 

although the original is not available vanquis has supplied them with a copy of the original.. then they say they are perfectly within there rights to enforce the debt and my arguments are clearly unfounded and i have no basis for dispute or claim for failing to pay.

 

All of which is total rubbish Vanquis have sent them a copy of a mailer application form which does not have all the prescribed terms and with it being an application form and not a copy of the actual signed credit agreement it is obviously not signed by both the lender and borrower which i believe is has too.

 

I have just sent another letter pointing out the flaws in there comments and pointing out what should be contained in a CCA and requested they zero the debt.

 

I don't want to be playing ping pong with letters.. If they come back insisting they will not be dropping the debt and will be continuing to try and enforce the unenforceable what are my next steps who do i complain too?

 

 

[cerberusalert]

You should complain to your local Trading Standards, the OFT & the Information Commissioner.

[rnscotch]

Would it be worthwhile complaining to The Consumer Credit Services Association & The Consumer Credit Trade Association as well.. been a while since i have done all this so trying to get myself up too speed which any changes since i was last involved.

 

I should have killed this off when they said they could not provide the CCA but i got complacent this time i am going for the throat.

[cerberusalert]

I'd complain to anybody & everybody including my MP:D

[rnscotch]

Cool.. I will complain to everyone then, going to be a busy weekend... lol

[spartathisis]

I have rcvd a similar argument fromTBI financial and they have now defaulted me and threatening court! Gulp!!

 

Will be posting all docs up shortly for help.

 

Good luck with cabot, interested in the outcome as I am holding back at the mo on DSARing them.

[rnscotch]

All it will be is threats, If they want to go to court let them for as far as i understand it a court is precluded from enforcing any such agreement by s127 (3) CCA1974 as it would be improperly executed under s61 CCA 74 and the consequences of an improper execution are set out in section 65 CCA 1974 and s65 which sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now any document that does not contain all the prescribed terms s127 (3) CCA 1974 would strictly prevent the court from enforcing this agreement.

 

I'm no expert and i am picking things slowly up again but i believe i am correct in the above. I'm sure someone will correct me if i am wrong

[rnscotch]

Finally got a response from those idiots at crapbot towers.. Just to recap i sent them a letter stating that They have not sent me the CCA i requested but a simple mailer application form which did not have the prescribed terms.

 

To be honest i expected the reply i got back from the fools, they are basically saying i have been misinformed in relation to the arguments i continue to raise and i have no grounds for my continued dispute they are further stating that the terms of an agreement can be set out in another document and are quoting CCA 1974 section 60(1) for this.

 

They go on further saying that they will not enter in to any further correspondence regarding the matter as it is evident i am delaying repayment of the account - That made me chuckle.

 

Looking around the board there seems to be have been a spate of this activity from Cabot where they are sending out a copy of the original application form and a copy of some terms and conditions in a separate document and are claiming this is legally accurate and are trying to enforce the debt ....

 

What i am planning on doing is as follows.. forward all material on to trading standards, forward on my complaint to OFT about breaching of there guidelines etc, I am then sending one last letter to cabot stating that I consider this account to be in SERIOUS DISPUTE. And as they are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 and this constitutes a complete defence at law., as they continue to ignore my dispute and attempt enforcement. I am of the opinion that there continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines so i have filed reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and initiate possible legal action.

 

Any opinions would be gratefully received.

[twofoot]

Send them a letter saying you welcome their decision not to correspond further as you have come to a similar conclusion regarding the matter. Tell them if they wish to enforce through court you will defend and request under CPR rules that they furnish a valid CCA. That will shut them up.

[rnscotch]

Thanks twofoot.. this is basically what i am planning to do after this final letter, i am just going to file anything from them under ignore unless it's anything to do with court as they have said they are now going to escalate the account in there collections process whatever that means.

 

I assume that means they are going to step up the harassment or pass it to one of the smaller fish in the dca cesspool.

 

I will post up the application that they are claiming is my original cca later as i need to pop out just now.

[dpick]

I think I would remind them that as an interested party you could ask the court to declare the agreement unenforceable under section 142 of the CCA 1974

 

 

CCA 1974

section 142

 

142.—(1) Where under any provision of this Act a thing can be done by a creditor or owner on an enforcement order only, and either—

(a) the court dismisses (except on technical grounds only) an application for an enforcement order, or

(b) where no such application has been made or such an application has been dismissed on technical grounds only, an interested party applies to the court for a declaration under this subsection the court may if it thinks just make a declaration that the creditor or owner is not entitled to do that thing, and thereafter no application for an enforcement order in respect of it shall be entertained.

(2) Where—

(a) a regulated agreement or linked transaction is cancelled under section 69(1), or becomes subject to section 69(2), or

(b) a regulated agreement is terminated under section 91,

and an interested party applies to the court for a declaration under this subsection, the court may make a declaration. to that effect.