Unenforceable CCA? Cabot

[gizmo7]

Hi everyone,

I made a CCA request to Cabot who now own this Capital one account. I received in response to this, an illegible copy of my application form dated 1999 and two seperate sheets containing the T&C's dated 2007. I quickly responded to them quoting Regulation 2 and informed them based on this they had not fulfilled their obligation under the CCA act of 1974. I also advised them that as the T&C's were not "Embodied" in the signature document it rendered it unenforceable by virtue of S127 (3). The only good piece of info i did get from them was in one of the attached letters to me they advise the Original true copy is no longer in existence.

Can somebody cast their eye over the comments and in particular the legislation Cabot have quoted and advise.

 

Many Thanks Gizmo7:confused:

 

http://i606.photobucket.com/albums/tt147/ringo7-2009/cabot.jpg

http://i606.photobucket.com/albums/tt147/ringo7-2009/cabot1.jpg

http://i606.photobucket.com/albums/tt147/ringo7-2009/cabot3.jpg

Edited March 7, 2009 by gizmo7

[cerberusalert]

Typical Cabot nonsense. This is an application form which does not contain the prescribed terms within the four corners of the signed document, therefore it's unenforceable.

 

Send them this;

 

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement 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 for the definition of what is required. Suffice to say none of the terms are present in the document

 

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.

 

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

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, 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 in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client 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

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

[gizmo7]

dear cerberusalert,

Are you familiar with the comment Cabot made regarding the Secretary of State and what does it mean??

 

Thanks Gizmo:confused:

[cerberusalert]

No,...... What pearls of wisdom did they come out with?

[pt2537]

as usual Cabsnot talkin out their botties

 

Only if the original agreement is pre 1985 can they avail themselves of their responsibilities by sending only a copy of current terms and conditions

 

9 Copies of old agreements and security instruments where the agreement or security instrument has been lost etc

Any copy of an executed agreement made before 19th May 1985 or of a security instrument relating to security provided

before that date which is given to the debtor, hirer or surety under any provision of the Act on or after that date may

comprise an easily legible statement of the current terms of the agreement or security as the case may be insofar as they

are known to the creditor or owner where, due to an accident or some other cause beyond his control, the creditor or

owner does not have in his possession the executed agreement or security instrument or any copy thereof.

 

 

the above quite is regulation 9 Consumer Credit Cancellation notices and copies of documents regulations 1983

 

moving on to their other inaccuracy , the distinction between contains and embodies

 

the agreement must contain the prescribed terms ( found at schedule 6 Consumer Credit Agreements Regulations 1983) and may embody all other terms of agreement (these are the terms contained within schedules 1 and 2 Consumer Credit agreements Regulations ) and of course any other terms and conditions of the contract as clearly a credit agreement is not just the statutory content but also the simple terms of the agremeent between you and your lender

 

the contention advanced by cabot can also be dis-proven by referring to Goode Consumer Credit Law and Practice as well as Lloyd and Guests Encyclopedia on Consumer Credit law . both of these academic texts confirm that there is a distinction between Section 61(1) (A) & (B)

 

indeed i would make the poiint that , there would be no need for subsection(a) if it were considered correct that an agreement can merely have all its terms set out within another document, and arguably one which you may not get sight of til the agreement is signed

[cerberusalert]

Are you familiar with the comment Cabot made regarding the Secretary of State and what does it mean??

 

I see what you mean now, I only scanned their missive and tend not to absorb the cack they write;)

 

The important thing to consider is the agreement or in your case the lack of.

[gizmo7]

Thanks for your input pt2537 and cerberusalert,

 

What would you suggest i do now or should i merely sit tight and await further developments. They have advised a further escalation of collection activity in 7 days. I'm shakin in my boots! lol

Thanks Gizmo7:rolleyes:

[cerberusalert]

Send the letter in post #2