I this CCA enforceable?

[waynat]

Received this from Cabot after CCA request and follow up letter from this site disputing the application form and standard terms and conditions they sent me! Is the application form classed as an enforceable Credit Agreement! Attached is the hard to read signed photo copy they sent me and cover letter. Please help!

Edited April 12, 2009 by waynat

[Huff&Puff]

Hopefully more experienced CAGgers will be along to confirm, but from the great deal of reading I've been doing here recently, I can safely say that it is not enforceable, as it doesn't contain the prescribed terms. It is also illegible.

[cerberusalert]

It is totally unenforceable, send them this;

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.The document received does not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

 

The absence of a properly executed credit agreement prevents you from:

Adding interest to the account

Taking any enforcement action on the account

Issuing any default notices or registering any default marker with a credit reference agency

 

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.

 

 

 

 

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

 

 

 

 

What I Require

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards

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 it would be in everyone’s interest to consider the matter closed and for you to write the alleged 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

 

 

Yours Faithfully

Print your name do not sign

[waynat]

Thank you very much for your quick response! Will do as you say. Thanks again this type of support has boosted my confidence in dealing with these people! Can you please just confirm that there is nothing these people can do other than send threatening letters?

[cerberusalert]

They'll probably huff & puff but without an enforceable agreement they are stuffed. If they do carry on with any harassment you should complain to the Trading Standards, the OFT & the FSA.

[waynat]

Please find attached Cabots response to the above correspondance! Can somebody please advise what i should do next.

 

Cheers!

Cabot1.pdf

Cabot2.pdf

[cymruambyth]

Hi, in my game of letter ping pong with Cabot, I just keep sending variations of the same letters! They ignore them all and try to blind you with lots of diffent acts which don't seem to be of use to anyone...

This is a letter I sent from Idainfife

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

 

If you look through some of the Cabot threads, you'll see that they seem to be obtuse and churn out loads of letters saying nothing.

[cerberusalert]

Ignore them.

 

If they continue to try & pursue make a complaint to the OFT with regards to their harassment and threats, they are in clear breach of OFT guidelines & CPUT;

 

Debt collection guidance - Final guidance on unfair business practices - oft664

 

 

The Office of Fair Trading: Contact us

 

[email protected]

 

The Office of Fair Trading: Debt collection practices

 

tel: 020 7211 5823

[waynat]

Once again thank you very much for your help and advise.

 

Cheers!

[waynat]

Following on from the above Cabot have continued to ring me on and off for the past year which I have ignored. They have now sent a letter saying they are coming to visit myself at my home! Can somebody please tell me the beast way to respond to this.

Please advise.

[cerberusalert]

Send them this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/591-dca-home-visit-if-you-receive-or-are-threatened-with-a-doorstep-visit-

[waynat]

Thank you very much for your quick response. It gives me more confidence dealing with these people. I will do as you have suggested. Once again Thank you.

[Bazooka Boo]

Have you made a complaint about their telephone harassment to Ofcom & Consumer Direct

 

Boo;)

[waynat]

No not yet was thinking of ringing them though since getting latest letter regarding house visit. I can easily ignore their phone calls. Would it help to complain?

Thanks for responding.

[waynat]

Please find attached the most recent letter from Cabot. Can someone please advise me what to do and can they carry out these threats.

Cabot3.pdf

[UnitedFront]

I'm in the same game with Cabot on behalf of one of my family.....

 

Edit the following to suit your circumstances, maybe putting in something about your ongoing dispute.

 

At the end of the day, in the unlikely (VERY unlikely, I think!) event that they should turn up, just remember that they have less power than your milkman - in that at least your milkman could stop delivering milk!! They have no power. Tell them to leave your premises immediately, or you will call the police. If they fail, then call the police.

 

Do not let them in, do not speak to them, other than to say the above.

 

Hope this helps.

 

Cheers

UF

 

Dear Sir or Madam,

 

Account Ref xxxx

 

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384

. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

 

 

In Scotland change the last paragraph to :-

 

There is only an implied license under Scots Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc. Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you attempt to send such a collector to my home, you will also be reported for harassment and I shall seek damages for a delict of trespass. You would also be liable for conspiring in a delict of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an interdict from the Court to prevent you carrying out your threat.

 

Yours faithfully,

[twoman]

Hi Waynat,

Send them this.

 

YOUR REF 123456

 

 

Dear Cretins

 

I refer to your recent correspondence.

 

I note it is your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you.

 

There is only an implied license under Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and civil action will be taken.

 

If you do not understand the foregoing I suggest you seek professional advice.

 

 

[Bazooka Boo]

You should give cr@pbot a ring, and say "There, now you've heard from me, you can stop your whingeing and sending me cr@p"

 

Keep a copy of that letter UF posted above by your front door, then IF anyone is foolish enough to turn up, stuff it in their grimy mit and shut the door.

[waynat]

Thanks for your help so far, however, they have now sent me this. Please advise.

Letter4.pdf

[cerberusalert]

Send them this http://tinyurl.com/2fcv4jr

[waynat]

Thanks for the on going help! Can they really carry out their threats without a court order?

[cerberusalert]

Without a court order they can't do anything other than annoy the life out of you. They can bombard you with pointless letters and if you are unlucky enough that they have your 'phone number they may call incessantly.

[waynat]

Hi did as you said, they have now come back with this. Thanks for the on going help, what should I do now?

SKMBT_50110093016160[1].pdf

[cerberusalert]

Fire are Cabot... ignore for now.

[Bazooka Boo]

By escalating the matter, what they mean is that your alleged file will make it from the bottom filing tray to the middle, where they will attempt to confuse you some more by using another trading name they have learnt at school.