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arbo

Help required with County Court Action by Cabot (Monument)

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I am defending a case against my wife brought against her by Cabot in respect of a Monument Credit Card.

 

Part of my submitted defence was that they had not produced a copy of the agreement. In the reply to the defence they have produced a copy of a Reply Card signed by my wife which they say is the agreement. I will argue that the card is an application form rather an agreement and in any event does not contain the prescribed terms. The application refers to enclosed terms and conditions and agreeing to be bound by them. They have now also produced a seperate document which they submit are the terms and conditions referred to and that contain the prescribed terms, although this second document contains no reference whatsoever to my wifes account.

 

In their reply they have stated "It is averred that as the Agreement and Terms and Conditions are "documents embodying regulated agreements" and as such contain all of the prescribed terms required under s60 and s61 of the CCA. The Claimant pleads that the Agreement is therefore enforceable."

 

I am not sure what they mean by "documents embodying regulated agreements" and need some assistance with a rejoinder in this matter.

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Hi arbo

 

It might be helpful if you post up the docs they are using against you. Someone knowledgable can then look at them in detail and give a view.:)

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Not sure how you do this and they are in any event quite voluminous.

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The reply card for example

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Still do not know how to upload a copy.

 

However I am happy that the reply card alone does not constitute a valid agreement as amongst other things it does not contain the prescribed terms. My concern is that Morgan Solicitors (who act for Cabot) appear to be aware of this and are attempting to link the reply card (the agreement) with a seperate document (the terms and conditions) that they purport to be the T&C's referred to in the reply card (the agreement) and does contain the prescribed terms, by calling them "documents embodying regulated agreements" and that together they form a valid agreement. The second document (the terms and conditions) makes no reference whatsoever to my wife or her account and could therefore relate to any "agreement" that does not otherwise contain the prescribed terms. I can find no reference to this tact anywhere else and if they succeed would have very onerous consequences to many other debtors defences.

 

Can anyone offer any advice based upon the information provided.

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Well I am no expert....:)..... but..

 

 

I think from what you have said you will have nothing to worry about other than a load of stress getting it sorted out.

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Thanks Kurvaface, :) but I would still appreciate some advice from someone who may be an "expert" :rolleyes: before I become too stressed out :confused:

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I am sure someone will be along shortly:)

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Can someone help with this? If Cabot win this argument it will destroy the argument regarding the containment of the prescribed terms within an agreement with catestrophic consequences.

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Can someone help with this? If Cabot win this argument it will destroy the argument regarding the containment of the prescribed terms within an agreement with catestrophic consequences.

 

 

HI

 

Have you SAR them? Cabot are good at producing nothing worth acting on.

 

You are in the same boat as I. They have no valid agreement, just a application form from 2000, check the date on the form, if its more than 6 years they are stuffed...

 

SAR them..

 

Trooper68


Trooper68:)

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It really would be helpful if you could post the claim, the defence, the CCA, the DN, the NoA and the Assignment

 

If you can scan or use a digital camera to take photos and load them into your PC and then if you click on Go Advanced in the quick reply box and then look down and click on manage attachments you can then upload the documents from your PC direct to the CAG server


If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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There are likely to be a whole range of issues which are likely to include:-

1. A CCA which doesn't include the prescribed terms - what is the date of the agreement - is it a S127 (3) agreement

2. The Notice of Assignment - either not served at all or invalid

3. The DN is likely to either not be served at all or invalid

4. Account charges - are there default charges

5. The Actual Assignment - you need to see that

6. You need to get the terms and conditions at the date that the agreement started AND the most recent

7. Do you know how they've calculated the amount claimed

 

 

There is a fair chance that your defence may need amending.

 

If you post the docs we'll see if we can make any suggestions


If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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IGNM

 

Thanks for your response. I do not have a scanner, but I can get them scanned in tomorrow at work, emailed to myself and hopefully uploaded tomorrow evening. The documents are as I said quite voluminous. I assume from other threads that I should score out all personal data.

 

In answer to your questions

 

1) The purported agreement is dated 06/11/01. The seperate document purported to be the T&C's is undated. Not sure what you mean by a 127(3) agreement, but you can judge for yourself if I can get it all uploaded.

2) There is no NoA. In their reply to the defence thay have provided a copy of a "representation" of the one that would have been sent.

3) There is no DN. Morgan Solicitors have pleaded that one was not necessary as they are only pursuing arrears. They lie - they have claimed the full balance.

4) There are as you would imagine account charges. I will not include the copy statements provided by Cabot, but they have provided them for most of the full period of the account and the amount can be calculated.

5) They have provided a copy of the "actual" assignement, although it appears to be a generic document that does not specify my wife's account.

6) See 1) above. They have also provided a copy of amended T&C's but it is barely legible.

7) They have shown a calculation of the amount - the full amount, plus interest.

 

Hopefully I can get it all uploaded tomorrow.

 

Many thanks again for your response.

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:)

 

lets see what you post up.

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I have to say that it sounds as if there are numerous issues - not least of which is enforceability - S127 (3) CCA 1974 basically means that if the signed agreement does not contain the prescribed terms (as to interest rate, repayment & credit limit) then it will be irredeemably unenforceable

 

There are then issues as to a failure to serve a valid NoA...etc etc...

 

Once you've posted the stuff I'll make some suggestions as to the defence


If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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IGNM & K

 

Thanks for your replies.

 

The document they allege is the agreement does not contain the prescribed terms. They are however contained in a seperate document, but you will hopefully see for yourself tomoz.

 

Will be posting again as soon as.

 

Cheers

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I know that it isn't the same Claimant but it does have some similar issues - have a read at

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/197867-arrow-mbna-ignm-pt.html#post2147014

 

and have a read at my skeleton it sort of outlines the law

CAG Skeleton.doc


If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

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IGNM & K

 

I have uploaded the following documents:

 

1 Claim & Defence docs

2 Appendix doc to Defence

3 Post Defence docs [1 of 2]

4 Post Defence docs [2 of 2]

5 Reply to the Defence

 

More to follow

1 Claim Form & Defence.pdf

2 Appendix to Defence.pdf

3 Post Defence Correspondence 1 of 2.pdf

4 Post Defence Correspondence 2 of 2.pdf

5 Reply to Defence.pdf

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Attached documents submitted with Morgan's Reply to the defence.

 

I will read the links you have submitted in your last post now and get back to you. Happy reading.

 

Regards

6 Reply Docs A & B.pdf

7 Reply Docs C & D.pdf

8 Reply Docs F to H.pdf

9 Reply Docs I to K.pdf

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Arbo

 

Well done on a very thorough defence (In my inexperienced opinion)

 

I fail to see how they are going to be able to get around the original credit agreement issue, let alone all the other stuff. I'm sure this will go in your favour but you need the more experienced opinion of other CAGgers.

 

One consolation is you have managed to keep some of these monkeys busy:)

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Also..... reading through their letters made me very angry. I hope you guys manage to get some relief from the stress of all of this:mad:

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Thanks K

 

I am happy with most of it but still a bit concerned about their reply and their attempt to assert that the seperate reply card & T&C's are "documents embodying regulated agreements" and therefore valid.

 

On another note I am not sure if this reply has been filed with the court. If it has it must have been after ther period by which the court should have stayed the action. I have contacted the court but they will not advise on the position, insisting they will write to my wife - that response is still waited.

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Under civil proceedure rules they will have to provide you with all the documents they intend to use in the hearing. If you think they have submitted different docs to you and the court I am sure the court will provide you with a copy of any docs you don't have.

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It was more a question of have they submitted them at all or are they bluffing?

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From what I've read around cag, the courts seem to be fairly relaxed about deadlines and submission dates, however, all the situations I've read that are similar to yours, the Judge seems to come down like a ton of bricks on the claimant by the time of the hearing over details that are not in order. I genuinely think you'll be ok.

 

Have you thought about claiming your costs because you must have put considerable time and resources into preparing your defence?

Edited by kurvaface
friday grammar

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