Cabot Claimform 2 debts - old MBNA card debt + Hitachi Finance **DISCONUTINUED**

[B3rty]

Will follow with interest as I expect to be not that far behind you the way things are going ...so wish you the best of luck....I am still trying to get access to Goodes if anyone has any ideas....

[MAGDA]

Hi B3rty, thanks for the support - I wouldn't mind a copy of that (Goode) myself - certainly be very useful.

 

Many thanks, Magda

[angry cat]

Correct me if I am wrong but I believe that if one makes an appointment, members of the public can view documents and books in the Law Society Library:

 

Library services | Junior lawyers division

[MAGDA]

Thanks AC, see you found my thread:) Just saw your pm and was going to post the link. Thanks for looking in, that's ineresting to know - would be very helpful to be able to get a look at Goode.

 

Many thanks, Magda

[citizenB]

Correct me if I am wrong but I believe that if one makes an appointment, members of the public can view documents and books in the Law Society Library:

 

Library services | Junior lawyers division

 

Interesting, will look into that. Thanks AC.

 

Magda, how you doing, when do you need to get your defence in by ?

[angry cat]

Interesting, will look into that. Thanks AC.

 

Magda, how you doing, when do you need to get your defence in by ?

 

Well, how many people can afford to buy an up todate copy of Goode!?

 

Hopefully, many Cabot Fan Club members will assist Magda; Cabot need a good whipping!!!

[MAGDA]

Interesting, will look into that. Thanks AC.

 

Magda, how you doing, when do you need to get your defence in by ?

 

Hi CB, faxed my holding defence to Northampton today - Brent (who is also dealing with Cabot) posted up a defence for me on his thread, so just added some other bits in about the DN and Assignment and that should do for now hopefully. Did a cpr 18 to Cabot but they have completely ignored it - what a surprise:rolleyes:

 

regards, Magda

 

Well, how many people can afford to buy an up todate copy of Goode!?

 

Hopefully, many Cabot Fan Club members will assist Magda; Cabot need a good whipping!!!

 

Thanks AC, would be nice to see all of this back fire on Cabot, that's for sure.

 

Magda:)

[angry cat]

Methinks, much will backfire on Cabot...!

[angry cat]

Interesting, will look into that. Thanks AC.

 

Re: the Law Society library:

:

"Non-members who are bona fide academic researchers should first write requesting admission, detailing the material they would like to consult. Contact us

[citizenB]

Well, how many people can afford to buy an up todate copy of Goode!?

 

Hopefully, many Cabot Fan Club members will assist Magda; Cabot need a good whipping!!!

 

I'll hold them.. you can do the whipping, AC

 

Righto Magda, I hadnt seen anything on here.. but understand why.

[angry cat]

I'll hold them.. you can do the whipping, AC

 

Righto Magda, I hadnt seen anything on here.. but understand why.

 

Whipping, Flogging, Tarring and Feathering...

[MAGDA]

Hi all, will post my defence on here when I get a sec - in case anyone else wants to use it for another Cabot claim, not bothered about Cabot seeing anything.

 

Well, received a response this morning to my CPR 18 from Morgans. It's a joke. All nicely bound and looking very smart, but that's about it!

 

For the Hitachi account they have sent a copy of the agreement (that does seem to be enforceable, but it's only for around £300 anyway).

 

Also have sent statements, a representation of a NoA (why not send a copy of the real thing?) Cabot Europe account history, Cabot europe statement of account, finally no DN sent at all.

 

For the MBNA: Copy of Application form (nice of them to confirm that) copy of the credit Agreement - this made me wonder, but on looking at it, it is generic t&cs headed "Credit Card agreement Regulated by the CCA 1974" no signature, and guess what, the late payment charges are £12. Strange because back in 1997 or so when the card was taken out they were around £20+ so obviously their current t&c's. They have also provided copies of account statements from 2001 - 2004 (can see at a glance lots and lots of penalty charges there:D) again a respresentation of a NoA, Cabot Europe account history, Cabot Europe statement of account. Again, no DN.

 

In all it doesn't amount to much at all.

 

Magda

[MAGDA]

This is my holding defence faxed already to the court yesterday. Might be of use to someone else. Magda

1The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence.

 

2.The claimant’s document which they claim is a “consumer credit agreement”, as a basis for enforcement of a debt under the Consumer Credit Act 1974 (“the Act”), is not valid at law for the following reasons:

 

(a)The “agreement” provided by the claimant is legally unenforceable as it does not contain the required information under Schedule 6 of the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) (“the regulations”) which are required under sections 61(1)(a) and 127(3) as it then was, of the Act, which apply to agreements executed prior to 6th April 2007. Specifically lacking is:

 

information as to the amount of credit (para.3 of the regulations)

information as to the interest rate (para.4 of the regulations)

information as to the repayment terms. (para.5 of the regulations)

 

(b) Further, section 61 of the Consumer Credit Act 1974 and Schedule 6 of the 1983 regulations and the case law relied upon make it clear that the required information must be included in the same document and not merely referred to in another document. Any reference to the “Terms and Conditions” attached in a separate document is of no legal effect for the purposes of enforceability as they are not signed by the debtor.

 

©The Act contemplates a document that “contains” the prescribed terms in section 61(1)(a) and a document that “embodies” the full terms in section 61(1)(b)

 

The term “embody” is defined in the Act:"A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it.” However, the word “contains” is not defined by the Act but is so defined by case law (see (h) below) to mean “within the four corners of the agreement” and “not in a separate document.”

 

(d)Therefore, the “agreement” is further improperly executed in accordance with section 61(1)(a) of the Consumer Credit Act, 1974 as it does not contain “all the prescribed terms” within it and it alone.

 

(e)Further, the claimant cannot rely on section 127(3) of the Act as there is no document that contains (as compared to “embodies”) all the prescribed terms within it and it alone that is signed by the debtor

 

(f)Section 127(3) of the Consumer Credit Act 1974 was abolished by the Consumer Credit Act 2006, however Schedule 3, Part 11© of the 2006 Act states that section 127(3) of the 1974 Act remains applicable to agreements entered into prior to the commencement of the 2006 Act. The commencement date of the 2006 Act was 6th April, 2007.

 

(gThe claimant has admitted that the agreement in question was entered into in 1997 and 2002 respectively, Section 127(3) of the Consumer Credit Act 1974 therefore applies to the agreement in question

 

(h)The defendant will rely on the House of Lords case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003) in applying this interpretation of the law and regulations in relation to unenforceable consumer credit agreements and this agreement

 

3. The court is therefore barred from issuing an enforcement order under the Consumer Credit Act 1974, in accordance with sections 65 and 127(3) as it then was, and the claimant’s claim must fail

 

4. It is averred that before these proceedings may be commenced a valid default notice and a valid termination notice must be served upon the Defendant.

 

5. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice. The Defendant does not admit that any alleged default notice was valid. The Claimant is put to strict proof as to the validity thereof.

 

6. It is not admitted that the aforesaid agreement was lawfully assigned to the Claimant. The Defendant has not been permitted to inspect either of the two Assignments and has therefore been unable to satisfy herself as to whether the Assignments are valid. The Defendant avers that she is entitled to, as a matter of Law, to inspect both Assignments

 

7. The Claimant is put to strict proof that such Lawful Assignments took place and as to the precise terms thereof.

 

8. If, which is not admitted, the Assignments to the claimant did occur it is averred that for such an Assignment to be lawful that notice of it must be served in accordance with the terms of the Section 136 of the Law of Property Act 1925.

 

9. It is denied that a valid Notice of Assignment has at any time been served upon the Defendant. It is averred that for Service of any Notice of Assignment to be effectual it must, where postal service has been adopted, be served by Registered Post.

 

10. Further, and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

 

11.The Defendant as part of the Request for Further Information of the Claim pursuant to Part 18 of the Civil Procedure Rules, made on the XXXXXX 2009 requested that the Claimant provide complete list of transactions and charges and other information essential to our defence. The Claimant has failed to comply with that request.

 

 

12.Further, and in any event in view of the failure to comply with the CPR Part 18 request, it is denied that the Claimant is entitled to costs as claimed or at all

 

13.In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all

 

It is respectfully requested that the Defendant be granted permission to amend this defence on satisfactory response from the Claimant with all of the information requested and necessary in order to submit a full defence.

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

 

I am the Defendant.

Edited December 12, 2009 by MAGDA

[MAGDA]

The other thing stated by Cabot in their response is that they are trying to get hold of copies of the deeds of assignment and will forward as soon as they have them. Be interesting to see what they show on closer inspection, from what I hear, some of Cabot's assignments are decidedly dodgy.

 

Magda

[MAGDA]

removed duplicate post.

[B3rty]

Magda that's a very well written defence....

[angry cat]

Short and to the point, excellent Magda:)

 

AC

[MAGDA]

Thanks B3rty and AC - thanks to Brent for his help. Will keep you posted with any developments. Waiting to see the Assignments now:rolleyes:

 

Magda

[angry cat]

With you on this Magda and; waiting with 'Crained Neck'!?

[MAGDA]

thanks AC:)

[MAGDA]

Hi all, Happy New Year! The latest on this is that Cabot has provided a so called DoA for the smaller debt (around £300) - it looks to be a 'generic' document, with a little bit attached at the end with some personal details, which do not appear to be linked to the main deed, also the account number doesn't seem to be specifically mentioned either. No DoA for the main debt - MBNA, and still no DN's for either.

 

Be interesting to see what else turns up.

 

Magda

[MAGDA]

Well AQ returned to court, checked today and they have received both mine and Cabot's, though I haven't received any copy AQ from Cabot yet, so perhaps that will turn up tomorrow...

 

Just a waiting game now to see what directions the judge orders (as per my draft order) and whether we will need a CMC/Allocation hearing as well.

 

Magda

[MAGDA]

From reading other threads and from statements Cabot has made in relation to this claim - they seem to be saying that they do not need any default notice at all to recover monies in court, as they are only seeking to recover the arrears on the account - this is for credit card debts....

 

So, basically, the debt can be sold on by the OC to Cabot, who can then seek to recover the arrears, all without any DN ever being issued... according to Cabot.

 

Would be interested in any comments on this.

 

Magda

[MAGDA]

Hi to anyone who might be looking in, Bit of an update.

received a letter from Cabot this morning, usual rubbish. The application is the agreement, no DN required and quotes prof Goode as someone posted earlier. No statements past 2004 and would I like to provide statments older than this to Cabot, as disclosure is a two way thing! They state that the doucument they refer to in an earlier letter as the agreement is in fact the t&cs (Yes! complete with charges of £12 - so obviously pretty current). They don't have, and do not need to provide NoA, as they send a reconstruction of what this would have comprised of, after all, they say, they have millions of customers and can't be expected to keep all those copies.Neither the claimant nor the Assignee was required to serve termination notices. Finally the DoA which is very interesting. Pretty much a generic doc, but it states a date of entering into the 'Agreement' between Kings Hill and MBNA in 2003. Cabot stated in their recent correspondence and have confirmed in other court docs as well, that the account fell into arrears in Spring 2004, assigned mid 2004 - so strange that the agreement took place before there was ever any problem with the account....Hmmm, thing someone is telling porkies here:rolleyes:

 

wondering if I should think about going for summary judgement at the Allocation hearing, although not much time really for that now.

 

Magda

[MandM]

Subbing