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

[MAGDA]

One thing I wanted to ask, before Cabot took us to court for the small account (this is only a few hundred, whereas they claim the MBNA one is in the thousands) I wrote and pointed out that we had been mis-sold PPI. The box requesting it had clearly NOT been ticked, but it was added on anyway. Cabot wrote back and said that it allowed for the PPI to be added in the t&cs, but they would refund it anyway. Do I still have an argument re: the PPI being added without our consent (even though now refunded) and will this impact of enforceability of that agreement. Not so worried about this one, as it is only very small anyway.

 

Many thanks for any comments.

 

Magda

[MandM]

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.

 

Hi Magda, finally got here . I think that the above is very relevant (amongst many other 'porkies' that they seem to have based their claim on).

 

With time being so short I don't know if you'll get a SJ/SO through in time now so may be a good idea to prepare for 'the day'. As posted on the other thread, I think you are not being unreasonable in bring this to the DJs attention at an Allocation hearing, as the amount in question, without doubt, will determine the track.

 

Therefore, you have to have that argument!

 

If you feel that the SO/SJ route is still worth considering then have a read of costa's thread, who is heading that way at AQ stage, so might get some hints from that. http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

 

I think that the 'it's all arrears' argument is going to be tried more and more by OCs/DCAs.

[MAGDA]

Hi Magda, finally got here . I think that the above is very relevant (amongst many other 'porkies' that they seem to have based their claim on).

 

With time being so short I don't know if you'll get a SJ/SO through in time now so may be a good idea to prepare for 'the day'. As posted on the other thread, I think you are not being unreasonable in bring this to the DJs attention at an Allocation hearing, as the amount in question, without doubt, will determine the track.

 

Therefore, you have to have that argument!

 

If you feel that the SO/SJ route is still worth considering then have a read of costa's thread, who is heading that way at AQ stage, so might get some hints from that. http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/238913-me-tesco-incasso.html

 

I think that the 'it's all arrears' argument is going to be tried more and more by OCs/DCAs.

 

 

Thanks m&m for looking in - really appreciate it. I think I will get all of my arguments together as you suggest and then see what happens at the hearing. I can always do an application then a bit later on if I need to.

 

Will have a look at costa's thread just in case, although think I would probably be cutting it a bit fine now. That's the trouble, Cabot have taken so long to provide the info I needed, that the hearing is now just around the corner.

 

thanks again, Magda:)

[MandM]

That's the trouble, Cabot have taken so long to provide the info I needed, that the hearing is now just around the corner.

And i'm sure that you can also use this fact to demonstrate their efforts to frustrate proceedings still further.

 

M

[gh2008]

Hi Magda

 

Ok, so Cabot are claiming the 'agreement' is still live and they are claiming arrears.

 

Fair enough.

 

You need to be very firm about them proving what the T&Cs were on the original agreement. Yes, you appreciate that these T&Cs they've sent are the current ones and that they have changed since inception.

BUT did the original terms allow them to change

did the original terms have the prescribed conditions

were the original terms there either before or at the time of signing

 

They will have to prove all of those 'on the balance of probabilities' were true.

 

--

 

Ok, back to this live account where they are claiming arrears only.

 

I hope they have been sending all the documents as required by the CCA 2007 .....

 

They are suggesting that there are arrears -

for those arrears to have occurred you must have breached a condition of the agreement.

 

For a creditor to claim lawful remedy for that breach (i.e. claim the arrears) they must follow the CCA. Now that includes all the 2007 parts as it's a 'live account'

They must also follow s.87 in order to enforce the terms of the agreement against you for those arrears.

 

IMO By taking you to court without the backing of the CCA they are seeking 'equitable remedy' a very different thing.

 

Lots to think about and few concrete answers at the moment but hopefully others will chip in and fill in the blanks

[MAGDA]

And i'm sure that you can also use this fact to demonstrate their efforts to frustrate proceedings still further.

 

M

 

exactly!

[MandM]

Looks like lots of reading in preparation for you 15 minutes of fame then .

 

A few interesting points from gh too, I think you've mentioned the 'lack of statements' thingy on here or the other thread, but it certainly gives them another problem

 

M

[MAGDA]

Hi Magda

 

Ok, so Cabot are claiming the 'agreement' is still live and they are claiming arrears.

 

Fair enough.

 

You need to be very firm about them proving what the T&Cs were on the original agreement. Yes, you appreciate that these T&Cs they've sent are the current ones and that they have changed since inception.

BUT did the original terms allow them to change

did the original terms have the prescribed conditions

were the original terms there either before or at the time of signing

 

They will have to prove all of those 'on the balance of probabilities' were true.

 

--

 

Ok, back to this live account where they are claiming arrears only.

 

I hope they have been sending all the documents as required by the CCA 2007 .....

 

They are suggesting that there are arrears -

for those arrears to have occurred you must have breached a condition of the agreement.

 

For a creditor to claim lawful remedy for that breach (i.e. claim the arrears) they must follow the CCA. Now that includes all the 2007 parts as it's a 'live account'

They must also follow s.87 in order to enforce the terms of the agreement against you for those arrears.

 

IMO By taking you to court without the backing of the CCA they are seeking 'equitable remedy' a very different thing.

 

Lots to think about and few concrete answers at the moment but hopefully others will chip in and fill in the blanks

 

Hi gh, that gives me plenty to think about:)

 

I don't think Cabot/Mbna have the orignal t&cs any longer, because throughout the last few years they have only ever managed to provide the current ones, which weren't, as you know, relevant at that time.

 

The agreement is just an application form, and although it says I have received a copy (or something along those lines - have to check for exact words) of the t&c on the application, that to me implies that the t&cs must be a separate document, which isn't acceptable.

 

They definitely weren't on the reverse or page 2 of say 3, or anything like that.

 

Also, I think to claim arrears they would need to have provided me with regular arrears notices which they haven't done ever.

 

Another thing is that Cabot's figures for this claim show a starting balance that is the exact same figure MBNA appear to have on the last statement for the full balance outstanding, i.e., around £9,500. The arrears at that time was only around £1,500. It is the arrears that Cabot are saying was assigned. If that was the case, and the arrears only were assigned as Cabot claim, then why did they start off with a balance equal to the full amount owing on the account.... doesn't add up.

 

And finally, the date of the so called DoA they have provided is months earlier than the date when the Assignment actually took place, which would be impossible, because the account was fine at that point.

 

Many thanks for your comments and will have a good think about it all.

 

cheers, Magda:)

[MAGDA]

Looks like lots of reading in preparation for you 15 minutes of fame then .

 

Yes, will keep me busy for a bit - I seem to be permanently dealing with claims at the moment! Will be on first name terms with the court before long.

 

A few interesting points from gh too, I think you've mentioned the 'lack of statements' thingy on here or the other thread, but it certainly gives them another problem

 

M

 

yes, some very interesting points from gh, something else to look at. Cabot have provided statements now back to 2004, and there are also a lot of unlawful charges, MBNA were charging around £50+ pm for some time, so it really mounts up. The list is getting longer and longer....

 

Just popping out to the shops now, my daughter's b'day at the weekend, so doing some last minute shopping - shame I can't use my MBNA credit card!

 

thanks again M&m for your support.

 

Magda

[gh2008]

I don't think Cabot/Mbna have the orignal t&cs any longer, because throughout the last few years they have only ever managed to provide the current ones, which weren't, as you know, relevant at that time.

 

 

The agreement is just an application form, and although it says I have received a copy (or something along those lines - have to check for exact words) of the t&c on the application, that to me implies that the t&cs must be a separate document, which isn't acceptable.

 

Be *very* careful here as there is precedent now that the 'document' can consist of what we would consider multiple documents in the normal sense of the term.

If you were presented with an agreement form and a separate booklet at the time of signing that would be considered a single document.

 

However being presented with an application form you may be reasonable thought to expect that the agreement would be a separate document to be forwarded to you when it was all 'sorted'

 

They definitely weren't on the reverse or page 2 of say 3, or anything like that.

 

This is a much stronger point of law than the above one (which they would pull to pieces)

 

Also, I think to claim arrears they would need to have provided me with regular arrears notices which they haven't done ever.

 

VERY important points - if they are contending that the account is still live then they need to show they have complied with the Law. Maybe complaints need to ne lodged with them and the FSA/OFT about their lack of performance of their duties under the current CCA

 

Another thing is that Cabot's figures for this claim show a starting balance that is the exact same figure MBNA appear to have on the last statement for the full balance outstanding, i.e., around £9,500. The arrears at that time was only around £1,500. It is the arrears that Cabot are saying was assigned. If that was the case, and the arrears only were assigned as Cabot claim, then why did they start off with a balance equal to the full amount owing on the account.... doesn't add up.

 

If they have said the arrears only were assigned then the assignment is equitable and not absolute and the OC must be joined with them in any litigation

 

And finally, the date of the so called DoA they have provided is months earlier than the date when the Assignment actually took place, which would be impossible, because the account was fine at that point.

 

Shaky ground IMHO - the deal could have taken months to agree, and there's nothing stopping the OC assigning a performing account as opposed to a delinquent one.

 

Have you SARd the OC? does their info tally with Cabot's?

 

Good luck

[gh2008]

Just popping out to the shops now, my daughter's b'day at the weekend, so doing some last minute shopping - shame I can't use my MBNA credit card!

 

Well, if the account's still live .......

 

:grin:

[MAGDA]

 

 

 

Be *very* careful here as there is precedent now that the 'document' can consist of what we would consider multiple documents in the normal sense of the term.

If you were presented with an agreement form and a separate booklet at the time of signing that would be considered a single document.

 

However being presented with an application form you may be reasonable thought to expect that the agreement would be a separate document to be forwarded to you when it was all 'sorted'

 

 

 

This is a much stronger point of law than the above one (which they would pull to pieces)

 

 

 

VERY important points - if they are contending that the account is still live then they need to show they have complied with the Law. Maybe complaints need to ne lodged with them and the FSA/OFT about their lack of performance of their duties under the current CCA

 

 

 

If they have said the arrears only were assigned then the assignment is equitable and not absolute and the OC must be joined with them in any litigation

 

 

 

Shaky ground IMHO - the deal could have taken months to agree, and there's nothing stopping the OC assigning a performing account as opposed to a delinquent one.

 

Have you SARd the OC? does their info tally with Cabot's?

 

Good luck

 

 

Many thanks for the points you raise gh - it's a great help and very much appreciated.

 

Helps to get it all a lot straighter in my head! The point about the assignment being equitable possibly is interesting as well, because MBNA has no part in these proceedings.... very strange.

 

regards, Magda

[MAGDA]

Well, if the account's still live .......

 

:grin:

 

 

yes, perhaps I should give it a try, only problem is, the card expired about six years ago.. might have problems there:D

[MAGDA]

Just looking through the bundle of papers that Cabot sent me yesterday and although the "raw data" as they call it, attached to the MBNA deed is for the other smaller account they have lumped onto their claim, I have now noticed in between all of the other papers that there is also raw data for the MBNA one. It states (although nothing to prove it is directly related to the deed of course) personal details, then on another sheet in little boxes also states charge off date 29/03/2004, Amt last payment, current balance: £9,000+ (haven't put exact figure) default date 29/03/2004 and default balance £9,000+

 

Also have noticed the Deed itself also states another date under a different section headed term and termination:

 

"this agreement shall commence on the 1st January 2004," whereas the first page states:

 

"This agreement, dated 10th December 2003....." I honestly do not believe there were any negotiations or anything else going on at this time.

 

And neither date is the date referred to by Cabot.

 

Think gh asked whether I had done a SAR or not, and I haven't so far, so think I might get one off to MBNA and see if the same stuff turns up, or something different.

 

Magda

[MandM]

Think gh asked whether I had done a Subject Access Request or not, and I haven't so far, so think I might get one off to MBNA and see if the same stuff turns up, or something different.

Without fail! The Comms Log should be a specific request in your SAR to make sure you get it - that's where all the best bits turn up, particularly with DNs and assignment.

 

M

[gezwee]

Hi Magda

 

Not sure if you've looked in on this thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/166413-ccman-goldfish-2.html

 

ccman has just had a similar arrears experience with Cabot, their poc is on post #30

 

Gez

[MAGDA]

Without fail! The Comms Log should be a specific request in your SAR to make sure you get it - that's where all the best bits turn up, particularly with DNs and assignment.

 

M

 

Will get one off ASAP, be interesting to see what turns up.

 

thanks v.m. Magda:)

 

Hi Magda

 

Not sure if you've looked in on this thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/166413-ccman-goldfish-2.html

 

ccman has just had a similar arrears experience with Cabot, their poc is on post #30

 

Gez

 

Hi gezwee, many thanks for the Link - will have a look,

 

regards, Magda:)

[MAGDA]

thought I would give an outline of the Deed of Assignment Cabot has provided for the MBNA account and the different sections it's made up of.

 

First sheet headed "Agreement" - This agreement dated 1st day of December 2003 (have changed date slightly) between:

 

Kings Hill (No 1) Ltd (that reminds me of Link: No. 1, No.2 ...)

 

and

MBNA Europe Limited

 

The account wasn't assigned until April 2004, so don't know where this December date comes into the picture...

 

It further states:

 

"whereas the seller has owed to it at present and expects to have owed to it in the future receivables arising in the course of its business.

 

The seller and teh buyer have agreed, upon the terms and subject to teh conditions of this Agreement that teh Seller mayoffer from time to time to assign Receivables arising on charged off accounts to the buyer and the Buyer may accept such offer."

 

So can only assume from this that an agreement to purchase accounts, rather than a specific account, was entered into in December, and at that time didn't include my own.

 

Section 2 "Offer for sale of Receivables." this is general info, no dates/accounts mentioned.

 

Section 3 - "Representation and Warranties relating to the sale and purchase." again just general info.

 

Section 4 - "Reassignment and adjustement of purchase price." general info again.

 

Section 5 - "Access to Documents and other information."

 

Interesting here it mentions:

 

"the Seller shall as soon as is reasonable practicable, upon written request, provide all original of, or where such originals have not been retained by the selller, copies of signed credit card account applications and credit file history." So MBNA confirm here that they do just have applications, not actual agreements.

 

Section 6 "buyers membership it Bureaux."

 

General info again.

 

Section 7 - "General."

 

"Term and termination: this agreement shall commence on the 2nd January 2004 and shall continue for a term unless terminated earlier pusuant to clause 7.2(a), (b) or ©."

 

Again this is the only date mentioned. Still not the date of the assignment which according to Cabot was end of April 2004.

 

We then have a series of schedules:

 

First schedule: details " A charged off account is an account which"......

 

Second schedule: Details of purchase price, tipexed out, of course...

 

Third schedule: "form of Offer" Offer of receivables:

 

"We refer to the receivables sale agreement dated (empty box) 2003 and made between ourselves and you.

 

"We hereby offer you an assignment on (empty box) 2004 (the "effective" date) of the exisitng receivables under the charged off accounts listed in the Data transfer as of (empty box again) 2004 (the "Determination date") and notify you that:

 

(1) The aggregage face amounts of such receivables listed in the Data transfer as of (empty box) 2004.

 

Further down it states amounts which are also empty boxes. The dates however, don';t appear to have been erased, I think it's just a blank document 'generic' of the sort they normally use.

 

4th Schedule: Indicative timetables for sale.

 

From 1st January 2004 - 31 May 2004 as follows:

 

 

Determination date; Ninth working day in the month of the offer.

 

Offer date; Eleventh working day in the month of the offer

 

Effective date: Eighteenth working day in the month of the offer.

 

From 1st June 2004 as follows;

 

Determination date: Fifth working day of the month of the offer.

 

Offer date; Seventh working day

 

Effective date; Fourteenth working day.

 

None of these dates provided match the actual assignment date stated by Cabot.

 

Fifth Schedule: List of Data fields - General info again.

 

Sixth schedule: Just the word "Notice" on this page, nothing else.

 

Seventh schedule: Post sale operations, policies and procedures guidelines. All general.

 

That's pretty much it, signed by two directors from Kings Hill and one director fromMBNA.

 

Sorry this is so long!

 

 

 

Can anyone offer any advice/make any sense of this.

 

many thanks, Magda

Edited February 19, 2010 by MAGDA

[MAGDA]

Going to get a SAR off in the next couple of days to MBNA - hopefully that will turn up some more ammunition for fire at Cabot!

 

Magda

[MandM]

thought I would give an outline of the Deed of Assignment Cabot has provided for the MBNA account and the different sections it's made up of.

 

First sheet headed "Agreement" - This agreement dated 1st day of December 2003 (have changed date slightly) between:

 

Kings Hill (No 1) Ltd (that reminds me of Link: No. 1, No.2 ...)

 

and

MBNA Europe Limited

 

The account wasn't assigned until April 2004, so don't know where this December date comes into the picture...

 

It further states:

 

"whereas the seller has owed to it at present and expects to have owed to it in the future receivables arising in the course of its business.

 

The seller and teh buyer have agreed, upon the terms and subject to teh conditions of this Agreement that teh Seller mayoffer from time to time to assign Receivables arising on charged off accounts to the buyer and the Buyer may accept such offer."

 

So can only assume from this that an agreement to purchase accounts, rather than a specific account, was entered into in December, and at that time didn't include my own.

 

Section 2 "Offer for sale of Receivables." this is general info, no dates/accounts mentioned.

 

Section 3 - "Representation and Warranties relating to the sale and purchase." again just general info.

 

Section 4 - "Reassignment and adjustement of purchase price." general info again.

 

Section 5 - "Access to Documents and other information."

 

Interesting here it mentions:

 

"the Seller shall as soon as is reasonable practicable, upon written request, provide all original of, or where such originals have not been retained by the selller, copies of signed credit card account applications and credit file history." So MBNA confirm here that they do just have applications, not actual agreements.

 

Section 6 "buyers membership it Bureaux."

 

General info again.

 

Section 7 - "General."

 

"Term and termination: this agreement shall commence on the 2nd January 2004 and shall continue for a term unless terminated earlier pusuant to clause 7.2(a), (b) or ©."

 

Again this is the only date mentioned. Still not the date of the assignment which according to Cabot was end of April 2004.

 

We then have a series of schedules:

 

First schedule: details " A charged off account is an account which"......

 

Second schedule: Details of purchase price, tipexed out, of course...

 

Third schedule: "form of Offer" Offer of receivables:

 

"We refer to the receivables sale agreement dated (empty box) 2003 and made between ourselves and you.

 

"We hereby offer you an assignment on (empty box) 2004 (the "effective" date) of the exisitng receivables under the charged off accounts listed in the Data transfer as of (empty box again) 2004 (the "Determination date") and notify you that:

 

(1) The aggregage face amounts of such receivables listed in the Data transfer as of (empty box) 2004.

 

Further down it states amounts which are also empty boxes. The dates however, don';t appear to have been erased, I think it's just a blank document 'generic' of the sort they normally use.

 

4th Schedule: Indicative timetables for sale.

 

From 1st January 2004 - 31 May 2004 as follows:

 

 

Determination date; Ninth working day in the month of the offer.

 

Offer date; Eleventh working day in the month of the offer

 

Effective date: Eighteenth working day in the month of the offer.

 

From 1st June 2004 as follows;

 

Determination date: Fifth working day of the month of the offer.

 

Offer date; Seventh working day

 

Effective date; Fourteenth working day.

 

None of these dates provided match the actual assignment date stated by Cabot.

 

Fifth Schedule: List of Data fields - General info again.

 

Sixth schedule: Just the word "Notice" on this page, nothing else.

 

Seventh schedule: Post sale operations, policies and procedures guidelines. All general.

 

That's pretty much it, signed by two directors from Kings Hill and one director fromMBNA.

 

Sorry this is so long!

 

 

 

Can anyone offer any advice/make any sense of this.

 

many thanks, Magda

 

Not had to deal with 'assignment' yet as an issue. DonkeyB seems to be digging deep on these issues - might be worth a PM.

 

M

[MAGDA]

Hi m&m hope you are ok, see you have a hearing looming!

 

might give donkey a try, see if he can shed any light on the DoA - thanks for that.

 

Keeping a watch on your thread, but can't help much on the current issue (i.e., the hearing) but hopefully you will get some good advice from some of the others - here's hoping it goes your way.

 

Magda

[MandM]

Hi m&m hope you are ok, see you have a hearing looming!

 

might give donkey a try, see if he can shed any light on the DoA - thanks for that.

 

Keeping a watch on your thread, but can't help much on the current issue (i.e., the hearing) but hopefully you will get some good advice from some of the others - here's hoping it goes your way.

 

Magda

 

 

Thanks Magda,

 

Will be another new experience

 

M

[MAGDA]

I haven't updated this for a while, but just to let others know - we had a very successful outcome with this! We used a solicitor in the end, who handled this right through to the end for us. We did get to trial with a very good barrister, which was then adjourned at the request of the claimant., because basically, they didn't have the slightest chance of winning on that day and they knew it. A new date was then set for the trial to take place, but Cabot discontinued at the 11th hour.

 

Thanks for the help I received on the forum and many thanks  - without their help I'm sure it wouldn't have turned out nearly as well.

[MandM]

Congrats Magda. Nice to see you got through it in the end - and with a good outcome!!!

 

Mike

[MAGDA]

Hi mandm, nice to hear from you - haven't been on the forum so much in a while for one reason or another - hope you are well!

 

I was very fortunate to have such a good outcome!

 

Hope all of your own battles have now gone away and life is a bit quieter for you...

 

Magda