Cabot/Morgan & My Monument card case

[sir fussalot]

Hiya All,

 

Here we go then for Round, 15....

 

Court order came yesterday,..

 

1 Hearing is adjourned first open date etc., ( its 6th July )

 

2 The Claimant and Defendant shall file and serve additional Witness

Evidence as to the remaining issues by 4.00 p.m.

25th May.

 

These are the two remaining issues that the D.J. didn't/couldn't dismiss

at the hearing.

 

Incidentally, the D.J. also told ME to send any evidence ( when I told him I have the termination notice, and possibly the D.N. ). that, any evidence you find, you must send straight away to Cabrots".

 

3 The Claimant do file an updated trial bundle by 4.00.p.m. 28th May

 

Now I presume this means I have to send a copy to them and court, of the Original , " therefore we have closed your credit card account",

letter.

This letter closed the account because the arrears of £150. (about).

had not been paid.

 

The letter..

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2578886.html

 

ALSO, if they now send a "re-Redacted" Deed of assignment. HOW

 

can I question the Blacked out bits that I think they will leave in.

 

Namely. the section headed "uncollectable accounts."

 

Should I ask Cabrots now in a seperate letter, or ask in court.

 

Also as I have time, Is it an idea to NOW send Cabrots a S.A.R. request?

 

 

fussey

Edited May 14, 2010 by sir fussalot

[Hadituptohere]

Sir fuss

have a look at your DOA, and bob over to my thread an check out what Meldrew has posted p260 it may be useful for you too

 

Hadituptohere

[sir fussalot]

Hiya Hadit,

 

which thread?

 

just tried to look for it, you have about 22,000

 

 

fussey

[Hadituptohere]

Sorry sir fuss

http://www.consumeractiongroup.co.uk/forum/legal-issues/127059-hadituptohere-cabot-13.html

Post 260

 

Hadituptohere

[cymruambyth]

Hi could be worth sending an SAR to them. I received a CD on the 40th day:rolleyes: with much the same info as their bundles but there were a few extra bits to look at!

[sir fussalot]

well here is the "additional witness evidence"

 

 

County Court

 

 

 

 

Claim Number

Cabot Financial (Claimant ) v ( Defendant )

 

 

 

 

To comply with an order by His Honour Judge

 

 

The Claimant and Defendant shall file and serve additional witness evidence as

to the remaining issues by 4.00.p.m. On 25th May 2010”

 

 

ADDITIONAL WITNESS EVIDENCE XXXX XXXX

( Claimant )

 

 

Termination Letter from Monument

 

 

1 At the hearing of 4th May Mr. Cabot was “unaware that the account had been terminated.”

2 No Default Notice has been shown depite repeated requests and a court order

 

 

Exhibit “A” (termination letter )

 

 

 

 

3 At the hearing of 4th May it was denied that the terms and conditions supplied by Cabot

were the genuine terms and conditions that applied to the Providian account at that time.

 

 

4 In these terms and conditions it was stated that late payment charges and overlimit charges

would be £18.00p. each

 

5 £18.00p. Per over limit and late payment have never applied to this account

 

 

6 The late payment and overlimit charges applied to the account were £24.00p each

 

 

EXHIBIT “B” (copy of statement with L.P. charges)

 

 

Additional Witness Evidence. Page 2

 

 

 

 

7 The only Notice of Assignment received is a redacted copy of the Deed of Assignment between

Cabot and Barclaycad.

 

 

8 This does not apear to be consistent with the alleged date of Assignment.

 

 

EXHIBIT “C”

 

 

This document is already in the “Trial Bundle”, page 2 so is not enclosed

 

 

 

 

 

 

9 Mr Cabot stated at the hearing on the 4th May, that Cabots only wanted the

“Arrears”but still claims the full amount.

 

 

10 If the alleged agreement was properley executed, then under that agreement he is claiming

for payments not yet due.

 

 

11 In order to claim these payments Monument should have sent a Default Notice.

 

 

Comments please....

(main hearing is in July )

 

fussey

Edited May 25, 2010 by sir fussalot

[sir fussalot]

I am about to put to-gether my final DEFENCE.

 

In his infinite wisdom, the D.J. said, that he,

 

"had covered all the prescribed terms, and that they were in the accompanying T&C's, so he now considered the agreement (application Form ). was good; AND he would not be discussing this point at the next hearing, ""Do you understand sir Fussalot"".

 

He then responded to my point that they were not the original T&C's..

and asked Cabot to "examine them further". and said that bearing this point in mind.

 

In other words he gave Cabot chance to find the original T&C's

 

[the T&C's they supplied were not the original. I pointed out that in the "Raw Data Log" supplied by Cabot. after 30 days into my CCA request, Cabot kept e-mailing Barclays for the original agreement, and T&C's.

in it a line said " ,

 

" Herberts, 06/04/08 Take a note:Information used - Sept 06 monument

T&C's"

 

Cabots man, when asked by the DJ said" No that doesn't mean it necessarily was the T&C's used from 06." and guess what

 

Yes, ............DJ said, O.K.

 

There was also another line that said, " re-scanned application form sent"

DJ still didn't think this meant what I thought it meant (after "consulting" Cabots man .....

Hey Ho.

 

SO, After all my waffling, a Question ......

 

If Cabrots do not supply PROPPER T&C's, is that a DEFENCE in its self.?

i.e. no agreement. OR no enforceable agreement due to not an Executed Agreement.

 

(place your bets! )

 

s.f.

Edited May 31, 2010 by sir fussalot

[vjohn82]

I would be making sure I examine Carey's judgement for clues on this point (i.e. using terms and conditions from elsewhere)...

 

Do you have a signature box on your "agreement"? I''ll have a look through your thread to see if it is posted but the small print usually yields some interesting information on this point

[Hadituptohere]

Wouldnt you be able to use Carrey in defence to that 'Paragraph 234(4) ..... Of the ruling

 

Quote:

 

 

If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

 

 

Hadituptohere

[vjohn82]

Is there still no proper notice of assignment?

[sir fussalot]

Thanks, will study Carey.

 

VJ agreement is page 7 post 134

 

No still no NoA.

 

 

fussey

[vjohn82]

Thanks, will study Carey.

 

VJ agreement is page 7 post 134

 

No still no NoA.

 

 

fussey

 

Ok... you need to focus on the NOA then. Sent you an email with a document which will tie in nicely with this.

 

Let's put it this way, with Cabrot sending you a "representation" of the NOA they have inadvertently shot themselves in the foot.

[Hadituptohere]

Any chance of that document Vjohn, all cabot have sent me is a representation of a NOA with no proof of posting etc

 

Hadituptohere

[vjohn82]

Here ya go

CHOSES IN ACTION (VOLUME 6 (2003 REISSUE)).pdf

[sir fussalot]

VJ.

what can I say..........

 

It did seem to make more sense on the THIRD reading....

 

i think I can see were we are going. I will read it thro' once or twice

until I can fully understand it.

 

But thank you, it will "stop it dead", if its done correctly.

 

s.f.

[miss muppet]

subbing

[alangee]

Any idea where I can get a copy of Harrison v Burke?

 

Alan

[vjohn82]

Any idea where I can get a copy of Harrison v Burke?

 

Alan

 

PDF and word docs attached

W F Harrison & Co Ltd v Burke and another.pdf

W_F_Harrison__Co_Ltd_v_Burke_and_another_-_[1].doc

[miss muppet]

subbing

[alangee]

Cheers, VJ, you are a gentleman.

 

Alan

[sir fussalot]

Now then here's a thing for you " LEGALS "

 

Cabrot showed T& C's for the original hearing purporting to be the originals that applied to my "application" form.

 

I showed the court that they weren't, as the APR and Default charges were incorrect.

 

The "kindly" D.J. then asked Cabrot to "look into it" for next time.

 

They have now sent me the new witness statement saying that," they were only showing what the original creditor had sent them"

 

But they have now sent ( copy attached for me to see ). the "original T&C's.

 

Now in the middle of all this, I had SAR'd the original creditors ( Barclays )

who replied with a letter, ( dated before the "new" T&C's were produced )

 

That they did not hold ANY CORRESPONDENCE for this account, and the rest of my request would be sent to me by the appropriate department.

 

Well all that came was a list of the default charges and dates applied.

 

SO,

 

If Barclays ( the original creditor ) did not hold any info' on my a/c.

 

Then where have Cabrot got the T&C's from.?

Could I insist that they can NOT be used as evidence?

 

s.f.

[cymruambyth]

Hi s.f

 

Have you looked at this thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/261864-cabots-licence-2.html

[patrickq1]

A party discloses a document by stating that the document exists or has existed."... extended by 31.11:

"(1) Any duty of disclosure continues until the proceedings are concluded.

 

(2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party."

[BeauBrummie]

A party discloses a document by stating that the document exists or has existed."... extended by 31.11:

"(1) Any duty of disclosure continues until the proceedings are concluded.

 

 

 

 

(2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party."

 

 

So as in my case, I KNOW that a default notice exists and also a letter that could be deemed as a letter of Termination - but Cabot's WS relies on the fact that these documents do not exist and have relied on collecting "Arrears" only.

 

That basically blows there case if i reveal? even now after judgment and waiting for an Oral appeal Hearing?

 

Getting confused?

 

Beau

[Tonster]

Hi SF

 

I guess you have to bring up the enforceability of the agreement again at the next hearing as the judge was clearly wrong and you didn't get chance to argue the point.

 

In the Wilson case the judge said:

 

“ In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the Court can identify within the four corners of the Agreement. Those minimum provisions combined with the requirement under s61 that all the terms should be in a single document, and backed up by the provisions of s127(3), ensure that these core terms are expressly set out in the Agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis- stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them.

 

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.

 

So the T&C's are almost an irrelevance as the prescribed terms cannot be in the T&C's they need to be in the signature document which they clearly aren't.

 

Don't know if this will help but it seems to me that the judge has ridden right through this judgement from the House of Lords.

 

I am interested in your case as my partner has exactly the same app form as you do and that is also with Cabot although they haven't issued a claim yet.