Cabot/Morgan & My Monument card case

[sir fussalot]

Dr Bear and a Boy eh.

Well its asign of old age thinking that Dr.'s are getting YOUNGER.

 

(and also Not being able to scan a document onto post. sorry have to wait for daughter).

 

Spam, have read link thank you.. it appears I dom't know the alphbet neither.

 

Just going to work now so can't absorb anymore at this time. :?

 

Thanks everybody will, check up later. Have a Good Day

 

s.f.

[cymruambyth]

There is another Cabot thread where they claim that although the account was defaulted, it was never actually terminated. If you send a SAR it maybe worth specifically mentioning a termination notice.

[supasnooper]

In order to pursue Court action for a debt that is covered by the Consumer Credit Act 1974, the debtor must serve a Default Notice under s87 of the Act.

If the debtor fails to rectify the breach, the creditor will have to terminate the account in order to pursue the debt through legal action.

 

Take a look at the post in this link -

 

B_R_W's post on DN's

 

for a more detailed description.

 

 

And......don't forget to tell Cabot they can't claim s69 interest as the claim is for a debt that is regulated by CCA 1974.

The County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) is your best friend for this one.

[sir fussalot]

Hiya.

Big thanks to you all. BRW's thread is the key regarding D.N's.

 

I had googled s87 and thought they, (Morgans), are wrong.

 

Then started thinking noooo, they must be right. I 'm sure now though,

 

they are wrong when they said, "they OR the Original Creditor NOT having to send a D.N."

I wonder if there's anything about a solicitor telling the "opposition"

 

something that's NOT true. I think I'll ask the Judge!, he should know

 

Looks like I will have to be 100% up on D.N's. in order to not let them get the upper hand.

 

That's my reserve armour anyway; They have NO Agreement. It seems

 

That in their haste to sign everybody up for a Credit Card, they only got you to fill in an application form and thought, "That'll do niceley"..

 

Well if they want to invoke the act to get all the loads of interest off you,

instead of just using the act to recover money, they should have made sure they had your AGREEMENT first... As per the same ACT!

 

sir fussalot

[sir fussalot]

Snoop's..

 

Thank's a bundle for your Quotes on the interest.

 

That was another thread I was going to look-up. So far they have "Added" about £2000. in interest and "Extra's"

 

Incidently, SPAM, Banks ARE VERY selective.

 

My "OLD" one, Crapwest. Suspended my account. No online statements.

 

Card refused ; Coming up "Not issued", at the "Hole in T.W. No D.D's paid

 

BUT !,

When my employer mistakenly paid in my wages one week; BOOM:-o

 

Thank You. we have taken it off your debt!!

 

s.f.

[sir fussalot]

This is the "AGREEMENT", that was sent via my CPR request. As you can see, I have claimed that it is "illegible". If anyone needs it I will type out the exact wording, using my magnifier.

 

s.f.

Edited November 8, 2009 by sir fussalot

[BeauBrummie]

This is the same "application form" that I have just lost my case on--Cabot claimed (and the judge agreed) that although the T&C's were a seperate document, collectively the combined documents formed an enforceable agreement--which then led the judge to McGuffick ruling and granting of a SJ to Cabot:mad:

 

Beau

[sir fussalot]

On the righthandside under DECLARATION;;

 

DECLARATION

CREDIT AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT1974

Surley this is then ALL the stipulations that they have to follow in the Act?

I am applying for a Providian Visa credit card, PIN, and cheques. Issued by Barclay's Bank Plc subject to status

Is the secret in "Applying"; and no mention of Monument,

I have read and agreed to be bound by the Terms & Conditions, (T&C)

Will this not be the T&C of the "Act"

 

I am a UK resident who is at least 18 years of age and am not Bankrupt.

All the information provided by me is accurate. I authorise you: to send me a Providian Visa Card with the Terms stated in the enclosed T&C's ;

(So obviously no T&C's on the "Agreement") to search the files of any credit reference agency (CRA). see section 22(11) of the T&C's, which will retain a record of the search; to share information about me with other creditors. through CRA's in order to make credit decisions, carry out occasional debt tracing, and prevent fraud.

 

To use a credit scoring or other automated decision-making system when assessing my APPLICATION. I am not an existing Providian card holder. I understand that you will telephone me in connection with my APPLICATION to gain additional releant details and/or contact me to offer any products or services linked to my account or APPLICATION. I agree that calls may be recorded and/or monitored. I agree that whether I am APPROVED or NOT Information about me may be used by Barclay's Group or other selected companies to consider offering me further products unless I inform you otherwise. (s23 of T&C's)

 

IMPORTANT YOUR INFORMATION

I have read condition 22 of the T&C's which set out my rights inrelation to information about me and I agree that this information may be used in accordance with these terms, including processing outside the EEA.

please reply by.....

 

Surely this is not enforcable, as it is NOT an Agreement:???:

 

sir fussalot

[sir fussalot]

Hiya Beau.

 

Surely the judge couldn't say that that was an agreement.

 

It clearly stated APPLICATION

 

And as my point was; IF they said it was covered by the act then they should have "played by the Act".

 

How can they only "Cherry Pick" the bits of the act that suits them.

 

S.F.

 

P.S it wasnt a Midland C Court was it

like a NORTH B-Ham C.Court

like on the edge of the Black Country.......

[patrickq1]

CONSUMER COMPLAINT FORM

DEBT MANAGEMENT GUIDANCE COMPLIANCE REVIEW

 

On 3 November 2009 the Office of Fair Trading (OFT) announced that it is undertaking a formal compliance review of the Debt Management Guidance (the Guidance). The aims of the compliance review are to assess compliance levels across the industry, identify the reasons for any non-compliance and to obtain feedback on the Guidance itself

As part of the debt management compliance review, we want to find out whether providers of debt management services are complying with their legal responsibilities. This complaint form is designed to help you tell us about your recent complaint concerning the practices of the debt management company that you have been in touch with.

Please provide as much information as you can and, where possible, provide copies of any relevant documents (for example agreements/contracts). If you run out of space to complete your response to any question please continue on an extra sheet of paper and add this to the form as necessary.

The OFT has no authority to become involved in individual disputes between consumers and traders so we cannot advise you directly in this matter. For specialist, face-to-face assistance, or intervention, you may wish to contact www.directgov.gov.uk. The Financial Ombudsman Service can help with most complaints about consumer credit products and/or services if your debt management company fails to satisfactorily resolve the matter directly.

The Insolvency Service has published a guide for debtors which contains an overview of the main debt solutions. The guide entitled ‘In Debt? Dealing with your creditors’ can be accessed from the Insolvency Services’ website at: www.insolvency.gov.uk/guidanceleaflets/Guides.htm

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Address

 

Telephone number

 

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Website(s)

 

Complaint Details

1. Advertising, marketing and promotion

a) How did you find out about the debt management company?

(for example, newspaper, advertisement, website, cold calling, text message, mail shot, 3rd party referral)

 

 

 

b) Was the service you were offered/received consistent with what the company’s promotion said they could offer you?

 

 

 

2. Contact with consumers

a) Were you visited in person by an adviser? If yes, please provide details of the date and location of the visit along with the details of the visiting adviser/s. If no, please give details, for example was contact made via telephone, online enquiry.

 

 

 

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c) Did you sign the contract during the visit or at a later date?

 

 

 

 

3. Pre contract information

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(for example was a full assessment made of your income and expenditure, bank statements, credit car statements)

 

 

 

4. Advice

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(for example, debt management plan, Individual Voluntary Arrangement/Protected Trust Deed, bankruptcy/sequestration, debt consolidation loan)

 

 

 

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b) What were you told about the total cost of the debt repayment plan?

 

 

 

 

c) Where relevant, was it explained that you would be charged an up-front fee and/or administration fee?

 

 

 

d) Were you told that your monthly payment to the trader would include a service fee?

 

 

 

6. Contract terms

a) Were you given a contract?

 

 

b) Were you given time to read the contract before you were asked to sign it?

 

 

 

c) Did the contract contain details of the total cost of the service, length of the debt repayment plan, how creditors would be dealt with, what you should expect from the debt management business in terms of communication from them and, details of any potential delay in first payment being made to creditors?

 

 

 

 

7. 3rd party representatives

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(for example, outcome of negotiations with creditors, statement of how money was paid to your creditors, and/or any changes in the repayment plan?

 

 

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Permission to disclose complaint

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Consumer Credit Act 1974 (the Act)

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Please note: the OFT can only use your details in any action we may take against the above trader if you give your written permission for us to do so.

[sir fussalot]

Beau..

 

who bought the "McgufficK" ruling up.

 

the judge or Cabrot ?

 

s.f

[cymruambyth]

Judge and told cabot to read it:eek:

[hungrybear]

Beau, sorry but I have to question your preparation and defense if what you say is true.

 

Never mind the terms and conditions there are no prescribed terms on this document.

 

-APR?

-credit limit?

- do I need to go on?

 

This is not an enforceable agreement.

 

Beau if what you say is true you need to take this back to the court

 

SF - this is not an enforceable agreement

[sir fussalot]

Hello Hungry,

 

Yep. thats what is so incredulous about Beau's.

 

My only concern about my case is that it mirrors Beau's I know its unenforcible but, have I the ability to put that over.

 

I shall have to read read and read to get ALL aspects of what their argument would be so as to be able to counter it....(good job I like to play chess........ shame I'm not much good at it

 

s.f.

[hungrybear]

As supplied by cerberusalert previously. To be sent in response to an application form.

 

SF: Whether you send it or not at this stage it contains all the ammo you should need to realign the thinking of any DJ.

 

Remember that DJ's usually know very little about consumer law and will be 'led' by whoever has the most appropriate facts and puts them across best. He who blinks first often looses

 

Keep us posted because if I cannot help I can find a man/woman that can!

 

 

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

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

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

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.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

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 and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the 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

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

[sir fussalot]

Hungrybear,

 

Thank you for that, it is so useful and much appreciated to have all the

quotes etc.

 

I shall use that with the relevent case laws, precedents etc ready in seperate order, (Hopefully) should I need to show "the main man".

 

Do you think I should send it (in its entirety) to Cabrots NOW, so that in my defence I can show I have already pointed this out and yet they have still tried to pursue the case; Thus. Should perhaps sway the D.J. to be accommodating as to the question of cost's ?

 

( current status is that I have just sent my A.Q's in to the C. Court Draft Order included for production of a Valid CCAgreement plus all the other doc's they ignored in my CPR request).

 

I have been reading various threads over the weekend, in winning cases costs have not allways been a certainty..

 

One case in particular was very encouraging. the Mitchell case.

MoneySavingExpert.com Forums - View Single Post - Credit-card written off at Leeds County Court June 2009

 

I shall post until conclusion, one way or another..

 

I was "Quite Confident" with the "agreement" being only an Application, until I was reminded of Beau Brummie's case. (thank's Beau).....

 

I would only, (respectfully) agree with a previous comment that, Beau should certainly try to take it back, but not to have so much for the D.J. to have to "Wade" thro.

The problem we have is having to show our armoury, but the otherside (usually a solicitor) can just pick out the bits that the D.J. INSTANTLY recognises, and feels familiar with; so of course being Human, takes the least line of resistance.

 

 

sirfussalot:)

Edited November 9, 2009 by sir fussalot

[hungrybear]

It cannot hurt to send it now. Better to put as much pressure on as possible and try and keep it out of the DJ lottery if possible. If nothing else you'll show that you are aware of all the applicable sections of CCA.

 

All I can say is that if I were you then I would feel pretty confident.

 

-although I'm aware that it's much easier for me to sit here and give advice than to be the one sending/getting the letters. If it were me I'd go after them as aggressively (in the legal written sense) as possible and try to get them to back off.

[hungrybear]

SF you now have the 'application form' AND the no default notice to defend this with.

 

Remember to reply to morgans and cabot regarding CCA action without a DN as well as the no prescribed terms issues

[sir fussalot]

H.B

 

How right you ARE..... when it's NOT YOU!

 

I too have sat reading all these threads, instantly dishing out the benefits of my "aquired wisdom", with thoughts of what should be the "correct" course of action for all these poor souls....

 

And NOW its MY turn..........

 

What Happens?

 

Your mind goes completely BLANK. You can't find anything that you have , Read or Printed (because that sounds good, I'll use that!)..

SHEER PANIC.

BUT:

That is the beauty of this site..The Help and Support is ALLWAYS

there..

 

So. Its "PAT on the BACK Time, Group Hug! Well Done to EVERYBODY

our main goal is the same NOT to get kicked in the teeth when you are down..

 

s.f.

[BeauBrummie]

SF,

 

Application form, Default Notice and may I introduce the actual "Assignment" (from Barclays or Monument or Providian) to Cabot as another defence to your case---part of my case that still needs further debate because I am pretty sure that the sale of the account is an "Absolute" assignment which if so should, and I stress should force Cabot to follow CCA 1974 to the letter. But as usual Cabot seem to get away without having to prove what type it is. Judge in my case said that it was irrelevant.

 

Beau

Edited November 9, 2009 by BeauBrummie

[sir fussalot]

Hiya Beau.

 

Have you seen the Mitchell case (link in post 66). I hope you are still going to try again. I Know it's a wind-up to have people going on..

 

You know the sort; "The Bloke in the Pub"...... "NO YOUR WRONG MATE..

I know a bloke who's my mates DAD, and he said a MATE of His knows somebody who was talking to somebody with EXACTLY the same case as YOU. He went to court, TOLD the judge who agreed with HIM AND, AND gave him £5000 damages".....yeah, yeah, yeah.....

 

Wev'e all met 'em. BUT,

I really think you have a point, and you should act...

 

Does anybody know if you can "Appeal a Decision that was Erronious in Law". as you can with the D.S.S.?

 

I have just typed out above "account in dispute", Just a tichy witchy

wikkul bit of a niggley doubt.... as to letting the otherside know were I shall be "at".

 

Its A See-Saw.

 

Chance they may realise Chance they may argue

it doesn't comply& drop A & beat me on points

 

 

Oh as a P.S. Hungrybear....

I changed , "in addition should you pursue me for this debt" to....

alleged debt. I thought it sounded better

 

sir fussalot

Edited November 9, 2009 by sir fussalot

[hungrybear]

Well I get all my info from I guy on a park bench!

 

Again on the edge of my knowledge beau/sf but you have to go back to court with points on which 'the judge misdirected himself' - never EVER tell a judge s/he is wrong

[sir fussalot]

H.B you are correct.

 

In the old days of the "Speed Trap". (remember the one that looked like a microwave-oven on the side of the road.)?

 

Well the Brother in Law, (who allways knew his rights etc. "the family solicitor, Doctor, resident expert, etc") went thro the Trap at 42 in a 30mph.

Naturally went to court to defend himself. When he heard the Magistrates mutter something to each other about a ban. Knowing his rights he "assisted them" in their task of administering their obligations...

 

"Wait a bit, he bawled. you cant ban me for a speeding offence that is under 100 mph."

The Magistrates, no doubt being very much obligued, took no hesitation in Banning him for a week... Just to give him some more regulations to his VAST knowledge; they also explained how "Contempt of Court" worked.

 

It was a "sore point" in the family for a few years..

 

but one I never forgot.

 

If as on occasion, I was stuck or struggling. I found that if you "looked lost and asked for the benefit of the Judges/Magistrates "naturally superior advice". it was usually forthcoming. HOWEVER, it is a VERY VERY thin line as not to be construed as servile or condescending..

 

s.f.

[sir fussalot]

H.B.

 

Hiya, Hope your having a good week so far....

 

I have slept on your suggestion above; as to send the letter to Morgans/Cabrot. :-|

 

I think I shall send it Spec Del later to-day.

 

If the points regarding the Credit agreement are valid; re:,

 

The only form signed was the APPLICATION form, which is clearly stated as such. And, the D.N. does Not give me the 14 days clear.(and as there are penalty charges the wrong amount.)

 

Then even if they are aware of my intended course, it will not alter the FACT's.

 

However I shall "hold fire" until to-nite; just in case someone suggests NOT to send it.

 

Incidentally. I sent them a CCA request (with a £1 postal order) on the 20th October. Allowing for the 2 days "serving time", by first class. I should have had a reply by 2nd November.

Nothing!...

 

As the case has already started in Northampton C.C.. and subsequently been sent to my "Local" court. ( we are now at the A.Q's have been sent in stage.).. would this have any bearing. e.g. they dont have to reply.

AND;

do you know if it is possible to check if a Postal Order has been cashed.

 

I wrote on the back,"Not to be used for any other purpose";

 

s.f.

[hungrybear]

yes you can check a postal order has been cashed but I'm blowed if I can remember how - anyone?

 

have you used cpr to get them to drop their pants on this yet?

 

given that you're at aq stage I gave you the letter for the content really rather than to send - but it wouldn't do much harm.

 

remember that now you are trying to lead the judges thinking when he reads your bundle so that he 'forms your conclusions of his/her own volition' so to speak.

 

given that you put them in 78(6) dispute, technically, the only way they can remove the dispute and enforce is to provide THE ORIGINAL compliant agreement in court.

 

all the best fussy, I'm sure you will prevail, we're all here (250,000 of us) to help.