Spamheed vs Cabot **discontinued**

[gh2008]

I would thank them for their response and confirming that the terms were set out in another document and not the one you signed.

 

Have they confirmed when you were given sight of this 'other document'?

 

I love the way they talk about Morgan Solicitors - especially as it is just a trading name of Cabot anyway.

 

One point though - why do you think it is uneforceable?

 

Have you reclaimed the PPI?

If it was mis-sold and Cabot now have confirmed they have bought the account you could reclaim the PPI payments from them.

[gh2008]

IMHO, that is a formal 'Letter before Action' and you should reply. Check out the Pre-Action Protocols for what you need to do.

 

Check out Annex A and especially Annex B of the Practice Direction as, I don't think that, they themselves have fully complied.

 

If you ignore it you may open yourself up to a costs order.

[gh2008]

Interestingly, that letter would seem to confirm my suspicions about assignments to Cabot (and others) in that it is not absolute i.e. Egg remains the creditor and Cabot only 'buys the rights' and therefore Egg should be joined in any litigation. JMHO

[gh2008]

They are quite open that they are (part of) Cabot - it is in the small print on the bottom of the page.

[gh2008]

They need to give you enough info in order for you to identify the account.

 

If they are saying Cabot now own the account in its entirety (which, no doubt you will want to put them to strict proof of) then they can give the account any number they want to.

 

If you have info to cross-reference the account back to teh Egg account then that would be ok

 

jmho

[gh2008]

The first 2 points will have no legs in Court - They are authorised to use the Egg letterhead and the Law allows them to send the NOA on behalf of the creditor. The new European Directive Article 17 makes this very clear.

 

Cabot buy the debt, not the account. The account remains with Egg and Egg are still the creditor - however all repayments are now due to Cabot.

 

The rest are all very valid - stick with the valid ones and don't give them an easy bite into your argument IMHO

[gh2008]

This is not my understanding of how it works. Cabot have tried for a long time to make people believe this but it's been shot down in flames many times on these forums on the older Cabot threads. When Cabot buy accounts by Absolute Assignment.... they are buying them absolutely; as the term implies.... which means everything. If they don't buy the account, then how can they buy a debt?... since the debt is the account.

 

No other DCA seems to make these claims either. Are Cabot special?

 

The new European Directive, Article 17 (which is now adopted) makes this much clearer. The UK debt buying industry was singled out as being misleading.

 

There is also a statement from Cabot on Humbleman's thread I linked to on BO's thread which makes it very clear.

 

Try issuing a claim against any of these debt buyers (debt buyers not account buyers) over historical charges or PPI and see what reaction you get ....

[gh2008]

CCman's rather than Humbleman's thread - 5 mins to edit Grrrrr

Article attached

ART_Apr07_CM_Legalmisconceptionsindebtsaleandadministration (2).pdf

[gh2008]

Any argument that you have against the OC can be used against an assignee in Court - that is part of the directive. (and one which I am going to use against Cabot & Aktiv & Lowells myself re unrecoverable charges)

 

The reference number thing - if you can show that you do not know what they are talking about (hard with reference to this thread) then the argument would work.

 

However if you turned up in Court and said that you did not know what Cabot were on about with reference to this account number and they produced this thread as clear evidence that you do fully understand what their claim refers to IMHO the argument would not be taken too seriously and would compromise the rest of your *good* arguments

 

But jmho ....

[gh2008]

As long as you are confident that you can persuade a DJ that you have no knowledge of the Egg account you refer to Cabot having 'bought' and that you have asked for a copy of the agreement for.

 

I'm not sure I would want to go down that route myself.

They are at liberty to change the reference number and to use multiple references for it, as long as you are aware of the account they refer to - which I think you have confirmed is an old Egg account

 

Personally, I would want them to prove that they actually own the debt though as there could easily have been a mistake. And that means a proper copy of the DOA or proper formal confirmation from Egg themselves.

 

But as I say jmho ...... I just know that if I were Cabot reading this I would pounce on that and use a printout of the thread to show that you were 'trying to obstruct Justice' - a trick they have pulled on more than 1 occasion recently.

[gh2008]

Got this from Paul re the s69 interest, if its any help

 

S69 interest is interest which is added to the principal sum under the County Courts Act 1984 S69

 

why arent they entitled to it? because its a regulated agreement regulated by the Consumer Credit Act 1974 and the County Courts (Interest on Judgment Debts) Order 1991 (No. 1184 (L. 12)) section 2(3) states they are not entitled to it!!

 

Sorry but that part of the Law only applies to Judgement debts i.e. post trial

The general rule

2.—(1) Subject to the following provisions of this Order, every judgment debt under a relevant judgment shall, to the extent that it remains unsatisfied, carry interest under this Order from the date on which the relevant judgment was given.

 

However there is a regulation that applies pre-judgement on claims where there is already a contractual rate that applies. Trying to find it.

[gh2008]

Found it.

 

It is in S69 of teh Count Courts Act itself

69 Power to award interest on debts and damages

 

(1)Subject to [F1rules of court], in proceedings (whenever instituted) before a county court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and—

(a)in the case of any sum paid before judgment, the date of the payment; and

(b)in the case of the sum for which judgment is given, the date of the judgment.

 

(2)In relation to a judgment given for damages for personal injuries or death which exceed £200 subsection (1) shall have effect—

(a)with the substitution of “shall be included” for “may be included”; and

(b)with the addition of “unless the court is satisfied that there are special reasons to the contrary” after “given”, where first occurring.

(3)Subject to [F1rules of court], where—

(a)there are proceedings (whenever instituted) before a county court for the recovery of a debt; and

(b)the defendant pays the whole debt to the plaintiff (otherwise than in pursuance of a judgment in the proceedings),

the defendant shall be liable to pay the plaintiff simple interest, at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt for all or any part of the period between the date when the cause of action arose and the date of the payment.

(4)Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs.

 

Now, being a CCA debt there is already contractual interest as specified in the T&Cs.

if they haven't got the T&Cs to prove it or forge to add it then that's their problem

 

If they are claiming S69 then they *could* be saying that the account has been terminated ........

and that would open a whole new can of worms for them.

 

You have checked S86(a-c) (of the CCA) as well haven't you ...

 

They are saying the account is still 'live' as you cannot have 'arrears' on a terminated account (only arrears at termination).

 

Yes, it may be 'wordplay' but so much in litigation is ...... but they cannot have it both ways.

[gh2008]

no statements re S86 CCA = unable to enforce S86(d) (but only whilst default continues)

 

BUT could also be used to show that 'to the common man' no statements would indicate that the account has been terminated (but how, when and by whom was the acc terminated)

therefore no current arrears ......

 

Again it comes down to them not being able to have it both ways. Maybe a CPR18 request (for further info) to clarify the status of the account, the current creditor or owner and Cabot's status ....

 

& I like your PPI argument - trying to find a reason why it won't work ..... ;-)

Was there ever an application form? or was it online? if not then a very valid argument

 

always jmho though

[gh2008]

If the extension is agreed between teh parties under CPR15.5 then, IMHO the advice (although the Court staff are not allowed to advise ...) you have been given is wrong.

 

See CPR 15.5

Agreement extending the period for filing a defence

 

15.5

(1)The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

 

(2)Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

 

[gh2008]

If a claimant agrees (and you have evidence of the agreement) to an extended deadline for submitting the defence and then the claimant proceeds to apply for summary judgement before that date then the Court will have no issues with setting that judgement aside and ordering costs against the claimant.

 

Informing the Court of any agreed extension is sensible (and it is in CPR) it would also make an early application for SJ more difficult if the Court has confirmation of any extension on file.

 

I have not heard of a case where the claimants agreed an extension to the deadline defence and then applied early.

[gh2008]

They are not supposed to advise - even on procedure IIRC they should point you towards info leaflets and CPR

[gh2008]

How can you be embarrassed and yet still plead a complete denial ...... IMHO it has to be one or the other

[gh2008]

comments in red JMHO though

 

1. I, xxxxx xxxxx am the defendant in this action and make the following statement as my defence to the claim made by Cabot (UK) Ltd

 

2. The Claimant states in their Particulars of Claim that a Loan with the Reference of 123456 is the basis of their claiming from the defendant the sum of £50xx.xx

 

3. The Defendant denies all allegations made in the Claimant’s Particulars of Claim in their entirety and puts the Claimant to strict proof thereof.

 

4. The Defendant is embarrassed in pleading to the Particulars of Claim, inter alia:

 

5. The claimants' particulars of claims disclose no legal cause of action and they are embarrassing to the defendant as the claimant's statement of case is insufficiently particularised and does not comply or even attempt to comply with CPR part 16.

 

6. In this regard the Defendant wishes to draw the Court’s attention to the following:

 

 

a) The Particulars of Claim are vague and insufficient and do not disclose an adequate statement of facts relating to or preceding the alleged cause of action.

 

However later on in your own Defence you admit to receiving an agreement and an NOA

 

b) No particulars are offered in relation to the nature of the written agreement referred to in the Particulars of Claim.

 

But you've since been given a copy of the agreement.....

 

c) No particulars are offered in relation to the method the claimant has used to calculate any outstanding sums due, nor the nature and scope of any charges contained within the figure claimed, nor any default notices issued for the Claimant to have a legitimate right of action under the purported written Agreement or any other matters necessary to substantiate the Claimant’s claim.

 

This is a *really* good point - why is it not part of the Defence, but instead part of your reasons to be embarrassed???

 

 

d) No copy of the purported written agreement that the claimant cites in the Particulars of Claim, and which appears to form the basis upon which these proceedings have been brought, has been served attached to the claim form.

 

Doesn't need to be as it was issued through CCBC, however since then you have been sent a copy which will accepted.

 

e) No copy of any evidence of both the scope and nature of any default, and proof of any amount outstanding on the alleged accounts, has been served attached to the claim form.

 

Why do they need to show this??

 

f) The amount stated on the claim appears to include an amount of Loan Protection Insurance which is confirmed on the documentation supplied by the claimant ,as well as interest applied on this amount, yet the documentation does not demonstrate how, when or where the PPI was agreed to or signed for, nor does it include any terms and conditions for this amount - therefore the accuracy of the amount stated in the claim is doubted and the defendant places the claimant under strict proof on the accuracy of the amount claimed.

 

This is another *really* good point - why is it not part of the Defence, but instead part of your reasons to be embarrassed???

 

g) The claimant states in a letter dated xx/xx/xxxx that they “bought” the account. The Claimants solicitor also state in a letter dated xx/xx/xxxx that they own the debt due to an absolute assignment, yet in the letter before action received on xx/xx/xxxx clearly states that Egg is the creditor, yet the named creditor has not joined in this claim.

You're going to have to be clear on what points of Law you are arguing this point. The new European Directive makes it quite clear that a legal entity can be assigned the rights only by absolute assignment.

 

h) Furthermore the Claimant has to date failed to provide the Defendant with any legitimate evidence to substantiates their claim of ownership.

 

See below about the NOA being all they need to do

 

i) In the Particulars of Claim, Interest is claimed under s69 County Courts Act 1984. Yet it clearly states in S69 County Courts Act (4) that “Interest in respect of a debt shall not be awarded under this section for a period during which, for whatever reason, interest on the debt already runs” and since within the Terms and Conditions of the documentation provided there is no provision to apply such interest to this account after termination, it is therefore unclear on what basis this claim is made.

 

I would actually deny they have any right to add this interest.

 

j) Consequently due to the Claimants failure to supply the documents required under the Civil Procedure Rules and the fact that the Claimant has failed to sufficiently particularise the claim I deny all allegations in Particulars of Claim that I am indebted to the Claimant in any way and put the Claimant to strict proof thereof.

 

So, you are *only* denying the claim because of a failure to adhere by the CPR ..... be careful what you say

 

The build up to this action

7. On the xx/xx/xxxx I received a letter from Cabot stating that they had bought an account from Egg Bank identified in the letter by a Cabot reference of 123456 and an alleged account number of abcdefg. In the same envelope there was also a copy of a letter allegedly from Egg and bearing the Egg logo, but clearly created by the same hand as the letter received from Cabot, this letter also referred to the account number abcdefg. I wrote to Cabot advising of an existing dispute over an account with Egg bank and sought clarification via documentary verification of their claim of ownership and requested a copy of the Credit Agreement pursuant to section 78(1) Consumer Credit Act 1974.

 

8. Cabot responded on the xx/xx/xxxx by providing an alleged agreement which did not contain the account number abcdefg but onto which the number 123456 had been hand written. The alleged agreement did not contain all of the required prescribed terms required under statute and precedent and as the front page differed significantly from the signature page in both form and content, I doubted the authenticity of this document.

 

Hmmmm, you need to be very very careful accusing someone of that in Court. I hope you have very good evidence to back this up, otherwise it will be thrown back at you.

 

9. I wrote to Cabot stating that the references on the alleged agreement did not correspond with those in their communications and that the letter purporting to come from Egg bank had clearly been created by themselves in breach of s136 of the Law of Property Act 1925

 

There is nothing to stop then using Egg letterhead to write letters (with Egg's permission) on their behalf. They must not sign it as if it were from Egg though.

 

10. I also advised Cabot that the documentation supplied did not comply with the requirements of the CCA 1974 and that as it stood the document was not an enforceable credit agreement and further requested that they supply the required documents. Cabot wrote back claiming the document supplied was a valid Consumer Credit Agreement under the 1974 Act and that the Letter dated xx/xx/xxxx was in fact a Notice of assignment.

 

11. Between the dates xx/xx/xxxx and xx/xx/xxxx I requested on no less than five occasions that Cabot substantiate their claims of ownership of this account and that they provide legitimate documentary proof of such ownership and liability

 

The NOA is all that is required by Law and you have confirmed to them that you had received it and understood its meaning

 

12. On xx/xx/xxxx I received a letter from Morgan solicitors advising me of their intention to litigate. Shortly afterwards I received the court claim form.

 

The Request For Disclosure

 

13. Further to the case, on the xx/xx/xxxx I requested the disclosure of information pursuant to the CPR 31.14 and CPR part 18 which is vital to this case from the claimant , The information requested amounted to copies of the Credit Agreement referred to in the Particulars of Claim and any Default or Termination Notices, a transcript of all transactions, including charges, fees, interest, alleged repayments by myself and payments made to the original creditor and a copy of the Notice of Assignment required to give the claimant a legitimate right of action. Also any other documents the Claimant seeks to rely on.

 

14. The claimant has replied by providing the Defendant with a copy of the same document as stated in point 8, the reference as stated in the Particulars of Claim was again hand written on the signature page of this document. A redacted copy of the alleged Deed of Assignment was supplied with no information visible. A redacted account history was also provided which serves no purpose in confirming the claimants claims

They have fulfilled their obligation under CPR31.14 as they have sent you copies of already disclosed documents that you have requested. None of the other documetns have been disclosed and therefore cannot be requested under 31.14

 

Conclusion

 

15. The overriding objective in CPR 1.1(2) requires the court to, as far as possible, place the parties on an equal footing. The fact that the Claimants have in their possession a document which is determinative of one the major issues as between the parties should in my submission require disclosure to enable the Defendant to form a view as to whether there has been a lawful assignment. It is with respect the position that not only do the interests of justice require disclosure but that the Claimant cannot prove its case without producing the alleged Deed of Assignment to the Defendant. If, which is not admitted, there was an agreement, enforceable or otherwise, in existence the Claimant has not proved that there has been a lawful assignment.

 

16. Without Disclosure of the relevant requested documentation I am unable to assess if I am indeed liable to the claimant, nor am I able to assess if the alleged agreement is properly executed, contain the required prescribed terms, or correct figures to make such an agreement enforceable by virtue of s127 Consumer Credit Act 1974

 

You have offered no argument as to why the agreement is not enforceable - you have a copy of it - so why is it not enforceable - which prescribed term(s) is/are missing.....

 

In view of the matters pleaded above, I respectfully request that the court gives consideration to whether the claimant's statement of case should be struck out as disclosing no reasonable grounds for bringing the claim, and/or that it fails to comply with CPR Part 16

 

[gh2008]

Its just legal speak, basically meaning their POC is so vague that you are unable to plead effectively or at all...doesnt mean it in the sense we all know it as

 

Yes, I understand what it means - it means that you are unable to plead effectively against the POC.

 

But then pleads very effectively by denying all claims and giving very full reasons for doing so ......

[gh2008]

IMHO you have interpreted teh LoP wrongly.

 

IMHO "Under the hand of the assignor" refers to the Deed as opposed to the Notice

 

136 Legal assignments of things in action

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

(a)the legal right to such debt or thing in action;

(b)all legal and other remedies for the same; and

©the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—

(a)that the assignment is disputed by the assignor or any person claiming under him; or

(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1Trustee Act, 1925.

 

again jmho

[gh2008]

It may be legal speak but the OP is a litigant in person. IMHO the defence should be kept as simple as possible, unless the OP is fully confident that they can go to court and fully explain everything in their documentation. I can't help but wonder if part of the reason for unsympathetic judges is that people go to court with professional appearing documents, but can't necessarily explain what it all means when questioned.

 

Keep it simple and you're providing less ammo for the other side to use against you, and if they come up with something you don't understand it's the judges responsibility to ensure that you understand the proceedings, and perhaps get them on side to support you.;-)

 

nicely put ..... I *totally* agree

[gh2008]

Out of interest, are they paying the PPI reclaim to you or against the balance?

[gh2008]

FT unless BOTH sides agree to SC

 

although the Court *may* have a 'final say' but don't think so

[gh2008]

is there any way to compell the judge to see that they have produced nothing viable by way of evidence?

 

Yep, a killer WS from you !!

[gh2008]

Another thought for you it also renders any DN issued invalid as it would have overstated the amount that you had to pay to rectify any breach. Lord Justice Kennedy in Woodchester v Swain

 

"If a sum of money had to be paid it needed to be specified and if the figure given was more than the sum which the giver of the notice was entitled to demand the notice was invalid."

 

If the error on a DN is only from charges subsequently found to be unrecoverable at Law then the DN is NOT considered invalid - this was made *very* clear in Rankine