Spamheed vs Cabot **discontinued**

[PriorityOne]

I've yet to receive a letter from the delightful Morgans.... but when I dealt with Shoosmiths (re. A&L) and they threatened legal action, I remember writing back and saying that I was surprised to have to remind a firm of solicitors about the law in relation to CCA, 1974 (lack of CCA, etc)... but would be happy to point out a variety of breaches under it if they decided to pursue court action in the continued absence of an enforceable Agreement, as well as offences under DPA and others.... and copied A&L into it.

 

A&L called them off and it never went to court....

[PriorityOne]

 

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.

 

 

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?

[PriorityOne]

My understanding is that the cca defines "the creditor" as the owner of the rights and the duties of an account. When Cabot make this claim about only buying the rights and not the duties are they not shooting themselves in the foot? It's either wordplay or porkies.... from memory, I think s175 of CCA 1974 defines them as the creditor under Absolute Assignment.... so they do need to produce accurate docs. to enforce their little purchase and that Agreement (if they have it). They also need to justify the legal basis for adding (post-purchase) interest to it, as they tend to do.

 

I have read that if they state that they only have the rights then they cannot bring a claim as they are not the creditor (they don't own the duties) and the original creditor is unable to bring a claim because they don't own the rights. They've bought it, so I'd ignore this. It's there to confuse.

 

This being the case I have a company who are not the actual creditor, bringing a claim with an invalid account/reference number and an alleged agreement that cannot be linked back to any account number/reference that they or the OC have used to identify the account. How can the figures claimed be even close to being accurate when there is no account number on the agreement to link it to any statements/payments/assignments etc and so forth They've bought it (as above) so can bring a claim. If the figures are not accurate (and the CCA is enforceable) then the total can be challenged as including unsubstantiated charges. I'm not sure if having a different ref. no, will be a strong enough argument in court but there needs to be a legal basis for being able to add charges and it's up to Cabot to explain that to the court.

 

that's before we look into the enforceability of the agreement which doesn't have all of the prescribed terms and has ppi included but no separate agreement There you go! No prescribed terms, so how can any right to add charges be substantiated? Where is the proof that you agreed to PPI? If there's no proof that you agreed to PPI, then it shouldn't be included in the claim; which makes their total inaccurate.

 

If I wasn't aware of the unreliability of the judicial system and in particular their judgement of consumer credit accounts, I would say they really don't have a lot to be bringing a claim over

 

It's down to your ability to fight it and how well your argument is presented.

[PriorityOne]

So by posting on here and seeking clarification of what an alleged creditor is and isn't allowed to do, you're saying that they can somehow produce this thread as clear evidence of my alleged liability?

 

 

Sorry... but that's rubbish. CCA 1974 is very clear on when an account can be re-enforced and when it can't. Chit-chat on a pubic forum is not evidence of any liability without sight of a contractually assignable, properly executed Consumer Credit Agreement.

 

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 ....

 

I have downloaded the link and will read it but on face value, it may be a claimant/defendant issue in terms of the burden of proof. You talk about issuing a claim, but we're not issuing a cliam here. The claim has been issued by them. As for reading a statement from Cabot... that's bound to be biased/worded in their favour anyway.

 

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 ....

 

Another claimant/defendant difference, I think.

[PriorityOne]

It's s.189 of the Consumer Credit Act which defines Cabot as the creditor by absolute assignment.... and makes it quite clear that it's an assignment of rights and duties.

[PriorityOne]

Ok, I've read the link; written by Cabot for Credit Management.... Part of the article is below. My emphasis on their words in bold... my own words in orange:

 

There are also popular misconceptions about the rights and obligations of debt purchase companies under the Consumer Credit Act. We do not believe that debt purchasers fall within the definition of "creditor" in section 189(1) of the Consumer Credit Act, because they take assignments of the rights, but not the duties, of creditors under consumer credit agreements: they collect the debts, but they do not themselves lend money. We believe that the Government’s decision to create a new category of business for which a licence is to be required, namely debt administration, when the Act is amended in April 2008, reflects the fact that debt administration companies are not creditors for the purposes of the Act. (When explaining the new category of licence during parliamentary debate, the Under-Secretary of State for Trade and Industry said that the category was intended to cover those who "purchase portfolios of existing loans and administer them".) Buying an account by Absolute Assignment is not "administering" them... there's some confusion here..... However, the fact that in our view debt purchase companies are not creditors does not mean that they are not entitled to enforce the debts that have been assigned to them, or which, in laymen’s terms, they have bought. As a legal assignee, under section 136 of the Law of Property Act 1925, a company which has bought a creditor’s rights under a credit agreement is entitled to sue the debtor for any repayment that remains due under the agreement. Presuming that they have that Agreement (CCA, 1974; s127(3)

 

It is worth pointing out that the Citizen’s Advice Bureau is currently pursuing a series of court cases which challenge the right of the debt purchasers to enforce regulated debts through the courts. The CAB’s argument appears to be that according to the definition of "creditor" under section 189 of the CCA, a purchaser must prove he has acquired the duties as well as the rights to a consumer credit agreement. This is an interesting assertion, but misses the point entirely on the basis that a debt purchaser needs only to be a legal assignee to enforce the credit agreement, which it is as soon as written notice of the assignment is given to the debtor. In my view, the actions of the CAB in these cases are ill conceived and in many ways the outcome of the cases themselves is entirely irrelevant. That's quite arrogant, I think...

 

Cabot have been trying this idea for some time and this article seems to be riddled with their own opinions of the law, rather than a detailed rundown of aspects of law or changes within CCA law that they intend to adhere to.

[PriorityOne]

There seems to be some reluctance to admit to Absolute Assignment on a number of threads lately.... so you have to ask yourself why that is. They don't seem to be fully committing to either explanation (IMO).... but you're right; Equitable would mean they cannot bring action in their own name and Absolute is the complete sale of the account, so they can't have it both ways.

 

IMO (again), this is Absolute.

[PriorityOne]

You may find this useful... courtesy of pt2537 (Paul)...

 

if i were formulating arguments here, i would be relying on s173 CCA which expressly prohibits and declares a term void if it is contracting out of the Consumer protections of the Act.

 

my submission would be that such a term that allows a assignment to strip away the protections of the act would simply be contracting out

 

one ponders and asks the question, if they arent the creditor then what happens if the agreement hasnt been terminated (Cabots favourite argument) and therefore you make a request to the original creditor and then they dont comply, but cabot is suing you in the mean time

 

what would happen then??

 

seems to me cabot would be able to enforce while the agreement is unenforceable?

 

if they are to be believed as right!!!

IMO, this suggests a reason for Cabot's reluctance to confirm the type of assignment it is...

[PriorityOne]

pt2537 seems to be suggesting that you can pull out s173 if Cabot try and tell you that they have the rights but not the duties of the Agreement.... as what they're saying is if they don't have an Agreement, they can sue you anyway because they have the "right" (by Absolute Assignment).... but are not bound by the "duties" of the Act.

 

If this doesn't apply to you Spamheed, please ignore... I'm working on a few Cabot threads at the moment and they're starting to blur into one!... lol

[PriorityOne]

Is there a reliable defence which refers to unenforceability issues as well as documentation shortcomings around?

 

Cheers

 

As no-one's posted up a defence for you yet... take a look at this one (also Cabot) and adapt to your needs. We can always tweak the wording once you've included all you need to defend, so to speak....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?267627-County-Court-Claim-form-received-Cabot&p=3092121&viewfull=1#post3092121

[PriorityOne]

I'm not sure what an extension will achieve, to be honest. You may be better off incorporating the above points in your Defence instead. Their tactics appear to be similar on a few threads unfortunately.... especially re. contract law instead of consumer credit law ("rights but not the duties")...

[PriorityOne]

Remember.... s.189 of CCA 1974 defines a creditor as having rights and duties. If they are claiming to only have rights, it suggests that they're not adhering to CCA law but have opted out and used contract law instead for the assignment..... which is contrary to s.175 if memory serves me correctly.

 

[PriorityOne]

I'm no expert of Defences Spamheed.... but it seems to me that if you are querying documents that have not been sent against statements made by Cabot in their POC, that you shoud include whatever wording you need to put them to strict proof of any/all evidence in your Defence.

 

The NOA issue is a very wishy-washy one though.... it's either an Equitable Assignment (which I don't believe... and would mean that Cabot could not bring action in their own right) or it's an Absolute Assignment (which means they've bought it).... and that would give them the right to start action in their own right; which they've done. I doubt a Judge would be too concerned re. who issued it or even if it was issued, to be honest.

 

So... they've started the action as Claimant, but you remain protected under CCA law; not contract law... which seems to be what they're trying to swing lately. So, if that assignment has taken place under contract law, how valid is it?.... Cabot must be the creditor (by AA), but denying rights and duties suggests that they haven't bought rights and duties under CCA law.... which (legally) should deny them the status of creditor under s189; CCA 1974

 

If it was me, I'd put them to strict proof of the type of assignment it is and work it into your Defence....