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Spamheed vs Cabot **discontinued**


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the PPI is unlawful now, but at the time the agreement was entered into, it was lawful and at the time the DN was issued it was also lawful.

 

unfortunately although the laws and rules regarding the PPI itself are retrospective and as such claime can be made up to six years from the point the claimant was made aware of the nature of the PPI, the contract laws are not retrospective and since the terms and conditions of the contract were believed by all concerned parties to be correct at the point of signing, then the current legality of the PPI would have no bearing on the validity of the contract signed at some point in the past.

 

It would take far deeper pockets than mine to fight this one I'm afraid

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believed by all concerned parties to be correct at the point of signing,

 

I don't understand this spamheed. Where does this come from?

 

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The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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I was advised this on another forum quite some time ago

 

I asserted that since the PPI had been settled was it the case that the amount of credit, APR and all associated figures could now be deemed unlawful, I was assured that because at the time of signing they were lawful that they would not retrospectively make an agreement unenforceable

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organs were told to either disclose the usual list of documents or in a witness statement explain why they do not have them.

 

they have simply regurgitated the same [email protected] agreement with no linking account number, redacted DOA which links nothing to anything (which I believe is a pre agreement)

their in house account history which proves nothing other than they can spell my name

a statement of account which was not produced by Egg

a NOA allegedly from Egg which was not created by Egg

 

The absence of any default and /orTermination notice are referred to in their witness statement

 

I can prove that the dodgy NOA was created by cabot

Egg do not refer to this account by the number they are using

the figures contained within their "statement of account" are a work of fiction

Egg have settled the PPI element on this account and if my math is correct have wiped off two thirds of its value - this is not shown on their statement of account

 

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

 

My defence options as I see them are Either they are blatantly telling lies about their figures and the origins of this account, there are two accounts, or they have the wrong account entirely

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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 !!

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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

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believed by all concerned parties to be correct at the point of signing, then the current legality of the PPI would have no bearing on the validity of the contract signed at some point in the past.

 

I am sorry but I disagree. If this were true then the courts would not have the power to reopen the agreement were any terms unfair. What this might be referring to is the Rankine judgement where Judge Brown said that

 

" In my judgment, it cannot invalidate a default notice if elements of the sums claimed in that notice are subsequently found to be irrecoverable by virtue of other legislation, such as the Unfair Terms in Consumer Contracts Regulations 1999. The obligation imposed on the lender is to state the sums due on the face of the agreement. To impose any other requirement would remove any certainty from the process, since it would require lenders to anticipate and calculate, in advance, a court's likely view as to a fair sum to levy in respect of default charges. This is a virtually impossible task which Parliament cannot have intended that lenders would have to carry out when issuing default notices"

 

However you note that he was referring to default charges and the deliberate mis selling of PPI in my opinion is an entirely different scenario

 

Just to add this is to spamheed rather than GH (posting at same time):-)

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Yep, a killer WS from you !!

 

Fine, will start dissecting their paperwork on Monday and produce an amended defence from there

 

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

 

That was my understanding, it was accepted as valid by all parties at the time, so is not completely rendered unenforceable only the aspects that have been found to be incorrect,

 

however, it does mean that the amount they are claiming would need to have the original PPI and interest removed from it and then the amount of settlement removed from it.

 

so their £5k claim is suddenly worth less than £1500 assuming they can convince a judge that their made up stuff is genuine

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However you note that he was referring to default charges and the deliberate mis selling of PPI in my opinion is an entirely different scenario

 

I know this wasn't aimed at me but I'm going to reply anyway :D

 

I can see your point, and I understand it, HOWEVER I would not want to stand up in Court trying to persuade a Judge that the Claimant knowingly & deliberately missold the PPI rather than 'the industry's practice was flawed'

 

Whether that it right or wrong - it would still be an argument you would have to prove 'on the balance of probabilities' and we know how far those scales are weighted in the favour of the banking institutions .....

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But it does help that Egg were fined in excess of £700,000 by the FSA for deliberate mis selling of PPI policies and forced to compensate their customers. Just because something may be widespread doesn't make it legal. The rules were in place to cover the selling of PPI, just because everyone broke the rules doesn't change the fact that the rules were broken.

Edited by Wolfy
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Just to add this in my opinion differentiates PPI from default charges. With PPI the rules are clearly set out as to what the vendor needs to do in order to comply. If they don't follow these clear rules or choose to ignore them then its their choice. Everyone knows it illeagal (ok mixing civil and criminal law here) to use a mobile whilst driving. People still do and going to court and stating "well your honour everyone else was doing it" isn't going to get you very far.

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I would rather avoid arguments which could be regarded by a judge as looking for loopholes or as an attempt to avoid a liability.

 

That Egg were guilty of criminal activity is pretty irrelevant when the legal system won't do anything about it, better that the individual courts spank any DCA who tries to play the numbers game including invalid or unlawful charges/PPI

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unfortunately it doesn't work like that.

 

At the point the loan was taken out, the PPI was lawful and the payments also lawful

the default carried the correct amount overdue at that time and as such the DN is lawful, allows more than enough time to remedy.

 

I think the DOAis extremely relavent and is anything but a DOA, I think it is a blanket sale agreement or pre sale (intention to trade) for a huge lot of outstanding debts and fails to specify anything which could link it back to a specific debt either the agreement or the correct outstanding amount.

 

given the refund by egg I think they've [email protected] it up for Cabot.

 

Unless my maths is completely wrong, the very most I could be owing is circa £1500 and even then only if they can oprove that they actually own the debt

 

If you've had the PPI back then clearly you were mis-sold the PPI so how can that have been fair and therefore lawful?

 

Sorry to labour the point but if the PPI was mis-sold, then the amount of the claim is incorrect and therefore the claim should be dismissed IMHO.

 

Industry practice is irrelevant if it doesn't comply with the law IMHO.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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So after allowing a couple of days for this to sink in:

 

Cabot/Morgan did their usual thing forged a NOA provided no evidence of ownership or liability – brought a claim with a rubbish POC and still no real evidence

 

Got the DJ to order disclosure and amend POC – they simply resent all of the same rubbish and explained the lack of any DN or TN in their witness statement as no default is required because they are only chasing arrears which due to time elapsed is now the entire balance

 

So opinions on the following if you please

 

Egg issued a default several years ago, this shows two missed payments as the outstanding amount

These two payments included PPI premium and interest. I have this DN, Cabot do not

 

Am I correct in believeing that since the PPI has now been refunded, the DN contains incorrect values and is therefore invalid

 

does the existence of a DN affect this in any way affect their claims re arrears – also In their LBA, Morgan state that the Outstanding Balance is now due in full, is this just wordplay or does it carry any weight as it does not mention arrears?

 

The statement of account they have produced has clearly been reverse engineered so as to finish with their claim amount which includes the full amount of PPI and interest. The interest for the loan amount and PPI is preloaded onto the account

 

I have letters and demands from previous DCA which show completely different amounts outstanding at the same dates listed on Cabots SOA.

Throughout the SoA it shows payments made and interest applied for the same amount above and beyond the preloaded contractual interest

Cabot also show a PPI settlement fig of less than £150 paid against the balance in 2009,

Since Egg only settled in full for the PPI this month, does this cast doubt over the figures in the SoA and the legitimacy of the accompanying witness statement? Does it also have any affect on the validity of their claim given that they are claiming the whole balance including PPI and interest applied

 

The document that they claim is a DOA shows nothing, there are dates which contradict their own POC and anything of meaning has been redacted so there is nothing at all linking this document to any account number

 

I have been advised to deal with all of this via a Witness statement of my own.

 

Do I at this point attach documents in support of my defence?

 

Can I request an order for the original documents to be brought to the court within the WS?

Edited by spamheed

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Please note: i am not a qualified lawyer, any advice is offered in good faith and is based on my own and others experiences and a penchant for research and a desire to help others to empower themselves

 

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Ok, my thoughts

 

The NOA IMHO is not 'forged' merely sent by Cabot on behalf of Egg at Egg's request, using Egg's letterhead, with their permission. Having looked at my own copies and asked the questions that is my conclusion. There is nothing wrong in Law with this.

 

The arrears issue - if these amounts are arrears then the account must have been active/live for all this time to enable these arrears to build up. Have you been sent statements? have they complied with all the T&Cs of the agreement? have they complied with S86(a-c) of the CCA and others? for a live account

If you have not been sent statements then obviously they are in breach of the T&Cs and have severely prejudiced you, by building this debt up 'behind your back' especially with so many different balances bandied around.

 

The original DN is not invalid purely because of the PPI (again IMHO, but Rankine case did deal with incorrect amounts on DN subsequently found to be irrecoverable and I think the same stance would be taken with PPI)

 

Have you ever received a demand for the full balance? if so this would be indicative that the account was terminated

Did you ever receive a termination notice from Egg (they do usually send them)

 

Certainly challenge the DOA i.e. Cabot need to prove that they have a cause of action in that they lawfully own the rights to your account

 

Challenge the arrears issue ..... imho this account was terminated and therefore needs a valid DN to have been served etc OR the account should have been maintained according to the T&Cs as a 'live account' monthly statements etc etc

 

Challenge the balance this is obviously wrong. If the account was terminated is there a provision in the T&Cs for post termination interest rate? S69 does not apply as there is already a rate of interest applicable to the debt. Whether that is 0% or not is down to the T&Cs of the agreement

 

Challenge every discrepancy in the SoA

 

You can attach docs to referred to in your WS

You can request for originals (even if you get it they will wriggle out of it though)

 

jmho

 

Good luck

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I appreciate your comments about the NOA. but I am inclined to disagree.

 

I have read the relevant sections of the LOP very carefully they do allow for the assignee to provide notice of an assignment, however the Notice itself must be created by the hand of the assignor, at no time on either the "forgery" or their welcome letter do they clearly state that this letter is at the request of or on the behalf of Egg, nor do they clearly state that it was produced by Cabot, or that it was a representation of the NOA as produced by Egg. In itself this was taken to be an indication of the behaviour of this company being designed to misinform a consumer and mirepresent themselves

 

They only actually advised that it was a representation after I pointed out the fraudulant use of the letterhead.

 

As a consumer, I felt that the letter was designed to make me believe that the bank had written it, this in itself would seem enough to demonstrate misrepresentation.

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I appreciate your comments about the NOA. but I am inclined to disagree.

 

I have read the relevant sections of the LOP very carefully they do allow for the assignee to provide notice of an assignment, however the Notice itself must be created by the hand of the assignor, at no time on either the "forgery" or their welcome letter do they clearly state that this letter is at the request of or on the behalf of Egg, nor do they clearly state that it was produced by Cabot, or that it was a representation of the NOA as produced by Egg. In itself this was taken to be an indication of the behaviour of this company being designed to misinform a consumer and mirepresent themselves

 

They only actually advised that it was a representation after I pointed out the fraudulant use of the letterhead.

 

As a consumer, I felt that the letter was designed to make me believe that the bank had written it, this in itself would seem enough to demonstrate misrepresentation.

 

The NOA DOES NOT need to be created by the hand etc. THE ASSIGNMENT does yes, and a notice has to be given yes but there is nothing that says who has to give that notice.

 

You may have an argument re CPUTR with it definitely but not LoP or CCA

 

IMHO the notice is effective - you received it and understood its contents - but I agree it was misleading if it was written as if to come from Egg themselves, as opposed to be on behalf of Egg i.e. a pp signature

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If you find my advice helpful - please click on my scales

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To date, Cabot have provided me with a letter purporting to be from Egg but not actually created by them, carrying coding which links it to the creator of the accompanying Cabot "Welcome" letter

 

I accept this letter as exactly that - namely a letter sent by Cabot, created by Cabot but for some reason designed to look like it was created and sent by Egg.

 

That would be akin to my producing invoices for goods on behalf of the suppliers from whom I have bought them.

 

There is nothing in the LOP to say that the asignee must pass off any notice as if it came from the assignor This is (perhaps) something that Egg and Cabot have agreed between themselves as a contractual condition but it holds no validity in English law and is not underpinned by either the LOP or CCA or any other statute.

 

This letter was intended on its face value to prove that Cabot own an account via an assignment. It cannot do this because it has a less than lawful intent - namely to pursuade the recipient that it was sent by the original owner of the account

 

When requested to provide further evidence of ownership, they initially sent nothing, but then they send what they claim to be a DoA but with every single piece of relevant information blacked out (redacted) so as to make it unreadable. They claim that this is due to the sensitivity of the information contained within the document

 

So to summarise, I have received a letter which is at best unreliable in its origins and deceiptful in its intent and also a document which contains not one single reference to link it to either the initial letter, nor to the account which has allegedly been assigned.

Edited by spamheed

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My day to day work involves a pedantic approach to often quite convoluted problems - so I just traced through the link provided and found the following:

 

1. The Actual assignment must be in writing and signed by the Original Creditor - To date nothing provided - only a letter from Cabot themselves

 

- there is a question that I keep meaning to research - I'm pretty sure that there is a Court of Appeal case on point IS does that mean that where the OC is a Company that the Company Seal must be attached to the Assignment and that the assignment need s to be signed by a Director and Company Secretary - whether applicable or not - only a letter from Cabot

2. The Act does not say that the NoA must be signed by the original creditor or indeed by anyone. There is some case law which is open to interpretation - arguably it doesn't - so the LOP doesn't say yeah or Nay - still just a letter then

3. Don't forget that at common law (Court of Appeal Obiter in Van Lyn Developments) you are entitled to inspect the actual assignment to satisfy yourself it is valid. - made my section 18 request but they only sent the redacted DoA and the letter

4. Proof of delivery would include recorded delivery, certificate of service and of course an admission that you had received it. Unfortunately I conceded the receipt of the letter - so they need no further proof

 

5. Don't forget that if there is a notice that it must be legal... - so the letter on its own means nothing

6. There must be an assignment before there is a notice. A notice does not, in itself, create an assignment. as mentioned - just a letter

 

"This is what the Cabot people came up against because the assignment instruments were copies contained in a book debt transfer" this is what I think they are calling the DoA and even with the letter proves nothing, personally I think it is an agreement to trade, not a trade agreement. ie pre contractual.

I agree fully that under the LOP the assignee is allowed to provide a NoA in their own right, but only once the assignment has been completed. They have yet to prove that any assignment has actually taken place. If it had, why are they being so difficult and reluctant to provide this proof.

As I stated in the posts above, there is nothing in law which allows them to create a letter pretending to come from a bank, neither using the banks letterhead with the intent to deceive the consumer into the belief that they have just received a letter from the bank as it is fraud, even if it does appear as a term in their contract it doesn't mean that it is lawful outside of that contract, and obviously doesn't bind anyone outside of that contract

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A bit of a quandry over the DN though. Egg issued a DN when only two payments were overdue. There was no termination notice, they just sold on the debt.

 

When asked to provide a copy of the DN, cabot have stated that neither they nor Egg needed to produce any DN nor a TN and they still dont as they are only after the arrears (which is now the total balance).

 

I am advised that due to no periodic statements being issued that the account has certainly been terminated and that a temination notice should have been issued and that the DN and TN would be re3quired prior to the sale of the account - is there statute or case law which supports this?

 

Would it be in my interests to produce the DN at all, it contradicts what Cabot are saying and casts doubt over the validity of their WS.

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Hi spam

 

Does the Default Notice suggest that Failure to pay, the account will be terminanated or request the outstanding balance? may be asking an obvious question, I know.

 

Hadituptohere

I'm far from an expert, but learning all the time!!!!!

 

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Hadituptohere OH V Capital One, **WON**

Hadituptohere V Cabot, (providian/Monument/Barclaycard cc) - ** claim struck out ** due to non complaince of CPR, Wasted Costs applied for, Default Cost Certificate issued by Court, Warrant of excecution and CC Baliffs instructed...lol 😎

Hadituptohere V Cabot, (morgan stanley dean witter/barclays cc) - account in dispute, LBA sent to barclays, awaiting responce, no responce.

Hadituptohere V RBS, default removal x 2, case dismissed, judge used Balance of Probabilities against hard Evidence.

Hadituptohere OH v Santander, Santander issue claim in court, settled out of court via Tomlin, less solicitors fees and interest.

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The wording of the DN is as follows:

 

IMPORTANT _ YOU SHOULD READ THIS CAREFULLY

Default Notice

Served under section 87(1) of the Consumer Credit Act 1974.

 

Dear Mr Spamheed

 

Loan Agreement Number xxxxxxxxx

 

We refer to the above agreement which you have entered into with us. You are in breach of the terms of the above agreement, which requires you to pay the instalments, specified in the agreement on the dates that they are due. Instalments of £2xx.xx are now due and owing. You may remedy this breach of your agreement by full payment of the arrears to us at the above address before xx/xx/20xx

 

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE XX/XX/20XX NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH

 

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE XX/XX/20XX THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU OR A SURETY

 

Further action

On or after xx/xx/20xx we shall:

 

 

  • Require payment of the outstanding balance

if the arrears are not paid before xx/xx/20xx we shall:

  • Instruct our solicitors to issue proceedings against you, or instruct debt collection agents to recover the debt on our behalf
  • Register the default with Credit Reference Agencies. We hereby give you 28 days notice of our intention to register the default if it has not been remedied. CRA will notify any prospective providers of credit of this default in your payment, resulting in you etc and so on

Edited by spamheed

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I'm really just looking to beef out my defence and shoot down every one of their claims.

 

I know the service of the NoA is open to argument, and opinions differ quite wildly, but I think that offering up the question of why they have unecessarilly created a letter in the guise of the bank when all they needed to do to fulfil the LOP with regard to serving a NoA was send me their famous "welcome" letter, everything else is just smoke and mirrors, designed to mislead.

 

Also just been looking a little closer at their "statement of account" and I'm convinced that it's been reverse calculated, starting with the amount they are claiming and simply adding on misc figures until it reaches the initial loan amount

 

I have three letters from Moorcroft stating amounts outstanding which differ by at least £500 from the ones Cabot show on their SoA

despite the fact the amounts paid (at that time) were always the same amount and the interest was pre loaded onto the loan, the balance outstanding not only fluctuates but also actually increases completely out of pattern with the amounts paid

Hope this helps

 

 

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Please note: i am not a qualified lawyer, any advice is offered in good faith and is based on my own and others experiences and a penchant for research and a desire to help others to empower themselves

 

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