Morgan Stanley/Cabot Question

[Fred Bassett]

It is in S87(1) of the CCA 1974. They cannot terminate an agreement without issuing a DN. Termination can be by informing you in a Termination Notice or by act - they terminated the agreement when they sold it on. The consequences of that are spelled out in legal precedent:

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

For "Failure of a DN to be accurate", read "Failure to issue a DN at all." You have them by the short and curlies. Don't speak to Cabot on the phone - ever -everything in writing - and I send everything to their complaints department or they don't read it. Don't worry about Cabot. If they had a brain they would be dangerous.

 

Hi Pinky, how would you prove that a DN was never sent at all? I have an issue with one of my accounts where I have SARd the original lender and they did not include a copy of a DN. Is this conclusive, or should I write and ask them for it?

 

Regards.

 

Fred

[Pinky69]

You cannot prove a negative Fred - they must prove a positive. They do not keep copies of them - they are all done on templates and a copy is not retained, just wiped for the next one. Their proof would have to be proof of postage and they must send that as part of your SAR. You can be pretty sure they don't have it and can argue that you didn't receive a DN.

[volvo]

Well said Pinky

 

Keep up the good work

 

VOLVO

[Fred Bassett]

You cannot prove a negative Fred - they must prove a positive. They do not keep copies of them - they are all done on templates and a copy is not retained, just wiped for the next one. Their proof would have to be proof of postage and they must send that as part of your SAR. You can be pretty sure they don't have it and can argue that you didn't receive a DN.

 

 

Many thanks Pinky. I've been trying to get a definitive answer to this. I don't want to hijact veryweary's thread though, so if you get a chance, I'd appreciate it if you could pop into this thread at some point: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/144299-fred-bassett-cahoot.html

 

Cheers.

 

Regards.

 

Fred

[veryweary]

Informed Cabot that as a Default Notce had not been issued prior to their purchase of this account, it had been unlawfully rescinded.

 

Cabot have now replied confirmng that no default had been issued prior to their purchase. However they infer it was not needed as the original terms say 'We may tranfer this agreement or any of our rights or responsibilities under it to any company firm or person at any time'

 

What they omit is that as a regulated agreement it has to be done within the regulations of the CCA 1974, which as far as I read states a default should have been issued prior to sale.

 

Their letter carries on to say that they have the responsibility of the original creditor to administer the account in the same manner as the original lender, so with no payment being made they issued their own default notice and termination.

 

Before I respond, does anyone have comments?.

[the_shadow]

Informed Cabot that as a Default Notce had not been issued prior to their purchase of this account, it had been unlawfully rescinded.

 

Cabot have now replied confirmng that no default had been issued prior to their purchase. However they infer it was not needed as the original terms say 'We may tranfer this agreement or any of our rights or responsibilities under it to any company firm or person at any time'

 

What they omit is that as a regulated agreement it has to be done within the regulations of the CCA 1974, which as far as I read states a default should have been issued prior to sale.

 

Their letter carries on to say that they have the responsibility of the original creditor to administer the account in the same manner as the original lender, so with no payment being made they issued their own default notice and termination.

 

Before I respond, does anyone have comments?.

 

Hmm interesting so they claim the contract was transferred to them via the original lender as their t&c override the consumer credit act then

 

I wonder if its worth asking for details of this credit card service that cabot would offer as clearly if the benefits of the contract were not transferred its a termination. If you had paid up this psuedo default that cabot say they can issue would they still continue advancing you money allowing you to pay off overtime... do they hold the relevant credit licence for this?

 

S.

[veryweary]

My thoughts exactly Shadow. This to me is just the usual Cabot smoke and mirrors, but I'm not buying it.

[patrickq1]

ive just been on another thread going on about the unlawfull recision of contract or unlawful repudiation of contract and this is the advice to send them at either the owner of the actual debt not the assignor ...

hope it helps

patrickq1

re your ref Account xxxxxxxxxxxxxxxxx-terminated agreement

 

i note that you have not advised me, subsequent to my acceptance of your unlawful repudiation of the alleged agreement in 2009 as to the genuine amount of arrears that were outstanding at the time of termination, against which i may have a counterclaim for damages.

 

i look forward to your advices.

 

Yours sincerely

[Pinky69]

They cannot issue their own DN and termination because the agreement was already rescinded at the point of sale. There was no agreement for them to issue their own DN on.

[Windywoo]

Subbing- potentially in the same situation with Golfish/Cabot, just waiting for SAR from Barclaycard to see if it throws up a DN or TN!!