Me v Cabot

[appo0712]

Hi all,

 

I sent Cabot the CCA request 9th Oct, after two account on hold letters from them. They've sent me the following (application, T&C, Statement, and two pages from there payment system but no CCA) as below.

 

 

 

 

 

 

 

(on the last one it showed the debt was £1000 less before they started collecting)

[postggj]

says it all

 

APPLICATION FORM:)

 

THAT IS NO CONSUMER CREDIT AGREEMENT:D

[vjohn82]

Section 59 of the Consumer Credit Act 1974 states that application forms are not binding.

 

For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553. Any document purporting to be a credit agreement without the prescribed terms does not conform to section 60(1) 1974 and therefore cannot be properly executed as described in section 61(1) CCA 1974. For your information, in case you are unsure, the prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

 

“A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

(a)Number of repayments;

(b)Amount of repayments;

©Frequency and timing of repayments;

(d)Dates of repayments;

(e)The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.”

 

 

This is justified in court as the correct format and there are plenty of instances in case law which I can draw your attention to which back up this fact. Therefore any document purporting to be a credit agreement must meet the prescribed terms to be valid.

 

Now, drawing your attention to the document you have provided to me, I must point out that nowhere on the form does it describe any prescribed term as mentioned above. In fact the document, despite being far from 100% readable, looks more like an application form for credit rather than a “credit agreement”. If you believe this is an enforceable credit agreement, which I have to believe you do as you think it fulfils your obligations under the Consumer Credit Act 1974, then I challenge you to take me to court to enforce it.

 

Since the document you have provided 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.

 

I will not refer you to the Office of Fair Trading Debt Collection Practice Guidelines 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. Please note your membership with the Credit Services Association requires you to comply with the Office of Fair Trading at ALL times and there is significant basis for complaint should you choose to ignore the following:

 

Since the agreement is unenforceable and both the default notice and record with the credit reference agencies is, as a consequence, non compliant, it would be in everyone’s interest to consider the matter closed and for the debt to be removed. 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 as I see fit.

[hungrybear]

Dear cabot,

 

Nothing you sent either complies with my cca request or provides any proof whatsoever of a legally enforceable debt. In the absence of any further documentation this matter remain in cca section 78(6) dispute. Naturally you may, at your choice and own cost, refer the matter to a district judge who will confirm this situation.

 

If you write again I trust you will enclose definitive legally enforceable proof that there is a matter I need to discuss further, else I fail to see what meaningful response I could give.

 

Up yours

appo

[postggj]

now now hungrybear

 

cabot have lost a few million this year, we should feel sorry for them (NOT)

NO BONUS FOR MR MAYNARD THIS YEAR

 

realy, sending that piece of crap and saying is an agreement

 

realy

[hungrybear]

those are not even terms and conditions of a cca agreement, the statement and their printout crap is meaningless in law and the application form is legally unenforceable.

[spidey41]

this is exactly what they sent me as well , they are adamant that this is enough to win in court if it goes to court , have they sent you a fake notice of assignment yet to go with it

[postggj]

this is the reason they are about on skid row

 

how the mighty have fallen

 

times must be bad

[spidey41]

so if they take me to court with an application form as agreement i presume my chances of winning are pretty good

[hungrybear]

spidey - they have nothing to take you to court with they are trying to con you into paying.

 

Many of these types of company now appear to be using northampton mcol as a new form of threatogram to scare people into paying.

 

Send them the letter I wrote above for appo.

 

Once you say to them 'go on then take me to court' the run a mile.

[appo0712]

Thank you all for the quick responces,

The letter will be sent in tonights post.

[vint1954]

so if they take me to court with an application form as agreement i presume my chances of winning are pretty good

Yes, if defended properly.

 

Their letter is also obviously misleading stating that they have complied with s78.

[Fester Tester]

If all they can supply is an application form, then they HAVE complied.

 

They should just admit defeat tho.

[vjohn82]

Compliance is a two way street...

 

They either supply the executed agreement... or supply another document which is not the executed agreement.

 

It's always a shame when the latter happens ;-)

[GAVBU28]

so if they take me to court with an application form as agreement i presume my chances of winning are pretty good

 

It depends on the judge on the day, sadly more and more people are finding that the day in court revolves around judges, making a judgments, on what they think is right and not what the law says.

 

It’s a real worry.

[spidey41]

iv'e read enough cases on here to see that defended cases on faulty agreements win about 80% of the time , i think thats a good enough percentage to let dcas take me to court , i might even end up earning some money out of it for costs

[hungrybear]

iv'e read enough cases on here to see that defended cases on faulty agreements win about 80% of the time , i think thats a good enough percentage to let dcas take me to court , i might even end up earning some money out of it for costs

 

PROPERLY defended cases which rely on case law, statute references and well reasoned argument win nearly 100% of the time.

 

'It's an application form innit gov so you cant make me pay can ya' tends to loose!

[appo0712]

lol

[diddydicky]

If all they can supply is an application form, then they HAVE complied.

 

They should just admit defeat tho.

 

not so, s78 demands that they send a true copy of an EXECUTED credit agreement

 

anything that they send which is not EXECUTED therefore does not comply- and they remain "in default" of s78 for ever and a day ( well they get time off for good behaviour after 6 years ) until they do comply- with all that that entails

[vjohn82]

not so, s78 demands that they send a true copy of an EXECUTED credit agreement

 

anything that they send which is not EXECUTED therefore does not comply- and they remain "in default" of s78 for ever and a day ( well they get time off for good behaviour after 6 years ) until they do comply- with all that that entails

 

Cabot tend to get around this by stating that the signature box, or any other header, contains the phrase "This is an agreement regulated by the Consumer Credit Act 1974. Only sign it if you want to be bound by it's terms"

 

Complete tosh of course... about as much use as Stevie Wonder's sunglasses.

[diddydicky]

Cabot tend to get around this by stating that the signature box, or any other header, contains the phrase "This is an agreement regulated by the Consumer Credit Act 1974. Only sign it if you want to be bound by it's terms"

 

Complete tosh of course... about as much use as Stevie Wonder's sunglasses.

 

they are of course permitted to omit the signatures, signature boxes and any information that is purely administrative and has no bearing on the enforcement of the agreement

 

HOWEVER if the agreement (assuming that the signatures have simply been omitted) is not properly executed ) ie it is missing PT's or other defects then it is not executed and therefore fails to comply

 

the outcome is that UNTIL they supply a true copy of an Executed agreement (usually at the court stage) they remain in default and may not add interest and charges

 

thus when they issue court proceedings they are acting in default of s78 and this is a defence

[hungrybear]

Stevie wonder's sunglasses prevent retinal damage in strong sunlight.! I am pretty sure that cabot can only come out at night!

 

beyond that, all I can think to say is 'eyes, wool, over, pull'.

[hungrybear]

They would need to comply with this for enforcement action:

 

Civil Procedure Rule Practice Direction 16 Para 7.3 states:

7.3 Where a claim is based upon a written agreement:

(1) A copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing, and;

(2) Any general conditions of sale incorporated in the contract should also be attached (but where the contract is or the documents constituting the agreement are bulky this practice direction is complied with by attaching or serving only the relevant parts of the contract or documents)

[Fester Tester]

not so, s78 demands that they send a true copy of an EXECUTED credit agreement

 

anything that they send which is not EXECUTED therefore does not comply- and they remain "in default" of s78 for ever and a day ( well they get time off for good behaviour after 6 years ) until they do comply- with all that that entails

 

No, no, no, no, NO!!!!

 

The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it

 

Note the use of those two little words, IF ANY. If there is NO agreement, it is impossible for them to magic one up (although many have tried LOL), and so it is unreasonable to say they are in default of the request.

 

BUT. If they do not supply an agreement because one does not exist, or is otherwise non compliant, then S127(3) becomes the defence, as that in itself becomes the reason for their not being allowed to enforce any alleged debt.

 

The danger then is in recent case law, which argues exactly what constitutes enforcement. Are they "enforcing" a debt by continuing to pursue a debt despite there being no compliant agreement? Probably not. But their own industry's codes of conduct should preclude their doing so in any case. Although we all know that they pay scant attention to that in reality.

 

So in all cases, it is important to read AND UNDERSTAND exactly WHY S127(3) is a defence, and to research what effects the 2006 amendments might have on that defence, and why. And to be honest, I consider it vitally important to read and understand the whole of the CCA 1974.

 

Too many people come on here expecting somebody to produce Magic Letters for them that will solve all their problems, without actually bothering to make any attempt whatsoever to glean any understanding of the very laws they are quoting on paper. And that's bloody criminal, IMVHO.

[vjohn82]

No, no, no, no, NO!!!

 

Note the use of those two little words, IF ANY. If there is NO agreement, it is impossible for them to magic one up (although many have tried LOL), and so it is unreasonable to say they are in default of the request.

 

Lots of companies get around this stating they will place the account on hold until a copy "is found" - very rare to get a company admit they will not hold one at all.

 

BUT. If they do not supply an agreement because one does not exist, or is otherwise non compliant, then S127(3) becomes the defence, as that in itself becomes the reason for their not being allowed to enforce any alleged debt.

 

Section 127 (3) is not a defence to documents which do not exist. If a document does not exist then no claim can be brought full stop. 127 is only applied to agreements which do not have the prescribed terms/or signed by the debtor; it's important to make this clarification.

 

The danger then is in recent case law, which argues exactly what constitutes enforcement. Are they "enforcing" a debt by continuing to pursue a debt despite there being no compliant agreement? Probably not. But their own industry's codes of conduct should preclude their doing so in any case. Although we all know that they pay scant attention to that in reality.

 

Recent case law suggests that using credit reference agencies for debts which are unenforceable because of a breach of the prescribed terms is the correct procedure because a debt exists. I would agree with this because it would offer any prospective lender an overview of that person's credit history. In a sense the fact it is not being paid at all is sufficient compensation for the debtor.

 

However, if the company cannot produce anything at all then nothing exists in law between creditor and debtor - nothing can be proved etc and this is where there are no precedents.

 

So in all cases, it is important to read AND UNDERSTAND exactly WHY S127(3) is a defence, and to research what effects the 2006 amendments might have on that defence, and why. And to be honest, I consider it vitally important to read and understand the whole of the CCA 1974.

 

Agreed... too many people expect miracles when in fact it takes a lot of time and effort to read and understand.

 

Too many people come on here expecting somebody to produce Magic Letters for them that will solve all their problems, without actually bothering to make any attempt whatsoever to glean any understanding of the very laws they are quoting on paper. And that's bloody criminal, IMVHO.

Agreed... It's those people who get tied up in knots on the phone or in the courtroom because they have made no attempt to understand the issues they are arguing. Very easy to be a puppet rather than the puppeteer.

 

 

Just my tuppence