Cabot reckon they found Credit Card CCA BUT it is dubious

[vidrio]

Hi

I most appreciate the help from those that know about practices of a hated DCA well known here that has got a long fan club.....

questions??

1) over 2 years ago I requested a cca to a dca collector and then defaulted and closed account. It is an alleged credit card with

a bank

 2) After passing to many dca's, they finally got this hated dca

who every body know and alleged to own the debt but not NOTICE OF ASSIGMENT HAS BEEN received.

 3)Bearing in mind that the account has been in dispute since over 2 years ago and original creditor has also defaulted, this hated DCA send a letter that they will issue court papers even though no cca has been received from the oroginal cerditorcand bought an account already disputed. will that make any difference???

 3)A cca request was sent to this last hated dca then over a month ago and they defaulted but now out of nowhere they have sent some documents they alleged are the agreement. 

What they enclosed are: 

a) a non-enforceable agreement that say credit agreement but not credit card agreement. I has not account number on the agreement to be identified, above the address typed , the typed name is spelled wrong, it is crossed out and has got my name hand written on it by somebody. It has got a signature on it similar to mine but not the same as it has been traced and it is a long time since it was done.

the date next to the signature is hand written but changed from the originally year date written down to the sameone matching the date of the creditor stamp why??

 It is stamped by the original creditor and dated 

b)it has not pre-scribed terms and conditions next to the signature form but they sent a separate document papers saying these are the terms and conditions without any reference to the agreement in fact the so called agreement has not link page reference to those terms and conditions papers.

 c)No a single statement for this account has been received with these agreement and I am right that when a cca is done to a creditor those statements must be provided , is it not?

 d) Also no default notice 

e)Also not notice of assignment ever received 

have they got a case ??? 

f) Also it has the PPI ticked but it would be a mis sale because at that time I was not in permanent employment, just freelancing for fixed terrms for less than 6 months and it would be impossible to claim protection insurance 

those member to the hated dca fan club pinky, rhia, scabhunter please help !!! 

vidrio

[Crocdoc]

Stand your ground, based on the information provided it's Bull****

[vidrio]

any more comments please !!!

[PGH7447]

you sent a cca so you will only get the agreement or what they think is the agreement, you will not get the rest unless you send a sar.

 

although a dn would come from the OC

 

also either dispute it and try to get rid of it or claim ppi but you cant do both

[vidrio]

hi

thanks for your comment

but the CCA 1974 say very clearly that the creditor must provide " all information refer in it" including account statements and they have not been received,

also the agreement is just an appilcation form with somebody's name typed crossed out and then with a name handwritten by somebody and the signature is not the same as mine but similar.

have they defaulted???

vidrio

[babybear39]

What kind of account is it?

[ScabHunter]

Right, what we have here seems simple enough, provided this is an “agreement” which was signed before 6th April 2007.

We have an application form purporting to be an agreement, which contains none of the prescribed terms. That in itself is a complete defence in law.

CCA 1974 Section 61

61.—(1) A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b)the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

(2) In addition, where the agreement is one to which section 58(1) applies, it is not properly executed unless

(a) the requirements of section 58(1) were complied with, and

(b) the unexecuted agreement was sent, for his signature. to the debtor or hirer by post not less than seven days after a copy of it was given to him under

section 58(1), and

© during the consideration period, the creditor or owner refrained from

approaching the debtor or hirer (whether in person, by telephone or letter,

or in any other way) except in response to a specific request made by the

debtor or hirer after the beginning of the consideration period, and

(d) no notice of withdrawal by 'the debtor or hirer was received by the creditor or owner before the sending of the unexecuted agreement.

(3) In subsection (2)©, " the consideration period " means the period beginning with the giving of the copy under section 58(1) and ending—

(a) at the expiry of seven days after the day on which the unexecuted

agreement is sent, for his signature, to the debtor or hirer, or

(b) on its return by the debtor or hirer after signature by hum, whichever first occurs.

(4) Where the debtor or hirer is a partnership or an unincorporated body of

persons, subsection (l)(a) shall apply with the substitution for " by the debtor or hirer " of " by or on behalf of the debtor or hirer ".

 

CCA 1974 Section 127

127.—(1) In the case of an application for an enforcement order under—

(a) section 65(1) (improperly executed agreements), or

(b) section 105(7)(a) or (b) (improperly executed security instruments), or

© section 111(2) (failure to serve copy of notice on surety), or

(d) section 124(1) or (2) (taking of negotiable instrument in contravention

of section 123), the court shall dismiss the application if, but (subject to subsections (3) and (4)) only

if, it considers it just to do so having regard to—

(i) prejudice caused to any person by the contravention in question, and

the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135

and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or discharge any sum payable by the debtor or hirer, or any surety, so as to compensate him for prejudice suffered as a result of the contravention in question.

(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).

(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought. or

(b) section 64(1) was not complied with.

(5) Where an enforcement order is made in a case to which subsection (3) applies, the order may direct that the regulated agreement is to have effect as if it did not include a term omitted from the document signed by the debtor or hirer.

We also have a case where any default notice is bound to have been inaccurate, as PPI was blatantly mis-sold, but would have been included in the amounts on the DN.

Point these facts out to Crapbot, but don't expect them to take any notice.

Read the relevant parts of the Act, Section 87 and 88 as well as the ones printed above, and read the cases of Wilson v Hurstanger and Woodchester v Swayne. You will then know what to include in your defence should Crapbot go to court.

I am in a very similar position with this rabble.

Appo form completely devoid of prescribed terms,

PPI added despite the fact that I declined it on the appo form,

and I wouldn't have qualified for it anyway.

My defence is already written,

I am just waiting for Crapbot to pull the trigger.

 

SH

[vidrio]

they alleged it is a credit card!!! but it is not stated in the so called application form,

just a credit agreement regulated by the cc 1974!

anybody know where to find the full script for the Woodchester v Swayne case thanks

any comments please

[babybear39]

Case

 

Hope this helps.

[vidrio]

Hi

 

Yes very useful but also if they have not supplied any account statements after a CCA request wouldn't that constitute a creditor default also since I have not received any account statements

 

it is quoted that under the CCA 1974,

 

"78 Duty to give information to debtor under running-account credit

agreement

(1) 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, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to

refer,—

(a) the state of the account, and

 

 

(b) the amount, if any, currently payable under the agreement by the debtor

to the creditor, and

 

© the amounts and due dates of any payments which, if the debtor does

not draw further on the account, will later become payable under the

agreement by the debtor to the creditor.

 

 

 

(2) If the creditor possesses insufficient information to enable him to ascertain the

amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that

paragraph if his statement under subsection (1) gives the basis on which, under the

regulated agreement, they would fall to be ascertained.

 

...

 

4) Where running -account credit is provided under a regulated agreement, the creditor

shall give the debtor statements in the prescribed form, and with the prescribed contents—

 

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

 

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account. "

 

isn't it true that by not receiving any account statements from the creditor after a CCA 1974 REQUEST and 12 days have lapsed, they would also have defaulted due to

 

CCA 1972 SEC 78 (1) ©, sec 78 (2), sec 78 (4) (a) and (b)

 

anybody please

 

thanks

[Fred Bassett]

Cabot are well known for this - especially the non-provision of notices of assignment. I posted a thread on this sometime back and I think I will resurrect it. There have been quite a few threads on this lately and it would be nice to be able to use the collective evidence on here to at least call into doubt that these NOAs have happened should somebody get taken to court by Cabot.

 

I don't know if I'm talking pie-in-the-sky or not, but I think it's worth looking into. It's difficult to prove that something didn't happen but the weight of circumstancial evidence must be stacking up against Cabot now.

 

Stand by for a generic "The NOA got sent and this is what it would have looked like" letter from Cabot.

 

Regards.

 

Fred

[vidrio]

hi

 

thank you for your reply.

 

the thing is I have not received any Notice of assignment and not default notice...and they said they take me to court!!!

 

just a matter of interest what should be the content of Notice of Assignment, i.e a must to be enforceable. Is it just the full amount of the sale or balance of the account and the account number ???

 

any more comments please,

 

thanks

Edited December 16, 2009 by vidrio

[Aristoc]

It sounds like you have a good case anyway, but I thought I would point out that 78(4) does not relate to 78(1). Section 78 is not a 'CCA Request Section' with blanket rules for all CCA requests. Subsection (1) and subsections referencing subsection (1) are the only parts relating to CCA requests.

[Brent-London]

My advice is to just IGNORE them.

 

If they really think they have a case, they will take you to court.

 

Engaging with the likes of Cabot by sending letters back and forth just stresses you out for no good reason.

 

Ignore it. It may well go away if they know they have no case.

 

If they are stupid enough to launch court action - which will COST them so they are trying to bully you in the meantime - you have a perfect defence (no prescribed terms)

 

DO NOT speak to them on the phone

 

FILE their letters but DO NOT reply.

 

Its the best approach!

[vidrio]

Hi

 

thanks you for your comment but CCA 1974 SECTION 78 (4) says clearly that

 

(4) Where running -account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

 

(a) showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b) where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

 

Now they were requested and wouldn't it be considered "unfair relationship" under the CCA 1974 sec 140 (1) ©,

 

140A Unfair relationships between creditors and debtors

 

(1) The court may make an order under section 140B in connection with a

credit agreement if it determines that the relationship between the

creditor and the debtor arising out of the agreement (or the agreement

taken with any related agreement) is unfair to the debtor because of one

or more of the following—

(a) any of the terms of the agreement or of any related agreement;

(b) the way in which the creditor has exercised or enforced any of

his rights under the agreement or any related agreement;

© any other thing done (or not done) by, or on behalf of, the

creditor (either before or after the making of the agreement or

any related agreement).

 

any comments please...

[Brent-London]

All of this is completely irrelevant - there is NO COURT CASE on foot at the moment right? You have a perfect defence in terms of the lack of prescribed terms anyway.

 

So just ignore them - engaging with Cabot in any way shape of form and trying to get them to see reason is a pointless waste of your time. I know from experience!

 

Unless and until they ACTUALLY issue court proceedings (which is unlikely!) just file the letters and ignore them.

[vidrio]

Hi

 

Thank you so much for your help..........

 

But I have a question if I have not received any statement after a CCA 1974 sec 78 request would that still constitute a creditor default status or do I have to send SAR to get those statments?? I need to be clarified about this!!!

 

Also if they change the typed name on the agreement with a different handwritten name, will that make it void since it was raised to a different consumer name but then crossed out

 

and also the date on the signature was also changed to make it the same as the creditor stamp

 

oddd!!!

 

what regulations will that breached!!!

 

vidrio

[Aristoc]

The request was made under 78(1) because it is a running-account credit agreement. It was not made under section 78 alone. Only section 78(1) provides for the debtor to request a true copy of the credit agreement and...

 

...of any other document referred to in it, together with a

statement signed by or on behalf of the creditor showing, according to the information

to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

This is what the creditor is obligated to provide under 78(1) when the maximum fee of £1 is supplied with a written request.

 

Section 78(4) says that for running-account credit agreements, the debtor must be provided with regular statements in no more than 12 month intervals, unless the debtor is required under the agreement to make payments for activities on the account within a specified period. Under these circumstances the creditor must provide information at the end of each such period which is exactly what a credit card company does - they issue monthly statements detailing charges and interest and the running account balance.

 

78(4) is in no way connected to 78(1) other than that they both relate to running-account credit. You will see that section 79 relates to hire purchase agreements and that section 77 relates to fixed account credit. That is the intention in the grouping of subsections. Section 78 is not 'all about CCA requests' and a creditor is not required to provide account statements when a request under 78(1) is made.

 

Sorry, other than this you have a good strong argument, but I think its important we clear this up incase you decide to pursue it.

Edited December 16, 2009 by Aristoc

[vidrio]

many thanks

[Aristoc]

No problem. You had me confused for a bit too which is why I went and checked. Remember you still have an unenforceable credit agreement with which to knock any case they bring to you right out of the park. If you still want those statements though, issue them a SAR.

[angry cat]

IGNORE>>Totally agree!

AC

[vidrio]

Hi

any SAR template I could use please. thanks

vidrio

just subbing

any more comments please

thanks

[angry cat]

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

[Brent-London]

If nothing has been provided after a s.78 request, then yes, they are in default. But remember, this can be remedied by provision of the data at any time, so its in no way complete defence.

As for making anything "void" by changing the name - I'm sure Cabot will say it was you who did that, but that's for them to prove - IF it goes to court! Sometimes, details can be changed for legitimate reasons (eg: they just got your name wrong). I don't think that itself would invalidate the agreement if it can be shown that you accepted it and got a card etc.

Changes to the date would be of no legal consequence I don't think - we all write a date wrong from time to time then alter it. It certainly would not be grounds to say the whole thing is void.

Your killer argument is that there are no prescribed terms. Referring to them in a separate unsigned document is of NO LEGAL EFFECT despite what Cabot will try to tell you about it being "embodied". They are wrong and they know it, they just try to bamboozle people with no legal knowledge. Lack of the prescribed terms that is an absolute defence and they must know that!

I go back to what I said before - simply IGNORE Cabot. Engaging with them and trying to get them to see reason is a pointless waste of your time and effort.

Confucius said "Mind games only work with a man who wants to play". So, don't play!

Unless and until they actually file court papers, IGNORE THEM and get on with your life

[Aristoc]

I dunno you know. Would it not look better to a judge if you informed them at least once that you believe the agreement to be unlawful? I'd be very tempted to send one of the templates stating the agreement is unenforceable and requesting they remove your data from their files as per DPA yadda yadda yadda and THEN cease contact.

 

That way yes, you've wasted time on another letter, but you can prove to a judge that upon receipt of the alleged agreement you informed them that they had no legal right to pursue the debt and STILL they persisted.

 

Any thoughts on this?