Cabot CCA and follow up - help please?

[weeble69]

I've moved this from another thread so it relates to the right bunch of sharks........

 

Following advice from Silverfox and others here, I CCA'd Cabot for an old Providian CC account.

 

I got the following in reply:

 

Here you go:

 

 

Interesting I cant read the name of the provider at the bottom?? But Providian is mentioned in the signature box. Also, the T&Cs provided are from Monument, who were not the original providers, I think this was a Style store card.

 

Again, following advice from Silverfox, I disputed the materisl they sent with the template from this forum and and had this reply today:

 

 

 

 

 

 

 

 

the credit agreement again.

 

 

This time they have sent another lot of t and cs over which do have providian printed on them, but I still dont know if thery relate to that reply card?

 

I checked the sticky about enforceable agreements, and it says all of the following should be present and clearly stated:

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

 

There is a table stating the APRs relating to the account, but nowhere is a credit limit set out nor is there any reference, as far as I can see to the points highlighted in section B

 

I'd welcome some more expert input on this!

[weeble69]

If Im wasting my time with arguing with them over this folks, I'd rather someone tell me. I can then at least try to negotiate with them and put this to bed....... it's getting to me now, not sure I have got any fight left to be honest.......

[cerberusalert]

It's garbage... an application which doesn't contain the prescribed terms.

[cerberusalert]

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document 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.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance 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

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. 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

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[weeble69]

edited last post, cerebusalert, my thanks.

 

the t and cs the sent with the above document do contain a table showing the APR, but I see no credit limit set out nor any of the other terms. Woul it help if I post them up?

 

Again, thanks, it was starting to get on top of me.

[weeble69]

Reading through the letter, and trying my hardest to understand the legal jargon, am I right in thinking that an enforceable agreement should itself contain all the prescribed terms on the actual document, and not just in any t and c's, attached or otherwise?

 

I do not recall ever being given a letter or anything else which stated a credit lkimit for the card.

[harrassed senior]

Yes, all requirements that are needed to make an Agreement enforceable should be contained in 'the four corners of the Agreement' meaning they should be an integrated part of the Agreement and no refered to as 'attached' etc.

 

The document is headed 'Reply Card' Not 'Agreement, and it clearly states on the bottom that it is subject to Credit Approval, so it is definitely an application for credit and not a legally binding Agreement.

[weeble69]

Thanks harrasedsenior, I'm beginning to have a vague understanding of the legal stuff!!

[debt4get]

usual smoke and mirrors letter by cabot...look at the sentence 'a regulated agreement is not properly executed.....is signed in the prescribed manner by both the debtor......and then they forgot to finish 'and the creditor'

[debt4get]

Your reference

 

 

With reference to your letter dated

 

I believe that what you have replied with to my concerns regarding the alleged CCA, is nothing more than ‘smoke and mirrors’ and has been selectively designed in order to confuse and deceive.

A copy of your letter will be sent along with my complaint to the OFT alongside this letter detailing your points.

I draw your attention to the Consumer Credit Act 1974, S61(1) and your response, where you have stated

‘A regulated agreement is not properly executed unless

(a) A document in the prescribed form itself containing all the prescribed terms and conforming to the regulations (Consumer Credit (Agreement) Regulation 1983) under section 60(1) is signed in the prescribed manner both by the debtor…

You conveniently forget to add the ending to this part of S61(1), which actually states

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.

In other words, for a regulated agreement to be properly executed, ALL THREE CONDITIONS must be met. Condition a), which must be met, could scarcely be more explicit - "a document in the prescribed form itself containing all the prescribed terms"

 

If you read the entire Section 61(1) as I have quoted it above, it is impossible to understand how anyone could consider that the prescribed terms can be in another document. The word "embody" clearly has no such meaning.

Perhaps you would be so kind to point out in the document that you supplied where the creditor has signed, and where the prescribed terms are within this document because as much as I peruse the said document I am unable to find these important omissions.

 

 

I await your response that this account is now closed and my balance reverted to zero

yours

 

 

send em this it is the usual crapbot smoke mirrors and lies letter

[weeble69]

lol, brilliant, spoilt for choice now! I can see their faces reading that, best chuckle I've had in ages!!

[weeble69]

Hi all,

 

sent the letter above to Cabot some time ago, and all went quiet. Today I have had a letter from FIRE (Financial Investigation and Recoveries) "Notification of Instruction to Collect"

 

So,Im guessing thst means Cabot have given up and send it elsewhere, do I now have to go through all this again with FIRE??

 

Should I start by CCAing them? Crapbot clearly didnt have a proper credit agreement, so I doubt if these people will.......

[cerberusalert]

Send them this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

[debt4get]

fire is cabot and cabot is fire..they are the same company..usual smoke mirrors and lies from crapbot

[weeble69]

Thanks both, will send the letter Monday. debt4get, had a feeling that may be the case........