Cabot / morgans on Goldfish card - Help With Disclosure - ***WON***

[colin21958]

Hi,

 

Cabot Financial have started a claim against me for a Goldfish credit card which I defaulted on a long time ago now. They issued the claim back in February this year and I have now received notice from the court that the case has been allocated to the Fast Track (the claim is for over £9000). I submitted a "holding" defence along the lines that they were making a claim based on a contract that they have been unable to produce a valid copy of and that I had not been served with a default notice or notice of assigment. With the intention of submitting a full defence once I had got hold of the copy agreement, default notice and assigment notice, etc.; I have tried requests under CPR to obtain the documents from them which I need but they just ignored my requests. I sent two requests for these, both sent recorded, but received just a copy of the agreement which I already had and a statement that they didn't need to provide the other documents! I then made an application to the court to strike out the case as they had failed to comply, but this seems to have been ignored by the court! I have had no response from them with regard to my application and then I received this notice from the court which orders the disclosure, etc.!

 

The court notice indicates that disclosure is to be by list to be served no later than 4:00pm on Friday 7th May 2010 (this week.). I was a little naive as to what "disclosure" was and thought this meant sending a list of documents you wanted to examine, I have since found out it is disclosing a list of documents you have in your possession. So, as I don't actually have any documents, other than copies of ones the other side have sent me, what should I do? Do I need to list these? I still want to see a default notice with proof of posting also an assignment notice with proof of posting, as these have not been received by me at any time and I am therefore expecting that they will be unable to provide them. I have already asked for these but they replied that they didn't need to provide them! I wrote back telling them that they did! I also want to see the original agreement (assuming they had such a thing) as the copy they have provided is clearly just an application form with no prescribed terms; but they just keep sending the same thing!

 

I would appreciate any assistance and advice with this; especially what I put on the disclosure list which I will need to post tomorrow (Thursday pm at the latest!) Thanks.

 

Colin.

[hammyhound]

List everything you have, even the documents the other side have sent you. Don't miss anything out as when it comes to trial if you find something you didn't list you can't use it as evidence.

 

List all documents and correspondence between you.

 

Once you receive the other side's back you can then request what you haven't got - or in my humble opinion ask for every document on their list.

 

HH

[colin21958]

Thank you HH.

 

I will do as you suggest.

 

Colin

[colin21958]

Hi,

 

I have today received their list. I notice that their list does not include the notice of default. I assumed they needed to show that this notice has been issued correctly, even if it was issued by the previous owner of the debt; they are saying they don't need to produce it because they don't see themselves as the creditor! I explained to them in a previous letter that when they purchased the debt they took on all responsibilities and duties of the creditor. I am presuming I am right, but would welcome anyone's input on this.

 

They have also listed as one of the documents a "Copy 'Representation' of the Notice of Assignment"! So, it sounds like they don't have the original Notice of Assignment and are planning to present a "true copy" (i.e., reconstructed or, more likely "fabricated" version!), I would suggest also that they therefore probably have no way of proving it was ever posted! (I never received any notice to my knowledge or recollection!).

 

They list as one of the items "Credit Agreement relating to the defendant's account...", suggesting they have an original, so it will be interesting to see that, because the copies they have sent me are illegible photocopies of a scanned copy (I will post up here was I was sent earlier for anyone to examine and when I get a copy of the original I will post that up too).

 

Various other things are listed, such as statements, etc.

 

I shall now send them a request for everything on their list.

 

I also notice that they sent their list on a form "List of Documents; Standard Disclosure", I wasn't aware that this form existed and therefore didn't send one, I just sent them a letter which listed all the documents. Is this going to cause me any problems?

 

I would appreciate all the help I can get, as you can tell from the above I have no knowledge of court proceedings and will keep making cock-ups I expect, unless I can get help! Thanks a lot for any input.

 

Colin

Edited May 9, 2010 by colin21958

[colin21958]

Here is the Application form (which they regard as the regulated agreement):

http://s1047.photobucket.com/albums/b471/colin21958/Goldfish/?action=view&current=GoldfishApplicationForm.jpg

 

and here is the Terms and conditions (Note that the application refers to a "Conditions of Use", but nowhere can I see reference to terms and conditions!):

http://s1047.photobucket.com/albums/b471/colin21958/Goldfish/?action=view&current=GoldfishTCs.jpg

Here is a link to the album holding both these documents:

http://s1047.photobucket.com/albums/b471/colin21958/Goldfish/

Edited May 7, 2010 by colin21958

[colin21958]

Anyone like to take a look and let me know their opinions? Thanks

[Guest]

colin, it seems that most of what you've posted up is illegible. is the hard copy you actually received legible?

[colin21958]

No Ford, all the copies I have received (3 of them) are all illegible; this one is the best of the three!

[colin21958]

Hi,

 

I have today received their list. I notice that their list does not include the notice of default. I assumed they needed to show that this notice has been issued correctly, even if it was issued by the previous owner of the debt; they are saying they don't need to produce it because they don't see themselves as the creditor! I explained to them in a previous letter that when they purchased the debt they took on all responsibilities and duties of the creditor. I am presuming I am right, but would welcome anyone's input on this.

 

They have also listed as one of the documents a "Copy 'Representation' of the Notice of Assignment"! So, it sounds like they don't have the original Notice of Assignment and are planning to present a "true copy" (i.e., reconstructed or, more likely "fabricated" version!), I would suggest also that they therefore probably have no way of proving it was ever posted! (I never received any notice to my knowledge or recollection!).

 

They list as one of the items "Credit Agreement relating to the defendant's account...", suggesting they have an original, so it will be interesting to see that, because the copies they have sent me are illegible photocopies of a scanned copy (I will post up here was I was sent earlier for anyone to examine and when I get a copy of the original I will post that up too).

 

Various other things are listed, such as statements, etc.

 

I shall now send them a request for everything on their list.

 

I also notice that they sent their list on a form "List of Documents; Standard Disclosure", I wasn't aware that this form existed and therefore didn't send one, I just sent them a letter which listed all the documents. Is this going to cause me any problems?

 

I would appreciate all the help I can get, as you can tell from the above I have no knowledge of court proceedings and will keep making cock-ups I expect, unless I can get help! Thanks a lot for any input.

 

Colin

 

Can anyone comment on this post please?

 

I need to send my request for documents, but I want to make sure I know what I am entitled to ask for as far as things like the Default Notice, Notice of Assignment (original), etc., is concerned. I also intend to ask for sight of the original agreement for which I will offer to visit their offices.

 

Perhaps someone could help me with suitable wording for this letter?

 

Thanks in advance for your help...

Edited May 9, 2010 by colin21958

[debbbbsy]

If the original creditor did not issue a default notice, then Cabot have no legal entitlement to issue the claim. The account should not have been passed for collection.

Without this vital document, you must challenge Cabot.

 

This is what Santander told me when CL finance withdrew their claim,

".......this debt was incorrectly sold to CL Finance, due to the default notice not being issued ".

So ineffect, they have said that the notice of assignment & all court action undertaken by CL is void, as if it should never have happened.... all because they did not issue a default notice.

 

I have looked at many threads, & most judges who understand the law, will throw this case out if they cannot produce the default notice. The legibility of the Agreement, shouldn't even be discussed. The first & important issue for the judge to consider is, are Cabot legally entitled to issue court proceedings ? If there is no default notice, the answer is NO. Case over. It should last about 5 minutes. Unfortunately there are a few stupid judges, so you need to have all your facts, & case law, which will be your opening defence. Do not give the judge the opportunity to deviate from this lawfull requirement.

 

Debs

 

Good Luck

[colin21958]

Thanks for your swift response Debs; I was still editing the post when you responded!

 

What you have said is what I thought as well, also from reading other posts. Do you have any idea of the relevant sections of the CCA to refer to? If not I will do some more searching! Don't they also need to prove that the Default Notice was posted (asuming they did eventually produce one)?

 

Also, what is the situation if they can't produce the original Notice of Assignment and proof of posting of that document?

 

Colin

Edited May 9, 2010 by colin21958

[debbbbsy]

I think for the moment, you should concentrate on the lack of a valid & vital default notice.

Surely if they had one, they would have produced it by now. There claim against you is pivotal to this document. Without it, they shouldn't even be issuing the claim.

 

Take a look at the CCA 2006 amendments. Do a google search.

 

Debs

[Valdez is Coming]

Subbing with interest

I have a similar case - no default notice or termination notice from OC

before they passed debt to DCA who have issued a statutory demand.

Can anyone confirm for sure that OC havs acted incorrectly and point us to the relevant CCA section(s)?

Very best wishes to you Colin!

[colin21958]

Here is my reply to their disclosure list letter. I would appreciate any suggested improvements/advice/information/help that anyone can offer. Thanks...

 

Morgan Solicitors.

PO Box No. 250.

West Malling,

Kent.

ME19 4EX.

9th May 2010

Cabot Financial v xxxxxxx (A/C No: xxxxxxxxxxxxx)

 

Dear Sirs,

 

Thank you for your letter of 06/05/10 and the enclosures therein. I have noted the documents you have listed on your standard disclosure list and hereby request copies of ALL those documents you have listed and of which you say you have no objection to me seeing; of course I undertake to reimburse you for your reasonable copying costs in relation to providing these; please let me know what these are and I will send you payment on delivery of the documents.

 

You assert in your list that you hold the original Credit Agreement and I would therefore ask both for a copy of this document and also to be given sight of this original document in person; I can attend your offices at a mutually convenient date and time for this purpose; please suggest a date and time for this appointment. Perhaps you could also confirm whether or not this is the original document of which I have already been provided several illegible scanned copies? As this is such an important document I wish to examine it physically as I am entitled to do under the CPR rules.

 

I note that you have not listed a Default Notice in your list, whereas, of course, before legal action can be taken in an attempt to enforce an account this must have been issued correctly in accordance with Section 87(1) of the Consumer Credit Act 1974. Your client must prove that this was issued by the previous creditor in accordance with the CCA rules; I therefore require a copy of the original Default Notice together with proof of posting; if you do not hold this original document you should locate and obtain it for the purposes of these proceedings; if you are unable to produce this document you should inform me of this by return; Without this document Cabot Financial have no legal right to bring legal action in respect of the account and I will then apply to the court to strike it out.

 

A Notice of Assignment must also be served on the debtor before any enforcement action can be taken by an assignee of the debt and this was not done. No Notice of Assignment was received in relation to this account. You have said in your list that you hold a “Representation” of this document and by this I assume you mean a “reconstructed” version and not a genuine copy of an actual document. This is not sufficient for bringing court action; as you must be aware, the original Notice of Assignment and proof of posting/delivery will be needed at the hearing in order to prove that this was issued in accordance with section 136 of the Law of Property Act 1925; if you do not hold this original document you must locate and obtain it, if you are unable to do this you must confirm this by return. Without this document Cabot Financial have no legal right to bring legal action in respect of the account and I will then apply to the court to strike it out.

 

You should therefore contact your client and obtain these essential documents and provide me with them, together with proof of posting/delivery, by the deadline date set by the court for copies to be supplied and for inspection of documents; this as you are aware is 21st May 2010.

 

Yours faithfully,

 

etc...

Edited May 9, 2010 by colin21958

[debbbbsy]

Looks good, I would end the letter with something along the lines of " If you continue with this claim,without the legal docs you rely upon to enforce judgment, you will be liable for all court costs & all my costs incurred in defending this unlawful claim (as a litigant you can claim £9.25 per hour plus photocopying & postage), I therefore give you this opportunity to withddraw your claim.

 

Debs

[colin21958]

Thanks Debs,

 

Excellent idea; I will add that as well.

 

Regards,

 

Colin

[colin21958]

Subbing with interest

I have a similar case - no default notice or termination notice from OC

before they passed debt to DCA who have issued a statutory demand.

Can anyone confirm for sure that OC havs acted incorrectly and point us to the relevant CCA section(s)?

Very best wishes to you Colin!

 

Thanks for your kind wishes. I know that the Default Notice should be in accordance with Section 87(1) of the Consumer Credit Act 1974 and the Notice of Assignment is governed by section 136 of the Law of Property Act 1925. Though I have to admit that I haven't read these in great detail yet; I have just gone by information found on other threads up to now.

 

I wish you all the best too; do you have a thread I can follow as well?

 

Regards,

 

Colin

[hammyhound]

Colin,

 

don't offer to pay any of the photocopying charges for the documents. You are perfectly entitled to see them "free of charge" so to speak. Take that out of your letter. You might have to ask for the number of the documents. Just to clarify with them so say the documents are numbered 1 to 20 ask for 1 to 20 or 1 to 26 or whatever. Say I request copies of numbered 1 to whatever in your list.

 

As said before the rest of the letter is fine.

 

HH

[colin21958]

Hi HH,

 

Are you certain about not having to pay for photocopying? I only question this because I have seen in many places that you should offer to pay, especially if you request "everything"? If you are certain I will remove this bit. Thank you for suggesting requesting documents by number I will definitely add that.

 

Regards,

 

Colin.

[hammyhound]

Why should you offer to pay, if they turn around and say "well that's gonna cost you so much" wouldn't you say that is obstructing the court process.

 

If you feel you want to that's entirely up to you but when I requested mine didn't offer any money and the documents were sent to me and by the way this amounted to nearly 200 pages - how much do you think that could have cost!!

 

Dont mention it in the letter and see what happens.

 

HH

[colin21958]

Why should you offer to pay, if they turn around and say "well that's gonna cost you so much" wouldn't you say that is obstructing the court process.

 

If you feel you want to that's entirely up to you but when I requested mine didn't offer any money and the documents were sent to me and by the way this amounted to nearly 200 pages - how much do you think that could have cost!!

 

Dont mention it in the letter and see what happens.

 

HH

 

Thanks HH, that makes perfect sense, so I have removed that offer!

 

Regards

 

Colin

[colin21958]

Hi,

 

I have received another letter from Morgans Solicitors who seem to be saying that they don't think that the need for a default notice applies; they just quote the sections 87 and 88 to justify this. I can't see why a default notice would not be required, although there is one section (88 (3) See below) which mentions circumstances in which it doesn't. However, I don't understand what it is saying! (Is it just saying that only one default notice is require regardless of how many breaches there are?) Can anyone cast any light on the meaning of this section please? Thanks...

 

88.-(1) The default notice must be in the prescribed form

and specify-

(a) the nature of the alleged breach

(b) if the breach is capable of remedy, what action is

required to remedy it and the date before which that

action is to be taken ;

© if 'the breach is not capable of remedy, the sum (if

any) required to be paid as compensation for the

breach, and the date before which it is to be paid.

 

(2) A date specified under subsection (1) must not be less

than fourteen days after the date of service of the default notice,

and the creditor or owner shall not take action such as is

mentioned in section 87(1) before the date so specified or (if

no requirement is made under subsection (1)) before those

fourteen days have elapsed.

 

(3) The default notice must not treat as a breach failure to

comply with a provision of the agreement which becomes

operative only on breach of some other provision, but if the

breach of that other provision is not duly remedied or compensation

demanded under subsection (1) is not duly paid, or

(where no requirement is made under subsection (1)) if the fourteen days mentioned in subsection (2) have elapsed, the creditor or owner may treat the failure as a breach and section 87(1) shall not apply to it.

 

(4) The default notice must contain information in the prescribed

terms about the consequences of failure to comply with

it.

 

(5) A default notice making a requirement under subsection (1) may include a provision for the taking of action such as is mentioned in section 87(1) at any time after the restriction imposed by subsection (2) will cease, together with a statement that the provision will be ineffective if the breach is duly remedied or the compensation duly paid.

 

Interestingly they have admitted that they have no original agreement because they say it is standard banking practice to destroy documents over 6 years old! (Reckless if the document is a CONTRACT I would say!).

 

They have also indicated that the notice of assignment was sent to the last known address and say this is all that is required! I believe I am right in saying I can demand proof of posting at least, then DELIVERY is covered by the act as having taken place whether or not it did. However, they clealy have no proof of posting or they would have said so.

 

Comments on all this would be gratefully received. Thanks.

 

Colin

Edited May 13, 2010 by colin21958

[Guest]

colin, a dn IS required.

 

87.

Need for default notice.

— (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement

(a)

to terminate the agreement, or

(b)

to demand earlier payment of any sum, or

 

©

to recover possession of any goods or land, or

 

(d)

to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)

to enforce any security.

 

 

imo, s88 3 means that if another provision in the agreement comes into play following an 'initial' breach (which requires a dn as above) then that 'linked' provision may not be treated as a breach if that 'linked' breach is remedied, or the 'initial' breach is remedied. but, if the 'initial' breach is not remedied, then the 'linked' provision (which then comes into play) may be regarded as a breach and may not require an additional dn.

but a dn is required in the first place.

hope this makes sense!

 

ps, some further info re dn

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

Edited May 14, 2010 by Ford
ps/typo

[colin21958]

colin, a dn IS required.

87.

Need for default notice.

— (1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice ”) is necessary before the creditor or owner can become entitled, by reason of any breach (my emphasis) by the debtor or hirer of a regulated agreement

(a)

to terminate the agreement, or

(b)

to demand earlier payment of any sum, or

 

©

to recover possession of any goods or land, or

 

(d)

to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred, or

 

(e)

to enforce any security.

 

 

imo, s88 3 means that if another provision in the agreement comes into play following an 'initial' breach (which requires a dn as above) then that 'linked' provision may not be treated as a breach if that 'linked' breach is remedied, or the 'initial' breach is remedied. but, if the 'initial' breach is not remedied, then the 'linked' provision (which then comes into play) may be regarded as a breach and may not require an additional dn.

but a dn is required in the first place.

hope this makes sense!, and hopefully it will be corrected if wrong!

 

ps, some further info re dn

http://www.consumeractiongroup.co.uk/forum/show-post/post-2166205.html

 

Hi Ford,

Thanks for your opinion and that is pretty much the impression I got from it as well, but it's just worded in such a complicated way that it doesn't seem so clearly and logically defined as most written law does! I would of course still be interested to hear what others might think! Thanks again.

 

Colin.

[colin21958]

Morgans have said in their letter that they don't need a default notice because they are not taking any of the actions described in s87 and instead they are only demanding arrears, however, in the Court Claim form they have claimed for the full amount of the debt plus interest and costs, etc., and in a letter from them dated 26/01/10 they stated as follows:

 

"Your account is currently in default. Despite previous correrspondence and requests... etc... Accordingly, the outstanding balance is now payable immediately".

 

Are they not saying that a default notice (should have) has been issued (one definitely NEVER was!) and that they are now terminating the account!? (without having issued a DN!)

Edited May 13, 2010 by colin21958