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CABOT - resuming collections


meanbean
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Background:

Cabot took over Barclays/Littlewoods credit card A/C 2008

Other half initially made some monthly paytments that we couldnt really afford so eventually had to stop paying. Sent CCA to Cabots mid 2009.

 

After all these months have just received copy of agreement from Cabots together with a sample agreement (presumably because this is more readable), Financial and Related Conditions, and some copy statements.

 

Documents:-

http://i495.photobucket.com/albums/rr311/meanbean_27/Agreement.jpg

 

http://i495.photobucket.com/albums/rr311/meanbean_27/Sample.jpg

 

http://i495.photobucket.com/albums/rr311/meanbean_27/FandRC.jpg

 

Would be grateful if someone could take a look at the above and see if the agreement is really an agreement (it states application form?) and/or is it valid?

Disclaimer: Anything I write in these forums is my personal opinion and offered without prejudice. If in doubt, please seek independent legal advice.

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Guest Cartaphilus

Can't answer the rest but ... isn't there something I read about when a CCA is illegible? To me, it looks like they've sent you (certainly the first page) something it's extremely hard to tell what it says, looks badly photocopied for example.

Edited by Cartaphilus
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Whatever a debt collector sends you must be legible. Anything that cannot be read cannot be held to be compliant with the request. On that basis alone the matter is in dispute and remains so until Cabot provide proper, legible documents. Then you would be better placed to decide if the paperwork was enforceable. In my opinion Cabot know they don't have anything legible and are hoping (haha) that you don't know anthing better and will just pay up. They don't care if you can afford it or not.

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Looks to me as like an applic. form

 

1. There are no prescribed terms or reference to them on your agreement.

2. They have sent a 'sample' but there is nothing to prove that the sample they have sent would be an exact replica of your agreement, particularly the T&Cs that would have needed to be on the reverse of your agreement & referred to on Page 1 in order for this to be enforceable provided you signed it before 6 April 2007 i.e. prior to CCA2006 taking effect.

 

They have, however fulfilled their obligation under S78 by sending a reconstruction & are therefore entitled to demand payments. If you do not pay, they will probably take legal action. This may be the only way you will be able to resolve the enforceability issue but unless you are not prepared to defend, you should pay up now rather than later as it will cost you less.

Edited by foolishgirl
clarify

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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its a basic application form

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They've sent you the application which you signed but it doesn't contain all the prescribed terms so is unenforceable. Then they sent an agreement which does contain them but unless you are called;

 

Mrs AB Sample

Test Address Line 1

Test Address Line 2

Test Address Line 3

Test Address Line 4

Post CDE

 

Littlewood Account Number ZZYYWWVV

 

Then it definitely isn't your agreement. :rolleyes:

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All the documents supplied were separate sheets so the Financial and Related Conditions sheet they sent could belong to the copy of the signed application or the sample application/agreement.

 

Would the statement at the bottom of the signed application (just above "Post Your Application Today") tie the application/agreement and the Financial and Related Conditions sheets together?

 

Also this document was signed in May 2004 (if this is relevant)

Disclaimer: Anything I write in these forums is my personal opinion and offered without prejudice. If in doubt, please seek independent legal advice.

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Well it does say refer to the T&Cs but it doesn't say refer to the T&Cs overleaf, besides that it doesn't contain the banks details and address as one of the parties to the agreement that I can see. Nor anywhere for the bank to sign.

Anthrax alert at debt collectors caused by box of doughnuts

 

Make sure you do not post anything which identifies you. Although we can remove certain things from the site unless it's done in a timely manner everything you post will appear in Google cache & we do not have any control over that.

 

Vir prudens non contra ventum mingit

 

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Well just looking at the documents supplied again:-

 

The sample application/agreement is the same quality of print and colour contrast as the Financial and Related Conditions. Hence I think it would be reasonable to presume these two go together. However the signed copy application/agreement is different in quality and contrast (being much darker); hence reasonable to presume this document is 'on its own' so to speak.

 

Can someone confirm what prescribed terms must be on the signature document?

Disclaimer: Anything I write in these forums is my personal opinion and offered without prejudice. If in doubt, please seek independent legal advice.

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This link may help you meanbean:

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

 

This page contains the link to the 1983 Regs that specify the prescribed terms - it's No.3 - aswell s other useful info you may need:

http://www.consumerforums.com/resources/templates-library/57-statutes/176-consumer-credit-act-1974-and-related-regulations-

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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Anyone know what effect the wrong account number on a Notice of Assignemt has - does it make it invalid?

Disclaimer: Anything I write in these forums is my personal opinion and offered without prejudice. If in doubt, please seek independent legal advice.

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send em this

Account In Dispute

Ref:

 

Dear xxxxxx

 

Thank you for your letter of xxxxxxx, the contents of which have been noted.

It would seem that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1).

You have provided me a copy of an application form and I feel it is my duty to draw your attention to some serious flaws in your comments.

 

Firstly, to comply with section 61 of the consumer credit act 1974 which by the way refers to the signing of an agreement (Not an application), a document must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed

 

Now then, these regulations I refer to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). These regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI1983/1553 without the prescribed terms the agreement 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.

 

Now nowhere on the application form that you supplied is there any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect

 

Since the document you have supplied is a clear mailer application form, I cannot believe for one moment that these very important terms would be contained on the opposite side of the form, unless they are there for the postman to read while he delivers the mail. Therefore they must have been contained in a separate document, which is prohibited by the SI1983/1553, as there is no clear link to them within the signature document.

 

Therefore, you have failed to supply an enforceable document, which is correctly executed as to be so; it must conform to the Regulations under s60 CCA1974

 

I am of the opinion that a court is precluded from enforcing this agreement by s127 (3) CCA1974 as it is improperly executed under s61 CCA 74, the consequences of improper execution are set out in section 65 CCA 1974 and s65 sets out that only a court can enforce an improperly executed agreement subject to certain qualifications, one of those is that the document is signed and contains all the prescribed terms. Now since this document does not contain all the prescribed terms s127 (3) CCA 1974 strictly prevents the court from enforcing this agreement.

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading.

 

I respectfully request you review this matter in light of my comments above and I request that you supply me the required information or alternatively confirm the account is closed and the debt written off with a zero balance.

 

I respectfully request a reply within 14 days of the date of this letter.

Yours faithfully

 

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Anyone know what effect the wrong account number on a Notice of Assignemt has - does it make it invalid?

 

Bump re post #11 above

Disclaimer: Anything I write in these forums is my personal opinion and offered without prejudice. If in doubt, please seek independent legal advice.

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IMO it wouldn't make any difference if the acc. no was wrong on the Notice as long as you were able to correctly identify the account; however if the account number was incorrect in the Deed of Assignment, that would make a difference as it would not have been properly assigned to the assignor & the assignor would therefore not have a legal entitlement to the debt.

Any knowledge I possess or advice I proffer is based solely on my experiences in the University of Life. Please make your own assessment of legality, risks & costs before taking any action.

 

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