Capital One and Cabot Financial

[Angry mum]

Ok, 15 years ago we took out a Capital One credit card, 11 years ago after me losing my job ran into financial difficulties. Our finances were taken over by Eurodebt for 3 years, after that we continued on our own sticking to the agreed payments set up by ED. We later had a letter from Cabot Financial saying they had bought the debt and insisted we pay more than we could afford, and wouldn't accept anything less, threatening us with Ext Debt Collectors and County Court Judgements.

 

After looking through this site and reading up, we sent them a letter under the Consumer Credit Act, and asked for signed agreements between us them THEM....they sent us copies of the original signed agreement with Capital One.

 

Today we've received yet another threatening letter, how do we stand as we didn't take this debt out with Cabot?

 

Thanks and sorry if it's posted in the wrong place.

[alfwithhair]

Firstly Cabot are a bunch of legalised extortionists.

You decide how much you pay them, not the other way round, personally I wouldn't pay them anything, but thats me. I hate the company.

 

Yes, they may well have bought the debt, but doesn't give them any right to collect on it unless they have they correct paperwork.

 

You say you have received a signed copy of your agreement with Capital One, I will safely say that if this account is 15 year old, the chance of what they have sent being enforceable is nil.

 

Any chance you could scan/photograph this so called agreement (minus your personal details) so we can check it?

 

As for Cabots threat they are just that threats.

Cabot are full of s**t.

They can do nothing without first going to court and WINNING

don't be intimidated by these parasites.

Never ever contact them on the phone and if they ring you refuse to answer their security question and put the phone down.

 

Before we give any details of the next cause of action we need to assertain if this agreement is enforceable.

[Angry mum]

This is the best I can do, other than sending it via e-mail

 

[miss muppet]

Looks like Alf is right, that is an application form and almost certainly unenforceable.

[miss muppet]

and here's why:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

[Angry mum]

Thanks for all your help, have spent quite a few hours reading and am some what wiser for it, thanks again.

[alfwithhair]

As I suspected, the usual pre contractual application tosh containing none of the prescibed terms

 

Tinker with this letter

http://www.consumeractiongroup.co.uk/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

and send it the West Malling Muppets by recorded and do not sign it.

 

Do not pay them anything

Do not speak to them on the phone

Do not give them any personal or banking details.

If they ring you refuse to answer their security questions, tell them in writing only on put the phone down.

 

Be prepared for a bararge of abuse and threat via letter from them, but stick to your guns and ignore what ever they tell you, its all lies and they know it, they are just on the look out for a soft touch to exploit.

 

Once they know you are having none of their old toffee the number of letters will decrease.

 

They will never comply fully with your request, I have never seen an enforceable older Crapital One agreement yet

[chancerylawyer]

The first thing to remember about the assigning of debts is that the Law of Property Act is applicable in the circumstances. However, that the common law, a debt collection company has every right to take an action against you either as an agent of the creditor or as the legal owner of the debt following a notice or deed of assignment.

 

I wasn’t sure from your post if you are saying that the debt that they are claiming as falling against you actually does? Or, if you are contesting it? If you are contesting the debt, then you should inform this company immediately of the fact that you are doing so.

 

I would also suggest that you ask for evidence from the company that the debt has been uniquely assigned to them in accordance with current law. It should not take any action to pay them unless you are satisfied that they have a lawful right to collect the money on behalf of the bank. In terms of enforceability of the agreement, although I’m not in possession of all the facts, it appears that you have acknowledged that it by going through an agency such as Eurodebt, and I do not think that it is statute barred under the Statute of Limitations.

 

On looking at the agreement however, it seems that it looks unenforceable. It would be up to the court to decide upon the application of the creditor, or if you sort a declaration under the Consumer Credit legislation.

 

You should remember that they cannot and take any enforcement action against you until the matter is heard by the County Court and they have obtained a warrant of execution to allow bailiffs to visit all premises. I would put your mind at rest in terms of the idle threats they appear to be making until obtaining such a judgement against you. I don’t think they would dare go to court armed with that evidence, but you never know.

 

If they do harass you in the meantime remember: In terms of the debt collection company harassing you, you should inform them in your letters that you believe the pressure they are applying to extract the debt from you falls under section 40 of the Administration of Justice Act 1970.

 

This Act creates the offence of the unlawful harassment of debtors, which, because it may overlap with blackmail, is incredibly serious. The offence, which is summary only and punishable by a fine, is committed by one who, with the object of extracting money from another person to pay money claimed as the debt under a contract:

 

‘harasses the debtor by demands which by reason of their frequency all manner of making are calculated to subject the debtor or members of his household to alarm, distress or humiliation.’

 

In your next letter to the debt collection company you should inform them of this.

 

Good luck with it!

Edited May 4, 2010 by chancerylawyer
I was tired and my spelling made no sense!

[Angry mum]

Ok, after sending letter as above today we have received another letter from Cabot which states:

 

We made several urgent request to CO to forward any documentation relating to your account to us. Unfortunately Cabot has not received this documentation due to a delay in retrieving this information from their archives, notwithstanding this information was enclosed with our previous letter.

 

Please be advised, that the failure to provide a copy of your agreement in time, does not affect the legality of your debt with Cabot but merely renders the credit agreement unenforceable until such time the agreement can be produced

 

It has been well established in English Law that 'enforcement' construes obtaining judgement at Court. The reporting of a default entry to the Credit Reference Agencies or Cabot requesting repayment of your account does not amount to enforcement.

 

The information that Cabot has provided in response to your request goes on beyond the definition of a 'true copy' in that we have provided a copy of the credit agreement which proves that you signed and dated the credit agreement which was countersigned by the original creditor, and therefore constitutes an executed copy of the credit agreement. Please be advised that the definition of a true copy as prescribed in REgulation 3 of the Regulations state twhat information can be omitted therein. Furthermore, case law shows that a 'true copy' does not mean an exact copy, However, the fact that Cabot has provided a photocopy of the signed credit agreement goes beyond its normal obligations and the definition of a true copy and as such is more advantageous to the consumer. Furthermore it is not Cabots normal practice to reconstruct credit agreements by repopulating a template of the relevant agreement form, which for the avoidance of doubt, Cabot can undertake pursuant to the Regulations.

 

It then goes on referring to section 61 of the consumer credit act.....etc.

 

At the end it says : I trust I have set out our position clearly. If you remain dissatisfied with our final response, you may bring the complaint to the attention of the Financial Ombudsman Services, within 6 months of this letter, who may investigate the same. I must advise you that should your complaint be in regards to the enforceability of the credit agreement, the FOS will be unable to deal with this matter as it is not within their jurisdiction.

 

 

Ok, so what do we do next??

 

Thanks for any help.

[cerberusalert]

Ignore for now, see what materializes from their 'client'.

[Angry mum]

Ok, just another quick question, been through the above this time with Lowell, asked for copies of our credit agreement.....they sent one out received today after requesting on 15th May, which had our name typed at the top but no signature on it neither mine or my husbands, plus this photocopy was sent out 4 weeks after I requested the copy. Also the credit agreement they sent me just has their terms and conditions, no mention of amount or interest etc.

 

What do I do now, can I ask again for a SIGNED copy or do I take it to the next level?

[Angry mum]

Forgot to say, Cabot have not been able to get the relevant paperwork so have now put the account on hold.