Cabot-Capital One 'Agreement' dispute...

[blueeyedboy1980]

I have received information that after 3 years of not hearing anything from Capital One that Cabot have purchased the debt from them and are going to take me to court for the outstanding balance of 'my' credit card. I have requested the agreement under the CCA and have been sent the following. Could someone look at it and tell me if I can take this to court and be told it is not legally executed or will I have to bite the bullet and start paying. I'm pulling my hair out as I only have a year left on this default and if I get a CCJ then that's another 6 years of no credit ability and thus, no mortgage. Thank you to anyone who can help in any way.

Edited July 6, 2010 by blueeyedboy1980
Trying to get the Agreement to a sensible size

[Blondie40]

If this is all they have sent then I would be surprised if they went to court, as it contains none of the prescribed terms - %APR, % interest for purchases, cash withdrawls etc.

 

Can you read what they have supplied as its not very clear.

 

You might be best deleting the bar codes in particular the one at the bottom left.

[Blondie40]

What are ‘prescribed terms’?

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1)

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3)

 

What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit

 

* credit limit

* repayments

* rate of interest

 

 

Hope this helps

B40

[blueeyedboy1980]

Thank you for your advice, I have removed the bar codes. I wasn't aware they meant something. I have also added the 2nd page. The part of the 'prescribed terms' which I believe to be missing is the credit amount. Please advise me if anything else is missing. Thank you so much in advance to anyone who can help, I've worked so hard to get this far.

[Blondie40]

Having looked at the second page looks like all prescribed terms are in.

 

With regard to the credit limit I think they are covered by stating "We will set and notify you of the credit limit(s) for your account."

 

I don't think they have to say an actual amount.

 

Did you get a Default Notice - does that comply?

[blueeyedboy1980]

I believe i did get one and I believe it's ok. Have you noticed the first page appears to be 3 pieces put together. is that likely to be a way out?

 

I guess from what you've said though, that I will have to make arrangements with them as if it goes to court then I will end up losing?

Edited July 6, 2010 by blueeyedboy1980

[Hadituptohere]

They would have to prove that this is a TRUE COPY of the Agreement, as you have pointed out it does look like someones been handy with a pair of scissors and a photocopier, would be good to see the default notice just incase theres something youve missed.

 

I will have to make arrangements with them as if it goes to court then I will end up losing? hhhhhhhm...

 

 

You have made a very valid point re the authenticity of the copy of the CCA.

 

Have you received a notice of assignment, have you seen the terms of that assignment? do Cabot have the rights and the duties as the CREDITOR as defined in CCA74?

 

As they say its not over till the fat lady sings....

 

Hadituptohere

[blueeyedboy1980]

I have requested the notice of assignment from them and will post that asap. What else would anyone recommend I do?

[Hadituptohere]

It isnt only the notice of assignment you need sight of, the sale agreement/deed of assignment between Cabot and Capital One will enlighten you as to wheter they are the Creditor as per s189 CCA74 and wether there entitled to bring court action. This all probably better left until Cabot issue a claim in court.

 

Cabot have to provide you with the documentation to show their entitlement to any payments, just make sure you get all the proof that they are before offering any payments (but im sure you dont need tell that;))

 

Could someone look at it and tell me if I can take this to court and be told it is not legally executed

 

I wouldnt recommend yourself taking this to court to be told its not leally executed, if cabot want to spend more of their ever reducing coffers by issuing a claim then all of the above will come in useful

 

Hadituptohere

[blueeyedboy1980]

I've been told that they will send what they have. I'll let you know what that is when I receive it. I have dealt with Cabot before and they were above board before which is why it is worrying me more so than other DCA's I've dealt with. What I'm thinking is if I try to get out of paying due to an unenforceable agreement and they take me to court and the judge says the debt IS enforceable then I will be in a position where I have a CCJ. Is there any way to KNOW that it is or isn't enforceable before I get that far? I can't risk getting a CCJ.

[Hadituptohere]

More strange talk

 

I have dealt with Cabot before and they were above board before

 

and yes it is worrying, as long as you use the law and statute that is in force under the agreement that you signed, its down to cabot as the claimant to produce a 'true copy' which I think even stevie wonder could see that the one above has had some sort of cosmetic surgery.

 

Hadituptohere

[Blondie40]

I've been told that they will send what they have. I'll let you know what that is when I receive it. I have dealt with Cabot before and they were above board before which is why it is worrying me more so than other DCA's I've dealt with. What I'm thinking is if I try to get out of paying due to an unenforceable agreement and they take me to court and the judge says the debt IS enforceable then I will be in a position where I have a CCJ. Is there any way to KNOW that it is or isn't enforceable before I get that far? I can't risk getting a CCJ.

 

You should wait until they issue proceedings, then find out what documents they disclose and you can then ask for inspection of the original agreement. From my experience with CapitalOne they are unlikely to have kept the original as I have a letter from them informing me that "the original agreement you signed and returned to us has been destroyed."

 

However even if you are advised it is unenforceable, on the day of the trial it will be the Judge who will decide and that outcome depends on the result of the District Judge Lottery.

[blueeyedboy1980]

You should wait until they issue proceedings, then find out what documents they disclose and you can then ask for inspection of the original agreement. From my experience with CapitalOne they are unlikely to have kept the original as I have a letter from them informing me that "the original agreement you signed and returned to us has been destroyed."

 

However even if you are advised it is unenforceable, on the day of the trial it will be the Judge who will decide and that outcome depends on the result of the District Judge Lottery.

 

 

I always thought it had to be a true copy so why do you say about the original? Am I missing something there?

 

I can't afford to risk a lottery, I need to know 100% that I will win before I even consider allowing it to go that far. If there is a 1% chance I could get a CCJ I'll start paying them. I can't end up with another 6 years of bad credit.

[Hadituptohere]

CPR Practice direction 16 para 7.3

 

7.3

 

Where a claim is based upon a written agreement:

 

(1) a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing,

 

This is where the original is required, once they have issed a claim agianst you.

 

Hadituptohere

[Blondie40]

I always thought it had to be a true copy so why do you say about the original? Am I missing something there?

 

I can't afford to risk a lottery, I need to know 100% that I will win before I even consider allowing it to go that far. If there is a 1% chance I could get a CCJ I'll start paying them. I can't end up with another 6 years of bad credit.

 

I do not believe that anyone who contributes to this site would suggest to you they are 100% certain you will win, you either have to tough it out by waiting until they issue a claim against you or come to some arrangement with them.

 

Remember, even if they do issue a claim against you and you submit a defence you can still attempt to come to some agreement with them before it goes to trial. If YOU really believe that their is something dodgy about the copy of your agreement the only way you'll find out is by inspection.

 

I can understanding your concern about how a CCJ will affect your credit rating, but remember even if you come to some arrangement with your creditors this will still be recorded on your credit file, and given the current situation any black mark on your file will not be overlooked by lenders.

 

Sorry if this sounds a little harsh.

 

B40

[blueeyedboy1980]

If you're 100% sure about that then surely there is no way I could lose it then? I believe I have already been told that the original is most likely not available as they didn't tend to keep them after scanning.

[blueeyedboy1980]

I do not believe that anyone who contributes to this site would suggest to you they are 100% certain you will win, you either have to tough it out by waiting until they issue a claim against you or come to some arrangement with them.

 

Remember, even if they do issue a claim against you and you submit a defence you can still attempt to come to some agreement with them before it goes to trial. If YOU really believe that their is something dodgy about the copy of your agreement the only way you'll find out is by inspection.

 

I can understanding your concern about how a CCJ will affect your credit rating, but remember even if you come to some arrangement with your creditors this will still be recorded on your credit file, and given the current situation any black mark on your file will not be overlooked by lenders.

 

Sorry if this sounds a little harsh.

 

B40

 

Not harsh at all. What I meant by what I have said is that the default was registered 5 years ago so I only have 1 more year before it is removed from my credit file, regardless of if the balance is still outstanding or not. If I get a CCJ then that will start the clock again as you know. If I come to an agreement then yes, I understand it will show on my file, but only until the original debt is removed due to the 6 years since default. I hope I make sense.

 

What do you mean by inspection of the document? You mean the original? How would I be able to inspect that?

[Blondie40]

Have CapitalOne written and told you they have sold the debt on?

 

You will get a better idea when Cabot supply the Notice of Assignment.

 

 

Until the Original Creditor gives proper notice there is no lawful assignment

 

Equitable is where the DCA collects on behalf of the bank, they do not become the creditor so cannot sue or default in their own name.

 

Absolute is where the DCA buys the debt and becomes the creditor. They then collect for themselves. A notice is sent for this type of assignment as it is a legal action. All assignments under s.136 LoP 1925 are absolute, no matter what Cabot (and others) tell us.

Edited July 8, 2010 by Blondie40

[Blondie40]

If you're 100% sure about that then surely there is no way I could lose it then? I believe I have already been told that the original is most likely not available as they didn't tend to keep them after scanning.

 

You will have to submit an N268 Notice to prove documents at trial - which you can only do (I believe) after they have submitted a witness statement.

 

Also when did you last make a payment towards this debt?

[blueeyedboy1980]

I have received a letter from Cap 1 telling me they have sold the debt, I then received a letter from Cabot saying they had bought it. I made payments through payplan last in early 2007.

[Blondie40]

I take it you entered a formal arrangement (DMP) with Payplan.

Were the payments through Payplan made to CapitalOne or Cabot?

 

When you stopped making the payments through Payplan, did you get another default notice?

 

I'm not certain how the court make look at this in light of you having entered a formal arrangement in the past with your creditors.

 

Are you in a position to make a full and final settlement offer to Cabot?

 

That might be your best route out of this.

[Blondie40]

What do you mean by inspection of the document? You mean the original? How would I be able to inspect that?

 

Both claimant and defendant would be required to disclose the documents they intended to use in court. Each side can ask for copies or Inspection of any document listed.

 

Or you could write to Cabot and ask to visit their offices and inspect the original credit agreement, you have said in a previous post "I have dealt with Cabot before and they were above board".

[robcag]

Hi beb1980

 

Just my personal opinion, but some thoughts on the alleged agreement posted at #1;

 

There does not appear to be any reference to any terms on the signature page, e.g. referring to 'terms overleaf' or 'terms on page xx' or similar.

 

The signature page and the T&Cs page do not look like they are front and back of the same document because of the lines you refer to at post #6 causing the document to appear to be '3 pieces put together'. The lines you refer to are more than likely creases where the paper has been folded at some time in it's life (probably at the beginning).

 

However, if you look closely the creases do not appear to match each page. On the first page they are sloping up the page to the right. If the second page was the reverse of the first, the creases would be sloping the opposite way, i.e. up to the left, and they clearly do not - they slope up to right!

 

Furthermore, at the very top of the second document (under the header which is in block capitals) why would they say "These terms are taken from clauses 8, 10 and 23 of the Terms and Conditions you sign with us".

 

Can they prove that?

 

I'd say that is as good as admitting that the second page is not part of the signature document otherwise why make that statement?

 

Looks unenforceable to me!

 

Cheers

Rob

[Blondie40]

Hi beb1980

 

The signature page and the T&Cs page do not look like they are front and back of the same document because of the lines you refer to at post #6 causing the document to appear to be '3 pieces put together'. The lines you refer to are more than likely creases where the paper has been folded at some time in it's life (probably at the beginning).

 

However, if you look closely the creases do not appear to match each page. On the first page they are sloping up the page to the right. If the second page was the reverse of the first, the creases would be sloping the opposite way, i.e. up to the left, and they clearly do not - they slope up to right!

 

Rob

 

 

That's why you would ask to inspect the original document, so you can confirm your belief that the document is suspect.

 

However how would you then argue that in court, surely it would require an expert witness.

[robcag]

That's why you would ask to inspect the original document, so you can confirm your belief that the document is suspect.

 

However how would you then argue that in court, surely it would require an expert witness. IMHO I don't think you need to be much of an expert to argue the lines should slope as I stated! ;-)

 

 

Furthermore, at the very top of the second document (under the header which is in block capitals) why would they say "These terms are taken from clauses 8, 10 and 23 of the Terms and Conditions you sign with us".

 

Can they prove that?

 

I'd say that is as good as admitting that the second page is not part of the signature document otherwise why make that statement?

 

 

IMO, that statement is as good as "This is not the reverse of the signature page because we've dumped that, but this is what part of it said."

 

By claiming they have taken those terms from clauses x,y,z of the signature document, but not actually being able to show that is true, well .....

 

They would need to explain themselves I think

 

Cheers

Rob