Unenforceable Credit Card Agreements Morgan Solicitors acting for Cabot

[ohm]

I have registered today and was glad to see your message re Georges V Cabot.Cabot have filed a case against me as assignee of debts from Providian & Barclaycard.I requested true signed copies of agreements under CCA 1974-paid £1 fee.They sent me one from Providian-acopy of a 'Reply Card' card saying 'Please reply by 15th Dec 2000'-it has my signature and dated 29 Nov 2000.No terms & Conditions.Another separate copy headed 'Financial And Related Conditions' which may be copy from any year-no link between the two.Willing to provide (not obliged as they are assignee) Barclaycard Credit Agreement when a copy is provided by the Assignor.My cheque was returned and they have stated that.

'You will observe that section 77 and 78 CCA74 states that ''The Creditor under a regulated agreement...shall give the debtor'' cetain documents.The Claimant also submits that it is an assignee of the contractual benefits of the agreement.Accordingly Cabot Financial (UK) Ltd(''Cabot UK'') is not the Creditor for the purpose of the CCA74 as defined by Section 189 of the CCA74.

The CCA states that the Creditoris ''the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law,and in relation to a prospective consumer credit agreement,includes the prospective creditor'' The Claimant in this case is the Assignee of the contractual benefits of the Credit Agreement and the Judgement.The contractual liabilities and the burdens of the Credit Agreement have not been assigned.The Claimants position is that as a matter of contract law,an assignment transfer the rights or benefits but does not relieve the Assignor of duties or burdons of liabilities to the other contacting party or entitle that party to enforce such duties or burdens of liabilities against the assignne of the debt.In the House Of Lords case of Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd (1994) 1 AC 85,Lord Brown-Wilkinson stated that ''It is trite law that it is, in any event, impossible to assign ''the contact'' as a whole,i.e.including both burden and benefit.The burden of a contract can never be assigned without the concent of the other party to the contract...''Therefore, it is submitted that the claimant is an assignee and has not been assigned the burden or the liability of the the Credit Agreement.Therefore the Claimant is not bound by Section 77 or 78 CCA74 requests.

As we the Claimant is not the Creditor for the purpose of the CCA74, we return your cheque to you.

I have filed my Defence saying that there is no valid agreement and no monies are due to Cabot.

1)The Claimant has not provided true copy of agreement fully compliant with all the regulations made under the provisions CCA 1974.Proof Required.

2)No Statement of Accounts

3)No Default Notice from Cabot

4)No Notice of Assignment etc total claim £20645.62

Allocation Questionnare to be filed by 18/7/10.

Any help/suggestions will be appreciated

[cerberusalert]

Moved to Legal Forum

[Hadituptohere]

Hi ohm

 

you state that you have filed your defence, have cabot issed a claim against you? do you have have their Particulars Of Claim?

 

The CCA 1974 is quite clear on the definition of creditor and unless the Original Creditor and Cabot are the Claimant then they have no right to issue any claim.

 

Hadituptohere

[Rhia]

Hello

 

I think you should cross reference this thread as I posted part of your case on here and the information should interest you.

http://www.consumeractiongroup.co.uk/forum/legal-issues/264876-lost-against-cabot-3.html

 

I also see the application dates from 2000. When did you last pay or acknowledge the debt? that's if you do acknowledge the debt.

Edited July 11, 2010 by Rhia

[Meldrew]

...The Claimant in this case is the Assignee of the contractual benefits of the Credit Agreement and the Judgement...

What "Judgement"?

 

This implies that Barclaycard, having obtained judgement of a regulated agreement, assigned the benefit of the judgement debt to Cabot, who in turn is claiming the judgement amount as a straightforward lump sum debt.

 

Questions spring to mind:

 

• When was Barclaycard's CCA 74 case?
  
• What were the arguments?
  
• Where's the judgement?
  
• Is it the same amount as now claimed by Cabots?
  
• Does it order payment by instalments?
  

If there isn't a judgement, then what are Cabot talking about?

 

Take a look at this. The bit from "Here's how" about half-way down has remarkable similarities. In particular, the last two paragraphs could be your escape route if well argued.

 

[rams thinking cap more firmly on ...]

Edited July 14, 2010 by Meldrew
typo & link repair

[Meldrew]

... and another thing:

...In the House Of Lords case of Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd (1994) 1 AC 85,Lord Brown-Wilkinson stated that ''It is trite law that it is, in any event, impossible to assign ''the contact'' as a whole,i.e.including both burden and benefit.The burden of a contract can never be assigned without the concent of the other party to the contract...''

But CCA 74 expressly requires a valid assignment to comprise "rights and duties" ("both burden and benefit" in Lord Brown-Wilkinson's words). Therefore I don't think his Lordship's remarks apply here.

[Hadituptohere]

Smoke and screen springs to mind, this stinks of someone trying to throw contractual law in to the ring.......

 

Hadituptohere

[Meldrew]

Smoke and screen springs to mind, this stinks of someone trying to throw contractual law in to the ring.......

Hey now, hadit - I hope you don't mean me...?

Edited July 14, 2010 by Meldrew
gloop!

[unclebulgaria67]

No I am sure they don't.

 

There is another thread where Cabots legal people have appeared to raise dubious cases, just to confuse.

[Hadituptohere]

Hey now, hadit - I hope you don't mean me...?

 

 

As if I would my friend, sorry I didnt make that clearer.. I was refering to the OP they have posted this nonsence in every thread they could put it.

 

Hadituptohere

[Rhia]

And where has the original poster gone to? Hmmm!

[rebel11]

Yep, second one I've come across.

[Rhia]

I have this theory (which you may think whacky) but I think Cabot start threads under nom de plumes with the odd real case they have won and pretend to be the Defendant. It's all aimed at undermining CAGers confidence that they can't take Cabot on and win. But, as we all know, people are taking on Cabot and Morgan and they can and do win. Carry on winning!

 

Meanwhile I do enjoy spotting their stooges...it's such great sport on a slow telly night.

[rebel11]

Cabot actually won a case, lol.

[Hadituptohere]

I have this theory (which you may think whacky) but I think Cabot start threads under nom de plumes with the odd real case they have won and pretend to be the Defendant. It's all aimed at undermining CAGers confidence that they can't take Cabot on and win. But, as we all know, people are taking on Cabot and Morgan and they can and do win. Carry on winning!

 

Meanwhile I do enjoy spotting their stooges...it's such great sport on a slow telly night.

 

Hahaha im back and I totally agree with Rhia, these have to be stooges that are trying portray that cabot are invincible....Fools

 

Hadituptohere

[cymruambyth]

Did you have a good time?

[Hadituptohere]

Hi cym

 

yes.. thankyou for asking, almost a month in sunny Mauritius certainly has blown the cobwebs away.. just trying to get my head together after the 22 hours travelling.

 

Hadituptohere