County Court Claim form received - Cabot ***WON***

[Brassed off]

You say the assignment is not an absolute assignment, therefore it must be an equitable assignment. Has the OC joined Cabot in the claim because if not cabot cannot bring the claim alone

R

 

Hi Robin, no, I've not had anything from the OC at all. How do I prove that Cabot cannot bring the claim alone?

 

Agree with RWR - that's what my point was leading to.

 

Check out S86© and S86(d) I think for non-compliance.

 

Will go and read it now thanks!

[gh2008]

You don't need to prove it.

 

You aver that the assignment was not absolute and therefore Cabot cannot act in their own name alone, therefore the Court must either strike the claim out or enter judgment against them. Have a search for the proper wording - it's about on here somewhere.

 

They have to answer that - and I expect they will with all guns blazing bear in mind nearly *all* their claims are made on this basis ...

[PriorityOne]

 

The Assignment is not Absolute as they are going back to the OC for a SOA and T&Cs. They've said that in the letter from Morgans posted earlier.

 

This is a loan agreement not a credit agreement.

 

Hiya Bo...

 

That doesn't mean it isn't Absolute. Cabot have been trying to liaise with one of my creditors for a long time, yet I know mine is Absolute. These accounts are normally bought in bulk; minus any paperwork, that's all.

[Brassed off]

Cheers gh, will go and have a look for the correct wording unless someone else has it handy!

 

Hi P1, I have a copy of the Account Sale Agreement between the OC and Cabot and it is an agreement which was bought in bulk. From looking through (inbetween everything that's been blacked out!), it is definitely just an assignment. I notice that there are blank copies of the OC's CCA agreements but they are nothing like the original agreement and must be more up to date ones.

[Fester Tester]

Bear in mind that all Cabot has to do to make an assignment absolute, is to issue a Notice of Assignment.

 

To be honest, the whole equitable/absolute argument is something of a red herring. To concentrate too much on this, is to perhaps miss the main points.

[gh2008]

Equitable vs Absolute assignment is far more than issuing a notice ....

 

Cabot buy the receivables, for something usually between 3p - 10p in the £. They may also have a 'put-back' clause for 'unrecoverables'.

 

They do not IMHO buy the agreement or the duties - who has received credit from Cabot??

If the assignment is absolute and the account is still live then where is the new agreement with Cabot as the creditor....

 

There is an article written by Cabot where they state that they do not consider themselves as the creditor as the assignments are not absolute

 

BUT aside from that, if you have never had a copy of teh T&Cs then (I presume at some stage you have made an S78 request) they are in default and that in itself is another bar to enforcement for them.

 

Is the agreement anywhere? has that been pulled to shreds yet?

[Brassed off]

I have a photocopy of the agreement which I should be able to post up at some point this week gh

[RobinWayRobinme]

Been working on my own case tonight but thought look in for a break and think of something different.

For a creditor to make a claim in their own name they must have an absolute assignment. An absolute assignment is covered by s.136 of the law of property act 1925.

 

136 Legal assignments of things in action

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way

of charge only) of any debt or other legal thing in action, of which express notice in writing has

been given to the debtor, trustee or other person from whom the assignor would have been

entitled to claim such debt or thing in action, is effectual in law (subject to equities having

priority over the right of the assignee) to pass and transfer from the date of such notice—

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the

assignor:

 

 

OK, the assignment is effective on SERVICE of the NOA. Service is dealt with at s.196

 

196 Regulations respecting notices

(1) Any notice required or authorised to be served or given by this Act shall be in writing.

(2) Any notice required or authorised by this Act to be served on a lessee or mortgagor shall be

sufficient, although only addressed to the lessee or mortgagor by that designation, without his

name, or generally to the persons interested, without any name, and notwithstanding that any

person to be affected by the notice is absent, under disability, unborn, or unascertained.

(3) Any notice required or authorised by this Act to be served shall be sufficiently served if it is left

at the last-known place of abode or business in the United Kingdom of the lessee, lessor,

mortgagee, mortgagor, or other person to be served, or, in case of a notice required or

authorised to be served on a lessee or mortgagor, is affixed or left for him on the land or any

house or building comprised in the lease or mortgage, or, in case of a mining lease, is left for

the lessee at the office or counting-house of the mine.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it

is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or

other person to be served, by name, at the aforesaid place of abode or business, office, or

 

counting-house, and if that letter is not returned [

by the postal operator (within the meaning of

the Postal Services Act 2000) concerned

] undelivered; and that service shall be deemed to be

made at the time at which the registered letter would in the ordinary course be delivered

 

 

Registerd post longer exists but must be served by recorded or registered post as defined in The Postal Services Act 2000 and Recorded Delivery Service Act 1962.

 

Therefore, if you have not been properly served and can deny receipt of a NOA before the claim starts, the assignee cannot make a claim in their own name as the assignment is not effective in law and assignee do not legally own the debt, even if the assignment itself has been executed correctly, it is merely an equitable assignment then. I believe service of a copy of the assignment can be considered good notice.but still must be before start of proceedings otherwise assignor must joint assignee in claim.

 

Service of a valid notice of assignment after the claim starts does not correct the creditors error.

Hope this is of help.

R

[RobinWayRobinme]

There is no new agreement, an assignee buys the debt and is bound by the agreement that comes with it. Yes there are put back clauses, but buying the debt does not mean the assignee can ignore his duties as the creditor (that is what he has now become). I belive the OFT have provided guidlines on this.

R

 

Equitable vs Absolute assignment is far more than issuing a notice ....

 

Cabot buy the receivables, for something usually between 3p - 10p in the £. They may also have a 'put-back' clause for 'unrecoverables'.

 

They do not IMHO buy the agreement or the duties - who has received credit from Cabot??

If the assignment is absolute and the account is still live then where is the new agreement with Cabot as the creditor....

 

There is an article written by Cabot where they state that they do not consider themselves as the creditor as the assignments are not absolute

 

BUT aside from that, if you have never had a copy of teh T&Cs then (I presume at some stage you have made an S78 request) they are in default and that in itself is another bar to enforcement for them.

 

Is the agreement anywhere? has that been pulled to shreds yet?

[RobinWayRobinme]

If your creditor is making a claim there are a couple of things you can do. First, if you have had a valid NOA you can ask try to get disclosure of the actual deed od assignment. Second, ask the question in a CPR Part 18 Request.

R

Hiya Bo...

 

That doesn't mean it isn't Absolute. Cabot have been trying to liaise with one of my creditors for a long time, yet I know mine is Absolute. These accounts are normally bought in bulk; minus any paperwork, that's all.

[Fester Tester]

Not one person AFAIK has as yet gone into court and successfully defended on the basis of ineffective service of a NoA. The best you could expect is a postponement of the inevitable.

 

This is why I say it is a red herring and more energy needs TO BE CONCENTRATED IN OTHER AREAS.

[Brassed off]

Thanks for your input RWR

 

Hi FT, what other areas should I be concentrating on then?

[car2403]

Not one person AFAIK has as yet gone into court and successfully defended on the basis of ineffective service of a NoA. The best you could expect is a postponement of the inevitable.

 

This is why I say it is a red herring and more energy needs TO BE CONCENTRATED IN OTHER AREAS.

 

I'd tend to agree with this - if NOA is the only issue, then there isn't much preventing them reverting the Account, assigning correctly, then starting again from scratch. There are some inevitable issues for them with that, though, in that they will probably need permission of the Court to bring another claim on the same basis as this one - that's even if the Court throws this one out, instead of staying it, while the technicalities are resolved. They probably would get permission, if that happened!

 

It's difficult to say what to focus on now, without seeing the documents they've provided - did you get further with getting them on here, so we can have a look?

 

From what you've said, doesn't look like we have much in our favour.

[PriorityOne]

 

They do not IMHO buy the agreement or the duties - who has received credit from Cabot??

If the assignment is absolute and the account is still live then where is the new agreement with Cabot as the creditor....

 

There is an article written by Cabot where they state that they do not consider themselves as the creditor as the assignments are not absolute

 

BUT aside from that, if you have never had a copy of teh T&Cs then (I presume at some stage you have made an S78 request) they are in default and that in itself is another bar to enforcement for them.

 

Is the agreement anywhere? has that been pulled to shreds yet?

 

The account would not be live; it would be terminated by the OC prior to sale.

 

Regardless of what Cabot may/may not have written in atricles, they do purchase debts by Absolute Assignment which gives them the basis of court action.... so it's important for Bo to know that. They may not be the "creditor" in terms of lending money but they become the "creditor" in terms of being able to recover it.

[Debtcontrol]

Brassed Off, good luck, going through the same.

[gh2008]

There is no new agreement, an assignee buys the debt and is bound by the agreement that comes with it. Yes there are put back clauses, but buying the debt does not mean the assignee can ignore his duties as the creditor (that is what he has now become). I belive the OFT have provided guidlines on this.

R

 

Cabot do not become the creditor - they only buy the receivables (or rights) they do not buy the account or the duties, those remain with the OC

[Fester Tester]

Cabot do not become the creditor - they only buy the receivables (or rights) they do not buy the account or the duties, those remain with the OC

 

If you say so, but it doesn't really matter. Can we drop this, as it's not helpful in getting a defence prepared?

[gh2008]

http://www.consumeractiongroup.co.uk/forum/showthread.php?166413-CCMAN-Vs-Goldfish - I presume BO has seen this thread

[Brassed off]

I'd tend to agree with this - if NOA is the only issue, then there isn't much preventing them reverting the Account, assigning correctly, then starting again from scratch. There are some inevitable issues for them with that, though, in that they will probably need permission of the Court to bring another claim on the same basis as this one - that's even if the Court throws this one out, instead of staying it, while the technicalities are resolved. They probably would get permission, if that happened!

 

It's difficult to say what to focus on now, without seeing the documents they've provided - did you get further with getting them on here, so we can have a look?

 

From what you've said, doesn't look like we have much in our favour.

 

I'm going to try and upload the agreement shortly Car

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?166413-CCMAN-Vs-Goldfish - I presume BO has seen this thread

 

I haven't but I will read it through in a moment thanks

[Brassed off]

Not sure I've uploaded correctly (rusty again!) so hope this works

Nova CCA 09 08 10.pdf

[Brassed off]

I've been in touch with Morgans today who've agreed an extension of two weeks. I have informed the court and have confirmation by email.

[RobinWayRobinme]

Well done

R

I've been in touch with Morgans today who've agreed an extension of two weeks. I have informed the court and have confirmation by email.

[Brassed off]

Seem to have so much work to do now!

 

Presumably I need to reply to Morgans CPR reply but definitely need to see those terms and conditions. I'm sure I never got a copy of the T&Cs originally. What happens if they send them at the very last minute (although I doubt they will be the original T&Cs!). I still need to do a Defence but don't know where to start

 

Any thoughts on the CCA attached RWR?

[RobinWayRobinme]

I can't see much wrong with it apart from would be good to get t&C's on back

R

Not sure I've uploaded correctly (rusty again!) so hope this works

[Brassed off]

Me neither.

 

There are no T&Cs on the back or separately. Morgans have said they are contacting the OC for these in their reply to my CPR request.