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

[gh2008]

Ah, another of the wonderful Cabot claims where they are claiming that the account was never terminated and therefore they are simply claiming the arrears.

 

Have they (or the OC) carried on sending you monthly statements (as would have been agreed in the original T&Cs) as if the account is still live then they should have been.

 

Have they at least sent regular notices as per S86(a-c)

 

It is still not too late to S78 Cabot if the account is still live .....

 

You also need to put Cabot to strict proof that the assignment was absolute as they usually only buy the rights rather than the account as a whole. (They will deny they are the creditor and refer any S78 request for instance back to teh OC .... well if they own it 100% it has nothing to do with the OC has it ....)

 

jmho

[gh2008]

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

 

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

[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 ...

[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?

[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

[gh2008]

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

[gh2008]

Ok, going back to basics.

 

Is there anywhere on the agreement where you agreed that they could charge interest on arrears? - If not then all you owe IMHO are the 'unpaid repayments'

There is no provision for charging interest at all - there is an APR quoted however that is purely for 'cost of credit' not interest calculations.

 

 

or any other fees or late payment fees or anything else that may have been added to the account?

 

You still have the S86© BUT that is redeemable - but I think they may struggle to make it accurate.

 

Bearing in mind the situation with the goods - did you query that with the finance co at the time?

[gh2008]

Agreement is improperly executed for various reasons - none of which are really prejudicing you though

 

BUT IMHO if this was a 'store agreement' then I presume you had 'face to face' negotiations ... in which case teh agreement is a cancellable agreement

this one could be interesting as wouldn't the creditor have been liable for the goods (or the extended warranty) not being 'fit for purpose'

 

IMHO you may be able to show that you were prejudiced here by the cancellation & the 'protection & remedies' as you were not made aware of teh fact the creditor was liable for the goods when the supplier went belly up.

[gh2008]

From a Trading Standards FactSheet

CONNECTED LENDER LOANS

This is one of the most common forms of credit agreement you may enter

into. Usually for items such as large pieces of furniture, electrical goods or

home improvements. The credit will have been arranged for you by the

retailer/supplier.

With these type of agreements, providing the contract price of the goods

and/or services is over £100, both the retailer and the finance company are

jointly liable for any difficulties that you may have.

This means that for any breach of contract, you can claim compensation from either the retailer,

or the finance company or both. Although we would advise you to approach the retailer first.

This can definitely be of benefit if the retailer has ceased trading, as you may still seek redress

from the finance company.

 

I am sure that, had you been made aware of this, you would have acted on it - definite prejudice IMHO

[gh2008]

They need to provide a Default Notice, together with proof of posting. Their arguments that neither is required is a red herring.

 

Can I ask why? i.e. where in Law are they prevented from claiming, having not served a valid Default Notice, for the non-payment of sums already due i.e. arrears

[gh2008]

I refer (all) the right honourable gentleman to my previous post;

 

 

 

again...

 

 

You can lead a horse to water .........

[gh2008]

So putting them to strict proof needs to go in the Defence? Sounds good

 

It'll also be interesting to see/hear how they're managing to claim "arrears" on an account that was terminated and sold by the OC some time ago.

 

Do we *know* this account is terminated?

 

Selling off the rights is not termination - the banks do it all the time (securitisation) and the consumers are not told, and don't need to be (unless the 'way you repay' is changed)

[gh2008]

Fair enough, I agree with that

 

BUT in this case we are talking about a loan, over a fixed term, the last payment on which was due several years ago.

[gh2008]

Why do you say it is terminated because Cabot have bought it???

 

Creditors can sell live accounts and Cabot has a licence to run a live account .... I *really* don't get it.

[gh2008]

If so, how come for instance when Tesco became a bank did it buy the accounts off RBS?

 

Abbey accounts were bought by Santander

 

Sorry, I don't agree that the act of selling an account terminates it.

 

Especially if there is no change to the way the account is being 'run' (as in this case)

 

JMHO

[gh2008]

I am sure Santander will be registered for amongst other things running accounts and for debt collecting as are most if not all the banking groups.

Cabot also have a licence, and are registered with the ICO for running live CCA accounts, not just debt collecting.

[gh2008]

unless it is too late you could change para 6 to include the reason why they cannot have s69 interest. i.e. that s69 expressly forbids it in cases where there is already contractual interest. A Credit agreement by its nature defines contractual interest payable.

[gh2008]

I know reading this thread you start to think 'how can these things be true' ....

 

If this was so straightforward i.e. obtaining judgement against the debtor - then why are these accounts only sold for as little as 3 or5p in the £ - AND normally with a put back clause if they cannot collect.

 

The accounts are all but worthless - the 'debt buyers' try it on and just take the easy wins

[gh2008]

You can always make a CPR31.12 application for documents not yet disclosed ....... No Court will refuse an application for the Agreement, T&C's or the DN as these documents are vital to the case.

OR use the AQ to request Special Directions for their disclosure. In fact I would request special Directions that they re-plead their case properly ......

 

I would also make an S78 request to Cabot ASAP ..... be interesting to see what they come up with and if they do not comply that's another nail in their coffin.

[gh2008]

This one?

http://www.consumeractiongroup.co.uk/forum/showthread.php?255329-CPR-part-18-vs-CPR-31.14-Confused-well-read-here&highlight=

[gh2008]

didn't see Car's post sorry

[gh2008]

I'm just about to start the Part 18 request but am a bit thrown now after reading up. Under Part 18, I can't request documents eg T&Cs and the NOA they haven't provided, only ask for clarification/elaboration on the ones they already have - help

 

If you need a copy of the T&Cs then there is nothing stopping you making an S78 request ......

[gh2008]

the courts have taken a hard line, we all know that.....

 

and they get harder by the day - a DN is deemed served the day it was sent by the creditor?? Interpretation Act doesn't apply to CCA cases......

http://www.consumeractiongroup.co.uk/forum/showthread.php?238913-Me-v-Tesco-Incasso&p=3137640&viewfull=1#post3137640

Summary Judgement for the claimant - not good

[gh2008]

Ok, so they are saying that the account is live AND more importantly they are the creditor.

 

How long has it been since you have received any form of statement on this account?

 

Have you *ever* received a proper statement of account from Cabot?

 

Check out S86(a-c) and S86(d) I think for the sanctions.

 

The credit agreement is now between you & Cabot - and you need to see a copy of that agreement - with THEM as the creditor NOT Hitachi

 

oh legal assignment = absolute

[gh2008]

If the account is not live, how can there be arrears??

 

They have stated that they have NOT terminated the account - if the account is not terminated then what is it ......

 

Cabot can't have it both ways - either the account is terminated - or it is not ...