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

[Rhia]

Hello Brassed Off,

 

I have just been through your thread and this is a very interesting case although I am sure you think it's a total nightmare. My reading of it is they have feck all documents to support their claim so are twisting the law to try and recover under contract law and the Law of Property thus, at a masterly Cabot stroke, circumventing the requirements of the Consumer Credit Act and its regulations and statutory instruments in all its glory.

 

First and foremost it was Parliament's intent to protect the average consumer and created the CCA to set aside separate rules from ordinary contract law to regulate the business of creditor/debtor. Further, under the EU Directives which now frame our consumer laws, if there is any doubt over interpretation then the EU states the interpretation that is most favourable to the consumer should take precedence.

 

They are technically correct about the use of CPR 31. You need to use a Part 18 request for any document, letter, item that they have failed to supply. You also (as someone has suggested) need to send a Subject Access Request to Cabot pronto. Although the Deed of Assignment may seem to be a red herring, it is wise to bring it into the action. Their assignments are absolute not equitable and in five years of involvement with their cases I have yet to come across one that was equitable.

 

Cabot will have sent you what they call "representations" of the NoA, the default notice and in fact every so called letter they clam to have sent. They never have copies of any of the originals which you must insist on asking for inspection of in court. These need to be properly "certified" copies.

 

I would put in a Part 18 request and SAR without delay and let's see what they come back with. BTW have you asked for this case to be moved to your local county court (I thought it was issued from Northampton but may be wrong as a lot to take in).

 

I would like to see your Deed of Assignment if you are able to post it up. If too large then perhaps you could PM me.

[Rhia]

Here's some info on the use of Part 18. You send a letter. I do have one somewhere in my files. I will pop back later when I have found it unless someone comes up with one before then as I have "stuff" to attend to - of the domestic kind.

 

http://www.pinsentmasons.com/PDF/RequestsforFurtherInformation.pdf

 

This is a SAR request I have used. It's not my own original work but gleaned from other sources on here and elsewhere so apologies if anyone recognises their work. I am using it for the greater good. Brassed Off I have already changed the text to the Cabot names so just check it but you can just cut and paste. I would get this in the post today if you can and keep a photocopy and get it signed for so they can't say they didn't receive it.

 

 

Subject Access Request made under Section 7 of The Data Protection Act 1998

 

 

Dear XXX

 

Please supply me with all records relating to my history with Cabot Financial Europe Ltd and Cabot UK Ltd and any other company in the Cabot group of companies with regard to the above referenced account. I enclose the statutory £10 fee to cover such request.

 

Whilst not exhaustive and for the avoidance of doubt I require all documents, statements, correspondence, memos and notes from the commencement of the above specified accounts up to the present.

 

In view of the Information Commissioners Office advice I also require copies of all records held on microfiche or other relevant systems.




Please supply me with the following:

 

1. Copies of all the original contracts, including but not restricted to any ppi/insurance premiums, relating to the above accounts which you believe exist or have existed between myself and your organization. This must also include true copies of any documents you hold in support of the same. If they do not exist or cannot

be provided, I would like confirmation of this, and an explanation as to why sent to me in

writing.

 

2. Copies of all financial statements relating to the above accounts for the whole period that such accounts were held with the Cabot group of companies.

 

3. Copies of any relevant terms and conditions leaflets and any associated documents dating from when the account was first opened. Copies of the original Notice of Assignment, Default Notice (ADD ANY OTHER YOU NEED HERE BO) which bear my personal details. All copies must be properly certified and the originals will need to be made for inspection at the court hearing.

 

4. Copies of all documents which include any of my personal information relating to the above accounts. Including copies of any letters sent to myself or any third party, any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.


 

5. Full copies or transcripts of any correspondence in postal, email or any other

format including text messages and telephone calls which you have entered into with any individual, organization or third party which contains my personal or financial information, or which pertains to me.


 

6. Where any previous information or records held have been deleted or disposed of, I require information as to the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the actual dates and methods of destruction of this data.

 

7. Full hard copy print outs of my personal or financial information, held in a digital, magnetic or any other format which is held in any archives, backups or other storage devices / locations.


 

8. Where there has been any event in my account history which has required manual intervention by any member of your staff, or any other person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my banking business with you.

 

This is not an exhaustive list by any means, it is just an example of some of the information I am missing.

 

Also, where any of the information requested relates to information that is older than 6 years, you are still required under the Data Protection Act (Data Protection Act) 1998 to provide it to me. The Data Protection Act clearly states that all information held must be disclosed and it has no correlation to the Limitation act 1980 at all.

 

 

If any of the information requested is not readily accessible or requires a longer period to recover, then in the meantime please provide me with all such information that is more readily accessible, and an explanation and estimated reasonable time-scale as to when I can expect the remainder.




You may not use the inability to provide some of the information requested as a valid reason to withhold any or all of the remainder of information that is more readily accessible.

 

If you contend that you are not obliged to provide any of the information requested, or you claim that it is of a privileged nature, then I require you provide me with a written explanation as to which provisions under which statutory laws you intend to rely for such claims.

 

If you do not comply fully with my Subject Access Request within the statutory 40 days of receipt of this letter, I reserve the right to complain to the Information Commissioner and/or apply to the County Court for an order to enforce compliance, along with an application for costs and damages at the discretion of the court.

Edited September 4, 2010 by Rhia

[Rhia]

Were in danger of overloading Bo with conflicting advice so my thoughts (for what it's worth). Go ahead with the Part 18 (if you haven't already done so. Treat this as separate but obviously connected and then follow up Part 31 as Citizen B has suggested.

 

The SAR is another separate but connected action and all of these actions are aimed at flushing them out.

 

Until they can produce the original agreement and all surrounding it you remain "embarrassed".

[Rhia]

They will be sending your info on a CD? That's a new one on me. Wait and see what turns up. However they line that they may not have your original documentation is telling -routine but telling - they start these claims without the paperwork and hope no-one notices.

As for whatever case is going to appeal just carry on regardless.

[Rhia]

Hello Bo just pm'd you. Should have checked the thread first! LOL! Sounds like things are progressing OK.

[Rhia]

I'm not the best person on procedure so someone may over-rule me (and happy to let them do so) but I would use section G on the AQ to state that you haven't had any of this information; that you have sent a Part 18 request which has yet to be responded to (but they may do that before Friday, as if) and state that you are unable to present a full defence - the actual word is you are embarrassed - until you receive this documentation from Cabot.

[Rhia]

Sorry about full post box guys. Cleared it now. Didn't think it was full but forgot the sent items.

 

Cymru this is excellent. I would also add and Part 18 in para 4 after the Part 31 references. There is also the little matter of a full Subject Access Request under the Data Protection Act 1998 which they still haven't complied with either.

Edited September 20, 2010 by Rhia
Add info

[Rhia]

I'm not so hot on fixed term argeements Shadow. So what would be the case if, say, they had issued a Default Notice?

[Rhia]

This is very interesting and odd. What if the OC had issued a DN and it's just that Cabot can't produce a copy? Would this make any difference to their stance in claiming arrears as to my way of thinking if a SAR - just as a for example - could show DN was issued by the OC then Cabot couldn't claim arrears could they?

 

If no DN then as gh2008 states they should be producing statements and complying fully with the terms of the agreement. In other words the only difference to the debtor should be a different name on the statements etc.

[Rhia]

Said this many times before but Cabot and "clever" aren't words which go together. Without looking back Bo did you SAR the original creditor? If so have a good look for evidence of a DN or a TN in their records.

[Rhia]

Good stuff fellow CFCer. I have turned this over and over and the only conclusion I can draw is this agreement will have been defaulted by the OC. Therefore a DN must exist. Have you looked at your credit record Bo. If not get on to Experian to start with and see if they are carrying anything. You may have to SAR them too but it could be useful as if they have been registering a DN under the conditions they claim they are in for data protection issues too.

[Rhia]

Turning in time for me but Cabot gave me a bedtime chuckle. They really are an endless source of merriment...from the word go.

 

Like they'd like to settle. I bet they would.

 

They'd like a month to settle and avoid mediation...I bet they would.

 

And there are no pre action protocols for debt recovery. WTF? Only on Planet Cabot. Let's just briefly explain. You are using the court system to make a claim. Regardless of what that claim is for you are expected to observe pre action protocols as laid down by HM Govt's court service.

 

And just which expert would pop his or her head above the parapet in defence of this old cobblers?

 

Costs - forget them £1k is just to frighten you.

 

Priceless. Just priceless.

[Rhia]

I agree - there's a few other things that need clarifying too so whilst you have this opportunity get the answers. IMO they are also requesting a stay not - as they state - to negotiate a settlement but because this case is seriously flawed.

[Rhia]

This Judge has saved you the bother of asking for an "unless" order. As HIUTH says another Judge who has rumbled Morgans.

[Rhia]

Bo can you post up the POC for us all to see? Gh is right another Part 18 is called for. The Judge did specifically ask to see the DN as (I believe from memory) he confirmed if it was a CC regulated agreement.

 

I'll let Bo post it up but I don't think s87 is even mentioned I think they are using breach of contract.

[Rhia]

Yes Andrew1 you are quite right it's a new trick. They keep losing cases so keep twisting the law to suit themselves. Cabot has a couple of solicitors - one's a director and the other is Morgan of Morgan's fame and I suspect they keep hatching up novice ways to change the game.

 

I think they are using contract law here to try to avoid the need for a DN but this agreement is regulated under the CCA 1974 (and as such the 2006 amendments on unenforceability don't apply). Have asked Bo to post up new POC so we'll see more when it arrives but I'm certain the OC would have issued a DN and if they have it will scupper these eejits.

 

The Judge appears to be on to them too if his order is anything to go by.

 

Which brings us back to the whole ethos of the DCA business. Someone really needs to expose just how a debt - which has been written off to UK tax - is then purchased for peanuts and the DCA thinks they are entitled to the lot plus even more invented interest. Furthermore these peanut debts are often assigned offshore for "tax efficiencies. They are just complete chancers.

[Rhia]

Has Bo added this to a new Part 18 as you have been saying this for some time gh2008?

[Rhia]

8)

 

They don't just monitor them we've found a few imposters posting.

[Rhia]

The Irish case was O'Hagan-v-Wright and was previouslu unreported.

 

http://www.judgmental.org.uk/judgments/NICA/2001/%5B2001%5D%20NICA%2026.html

 

BO's case also shows how vitally important it is to challenge the asisgnment and use SAR and the CPR to gain as much information as you can.

[Rhia]

Neither do I but I really haven't read it properly.