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

[PriorityOne]

Bleedin' eck Bo.... your last post on this was 2007!!!

 

Is this your first contact from them since then?

[PriorityOne]

I can't remember the precise wording of the CPR31.14 but it might be worth asking Cabot's solicitors (copy to Cabot) for confirmation that they do in fact have an enforceable Agreement in their possession (as part of the request) and if not, for them to state such (CPUTR)..... since a request for this documentation has been outstanding since xx/xx/xx.

 

Hope you still have the rec. delivery proof of this request Bo.....

[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.

[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.

[PriorityOne]

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

 

Where do you get this information from please? It sounds like wordplay to me... over an issue that was raised a few years ago and squashed by The Cabot Fan Club.

 

Got it in one R

 

The original balance I owed is now doubled with all their interest added on

 

I suppose I could reclaim charges from the OC to offset this?

 

Where does it state anywhere that they have the legal right to add interest and/or charges?. If they haven't bought the Agreement (as suggested in the above quote) then they can't have bought the right to add interest in line with the t&cs of that Agreement. Which way are they going to play this one then?

 

Just need time to consider tactics BO as it seems NOA is only option at moment. Must admit, its not looking good.

R

 

NOA is not enough Bo.... Your defence has to be either an unenforceable CCA, lack of/inaccurate DN and/or unlawful charges added to the account prior to it's sale which should invalidate the assignment.

 

I would also go after written clarification as to the type of assignment this is, what their precise legal obligations are in connection to that assignment and also.... a complete breakdown of all post-assignment interest/charges, including the legal basis for adding and justifying them to the alleged balance.

 

If this is not made clear to you prior to court proceedings, then these questions need to be asked in court....

 

[PriorityOne]

 

Cymru, if you look at Mr Blue's post #30, I did get an Agreement which is filled in even though they state they don't have to provide it (it didn't mention Agreement in the POC). There was a blank agreement in with all the photocopied stuff behind though.

 

Bo, are you saying that they supplied a blank reconstruction? Are you also saying that Cabot claim that they don't have to supply an Agreement (because your CCA request went to the OC, for example)?

 

A blank Agreement is meaningless here. Under CCA 1974, they need to have a true copy and have (so far) failed to supply you with that. Cabot tried to swing a similar argument my way some time ago by saying that since the CCA request had gone to the OC and the OC had complied (not with an Agreement they didn't), that there was no further obligation outstanding on their part. I thought this was pants and CCA'd them as well, just to muck up their argument and have heard nothing for nearly 2 years now..... which backs up the fact that they do have to be in possession of a valid Agreement before chasing people for payment; whatever type of assignment they claim it is. We know they do under CCA 1974 anyway....

 

In addition, the amount they're claiming would be incorrect due to unlawful charges interest being added both prior to and following assignment. Without sight of the original Agreement, incl. t&cs, it's therefore impossible for you to determine whether the amount they're claiming is correct and/or if they're legally entitled to add these. If interest/charges have been added, then this should invalidate the assignment because the figure would be incorrect.

 

Where is the DN? Without a DN, it's impossible to compare the figure they're claiming against the figure on the DN and determine whether it was served correctly.

 

Apologies if these points have already been covered.... and apologies for not bringing them up sooner if not. If you need to amend your Defence to highlight any of these points in addition to their non-compliance with CPR, post a "help" post in my "Dissecting the Manchester Test Case" thread and a link to this thread....

 

[PriorityOne]

Dissecting the Manchester Test Case....

 

Hope the link works

[PriorityOne]

Bo.... I've just looked at the CCA and you do need the t&cs for reasons outlined earlier, yes. The rest of it looks enforceable... so you won't have the benefit of Sec 127(3)

 

Although it's a good idea for you to work out what the missed payments are (minus all the fancy charges and interest that's been added)... Cabot and the OC should have made sure this was accurate in the first place and your Defence should therefore be with regard to the amount they're after. It's not up to you to work it out and provide them with the correct figure, IMO.... just to point out why it's not accurate and that there's no legal basis for the monies that have been added.

 

Unless I'm mis-interpreting this, I'm not sure why it's been said earlier that you don't need sight of the DN... the OC must have defaulted you on this and as such, you need to see if this has been done accurately, IMO.

 

[PriorityOne]

CAG seems very quiet since the site upgrade but maybe these points should be in your Defence intstead Bo.... since you do need to submit one. I'm not sure that what writing to Morgans will achieve for you at this stage.... what do you think?

 

[PriorityOne]

Ok.... that looks sorted then Bo. Let's get the defence on the go and incorporate info. from your letter into it. ;-)

[PriorityOne]

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

 

Yep... and they've bought this one.... which they're being very evasive about IMO.... ;-)

[PriorityOne]

Bo... s.189 of the Consumer Credit Act would define Cabot as the creditor by absolute assignment (which I'm sure this is).... and makes it quite clear that it's an assignment of rights and duties.

[PriorityOne]

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

 

The DN should show the correct amount outstanding prior to/upon termination of the account and prior to/upon Absolute Assignment of that account by the original creditor. They can't just make it up.... it needs to be substantiated with something. Also, if the DN includes an amount of unlawful charges, then the account can be challenged as being inaccurate upon assignment, which could be enough to strike the claim out. I've never had to try it, so can't say for certain. I have however, pulled up Cabot up myself over this precise issue and also, the "rights but not duties" argument and they backed right off.

 

There is nowhere in law that prevents someone from issuing a claim, should they decide to do so.... but the consumer has every right to see a copy of the DN (allegedly) issued upon termination of the account. There is no way that a creditor would just let an account roll and roll without issuing a DN, so there must be one somewhere and the onus of proof is now on Cabot to produce it (if requested to do so). The DN also needs to be checked to see if it was issued correctly at the time; ie, if the correct number of days were stated on there (or not) to remedy the breach.

[PriorityOne]

Just concerned that all the discussions on Default Notices, etc, will lead the OP to think that there's a need for one and ultimately be ripped to pieces in Court on the day. I've seen it happen

 

I'm not convinced there isn't a need for one to be honest, but will agree to disagree if you like. Cabot need to substantiate how they've arrived at the figure they're claiming after so long (IMO)...

[PriorityOne]

Thanks DC

 

Car - this isn't an overdraft, it's an instore finance agreement

 

Yes..... that's what I thought I'd read...

[PriorityOne]

I'll get me coat...

 

Lol!!

[PriorityOne]

You may find this useful... courtesy of pt2537 (Paul)...

 

if i were formulating arguments here, i would be relying on s173 CCA which expressly prohibits and declares a term void if it is contracting out of the Consumer protections of the Act.

 

my submission would be that such a term that allows a assignment to strip away the protections of the act would simply be contracting out

 

one ponders and asks the question, if they arent the creditor then what happens if the agreement hasnt been terminated (Cabots favourite argument) and therefore you make a request to the original creditor and then they dont comply, but cabot is suing you in the mean time

 

what would happen then??

 

seems to me cabot would be able to enforce while the agreement is unenforceable?

 

if they are to be believed as right!!!

 

IMO, this suggests a reason for Cabot's reluctance to confirm the type of assignment it is...

[PriorityOne]

Sneaky aren't they !

 

Hell, yes...

[PriorityOne]

I agree with car's earlier post that a DN is not required. It is because the account falls under CCA, 1974. My understanding is that a creditor is allowed to recover arrears on an agreement that has not been formally defaulted and terminated. As I understand in BO's case the agreement has run its course (48 months from 1999). If the creditor is claiming that they never defaulted or terminated the agreement, then all they are collecting is the arrears. Cabot are claiming that it's not been terminated (I think) but it has.... so it's a chance to catch them out.

 

I would agree that putting them to strict proof of amount owing is crucial, but BO may find she is in difficulty with the DN. Of course different story if it can be shown that a DN was issued and was non compliant, or maybe there is a default registered on CRA. If they claim they have not defaulted but CRA shows a default, would there not be a counterclaim for general damages to credit? IMO, it's up to Cabot to locate and produce the DN, since if the account was terminated (which it will have been after so long), then a DN would have been issued. Showing a Credit File entry would be another way of proving termination, yes.... the default would have been entered by the original creditor but may well have fallen off the record by now as they're only on there for 6 years.

 

In respect of the assignment, the fact they are bringing the claim without being joined by original creditor, they can only do that if they have an absolute assignment, then s.136 of LPA kicks in.

R

 

Yes, they would need to own the account by Absolute Assignment.... but they still have a duty to ascertain that the amount being claimed is correct, so they would need to produce the DN to show the precise amount of "arrears" that were due at that time (if asked to do so, which Bo has).... which I can almost guarantee will not be the same amount that Cabot are trying to claim in their POC.... because they normally add charges/interest of their own.

 

Bo has also never had the terms & conditions of the account either (under CPR) because Cabot haven't sent them.

[PriorityOne]

I'm re-doing my defence now, however if I want to put them to strict proof of the amount owing, how can I do this now? Can I add this to my defence or would I submit say, a part 18 request for further info ?

 

I would put them to strict proof of substantiating the amount owing against the DN.... which you've already asked for (via CPR) and they haven't supplied. Not sure at this point whether you need a Part 18 request because of what you've already sent, but this is not my area.... so we need confirmation from someone re. this Bo.

[PriorityOne]

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.

[PriorityOne]

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)

 

It is terminated, yes. Cabot wouldn't be bringing action as Claimant if it wasn't a terminated (and sold) account. They've bought it but are bring cagey about this for some reason, probably due to their fixation with the word "arrears", which would need to tie up with the DN... which they don't seem to have.

 

Securitisation is a much bigger issue and one that's been discussed at length on other threads. Cabot like to talk about having the "rights but not the duties" which is not what CCA law is about. They're talking about contract law... which is not the same... and interpreting it to suit.

[PriorityOne]

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.

 

Cabot have issued a claim in their own name.... so must have bought the account by Absolute Assignment.

 

It's a terminated account because there's a DN which wasn't remedied. Cabot don't seem to have the DN, so how do they know that the amount in "arrears" is correct according to it?

 

I have never experienced a DCA buying and administering a "live" account.... despite what their fancy licence may suggest. DCAs either collect on behalf of a creditor or the creditor flogs the account.

[PriorityOne]

I've added a few bits in there Bo.... highlighted in orange. See what you think....

 

Well here's my amended draft defence (I will get there in the end!)

 

1. I, [insert full name & address], am a litigant in person and the defendant in this action. I make the following statement as a Defence to the claim made by [insert Claimant’s name]

 

2. Except where otherwise mentioned in this Defence, I neither admit nor deny any allegation made in the Claimant’s Particulars of Claim and put the Claimant to strict proof thereof.

 

3. The Defendant notes that the Claimants' claim is not fully particularised and offers no cause for action and is thus eligible for a strike out under CPR 3.4.2 (a).

 

4. The Claimant has failed to disclose all appropriate documentation to support the Particulars of Claim, requested under CPR 31.12 and CPR 16.4 (2) in that the Claimant has not provided terms and conditions of the alleged debt nor any statements of account prior to assignment of the same and gives no legal justification for interest added post assignment. The Claimant has also failed to provide evidence of a Default Notice to substantiate the sum being claimed which leaves the Defendant at a disadvantage and unable to plead effectively or at all. The Defendant is embarrassed in pleading to the Claim as it stands.

 

5. The Defendant denies that they are indebted to the Claimant for the sum of [insert claim sum] and puts the Claimant to strict proof of this sum, including a full breakdown of the amount being claimed as "arrears" prior to any Default Notice being issued before assignment.

 

6. As the Claimant has not responded sufficiently, the Defendant denies the Claimants claim for interest pursuant to s.69 of the County Court Act 1984.

 

AND the Defendant;

 

7. Seeks an order that the Claimant’s action is struck out under CPR 3.4.2 (a), or otherwise dismissed on the grounds that any claim cannot succeed and that the Claimant do pay the Defendant’s costs incurred in defending this action.

 

8.Notwithstanding matters pleaded, it is denied that the Claimant has established a cause of action or that the Claimant has a valid claim against the Defendant. Consequently, it is proving difficult to plead to the particulars as matters stand.

 

The Defendant is embarrassed at the lack of detail within the Claimant's claim and therefore cannot plead due to the Claimant's ongoing failures to provide documentation under CPR 31.12 and 16.4 (2).

 

The Defendant reserves the right to amend this defence and intends to make an application to the court for an order compelling disclosure.

 

Statement of truth

I believe that the facts stated in this defence are true.

I am the Defendant.

 

Signed:

 

XXXX

XXXX 2010

 

There might be more to add to this... I'm wondering whether to include something about s189 of the CCA being about rights as well as duties.... coz this seems to be what they're trying to wriggle round....

[PriorityOne]

A suggested addition....

 

The Defendant would like to draw the attention of the court to s.189 of the Consumer Credit Act 1974 in the case of Absolute Assignment, which makes it quite clear that the Claimant purchases the rights as well as the duties of an Agreement upon assignment. The CCA 1974 was designed to protect the consumer and as such, differs from contract law on those grounds.

 

Needs tweaking.... but something like that....

Edited August 17, 2010 by PriorityOne