Cabot/morgan Claimform Morgan stanley card debt **struck out**

[Hadituptohere]

Bump , N170 has to be in by Friday

[Hadituptohere]

Hi all just posting the readable bits of the DOA I received from Morgans, this document was 30 pages long, apart from the ones posted the rest are all blacked/marker penned out...

 

Very Interesting Page 26, Scheduel 5, point 7 and 9

 

I note that the definition of Uncollectable Accounts has been penned out...lol

 

Any advise about the legal conformity of this document as a DOA under the Law of Property Act would be appreciated..

 

 

 

 

 

 

 

 

 

 

Thanks in advance

 

Hadituptohere

[vint1954]

Just filling in my N170. ive already written to the Court enquiring about Morgans failure to respond to a Court Order (as that was the way I managed to get the Order in the first place and it was only the cost of a stamp). Do I tick Yes to question No2 'I believe that additional directions are necessary before trial takes place.'?????

 

Its just that it then states 'if Yes, you should attach an application and a draft order.'.. Surley I dont need an application and draft Order to strike out after an Order has already been drawn explaining failure to comply the case be struck out? Or do I????

 

Hadituptohere

I would click the red triangle and ask for advice.

[vjohn82]

Very Interesting Page 26, Scheduel 5, point 7 and 9

 

Point 5 is far more interesting...

 

"and are not subject to any valid defence, disputes, set off or counterclaim or enforcement order"

 

I note that the definition of Uncollectable Accounts has been penned out...lol

 

Take the meaning of the phrases in "eligible accounts" and then work backwards ;-)

 

Any advise about the legal conformity of this document as a DOA under the Law of Property Act would be appreciated..

 

If the document was signed in its entirety in 2003, as suggested by the document itself, then under section 36A of the Companies Act 1985 it has not been executed properly.

 

http://www.olswang.com/pdfs/corp_sep05a.pdf

 

http://www.howardkennedy.com/documents/h2683812.pdf

 

Also see section 1(4A) of the Law of Property (Miscellaneous Provisions) Act 1989 where an individual signing a "simple contract" on behalf of an entity needs to be witnessed (this is a new one I found).

[Hadituptohere]

The documents posted in 252 are morgans responce to my request for a genuine copy of the deed of assignment, but they state 'is a redacted copy of the deed of assignment between Providian National Bank and cabot Financial'

 

is it what it states on the tin???? or are morgans trying to pull the wool over mine and the DJ's eyes?

 

Hadituptohere

[vint1954]

The documents posted in 252 are morgans responce to my request for a genuine copy of the deed of assignment, but they state 'is a redacted copy of the deed of assignment between Providian National Bank and cabot Financial'

 

is it what it states on the tin???? or are morgans trying to pull the wool over mine and the DJ's eyes?

 

Hadituptohere

You can take that as a given.

 

What date do you think that it was assigned.

[Hadituptohere]

Cabot/Morgans state in their POC's that the account was assigned on the 22nd July 2003???

[foolishgirl]

Not had time to look through all the DOA, Hadit, but just check that it is signed by a director of the company too, not just Joe Bloggs clerk. You can check directors on Companies House data base.

[vjohn82]

Not had time to look through all the DOA, Hadit, but just check that it is signed by a director of the company too, not just Joe Bloggs clerk. You can check directors on Companies House data base.

 

It could be signed by the MD... won't make a shred of difference unless 36A has been complied with

[Meldrew]

The documents posted in 252 are morgans responce to my request for a genuine copy of the deed of assignment, but they state 'is a redacted copy of the deed of assignment between Providian National Bank and cabot Financial'

 

is it what it states on the tin???? or are morgans trying to pull the wool over mine and the DJ's eyes?

Cabot/Morgans state in their POC's that the account was assigned on the 22nd July 2003???

Well, it certainly looks as though there's some proverbial wool-pulling going on. As to what's on the tin, the document in #252 is NOT a Deed of Assignment. Like vjohn82's, it's just a memorandum of understanding or declaration of intent, for Barclays to assign to Cabot unspecified Barclaycard debts (which may or may not materialise) after 2 July 03. It sets out the terms which would apply to potential debt assignments if & when they occurred. You would need to see the deed identifying your account to confirm that it truly was assigned under those terms. A properly completed Schedule 7 (p.29) would probably suffice, as I don't know of any particular form or particular text that must be used for a valid assignment deed, as long as the intent is clear - Halsbury's can probably clarify that.

 

But I think you're haring off down the wrong path by seeking to challenge the efficacy of the Barclays/Cabot agreement, and worrying if it was properly executed. I would be inclined to accept it as valid, then use it to destroy any chance of the credit agreement being enforced.

 

Here's how. Para.1.3 of Schedule 1 (p.21) says upon Cabot paying the agreed price all of Barclays' "rights, title and interest in and to the Accounts" will - subject to (the unseen) clause 2 - pass to Cabot, and Barclays will retain all extant "liabilities, duties and obligations (if any) to Accountholders ... and such liabilities, duties and obligations are not transferred or assigned to the Purchaser [Cabot]." Thus Cabot would seem to acquire Barclays' right to enforce the agreement. However, under CCA 74 a regulated agreement can be enforced only by the creditor, defined in s.189(1) as,

"

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

"

(my emphasis).

Therefore the purported assignment is ineffective under CCA 74, as under its terms (which are still valid for other purposes) Cabot now legitimately has all the rights and Barclays is left with all the duties, but neither have the rights and duties, so neither is - nor can be - the creditor. Thus if your debt really was assigned on 22 July 03, clever old Barclays & Cabot carefully managed to wangle themselves into a perfect snooker where neither of them can enforce the agreement under CCA 74, leaving you to pot the last black, grab the Cup and shove off down the pub with your mates to celebrate your amazing victory.

 

That does not mean the debt has disappeared or been satisfied or expunged - it still exists. Cabot, having acquired all Barclays' rights to the debt, can theoretically sue you for its recovery. So what would the claim be? Cabot would seek an order for you to pay the account balance, but would have to show entitlement to such an order. Cabot's entitlement could only derive from the Barclaycard agreement, which can't be enforced as Cabot is not the creditor because the purported assignment was ineffective under CCA 74.

 

So if Cabot is not entitled to sue, then Barclays must be. Wrong - Barclays no longer has that right, as it transferred all its rights to Cabot. Thus nobody is capable of enforcing the agreement, either under CCA 74 or any other way.

 

QED. Mine's a pint of IPA, ta.

[Hadituptohere]

Thankyou so much for popping in Meldrew, That sounds like music to my ears, im gonna have my morning coffe and digest this little lot.

 

One pint for the kind sir.....

 

Hadituptohere

[Hadituptohere]

Just one more question to ask.. which category would marking your credit file with a default for 6 years without issuing a Default Notice fall under? The Rights or the Duties?

 

Hadituptohere

[cymruambyth]

Interesting points; my assignment is diferent from yours so I may post it on my thread later for comments.

I'm looking forward to the answer to post 262.

[foolishgirl]

If meldrew's argument were to be accepted by the court Hadit, they could well have shot their foot completely off by releasing this document.

 

However IMO you also need the DOA/Deed of Sale to clarify & confirm that this applies to your specific account.

[Hadituptohere]

Just filling in my N170. ive already written to the Court enquiring about Morgans failure to respond to a Court Order (as that was the way I managed to get the Order in the first place and it was only the cost of a stamp). Do I tick Yes to question No2 'I believe that additional directions are necessary before trial takes place.'?????

 

Its just that it then states 'if Yes, you should attach an application and a draft order.'.. Surley I dont need an application and draft Order to strike out after an Order has already been drawn explaining failure to comply the case be struck out? Or do I????

 

Hadituptohere

 

 

Any ideas on this one anybody plz....Got to be in Monday:confused:

[Meldrew]

Just one more question to ask.. which category would marking your credit file with a default for 6 years without issuing a Default Notice fall under? The Rights or the Duties?

I take it "marking your credit file" means reporting account data to CRAs. CCA 74 s.189(1) (which, remember, merely defines the creditor) deals with assignment of "

rights and duties

under the agreement

"

. Therefore it depends what the credit agreement says about reporting data to CRAs. There is usually a clause to the effect that the debtor consents to the creditor processing personal data and reporting defaults to third parties, which is clearly a creditor's right. Data processing & reporting are not compulsory unless the credit agreement says so, thus such activities are not duties. In your case, the purported CCA 74 assignment was ineffective because the agreement in #252 split rights from duties. However, assignment under the #252 agreement would be valid for all other purposes. Therefore Cabot had all the rights specified in that agreement, except the creditor's.

 

But, unless I've missed something, I wonder who would have the right to sue anyway? The claimant is Cabot Financial (UK) Ltd, whereas your Monument/Barclaycard account was sold to Cabot Financial (Europe) Ltd, two distinctly separate entities. So without a further assignment from "Europe" to "UK", what gives "UK" the right to recover a debt in which it has absolutely no interest whatsoever? If I lent you my lawnmower then my brother demanded it back, you'd tell him to get lost, as it's nothing to do with him.

 

I'd certainly write to the judge about that ASAP.

If meldrew's argument were to be accepted by the court Hadit, they could well have shot their foot completely off by releasing this document.

 

However IMO you also need the DOA/Deed of Sale to clarify & confirm that this applies to your specific account.

FG is absolutely right if you want to verify the validity of the assignment as claimed by Cabot. But my reasoning in #260 relies on accepting without question that your account was assigned on the terms of the #252 agreement, thereby making it impossible to enforce.

Edited May 14, 2010 by Meldrew
Grammer(!) & clarity

[Hadituptohere]

Within the POC's Morgans have provided a Certificate Of Incorperation On Change Name 'The registrar of companies for England and Wales herby certifies that Kings Hill (No.1) Limited, having by special resolution changed its name, is now incorperated under the name of Cabot Financial (UK) Ltd given at Companies House Cardif'

 

Does that clarify anything at all??? Also they state Cabot (Europe) and Cabot (UK) are both members of Cabot financial Group of Companies, Cabot europe administer accounts on behalf of cabot cabot(UK)???

 

Does the above give Cabot (UK) the right to claim?

[tedney]

Subbing with interest

[foolishgirl]

Does the above give Cabot (UK) the right to claim?

 

No, it doesn't Hadit!!

 

I'm sorry, I've not been reading your posts throughly & I should have spotted this before.

 

Cabot (Europe) & (UK) are 2 x seperate companies although within the Cabot group. Look them up at Companies House - they are 2 reg. nos. They also have 2 x credit registrations with the OFT.

 

It is like saying Wallis & TopShop are the same store/company. They are not but they do both fall under the Arcadia group. So if you defaulted on a purchase from Wallis who would make a claim in court -Wallis or Arcadia? Just 'cos Cabot Group choose to call 2 of their companies UK & Europe, it doesn't make them one company.

 

Therefore if your agreement/assignment was with Cabot (UK), Cabot (Europe) cannot issue a valid claim. Defence in itself.

Edited May 14, 2010 by foolishgirl
quote insertion

[Hadituptohere]

WoW this is taking more and more twist's as time goes on, I'm not really sure where to go and how to proced from here especially with Morgans not replying or complying with the court order issued on the 19th April giving them 7 days to allow inspection of the original doc's and my N170 having to be in by Monday???:confused:

 

Hadituptohere

[Meldrew]

Cabot (Europe) & (UK) are 2 x seperate companies although within the Cabot group. Look them up at Companies House - they are 2 reg. nos. They also have 2 x credit registrations with the OFT.

 

It is like saying Wallis & TopShop are the same store/company. They are not but they do both fall under the Arcadia group. So if you defaulted on a purchase from Wallis who would make a claim in court -Wallis or Arcadia? Just 'cos Cabot Group choose to call 2 of their companies UK & Europe, it doesn't make them one company.

 

Therefore if your agreement/assignment was with Cabot (UK), Cabot (Europe) cannot issue a valid claim. Defence in itself.

Spot-on again fg. Anyway, Kings Hill is not named as either creditor or assignee.

WoW this is taking more and more twist's as time goes on, I'm not really sure where to go and how to proced from here especially with Morgans not replying or complying with the court order issued on the 19th April giving them 7 days to allow inspection of the original doc's and my N170 having to be in by Monday???:confused:

Best course now is an immediate strike-out application with costs per CPR 3.4:

"(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

 

(b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

 

© that there has been a failure to comply with a rule, practice direction or court order.

(3) When the court strikes out a statement of case it may make any consequential order it considers appropriate."

 

See PD 3A para.5 for how to apply; use N260 for costs (see here). If nothing else it will give you a little more breathing space to decide the next move. It should also encourage Cabot to re-examine the strength of its case, and perhaps withdraw. Tell the court what you are doing, and why, so it doesn't get the impression you've given up and award summary judgement by default.

 

Other aspects to consider are:

 

• Counter-claim against Cabot for publishing inaccurate and potentially libellous personal data - Cabot would have to prove the debt reported to CRAs actually existed. Ask for general damages following the Kpohraror case - £5k in 1996 should be approaching £10k now - see para.117of the Durkin judgement.
  
• Recover everything you paid to Cabot - in whatever guise - on the basis that only the creditor (including any proper assignee/s under CCA 74) is entitled to repayment under the credit agreement. Include compound interest at the rate/s you were charged - probably in the region of 15-25% p.a.
  
• Misrepresentation by Cabot pretending to be entitled to payment,
  

... and you'll have that villa on Barbados before you knew it.

 

"Aha", they'll say, "you do owe the money, 'cos you spent on the card - gotcha!". True, but you certainly don't owe it to Cabot. "Well, the fact that you paid us £50/month for years means you accepted we were the creditor and entitled to repayment". But you only paid 'cos they untruthfully led you to believe you should - that was coercion. I bet a criminal solicitor would like to get his teeth into this one. These rascals need seeing-to.

 

BUT - whatever you do, check all the relevant facts first - its easy for a case to fail on a misapprehension or misreading of something significant.

[foolishgirl]

Was thinking about this one as I prepared dinner hadit & was going to suggest exactly the same action as meldrew has - a strike out application, no messing about. But you will have to complete the N170 by the deadline anyway. Perhaps you could submit the N244 at the same time? It will cost you £75.00 but will be reclaimable from Cabot if it is granted.

 

Post up a draft applic. over the weekend if you can & we can all input if necessary.

[Hadituptohere]

Thanks again Meldrew for your advise, Ive paid Cabot in excess of 1000.00 on there alledged account and purchased a property four and a half years ago by way of a subprime mortgage due to the default cabot have been recording, would be nice to give them a taste of the seven years of harrasment they have inflicted on myself and my family.

 

Hadituptohere

[Hadituptohere]

Thankyou Foolishgirl for your thoughts and advise too

 

Hadituptohere

[foolishgirl]

I had directions that stated any request to view original docs should be made by ** and I had requested but received photocopies (twice), so I wrote to the court and through the post yesturday morning I received a court order saying I need to inform both the court and the claimant which docs I want to see by 28th and the claimant shall comply within 7 days or the case be struck out, hence the question about what original docs should and can I ask to see..

 

Just found the post stating you had an unless order in place, in which case you might not have to make formal application, the court may just strike out if you inform them by letter. Phone the court on Monday & ask the court manager which action they would prefer, which will be acted on & how quickly.