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

[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.

[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

[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.

[Meldrew]

Just found the post stating you had an unless order in place ...

Oops - I missed that too.

 

Even better, though - no form filling, no fee, maybe no hearing.

... the first weekend working away for months and its probably at the most critical point, sods law.

No worries - as fg suggests in #275, just write a brief letter to the court. Head up with the case Nº & title and say you wish to bring to the court's attention that the claimant has failed to comply with Judge Wotsit's order dated 32nd Octember 2010 (identifying the relevant part/s of the order) and ask that the court exercises its power under CPR 3.4(2)© to strike out the claimant's statement of case, with a costs order under 3.4(3). Then drop it into the court office and get a receipt - best is the court's date-stamp on a photocopy of your letter. Job done. If time is short, you could ask the court if they'll accept your letter by fax. No need to copy to Cabot or Morgans.

 

Then you can think about your counter-attack (see #271). Read Durkin very carefully to see what evidence you'll need to prove that erroneous CRA reports caused real financial loss.

 

Have you checked your household insurance for legal expenses cover?

[Meldrew]

... with a costs order under 3.4(3).

... but don't forget your N260 for costs!

 

Chuck in everything that you've spent in connection with this case, starting from the first intimation of court action. Include all time spent reading up, looking at websites, downloading info, travelling, postage, copying and all fees paid - see the "N260" link in #271 for more info. If you haven't worked it all out in detail, use estimates and say "subject to correction".

Edited May 15, 2010 by Meldrew
Wrong quote extract

[Meldrew]

... 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.

Had a peek back over this thread, and thinking ahead a bit...

 

Just a quick clarification hadit: is the Barclays/Cabot Europe agreement in #252 meant to be the Deed of Assignment between Providian and Cabot UK referred to at 4.1 of Morgans' response in #198?

 

If not -

 

• how & when did you get the #252 doc?
  
• where is the Providian/UK DoA Morgans refer to? - haven't seen it posted (unless I missed it).
  

 

This would become important if the non-compliance strike-out fails and you need to fall back on the strategy in #260.

[Meldrew]

Witness statement

Is that it? Only 2 pages? No signature? No Statement of Truth? Or maybe the rest of it is irrelevant/repetitive?

So, within the Cabot Group, Cabot UK is intended as the creditor and debt owner, and Cabot Europe merely UK's debt collector. Europe then uses Morgans for the heavy legal stuff on behalf of UK (I'm sure this must be common knowledge to many here).

 

In that case,

... they could well have shot their foot completely off by releasing this document.[the #252 agreement, not the WS]

... well & truly amputated!!

I bet Cabot Group is really just one bloke in a cupboard somewhere who keeps swapping hats with different names on (to remind him who he's meant to be at that point), and getting himself thoroughly confused in the process.

[Meldrew]

Had a peek back over this thread, and thinking ahead a bit...

I also see that at 3.0 of the amended PoC in #160, Cabot UK says it "is and was at all material times the Assignee of the debt incurred by the Defendant on her Goldfish Bank Bank Limited Credit Card Account ("Goldfish")". What's that to do with the Providian/Monument/Barclaycard A/C? And - more importantly - how did Cabot find out about your gender reassignment?

 

More confusion?

[Meldrew]

...and ive just checked on my gender and its still there and is perfectly fine....

:lol: Edited May 16, 2010 by Meldrew
Misquote (again!)

[Meldrew]

Letter to the court done ready to hand deliver along with the N170 & N260 tomorrow, I've also copied Document D and included that, in the letter ive also reminded the judge of the none compliance of the court order.

Do you need to include Exhibit D (I'm guessing it's the #252 doc?) - what would you use it for?

 

Surely your argument for the Unless order strike-out should be that Cabot UK failed to let you see the docs that you'd specified, by 5 May (per #235)? It seems from #208 that you wanted to see -

(i) the CCA (Cabot/Morgans previously said they didn't have T&Cs) and

(ii) the NoA (which they copied to you in Nov 09 - see #143).

That's all. Exh.D would only be relevant if you'd asked to see the DoA.

 

If you hadn't asked to see Exh.D I think producing it at this stage would only cloud the issue. You'd only need it if the strike-out fails - to show that it's not the Providian/Cabot UK DoA at 4.1 in #198.

 

BUT - the strategy in #260 relies on you accepting Exh.D as a valid DoA, thereby making the CCA agreement unenforceable.

 

Food for thought, at least, 'cos only you have all the relevant docs and can see the full picture...

[Meldrew]

'If the Claimant is in Default of the Order of the 12th April 2010 the claim stands struck out by operation of paragraph 2, If you require any further orders to be made by the court you should apply using the correct form paying the correct fee.'

GREAT NEWS - A HUGE STRIDE IN THE RIGHT DIRECTION!!! :p:p - I think you owe fg a magnum of something French & sparkly for reminding you about the "unless order".

 

Next step is for the judge to exercise his power to strike out, as by CPR 3.4(2) it must now "appear to the court" from your letter that Cabot failed to comply. You might want to ask the court office to clarify whether the judge will make summary judgement and costs orders "of his own initiative" by CPR 3.3(4), or if his letter means he expects you to apply for them via CPR 3.5 & 23.

... wont cabot have something to say on the matter (appeal)

Theoretically, yes, but on what grounds? As well as failing to comply with several court orders, Cabot has ignored/broken so many CPRs and - despite the orders and umpteen requests & reminders - hasn't come up with any evidence substantiating the claim (notably a valid credit agreement & T&Cs, and Deed/s of Assignment/s). Therefore Cabot would have a very hard time persuading a judge that its claim has any merit or any chance of success. That applies equally to the Goldfish & Morgan Stanley Dean Witter card A/Cs Cabot's been wittering on about (geddit: Witter - wittering; oh, never mind).

 

Even if the claim was reinstated, you have several more shots in your locker, for example in order of preference:

 

• CPR 3.4(2)(a) strike-out for no reasonable grounds
  
• unenforceable credit agreement (#260)
  
• irrelevant & ineffective purported DoA (#252)
  

If Cabot has any sense it will just clear off, pay your costs and forget the whole thing.

... in the WS it states that Cabot UK have no employees so who signs as assignee of the debts??

The WS says Cabot UK has no employees "Save for Statutory Officers". UK registered companies must have at least 1 Director & 1 Co.Secretary, so I s'pose one of them signs stuff. Hadit says he hasn't seen a valid DoA, so I guess he can't verify who signed it (if it actually exists, which I doubt - or Cabot would have produced it).

[Meldrew]

Terrific news hadit - well done!! Perseverance, tenacity & determination are great weapons in pursuit of a good cause.

 

Great news for you.

 

Here's a few more links on costs for you ...

... see also #271 above, and the linked post about using N260 for costs here.

 

As well as invoking Kpohraror and Durkin for general - and maybe special - damages, you also have Mitchell for indemnity costs (#241 above).

 

Cabot's attempted con should prove quite expensive for them!

[Meldrew]

You should look at this thread before you quote Durkin:

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/264189-default-damages-supreme-court.html

Thanks fg - didn't know Durkin had been overturned. Must say, really doesn't look right to me. Makes you wonder if any of the judges actually bothered to look at CCA 74!

 

Nevertheless, the appeal related only to special damages. As Durkin himself says in his #8, in the context of general damages for a creditor's failure to verify a default before reporting it to CRAs,

"I understand that people are using the original judgement to good effect, particularly with removing defaults. I'm very happy about that. This appeal judgement shouldn't affect that.

It confirms that £8K is still available for those that have "validly rescinded" their credit agreement

"

[my emphasis]

.

Also, Kpohraror still applies too for general damages (now ~£10k), and Mitchell for indemnity costs.

 

Don't be disheartened hadit - time to blow the dust off your legal expenses cover and check the small print!

[Meldrew]

Im sat with a coffee and digesting it with a rye smile

... toast, I s'pose - it's a bit early for whiskey!!

 

Thinks ... at the end of all this, you might even find Cabot paying off 'er indoors's Abbey/Santander car loan!

[Meldrew]

Now wheres that bog of unless you can provide all the docs that conforms to CCA74 letter that nocking around the site???

Well, as Morgans have decided to invoke the Pre-Action Conduct Protocol, you could start by tinkering around with this:

RECORDED DELIVERY

 

Request for copies of documents

(Civil Procedure Rules 1998: Pre-Action Protocols)

 

Dear Sirs

Account/Reference [1234 5678 8765 4321] (IN DISPUTE)

 

Your letter dated **DATE** (received **DATE**) indicates that your client might commence court proceedings against me without further notice or warning.

 

As you know, I have long since requested from your client, under both the Consumer Credit Act 1974 (“CCA 74”) and the Data Protection Act 1998, evidence of the agreement to which both you and your client allege I am a party. To date your client has failed to supply any such evidence, but instead tried to persuade me that providing a copy of an application form discharges your client from further obligations under section 78 of CCA 74. Conversely, I have explained that a copy of a mere application form is not a lawful substitute for a true copy of the executed agreement as required by CCA 74 s.78 and prescribed by Regulation 3 of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (“CNCD 83”).

 

I remind you that CCA 74 s.78(6) provides that a creditor whilst in default of a request made under sub-section (1) may not enforce the alleged agreement.

 

Notwithstanding the above and your client's persistent, unexplained and wilful refusal to supply a copy of an executed agreement in accordance with its obligations (the permitted omissions under CNCD 83 Reg.3(2) excepted), you have made plain your client’s intention to begin legal proceedings against me. Consequently this matter is now subject to the Civil Procedure Rules and your letter appears to be intended as a “letter before claim”, despite not complying with the Pre-Action Conduct protocol.

 

Therefore take notice that, I request you supply to me within 14 days actual copies of the following documents:

• the executed credit agreement incorporating prescribed notices, terms and conditions applicable at the time the agreement was executed, and
  
• any further or subsequent notices, terms and conditions relied on.
  

If you are unable to supply these documents please confirm discontinuance of your client’s claim.

 

Take note that this request is not made under either CCA 74 or DPA 98. It is under Annex A paragraph 4.2(7) of the CPR Pre-Action Conduct protocol, for a copy of alleged documents which I believe are relevant but do not have.

 

Should you ignore this request or try to circumvent it, I shall in due course make another under CPR 27 or 31.15, as appropriate. If you fail to comply with that request, I will ask the court to strike out your client's claim as an abuse of process due to lack of reasonable grounds. The application will refer to this and previous document requests, and apply for costs.

 

FOR THE AVOIDANCE OF DOUBT, I DO NOT ADMIT THE EXISTENCE OR VALIDITY OF AN AGREEMENT WITH OR DEBT TO YOU OR ANYONE YOU CLAIM TO REPRESENT.

 

Yours faithfully

You'll need to adapt it to your own circumstances. Firstly review what's happened so far on this particular issue, then edit the the text accordingly, chopping or modifying any bits that don't apply in your case.

 

 

Edited July 16, 2010 by Meldrew
tautology; 2nd edit:formatting corrected after transfer to new thread

[Meldrew]

I think I'll keep a copy of this (if you don't mind Meldrew) as I'm expecting a similar letter in the near future:eek:

Thank you

Feel free... We're all here to help each other.

 

If you're uncertain about what any of it means, just ask.

 

For newbies: - just remember no two cases are identical, and different things will have happened to yours before reaching this stage. That's why you must always tailor such templates to your own circumstances, else they will be misleading and confusing to the other party and probably lead to embarrassing misunderstandings.

[Meldrew]

I have recieved the letter from court today..

 

I sent a letter as advised by the case manager with a schedule of costs for the judges attention and he has said:

 

'The order of 19th May 2010 already deals with the requests made in this letter'

 

Ive no Idea where to go from here??

 

The order was an unless struck out order and the defendant be entitled to costs of the claim to be subject to a detailed assessment in default of the agreement

 

 

PS hadit, it's not "the" agreement - the Order means the court will assess your costs if you & Cabot can't agree the amount

OK, so now you need to ask Cabot to comply with the Order. Start with the costs schedule you sent to the court (I guess you used N260 as suggested earlier; if not, do so now, but cross out "Summary Assessment"). Edit & refine it as needed, then send it to Morgans with a copy of the Order and N252, which Cabot must pay within 21 days.

 

If they don't pay on time and/or you're unable to agree an amount and/or payment date, you must then apply to the court for Detailed Assessment. To do that, you send N258 to the court with a copy of the N252 & N260 that you previously sent to Morgans, with court fees added on.

 

Read the forms etc carefully - they're all pretty straightforward - above all, DON'T PANIC!

[Meldrew]

Wow...is that right a detailed assessment court fee is 300.00???

Yup, and Morgans [should] know it. Don't worry too much - you include all such fees in your costs.

 

I guess this is the judge's subtle way of telling Cabot/Morgans that it'll cost them if they still ignore the rules and abuse the court procedures. The highly emphasised text in the Order shows he is well p!ssed off with these bottom feeders making up claims with no hope of success.

Edited July 17, 2010 by Meldrew
mistook

[Meldrew]

...Thanks again for your advise, I didnt use the N260 as the case manager advised not to use any specific form just to list the costs but will do now and transfer everything onto the form.

A couple of tips for the N260:

 

• in the "description of fee earners" box, just put your own name; "Litigant in Person"; £9.25.
  
• use a spreadsheet to calculate total time to put in each category on the N260, with a "Notes" column saying what you spent the time on.
  
• everything except your time goes under "Other expenses" - put "see attached", and list them all chronologically on your spreadsheet - don't forget ancillaries like postage, copying, travelling (40p/mile) etc - anything that you wouldn't have spent if Cabots hadn't claimed.
  
• include a separate list of court fees on the spreadsheet, showing date, amount, court paid to and very brief description of what each fee was for.
  

slightly concerened as were of to a family wedding abroad for three and a half weeks, so wont be able to answer any mail/responce

Well, just post the N252 & N260 (rec.deliv) before you go, have a great time, and look forward to banking a big fat cheque when you get back.

 

PS Remember when completing the forms, although you're now asking Cabots to pay up, THEY are still the "claimant" in the case, and YOU are the "defendant". Could be v.confusing otherwise!