Cabot has stay lifted after 18 months- urgent advice needed please

[Bernie259]

Hi Mr Mould,

You seem to have vanished from my thread, I hope all is well and I haven’t said anything to offend you.

I got two more letters today from Cabot, One a notice to say Kings Hill No.1 became Cabot (why wasn’t everyone whose debt was sold to Kings Hill informed of this name change at the time, I thought they started off as two separate companies, all to confuse?) Also a load of paper that they are now calling a Citi cards agreement, its just sheets copied terms and conditions, no agreement and no dates or signature of anyone.

They said they were not going to conduct this litigation in correspondence just through the court; I though CPR encouraged the parties to cooperate at all stage to try and resolve issues before or without a hearing? I was only asking them for what the court had ordered them to disclose, 3 agreements and 3 assignments. They said threy have complies, you have seen the documents, please tell me what is your opinion?

Hope you are enjoying the weather

Kind regards

Bernie & Mrs

[The Mould]

Hi Mr Mould,

You seem to have vanished from my thread, I hope all is well and I haven’t said anything to offend you.

I got two more letters today from Cabot, One a notice to say Kings Hill No.1 became Cabot (why wasn’t everyone whose debt was sold to Kings Hill informed of this name change at the time, I thought they started off as two separate companies, all to confuse?) Also a load of paper that they are now calling a Citi cards agreement, its just sheets copied terms and conditions, no agreement and no dates or signature of anyone.

They said they were not going to conduct this litigation in correspondence just through the court; I though CPR encouraged the parties to cooperate at all stage to try and resolve issues before or without a hearing? I was only asking them for what the court had ordered them to disclose, 3 agreements and 3 assignments. They said threy have complies, you have seen the documents, please tell me what is your opinion?

Hope you are enjoying the weather

Kind regards

Bernie & Mrs

 

Good afternoon Mr & Mrs Bernie

 

I have no forgotten you, I am very busy at present, you have not done anything to offend me.

 

You should read through all of these new documents to see if the claimant has complied in full with the court order.

 

Have you managed to obtain the services of professional legal representation as yet?

 

Kind regards

 

The Mould

[The Mould]

Good afternoon again Mr & Mrs Bernie

 

In respect of the Application form supplied by the claimant, I would advise you to have a read of Patrick Brophy v HFC Bank [2010] EWHC and in particular the comments made by Justice Flaux regarding Schedule 6 Consumer Credit (Agreements) Regulations 1983 - the bare minimum terms included in Application Form is inflexible condition of enforceability, so if app form for credit is signed by you (the debtor) and then countersigned by the creditor, creates legally binding relationship.

 

So have a good inspection of the application form and the above-mentioned regulations.

 

Kind regards

 

The Mould

[Guest]

HI

Regarding your Credit card agreement.

Your defence will I take it be that this was an application form (an invitation to treat) rather than an actual agreement.

The issue will be as to if the prescribed terms as required by section 61 are on the other side of or in the same document as your signature.

It is irrelevant that the creditor’s signature is not on the form this is not a major breach of the act.

They will undoubtedly say that this was an agreement sent under section 62 and was executed onits return to them.

Your contention must be that

1 There was not prescribed terms or nothing of consequence on the other side of the form you signed.

2 No copy documents were supplied with the application as required under section 62.

This is one of the main things that swung the Harrison case. It was nothing to do with assignments

This is very important please forgive me if this has been raised before

Peter

[The Mould]

HI

Regarding your Credit card agreement.

Your defence will I take it be that this was an application form (an invitation to treat) rather than an actual agreement.

The issue will be as to if the prescribed terms as required by section 61 are on the other side of or in the same document as your signature.

It is irrelevant that the creditor’s signature is not on the form this is not a major breach of the act.

They will undoubtedly say that this was an agreement sent under section 62 and was executed onits return to them.

Your contention must be that

1 There was not prescribed terms or nothing of consequence on the other side of the form you signed.

2 No copy documents were supplied with the application as required under section 62.

This is one of the main things that swung the Harrison case. It was nothing to do with assignments

This is very important please forgive me if this has been raised before

Peter

 

Peter, you should read the thread from the beginning.

 

In the Brophy case, Jutice Flaux HELD that application form signed by the debtor constitutes offer to contract on terms stated therein, countersigning by the bank, accepted said offer to contract.

 

This case (Bernie's) involves assignment.

 

Kind regards

 

The Mould

[Guest]

Peter, you should read the thread from the beginning.

 

In the Brophy case, Jutice Flaux HELD that application form signed by the debtor constitutes offer to contract on terms stated therein, countersigning by the bank, accepted said offer to contract.

 

This case (Bernie's) involves assignment.

 

Kind regards

 

The Mould

 

HI

 

My appologies i thought that the enforceabnility of the agreement was at issue.

Why then was the Harrison case mentioned?

From what i saw of the form it seems chalengeable, again appologies obvioulsy missing something i will read the whole thead as suggested.

Peter

 

 

Peter

[Bernie259]

Hi Mr Mould, good to hear from you again.

To be clear on the 3 credit agreements they have disclosed

1) Monument, is a "reply card" with my signiture, no terms & Conditions

2) Cahoot, a totally illegible signed agreement

3) Citi Financial, a falsified typed up credit agreement that is not dated or signed by anyone

I will have a read up on that case.

All the best

Bernie

[Guest]

Hi Mr Mould, good to hear from you again.

To be clear on the 3 credit agreements they have disclosed

1) Monument, is a "reply card" with my signiture, no terms & Conditions

2) Cahoot, a totally illegible signed agreement

3) Citi Financial, a falsified typed up credit agreement that is not dated or signed by anyone

I will have a read up on that case.

All the best

Bernie

 

HI

 

Excuse me for butting in, but you are not questioning the enfoceability of these agrements i believe?

I am a ittle confused. The authorities quoted are all CCA enforeablitity issues

I will leave you to it and hope someone elsee butts in.

 

Peter

[steven4064]

Hi Bernie

 

I'm afraid I haven't got time to read through the entire thread and, ina any case, this might be a good point for a summary of where you thuink you are and where you are going. Any chance of a quick summary?

[caro]

Regarding lifting a stay I've just found this.

3.4

The application should be made in accordance with Part 23 and should give the reason for the applicant’s delay in proceeding with or responding to the claim.

(Paragraph 8.2 of Practice Direction 6A contains provisions about service by the court on the claimant of any notice of funding filed with a defence.)

http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part15.htm

[caro]

I think these posts may help.

 

 

ADVICE AND SUGGESTIONS PLEASE

 

 

Re: Cabot Claim, Defendants application to set aside order lifting claimants 19 month stay for failure to file a response to my defence and my request to strike out forthwith.

 

Hi to all,

 

My wife attended the above hearing as I am not mobile, Cabot’s solicitor attended. The judge adjourned my application for 8 weeks, for me to file a statement setting out the prejudice I have suffered by the claimant’s long delay and CPR failures (then they have to file a response to that). I had raised in my statement supporting the application that Cabot has claimed to have purchased 3 separate credit card debts, and lumped them into one claim plus charges (when all the accounts were in dispute with the original creditors and subject to unresolved complaints of “irresponsible lending”) and I had stated that in a previous action by another creditor, that I had been urged by all concerned, debt counsellor, solicitor, barrister and district judge to make a complaint of irresponsible lending to the Financial Ombudsman, because we were living on means tested benefits and running deeply into debt, on the advice of solicitors who were pursuing my clinical negligence claim.

 

I have not seen the court order yet and my wife who was nervous made notes best she could at the hearing, I think the judge was saying we had been denied that opportunity by the original creditors, or Cabot by issuing their claim 5 days into their 30 days notice of legal action? Because once a claim has been issued the Financial Ombudsman refuse to get involved. I will be writing to the Ombudsman for general advice and guidance on Cabot’s actions.

 

I really need some help with the following and would very much appreciate any input

 

1) Some ideas to help me write my statement on prejudice caused by their very long delays (I am certain these are a tactic Cabot is using to take advantage of us, because they no we are unrepresented, and they have a detailed medical report that confirm I have a progressive neurological condition, also they have been told my wife has health problems, so the longer they leave it the less likely we will be able to defend ourselves and they can get a default judgement. From what I have been reading its seems to all hang on the “overriding objectives” and the “right to a fair hearing”

2) The judge seemed to think that 12 months was the maximum time for lifting a stay? Does anyone know anything about this, is there any case law? As this would kill their claim dead.

3) Most of the documents disclosed by Cabot are very dubious, they look fake, are there any cases where the court has recorded any concern over Cabot and authenticity of documents or criticised their unfair procedural tactics?

4) The court set a deadline for Allocation Questionnaires to be filed, I have filed mine but the claimants haven’t, which seems to be a further breach of CPR?

 

I have a deadline to file my statement and know we have to get this right; I will get a copy of the order tomorrow hopefully, so I want to start drafting something to take the pressure off us.

Kind regards

Bernie

 

Hi, this is a copy of the order, ordering Cabot to disclose all three credit agreements and notice of assignments, I will attach below their solicitors reply and a sample of the documents disclosed, it seems they do not have absolute assignment of the Citi account and therfore cannot make a claim in their name? I am not convinced on the Monument or Cahoot accounts. Can someone please give me some advice here.

 

Thanks

Bernie

 

Hi, thanks again for your help, its very much appreciated, I will try and get those documents posted up over the weekend, not been feeling too good healthwise, in constant pain, which is restricting me, my wife, bless her who is acting for me finds it all so confusing, which is what I believe Cabot are playing on, my poor health and no legal representation.

 

The deadline is 19th April, you will see from the order that I still have to write to the Financial Ombudsman to eastblish if I have suffered prejudice as a result of the claimants long delays, this is because I made a complaint of unfair charges, irresponsible lending, and severe hardship to all the original creditors, the advice we received from our debt counsellor at the CAB five years ago, was to offer a £1 p/m token payment to those we could make contact with, and then phase them out if they did not respond to the complaint, he advised we could assume they had upheld our complaint and would not consider it worth pursuing us in a court action, off couse he was right, until Cabot sat on it all this time and decided to issue a claim while on a 30 day notice, I am not sure if the FO have any control over DCA's, we were going to lodge a complaint against them in those 30 days, but knew once a claim is issued they wont get involved no matter what, also if the original creditors still own the debt we may have been able to lodge a complaint with the FO against them, not sure how to word it as if they say regardless of the delay it was too late anyway? I will then have to rely on the CPR "overidding Objectives" arguments, and the fact they have still not got their claim in order to proceed.

 

Kind regards

Bernie

[Bernie259]

THIS IS A SUMMARY

Thank you to everyone who has kindly given me their time.

 

These are the main issues as I see them.

 

1) The issue that the creditors may have sold on 3 accounts that were in dispute

 

2) There is an issue on all three accounts regarding assignments to Cabot or Kings Hill No.1; they have not produced any credible evidence of equitable or absolute assignment.

 

3) There is an issue of enforceability on all three accounts,

 

a) They have only disclosed a “reply card” for the Monument account (no agreement has been disclosed) and I do not recall ever signing an agreement or seeing any terms and conditions.

 

b) The agreement for the Cahoot account is completely illegible and therefore unenforceable.

 

c) They have only now after 2 years, just produced a typed agreement with terms and conditions on separate pages; not in the proper form, it is undated and not signed by the lender or borrower, and their claim is for an unspecified amount (as they have bundled three accounts into one claim). These documents have been generated to comply with the Order. This is not an enforceable agreement. (this is why Mr Mould compared it to the Harrison case along with the harassment we have suffered, up to 10 phone calls a day)

 

4) There is an issue on default notices, we have not received any.

 

5) There has been no breakdown of charges applied by Cabot after default.

 

6) There is a serious issue of inordinate and inexcusable delay, and a complete failure to comply with the overriding objectives and court process.

 

7) The human rights Article 6, the right to a fair hearing in a reasonable time, the claim has stagnated for almost 2 years.

I hope this makes my case clearer and thank you to everyone again for their input.

 

Kind Regards

Bernie & Mrs

[the_shadow]

1) The issue that the creditors may have sold on 3 accounts that were in dispute

 

Depends on what you class as dispute, the only real dispute that will stop them selling the account is whether this is your account or not and that they can prove with spending details etc etc, a non response or invalid response to a s77/s78 request is not a dispute in the true sense of the word and they are entitled to sell the account on.

 

2) There is an issue on all three accounts regarding assignments to Cabot or Kings Hill No.1; they have not produced any credible evidence of equitable or absolute assignment.

They will no doubt try and say they are one in the same company, check companies house and pull off any details that show they are seperate and their dates or incorporation etc etc, this is quite a strong point IF they have never sent you a notice of assignment imho. Lookup s136 of the Law of Property Act 1925.

 

3) There is an issue of enforceability on all three accounts,

 

I wont go through the individual points but enforceability can only be decided by a court and they tend to agree with the lender unless you can show a pattern of mismanagement or some positive assertion that never entered into an agreement with them, if it comes down to a you said/they said issue its a toughie to call on who the judge will believe I'm afraid.

 

Are you up to date on Carey vs HSBC and McGuffick vs RBos

 

4) There is an issue on default notices, we have not received any.

Another very strong point, ensure you know the CCA requirements for a default and s87 of the CCA1974

 

5) There has been no breakdown of charges applied by Cabot after default.

More to do with collection and their breach of the OFT guidelines but they do have to show how they came about their total and justify it when requested.

 

6) There is a serious issue of inordinate and inexcusable delay, and a complete failure to comply with the overriding objectives and court process.

I'm sorry but read around a few cases on here and you'll see that its previlant throughout the judicary, unless you can show some REAL prejudice to yourself caused by the delay its at the courts pleasure to deny/accept anything the claimant sends late and I'm afraid they usually do.

 

S.

[Ganymede]

THIS IS A SUMMARY

Thank you to everyone who has kindly given me their time.

 

These are the main issues as I see them.

 

1) The issue that the creditors may have sold on 3 accounts that were in dispute

 

2) There is an issue on all three accounts regarding assignments to Cabot or Kings Hill No.1; they have not produced any credible evidence of equitable or absolute assignment.

 

3) There is an issue of enforceability on all three accounts,

 

a) They have only disclosed a “reply card” for the Monument account (no agreement has been disclosed) and I do not recall ever signing an agreement or seeing any terms and conditions.

 

b) The agreement for the Cahoot account is completely illegible and therefore unenforceable.

 

c) They have only now after 2 years, just produced a typed agreement with terms and conditions on separate pages; not in the proper form, it is undated and not signed by the lender or borrower, and their claim is for an unspecified amount (as they have bundled three accounts into one claim). These documents have been generated to comply with the Order. This is not an enforceable agreement. (this is why Mr Mould compared it to the Harrison case along with the harassment we have suffered, up to 10 phone calls a day)

 

4) There is an issue on default notices, we have not received any.

 

5) There has been no breakdown of charges applied by Cabot after default.

 

6) There is a serious issue of inordinate and inexcusable delay, and a complete failure to comply with the overriding objectives and court process.

 

7) The human rights Article 6, the right to a fair hearing in a reasonable time, the claim has stagnated for almost 2 years.

I hope this makes my case clearer and thank you to everyone again for their input.

 

Kind Regards

Bernie & Mrs

 

 

Article 6 HRA only applies to criminal proceedings brought by the state. It's intended to prevent suspects from being held in prison without a trial indefinitely and to have a trial in an independent Court etc.

 

As your case is a civil action between two private individuals Article 6 HRA is irrelevant and does not apply.

[the_shadow]

Just seen Caro's post above re: prejudice and irresponsible lending... I would suggest you concentrate on this stream rather than the un-enforcement angle imho.

 

As to helping show the prejudice against you only you know what your full story is and how its affected you etc etc, its better for you to write and if you wish to post up here and then people will advise if its too emotive or not enough facts etc etc, at the end of the day its you in court on the day and not us, better you write/understand are knowledgable about what you've written than have to learn from what someone else has done.

 

Just my opinion but just trying to help and not hinder.

 

edit: as to the prejudice shown by the delay in CPR and removal of the stay thats difficult to prove imho

 

S.

[Guest]

Just seen Caro's post above re: prejudice and irresponsible lending... I would suggest you concentrate on this stream rather than the un-enforcement angle imho.

 

As to helping show the prejudice against you only you know what your full story is and how its affected you etc etc, its better for you to write and if you wish to post up here and then people will advise if its too emotive or not enough facts etc etc, at the end of the day its you in court on the day and not us, better you write/understand are knowledgable about what you've written than have to learn from what someone else has done.

 

Just my opinion but just trying to help and not hinder.

 

edit: as to the prejudice shown by the delay in CPR and removal of the stay thats difficult to prove imho

 

S.

 

Hi

Don’t see any reason why all these factors cannot be included in the defence. If you look at Harrison I think the resultant judgement was due to poor performance being shown in many different areas.

Default notice, section 62/63(unenforceability issues), harassment.

Think all these demonstrate to the court that the Creditor’s slap happy approach to his business, this made the judge think well maybe the terms weren’t presented as per the act and maybe the claimant/defendant has been prejudiced here.

What I am saying is that a structured defence is required cataloguing all the complaints.

As the shadow says it is up to the op to write the defence, but there is enough combined knowledge on here to fine tune the separate elements.

Peter

[Bernie259]

Thanks again to everyone.

I have gained a lot of my knowledge from this site, and as I am finding out some is sound and some may not be so sound and some very confusing because of opposite views.

I understood from reading on here that someone cannot just come along and say that you owe them money for three accounts unless they have proper legal proof of ownership, anyone can type up some letters on their own headed paper and send them saying they own the accounts, and don’t sign the letter in case it comes back on them. So I feel the issue of assignment is a real one, if it’s only equitable then they would need the permission of the original creditors and they would be a party to the proceedings, if they are absolute assignees then they would have no reason to withhold that evidence.

I have read on here many times about unenforceable agreements and the court has no discretion to intervene, and there are numerous cases overturned in the high court? So if Cabot does not even have 2 of the agreements how can a court enforce them? The onus is on them to prove their claim.

The issues of “irresponsible lending” and harassment are complaint issues for the OFT and the Financial Ombudsman, and the judge has ordered us to establish the Ombudsman position here. However, the court also has the power to intervene on these issue if they see fit, and as Peter and Mr Mould have pointed out from the Harrison case the judge will look at a parties overall conduct when making judgements. I know it comes down to how your arguments are presented on the day, and the judges own views, I just believe Cabot have to prove assignment and have to have agreements as a starting point.

No one is arguing the accounts never existed, the original creditors are not taking us to court, the issue is can Cabot prove they own these accounts, and do they have the correct documentation to legally add charges, and enforce them in a court of law, and are they abiding by the rules of the court. If the answer was yes, then I believe they would have progressed their claim issued in 2009 and responded to my holding defence, rather than sit on it for two years.

Kinds regards

Mr & Mrs Bernie

[Bernie259]

I posted up my statement up last week (now filed and served) which sets out my prejudice arguments if any one has any views on.

Regards

Bernie

[Guest]

Hi Bernie

 

Regarding enforceability. It must be borne in mind that the creditor only has to show that an enforceable agreement existed on the ballance of probabilities. So it is as you say to a large extent about creditability.

Having said that i do not think that an agreement has to date been enforced unless some kind of signed document has been presented.

The grey area regarding your credit card agreement is sbout if the pescribed terms were or were not present on execution.

If the where, it is an agreement presented under section 62 of the act if they werent it is an application form and unenforceable.

There has been many cases both on this forum and elswhere which faced this dilemna. Creditors generally present some clerk as a witness to say that they would have been present, you would have to be prepared for this eventuality.

 

Peter

[Bernie259]

COPIED FROM LIBERTY WEBSITE

"Article 6 is an absolute right. It guarantees your right to a fair hearing in civil and criminal proceedings. It sets standards for the way that proceedings are run. Although you may feel that you have not had a fair trial if you lose your case, there will only be a breach of Article 6 if these standards have not been met"

Bernie

[Bernie259]

FURTHER

Certain standards apply in both criminal and civil proceedings. These rights include:

• The right to a trial within a reasonable time.
  
  
• The right to an independent and impartial judge or tribunal.
  
  
• The right to a public hearing (although there are circumstances when the public can be excluded)
  
  
• The right to a public judgment (although this may be restricted in certain types of cases, e.g. family cases.)
  

 

In civil proceedings Article 6 also protects the right to take court proceedings to settle a dispute, although this right may be restricted in some circumstances. It may also give the right to legal aid where the dispute is very complicated and you are at a disadvantage because you cannot afford a lawyer.

Bernie

[Bernie259]

Hi Peter

These accounts go back some years but I am sure in those days (2001) the practice was they would send out flyers/application leaflets and then send you a card and some blank cheques you could cash up to what ever limit, I do not ever recall signing any credit agreement with terms and conditions which is why they don’t have them, we had a box full of these flyers as they were coming through daily, and we were up to our necks in a very stressful clinical negligence claim. I am looking to see if we have any of them still.

Regards

Bernie

[Guest]

Hi Bernie

Just read your statement. Personally I think you have a most compelling case.

As well as the obvious prejudice you have suffered from their delay , I think you must make it clear that you have been materially prejudiced in the facts that they have failed to provide the statutory documents prior to enforcement.

I think that the very fact that the three cases have been lumped together in this way prejudices you. I know it is common practice but in cases where documents cannot be produced and they know that there is going to be dispute on the individual items, I think separate actions should be taken. As you say there is also the costs issue.

A minor point, I am not sure if you are correct regarding the application of section 69 interest. I know that post judgement interest has to be at the contractual rate but I was under the impression that post termination (pre judgment) interest could be used if there was no facility to charge at a contractual rate within the T and Cs.

I could be wrong here I am sure someone will correct me if I am.

Peter

[Bernie259]

Hi Peter

You could well be right on that 69 interest point, I got that from this site when I had help drafting a holding defence, I must say having read it a few times something did not sound right, I thought it was Cabot not allowed to charge interest after default if we had no contract with them, there are a lot of issues to take in, and its not easy when you are highly stressed and in severe pain, I suffer very badly with headaches, I have to skim over any judgement I read and rely on people in better health who understand it better legally. No doubt the court will correct us. I am now looking for an advocate or legal representation as my wife is unable to argue all these issues alone

Regards

Bernie

[Bernie259]

ADVICE PLEASE ON RECONSTRUCTED DOCUMENTS

 

Hi, can someone please clarify the courts position on reconstructed terms and conditions, I have read of cases where the court will accept this practice.

 

1) How can the claimant prove this is what you were given at the time of signing an agreement?

2) I do not recall being sent or seeing any terms and conditions, my applications were done over the telephone, replying to a flyer or over the internet, is the onus on the claimant to prove you were sent terms and conditions at the point of signing?

3) Would a signed reply card with no terms and conditions be enforceable?

4) Can the claimant reconstruct the whole agreement, and would this un-signed document be enforceable?

 

Any advice would be greatly appreciated

 

Bernie