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CABOT EGG/GOLDFISH COURT ORDER clubbed together


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Hi, not been here for a while and would like to check a few things. Firstly if this is in the right place -I can barely find my way around- if not please move it.

 

Cut a long story short it appears Cabot have attained a judgment against me without my knowledge (NCCBC) and clubbed together an Egg and a Goldfish debt into the bargain. I only found out when they phoned me about a final charging order hearing. I managed to defer that but it appears that the new hearing is for the first week in May at my local court. I have had no notification from the courts about this either!

My queries relate to the fact that:

1. they have clubbed them together in one package as a single judgment (£10k ish and £5kish), is this correct?

2. do the same rules apply to Credit Agreements etc as they were 2 years ago or has anth changed?

3. from memory I have to post some form of defence before the hearing. I'll look back through my old stuff but if anyone has any clues it would speed things up for me.

 

The previous threads are below:

 

EGG:

http://www.consumeractiongroup.co.uk/forum/showthread.php?182429-EGG-ARC-no-cca-now-solicitor-threats

 

GOLDFISH:

http://www.consumeractiongroup.co.uk/forum/showthread.php?182105-unreadable-cca-from-goldfish-cabot

 

many thanks for any help.

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Hi r&b

Sorry to see you back! Your local court is still as fickle as ever......

Same rules apply but a few judgements have gone against us.

I don't think they can lump them together, but someone with greater knowledge will clarify.

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Hi Cymruambyth,

 

Thanks for the sentiment and info.

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Subbing on this because that is exactly what Cabot have tried to do to me.

Before you criticise another man you should first walk a mile in his shoes. Then, when you criticise him, you'll be a mile away and he won't have any shoes on.

 

Don't get me confused with somebody knowledgeable by all those green blobs. I got most of them by making people laugh.

 

I am not European, I am English.

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1. they have clubbed them together in one package as a single judgment (£10k ish and £5kish), is this correct?

 

They are a debt purchaser and if they have bought both debts then they both now belong to them. It is like Barclays making a claim for both a credit card and loan at the same time. As long as they have the paperwork then yes they can do it. However, the big question is, do they have all the correct paperwork?

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Thank you Fred, nicklea and izzitme for the input.

 

The 'Agreements' are posted in the threads linked in post #1 but I've copied them below again:

 

Egg:

http://i615.photobucket.com/albums/tt231/robntanya/EGGARCpropersarreply2.jpg

http://i615.photobucket.com/albums/tt231/robntanya/EGGARCpropersarreply3.jpg

 

Goldfish:

http://i615.photobucket.com/albums/tt231/robntanya/CABOTGOLDFISHCCA.jpg

 

I think, unless anyone has any better ideas, that I had best put in an N244 for set aside based on the fact that the Credit Agreements are unenforceable, together with a letter asking for an adjournment of the final charging order hearing until the set aside has been heard.

 

These are the links to the original threads:

Egg:

http://www.consumeractiongroup.co.uk/forum/showthread.php?182429-EGG-ARC-no-cca-now-solicitor-threats

 

Goldfish:

http://www.consumeractiongroup.co.uk/forum/showthread.php?182105-unreadable-cca-from-goldfish-cabot

 

If anyone has any further ideas I would be grateful.

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However, the big question is, do they have all the correct paperwork?

 

Nicklea, are we still talking the same as 2 years ago, Credit Agreement (valid) - I have one unreadable from Goldfish and I think there were fundamental problems with the Egg one regarding Credit Limits, both posted above, valid DN, valid Assignment, LBA, etc, etc? I am very rusty, not that I was any expert to start with....

Would different terms within the 2 debts allow me to make any case against them being put into the same judgment or is it simply black and white, they own them both, they are both in my name, therefore they can put them under the same claim?

 

Thanks

Edited by r&b
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Hi r&b,

 

I can hardly read the Goldfish agreement, but it looks like a Morgan Stanley application. Is that right? Was it originally MSDW? I'd love to have a closer look, so is there any chance of scanning it again? There are a lot of these around and they all have different questions missing which proves they are a cut and paste job. Also on the alleged back page you'll see that there are different spaces between the boxes depending on whose cut and paste agreement you look at, so you have proof that they are not genuine agreements.

 

DD

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Nicklea, are we still talking the same as 2 years ago, Credit Agreement (valid) - I have one unreadable from Goldfish and I think there were fundamental problems with the Egg one regarding Credit Limits, both posted above, valid DN, valid Assignment, LBA, etc, etc? I am very rusty, not that I was any expert to start with....

Would different terms within the 2 debts allow me to make any case against them being put into the same judgment or is it simply black and white, they own them both, they are both in my name, therefore they can put them under the same claim?

 

Thanks

 

r&b

 

First of all, the issue with Egg credit limits. That case was lost, I think pt2537 took it to the High Court, and it is now not an issue and it it not unenforceable due to the credit limit argument.

 

Although the Morgan Stanley agreement is too small to read, I'm guessing that it may well be enforceable.

 

The issue with DNs is now a lot clearer as there has been a High Court case saying that enforcement can't be attempted on the back of a bad notice.

 

Notice of assignment will also be very important for you. I'll stick a bit on the end of this post about it. The very important thing is that you did not have any knowledge of Cabot buying these debts before they started the court claim against you.

 

Claiming back credit card charges and the interest applied to them will also come into it.

 

With the two different debts, why should different terms stop them making a claim against you? As I said above it's no different to somebody like Barclays making a claim against you if you had both a credit card and a loan from them. These both have different terms and conditions.

 

 

This is a bit explaining about assignment and charges:-

 

also, there is a link here that goes into some more detail:-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?178915-Defence-required-for-Claim-form-Barclaycard-CL-Finance-Howard-Cohen&p=3364743&viewfull=1#post3364743

 

12.It is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful. It is not accepted that notice was given to myself of the assignment and the Claimant is put to strict proof that sufficient notice thereof was served upon myself before proceedings commenced. Without this proof the Claimant has no standing before the court (Compania Colombiana de Seguros v Pacific Steam Navigation Co [1965] 1 QB 101).

 

13.The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

14. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

15.It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

16.For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

 

17.Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law to ensure that the Assignee can give good discharge (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824).

 

18.It is further averred that to be valid the alleged notice of assignment must accurately describe the assignment including the date, if any (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

Sums Claimed

 

19.It is not admitted that any or all of the monies claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how those sums are lawfully owing.

20.Further, it is denied that any alleged contractual account charges and the contractual interest subsequently applied to those charges which have been claimed are lawfully owing in that it is submitted that the charges are a penalty in that they do not reflect any actual losses sustained by the claimant nor does it reflect realistically any actual costs incurredand so are in breach of the common law and, in any event, unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999.

21.In case the Claimant should attempt to justify these charges by reference to the Office of Fair Trading Report of April 2006 “Calculating Fair Default Charges in Credit Card Contracts” (“the OFT Report”) I would like to draw the court's attention to the detail of the OFT Report. The OFT Report did not state or give guidance that a level of £12 was fair; neither did it recommend this figure in any way, it was merely a statement of regulatory intent. The OFT Report set a threshold level of £12, below which it would not warrant regulatory intervention at that time (para 5.4 of the Report). The reason given for this was that their resources would be better directed at cases involving more serious economic detriment. Finally, the OFT Report specifically stated that the OFT had no power to constrain private civil actions or to determine what a court should decide (para 5.7) and that a court will certainly not consider that a default fee is fair just because it is below the threshold (para 5.5).

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Hi r&b,

 

I can hardly read the Goldfish agreement, but it looks like a Morgan Stanley application. Is that right? Was it originally MSDW?

I dont know is the answer but thats what is on the base of the appl form/cred agmt as you can see.

I'd love to have a closer look, so is there any chance of scanning it again?

another scan wont help. I have 2 copies from them, one as above on one sheet of A4 showing 2 pages (plus a set of fresh terms and conditions, not photocopied) which was in response to my Cred Agreement request and the same illegible copy in larger format, A4 page each for the same pages, in response to my SAR (no fresh t&c's here though). Looks like its a photocopy of microfiche that cant be enhanced.

 

There are a lot of these around and they all have different questions missing which proves they are a cut and paste job. Also on the alleged back page you'll see that there are different spaces between the boxes depending on whose cut and paste agreement you look at, so you have proof that they are not genuine agreements.

I cant read the questions anyway...lol

 

DD

 

Thanks for the help

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r&b

 

First of all, the issue with Egg credit limits. That case was lost, I think pt2537 took it to the High Court, and it is now not an issue and it it not unenforceable due to the credit limit argument.

Thanks for clearing that up, I said I was rusty.

 

Although the Morgan Stanley agreement is too small to read, I'm guessing that it may well be enforceable.

As I stated above, I have 2 copies of it, one A4 with both sheets and an A4 for each, both illegible. If that's what they are relying on, surely that can't be enforceable, it could be a contract on anything?

 

The issue with DNs is now a lot clearer as there has been a High Court case saying that enforcement can't be attempted on the back of a bad notice.

I'll post up the DN when I can get to my scanner.

 

Notice of assignment will also be very important for you. I'll stick a bit on the end of this post about it. The very important thing is that you did not have any knowledge of Cabot buying these debts before they started the court claim against you.

I may have worded something badly previously but I did know they had the debts, just didn't have any clue about the judgment. I'll also post what I have in that regard.

 

Claiming back credit card charges and the interest applied to them will also come into it.

 

With the two different debts, why should different terms stop them making a claim against you? As I said above it's no different to somebody like Barclays making a claim against you if you had both a credit card and a loan from them. These both have different terms and conditions.

Ok thanks, point taken.

 

 

 

Thanks for the help.

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Hi,

 

If that's all they have got for an agreement I can't see it being enforceable. However, I would get examples from other threads which will show how many different variations there are on what should be the same 'agreement' even though we know it's an application form.

 

They may be able to lump the two of these together but that doesn't mean there isn't a completely different defence to each account.

 

DD

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The only thing with the agreement is that while what you have been sent is not easily legible and so is not enforceable this does not mean that they won't turn up at court with a legible agreement.

 

But, as DD says above, if all they have is what they have sent you then they are probably on very dodgy ground here

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I've never seen anything other than this kind of MSDW application on any thread. Obviously I'm not on them all, but I'm on at least a dozen and most of them have not been updated very recently. Mostly they have had questions missing and I've advised people to write back asking for a copy of the whole agreement, not just parts of it. The reason the questions are missing (and they vary from form to form) is so that they can try and fit in relevant parts which weren't on the original.

 

r&b, see if you can actually find all the questions in numerical order and then list what they are.

 

One blatant example I have is of my own and that of another cagger which were both applied for on the same day. He has 11 questions on his form, but I have only nine. This is because two of his questions refer to PPI which he took out and I didn't. Therefore, the cut and paster decided those two questions weren't relevant to me so didn't bother to include them when they put the agreement together.

 

Then, more recently, they have been taking out even more questions as they have been challenged by caggers about the prescribed terms, so what they have sent to recent enquirers now has these apparently appearing on the front page, and of course they weren't there on the originals.

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Cabot have attained a judgment against me without my knowledge (NCCBC) and clubbed together an Egg and a Goldfish debt into the bargain.

My queries relate to the fact that:

1. they have clubbed them together in one package as a single judgment (£10k ish and £5kish), is this correct?

2. do the same rules apply to Credit Agreements etc as they were 2 years ago or has anth changed?

3. from memory I have to post some form of defence before the hearing. I'll look back through my old stuff but if anyone has any clues it would speed things up for me.

many thanks for any help.

 

It sounds as if it might be getting a bit late for you to do much. But the fact is that Cabot should clearly have made 2 separate claims, one for the Egg debt and one for the Goldfish debt.

For example, Rule 16.2(cc) says that where the claimant's only claim is for a specified sum, must contain a statement of the interest accrued on that sum;

I'll bet that Cabot have not set out in their Claim form the separately calculated accrued interest on the Egg debt and the Goldfish debt, as two individual calculations, which will run from different dates and be at different rates etc. That is what they must do.

Also, I will bet that Cabot have not complied with Rule 16.4 (2), which say's they must show the interest details set out in 16.4(2) for each individual debt.

Also, If they have claimed one lump of money, I bet they cannot show the court a (as in "a") written agreement for that amount.

There will be two written agreements - one for Egg, one for Goldfish. so there should be a separate claim for each agreement.

You could win on one and lose on the other, but iof they just lump it together that would clearly not be possible.

You will have a separate and unrelated defence to each of the debts.

You should tell the court that by lumping the two totally unrelated claims together, the claimant has not enabled the court to deal with the cases justly, within the meaning of Rule 1.1.

 

 

Regards.

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