Cabot - summary cause Scotland - Merged Argos Card & Littlewoods Card help! **Case Dismissed ***

[AndyOrch]

But then again you wasn't expected (or should be allowed) to defend so need for any preparation just to rely on your acquiesce with regards to this matter.

 

Andy

[delilahsahb]

Hello again folks,

here is the latest news received from my lawyer.

 

She has sent Cabots lawyers letters requesting the original cca agreements, default notices and she is questioning the assignments

 

especially the littlewoods credit card where cabot had the wrong account number and is asking to see the originals.

 

She has pointed out various legal jargon to them and is asking what evidence they are relying on in court.

 

It all looks pretty good to me so far but i have missed a couple of things i think.

 

Am i right in thinking that there should be 2 seperate agreements for the littlewoods credit card as they were charging me ppi?

 

I have also been slightly mischievious in quoting the Law of Property Act to my lawyer,

 

i did this as Cabot kept making references in their letters to English Law and also in the Argos T&Cs

there is reference to them being bound by English Law so as i live in Scotland i was hoping that the Scottish Law equivalent would apply and it apparently does.

 

This means that i should have been either given the Letter of Assignment by hand or by post

in which case i would have had to write back to them acknowledging receipt.

 

Again i have had something bothering me about this case and i have come up with the

"why Cabot sent reconstituted letters of assignment on both Littlewoods and Argos accounts?

 

Does this mean that they are unlikely to have the originals?

 

what if the judge tells them to rectify that by sending out new letters of assignment?

 

Does that mean that the payments i made to Cabot in 2007 were claimed by Cabot fraudulently

as they had the wrong account number even although they applied the payments to the correct account?

 

Technically speaking if i wasnt informed correctly or at all about the assignment and their assignment has the wrong account number

 

then the payments should not count in which case if you take it back to previous payments made in 2006

 

both accounts are now Statute Barred (5years Scottish Law)??

 

Its a nice thought isnt it?

 

Unfortunately my lawyer is now on holiday for a fortnight so i cant run that one by her at the moment

but im sure by the time she comes back i will have a list as long as my arm for her.

 

In the meantime folks, i would advise anyone with Cabot trouble to check all the paperwork

and make sure account numbers match as they are a sloppy lot.

 

Any input on my assignment thoughts or am i just wishful thinking and as loopy as ever?

[AndyOrch]

Hi Delilah

 

With regards to the points you raise above:-

 

No the PPI would normally be included in the main body of the CCA.

 

You should have received NoA (Notice of assignments) for both agreements either from the assignor or assignee by post

 

 

I'm confused as to why you would need to write back to them?

The debtor doesn't acknowledge the assignment you do that by payment.

 

Doesn't really matter re the reconstituted copies of NoAs originals or copies wont effect their claim.

 

As no effect on the Statute Barred issue either you have made payment and negated the issue of Statute Barred.

 

Regards

 

Andy

[delilahsahb]

Cheers Andy, it was just a nice thought.

 

 

Under Scottish Law equivalent of property act The Transmission of Moveable Property Act 1862 reads as follows:

 

An assignation shall be validly intimated

(1) by a notary public delivering a copy thereof, certified as correct, to the person or persons to whom intimation may in any case be requisite,

or

(2) by the holder of such assignation, or any person authorized by him, transmitting a copy thereof certified as correct by post to such person;

and (in the first case) a certificate by such notary public in or as nearly as may be in the form set forth in schedule C.

hereto annexed, and (in the second case) a written acknowledgment by the person to whom such copy may have been transmitted

by post as aforesaid of the receipt of the copy, shall be sufficient evidence of such intimation having been duly made:

 

 

Provided always, that if the deed or instrument containing such assignation shall likewise contain other conveyances or declarations of trust purposes

, it shall not be necessary to deliver or transmit a full copy thereof,

but only a copy of such part thereof as respects the subject matter of such assignation.

 

It was the 2nd part of written acknowledgement i was referring to.

 

What i was trying to say was that up until Cabot replied to my CCA request in January 2011

i hadnt been notified of the assignment and the letter of assignment they sent has the wrong account number on it

so technically speaking do they have a legal assignment to collect on my account or is the assignment on the wrong account number?

If the latter was the case and they had no legal right to the debt.....

 

I knew it was a long shot but hey if Cabot can be a law unto themselves i thought maybe i could too. lol.

 

 

Really, i should just sit back and let my lawyer deal with it but i like to give her a shove in the right direction if you know what i mean.

[AndyOrch]

Im all for research and shoving people in the right direction:-D Knowledge is power!!!

 

With regards to the wrong account number

I suppose at least any NoA should contain the correct AC number and debt amount.

 

 

The problem is that on many assignments account numbers can and do change which is wrong and another reason that this practice should be stopped.

 

Regards

 

Andy

[delilahsahb]

Now i will make you smile Andy.

 

Cabot had the correct account number in all other "please pay us" letters and in their recent letters

so they cant claim that the account number has changed.

 

It was the main part of their letter under their LETTER OF ASSIGNMENT that they had put the wrong account number in and they claim that this is a reconstituted copy based on the original, they even put the date in as 2007.

 

unless they come up with the original with the correct account number then its 1-0 to me i think.

Its their mistake but it could turn out to be a costly one for them.

 

I got a picture in my head of some poor soul trapsing around the archives of Littlewoods/barclaycard and Cabot like a headless chicken, it gives me the will to carry on.

 

I once took my hubbys work (a very large council) to a tribunal under the disablity rights act,

they got that fed up with me blasting them with the law that they backed down,

 

he got the new job and we got a nice holiday out of the compensation for injured feelings

so if Cabot think or thought id be a push over they got me all wrong.

[delilahsahb]

Hey Andy if youre out there what do you think of this?

 

 

Cabots lawyer wrote to mine stating that they have received scanned copies of documents from Cabot

and they want to know exactly what these are before lodging them in court.

 

 

I thought that their lawyers would need to produce originals and i know that my solicitor has requested originals

to be submitted in court so why would Cabot send scanned copies??

[AndyOrch]

Most originals were destroyed and transfered to microfiche purely because of storage in the 80s/90s.

Requesting originals can be construed as " with your signature or theirs and not a reconstituted version"

Not sure why their lawyer would have to request "what are these " though I would have presumed its obvious what they are.

 

Andy

[delilahsahb]

My thoughts too,

it seemed a bit strange to me but its a weird world, they dont state what documentation is scanned

so unsure what theyre referring to at the moment.

 

 

I know for a fact that the only thing i signed was the application forms so it will be interesting to see what they come up with.

Im hoping ive got em worried so far.

 

 

Many thanks again for your input though.

[delilahsahb]

Hi Folks, im really upset at the outcome for Barns66 today

http://www.consumeractiongroup.co.uk/forum/showthread.php?141075-Cabot-Morgan-Solicitors-Court-Action-(ex-Goldfish-account)/page11

and im getting that sinking feeling again.

 

 

My lawyer is back on Monday

im going to write her a letter so she gets it on Monday morning

any input would be most appreciated.

 

 

I hope she has heard back from Cabots lawyers by then with the info she has requested.

 

 

i think she is pretty clear on my case and she has been given some Case Law examples

but i havent given her a copy of the Scary Carey case so i suppose i better now to make sure she doesnt get her fingers burnt.

 

 

I have seen a case on a post whereby Cabot were reporting default info onto someones credit file as were the original creditor

and it was taken to court for fraud so i will find that one again and include it.

Id really like her to go for the case to be struck out at the hearing next week,

anyone think i should ask her if that would be possible?

Ok then here we go with what ive got so far:

 

1. No averrment on Summary Cause Action Scottish Law Act of Serundant

 

2. No CCA with prescribed terms- application forms from catalogues they were taken from without the prescribed terms

and T&Cs could not therefore have been present at time of signing

 

3. No default notices have been issued to my knowledge, yet both Cabot and Barclaycard are reporting on my Credit File with defaults

 

4. No notices of assignment apart from the reconstituted versions sent by Cabot in answer to my CCA request

received in January 2011 one of which has the wrong account number

(make sure i give my lawyer a copy of the Transmission of Moveable Property Act, Scotlands answer to Law of Property Act)

 

5. Letter from Barclaycard for same account shows entirely different amount due

Plus give my lawyer a copy of Scary Carey, the case law on fraud involving Cabot and the Transmission of Moveable Property Act

 

6. PPI insurance added but other than a tick in the box and it showing on statements Cabot sent in answer to my CCA no other mention of it.

 

7. Cabot have not sent any annual statements of alleged accounts

 

Thats about all i can think of,

if anyone has any input or notices something i might have missed out please let me know.

 

 

I know they will try and get around the default issues but i want to make it as hard as possible to get around anything else.

They cant with the Letter of Assignment by saying its a new account number or one they have issued

because the letters they sent after this has the original account number on it.

 

 

They would i imagine be using the application forms as credit agreements as the letters they sent with them state

we have complied with your request and sent a copy of your agreement which were the original application forms

i signed in 2004 (my lawyer has a recent case involving a similar situation with application forms and flyers sent through doors).

 

 

Have i covered everything?

 

 

Nope, i forgot to get her a copy of my credit file so she can see both reporting for same account

 

 

. Now, anything else???

[delilahsahb]

Hi again All.

 

 

Just copied my credit file for my lawyer and it makes interesting reading.

 

 

According to Cabot they issued me with a default notice on 1st May 2007 (no they didnt)

but it is interesting coz according to them they didnt buy the account until June 2007 and im pretty sure it was the end of June.

 

 

They have the opening balance at £4,087 and the current balance at £4,523 with a lifetime change of £436 (which they have added on in interest by the look of things).

There is also no mention or change when i made them some payments in 2007/early 2008.

 

 

Now the same account being reported by original creditor Barclaycard states

"the payment status has been reported as in default but does not state as in Cabots "

a default notice has been served".

 

 

Barclaycard has a default date of the 1st September 2006,

it is currently showing as a balance of £4,025 with an opening balance of £0.

 

 

When i got a letter from Barclaycard after i CCA'd Cabot

they showed the balance at £3,800 that was in late Dec 2010.

 

 

Both are reporting on my credit file for the same account isnt that a bit naughty of them and neither of them have sent me a default notice.

Any thoughts on this?

[IdaInFife]

Hiya,

 

I had to unapprove your last post due to the link to an external sight.

 

It is very rare to get a lwyer on legal aid for these types of actions so well done on that point. You have certainly done your research and seem to have it all covered. I cannot think of anything to else to add but will get SFU to pop in and have a look as well.

 

Ida x

[Desperate Daniella]

Hi Delilah. ,

 

What happened to barns66 yesterday was dreadful.

As I said there, it's important your lawyer doesn't let them get away with only quoting half of Carey,

because in that judgment it's quite clear that if the agreement has been varied the original agreement must be produced.

 

 

As virtually all accounts get the interest raised they have nearly all been varied.

 

On another note,

I read a couple of years ago on the forum a posting from someone who had seen off all her creditors on the basis of only microfiche copies being available.

I stupidly didn't make a note of the thread and I've searched for it a couple of times without success.

Maybe someone here knows what that thread was?

 

DD

[seriously fed up]

Hi ya

I think you have done really well with this in a number of ways.

First of all the case you have is, I think, really strong.

 

Secondly you have had a lot of good advice from a lot of good people.

 

Thirdly you have a lawyer on legal aid

- not many of them going about as I suspect some of them dont want to ... the banks off.

 

Also, i learned a couple of things from reading through it

- the SCottish Equivalent of Law of Property Act

- I would bet that a lot of people in Cabot dont even know that there is a such a thing separate from England.

 

Also AndyO's discussion of the consequences of the 2006 Act for Notice of Arrears etc.

All of this will be very useful to me since about a year ago,

B'card sold my account to Cabot as well.

 

Since then I have been playing a game of enforceable agreement with them

since the only document they have with my sig is so old that Jim Callaghan was PM when I signed it

- not a single ref to the CCA and not a prescribed term in sight.

Recently they have been quiet - he said clutching a wooden table - long may it continue.

 

From reading through,

I think you have a very strong case, but imo the main thing is point 2.

All of the rest is true and influential, but

 

 

the great thing about no prescribed terms on the sig document is that it means they are in breach of s61 (1) (a) which takes us through to s127 (3)

 

which means the court - no matter what it might think itself

- is specifically prevented from issuing an enforcement order.

This is quite mechanical - there is no discretion for the court.

 

This is not to say anything negative against the rest of your defence,

but it seems to me to be ancillary to this point.

 

For instance ,

for a Scottish solicitor to forget to include the averment is either crass incompetence or a sign that they dont have an agreement (quite possibly, I suppose both).

 

the court might decide that this is de minimis and can be corrected, or was of no real significance.

 

the advantage of your point 2 is,

it seems to me,

that it offers the court no discretion which they might just use against you.

 

Couple of other things that occurred to me while reading the thread

 

 

re no default notice or not,

i noted the precise requirements of the transmission of moveable property act

- have a look at Cabot's "hello" letter

- check the back of it

- there you will find a condition that this letter is your notice of assignment.

 

 

Do you agree with me that there is no way that matches up to the requirements of the Transmission etc Act?

 

 

re whether or not there was a default notice issued,

you will say they didnt,

and they will insist till blue in the face that they did

-"its part of our procedures you see".

 

 

One way you might be able to get them is by doing a SAR on B'card,

who should have defaulted you before selling you into slavery with Cabot.

 

 

If/ when the SAR results come back in

(and B'card have a reputation for being truly awfully slow in providing the needful)

look at the communications log

(the list of communications they have had with you - not just phone calls but letters from/to you).

 

 

If that doesnt say anything about a default notice then its not just you saying they never issued one, but their IT system as well.

 

 

I know you might not have the time for this

- but it might just be an opportunity for a continuation if you were so minded (after all they would do the same).

 

 

Good luck on the rest of your struggle with them.

On the basis that they dont have a document bearing your sig that contains all of the prescribed terms, I would be very hopeful of your success.

I will watch with interest.

SFU

[seriously fed up]

Hi Delilah. ,

 

What happened to barns66 yesterday was dreadful. As I said there, it's important your lawyer doesn't let them get away with only quoting half of Carey, because in that judgment it's quite clear that if the agreement has been varied the original agreement must be produced. As virtually all accounts get the interest raised they have nearly all been varied.

 

On another note, I read a couple of years ago on the forum a posting from someone who had seen off all her creditors on the basis of only microfiche copies being available. I stupidly didn't make a note of the thread and I've searched for it a couple of times without success. Maybe someone here knows what that thread was?

 

DD

 

Could it be this one - http://www.consumeractiongroup.co.uk/forum/showthread.php?252689-Credit-Card-defence-****WON****/page7&highlight=microfiche+copies - scroll down to post 128, and in particular paragraphs 7 and 8 of her "particularised defence" where she goes to town on the admissibility of copies to court proceedings

[Desperate Daniella]

Thank you very much.

 

That's not the one I was referring to - it was probably in 2009 - but that is an immensely useful thread, and I'm very grateful to you for posting the link.

 

DDx

[delilahsahb]

Hi again, thanks for all your help.

 

 

It was pretty difficult to find a solicitor who would deal with this so i phoned around a few

and asked if they could recommend someone to deal with it and even phoned the court to see if they could help and hey presto.

 

 

As its a civil legal aid case and i may have some minimal costs at the end of it but have been assured it wont be much,

so i thought it was worth the risk and would add more weight than me getting tongue tied and twisted in front of a judge

and if i win i intend to make sure Cabot foots the bill.

Also court scares the **** out of me.

 

 

From what i can read into the info my lawyer has received from them so far,

it looks like Cabot treat their lawyers to the same "waiting" game and it will be a last minute job with the info requested.

 

I didnt receive a letter of assignment from Cabot and what they sent was headed Reconstituted Copy

supposedly from Barclaycard with the date of (i think it was dec.2010) it then had the date of June 2007

and the account number on the left hand side and all it said was Barclaycard had assigned the account to Cabo

t and they would be collecting payments.

 

 

Cant quote it word for word coz my lawyer has it but it was along those lines.

It was a photocopy and there was definately nothing on the back of it, that i do know.

 

My lawyer seems to have bombarded Cabots lawyer (based the other side of Scotland) with requesting True signed copies of the Credit Agreemen

t containing all the prescribed terms that should be contained within the four corners of the agreement,

asked why no averrment was made contrary to Act of Serendunt,

asked where they got their charges from and demanding a detailed breakdown,

asked for copies of assignment and whether its an absolute assignment and has

asked for copies of default notices.

 

 

As far as i know she is unaware of The Transmission of Moveable Property so i have included a copy along with a letter,

the Carey case, the fraudsters news on Cabot case and a detailed print off of the Barclaycard entry and Cabots entry on my credit file.

 

 

I know she has been seeking advise from Trading Standards on this and they have taken an express interest apparantly

(could be good news on that score, if they find grounds to report them).

 

 

Cabots lawyer had already requested a 4 week continuation so its back next week for a further hearing,

Trading Standards and my lawyer are hopeful that they will discontinue but im not so sure,

maybe yes because i have a lawyer but its Cabot and i always expect the unexpected where they are concerned.

 

 

I pointed out to my lawyer last time i saw her that the application forms were from leaflets from catalogues

and there was no terms and conditions present at the time of signing.

 

 

Application form sent off, if approved card sent, pin number seperately and then Terms and Conditions

and i had found a case similar on line which was after the Carey case whereby it was the same sort of scenerio only it was flyer leaflets.

 

 

I have done loads of research from posts and threads to googling cases and i even had a look at Cabots last annual report and accounts

(that was worth a laugh, no wonder their staff are so goddamn obnoxious, you should see what they pay them and directors are on similar salary to the Prime Minister)

but as Andyorch says "Knowledge is Power".

 

 

The thing i find most interesting on this and i havent mentioned to anyone is

i had a similar account through a catalogue which was another Barclaycard credit card,

same circumstances in that it was a leaflet in the catalogue,

the debt was assigned to Capquest,

who (dont faint) sent me a letter stating that the information they had was unenforceable after i CCA'd them.

 

 

Cabot scare me, they are devious and unpredictable so i want to have my lawyer ready and clued up to deal with them

if it comes to it and the knowledge, experiences and support from all Caggers is worth more than its weight in gold.

 

Ps. had a quick look microfiche and copies and will study in more detail tomorrow many many thanks for that.

I have SAR'd Barclaycard and await their reply,

would be quicker trailing their archives myself,

 

 

fascinating how if your behind with one payment they can have your details in a second even to the last time

i sneezed but when someone asks them for something they get the office snail to do it.

[Desperate Daniella]

count orlok was one of the people who said he'd checked out microfiche, but he wasn't the person I was looking for and i haven't had a chance to read all his posts on it. It might be worth your checking with him.

 

DD

[delilahsahb]

Hi Seriously Fed Up,

 

i hate to put a spanner in the works so to speak,

but Cabot were quiet with me for about a year and a half and

 

then i was bombarded with demand letters, thats why i CCA'd them.

 

I think it was to do with the fact it my accounts would have been statute barred early next year (Scottish 5years Law)

and they chanced their luck with court action hoping i would pay without a fight.

 

They appear to do this a lot to people.

 

Cabot are one of the worst DCA's ive dealt with,

 

Mack Hall,

Capquest,

BCW,

1st Credit,

Scott & Co

have all been firmly but easily dealt with but Cabot are persistent pains in the neck).

[Undercover-Elsa]

count orlok was one of the people who said he'd checked out microfiche, but he wasn't the person I was looking for and i haven't had a chance to read all his posts on it. It might be worth your checking with him.

 

DD

 

Hi DD

There's also quite a good post by SurfaceagentX20 (post 16) :

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage&p=1708484&highlight=microfiche#post1708484

 

Hope you're well?

 

Elsa xx

[Desperate Daniella]

Hi Elsa,

 

Thank you for that.

It's still not the one I'm looking for though again it's very useful.

It came up when I was quite new on CAG,

probably early 09,

and I don't think it was when I was reading a thread from the beginning,

and it wasn't on the poster's own thread.

I am such an idiot for not writing it down at the time.

 

 

The lady in question says she has seen off about seven creditors on the microfiche argument.

I've checked a couple of the very, very long threads by searching but not come up with it yet.

 

 

I don't need it right now, but may do in the future,

so from time to time when it comes up on other threads I mention it because it could be useful as an extra point of defence, and someone might know who I'm talking about.

 

I am fine, thank you. All the card companies just trundling along, as is my main case which is why I haven't updated it recently, but I'll go and say hello there too.

 

Hope all is well with you too?

 

DDxx

[delilahsahb]

Hi Daniella,

all i know about microfiche is it comes under the Civil Evidence Act 1995.

Not had a chance to read it yet as my head is on fire with Cabot stuff and i feel like my head has lost my brain somewhere at the moment.

 

Not feeling so good today, so im giving myself the night off to chillax ready to start the good fight again tomorrow.

 

 

 

it might have been Alanalana post from 2008??

Just read it just now after googling Civil Evidence Act 1995.

 

Delilah x

[delilahsahb]

Hi again everybody,

 

i have spent the weekend looking at Data Protection Laws, Malicious Intent Laws and Libel and Slander.

 

Im going to emphasise to my lawyer that both Cabot and Barclaycard should not have been reporting on my Credit Files for the past 4 years

as this has been detrimental to my credit scoring etc.

 

One of them has been doing so against the law and this is against Data Protection and is also libelous,

so i want her to countersue which ever one is at fault (in for a penny, in for a pound so to speak).

 

I can only put it to her and see what she says but it might stop Cabot being so "court action happy" if i can take them for it.

 

With regards to the Malicious Intent,

i would say that if they dont have and enforceable credit agreement then they have taken court action without reasonable cause.

 

It is not good enough for them to turn around and say that they thought it was enforceable

when they are in the debt collection industry and should know better,

so im going to put that to her and see what she says to that.

 

I know im probably pushing my luck but if you dont try and beat them

and throw everything you can at them then they will continue to take court action against people when they know they shouldnt

and i know that a lot of people just admit the debt rather than go to court.

 

Im lucky i have a lawyer,

i might as well use her to try and help not only me but other people who find themselves in the same position.

 

Any thoughts anyone?

[seriously fed up]

Hi Seriously Fed Up, i hate to put a spanner in the works so to speak, but Cabot were quiet with me for about a year and a half and then i was bombarded with demand letters, thats why i CCA'd them. I think it was to do with the fact it my accounts would have been statute barred early next year (Scottish 5years Law) and they chanced their luck with court action hoping i would pay without a fight. They appear to do this a lot to people. Cabot are one of the worst DCA's ive dealt with, Mack Hall,Capquest,BCW,1st Credit, Scott & Co have all been firmly but easily dealt with but Cabot are persistent pains in the **** (neck).

 

You may be right

- as in all matters of this type,

its all a question of "wait and see".

 

 

This is actually my third time round the block with Cabot.

First time was a Morgan Stanley (eventually these became Goldfish) card which was sold to them at the beginning of 2009.

 

 

In response to their "hello" letter,

I sent them a "hi, could you send me an executed agreement" letter.

 

 

In March 2009,

I got a letter from them admitting they had asked Goldfish and got nothing back.

 

 

Since then heard nothing from them at all

(and yes, I have got the original letter admitting no agreement).

 

Second time was a Vanquis card which unfortunately was post 2007 (so 127 (3) doesnt run) as they paperwork from the OC was really all over the place.

 

 

I suppose I could have taken it to court and tried my luck there

(if they had taken it that way)

but I didnt fancy leaving myself open to the court's discretion,

so, allied to the fact the amount owing wasnt that much (certainly not relatively)

I agreed 30% in F&F with them.

 

Of course,

they could come back at me,

and very possibly will,

but the only thing they have with my sig on it is an application form without a single prescribed term.

 

 

I wouldnt say I wish them luck,

but you know what I mean (I hope).

Just have to "wait and see"

[delilahsahb]

Hey Seriously Fed Up,

i thought i was safe with them too coz thats all they have with me,

 

 

2 application forms with no prescribed terms, thats why i want to ask my lawyer about malicious intent or malicious prosecution

because they knew before starting the action that they arent enforceable agreements

but i suppose that depends on what mood the judge is in on the day i suppose,

although the law states that a court cannot enforce the agreement.

 

 

I hate all the waiting, im gee'd up and raring to go today (come Friday i will be as meek as a mouse again and shaking in my boots)

 

Delilah