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


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Hi,

anyone out there that can stop me from panicking?

received a summary cause from court by cabots lawyers (Scottish law) over an old credit card debt and an argos store card.

Amounts are £4,600 and £258.

 

I had a moment of weakness in 2008 and made payments to both otherwise they would have been statute barred.

 

In Sept last year i CCA'd cabot on both accounts

in each case they sent me copies of the application forms which were signed by me but do not include any of the prescribed terms.

 

They also sent original notice of assignments and

when i say original i mean they were dated October last year with the heading as This is what was sent in June 2007.

 

As far as i know no default action has been taken unless it was with the original creditors in which case would have been around 2005/2006.

 

The court papers their lawyer merely states that cabot own the accounts and im due them this money, there is no evidence attached.

Also in letters they have been referring to the accounts being covered by English law (dont know if that would have any bearing).

 

Separate terms and conditions were sent along with the application forms and ive scoured the application forms

but can see no reference to separate terms and conditions.

Sorry if this sounds a bit mumbo jumbo but i hope ive covered everything.

 

Any advise on how to proceed and if i have a good case for defending the action would be most appreciated

Edited by delilahsahb
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Hi de

 

Welcome to CAG

The guys will advise as soon as they are available.

 

Have you got any Penalty Charges or have you been mis-sold PPI on these cards?

Also have you sent a CCA Request?

 

It is really important to establish these facts.

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Hi Delilah,

Welcome to CAG! :-)

We need more details to get started...

Can you scan and post up:

Copies of agreement / app form

T&C's

Particulars of claims

 

Remember to remove personal details. It's best to post them as PDF's. Upload them to something like Tinypic.com and then post the link.

Prior to your payments in 2008, when was the last payment?

Have they sent default notices?

If Cabots are named as owners of the debts on the claim, did you receive notices of assignment? (Letters informing you they had purchased the debt)

 

That's enough to be going on with till others more conversant with Scottish Law come in to advise...:-)

 

kind regards, and.......don't panic!!!

 

Elsa xx

PLEASE NOTE... I AM MOST SORRY BUT I HAVE VERY LIMITED AVAILABILITY AT THE MOMENT DUE TO EXTREME PRESSURE OF WORK - IF YOU REQUIRE URGENT HELP ON YOUR THREAD AND ARE GETTING NO RESPONSE PLEASE HIT THE TRIANGLE FOR SITE TEAM ASSISTANCE. ELSA XXX

 

Please check out my BLOG for the quick guide to debt threats - it has all the info & letter template links you need to get started on your journey of TAKING CONTROL. :roll:

 

All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

Please click the *star* of any CAG member who has helped you .

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Summary Application Rules (as amended by Act of Sederunt (Sheriff Court Rules) (Miscellaneous Amendments) 2009 No 294)

 

3.—(1) The Summary Application Rules are amended in accordance with the following subparagraphs.(2) In rule 2.4 (the initial writ)(8), after paragraph (4) insert—“(4A) In an action which relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974—(a)the initial writ shall include an averment that such an agreement exists and details of the agreement; and(b)a copy of the regulated agreement shall be lodged with the initial writ.”.

 

Came into force with effect from 1st December 2009.

As of 03/03/12 please do not under any circumstances wait for my further input or guidance on any current thread or defence of a court claim I might have been involved in on or through Cag.

Jasper1965

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Thanks folks, my scanner isnt working at the moment but will get copies up as soon as poss.

 

 

The court papers do not mention any credit agreement.

Their solicitors are claiming cabot were assigned the debts in June 2007 and November 2007

and i havent paid them so they are now pursuing me for the monies owed.

 

 

I CCA'd Cabot last year and received eventually signed credit application forms for both

none of which have any of the prescribed terms i.e No credit limit, no apr rate etc.

 

 

The Argos one does not mention anywhere see terms and conditions and they have me down as a homemaker who works for the city council?

I havent worked since 1991 so where they got that from is beyond me.

 

 

The littlewoods form is headed Apply Now then at the foot of the page it mentions see terms and conditions,

then "Offer Ends 31st December 2004", there is none of the information regarding prescribed terms

although the t&c's have been sent on a barely legible separate sheet of paper.

I have as far as i know never been defaulted on these accounts which both date back to 2004.

 

 

Prior to me making 6 payments to cabot in 2008 i hadnt made payments to either since early 2005

so i think if original creditor had defaulted me it would have been then or before.

 

 

The only letters i have received from Cabot regarding them being assigned the debt is when i CCA'd them.

They sent a letter for each account at the top it says "Sent June 2007" but is dated October 2010

and the other "Sent November 2007" also dated October 2010 all the say is they purchased the debt from the original creditor on these dates.

 

 

Am i right in thinking the correct procedure hasnt been followed for the court proceedings

and that the agreements are unenforceable and i should have had a default notice?

Hoping to get copies of all bumph up as soon as poss.

Edited by delilahsahb
didnt make sense at parts
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Looks like they've fallen foul of Rules 4A(a) and 4A(b) for starters.

I'm not sure but this alone might well constitute grounds for the case being thrown out.

 

They have to make an averrment that the agreement exists, if all they've sent you are unexecuted application forms then there has to be doubt over whether an agreement ever existed.

 

Suggest you enter a defence along the lines of but let some of the Scots law experts have a look first:

 

1) The claimant has failed to abide by the Summary Action Rule 4.2A(a) in so far as the amount claimed relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974, any original agreement under which this claim is made was between Mr. Smith and Some credit Card company, the claimant averring to have purchased the rights to the agreement on xx/xx/2007.

 

2) The claimant has failed to abide by the Summary Action Rule 4.2A(a) in so far as the amount claimed relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974, any original agreement under which this claim is made was between Mr. Smith and Littlewoods, the claimant averring to have purchased the rights to the agreement on xx/xx/2007.

 

3) The claimant has failed to abide by the Summary Action Rule 4.2A(b) in so far as the amount claimed relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974. The claimant has failed to attach a copy of the agreement if any exists between the defendant and Some credit card co.

 

4) The claimant has failed to abide by the Summary Action Rule 4.2A(b) in so far as the amount claimed relates to a regulated agreement within the meaning given by section 189(1) of the Consumer Credit Act 1974. The claimant has failed to attach a copy of the agreement if any exists between the defendant and Littlewoods.

 

5) for the reasons set out within parts 1 through 4 of this defence the defendant is unable to either admit or deny that a debt exists, admit or deny the amount claimed or the manner in which it has been calculated.

 

6) for the reasons including those set out within parts 1 through 4 of this defence, the defendant is unable to admit or deny whether any lawfully executed agreement exists or ever existed in respect of these amounts claimed.

 

7) For the reasons set out within 1-6 of this defence, the defendant respectfully requests that this claim be dismissed.

As of 03/03/12 please do not under any circumstances wait for my further input or guidance on any current thread or defence of a court claim I might have been involved in on or through Cag.

Jasper1965

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Thank you, that sounds great.

 

 

I have managed to get an appointment with a legal aid solicitor for this Wednesday

and they seemed pretty interested so hopefully they will check everything and take the case for me.

I have also read a case from December 2010 for the same court and the defendant won on the same sort of principles.

 

 

I think cabot try the court action to frighten people in the hope that they dont defend and they automatically win.

They should be ashamed of the distress they can cause.

 

 

I think i might have been mis-sold ppi on the littlewoods one so will need to delve deeper to make sure

but if i mention that would it not mean admitting to the agreement and therefore i would be snookered?

 

 

I really appreciate the info i have been given and found on this forum and i will let you know what the lawyer says.

I think when they find out im being defended by a solicitor (hopefully), that they will back off with their tails between their legs, if not i wont go down without a fight.

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Hi folks, couldnt get my scanner to work and cant afford a new one just yet.

Off to see lawyer tomorrow but if anyone has got any opinions on what ive got so far they'd be much appreciated.

 

 

Here goes!!

 

1) No averrment to credit agreements on Summary Cause Application

 

2)The reconstituted letter of assignment received from cabot when i had asked for the CCA

shows a different account number for the Littlewoods account

 

3) The info they say is a credit agreement is an application form which does not contain any of the prescribed terms.

The terms and conditions they sent are dated 2008 and not 2004 when account was applied for and are separate from the application form.

 

4) A letter from Littlewoods Barclaycard shows completely different terms and conditions for this account,

the letter states this is your agreement but it is only terms and conditions they sent.

There is nothing signed, no credit limit or prescribed terms.

They say the account stands at £3800 and not the £4700 as cabot claim.

They have made no reference to the debt having been sold on and state they have the right to default me on the account

but will let me know in writing if they intend to do so. So obviously no default has been issued from them

 

5) In statements sent from Cabot it would appear that i was sold PPI but on application form it was ticked as Homemaker

 

Anyone have any thoughts on this?

 

 

I have written it all down so i can point out key facts to lawyer

but i am so nervous i will probably forget to take them with me.

 

 

Anyone think i have a good case please boost my confidence

and let me know and does anyone know if you can countersue for stress and distress?

 

 

Cheers!

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Saw solicitor today,

thankfully i should qualify for legal aid.

she is going to write to Cabots solicitors asking for them to give her all info.

 

 

I pointed out that i had never received a default notice,

there were no prescribed terms,

the account number was wrong on the letter of assignment,

the balance is different and

there was no averment in the summary cause action to it being credit cards

and that i had been mis-sold ppi.

 

 

Im still in a panic coz i know lawyers dont like to give anything away

but she was asking if i could afford to pay them just in case (at a push, yes, do i want to? no, not if its an unenforcable debt)

Then she asked why they had sent the application forms and not the original agreement

 

 

i pointed out to her that according to Cabot the application forms are the agreements

and she told me i must be wrong so she would write to their solicitor asking for them.

 

 

I came out with a wry smile on my face for the CCA part

and because ive got someone else to deal with it for me

but im still worried in case sneaky Cabot end up with a charging order on my home.

 

 

I wouldnt have known where to start if it wasnt for sites like this

and id have just pleaded guilty so i want to thank everyone for sharing their knowledge.

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  • 1 month later...

Hi Folks,

this is the latest update on my up and coming court case next week.

 

 

Cabots solicitors have so far failed to supply my lawyer with any information

apart from a letter stating that Cabot did not need to supply a default notice for a credit card debt???? Yeah! and

im sure the court will be stupid enough to believe that one.

 

 

With regard to their Letter of Assignment for the Littlewoods account,

they had the wrong account number on it on the copy they sent me in 2010,

 

 

i have pointed out to my lawyer that this puts question as to whether they own the debt

and even if they produce a document with the correct details,

they will have to prove that it was sent by recorded delivery

and was signed for as per the Law of Property Act 1925 sections 136 & 196(4) with the correct information on it.

 

 

The accounts were both postal applications, whereby separate T&Cs would have been sent out later once approved,

i have pointed out and quoted a few court cases where has been stated that the prescribed terms must be contained within the 4 corners of the agreement,

mere reference to T&Cs will not suffice and the court are therefore unable to enforce.

 

 

Court case is next Friday the 8th July

its in the hands of my lawyer (who im not sure of),

i will be away on holiday so i wont find out whats happening til i come back.

 

 

Does anyone have any opinions based on what ive stated.

 

 

Im hoping it will get thrown out or Cabots lawyers either wont turn up or will pull out.

 

 

Please anyone out there who can put my mind at rest would be most appreciated.

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Cabot/Morgans will say that they do not need to send a default notice because they are claiming the arrears owed and not the full balance.

Dispatch, “We have a 911, Armed Robbery in progress, see Surplus Store corner of Peebles Drive and West 24th Street”

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And if there are arrears then there must be a DN and even if they have not sent a DN then they have to send a Notice of Arrears

CCA2006 amendments Oct 2008. If they have not sent any NoA then they are not entitled to pursue.

 

Failure to give notice of sums in arrears

 

Introduction

The Consumer Credit Act and its amendments affect all those who use credit to buy goods and or services, for example, on hire-purchase agreements or using a store credit card. The Act governs the licensing of, and other controls, on traders who supply credit, or goods and services on credit. It is therefore a valuable tool to have knowledge of how it works at your fingertips.

 

This article explains a recent change to Consumer Credit law – the CCA 2006. Specifically, it explains what a creditor may do if the debtor breaches the agreement.

 

Arrears notice penalty:

Of course when a trader provides credit, the debtor may default, perhaps knowingly, perhaps unknowingly. Either way, the creditor is under a duty to provide the debtor with a notice stating that they are in arrears and owe ‘x’ amount of money.

 

A new amendment has been made in case of failure to give notice of sums in arrears in CCA 1974. Section 11 CCA 2006 inserts a new section - 86D - that sets out the consequences for a creditor or owner if he fails to give a notice as required by sections 86B or 86C.

 

If the creditor or owner fails to provide a notice of sums in arrears when required to do so, then during the period of his failure to provide the notice (i.e. from the date that it was required to be given until the end of the day on which it is eventually provided), he is not entitled to enforce the agreement. In addition,

 

The debtor or hirer is not liable to pay any interest that relates to the period of the creditor or owner’s failure,

 

Notice of default sums

Section 12 of CCA 2006 applies to situations where a debtor or hirer under a regulated agreement incurs a default sum.

 

A creditor or owner must give the debtor or hirer a notice in the specified form when a default sum becomes payable as a consequence of a breach of the agreement. For example, you hire a car for the duration of your holiday. There will often be a penalty sum payable if you incur a fine from using the car. The car-hire company might say this is to cover, for example, administration charges. Either way, certain sums are payable if you breach the agreement. Where this applies, the creditor must provide notice to the debtor, of the amount they must pay. This only applies where the default sum exceeds a specified amount.

 

Additionally, a creditor may only require a debtor to pay interest (in connection with a default sum) 28 days after the day the notice was given to the debtor. So if the creditor fails to give notice to the debtor then he can not enforce the agreement until notice is given.

 

Default sum

The term ‘default sum’ has been redefined in s.18 CCA 2006. “Default sum” now means: a sum payable by a debtor or hirer in connection with his breach of a regulated agreement (e.g. a charge imposed for late payment of an instalment due under the agreement or a fee imposed for exceeding a credit limit on a credit card). A default sum does not include sums that, as a consequence of a breach of the agreement, become payable earlier than they otherwise would have done. Nor does it include interest.

 

Interest on default sums

Section 13 has been amended so that a creditor or owner may only require simple interest to be paid in respect of default sums payable by the debtor or hirer. This includes sums payable under non-commercial or small agreements.

 

Minimum 14 days after Default notices

The new minimum period after which a creditor or owner may take action (in respect of the agreement after having issued a default notice) is now 14 days. It used to be only 7 days. Section 14 CCA 2006 amends section 88 of the 1974 Act to create this extension.

Additionally, under s87, a creditor or owner must give the debtor or hirer a default notice in the prescribed form if he wishes to:

  • Terminate the agreement;
  • Demand earlier payment of a sum;
  • Recover possession of any goods or land;
  • Treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred; or to;
  • Enforce any security.

Section 88 is also amended to allow the Secretary of State to prescribe information in the default notice to include any matters relating to the agreement (e.g. information about whether the agreement includes a term providing for the charging of post-judgment interest).

 

Regards

 

Andy

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Excellent advice AndyO :thumb:

As of 03/03/12 please do not under any circumstances wait for my further input or guidance on any current thread or defence of a court claim I might have been involved in on or through Cag.

Jasper1965

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thanks Andy. Any view on the Letter of Assignment with wrong account number?

 

It can be used as part of your defence but I personally would be fighting on the the above point I have outlined.Far stronger

and one which most DJs will be able to understand:!:

 

 

Andy

We could do with some help from you.

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Couldnt sleep last night for thinking about this.

When i get my teeth into something i cant let go,

 

 

i was wondering why when i CCA'd Cabot that Barclaycard had written to me too.

The letter is with my lawyer so im trying to remember what it said.

 

 

Here goes..

.there was no reference to Cabot owning the account or to the account being assigned,

the amount of credit differed to what Cabot had and they said that i should be paying the account,

they didnt send me a CCA but sent different T&Cs to what Cabot did

 

 

.I decided to do a credit check this morning to see what info Cabot has placed.

Firstly, with the Littlewoods/barclaycard Cabot are saying a default was issued in July 2007 (not to me it wasnt),

the payments i made to them in 2008 are not showing as having been made to the account,

although in the statements Cabot have sent me they were deducted from the balance.

 

 

It also appears that Barclaycard are also reporting separately for this credit card and show a default being issued in September 2005. Any ideas???

 

 

I know i should have sent a Subject Access Request but money was very tight at the time so i chose the easy option of the CCA request.

 

 

Would the judge have to see the Original Notice of Assignment?

and should i SAR Barclaycard now or is it too late?

 

 

They way im seeing this is that Cabot dont have an Absolute Assignment and therefore do not have any legal claim.

I know for definate that no default notice was given and i wasnt given a copy of any when i got the info from them.

 

 

Its starting to look as if they have made a court claim in the hope that i wouldnt defend the action and be forced into paying them,

and surely if their lawyers were prepared to sue me, they should have had all the info to hand

to make sure they could so why are they stalling with my lawyer and saying they are requesting the info from their client???

 

 

I feel as if im going off my head, my brain is about to explode with all the info on CCA's, prescribed terms, separate T&C's,

The Act of Serundant, Law of Property Act 1925, Default protocol and all the case studies ive read up on.

 

 

All advise and opinions gratefully received

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Your not going off your head Delilah,

this it what happens when these leaches buy debts from OCs and gives rise to doubts in all sections.

 

It should be banned for those very reasons considering the OCs have already wrote the debt off and claimed tax relief initially.

 

 

Double entry defaults on your register, inconsistent accounting,missing payments, lack of paperwork to verify entitlement

 

They have bought the debt with one intention, not to become the benefactor in an ongoing financial relationship with yourself

but to litigate on it at the very first opportunity.

 

 

Costs money to service a debt collecting, accounting and informing, issuing mthly statements

and complying with the CCA and FSA/OFT regulations.CCJs and Charging orders

are the only incentive to purchase and to cause misery to anyone connected to said debts.

 

Its quite true what you state they hope you dont defend because that causes problems and costs them in achieving their target.

 

 

They dont have the paperwork or statements they purchase a debt, a figure, and a name and address.

 

 

They cant account or record what you have already payed them they dont know or care.

 

 

They are looking at the bigger picture.

 

 

Use what I have posted stick to the NoA and put them to proof and accountability.

 

Wish you well with your case.

 

Regards

 

Andy

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Hi Delilah,

I think their reference to a Default Notice not being required due to it being a running credit agreement

is based on the misbegotten American Express v Harrison case, and reiterated in the even more misbegotten Brandon case (soon to be appealed).

 

It was held that because the T&C's of this and most credit cards contained a clause whereby the creditor could terminate at any time

, then a default notice wasn't necessary.

 

I'm unaware of whether it was argued that, notwithstanding their right to terminate,

if the debtor then fails to pay, a default situation ensues.

.therefore a default notice becomes necessary before they can claim sums not yet due/enforce as per s87 highlighted by Andy above.

Elsa x

Here's the Brandon judgement for ref:

Brandontranscript-U-E.pdf

PLEASE NOTE... I AM MOST SORRY BUT I HAVE VERY LIMITED AVAILABILITY AT THE MOMENT DUE TO EXTREME PRESSURE OF WORK - IF YOU REQUIRE URGENT HELP ON YOUR THREAD AND ARE GETTING NO RESPONSE PLEASE HIT THE TRIANGLE FOR SITE TEAM ASSISTANCE. ELSA XXX

 

Please check out my BLOG for the quick guide to debt threats - it has all the info & letter template links you need to get started on your journey of TAKING CONTROL. :roll:

 

All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

Please click the *star* of any CAG member who has helped you .

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Thanks Andy and Elsa,

im off on holiday tomorrow so i wont know what happened until i get back.

 

 

My lawyer and i both suspect that they will ask for more time, typical!

 

 

Trading Standards whom my lawyer has spoken to think they wont proceed. This is Cabot, so who knows.

 

 

From what i can see, i have them on the CCA with there being no prescribed terms,

no default notice but can i prove it or more importantly can they prove they issued one,

the Notice of Assignment which would be my main argument i think and no details on the Summary Cause Action (Act of Serundant).

 

 

One thing is for sure...i wont go down without a fight.

 

 

Will let you all know whats happened when i get back.

 

 

Thanks Guys im starting to relax now

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Have a nice holiday Delilah! xxx

PLEASE NOTE... I AM MOST SORRY BUT I HAVE VERY LIMITED AVAILABILITY AT THE MOMENT DUE TO EXTREME PRESSURE OF WORK - IF YOU REQUIRE URGENT HELP ON YOUR THREAD AND ARE GETTING NO RESPONSE PLEASE HIT THE TRIANGLE FOR SITE TEAM ASSISTANCE. ELSA XXX

 

Please check out my BLOG for the quick guide to debt threats - it has all the info & letter template links you need to get started on your journey of TAKING CONTROL. :roll:

 

All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

Please click the *star* of any CAG member who has helped you .

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Delia, I realise you will not see this post for a week or so but the advice given by Andy and Elsa is excellent advice not just for yourself but for others in a similar situation with Cabot.

Dispatch, “We have a 911, Armed Robbery in progress, see Surplus Store corner of Peebles Drive and West 24th Street”

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  • 2 weeks later...

Back from my hols.

 

The latest is that Cabots lawyers asked for a four week continuation and my lawyer agreed to let them have it.

 

Back in court on the 5th of August.

 

They havent produced the info my lawyer has asked them for so far.

 

Our local Trading Standards are now involved with my lawyer on this and are assisting apparently so i think its looking good hopefully.

 

Havent spoken to my lawyer yet coz i just got back last night,

 

any thoughts guys?

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Seems to be going swimmingly Delilah:wink:

 

Andy

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Thats the way im seeing it too Andy.

 

Why ask for a continuation, and why need one?

 

Surely their lawyers should have had all the information to hand before attempting court action.

If i was a judge i think id be pretty annoyed with them already.

Thats what im hoping for and that its thrown out on the 5th of August.

 

I have a bit more confidence in my lawyer now based on the letter she has written them again requesting the info

and the fact they seem to be running around like headless chickens at the moment.

 

Im enternally grateful to the knowledge and experiences shared by other people on this forum,

its given me the strength to fight back and i hope that im encouraging others in a similar situation.

Will let you folks know as soon as i hear anything else.

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