Cabot claimform - old Citi Card 'debt' **SETTLED BY TOMLIN**

[the_shadow]

From the ICO Default Guidlines

 

The ‘sale’ or assignment of debts on defaulted accounts

 

52 When the rights to a debt are sold to a third party, the lender has to make sure the records with the credit reference agency are accurate, up to date and adequate. If they want information about the debts to continue on the credit reference file they will need to come to an agreement with the purchaser about who is to be responsible for this.

 

53 If the purchaser agrees to take control of the record, the customer should be informed that the debt has been sold or assigned and to whom. The credit reference agency file should be changed to show the name of the purchaser and that the rights to the debt have been sold or assigned. The purchaser should then make sure the record is kept up to date including changes to the amount still owed. The purchase should not affect how long the record is kept. It should be removed six years after the default.

 

54 Where the purchaser of the debt does not agree to take control of the record, the original lender, and at least in part the credit reference agency, will remain responsible if the original record is kept on the file. When the debt is sold or assigned, the customer will no longer owe any money to the original lender. If the record is not removed, the sale or assignment should be recorded and the balance should be shown as zero. The customer should still be told who the debt has been sold or assigned to.

 

HTH

 

S.

[the_shadow]

I'm afraid to say if you are not paying the relevant minimum repayments it does not matter what Citi have done or Cabot now... they are entitled thanks to someone called McGuffick vs Rbs to mark your credit file as defaulted.

 

S.

[the_shadow]

Ok, McGuffick was a claims company taking RBS to court to gain an order of unenforcability, RBS could if they had wanted satisified the s78 request priot to proceedings but decided not to so they could obtain a legally binding definition of what exactly enfocement is in relation to non-conforming with a s77-s78 request.

 

A judge decided that everything bar obtaining an actual judgement was NOT enforcement, therefore if no s77-s78 response has been given they can still sell the debt, chase you and mark your credit file. The only thing they cant do is obtain a judgement against you.

 

The templates are out of date in regards the recent rulings of McGuffick and more importantly the Carey vs HSBC ruling, therefore caution needs to be exercised in using them and advice saught on individual threads prior to sending.

 

Apologies for mis-spellings, I'm writing this on a netbook with a small screen and smaller fonts

 

S.

[the_shadow]

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Furthermore you should be aware that a creditor is not permitted to take ANY Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.[/b][/i]

 

Hmm Apologies only just seen this... I'm afraid time has moved on and if there is no disputed fact other than the credit agreement has not been supplied then the OFT do not class this as a dispute and therefore:-

 

They may demand payment

They may add interest so long as the original contract allows it and they've provided the relevant stat notices yearly etc

They may pass on the account to a 3rd party

They may register a default or late repayments

They may issue another default if they so wish.

 

The only thing an outstanding s78 request will do is to stop them receiving judgement against you, although the judge may halt proceedings to allow them to re-issue a s78 response and then another default etc etc.

 

Also remember that the s78 response doesnt have to be the actual application/agreement but can be a reconstruction for the purposes of s78 informational response.

 

S.

[the_shadow]

They don't seem to be giving up - despite a further letter from me at the end of March enclosing copies of the previous letters they had not replied to and repeating myself yet again I received this one today. Getting a bit stumped as to what to say to them so would appreciate some help. By the way it says on the bottom of the letter that they are the in house solicitors.

Looking forward to some feedback

Thanks

 

There is a danger here that if you do not respond and they proceed to court that you will have been deemed to ignored their CPR warning re: costs, however I have seen these notices issued without them proceeding to court but I've also seen them issued when they do proceed unfortunately. It will be a financial decision that sways them... if they think you have a large enough disposable income or own a property then they may proceed.

 

Personally a concise letter back stating the outstanding issues with this account and their compliance with regulations would be my final response.

 

S.

[the_shadow]

Hi shadow

Thanks for your reply - final response before ? any suggestions how to draft it ?

gs

 

 

sorry but my bad, not sure what your asking for here....

 

Reconstructions... remember ala Carey vs HSBC they must be accurate / honest and true, also they must contain your name and address as at application and if varied they must provide a copy of the "original" with the reconstruction.

 

S.

[the_shadow]

Ah right got you... well you know your points better than us so basically just respond stating that you are responding to their letter and then point out why the account is still disputed, what they havent yet done and that until they do reply to your request properly you wont be entering into letter ping pong with them unless they raise something new.

 

The S127(3) clause you are referring to basically stops enforcement of an agreement that doesnt contain the prescribed terms.... however Carey vs HSBC has muddied the waters into what the word "document" means and hence DJ Waksman stated that a document may be a package of information given at signing time which could contain the prescribed terms. This clause was repealed in April 2007 for any agreements entered into after that date.

 

 

S.

[the_shadow]

Sorry to hijack your thread gettingsorted, but I would just like to ask the_shadow to clarify something in this post for me as I've been out of the loop for a bit and much of all the info I gleaned from endless days swatting up seems to have dissappeared into the ether.

 

Shadow, could I ask you to clarify 'original'? Do you mean that, if the terms had been varied, then they must supply an actual copy of the original signed executed agreement along with the recon?

 

In my thread here http://www.consumeractiongroup.co.uk/forum/showthread.php?284421-1st-Crud-CCA-SAR-Failure-(also-Citi-too)-Help-Please/page4 I have just received a recon from 1st Crud, there are two agreements; both recon's. I'm assuing that there are two because of variations. Does this mean that as per Carey, the S78 request is still unfulfilled, i.e. still in dispute, because the original signed executed agreement is not included. Mine too is S.127 (3).

 

 

Thanks

 

MC

 

ah million dollar question... hence the reason for my "" around original, only a judge can decide what he would accept, DJ Waksman stated original but did he mean original true copy or reconstruction or actual original?????

 

S.

[the_shadow]

Ok, it seems confused to me, personally I'd respond with something like below:-

Dear Sir/Madam,Further to your letter dated xx/xx/xxxx, you mention that despire previous correspondence and requests from yourselves that I have failed to settle the account.I have to inform you that this account is in dispute and will remain so until you respond to my requests for further information. Letters seeking information were sent in December, January, February and March. Proof of receipt of these requests has been kept and will be presented in any court proceedings that may take place in the future.I have enclosed copies of said letters to aid you in responding properly to this disputed account and look forward to a response to my letters.Continual computer generated letters and threats will not absolve you of responding to the letters I have sent.Regards

I certainly wouldnt mention "concern.....rushing to court" they'll know immediately then that the biggest concern you have is facing court and will concentrate on giving more dire threats of court.S. Edited May 12, 2011 by the_shadow

[the_shadow]

Brilliant shadow - thank you so much.........as I said couldn't get my head round it and of course am a bit too close to the situation! Much appreciated.

GS

 

Sorry for the formatting, I did try and add spaces but it stripped them out :-(S.

[the_shadow]

Ok, I'm afraid its the norm for DCA's and their solicitors to ignore anything you write to them...

 

Have you actually received a court claim yet? They indicate they are sending one via the Northampton Bulk Court but until you get it its as valid as a note written on a fag packet tbh.

 

Once you get it then the stakes are raised but you'll get your chance to defend and show a judge that you have sought clarification on numerous attempts and have yet to be responded to properly.

 

S.

[the_shadow]

Sorry but one of the main site rules is that advice given by PM is forbidden, even more so for Site Team members. The two main reasons are a) if I give you bad advice and nobody else gets to see it and would have been able to potentially correct it and b) Its not sharing advise with other forum members.

 

S.

[the_shadow]

We would always advise NOT to contact anyone in regards financial matters by phone unless you can record the call, then you have cast iron proof of who said what. Alas many DCA's know exactly which buttons to push when dealing with people and how to pressure people into making snap decisions they regret later.

 

A letter takes time to digest and can be read over and over to get the true meaning, a single phone conversation relies on your brain taking it in once and only once.... unless its recorded.

 

S.

[the_shadow]

Ok first thing... dont send the response back to them, it should go to the court to ensure no "delays" happen with it and by this they obtain a judgement by default.

 

S.

[the_shadow]

Right here we go.... do you wish to defend or admit the debt?

 

You have 14 days from receipt of the claim plus 5 days for service unless you acknowledge online which gives you a further 14 days... so in total 33 days from the date on the claim.

 

The recons, Carey vs HSBC is the authority for using reconstructions in court, this was a case about informational rather than enforcement but the claimants and judges are tending to agree to its use, you'll have to put forward some proof positive that theres an error with the reconstructions to disprove them. I.E. a statement shows a different APR% compared to the original agreement (reconned)

 

Also the reconstructions MUST to be correct have the original name and address AT THE TIME you took out the agreement.

 

Citi dont normally send out defaults, I might have asked before but did they ever issue a default notice? Without a default notice they should not be able to claim any sums not due already.

 

S.

[the_shadow]

Yes, you can defend right up to the steps of the court if you so wish... costs dont tend to be incurred until they have to do anything and the next "milestone" is the AQ stage.

 

S.

[the_shadow]

Dates sound good to me although you can easily confirm with the court, theyre used to this type of query all the time.

 

I'll move this to the legal forum also.

 

Cant read some of the Cabot letters contained in the PDF specifically the responses to your s78 request.

 

S.

[the_shadow]

OK - thank you .....have removed the pdf as someone has pointed out that they can still see some figures. I will alter and repost them tomorrow.

 

Cool, better off scanning and editing in some art program with black squares and then converting to PDF... see the article about privacy in my signature

 

S.

[the_shadow]

Hi,

 

Was there a period of time before Cabot sent you the notice of assignment that they are claiming interest for? They must send you an annual statement to become entitled to claim interest for that period.

 

S.

[the_shadow]

IMHO they are fishing for folks with potential equity in there homes

 

I think you are spot on there

 

You'll all need to show mistakes/problems with the recons imho to win.

 

S.

[the_shadow]

Doesnt apply here, say if they raised a claim in england against you but you lived in scotland, then you'd object as the claim should be raised in your country of residence.

 

S.

[the_shadow]

basically your looking for anything that makes the agreement inaccurate when compared to the original agreement, useful things to check are the apr% looking at your statements compared to the reconstruction etc.

 

S.

[the_shadow]

Shadow can you explain a little further.

Are recons now deemed as being acceptable to the courts instead of original docs

 

Not by all judges but it seems the norm now, certainly I would prepare yourself to have to defend when a judge states a reconstruction will suffice as evidence, its not clear whether DJ Waksman in Carey wanted this to happen but it is happening so we need to be aware.

 

I have read and do not really understand the harrison link judgement so how does this affect cases similar to ours

Is there a thread that you are aware of that is similar to this one and has gone through the court already as won or lost even

onlyme

 

Harrison is quite unique, for one it went for the claimant and for two the defendant was able to show a massive paper trail which convinced the judge that he had not received the t&c with the agreement and therefore the agreement didnt contain the prescribed terms. This was due to even keeping the envelopes of every letter they had sent him. Further there were harassment issues with MBNA and Link phoning the claimant multitude of times from unlisted or unrecorded phone numbers and then denying it.

 

As to expanding on what makes a reconstructed agreement incorrect I really feel you need to understand the issues yourself, there is no paint by numbers for this I'm afraid and no thread listing everything. Each case falls or stands on its own merits so go through the agreement with a fine tooth comb, compare the reconstructed agreement with the original ifyou have it or the statements, look at the t&c etc and check through the regulations both for the CCA1974 and the credit/default notices regulations too.

 

For an instance where the interest rate is not correct on the reconstruction look up Kotecha vs Phoenix recoveries Jan 2011.

 

S.

[the_shadow]

GS,

 

Do you have all the relevant information from the claimant... i.e.

 

1.The Reconstructed agreements they will be relying on (Varied and "original" reconstructions)?

2.Details of the default although the actual notice is not required

3.Details of the Notice of Assignment although actual notice is not required (proof you received it is)

 

Remember the mantra when dealing with debts and chasers...

 

1. They must prove YOU owe them the money

2. They must prove you OWE them the money.

3. They must prove you owe THEM the money.

 

 

S.

[the_shadow]

Ok, here goes...

 

Shelley - any opinion is valued - I feel like I am in the middle of a lake without a paddle !! I think if it was only the amount I owed when still chasing Citi; I might make them an instalment offer.....its all the **** interest, etc afterwards and their attitude ! I have my partner checking the statements as we speak !

 

So challenge them on charging interest, have you looked up legislation on what DCA's can and cant do, what the new owners of debts can and cant do.. have you looked at other Cabot claims at all?????

 

Perhaps someone could confirm if I am right here ? the way I understand it they must tell me that there is a signed agreement and be prepared to produce it in court ?

 

NO thats not right, they DONT have to do anything, they present their evidence to a judge, you present yours and the judge decides who is correct, if they rely on reconstructions they SHOULD have to explain to the judge why its been reconstructed but some if not most judges will accept what they say. Its down to you to disprove the reconstruction, I gave you some hints, as much as I can previously.

 

 

The Mould wrote for lamb - should I send Morgan's something the same ?

"Prior to the issue of proceedings, I had delivered to you a request pursuant to s78 CCA 1974 (as amended) for production of the agreement that you now mention in your Particulars of Claim and upon which you clearly intend to rely. It will be noted that you disregarded said request.

 

err, they've given you two reconstructions, the varied terms and the original already, this is what they are relying on in court.

 

2. You allege in your particulars that you are the assignee of a debt purchased from Bank of Scotland, to this extent, I require a copy of the Deed of Assignment.

You've stated above that you've seen the NoA, that is all that is required by the law of property act *although* you do have a right to see the deed but it'll probably need the judge to agree it before they do it.

 

3. As I am sure you will be aware, the legislation applicable to assignments of contracts is laid down in the Law of Property Act 1925 s136(1), in this regard, I require a copy of the Notice of Assignment and proof of service thereof, I refer you to s196(4) of said act in respect of statutory notices and the requirements imposed upon service of the same

You've admitted above that you've received it? claiming you havent is perjury.

 

4. Default Notice, again, I am sure you are aware of the requirements imposed upon creditors under s87 CCA 1974 (as amended) in respect of service of said statutory notice being a pre-condition of enforcement and therefore I require a copy of the statutory notice you intend to rely upon in these proceedings and proof of service of the same.

They dont have to keep a copy, most if not all judges will accept an entry on a database showing you would have been sent it... and besides you've admitted above that you've had it.

5. Termination notice, I require a copy of the termination notice you intend to rely upon in these proceedings and proof of service thereof.

Strictly speaking they dont have to send a termination note, it can be by intent.. taking you to court could be seen as a termination of contract without demanding it in writing.

 

6. Account statements, I require a copy of any annual statements of account that you intend to rely upon if you allege to have served any such statements. Although 4, 5 and 6 are not mentioned in your particulars, I would be grateful if you should agree to voluntarily disclose said documents as this could enable the possible reduction of any issues in the case and thereby assist the overriding objectives.

 

Yep, on the right track here... at the very least ask them to justify EVERY charge and interest amount on this debt... where is the clause in the original terms that states you agree to them charging interest once they have purchased the debt from the original creditor.

 

 

S.