Cabot Morgan court papers issued people bank CC **WON**

[ohitsonlyme]

Morgans have issued court papers through northampton and looking though my paper work from OC I have a default notice dated 6th march asking for remedied by 22 march ie 14 days plus 2 not 3 is the default notice deffective and can I use this to stop morgans in their tracks

Onlyme

[cymruambyth]

I think you will need a lot more this to win!There is a case where a judge stated that the day a DN was issued is was served!

[ohitsonlyme]

Until 2months ago I was happily going along thinking that all my agreements were unenforceable because they were old and no originals have been supplied

 

then 2 weeks ago court papers were received from cabots and I started looking at how to fight it off

 

It seems to me that DCAs now have the upper hand with recon agreements, however after reading for many hours it also seems to me that no real advice is being given to help beat the likes of cabot.

 

Does one now have to roll over and accept defeat, and the subsequent charging orders that will follow to all of us.

 

 

We need to focus on how to argue that the recon is not enforceable and so far I have not seen any input on this point

 

There doesn't seem to be a check list of what to look for in order to get the position back in our favour

 

 

Any positive input will be appreciated

 

Onlyme

Edited June 15, 2011 by ohitsonlyme
typos/error

[cymruambyth]

If you get a CCJ from Cabot, you can fight and stop a CO.

 

They can be beaten (just not by me!). Have you looked at Brassed Offs thread where she beat them. The details can be fought. Have you got or requested the NOA? You can fight Carey, but it does depend on the DJ lottery, some accept all recon agreements as true, others recognise that Carey said that they must be a true representation of the original which should be produced in court. Plus all variations should be produced.

If all the prescribed terms aren't there then there is a s127(3) defence.

Read Carey or the threads on it and you will find arguments.

pt's company had quite a bit of success against Cabot, so try and find some of those threads.

[Jasper1965]

You should have a good read of Harrison vs Link Financial and Kotecha vs Phoenix Recoveries

[rebel11]

Also as mentioned below, Carey v HSBC (2009) http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

 

Theres a summary at the bottom, point (4).

[spartathisis]

So no checklist is the answer to the Op question?

[cymruambyth]

I think if you read Carey there are arguments that you can follow (it's too late for me to find them, sorry) however success seems to depend on the DJ lottery.

[Satterthwaite]

just on the way to bed, will have a proper look at this over the weekeend because I have been thinking exactly the same thing.

[PriorityOne]

Success is in the stength of your pre-court battle. If a DCA judges you as being a pushover, then the liklihood is that court papers could be issued on the off-chance that you won't defend or that your defence will be weak.

 

If you raise arguments under CCA 1974; sec 127 (3) and also use CPUTR 2008 (see my thread in the "stickies"), then they don't like it. CCA 2006 offers less protection to consumers in the sense that sec 127(3) was removed but if a company insists that a reconstruction is accurate but cannot furnish an Agreement, then what docs. have they relied upon to ensure it's accuracy?

 

DCAs/creditors also cherry pick the parts they like in recent cases, such as Carey..... ommitting the fact that in these cases, Carey et al were claimants and as such, the burden of proof was placed upon them to prove their case and not the other way around.

 

[Satterthwaite]

PriorityOne is right, Morgans are issuing claims on behalf of Cabot (they are one & the same really) using Northampton CCBC to anybody who they have an address for.

When they do this they have not got a clue wether they have any evidence to back their claim. God knows how many people pay up or receive a default judgement, then there are those that find their way onto sites such as this one.

 

ohitsonlyme, as you have found this place has plenty of threads with varying degrees of success or not as in cymruambyth case.

 

Hopefully those that have had success will find this thread and share the secret of their success.

 

Cabot have discontinued on me twice, but what actually brought them to this decision? I dont honestly know.

 

They are more likely to harrass anyone that owns there own house because they pay about three times as much for that debt than they do for debt where the OC does not have recent traceable address. So if you own your own house you need to fight them at every turn.

 

We know and lets be honest (anybody looking at this from Cabot you will need to look up the meaning of that word in a dictionary) they know that Carey v HSBC only deals with S78 requests, but while they have barristers that can use the system to their advantage they will continue.

 

I hope this thread illicits the information we require and will I certainly add to it where I can and keep it to the top of the list.

 

S

[spartathisis]

Approx 18 mnths ago I was having a really nice game of letter tennis with an office junior in Cabot, who informed me that a debt is a civil matter and is not ruled by Acts of Parliament!!?? No end of case law would convince him otherwise, they eventually stopped writing.

 

I have no assets in my name, not bothered about getting credit and not bothered if one of them decides to declare me bankrupt, that maybe part of the reason as well

 

Carey v HSBC et al: I like the way the judge accepted the Witness Statement of the banks solicitor stating that they always provide a proper enforecable agreement, as if solicitors dont lie and cheat like everyone else!

Edited July 9, 2011 by spartathisis
missed something out

[im4347]

Hi

 

I recently had my case discontinued by Cabot, as they didn't meet my CPR request, both parties filed AQs and that was it. 'Reconstituated Agreements' are becoming a major tool for these DCAs, and it's shocking that some DJs are willing to accept them. The cases mentioned above are great pointers to what is happening out there. According to the Carey case:

 

where District Judge Waksman stated; “It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient”....

Having said this, check that your Default Notice is valid and the correct time scales have been met by your DN, as this may be an angle for you....

 

Good luck.

 

IM

[PriorityOne]

Hi

 

I recently had my case discontinued by Cabot, as they didn't meet my CPR request, both parties filed AQs and that was it. 'Reconstituated Agreements' are becoming a major tool for these DCAs, and it's shocking that some DJs are willing to accept them. The cases mentioned above are great pointers to what is happening out there. According to the Carey case:

 

where District Judge Waksman stated; “It is open to a credit card provider to commence enforcement action without a copy of the signed executed agreement. All it needs to do is persuade the Court that this the agreement would have been signed for example by reference to its records of this particular customer and his credit card and its standard procedures and terms at the time. In the absence of some positive evidence from the customer to challenge the execution of the agreement, such evidence is likely to be sufficient”....

Having said this, check that your Default Notice is valid and the correct time scales have been met by your DN, as this may be an angle for you....

 

Good luck.

 

IM

 

Not under CCA 1974

[cymruambyth]

Hi

 

 

Having said this, check that your Default Notice is valid and the correct time scales have been met by your DN, as this may be an angle for you....

 

Good luck.

 

IM

 

Trying not to be too negative, but my DJ stated that although the DN probably didn't allow sufficient time, in the balance of probabilities I would not have paid even if I had sufficient time, so a defective DN was ok:-x

[MW2]

Subbing with interest!!!

[ohitsonlyme]

Let battle begin!!

 

Just back from court,for allocation hearing and directions.

 

for a very old peoples bank credit card -no original cca only recon provided

 

Before going in

young guy solicitor or trainee before bar trys it on with me

 

 

( A bit of a smarmy get if he is reading lol) to tell me that carey is applicable and they dont have to provide the original documents, this was a bulk centre claim and he also told me that PD 16.7. does not apply because of this!! quoting some other rule about it going through the bulk centre

 

He also trys to do a deal with me to capitulate and make an arrangement with him as my case is fatally flawed

whilst at the same time admitting that the agreement is unenforcable which means in his opinion on mcguffick that they can get a CCJ but not enforce it.

I told him I didnt want to talk but would listen and agreed to let the judge make her mind up.

 

The lady judge was very pleasant

although it seemed to me that she didnt know consumer law that well and the claimant kept prompting that the recon is acceptable.

 

 

I had recently spotted that the default notice I had recieved was issued whilst the account was in dispute

this is acknowledged by a letter that they had not provided my agreement and were still looking for it and dated 6 months after the default notice

(dated6th march but only allowing til22 march to pay arrears)

 

As the judge was taking more notice of the claimant than me

she accepted his argument that a recon needs to be provided and a copy of the default notice despite my best efforts to point her to PD 16.7

 

I tried to tell her that this was not a section 78 issue but she was still using that as the basis hence the order to disclose only the recon

 

They now have been ordered to disclose a recon of the agreement and the default notice and that a case management hearing is to follow

 

The other side asked for a particular judge from the court to reside over the hearing, I thought that was unfair as it is probably pushing things their way but didnt argue the point

 

As we were leaving the court room the judge asked the other side to hang back and had a 10-15 minute chat in private,I felt this was abit unusual and challenged young upstart on his way out but he simply implied it was a private conversation and nothing to do with the case

 

Where do I go from here??

 

onlyme

 

Just remembered something else

the judge totally ignored my request for proof of assignment so nothing is in the order

The original agreement was with peoples bank of connecticut not citi and I have never recieved a Notice of assignment from peoples to citi

onlyme

[ohitsonlyme]

Let battle begin!!

 

Just back from court, for allocation hearing and directions. for a very old peoples bank credit card

-no original cca only recon provided

Before going in young guy solicitor or trainee before bar trys it on with me( A bit of a smarmy get if he is reading lol) to tell me that carey is applicable and they dont have to provide the original documents, this was a bulk centre claim and he also told me that PD 16.7. does not apply because of this!!quoting some other rule about it going through the bulk centre

He also trys to do a deal with me to capitulate and make an arrangement with him as my case is fatally flawed whilst at the same time admitting that the agreement is unenforcable which means in his opinion on mcguffick that they can get a CCJ but not enforce it.I told him I didnt want to talk but would listen and agreed to let the judge make her mind up.

 

The lady judge was very pleasant although it seemed to me that she didnt know consumer law that well and the claimant kept prompting that the recon is acceptable.I had recently spotted that the default notice I had recieved was issued whilst the account was in dispute this is acknowledged by a letter that they had not provided my agreement and were still looking for it and dated 6 months after the default notice (dated6th march but only allowing til22 march to pay arrears)

As the judge was taking more notice of the claimant than me she accepted his argument that a recon needs to be provided and a copy of the default notice despite my best efforts to point her to PD 16.7

I tried to tell her that this was not a section 78 issue but she was still using that as the basis hence the order to disclose only the recon

 

They now have been ordered to disclose a recon of the agreement and the default notice and that a case management hearing is to follow

The other side asked for a particular judge from the court to reside over the hearing, I thought that was unfair as it is probably pushing things their way but didnt argue the point

As we were leaving the court room the judge asked the other side to hang back and had a 10-15 minute chat in private,I felt this was abit unusual and challenged young upstart on his way out but he simply implied it was a private conversation and nothing to do with the case

 

Where do I go from here??

 

onlyme

[consumeredge]

Hi onlyme

 

Very few details?

 

When was the account assigned to Cabot? Date of issue of summons, and details of particulars of claim.

 

Have you received a Notice of Assignment ?

 

New rules apply see below:

 

Section 82 Consumer Credit Act 1974 the new directive issued, which reflects the new European Union Directive Assignment of Rights

 

16. ASSIGNMENT OF RIGHTS

 

16.1 Where any rights of a creditor under a consumer credit agreement (for example the right to be repaid the money) are sold or transferred to a third party, notice of that assignment must be given to the borrower as soon as reasonably possible, except in the circumstances described below. This requirement applies to all regulated consumer credit agreements other than agreements secured on land. This requirement is in new section 82A of the CCA43.

 

 

16.2 It is the responsibility of the assignee (the creditor acquiring the rights) to ensure that notice is given. However, he does not have to give notice himself, but can agree with the assignor (the creditor assigning the rights) that the assignor will give notice instead, depending on what is more sensible in the circumstances. It is important, however, that notice is given as soon as reasonably possible and in a way that is clearly understandable by the borrower.

 

 

16.3 Notice does not have to be given where arrangements for servicing the credit are unchanged as far as the borrower is concerned. For example, if Creditor A sells his rights under a credit agreement to Creditor B but Creditor A still collects the borrower’s repayments in the same way and is the only point of contact for the borrower on matters regarding the agreement, notice does not have to be given.

 

 

16.4 Where notice has not been given, and arrangements for servicing the credit do subsequently change, the borrower must be informed of the assignment on or before the date that change happens. Again, this must be readily comprehensible to the borrower.

 

 

16.5 The definition of "creditor" in section 189 of the CCA applies to this new requirement on assignment of rights. This means that when an assignee purchases debts (or otherwise acquires rights under a credit agreement) it also acquires certain obligations to the borrower including the duty to comply with CCA requirements (such as the rules on statements and notices and other post-contractual information). The assignee becomes the creditor under the agreement. This ensures that essential consumer protections under the CCA cannot be circumvented by assigning the debt to a third party."

[ohitsonlyme]

Very few details?

 

assignment dated september 2010 bulk centre issued june 2011particulars of claim are usual cabot drivel no agreement number just a 8 digit refernce number not relating to anything

Have you received a Notice of Assignment ? yes only from cabot not citi nor from peoples bank to citi

 

I dont think assignment issues is a relevant route to take as this has been effected ok

 

 

onlyme

Edited October 20, 2011 by ohitsonlyme
typos

[Docman]

onlyme

 

Where you go from here depends on how much fight you have in you.

 

The DJ is wrong in her interpretation of the Carey case. It only applies in relation to S77/78. The statute and case law are quite clear on that point. HHJ Waksman reviewed all the existing legisation and most of the case law and concluded they didnt help in the particular circumstances of the issues before him which were in relation to the provision of information.

 

Once the Order is sent to you, you could ask the Court to set aside the Order on the grounds that the Court had mis-directed itself as to the law. You will need to set out your reasons attached to an application on form N244.

 

I would also question the impression of bias (a) because the claimant thought they could nominate a particlar judge and (b) the little chat after the hearing. Both give the impression, rightly or wrongly, of bias. If you want to do something, could complain to the Office of Judicial Complaints about the judge's conduct. However, as the OJC won't investigate until after the end of your case, you could have a long wait. What may be more beneficial would be to copy your complaint to the senior judge (usually a Circuit Judge) overseeing the county court just after you have made your set aside application.

 

On the other hand, you may not want the hassle and are prepared to accept judgment against you.

[consumeredge]

Your running 2 identical threads for the same claim?

 

Re: Cabot etc and Reconstituted agreements

 

Just remembered something else the judge totally ignored my request for proof of assignment so nothing is in the order

The original agreement was with peoples bank of connecticut not citi and I have never received a Notice of assignment from peoples to citi

onlyme

 

11/02/2011 15:30

 

Re: Letter from Morgan on behalf of Cabot

 

　

Mmmmm got one of these letters myself today, mine was reference an old peoples bank of conecticut,(who??) held by Citi financial, it goes back to at least 1999 as I have one old statement in my possesion and is the same account number so they cant try telling me it was a new agreemnet I signed

 

I have written back telling them the account was in dispute with Citi, so send it back to them.

I have also wrtten to Citi asking for a copy of the NoA The one I got with Cabot was a cobbled photocopy with a date different than the date on the letter they sent to me

Lets wait and see

I am back up for the fight again

onlyme

30/05/2011 18:47

 

Re: Capquest and statutory Demands

 

My stat demand set aside in and accepted. Date set 19 th july

Defence fairly straight forward. No agreement, never had an account number they quote and no notification of assignment ect ect.

Onlyme

 

[consumeredge]

So, to fill in the gaps,

 

March 2010 a default notice was received by you, I assume by your posts you ignored this, Notice of Assigment from Cabot's was received September 2010, Morgans then sent you a letter before action February 2011, then issued the summons June 2011.

 

Your defence on this particular thread is that the default notice dated 6th March asked for remedy by 22 March ie 14 days plus 2 not 3 therefore you are hoping the default notice is defective.

 

No court will accept that, imo reading from all your other threads and posts I cannot see you have any defence, the question really is why you did nothing when you first received the Default Notice March 2010

[ohitsonlyme]

I replied to citi tellling them they were still in default of my s78 and they acknowledged this in September by telling me that they were still looking for the relevant paperwork to satisfy my request, they therefore should not have defaulted my agreement nor terminated it nor sold it to cabot

[consumeredge]

Therefore your defence should centre on the unresolved dispute with the OC, essentially the cause of dispute, how you notified them, what reply if any, and what action you intended/notified them until the dispute was resolved, ie, reduced monthly/token payments or withold payments. to issue a Default Notice the OC must first send 2 Notice of arrears (S86 CCA) these can be included in your regular statement of account, once a creditor issues a default notice there are entitled to either pursue legal action themselves or pass the debt to a DCA.

 

imo banging on about unenforceble agreements clouds the real issues, if the court is made aware how the dispute first came about they are placed in an informed position to the decide if the OC was lawfully entilted to sell the debt.