h197 -v- Cabot (ex Egg ) Now in litigation help please.

[citizenB]

http://www.consumeractiongroup.co.uk/forum/showthread.php?323575-cabot-citicard-and-court-papers-its-10yrs-old-and-SB-ed&p=3589704&viewfull=1#post3589704

 

Post 14 in the above thread will show you how to lay out a CPR 18 and how to ask for information

[citizenB]

Oops, I missed that reference to the Small claims as well

[h197]

...lol, well at least it is all picked up and corrected now!

 

By the way, have you had a look at my point about the assignment type (post #150 above) and would you mind commenting on that please?

 

Many thanks to you both!

[delilahsahb]

You are doing well H. Just as an added extra for after you have lodged your defence- check your CRA files and make sure firstly, that Egg and Cabot are not both reporting for your debt and secondly and more importantly when Cabot lodged a default notice on your files. 9 times out of 10 they do not match. Small and insignificant things like this can add a tad more fuel to your fire. Cabot state on my CRA that they lodged a default in May 2007 which was very nice of them coz they didnt buy the account until June 2007 and the date of the original default notice should be January 2006.

 

Kind Regards

Delilah

[citizenB]

H, I am sorry, I cannot help at all with the assignment issue.

 

All I know is that either the OC or the new owner can advise you. It has to be done in writing and it must be accurate with the amount demanded and the date of assignment.

 

I do know that there are two types of assignment one being where the new owner is only responsible for part of the transaction (meaning that they are not able to take you to court) and the other where they own everything lock stock n barrel.. but which is which I have no idea. I think only the Deed of Assignment (the contract between the seller and purchaser) would tell you that. You could attempt to obtain sight of it by way of the CPR18, but it might end up requiring a court order.

 

HTH

[the_shadow]

H, I am sorry, I cannot help at all with the assignment issue.

 

All I know is that either the OC or the new owner can advise you. It has to be done in writing and it must be accurate with the amount demanded and the date of assignment.

 

I do know that there are two types of assignment one being where the new owner is only responsible for part of the transaction (meaning that they are not able to take you to court) and the other where they own everything lock stock n barrel.. but which is which I have no idea. I think only the Deed of Assignment (the contract between the seller and purchaser) would tell you that. You could attempt to obtain sight of it by way of the CPR18, but it might end up requiring a court order.

 

HTH

 

My understanding of it too CitB, to take you to court they either have to own the debt or if they dont own it (equitable assignment) they need to be joined as a co-plaintiff by the owner of the debt. If they fully own the debt they cant pick and choose which bits of the contract they are liable for, its rights AND duties they own, not just one or t'other.

 

S.

[citizenB]

My understanding of it too CitB, to take you to court they either have to own the debt or if they dont own it (equitable assignment) they need to be joined as a co-plaintiff by the owner of the debt. If they fully own the debt they cant pick and choose which bits of the contract they are liable for, its rights AND duties they own, not just one or t'other.

 

S.

 

[delilahsahb]

Hi, found this under a law site dont know if it helps but it reads pretty good

 

 

 

The Law of Property Act 1925 and effective service of Notices of Assignment

 

We are aware that a number of consumer action groups are advising consumers to apply for default judgments, obtained against them by lenders for failure to make repayments, to be set aside on the basis that notice of assignment of the mortgage has not been served correctly. This is relevant where, for example, a lender has purchased a mortgage loan book and so was not the original party to the mortgage contract. If argued successfully this would mean that the assignee lender had no right to bring an action in the first place.

 

Law of Property Act 1925

 

Under section 136 of the Law Property Act 1925 (“LPA 1925”) notice of assignment must be given to the other party to a contract (i.e. the borrower) expressly in writing. There is no prescribed time limit for giving notice but the assignment is only legally valid when the borrower receives the notice.

 

Until proper notice is given, only an equitable assignment has taken place. An equitable assignment differs from a legal assignment in that where there is a legal assignment the assignee can bring an action (e.g. for recovery of a debt) in its own name against the borrower. On an equitable assignment the assignee would need to join the assignor as a party to the action before an action could be brought against the borrower. Alternatively, notice would have to be served in the correct manner before an action could be brought in the assignee’s name.

 

Section 136 LPA 1925 is silent as to how the notice should be served. The default statutory provision is found under section 196 LPA 1925. It provides that if notice is given to the other party by registered letter and is not returned undelivered, it will have been deemed to have been served. This means that whilst notice may be given expressly in writing, it will not be deemed served unless it has been sent by registered post.

 

Section 196 LPA 1925 refers to “registered letter”. The postal service “registered post” no longer exists. Instead, a notice should now be sent either as first class post with a certificate of posting (available through Royal Mail) or by recorded delivery; under the Recorded Delivery Act 1962 any notice which is deemed served by registered post will also be deemed served if sent by recorded delivery.

 

Section 196 (5) also states that its provisions extend to notices required to be served unless a contrary intention appears. In other words, if there is an express clause in the contract (which would include a lender’s mortgage conditions) that stipulates how any notices necessary under the contract are to be served, that will take precedence over the statutory provision in section 196.

 

Conclusion

 

If the mortgage conditions are silent as to how notice should be served, the provisions of the LPA 1925 will prevail. Express notice, in writing, must be given to the borrower and either delivery evidenced (by Affidavit of Service) or sent by registered letter, and not returned, in order to be validly served in accordance with section 196 LPA 1925. If this is not done, the borrower could argue that they did not receive the notice and that the assignee has no right to bring an action against the borrower in its sole name.

 

If, however, the mortgage conditions provide that notice is to be given by other means, e.g. by normal post, then so long as the method prescribed in the mortgage conditions has been followed, the notice will have been validly served.

 

A successful argument by a borrower that a notice of assignment has not been validly served does not give a total defence to that borrower and render the sums being claimed by the lender irrecoverable. The lender would, however, have to serve a notice of assignment on the borrower in using the correct method and then recommence litigation, thus incurring extra expense. Alternatively, the assignee will need to join the original lender into the action. Even if this is possible and the original lender consents, it will again incur extra expense

 

 

Dont know if that clears up the questions on assignment or not but i hopes it helps and i know its referring to mortgages but surely this covers any debt and not just mortgages

Delilah

Edited November 5, 2011 by delilahsahb
adding

[citizenB]

Very useful, delilah

[delilahsahb]

Hi again all. I have just found this:- Contracts (Rights of a Third Parties) Act 1999

Right of third party to enforce contractual term.

 

(1)Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if—

 

(a)the contract expressly provides that he may, or

 

(b)subject to subsection (2), the term purports to confer a benefit on him.

 

(2)Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party.

 

(3)The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into.

 

(4)This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract.

 

(5)For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly).

 

(6)Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation.

 

(7)In this Act, in relation to a term of a contract which is enforceable by a third party—

 

“the promisor” means the party to the contract against whom the term is enforceable by the third party, and

“the promisee” means the party to the contract by whom the term is enforceable against the promisor.

 

This is Legislation Government UK, the way i have read this is:

When a contract is signed (eg a credit card agreement) under the terms and conditions there should be a clause to allow a third party to be able to enforce action. I would doubt very much if there is any T&Cs with such a clause in existence.

Please bear in mind its Sunday morning and i may be having a blonde moment here or hopefully a eureka moment, but if i have read this right, doesnt this mean that for a DCA to lawfully enforce recovery action that clause would have to exist otherwise action may only be brought by the Original Creditor? Wouldnt it also mean that all court actions being taken by currently by DCA's are unlawful and that debtors could counterclaim for false or malicious prosecution?

Id be interested if anyone else reads this the same as me.

 

Delilah

[delilahsahb]

Sorry folks for butting in again here:

Apparantly on certain Halifax credit card T&C's section 19.5 states the following

 

Nobody other than we or you can enforce any part of this agreement,under the Contracts (Rights of Third Parties) Act 1999

 

Great!!!

 

But getting myself a bit confused, so does this mean that even if a DCA has an Absolute Assignment on a debt that they cannot enforce Litigation under the Contracts (Rights of Third Parties) Act, or does it add a bit more weight to the Original Lender is the only one who can enforce action?

 

Delilah

[TweedleDee]

Don't confuse assignment with third party rights under a contract. Third party rights are where you promised your relative that you would buy something for them on your credit card for argument's sake. Then the credit card company refuses to process that transaction. Your relative can't then sue the credit company for that breach. Very simplistic example but you get the gist.

 

Google privity of contract.

 

Basically, you are barking up the wrong tree but I like your lateral thinking.

[delilahsahb]

Hi Tweedle dee, maybe i am barking up the wrong tree but ive just read Nat West CC Agreements and Eggs and both are as the Halifax. Whilst this law was brought in to try and protect third parties that you mentioned it does also apply to credit card agreements and if there are clauses in T&Cs then it surely must merit further investigation.

 

Delilah

[TweedleDee]

This law applies to all contracts in the general sense of the term. It is in my internet contract, my online sales contract with a retailer, my loan, credit card, etc. It touches all facets of our lives.

 

It amends the common law doctrine of the privity of contract and allows a third party who is to benefit from a contract between two parties to enforce the terms of that contract.

 

It has nothing to do with assignment and the sale of an asset which is what your debt is.

 

There is a most likely a clause which states something along the lines that they may assign, transfer any of their rights or benefits, and the debtor's liability under the agreement to any person or entity. Again, this has nothing to do with third party rights.

 

I know that you are looking for the magic bullet but this isn't one and has nothing to do with legal versus equitable assignments.

 

May I strongly suggest you get a copy of the "Chitty on Contracts" 30th Edition to read. Google doesn't do these specialist areas justice thus why you need a reference.

[h197]

Hello all (especially all that have helped so far!)

 

Apologies I have disappeared for a while, though it was because my father recently passed away and I was preoccupied with all things to do with back home... Hence why I have not done much at an earlier date...

 

Quick update:

 

 

Since last November, Cabot / Morgans have paid for at least 2 extensions, which with Xmas / Easter in the way got us to here. They have sent me a few letters too, which were as follows:

• A letter offering a settlement figure, to which I did not reply
  
• A letter enclosing copies of most previous Egg statements, though missing the last few as they a. may guide to questioning the date 'they took control' and b. are showing interest refunds to the account prior to closing, thus not proving that they have the wrong starting amount / claiming the wrong amount!
  
• A letter with blank copies of T&T, which they are saying are exact copies of the ones I supposedly signed, but without my name, or signature and with incorrect data within (they are current copies, not ones from over 10 years ago!). A copy of this letter is attached in pdf format, where please check p.2 where there is some reference to some regulation saying they can supply without signature...? Also please note that this so called reply by Egg moves between a reply to them (on behalf of) to then replying to me directly...?
  

I am proposing to reply with the attached sample and a CPR18 request for information and would like to do so today, so that they cannot call the Court saying it is all my fault for not replying!

 

The plan is to email today (after 'approval' by the CAG experts) and then follow with registered mail, so could someone please advise on the attached?

 

MANY THANKS in advance

LetterUpdatingMorgan amended.pdf

Data from 11Apr2012 amended.pdf

[citizenB]

Ok, well they are correct in that for the purposes of a s78 request - they can provide an unsigned copy. However, it is my understanding that they would need to provide the signed copy in order to obtain judgment.

 

Do you know how to lay out a CPR part 18 request in order that it is not rejected by them? I have attached an EXAMPLE below JIC.

 

HTH

 

 

xx

DATE

Your Name

Your Address

IN THE XXXXXXXXX county court

CLAIM NO:

BETWEEN:

XXXXXXXXXX

Claimant

and

XXXXXXXXXXX

Defendant

PART 18 REQUEST FOR FURTHER INFORMATION

To: XXXXXXXXXX (claimant)

　

Please answer the following questions:

1. Upon what date was the last payment made on the account?

2. What was the source, method and amount of the payment?

3. Was a Default Notice issued pursuant to section 87 of the Consumer Credit Act 1974 (as amended) and if so:

a] Upon what date, for what amount and what was the date for remedy of the breach?

b] Was the issuance of the Default Notice noted in the communications log?

4. Does the amount claimed include charges, and if so what amount?

　

　

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST

WITHIN 14 DAYS OF SERVICE OF THE SAME UPON YOU

[h197]

Hello CitizenB and thanks for the reply. From what you are saying though, am I right in pointing this out and asking for the signed copy again? Moreover, it sounds like they are asking for data "on my behalf", which I am assuming if they had an Absolute/Legal Assignment they would not need to do (ie, I am assuming they would then be able to ask for the data direct themselves, or already have / own the data)? Finally, is the context of the attached "sample" letter acceptable in format & content?

Many thanks

H.

[h197]

...getting worried now, as I am only few days away from having to submit an allocation questionnaire...can anyone help please?

[AndyOrch]

N149 or 150 h197?

 

Andy

[h197]

Hi Andy

 

So great to see you again...though wondering what you are doing up so late? Are you on a late shift or something?

 

As for which AQ, I am not sure, as the court instructions do not detail that...?

[AndyOrch]

If you have received it and are ready to submit it it will state on the form which it is N149 or N150.

[the_shadow]

According to earlier posts you were going to provide Cabot/court with the AQ last November?

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?319638-h197-v-Cabot-(ex-Egg-)-Now-in-litigation-help-please.&p=3606053&viewfull=1#post3606053

 

S.

[h197]

...how to cut a long story short...

 

If you remember, last time we mailed you helped me pull a defense together...about 6 mths back. Since then Morgans asked and got 2 delays, which with Xmas, Easter and every other Bank Holiday in the middle got us to a deadline for next Tue to submit an AQ for setting court dates at my local court.

 

I believe Morgans have delayed as they have nothing to go by, just playing the game of 'attempting to negotiate'. They did send me a letter with a reduced payment offer, as well as letter with a set of Egg statements (which was incomplete as it was missing statements showing interest refunds to my account) and one lately with some blank, incorrect T&C's, claiming to be accurate copies, blah, blah (no signature as obvious).

 

They advised that if I still do not reply they will go to court to ask for full amount, obviously thinking that as I did not reply to any of their last letters that I either got scared and gave up, or that something else happened but they obviously think they have the upper hand.

 

From my side, the recent loss of my father has upset me somewaht and I have found it hard to cope with it all. Especially as my worry to come back to deal with this for a couple of days, meant that I left his bedside and he passed away during the 2 days I was away from him...

 

I am now though too close for comfort and I must do something or I will loose by default! By the way, I / we did fill in an AQ last time round (if memory serves that was how my defense was lodged at the time?), so does that mean that I do not have to send a new one in now...?

 

Many thanks

[AndyOrch]

If the Court as not directed then no why did you think you had to submit one?

 

Regards

 

Andy

[h197]

hmm...to be honest, with all that happened I am unsure if I did what was best... My understanding is that at the time I had to submit an AQ for the bulk courts, or risk loosing by default. Then it was allocated to my local court and Morgans asked for 2 extensions and sent me what I said above, obviously trying to cover what I asked for and what they have not really got...