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

[h197]

I would love to get the chance to really say in Court what I think of their tactics, though time will tell!

 

Many thanks Delilah

[citizenB]

I think you might need to reword your CPR18.

 

I will give it some thought..

[h197]

...thought it was Ok as CPR18 is where I can ask questions, but cannot ask for data...? Please do come back with your comments, it would be much appreciated!

[citizenB]

They have to be asked in a specific way.. I will pop up some thoughts tomorrow

[citizenB]

Hi h:)

 

having thought about this overnight, I suspect my comments/suggestions are purely cosmetic/nitpicking !

 

Point 3: On what date did Cabot (UK) assume ownership of the disputed account.

 

Point 5: I think you need to include point 7 at this point as follows:

 

Point 5: Was a Default Notice issued pursuant to section 87 of the Consumer Credit Act 1974 (as amended) and if so :

 

a] What was the date of issue

b] What was the amount claimed

c] Did the amount claimed on the DN incorporate any penalty charges and in what sum

d] Did the Default Notice contain the Office of Fair Trading fact sheet as required by paragraph 10(a) of Schedule 2 of the Regulations

e] Was the issuance of the Defalt Notice, noted in the communication log.

f] What class of postal service used eg 1st, 2nd or UK mail.

 

 

Did they ever serve the Notice of Sums in arrears as shown below : If not, then I guess you could ask if they had ever issued those.

 

 

Notice of sums in arrears.

 

Pursuant to s86 (A-C) Consumer Credit Act 1974 there is a duty to serve notice of sums in arrears. The Claimant has not served such notices nor has it pleaded such, therefore the Defendant avers that by virtue of s86D Consumer Credit Act 1974 the Claimant cannot enforce the agreement as matters stand. For the avoidance of doubt the notice referred to within this paragraph are in addition to the Default notice not in place of.

Furthermore no OFT arrears sheet as required by s86©(3) Consumer Credit Act 1974 has been served.

By virtue of the failures outlined in Para 14 & 15 above the Claimant is not entitled pursuant to s86D (4) Consumer Credit Act 1974 to levy any interest from the point of the failure to serve the aforesaid notice of sums in arrears nor is the Claimant entitled to levy any default charges during the period of non compliance.

 

 

 

Edited May 6, 2012 by citizenB

[citizenB]

For point 5: Default notice - I think you need to know what method of post service was used as well, because that would deduct from any remedy period of 14 days.

 

If it was dated on a weekend date - that would also deduct from the remedy period of 14 days.

[h197]

Well citizenB, you finished late last night and looks like you were up first thing this morning, so when do you sleep...? Not that I am moaning in any way mind you, as I have read your comments and am extremely thankful for taking the time to go through my mess!!

 

I will adjust to include changes and will repost later today. Many thanks

 

PS One thought though please; some of the extra questions raised here, for example "e] Was the issuance of the Defalt Notice, noted in the communication log" are already answered, as they have previously sent me copies of their logs (though I would argue 'amended' in their favour, but that is another story!). Do I need to add them anyway, or is such repetition seen badly in the case / court even?

[h197]

Moreover, I thought that LoP 1025 requires registered, or signed for delivery ONLY, ie if not signed for as collected / standard post used, then it has not been served thus assignment is not yet Absolute...? Is my logic failing here perhaps?

[delilahsahb]

Hi H,

Sorry to butt in. Make sure you have checked all the account numbers that Cabot have on their paperwork. They made a right botch up of mine with the wrong account number on their Reconstituted Assignment and on other demand letters they had sent me. I think that helped swing things in my favour, so double check that everything matches coz they are a bit dippit with that sort of thing. Also make sure you dont have a double entry on your Credit files and that the dates match on that, Cabot had that they bought my account in the June but had started reporting on it in May. Every little helps as they say. The advise you get on the forum from those in the know is phenomonal and i really hope you kick em into touch.

 

Delilah

Edited May 6, 2012 by delilahsahb
adding

[h197]

Thanks Delilah and do not worry, their usual inconsistencies are also present here!

[delilahsahb]

Ah! Im so glad they havent let me down with their inefficiency, they must be sooo proud of their admin staff.

[citizenB]

Well citizenB, you finished late last night and looks like you were up first thing this morning, so when do you sleep...? Not that I am moaning in any way mind you, as I have read your comments and am extremely thankful for taking the time to go through my mess!!

 

I will adjust to include changes and will repost later today. Many thanks

 

PS One thought though please; some of the extra questions raised here, for example "e] Was the issuance of the Defalt Notice, noted in the communication log" are already answered, as they have previously sent me copies of their logs (though I would argue 'amended' in their favour, but that is another story!). Do I need to add them anyway, or is such repetition seen badly in the case / court even?

 

Sleep..!! is that a new hobby

 

If they have already responded to a question by another route.. then leave it off the CPR18 - You dont want to be seen to be labouring a point if it has already been answered.. so leave anything off that has been sorted already

 

 

 

Moreover, I thought that LoP 1025 requires registered, or signed for delivery ONLY, ie if not signed for as collected / standard post used, then it has not been served thus assignment is not yet Absolute...? Is my logic failing here perhaps?

 

I think there has been much debate on this point - the only way this argument will hold water is if the Assignment was never acknowledged or claimed by the defendant to have been received. It is my understanding that an assignment only becomes complete once the debtor has been advised of it.

[citizenB]

Ah! Im so glad they havent let me down with their inefficiency, they must be sooo proud of their admin staff.

 

 

Well they get bonuses.. So I guess they must be

 

It does make you wonder when ineffiiciency became a job requirement

[h197]

Thanks for the comments citizenB, though my point is not on whether I have received an assignment or not, it is more to the letter / detail of the Law.

 

As such, I have not rejected having ever received some / a Notice of Assignment. Even if I had denied receipt, they have since sent other / copies of it and as my undertsanding is that this would be enough for the Court to prove receipt (even though retrospectively), I am simply not overly worried on this point.

 

My point is on the detail of the Law and how LoP 1925 specifies the type of delivery required for Absolute assignment. They imaginatively claim to have an 'Equitable assignment under s136' which as I understand does not exist. It is either Absolute (under s136), or Equitable with the already many times discussed consequences.

 

Now if their assignmet is Equitable, they have NO right to take me to Court, mark my Credit File, so blah, blah. If the asignment was Absolute (under s136), then they must communicate it in a predefined manner (ie reg post as per s196 within) or it remains a simple Equitable assignment until that time. So, again they cannot take me to Court, mark my file, yadah, yadah...

 

Am I completely wrong...comments please?

[citizenB]

TBH, this question is a little outside of my knowledge.

 

All I can say is that had you denied receiving one then it is likely you could have brought all the LP1925 into play regarding registered/recorded post.

 

I would be a little shy of muddying the water with arguments that are slightly irrelevant!

[h197]

...hmm, I think I would like to rephrase if I may; I did deny it at the beginning, and that was because all I had ever seen was the welcome letter. They have since replied with various versions of what they say was what was sent to me, so I am now (I think rightly) questioning when/how, ie please prove...?

 

I hope we are talking 'the same line of thought' here and that I am not messing up big time...? And I am only worried about possibly messing up, because I am still unsure at what point I can address the Court with ALL the details I wish to submit, rather than trying to get bits and bobs into space restricted forms...? Or does that perhaps only happen while AT the Court?

 

Thanks once again

[citizenB]

You should have the opportunity to submit a Witness statement to arrive at the court, a minimum of 7 days, prior to any hearing.

 

If you have never acknowledged receipt of a Notice of Assignment, then of course you should be asking how it was sent and the recorded/registered point comes in play.

 

I will confirm that with andyorch for you.

[cups]

Hi

Just a quick point, Cabot claimed in my case that they didn't always record sending of DNs etc on client notes!!

I asked about staff training, and there isn't any??

This was about 2 years ago,,

Cups

[citizenB]

Hi

Just a quick point, Cabot claimed in my case that they didn't always record sending of DNs etc on client notes!!

I asked about staff training, and there isn't any??

This was about 2 years ago,,

Cups

 

 

Then how can they state they HAVE sent one ?

[AndyOrch]

In most cases they dont have to, or retain a hard copy, the DJ would be happy to go along with " on the balance of probabilities " not all but most !!! But at the very least surley they must produce a screen shot that one was triggered.

 

Andy

[h197]

...so, though LoP 1025 asks for proof of postage, judges can choose to ignore that, or does this need to be pointed out for them to take into account? Else what is the law for, if the likes of Cabot are allowed to pick and choose what they wish to follow...?

 

Just for my sanity here please can someone reply to my post #208 above? Is the logic behind it flawed based on Andy's comments in #220?

[the_shadow]

In most cases they dont have to, or retain a hard copy, the DJ would be happy to go along with " on the balance of probabilities " not all but most !!! But at the very least surley they must produce a screen shot that one was triggered.

 

Andy

 

Without at least an entry in the database the most they could say is that they would "normally" issue a default notice, or that the system will not let them advance with the debt without a DN being issued, they cannot give a definitive answer or rather shouldnt. Any other errors in paperwork or missed documentation would be a bonus and go to show unreliability in any statement of "normal processes" taking place imho.

 

S.

[the_shadow]

...so, though LoP 1025 asks for proof of postage, judges can choose to ignore that, or does this need to be pointed out for them to take into account? Else what is the law for, if the likes of Cabot are allowed to pick and choose what they wish to follow...?

 

Just for my sanity here please can someone reply to my post #208 above? Is the logic behind it flawed based on Andy's comments in #220?

 

Proof in small claims is based on probabilities not certainties I'm afraid... also proof of postage could just be a record in the database that a letter was sent, proof of receipt is something else entirely and the point is moot if you've admitted you received the notice of acknowledgement, THAT being the only thing the LoP is really concerned with, not the procedure you receive it as such.

 

S.

[h197]

OK, I never received a Notice of assignment from Cabot, or Egg, though they are saying that the Welcome letter was the one, all encompassing document doing it all. So I have asked when the Notice of Assignment was sent and how and they have 'manufactured' (in my opinion to say the least) some documents that claim to be Notice(s) of Assignment as they supposedly were sent to me by both them and Egg!!! Never happened and that is why I am still questioning this poiint!

 

Moreover, if I am understanding the LoP correctly, until a Notice of Assignment is correctly served (ie, proof of postage, prescribed terms included, etc) the Assignment cannot be Absolute and is Equitable in the best. I understand that some DJ's will accept that a notice (of whatever kind) was sent as part of the docs going back and forth between us, though if this is acceptable it would be after their claim being raised and after they maked my Credit History file ith a default. Am I wrong assuming all this is not to the letter of the Law and a Court is bound by following exactly that...the letter of the Law?

[AndyOrch]

Lets assume that they convince the DJ that the NoA was served correctly and valid.

 

 

Section 82 Consumer Credit Act 1974 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."

　

 

 

Notice of Assignment.

terms and conditions of the New Agreement

Consecutive monthly Statements of Account from the date of assignment.

Notice of Arrears.

Default Notice.

Letter of Impending legal action.

Compliance with CPR

Summons.

 

 

Just an angle rather than basing your defence on none receipt.

 

Andy