Court form received (Cabot)

[Guest]

foxy

did they even send an attempted accurate reconstitution of the alleged original agreement re the s78 request?

Edited May 2, 2012 by Ford

[citizenB]

If they were/are in breach of your s78 request, then they can do everything up to issuing a court claim, but NOT obtaining judgment !

 

So they can assign/default/intimidate by phone or letter,issue a claim.. but not get a judgment against you..

 

Point 19 in the judgment below might explain things a little better.

 

 

Cabot v Buchellier - For the consumer.pdf

[foxyflugel]

Ford - no they didn't send a reconstituted version.

 

Good news - I think - though. I have had a good search through all my old correspondence and found a letter dated 15th Nov 2010 from Citibank.

 

It says with ref to my request for a copy of my c c agreement pursuant to sect 78 of CCA etc etc..... They apologise for the delay in responding and regret to advise me that although they have attempted to locate the document they have not been successful. Therefore they are enclosing a cheque for £1 which represents the fee I paid in relation to the request.

 

They shall continue to search their records with a view to providing me with it f.o.c. In line with recent OFT guidance my cc a/c is therefore not enforceable. 'Enforceable' is a legal term meaning that the lender is not entitled to commence legal proceedings against you for recovery of outstanding sums. However you should continue to pay any amounts due as your contract with us is not void....blah blah.

 

CB - I have read the link - which was very useful - many thanks for that

 

However, I have a few questions -

 

When do I bring this letter into the equation?

 

Do I send it with my AQ - will it stop it going to court? Surely they need the actual agreement on which their case is based?

 

How do I use this letter to my best advantage? If I send it with my AQ - will the court realise that they can't enforce anything as CB didn't comply with my request?

 

or do I amend my defence and apply to have it struck out? - as I am still waiting (they are still looking for) the alleged agreement for Morgans to forward onto me 'in due course'.

 

Your help and guidance would be much appreciated guys as always.

 

Thanks

 

Foxy

[Guest]

no s78 compliance= no court enforcement (kotecha/phoenix ca case for eg). no compliant dn=no court enforcement (woodchester, harrison, brandon appeal, cases for eg). is this pre 2007? if so, no signed doc containing all prescribed terms=no court enforcement full stop (s127(3) cca) as they have admitted themselves re your letter above. would require careful argument though.

Edited May 3, 2012 by Ford

[foxyflugel]

Yes Ford - 1999 I think

[Guest]

would prob still need to complete aq as required.

assignment issues also?

poss options?

could, write to claimant inviting them to discontinue as no reasonable grounds re reminding them there is no signed agreement as required etc.

apply for strike out

apply for summary judgment (may involve a hearing)

mediation

wait and see what happens after aq.

anything else? anyone?

note applications may involve a fee depending on your circumstances.

Edited May 3, 2012 by Ford

[citizenB]

You should mention the letter in your witness statement. I guess you could also point this out on your AQ - in the "any other information" section.

[foxyflugel]

I might try Ford's first (& free!) option of sending them a letter pointing out that they have no reasonable grounds to bring the case to court without an agreement and inviting them to discontinue - enclosing a copy of my letter.

 

Worth a try!

 

Foxy

Edited May 3, 2012 by foxyflugel

[foxyflugel]

Hi everyone

 

I've found another letter that I think refers to this matter (got to check the ref nos).

It is a letter from Opus sent to my solicitors (at the time) and they (Opus) have sent a copy to me. It states that they cannot find my terms and conditions document.

 

Can someone please advise if these docs will actually help me at all? as I am reading on the forum and some say no agreement=not enforceable = no judgement - then others are saying that they failed on this point (no agreement) in court.

 

I have been through the mill today and can't think straight

 

Would anyone be kind enough to help me draught a letter to these people?

 

Think I need to sleep.

 

Foxy

[brokebutnotbeatn]

Foxy. In court you need to be well prepared with case law to support your points that you can refer the judge to. Unfortunately judges are not experts and if the defendant is not able to support their defence with case law then they risk losing in court. It takes preparation and a clear head. And lots of clearly labelled post it notes! Even Carey only supports a recon in answer to a CCA request; but it does NOT say that a signed agreement isn't needed.

[Guest]

foxy

from what you have said, they have not even complied with your s78 request. not even a reconstitution. in that case alone court should not be able to even consider judgment against until they do so. as citb mentioned above. (but they may hand over a recon/copy at the court doors! ssh. must be accurate/compliant though)

re having no signed doc that contains all of the prescribed terms, technically the court would be barred from making an enforcement order at all. under s127. would require careful argument though. no guarantees.

 

'The consequence of a ruling such as this is to provide(MY CLIENT) with a windfall and I am conscious of the unfairness in one sense that that may lead to. I was taken in the course of argument to the speech of Lord Nicholls in the case of Wilson and Others v The Secretary of State for Trade and Industry [2003] UKHL, 40. At paragraphs 71 and 72 he recognises that the consequences of the provisions of section 127(3) can indeed lead to drastic, even harsh, consequences for a lender who loses all his rights under the agreement. It is an unattractive feature sometimes, for it involves punishing the blameless pour encourager les autres. But Lord Nicholls’ view was that Parliament had singled out some obligations as having such importance that non-compliance would lead automatically and inflexibly to a ban on the making of an enforcement order whatever the circumstances, and that those obligations were specified in sections 127(3) and (4). Parliament, he said, had chosen deliberately to exclude consideration of what is just and equitable in the particular case. Lord Scott echoed what he said at paragraph 164 of his speech.' PT2537, quote from a HC judgement.

 

bold emphasis is my doing

Edited May 5, 2012 by Ford

[foxyflugel]

Hi everyone

 

Just a quick update - after much consideration - someone was highly recommended to me so I have passed my case to the big boys. It's a weight off my shoulders

 

Fingers crossed - will let you know.

 

Foxy

[Dotty50]

Good luck foxy!

 

Keep us up to date with how it goes.

[foxyflugel]

Thanks Dotty :wink:

 

PS - would you mind having a look at my other thread and throwing some ideas/words at me!! lol

 

Thanks

 

foxy

[foxyflugel]

Hi everyone

 

Just a quick update on my thread. Cabot have dropped the case as expected/hoped within a matter of 10 days of my passing it to a solicitor. Not only that, they are paying half of my costs. Result. Thanks

[debbbbsy]

Well done. :whoo:

[caro]

Hi everyone

 

Just a quick update on my thread. Cabot have dropped the case as expected/hoped within a matter of 10 days of my passing it to a solicitor. Not only that, they are paying half of my costs. Result. Thanks

 

Hope the other half of your costs weren't too expensive. If Cabot dropped the case how come you still had to pay half?

 

I am pleased that you won, but just wanted to make the point that you and other caggers on this thread were instrumental in getting you within sniffing distance of the winning post and credit should be given where it's due.

 

Congratulations by the way.

[foxyflugel]

Thanks everyone.

 

Caro - that is true and CAG is an extremely useful place for support, opinions and guidance on dealing with these vultures and my thanks go, as always, to the caggers that helped me on the way.

 

My half of costs were very minimal, they wanted us both to stand our own costs at first and then negotiated to pay half (well, just over half actually ).

 

Foxy

[caro]

My half of costs were very minimal

 

Makes sense I guess as you did most of the work yourself. The main thing is that you're happy with the outcome, and I think it's safe to say that you are.