Cabot bought unenforceable debt

[paulwlton]

OK. Look at it this way. There is a debt for £17000. Barclays sold it. That alone says there is something wrong with the debt. Upon chasing up paperwork there is no CCA, meaning the debt is unenforceable, hence the reason why Barclays sold it on. If they had the paperwork, they wouldnt have sold it, they would have gone straight to court for that amount.

 

Of course, the DCA's could still harass the OP for the debt, but it would be completely pointless as they would be in violation of their credit licence, and would also get nowhere, as the OP knows it would never go to court. The only thing that would happen is that they would mark the Credit file, which they have. It only has 2 years left to run ( DCA STILL cant do anything), and after that the DCA would be on a pointless exercise and be risking their licence for harassment, chasing unenforceable debts etc.

 

Dont forget a recreated "copy" can be manufactured at any time.

 

Barclaycard held my wifes signed agreement but still sold it on to CL Finance.

[renegadeimp]

Recreated doesnt matter. The OP said the account was created in 1998, therefore the DCA would need the original agreement, which Barclays already admitted doesnt exist anymore, hence the reason for them selling the debt in the first place.

[paulwlton]

Recreated doesnt matter. The OP said the account was created in 1998, therefore the DCA would need the original agreement, which Barclays already admitted doesnt exist anymore, hence the reason for them selling the debt in the first place.

 

Disagree, if Cabot were to supply the recreation pursuant to sec 78 the balance would be enforceable notwithstanding, the original been lost.

[renegadeimp]

If the debt is pre Apr 2007 they would need the original or a copy. They cant use a reconstituted one. Thats why the OFT advises that if the CCA request cannot be met then the creditor should write the debt off. Otherwise the creditor could simply fabricate one and there would be no need for the guidance and/or CCA regulation.

[paulwlton]

]If the debt is pre Apr 2007 they would need the original or a copy. They cant use a reconstituted one.[/color] Thats why the OFT advises that if the CCA request cannot be met then the creditor should write the debt off. Otherwise the creditor could simply fabricate one and there would be no need for the guidance and/or CCA regulation.

 

Could you please post the relevant legislation or case law which requires the original be provided for pre 2007 agreements?

[renegadeimp]

http://www.google.info/forums/showthread.php?33884-UE-pre-2007-v-post-2007 Might be of interest.

[paulwlton]

http://www.google.info/forums/showthread.php?33884-UE-pre-2007-v-post-2007 Might be of interest.

 

Im aware of all the technical arguments in Cary etc but, this doesnt answer my question?

[Desperate Daniella]

In his Judgment Waksman said, para 234 (4) that where an agreement had been varied (which obviously most agreements have because they are always changing the interest rates) then the original agreement must be provided. That wasn't about pre-2007 agreements in particular.

[paulwlton]

In his Judgment Waksman said, para 234 (4) that where an agreement had been varied (which obviously most agreements have because they are always changing the interest rates) then the original agreement must be provided. That wasn't about pre-2007 agreements in particular.

 

Are you sure?... "then the original agreement must be provided" or would it be "a "copy" of the original" . Wacksman was stateing that whre the agreement has been varied then it wouldn't be sufficient ONLY to provide latest varied terms like many creditors had been doing for a number of years.

[dpick]

I think that some people are ignoring the following paragraph from the Waksman judgement in Carey V HSBC

Submissions section 229.

 

I am no legal eagle and my have this totally wrong it is the last mention of 127(3) in the judgement and may or may not have any bearing on this thread.

 

229. Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under s127 (3). But this overlooks the fact that there is no obligation to produce a copy of the signature and that “s127 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms “was” signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement.” I do not see how that passage helps Mrs Thompson on this application.

[paulwlton]

I think that some people are ignoring the following paragraph from the Waksman judgement in Carey V HSBC

Submissions section 229.

 

I am no legal eagle and my have this totally wrong it is the last mention of 127(3) in the judgement and may or may not have any bearing on this thread.

 

229. Mrs Thompson says that such an inference can and should be made. She referred me to paragraph 2.9.4 of the OFT Draft Guidance. What this says is that often consumers and their advisers assume that if a signed copy is not provided it necessarily means that the agreement cannot be enforced either under s78 or under s127 (3). But this overlooks the fact that there is no obligation to produce a copy of the signature and that “s127 (3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the Prescribed Terms “was” signed by the debtor...The creditor may be able to provide evidence that its practice was always to require a signature and that its agreements always complied with section 61 (1) (a) and the debtor ...may be unable to satisfy the court that he or she did not sign an agreement.” I do not see how that passage helps Mrs Thompson on this application.

 

Section 127 (3) is not therefore reliant on signed document presented in court only the fact document WAS signed containing requisite

[Desperate Daniella]

Yes, it does say a "copy of the original" but that means they must have the original document to copy, and not be able to create one to suit. If they have an original, why would any of these organizations not allow inspection of such original before they contemplate any court action. Think of the time it would save them. They would allow you to inspect the document, and if it proved to be genuine you would have no argument at all about paying. However, usually they haven't got an agreement, or they don't want you to see it.

 

I received one agreement which cannot possibly be a copy of the original, and I can prove it. I know it, and the bank in question knows it, so they won't let me inspect it, but if they wanted to proceed they would have to provide the original document, and that would prove that what they have already sent purporting to be a copy of the original isn't. Oh what a tangled web ........

 

You can threaten to report them to all sorts of people for creating fraudulent documents.

 

Then you can remind them of their obligations under CPUTR 2008 which means they have an obligation to advise you if they hold, or have ever held, a properly executed original credit agreement relating to the alleged account. They also have an obligation to let you know if they have no such agreement.

 

I also always tell them that I will be forwarding their replies to my questions to OFT, FOS and Uncle Tom Cobley and all.

 

DD

[lookinforinfo]

Thanks for the response lookinforinfo.

 

I thought that default accounts get removed from the date of the default, not the date that the debt is paid off (???) Please correct me if I'm wrong.

 

The reason I'm paying £30 a month is because its a credit card and that is like the minimum payment.

 

I am sorry my comment was a bit unclear. The default will drop off after 6 years but your credit file will still show that you were paying off a loan at £30 per month until 6 years after you

have cleared the total amount.

[renegadeimp]

All markers relating to the debt will be removed 6 years after the date of entry. At least they did on mine, and ive had god knows how many defaults over the last 10 years.

[lookinforinfo]

I am sorry Renegadeimp-my mistake. The default will come off after 6 years. However if you are still paying off the debt at £30 per month after that time, your credit file will continue to show those monthly

payments until the amount is cleared.

[fletch70]

With regard to the cca and this is in the oft guidelines,if they can not produce all the documents together,i.e agreement.original terms and current terms then the agreement is YE subject to s78 not sure which part. That goes for any agreement of any age. If they can provide an agreement that has missing pts then that is where 127(3) comes into play.

It would be a very dangerous game for someone to now create a recon to go to court. The OP would certainly be able to get someone to represent him on a conditional fee arrangement.

If it is UE why the hell pay it.

[paulwlton]

Yes, it does say a "copy of the original" but that means they must have the original document to copy, and not be able to create one to suit. If they have an original, why would any of these organizations not allow inspection of such original before they contemplate any court action. Think of the time it would save them. They would allow you to inspect the document, and if it proved to be genuine you would have no argument at all about paying. However, usually they haven't got an agreement, or they don't want you to see it.

 

I received one agreement which cannot possibly be a copy of the original, and I can prove it. I know it, and the bank in question knows it, so they won't let me inspect it, but if they wanted to proceed they would have to provide the original document, and that would prove that what they have already sent purporting to be a copy of the original isn't. Oh what a tangled web ........

 

You can threaten to report them to all sorts of people for creating fraudulent documents.

 

Then you can remind them of their obligations under CPUTR 2008 which means they have an obligation to advise you if they hold, or have ever held, a properly executed original credit agreement relating to the alleged account. They also have an obligation to let you know if they have no such agreement.

 

I also always tell them that I will be forwarding their replies to my questions to OFT, FOS and Uncle Tom Cobley and all.

 

DD

 

I'm sorry but it doesnt mean they must have the original document to copy, however if im wrong please advise further.

 

The chap below had a dodgy copy too.

 

 

 

http://www.guardian.co.uk/money/2008/feb/02/banks.consumeraffairs

[renegadeimp]

Sounds like that guy didnt defend the case properly and the bank got an easy judgement. However, the guy really should have checked to see if the court claim allowed interest after judgement.

[Desperate Daniella]

I did read about the case at the time it happened, and it was an absolutely disgraceful outcome.

 

I do think though that since the Waksman judgment the banks, DCAs etc., to have to provide the original, or a proper copy of the original document, not just one they create, to reply under CPUTR 2008 whether or not they have the document, or ever had it, and I do not see that they have any defence against at all by refusing to allow inspection of any agreement they claim to have.

[fletch70]

Are you the Paul walton in the article? It is very old,the law changed in 2007 and the Carey judgement was sometime later.

I am afraid this looks like poor knowledge of the law by both Mr walton and the DJ. The cca was in 1998 or soon after

[fletch70]

The other thing people should understand is that a S77-79 request is for info only. Certainly pre 2007 more is needed to enforce.

[Desperate Daniella]

Actually, as far as I am concerned, unless they have proof that the agreement they provide is exactly what was sent to me, why should I accept it? Apart from the one I mentioned above I have another bank who absolutely insisted that what they had sent was what I was provided with at the time I got the card. It couldn't have been, and again I could prove it, but obviously I wasn't going to tell them what that proof was. However, I did tell them that if they used the document it would prove that they were trying to obtain money by deliberately misleading me and I would report them to....... They have gone away for good now.

[paulwlton]

Are you the Paul walton in the article? It is very old,the law changed in 2007 and the Carey judgement was sometime later.

I am afraid this looks like poor knowledge of the law by both Mr walton and the DJ. The cca was in 1998 or soon after

 

Can you expand on "poor knowledge"

 

I was in close contact with the leading solicitor in Carey (post Wacksmam) and had lunch on various occasions. It is telling that the solicitor is now bringing claims against borrowers as opposed to issuing against the creditor.

 

BTW I've been succesfull in the county court defending a credit card claim.......

[paulwlton]

Actually, as far as I am concerned, unless they have proof that the agreement they provide is exactly what was sent to me, why should I accept it? Apart from the one I mentioned above I have another bank who absolutely insisted that what they had sent was what I was provided with at the time I got the card. It couldn't have been, and again I could prove it, but obviously I wasn't going to tell them what that proof was. However, I did tell them that if they used the document it would prove that they were trying to obtain money by deliberately misleading me and I would report them to....... They have gone away for good now.

 

If they've not satisfied your sec 78 request they are unable to enforce.

[Desperate Daniella]

The section 78 request allows them to provide a reconstituted document so once they have done that they continue to demand payment, make threats and so on. My aim is to get rid of them.