Cabot Financial - Defending a court claim

[Rhia]

Now this is interesting but how can they find our where you have been shopping online ETC?

The list of professions I can see how they can do that. It's the other stuff isn't it?

[Rhia]

That form is totally unenforceable - not one prescribed term nor even a fleeting reference to any T&Cs.

 

Read this thread it's the same issues here

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/213040-martin-cabot-financial.html

[Rhia]

I wouldn't sign it. Apart from the fact that Cabot/Morgans are slippier than eels in a barrel of oil, I was told by a solicitor not to sign a Tomlin Order UNLESS it has been agreed before a Judge and the Judge ensures both parties agree to whatever has been discussed and it should be signed in the Judge's presence. Basically it's a consent order. But they may well whack their costs in on top of the repayments they are after.

 

This is from the Law Society:

http://www.lawgazette.co.uk/gazette-in-practice/benchmarks/tomlin-a-guide-use-and-abuse

 

This is a new tactic by Cabot from what I know. Is there no trick they won't use to bamboozle people? Furthermore, their attempt to steamroller this into Fast Track is nasty.They always threaten people with Fast Track as they want to frighten with costs. BTW Why is this taking so long?

 

They know full well (and have admitted) that it is a SC issue.

 

As for the agreement it dates from 2000 and so is straightforward s.61 (1) (a) and s.127(3) and the court has no option to do otherwise as the new rules came in in 2006. The new rule only appllies to agreements entered into from 2007 onwards. You can win this.

 

As for people not responding to data requests complain to Information Commissioner.

 

Just what are they doing here? They are attempting to circumvent the whole court hearing (which they have a good chance of losing) by fobbing this Tomlin Order on you with their wording, their terms and their agenda. I would also complain to the OFT with regard to this particular tactic. They are still awaiting renewal of their credit licence - such complaints all add up.

 

It is a shoddy bit of work of the highest degree.

 

My own view is take it to court. Present a good case and I think that although Brent Martin has gone missing in action (has Cabot kidnapped him?) his advice is sound. Let the court decide. If you lose, you lose but the new Govt has ordered that Charging Orders for debts under £25k are not acceptable (check with the Ministry of Justice for the timing of this new rule).

 

Incidentally you need to draw up a spreadsheet listing each charge (you said there were charges). Then you need to enter the date and add contractual interest - the same contractual interest that Monument were charging which is usually high 29% and higher. This will give you the true amount you are contesting and I am pretty sure it will exceed the £4k Cabot say you owe. Then go after Cabot for refund of these charges with interest. If you need any help completing please Pm and there are spreadsheets elsewhere on this forum.

 

Go and fight it. Fight Cabot and Morgans. They are a disgrace to the human race.

Edited June 20, 2010 by Rhia

[Rhia]

Ideally you need to get this declared unenforceable with Cabot AND go after Barclaycard/Monument for a refund of the charges.

 

I would not accept BC's list of charges as did this myself and when I got the statements they had missed some out (deliberately or error I do not know).Go straight back to BC's Data Officer (I have a name and address if you need one but they should have replied to you) List precisely what they have NOT sent and what you require. Tell them you have complained to ICO.

 

At the same time go onto the Information Commissioner's website and register a full complaint about their non compliance as it is past 40 days now. I know it's a pain in the ass but you need to push from every direction.

 

The charges may be £400 but Monument usually charge a high rate of contractual interest AND they date from 2003 (I think I said 2000 in an earlier post by mistake). In the end this £400 may well add up to something more substantial. Is there also any PPI added? There usually is with these as they add without asking. If so this can be reclaimed plus interest which is why you need all the statements.

 

Ha! I love how Morgans/Cabot add their costs to the attempted "Tomlin Order". Again it's an attempt to frighten you. They do have quite a problem here which I see as follows:

 

a) there is no properly executed agreement ad according to the CCA 1974 (under the protection of which this debt lies):

 

61

.—(1) A regulated agreement is not properly executed unless

 

(a) a document in the prescribed form itself containing all the prescribed terms

 

and conforming to regulations under section 60(1) is signed in the prescribed

 

manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b) the document embodies all the terms of the agreement, other than implied terms,

and

© the document is, when presented or sent to the debtor or hirer for signature, in

such a state that all its terms are readily legible.

 

 

 

 

Which leads on to:

65.—(1) An improperly-executed regulated agreement is enforceable against the

debtor or hirer on an order of the court only.

 

And therefore

 

127.—(1) In the case of an application for an enforcement order under (a) section 65(1) (improperly executed agreements)...

 

 

So, under

 

127 (3) The court shall not make an enforcement order under section 65(1) if section

 

61(1)(a) (signing of agreements) was not complied with unless a document (whether

 

or not in the prescribed form and complying with regulations under section 60(1))

itself containing all the prescribed terms of the agreement was signed by the debtor or

hirer (whether or not in the prescribed manner).

 

 

 

 

 

So it's game over.

 

Ha! I do enjoy the way they have added costs to the attempted "Tomlin Order" - again another way to frighten you into settling. However, they have a further problem as the amount they have been sold is made up partially (or even wholly) of unlawful charges which means the assignment, the default notice, the amount entered into court papers is incorrect.

 

My own view is I would send them a "Without Prejudice" letter outlining all of this and including a spreadsheet of charges. At the very least they will have to go back to court and pay to get the POC amended. I would also include your own estimated "wasted costs" as a Litigant in Person you can claim £9.25 (or £9.50 need to check) an hour plus expenses and state you intend to pursue them for these. You can then "invite" them to drop the whole issue.

 

I have PM'd you in return but I think this is the best way forward. Hold Steady!

 

12.45 Sunday Evening.

 

Just popped back to add the following with regard to the default notice - as we know it is and always has been inaccurate (due to penalty charges) and therefore terminally defective. Vis a vis:

 

Cabot has failed to provide a valid Default Notice as required under s87 and s88 of the CCA 1974/2006. A legally binding DN has to be accurate in terms of both scope and the nature of the breach and should include and accurate figure required to remedy such breach.

 

The format for DN is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237). As the DN supplied consists of a number of unlawful penalty charges and associated contractual interest it is inaccurate and invalid.

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but would also give rise to a potential counterclaim for damages where damage occurs to your credit rating (Kpohraror v Woolwich Building Society - [1996] 4 All ER 119)

Edited June 20, 2010 by Rhia

[Rhia]

I know you're subscribed to this thread but go have aread. Had It Up To Here has had the Cabot case struck out by a very switched on Judge.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/127059-hadituptohere-cabot-case-struck-18.html

 

It's worthwhile reading it all Sherlock as it is exactly what you should be doing. I still think a "Without Prejudice" letter needs putting together and telling Morgans to take a running jump. It really is a case of who blinks first but HIUTH's case is the same as yours.

 

BTW with Barclaycard - they purchased a lot of accounts from Goldfish, Morgan Stanley, obviously Monument/Provident and they have found the paperwork was just bad, incorrect or non-existent - but of course they won't admit that to anyone.

 

So it appears that they have rapidly shoved such accounts off to the DCAs and such as Cabot have realised they have purchased a few "lemons". However, Cabot don't let a little thing like a whole lemon orchard bother them they just go after it anyway.

 

Sadly, most consumers will cough up and never question the legality of it all. Also look at CPR 31.5 which PT raised in the above thread. In fact just read the above thread and then put a letter together telling them to take a massive running jump.

 

Am around if you need help/or just another opinion.

 

Good move Citizen B - always to be relied upon in times of need!

[Rhia]

Sorry Sherlock missed your last post. Yes I would send the CPR request for info with an accompanying Without Prejudice Save For Costs letter and outline the argument why you don't agree (you have already done this) plus my own additions given above and give them 72 hours to respond.

 

It may also be worthwhile exploring the idea of an unless order to the court - unless they provide so and so by such a time you request the claim be struck out.

[Rhia]

You are obviously a lawyer looking at your posts. And very welcome you are too. As you are aware, it does not state anywhere in the CCA that penalty charges per se renders the default notice defective. Neither does it say anywhere in the CCA that mis-sold penalty charges renders the default notice invalid.

 

However if the debt consists of penalty charges or PPI (for example) which the debtor wishes to reclaim then (and assuming they do so successfully) then it renders the total stated in the DN and the assignment papers invalid as it has to be legally binding as Had It Up To There has stated in post 72.

 

I have challenged both DN and assignments in court on this basis and won. Does this that clarify it> And thanks for the lawyer's eye.

 

I do hope you can look at Sherlock's thread and offer him/her some advice as they are in quite a corner with Cabot.

Edited June 23, 2010 by Rhia

[Rhia]

Rhodium I thank you for this as it is always useful for someone "outside" to unpick the argument.

 

The Rankines and their get rich quick schemes have caused lots of issues. My barrister was astonished at the judgement and was of the opinion that at some stage it will have to be challenged.

 

We here are doing our best. However, getting back to Sherlock's situation any help, advice, picking apart the seams of an argument are most welcome.

[Rhia]

Rhodium - many thanks for this. Sometimes just a nudge in the right direction is as good as anything.

[Rhia]

It does Sherlock. Can I have my tea and return a little later?

 

BTW do the T&Cs match the original appn form?

 

Later.

[Rhia]

Marvellous Rhodium78. I have been reading through the thread again and it does come down to 61 (1) (a) and (as the agreement dates from 2000 - CCA 127 (3) and a dodgy DN.

 

This action suggested by Rhodium78 is CPR 32.18 and I had forgotten about this. Here's the form if you want to use it.

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n266_0499.pdf

 

You could always add an informal note to Cabot/Morgans marked Without Prejudice inviting them to discontinue the case. Some would suggest call them informally but I am a great one for putting things in writing.

 

With regard to the DN not being compliant although I do believe you can get these charges refunded by the OC you have a letter of statement of charges from Barclays (who originally owned the Monument brand) that £400 was applied (not including interest). The interest should possibly run in excess of £1,000 or more but for now this is not the issue.

 

Use the statement from BC in your Notice to Admit application as this shows the amount defaulted is incorrect. I can give you the legal argument for the charges being penalties but BC have now thoughtfully admit to the charges anlisted them for you and therefore the DN is not compliant.

 

Neither is the assignment and Cabot won't want you digging around that area.

Edited June 24, 2010 by Rhia

[Rhia]

Yes agree with HIUTH. Get a copy of the deed of assignment also known as the sales assignment. It can be a game changer for various reasons which we can go into when you have obtained it. Use CPR request to obtain it.

 

Cabot (indeed all of them) are very reluctant to release these but there is no reason why you should not get a copy. They can redact any business sensitive details (and tell them that if they start squealing).

 

I think this is a good plan and you will hit them with the Notice to Admit, the CPR request and (without checking back) you have also issued Subject Access Requests to both the original creditor and Cabot haven't you?

 

Personally I would add the DN (yes it is default notice sorry to confuse with initials) to the Notice to Admit but it is your shout.

 

Send all this off. Light blue touch paper and retire. You just need the pressure on them to get them to release as much information as you can get and use this to rip their arguments apart.

[Rhia]

Apologies Sherlock - you did say you hadn't seen the DN. In that case request that in the CPR too. I agree you cannot argue it is faulty without a good examination of it.

 

It should have been sent by the OC. If you get or have any SAR details they may look like boring, innocuous pages of notes. Study them carefully as you will/may spot discrepancies in them that can trip the legal argument up. Don't just file them away.

[Rhia]

I wonder if Rhodium is referring to the way these assignments are passed to companies offshore? It's some sort of "tax efficiency" as my own barrister delicately put it.

 

Most notable is MBNA/Cabot assignments (see my thread on this). We unearthed a number of cases where they were assigned offshore via Dublin.

 

HFO Services (and there are a number of threads on CAG most notably VJohn's Barclaycard/HFO) where the debts are assigned offshore via the Cayman Islands.

 

This is all to do with securitisation of these debts and the murky world of tax avoidance. This is my own take and may or may not be correct:

Debt is written off by Original Creditor who offsets against own tax bill then sells to a DCA for anything between 3-20 pence in the £ (apparently the price is affected by the quality of the white data which accompanies it).

 

To avoid DCA paying VAT on purchase, Creditor assigns to DCA via offshore arrangement.

 

DCA then transfers to another company within its organisation who then collects the debt. It is at this stage they pay VAT on collected debts - I believe.

 

This gives rise to argument has the debt been correctly assigned between inhouse companies such as Cabot Financial (Europe) is the vehicle through which the debt is purchased but Cabot Financial (UK) is the administration arm. HFO has an even more complex arrangement.

 

Perhaps it's getting too complex for the stage you're at but get that Deed of Assignment/Sales Deed as it may turn out to be gold in the end.

[Rhia]

Wasn't going to post this here but realised it is relevant and Sherlock may find interesting. Monument was a trading style of Barclays Bank and was based in Sussex. APRs average 30% and is aimed at those with impaired credit history. At some stage it became Provident.

 

Barclays sold most of the business to US firm Compucredit for £390m in April 2007 but less than a year later the Atlanta based company went into Chapter 10 (basically bust).

[Rhia]

As mentioned, it does not stop the Claimant from pursuing you, but it does make their life so much harder and they would prefer to discontinue rather than show the internal dealings of their group of companies which could attract the attention of the tax man.

 

 

And that is exactly what Cabot has done when presented with one of MBNA's Irish agreements. They tried to say it was a one off mistake but when a number of others were produced it more or less...filleted their donkey to use a popular CAG legal term.

 

I believe s53 involves trusts. It is probably too much for Sherlock to present at this stage IMHO and I woudl stick to The Plan but as Had It up To Here suggests perhaps a new thread could examine this aspect.

Edited June 25, 2010 by Rhia

[Rhia]

Which arm of Cabot is calling you? Is it the collections department? Or Morgans?

 

If it is the collections department just write to them (send a copy of the claim form issued by Morgans) and state a) you will only deal with this in writing and b) as Morgans has started the proceedings you will not be making any offers or payments until the court has decided if you are liable to pay.

 

Unfortunately, the collections department won't be cross referencing with Morgans even though it will say on the data entered into their computer that proceedings have been issued.

 

If it's Morgans calling you...then what do they want?

[Rhia]

Now that's an odd one, because it sounds like their collection activity people with that sort of dialogue. I don't suppose they left a number did they?

 

If it was Morgan's you do need to listen to what they have to say and see if it is an attempt to settle up with you. So call them and ask if they called (if you see what I mean).

 

Actually was recently involved helping someone who went through the court's mediation service in Small Claims and it worked quite well but I learnt (on this particular occasion) that all they were doing was agreeing a figure to settle on rather than get into detailed legal argument with regard to the CCA. But it was quite quick and straightforward. Just thought I'd share that with you.

[Rhia]

Ah Sherlock you know my view on this. I would challenge them completely on this issue as from what you have told us they don't have any right to collect this at all, no enforceable agreement.

 

Even if the default argument is set to one side; under CCA s61(1) (a) and 127 (3) they can't enforce and as the "agreement" is pre 2007 no court can enforce, particularly as you have suffered prejudice.

 

It's your call completely if you decide to come to some arrangement with them. I think we have probably explored all the options. It's make your mind up time.

 

BTW you say you have given Cabot your I&E and you are on PayPlan. Never been on it myself but my understanding is they can't take action against you if you are Payplan. This story is very odd indeed isn't it?

Edited June 28, 2010 by Rhia

[Rhia]

Hi Sherlock,

 

I was going to say carry on regardless. If BC has destroyed all docs prior to six years that will explain why there is no original agreement of any sort.

BC not keeping correct documentation is an example of unfair practices as highlighted by the OFT and under the UTCCRs.

 

Have a read of the OFT attachment...it may help.

 

 

All you can do now is sit back and await their response. agree with what you have done...well inso much as I would have done the same. Your argument is with Cabot/Morgans after all they were keen to buy the debt for peanuts and then hassle you into settling so they get the headache.

 

BTW if, as I suspect, BC do not have an original agreement then the debt is unenforceable (no matter what guff Morgans come out with). However, technically the debt still exists and they are allowed to remind you of this but not "drag you into court" remind you.

 

Have a look for the Dissecting the Manchester Test Case thread it's all about the agreement and prescribed terms.

oft854.pdf

[Rhia]

Yes I think the item you posted earlier is what they deem to be the original agreement. It just isn't compliant and doesn't meet with s61 requirements or the Consumer Credit Regulations.

 

I would urge you to read the thread Dissecting the Manchester Test Case as it's a good debate and may well settle some of the questions in your own mind.

 

Under a s78 request when we write and ask for the agreement they are interpreting this in a narrow way which means they don't have to produce a proper copy of the actual agreement with the prescribed terms and your signature...which...to be fair...they are correct.

 

However in a court you are entitled to ask for the original copy to be produced. That copy HAS to have all the prescribed terms "within the four corners of the agreement" and this is where they are engaging in jiggery pokery and hoping you won't know.

 

This is from the Carey-v-HSBC Bank (plc) (2009) EWHC 3417 (QB) 23 December 2009.

 

"108. Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request."

 

In other words they can't just chuck some T&Cs at you and say this is the agreement. I had forgotten your card was Monument and not a BC even though it's been bought out by BC.

 

Now they have provided an "agreement" but that agreement does not have the prescribed terms as pre s61(1) of the CCA and as this was entered into pre 2007 then s 127(3) comes into play and the court cannot enforce this if you have suffered prejudice...which you most certainly have.

 

The Manchester Dissection Thread explores all of this.

 

Your requests are as we all discussed and should rattle their cage a bit. Let's see what happens next but use the time to sharpen up your arguments in case it all goes the distance.

[Rhia]

Start a new thread. This one's hilarious. It's been going for four years and never gets anywhere.

[Rhia]

Oh welcome back. I wondered where you'd been. 8-)

 

Without trawling back have you defo been allocated to SC.

[Rhia]

Have you counterclaimed using contractual interest applied as being Monument it will probably be at least 30% (you hint you have as you say charges render it all redundant). Crafty move by Monument to refund to the account but this will be the minimum they can get away with whilst stating we refunded all charges.

 

There is so much wrng with this case which should be working for you.

[Rhia]

What utter drivel they come out with. Refunding basic charges splits the claim to put people off going after the interest. Yes you need to draw up a list and refute it all point by point. You also need to state that you do not accept nor recognise the refund as you need to keep it intact to counterclaim. If they wish to do that to fit in with accounting practices that's a commercial decision they take but nothing to do with you and you intend to pursue the entire amount with contractual interest and compound contractual interest in restitution as they have been unjustly enriched. Failing that you will ask the court to order an account of profits.

 

Further if they get on with it and supply the sales doc/assignment you will find that they shouldn't be assigning any account which is subject to set-off which includes yours.