Cabot Financial - Defending a court claim

[spartathisis]

Brent-London, could you have a look here and add any comments on the recent ruling in the Manchester Mercantile Court? The discussion going really needs someone who understands the ruling. Thank you

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/239693-why-no-news-coverage.html

[SHERLOCK]

The next stage...

 

The court agreed to a months stay for me to mediate with solicitors and vice versa.

 

received today a 'we write further to your proposed offer of settlement via (my DMP). N.B - I am assuming that bcoz I have a DMP and recently updated my income and expenditure (which meant they get a little bit more each month on this account) that they are assuming that this is a 'proposal'

 

They have enc. a 'Tomlin Order' that I can sign and return, the payment terms are my new monthly amount over......wait for it......500 consecutive months.

 

Schedule 2 of the order states, if defendant defaults, claimant be at liberty to enter judgement for the sum then outstanding.

 

I do know that there will be excess card charges on this account and I will quite easily get the amount reduced, however, haven't gone down that route bcoz I was hoping I wouldn't have to

 

I need some helpful advice please. Am I to ignore this and proceed with 'no enforceable agreement' and the hearing OR do I now send them an option of my own??

 

All advice welcome,

 

Regards, SHERLOCK

Edited May 10, 2010 by SHERLOCK

[SHERLOCK]

bump

[mercyblue]

well if you sign the tomlin order and default they will go straight for a charging order.

[SHERLOCK]

What a comforting thought I was wondering if I should send them a letter with a proposal of my own......summin along the lines of write it off coz you've sent me a sh1...tte type cardboard replica agreement thingy, but I don't think the judge would take this as attempting to settle the claim

 

Looks like I will have to fight the unenforceable angle, as a side note, if I were to lose, I'm guessing I couldn't go back then and accept the 'Tomlin' proposal as they would then have their CCJ!

 

Then again, would they really accept payment over 500 months if they thought I wouldn't win in court?

Additionally, If I signed the order, does that mean they cannot then up the monthly payment even if I were to increase my income?

[SHERLOCK]

Hi Folks,

 

apologies if I repeat myself..this is where I'm at:

 

1) following Morgan's attempt to pursue a claim in court I have requested a stay pending a DPA 1998 Request from original lender.

 

2) Morgans have sent me two offers proposed within a Tomlin Order

 

3)I believe they have constructed the documents to supposedly come together as a valid agreement.

 

4)The original agrrement (REPLY CARD) has been shown by Caggers to be invalid, see earlier thread for agreement.

 

5) I have requested extension to stay again as Monument have still not supplied me with the original documents (I believe I cannot construct a proper defence without these papers as they may / may not verify Cabot's claim), the request was made 60 days ago as of todays date.

 

I am at a point of getting a bit bogged down with what I am hoping to achieve and would really appreciate some guidance. I read lots of forums on here and end up 2 hours later thinking OK what next (information overload, me thinks)

 

Appreciate some clarity thanks, SHERLOCK

[cups]

Hi Sherlock

 

Just a quick note,,I am fighting with Crapbot and it is over a MSDW card, but what I will tell you is that the bar code on the form they sent you is from CABOT. The original lender has sent something to CABOT and then they have scanned it ion to their system.

 

So when they claim that they received the form like that they are lying. I have a form from them that has the same bar code on it but we have forms from two different lenders. Makes you wonder what CABOT are up to ?

 

Be interested to know if anyone else has a different lender's forms with a bar code on their correspiondence ?

 

Think this could prove an undoing for CABOT.

 

Cups

[payingonlyencouragesthem]

Hiya Sherlock,

 

Long time no see! Tomlin Orders seem to have become a DCA flavour of the month lately, probably because they offer CCJ value to the secondary market value of their debts without jeopardising a creditor's capability to borrow elsewhere to refinance them as would be the case with a CCJ. In my view it's really only worth acquiescing to a Tomlin Order if it's a) long term affordable and b) long term sustainable otherwise it would be cheaper and easier to sustain a CCJ. Feel free to PM if you want further insights on this subject. In the light of the recent Manchester ruling agreement related disputes have become undesirably risky IMO.

 

Regds,

POET.

 

 

Hi Folks,

 

apologies if I repeat myself..this is where I'm at:

 

1) following Morgan's attempt to pursue a claim in court I have requested a stay pending a DPA 1998 Request from original lender.

 

2) Morgans have sent me two offers proposed within a Tomlin Order

 

3)I believe they have constructed the documents to supposedly come together as a valid agreement.

 

4)The original agrrement (REPLY CARD) has been shown by Caggers to be invalid, see earlier thread for agreement.

 

5) I have requested extension to stay again as Monument have still not supplied me with the original documents (I believe I cannot construct a proper defence without these papers as they may / may not verify Cabot's claim), the request was made 60 days ago as of todays date.

 

I am at a point of getting a bit bogged down with what I am hoping to achieve and would really appreciate some guidance. I read lots of forums on here and end up 2 hours later thinking OK what next (information overload, me thinks)

 

Appreciate some clarity thanks, SHERLOCK

[SHERLOCK]

POET, its good to hear from y'self........still keeping the wolf from the door???

 

The Tomlin order which apparently is 'without prejudice' basically allowed me to pay 7 quid for 500 months. Do not want CCJ or the debt (poor, poor morals me knows!) but I cannot afford to pay debt off in one lump.

 

Looks like I will have to sign the Tomlin as I see a very difficult, rocky road with the 'unenforceable' angle, (even though the terms are missing).

 

I have sent SAR to Monument and will get reduction on debt due to unlawful charges (credit card). Have had to request stay extension a couple of times becoz Monument have not provided the statements as yet(also hoping other things turn up, u never know).

 

At a loss really what to pursue, obviously the unenforceable angle being the better outcome if it went my way

[payingonlyencouragesthem]

Just about:rolleyes:!!! I think you may be right to sign the Tomlin order - I believe they cannot review the amount once agreed, unlike a DMP. Better check that one first though. However if you don't have any equity or assets they could seize its probably worth trying the unenforceable angle.

 

 

 

POET, its good to hear from y'self........still keeping the wolf from the door???

 

The Tomlin order which apparently is 'without prejudice' basically allowed me to pay 7 quid for 500 months. Do not want CCJ or the debt (poor, poor morals me knows!) but I cannot afford to pay debt off in one lump.

 

Looks like I will have to sign the Tomlin as I see a very difficult, rocky road with the 'unenforceable' angle, (even though the terms are missing).

 

I have sent SAR to Monument and will get reduction on debt due to unlawful charges (credit card). Have had to request stay extension a couple of times becoz Monument have not provided the statements as yet(also hoping other things turn up, u never know).

 

At a loss really what to pursue, obviously the unenforceable angle being the better outcome if it went my way

[SHERLOCK]

Hi all,

 

In a bit of a quandary with Tomlin Order.

 

One of the directives is 'if the defendant does default in the payments detailed in paragraph 1 above, the claimant be at liberty to enter judgement for the sum then outstanding'. For clarification, does this mean that they get automatic, guaranteed ccj if i miss a payment because by signing the Tomlin Order I have in effect accepted the original court claim made by Cabot.

 

I have sent Barclay's (who I now know were the legal owner of the original Monument card) a 'Letter Before Action' because I need all my info. They are taking a long time but I am of the mind I cannot defend myself appropriately. Cabot have given a date of end of June to sign the order because proceedings are stagnating!!

 

can a defendent prepare his own order or just make proposals as to the contents?

 

The latest on the court hearing is I requested a stay some time in May pending delivery of documents from Barclays, not heard from courts yet. also, have recently read about asking Cabot for papers under CPR rules, shall I do this at this stage?

 

They are also asking for clarification if I will not enter into the order until I have been supplied with the Barclay's info. I am really not sure where to go with this. My original angle (and defence) was the fact that the agreement was unenforceable, am I know changing tack........seem to be losing clarity,

 

Thanks for any help,

 

SHERLOCK.

[payingonlyencouragesthem]

Hi all,

 

In a bit of a quandary with Tomlin Order.

 

One of the directives is 'if the defendant does default in the payments detailed in paragraph 1 above, the claimant be at liberty to enter judgement for the sum then outstanding'. For clarification, does this mean that they get automatic, guaranteed ccj if i miss a payment because by signing the Tomlin Order I have in effect accepted the original court claim made by Cabot.

 

can a defendent prepare his own order or just make proposals as to the contents?

 

That seems to be the standard Tomlin wording. In short yes if you miss a payment they can get an automatic CCJ (that's the whole point of them) and if you sign it you will have irrevocably accepted liability for the debt. The upside for the debtor is that Tomlin Orders are fixed so the creditor cannot endlessly keep shaking you down for higher payments as with a CCJ. If its only a very low token amount they are asking I would be tempted to sign unless you have quite a strong defence.

[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

[SHERLOCK]

Thanks Rhia (pm'ed you) , POET,

 

They've already put their costs on the order + thats before 'winning' the claim....is this correct procedure??

 

It's taking so long on my part coz I am still waiting for info from Barclays, stay extension requested twice.

 

The only charges I know of is a list Barclays sent me totalling about 400 quid when I 'SAR'ed them (BY THE WAY THAT IS ALL I RECEIVED).

 

Are we at stalemate until I receive the statements then, or do I carry on with the unenforceable angle with the charges refund as fall back?? Then again, if the charges should exceed the 4k then that would suffice + don't know what the figure was at when the alleged amount was sold to Cabot (they add their own charges too from what I've read).

 

SHERLOCK

Edited June 20, 2010 by SHERLOCK

[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

[SHERLOCK]

Thanks Rhia,

 

I didn't know it was Barclays 'til I sent a S.A.R. to Monument and the reply came from Barclay's Customer Services.

Sent the letter below on 5th June, and also sent a copy to Morgans. Dunno if I am 100% correct in including Barclays in the defence, but they must have some part to play as original owner because I am sure that not ALL responsibility for the account transfers with Cabot.

 

 

Barclaycard Customer Services

P.O.Box 5592

Northampton

NN4 1Y

 

June 2010

 

Dear Sirs,

 

ACCOUNT NUMBER:

 

Following my request under the DPA 1998 dated the March 2010, you subsequently provided me with a breakdown of default charges assuming this was the information I was looking for.

 

I would like to point out / obtain confirmation of the following from yourselves:

 

1. The information request was for copies of all my personal data, covering the period of said account, it is not for you to choose which information I receive.

 

Subject access request (Data Protection Act)

Under the Data Protection Act, individuals can ask to see the information about themselves that is held on computer and in some paper records. If an individual wants to exercise this subject access right, they should write to the person or organisation that they believe is processing the data.

http://www.ico.gov.uk/tools_and_resources/glossary.aspx

 

 

 

2. This account is subject to court proceedings and as such I give a further 7 days for you to comply with my request or give reason for non-compliance.

 

LETTER BEFORE ACTION

Data Protection Act 1998

 

 

I am in receipt of the letter that you have supplied in response to my Data Protection Act information request. The disclosure of personal data is incomplete in that at least the following documents are missing:

 

· You have failed to provide a complete list of transactions and charges.

· You have provided no notes, or documents, relating to any legal action between you and myself, inc passing / selling of account.

· You have provided no notes, or documents, relating to instances of manual intervention.

 

This is not an exhaustive list by any means, it is just an example of some of the information I am missing. Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998. The time for compliance with my request has now expired. If you do not comply fully with my Subject Access Request within 7 days, I will be left with no option but to include you in my response to the County Court with regard CABOT’s (Your Client) CCJ Claim.

 

Yours Faithfully,

 

SHERLOCK.

 

With regard defence I was only to include Barclay's where there was no info upon which to defend such claims (debt amount etc.) within Cabot's POC. Upon receiving this, Morgan enquired for clarification if I was going to sign the Tomlin Order before I received any info from Barclay's.

 

This is where I am at...already got todays post. Nothing from courts or Barclay's! Advice much appreciated,

 

SHERLOCK

Edited June 21, 2010 by SHERLOCK

[citizenB]

I have moved your thread into the legal issues forum.

[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!

[SHERLOCK]

OK, email and attachments sent to ICO. I understand they may insist I give Barclays more time or complain to Barclays but it is a start.

 

I am thinking now of collating a letter for Morgans. I do not yet have any statements upon which to check charges or PPI.

 

At this time will a CPR Letter - http://www.consumeractiongroup.co.uk/forum/legal-issues/255329-cpr-18-cpr-31-a.html - (this was not done as part of my original defence) be a good idea to Cabot/Morgans and state that I will not be entering into a Tomlins Order without all the information at my disposal.

 

Looking at other threads, it is apparent that they try to wriggle out of producing originals. Surely not, I could quite easily produce a photocopy of one of those 'reply cards' and put anyones signature on it and claim they owed me money! Staggering.

 

SHERLOCK

Edited June 21, 2010 by SHERLOCK

[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.

[rhodium78]

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.

 

---SNIP---

 

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.

 

---SNIP---

 

As the DN supplied consists of a number of unlawful penalty charges and associated contractual interest it is inaccurate and invalid.

 

May I ask which authority, statute or chinese fortune cookie states that "unlawful" charges in the eyes of the Debtor makes the default notice invalid?

[Hadituptohere]

Taken from Rhia's post 65,

 

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 inConsumer 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)

Hadituptohere

[rhodium78]

There is nothing in statute (CCA or its amendments) which states that penalty charges, whether excessive as per UTCCR or otherwise makes a DN defective?

 

So I am just asking where in CCA does it say penalty charges which are not unlawful at time of issue (as there is no current judgement in the Debtor's case which makes them unlawful) makes the DN unlawful?

[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

[Hadituptohere]

So glad your back Rhia

 

Hadituptohere