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Cabot and the ever increasing debt


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Hi Guys,

 

Have sent of a CPR 14 request for paperwork and sent copy to the court - by recorded - do I apply for more time to get documents - and review to enter my defence or are they supposed to request more time to send to me?

 

Any help welcome

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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You need to contact the opposing solicitors and request an extension until they provide the required documents, you need this in writing... once you have this then you are responsible for letting the court know an extension has been granted IN writing and including a copy of their letter agreeing to it.

 

If they deny you the extra time warn them you'll consider putting in an application and seek costs for the application from them.

 

S.

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Hi Guys,

 

Today I received from Morgan's the following documents :-

1) Copy of Consumer Credit Act Agreement dated 04

2) Bundle of statements of account

3) Copy of my original letter requesting clarification of POC that was compose with help from the site team members

4) Copy particulars of claim

5) Copy of letter sent this week

 

a) There is no notice of assignment in the pack

b) There is no default notice

c) There is no termination notice

 

So what are my chances ? - I terms of my defence should I point these glaringly obvious missing docs out now?

 

Kind Regards

 

Flyboy80

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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Hi Site team,

Can anyone advise on this ?

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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Hi Guys,

 

Today I received from Morgan's the following documents :-

1) Copy of Consumer Credit Act Agreement dated 04

2) Bundle of statements of account

3) Copy of my original letter requesting clarification of POC that was compose with help from the site team members

4) Copy particulars of claim

5) Copy of letter sent this week

 

a) There is no notice of assignment in the pack

b) There is no default notice

c) There is no termination notice

 

So what are my chances ? - I terms of my defence should I point these glaringly obvious missing docs out now?

 

Kind Regards

 

Flyboy80

 

Ok, whats your defence??? I know PT has stated the pleadings are incorrect but thats not insurmountable to them, the judge may well allow them to change their pocs as he/she see's fit.

 

 

S.

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In regards to my defence, firstly they will have to prove that they own the debt. They have provided no paperwork in regards to this.

Should this not be legal condition, after all they must establish that this was transferred to them and they can show how / when?

There is are outstanding issues in regards to charges etc on the account which have been disputed so the overall figure is not correct.

There has been not issue of default and have not sent a default notice - is this not regulated under the consumer act?

If this is a regulated agreement - do they not have to issue a termination notice?

What about the original agreement - this was in 2004 - has the consumer act changed since then, is this now subject to different procedures and laws?

 

Also are they allowed to obtain a charging order against this agreement?

 

 

Your thoughts appreciated

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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Ok breaking it down:-

 

you state you've received the NoA, that is the legal requirement of a debt chaser to provide "proof" of ownership, you can request sight of the deed of assignment but that'll prob take a judge to agree as it'll contain financial information.

 

Charges dispute is good, work out exactly how much and add the interest at the rate you were charged... then look to get that offset against the debt.

 

If you have received NO default then yes as you say its regulated by the CCA and therefore to be entitled to receive monies not already due they DO need to issue a default notice first... have you SAR'd the original lender to obtain proof a default was never entered? s87 of the CCA1974 is what you need to look at here. It will be down to the judge agreeing no default was sent, although he may give them leave to issue one during a stay in proceedings.

 

There is no requirement for an actual termination notice

 

The agreement is governed by the CCA1974 + the CCA2006 amended however its the judges interpretation of the rules that has slightly changed with a few test cases over the last couple of years (Carey/McGuffick et all)

 

Yes they can, but even if they win the judge might be convinced you can only pay by installments but may deem it just not to let them have a charging order... obviously each case is different but taking an I&E along to court on the day could convince a judge to installments rather than a forthwith judgment imho.

 

S.

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OK as this all kicks off on Monday - time for me is essential.

To clarify, I did not recieve NoA from Cabot, and I think that I will request at least sight of this as it contains financial information regarding

myself. I will need to know it particulars as by way of charges the figures would be incorrect.

The default notice would need to be issued - again I would need to see sight of this.

They were originally SAR I believe in 08 - within the bundle they sent me they show a copy of my letter plus payment via postal order.

They took nearly three months to send statements (copies ) to me and a copy of application form.

On another note - is the acceptable or should they be using the actual credit agreement? Because all that is included is my application form?

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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OK as this all kicks off on Monday - time for me is essential.

To clarify, I did not recieve NoA from Cabot, and I think that I will request at least sight of this as it contains financial information regarding

 

Post #1 states you received a NoA from Halifax telling you who now owns the debt, that will suffice as notification the debt has been transferred and to who if it states Cabot.

 

Pls read up on on Law of Property act 1926 section 136

 

I will need to know it particulars as by way of charges the figures would be incorrect.

 

If the amount they are claiming is incorrect due to charges and they have been advised previously that you dispute these charges then all good :-)

 

The default notice would need to be issued - again I would need to see sight of this.

Correct, although prepare for them to try and state they dont need to issue a default notice and possibly quote Brandon vs Amex, these were I believe orbitor comments by the judge tho and s87 is clear.

 

They were originally SAR I believe in 08 - within the bundle they sent me they show a copy of my letter plus payment via postal order.

They took nearly three months to send statements (copies ) to me and a copy of application form.

Judge wont really care about this, so long as you got the data the only complaint is the amount of time it took and thats an issue for the ICO not the courts unless its pertinent to a data protection issue.

 

On another note - is the acceptable or should they be using the actual credit agreement? Because all that is included is my application form?

 

An application can be the agreement if it contains the prescribed terms.... the legal definition of "contains" is from Carey vs HSBC tho so read up on that case.

 

S.

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Hi Alan,

 

I do not recall getting a copy of the terms of the agreement.

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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Hi Guys, today received costs bill from Solictors an amazing £700 plus... for attendance at court etc.... am I being royally screwed here ?

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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Can they do this and add more ?

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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They can claim costs but its down to the judge if they get them, in small claims costs tend not to be given but its a good intimidation ploy to send a cots estimate to the defendant. In Fast track costs are given to the winner usually unless you can show the other side has behaved badly in relation to court procedures etc.

 

S.

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Hi Guys,

 

What is the "definition" of prescribed terms, on the application form ?

 

 

Kind Regards

 

Flyboy80

Edited by flyboy80

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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Is Phoenix Recoveries vs D Kotecha - Court of Appeals applicable here?

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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Share on other sites

Is this what you want?

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

 

 

 

For a Restricted Use Debtor Creditor Supplier

Where the dealer is the supplier and the creditor is the one providing the finance.

The money can only be used for the purpose it is given.

There is no interest on the purchase (the cash price is the same as the total price)

And there is no advance payment

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

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Is Phoenix Recoveries vs D Kotecha - Court of Appeals applicable here?

 

Ok, playing devils whatthingymebob...

 

 

Why do you think Phoenix Recoveries vs Kotecha applies here?

 

You might as well get used to presenting your case....

 

S.

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Hi Guys,

After attending today - got a set aside on the judgement. As there was a side aside and no judgement Charging Order dropped.

Also agreed no charges, with a reduction on the original figure - paid by way of Tomlin Order to an amount that I am agreeable with.

All this agreed before we went in to see DJ. He was happy to make them produce the NoA , their solicitor admitted that it would be highly unlikely that they would be able to produce the original as records were stored centrally. To be fair to him, he was reasonable and appeared to listen to my thoughts.

Thank you all very much for your help support and input. It's really nice to have guys like Shadow, Cymruambyth,PT - Site team, in your corner, my donation en route as this site has helped me and countless others.

01.08.06 - RBOS - S.A.R - (Subject Access Request) request

 

01.08.06 - Alliance @ Leicester Credit Card - S.A.R sent

03.09.06 - £495 owed - Alliance and Leicester sent cheque for £130 - Accepted as partial payment

03.09.06 Alliance & Leicester - LBA letter sent to recover remainder

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Share on other sites

Congratulations flyboy80, well done you :-)

 

Hadituptohere

I'm far from an expert, but learning all the time!!!!!

 

If i've been at all helpful please click my star.

 

Hadituptohere OH V Capital One, **WON**

Hadituptohere V Cabot, (providian/Monument/Barclaycard cc) - ** claim struck out ** due to non complaince of CPR, Wasted Costs applied for, Default Cost Certificate issued by Court, Warrant of excecution and CC Baliffs instructed...lol 😎

Hadituptohere V Cabot, (morgan stanley dean witter/barclays cc) - account in dispute, LBA sent to barclays, awaiting responce, no responce.

Hadituptohere V RBS, default removal x 2, case dismissed, judge used Balance of Probabilities against hard Evidence.

Hadituptohere OH v Santander, Santander issue claim in court, settled out of court via Tomlin, less solicitors fees and interest.

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