Cabot no CCA - Merged EGG loan/card ebt

[HSBCandMe]

Old Egg credit card and loan merged into a single debt by Egg, then sold to a number of DCAs and now with Cabot.

 

I sent CCA and they have written back saying it is "unenforceable."  They have said however that they can still get a CCJ against me, but cannot enforce recovery under it.

 

My question is: is there a defence or anyway to prevent them from getting a CCJ in the absence of a true copy of my credit agreements?  

[BankFodder]

I'm quite sure that they are telling porkies. No CCA – no CCJ

[HSBCandMe]

Hi. Do you have any statute or case law to back that up?  I would like to go back at them with it.  My worry is that they will obtain a CCJ for the heck of it and trash my CRFs.

 

I should add I have been paying this debt for 20 years. I have only just stopped on the back of them not having a CCA.

[lookinforinfo]

Could you please post up their letter as they appear to be threatening something they cannot do in flagrant breach of the OFT Debt Guidelines.

[AndyOrch]

6 hours ago, HSBCandMe said:

Hi. Do you have any statute or case law to back that up?  I would like to go back at them with it.  My worry is that they will obtain a CCJ for the heck of it and trash my CRFs.

 

 

Simply refer to section 77/78 of the CCA1974 under the request you made

 

(4)If the creditor under an agreement fails to comply with subsection (1)—

(a)he is not entitled, while the default continues, to enforce the agreement; 

 

https://www.legislation.gov.uk/ukpga/1974/39/section/77

 

Andy

[dx100uk]

20yrs!!

who merged the debts..was it EGG?

so which agreement number is it covered under..

 

retitled for clarity

moved to the EGG forum.

 

have you ever sent EGG a SAR?

typically EGG stuff has PPI and loads of penalty charges too.

 

dx

 

 

 

[HSBCandMe]

12 hours ago, dx100uk said:

20yrs!!

who merged the debts..was it EGG?

so which agreement number is it covered under..

 

retitled for clarity

moved to the EGG forum.

 

have you ever sent EGG a SAR?

typically EGG stuff has PPI and loads of penalty charges too.

 

dx

 

 

 

Yes, nearly 20 years. 

 

Egg merged them when it defaulted. It was then ping-ponged to DCAs like Cap Quest and their ilk, until being sold to Arrow, then to ME111 and now Cabot.   I did SAR Egg who had a copy of the loan and CC credit agreements.  No new merged agreement when it defaulted. Cabot don't (yet) have a copy of either of the original agreements.

 

 

I claimed PPI years ago and the loan got re-scheduled by Egg when they still owned it.

[HSBCandMe]

17 hours ago, lookinforinfo said:

Could you please post up their letter as they appear to be threatening something they cannot do in flagrant breach of the OFT Debt Guidelines.

 

Can you point me in the direction of the relevant guidelines?

[dx100uk]

Scan ti pdf

 

Read upload

[HSBCandMe]

Cabot letter.pdf

[Peterbard]

There are two different routes to unenforceability. One is when the agreement is not properly made, under section 127(3) for this you need wislon vs first trust, also many since ,this only applies if the agreement was made before 2007.

 

The other is via the Copy regulation and sections 75 to 79 and 180 of the act of the act, this still applies.

 

For this you need Carey Vs HMBC also known as the Manchester cases. If you tell me which kind of UE you have a will link you to the correct cases and legislation.

[Peterbard]

Sorry Just read your letterj

 

Panic over. What they are saying is they could achieve a default judgement.  That is, if you did not challenge them with the copy legislation or did not attend. They know they cannot get a CCJ if you do challenge.

 

I would write back thanking them for their advice but you are fully aware of the copy regulations and the fact that you cannot enforce until the documents are sent.

 

For further information See Carey v HSBC [2009] EWHC 3417 (QB).

 

I can assure you I will attend if you attempt to commence proceedings in this matter. 

 

something along those lines

 

.

 

 

 

 

[AndyOrch]

Not sure they really understand the process...they issue a claim and you dont defend they get a default judgment..but they cant execute it because they have not complied with your CCA request 

 

Never stopped them before.

 

Numpties 

[HSBCandMe]

16 hours ago, Andyorch said:

Not sure they really understand the process...they issue a claim and you dont defend they get a default judgment..but they cant execute it because they have not complied with your CCA request 

 

Never stopped them before.

 

Numpties 

 

Yes, but the issue of course is that it wrecks the debtor's credit files. And not just for 6 years, a lot of lenders ask if you have EVER had a CCJ. So it kind of smacks of the credit industry looking after their own.

 

I must look into the defence route available under s. 127(3) and Wilson v First Trust as my Egg CCAs (loan and CC) were both pre-2007. 

[dx100uk]

if its not showing on your file you don't tell them

 

[HSBCandMe]

I have done some quick research of my own.

 

The CCA imposes numerous statutory requirements on creditors who enter into regulated credit agreements in the course of business. A key sanction used in the CCA for non-compliance is that the relevant credit agreement may be unenforceable against the debtor.

 

Thus, a creditor who falls to provide credit agreement documentation (sections 61 to 65) cannot enforce the agreement without an order of the court under s. 127; or fails to provide pre-contract information (s.55), or provide compliant annual statement (s. 77A) or provide notice of sums in arrears (sections 86B–D) cannot enforce the agreement until compliant documents are provided.

 

If a compliance issue is identified in good time, it can therefore potentially be sorted out before judgment is obtained (either by serving remedial compliant documentation or by applying for an enforcement order).  HOWEVER, does this apply to CCAs made before 6 April 2007, where there is failure to include certain prescribed terms or cancellation notices was fatal and such agreements may be irredeemably unenforceable (ss. 127(3) and (4)?

 

The term "enforce" is not defined in the CCA: it includes obtaining judgment for the debt owed under an agreement but not merely issuing proceedings (McGuffick v The Royal Bank of Scotland plc [2009] EWHC 2386).

 

The worrying bit seems to be the arbitrary powers given to the Court by Part 3.10 of the Civil Procedure Rules (CPR), which provides a “general power of the court to rectify matters where there has been an error of procedure” i.e. if there has been an error of procedure such as failure to comply with a rule or a practice direction the error does not invalidate any step taken in the proceedings unless the court so orders; and the court may make an order to remedy the error

 

Similar arguments can be made in respect of other types of technical non-compliance giving rise to unenforceability under the CCA.  Again, where do pre-2007 CCAs sit with this if they are deemed non-compliant?  Can Cabot remedy this retrospectively? 

 

I have read that the uppermost consideration for Cabot is more likely to be the regulatory position with regard to the FCA. Where a compliance issue is identified the FCA will generally expect the original creditor to remedy the issue retrospectively with regard to all affected customers.

 

So, might one approach be for me to dispute the account while lodging a complaint with the FCA?  Can Cabot continue debt collection activities?  Can they apply for a judgement even if they cannot enforce whilst an FCA complaint is being made?  

[AndyOrch]

Judgment and execution of the judgment have no connection to a CCA in a default judgment case ..IE you do not submit a defence.

[HSBCandMe]

But surely you need to submit a defence to prevent any sort of judgement?    Cabot may not be able to enforce a judgement, but they cam screw up your credit files.  So it makes sense to defend, surely? 

 

Ref. Wilson v First County Trust Limited. Old case, from 2001, where court held that s.127 (3) restricted it’s power to make an enforcement order under s.65 (1) CCA unless a document containing all the prescribed terms of the agreement had been signed by the debtor.

 

 

[London1971]

Nobody asked me about my historic CCJ's when I applied for my mortgage, only what was still on my file. Even if they do ask, there is no way of finding out once they are off your file, so no need to tell them.

 

And of course they can issue a claim, and they will win if like 90% of the people you don't defend it,  or you don't know about it because it went to an old address.  That claim may never happen, but if it does you will have an excellent defence.

[HSBCandMe]

A lot of this Egg stuff is pre-2007, so is Wilson still relevant?

[AndyOrch]

35 minutes ago, HSBCandMe said:

But surely you need to submit a defence to prevent any sort of judgement?    Cabot may not be able to enforce a judgement, but they cam screw up your credit files.  So it makes sense to defend, surely? 

 

Ref. Wilson v First County Trust Limited. Old case, from 2001, where court held that s.127 (3) restricted it’s power to make an enforcement order under s.65 (1) CCA unless a document containing all the prescribed terms of the agreement had been signed by the debtor.

 

 

 

Of course you must always defend...I think we are going off at different tangents here....I am simply referring to the response you got from Cabot and their lack of understanding of the process.You must appreciate that 95%  of DCA claims go undefended and they work on default judgments.

[HSBCandMe]

Thank you, Andyorch

[HSBCandMe]

On 27/03/2019 at 00:00, dx100uk said:

20yrs!!

who merged the debts..was it EGG?

so which agreement number is it covered under..

 

 

Hi. May I ask: was it ok for egg to have merged my credit card and loan balances into the DMP I had with the CCCS (at default in 2006?).   The reason I ask is that Cabot (who now own the debt) insist on referring to the old loan account number only and not the loan and cc. 

 

The default balance of the cc was £2k and the loan £7k at the time. So £9k merged repayment plan.  Capquest had it first then a string of others. 

 

Should egg have rescheduled the £9k in a new CCA when it defaulted?  They didn’t.

Edited April 15, 2019 by HSBCandMe

[dx100uk]

short ans is no.

 

if and when this ever gets to court

you would ofcourse be pointing out and requesting the claimant to produce documents for BOTH CCA regulated debts regardless to if capquest litigate the full balance under one agreement number or not.

[Peterbard]

Sorry DX not picking on you. But yes, of course, they can. As long as both agreements have been terminated. They are then just sums owed as such they can, of course, be combined with other sums owed.

 

Yes, you must defend in order to reverse the burden of truth, same especially in SB cases.

 

You must be careful to separate unenforceability under 127(3) irreversible unenforceability, to an agreement being unenforceable under the copy regs, the latter being open to remedy. All the creditor has to do is produce a compliant copy.

 

The former cannot be remedied because it depends on what the debtor saw or was advised of at the signing of the contract, you can not go back and change that.

 

 

 

On ‎29‎/‎03‎/‎2019 at 09:54, Andyorch said:

Judgment and execution of the judgment have no connection to a CCA in a default judgment case ..IE you do not submit a defence.

 

 

This is true of corse.

In regards to a consumer credit agreement, enforcement will follow an uncontested claim.

 

 Claiming unenforceability under section 127 relies on there not being sufficient information shown to the debtor before the agreed to the loan.

 

To be compliant, the debtor must have known(within the limits of the regulations )regarding what the loan will cost him.

The act prescribes what parliament considers to be the essential information that the debtor must be made aware of before he agrees to take the finance.

 

On an action

 

If A dispute is raised by the debtor in regards to pre-contractual information, ie that he did not know or wasn't made aware of vital information, a court will examine the agreement, and should there be the slightest variance between what it contains and the law prescribes it would be regarded as a breach under section 65.

This states that an enforcement order may not be issued other than by permission of the court.

 

Before April 2007, if there were no prescribed terms or signature, the court could not issue an enforcement order they were prevented by 127(3).

 

If any other lessor breaches were proven, the court had the discretion to award sanctions under section 127(1), that is in accordance with damages caused by the lesser breach