Taking Cabot to court for failing to supply HSBC CCA + Distress etc

[tamadus]

I could be wrong on this, but the way I understand it is that from 15 January 2007, Kings Hill (No.1) Ltd no longer has any relation to debt collection.

 

From now on, we should refer to them as Cabot Financial (UK) Ltd.

 

However, this name change does not change anything. Confusion (either delibrate or not) is a side effect of these name changes. When writing to them ensure you to write Cabot Financial (UK) Ltd as this is a different company to Cabot Financial (Europe) Ltd.

 

At the present time, I think it is best that we forget the name Kings Hill (No.1) ltd, except when we are talking about the past.

 

Thats interesting Tbern as I have a letter from Cabot Financial (Europe) dated 18th January 2007 and on the back it clearly states that Kngs Hil (No.!) are the legal owners of the account.

 

Looks like they may be trying to use old letter heads and it could cause them problems.

[tbern123]

Thats interesting Tbern as I have a letter from Cabot Financial (Europe) dated 18th January 2007 and on the back it clearly states that Kngs Hil (No.!) are the legal owners of the account.

 

Looks like they may be trying to use old letter heads and it could cause them problems.

 

Now that is interesting.... I am sure there are some OFT guidelines about clear communication.

 

Maybe, the Directors changed the name and didn't bother to tell anyone that works there...

[tamadus]

Thats very possible Tbern and it could cause them problems, especially when they used the same letterhead for another letter on the 29 Jan

[tbern123]

Thats very possible Tbern and it could cause them problems, especially when they used the same letterhead for another letter on the 29 Jan

 

 

If yours are the same as mine on the nice shiney Cabot Financial paper, the letter head is ok, but if you look in the bottom left hand corner, it quotes Cabot Financial (Europe) Ltd.... That is a cause for concern, no matter what do we can't get any response from Cabot Financial (UK) ltd (kings Hill)

 

They should not even be mentioning Kings Hill, in their letters except to tell us that they have changed their name. I wonder if this name change thing has anything to do with the law changes coming up and complaints being able to go to the FOS....

[Deepthroat]

So tbern, what is the next part of your plan ? Or is that a secret...

 

I hope I never get on the wrong side of you man....

[Seahorse]

Just got back home yesterday after 5 weeks away. My missus made me laugh when she told me there were a few letters had come in from "that car boot lot".

 

Seahorse

[andrew1]

Just got back home yesterday after 5 weeks away. My missus made me laugh when she told me there were a few letters had come in from "that car boot lot".

 

Seahorse

 

....after wev'e finished with them that's probably the only way they'll make a living !

[tbern123]

Good Afternoon, I hope everyone had a good weekend..

 

I need everyones help, in relation to the CCA 1974 and subsequent legislation regarding improperly executed agreements.

 

61 Signing of agreement

(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 thecreditor or owner, and

 

As you will see this was not signed by the creditor

 

[tbern123]

But as most of you will know

 

 

 

127 Enforcement orders in cases of infringement

(1) In the case of an application for an enforcement order under—

 

(a) section 65(1)(improperly executed agreements), or

 

(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).

 

Now does this document contain all the prescribed terms ?

 

[andrew1]

tbern, are we supposed to read the text by any chance? If so - we can't - it's blurred beyond reading. However, it is not signed by both parties if that is the only document therefore IMHO it cannot be presented in court as an executed agreement.

 

Whilst I believe the creditor does not have to supply you with a copy with both sigs on it under the Act, they will need one when / if they were to take it to court - so why not supply it in the first instance.

 

Edit Page 2 okay.

[tbern123]

tbern, are we supposed to read the text by any chance? If so - we can't - it's blurred beyond reading. However, it is not signed by both parties if that is the only document therefore IMHO it cannot be presented in court as an executed agreement.

 

Whilst I believe the creditor does not have to supply you with a copy with both sigs on it under the Act, they will need one when / if they were to take it to court - so why not supply it in the first instance.

 

Sorry Andrew1, this is what Cabot gave me.... The point I was trying to make was that it was not signed by Barclaycard

[tbern123]

The reason, I am asking is because, I am a little confused about what should be contained within in a credit agreement

 

60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made awareof—

negotiations, and

 

(b) any person who, in the course of a business carried on by him, acts on

behalf of the debtor or hirer in any negotiations for the agreement.

 

(a) a restricted-use credit agreement to finance the purchase of the

mortgaged land, or

 

(b) an agreement for a bridging loan in connection with the purchase of the mortgaged land or other land.

 

(a) the rights and duties conferred or imposed on him by the agreement,

 

(2) Regulations under subsection (1) may in particular—

 

(3) If, on an application made to the Director by a person carrying on a consumer credit business or a consumer hire business, it appears to the Director impracticable for the applicant to comply with any requirement of regulations under subsection (1) in a particular case, he may, by notice to the applicant, direct that the requirement be waived or varied in relation to such agreements, and subject to such conditions (if any), as he may specify, and this Act and the regulations shall have effect accordingly.

 

(4) The Director shall give a notice under subsection (3) only if he is satisfied that to do so would not prejudice the interests of debtors or hirers.

 

 

NOTES

Subordinate Legislation

61 Signing of agreement

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

(b) the amount and rate of the total charge for credit (in the case of a

consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is

desirable for him to know about in connection with the agreement.

[andrew1]

I'm no expert on this peterbard seems to have a hand on this precisely, but I believe it should contain all the T & C's of a credit Agreement rather than an application form. Yours, sadly looks like to real macoy. Try here:

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-116.html

 

Edit: The other thing of course is that if they bought the debt without the signed agreement it will be hard for them to enforce it anyway. They can hardly go back to Barclaycard & ask them to sign it now can they?

[tbern123]

Sorry the wording didn't come out very well for the signature box..

 

It is hard to read on the copy I have been given, I think it says

Barclaycard Visa Card

Credit Agreement regulated by the Consumer Credit Act 1974

 

The parties in this agreement is Barclays Bank Plc, Barclaycard Northampton, NN1 15G and the person whost name appears in the box number1 on this form. Please issue a Barclaycard Visa Card (and a PIN) to me.

 

I confirm that the information given is true and complete. If my application is accepted, I authorise you to issue an additional Barclaycard to any person named as a Additional Cardholder on my account. I authorise you to make any credit reference and other enquiries in accordance with your normal procedures in connection with my application. I agree to be bound by the Conditions set out overleaf. I understand that I can request not to receive any details of products and services other than from my branch or with my statements, by writing to the name and address above I confirm that I have read the paragraph headed Responsible Lending in the literature and agree that you may share information with other Lenders about my Barclaycard account through Licensed Credit Reference Agencies to make credit decisions and prevent fraud.

 

Applicants Signature (please sign below)

 

This is a Credit Agreement regulated bt the Consumer Credit Act 1974

Sign only if you want to be legally bound by it's terms

 

Signature of Customer:

Date of Signature:

 

YOUR RIGHT TO CANCEL

 

Once you have signed this Agreement, you will have for a short period of time a right to cancel it. Exact details of how and when you can do this will be sent to you by post by the bank.

 

Authorised Barclaycard Signature:

[tbern123]

I'm no expert on this peterbard seems to have a hand on this precisely, but I believe it should contain all the T & C's of a credit Agreement rather than an application form. Yours, sadly looks like to real macoy. Try here:

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-116.html

 

Edit: The other thing of course is that if they bought the debt without the signed agreement it will be hard for them to enforce it anyway. They can hardly go back to Barclaycard & ask them to sign it now can they?

 

 

My arguement is, that without a court order Cabot should not have written to me or called me to demand payment. As a result they have caused undue distress

[tbern123]

I thought now I have figured out this photobucket thing, I would post a copy of their defence....

 

[InKogneeToh]

Hi tbern,

 

Are there 'conditions overleaf' on that copy as indicated on the front of it? Is this your own copy and have they supplied a copy under s78?

 

Regards, Pam

[tbern123]

Thanks for taking a look, this is what I was given further to my CCA S78 request.

 

No there are no terms overleaf. I was only given this one page document

[louiboy]

Is the document considered properly executed if it doesn't include the T&C's and a copy of the payment protection document/T&C's (any other documents listed?).

 

The CCA makes reference to the T&C's as part of an executed agreement.

 

Without the T&C's and other parts how would you argue unfair T&C's and the right to process data.

[InKogneeToh]

Hi again

 

This is definitely an improperly executed agreement due to having no creditor signature and is unenforceable without a court order as per s65(1)

 

My interpretation of unenforceable is that the creditor cannot impose the terms of the agreement on you i.e. interest charges, penalty fees etc. Also I think the issuing of a default notice is a preliminary act of enforcement and also prohibited as is any pressure to get you to pay!

 

With regard to the actual type of agreement here (if it should be successfully argued that it is in fact an agreement and not just an application form!) this is actually a non-cancellable agreement according to the CCA's criteria but, as is usually the case with credit card agreements, the creditor has given a right to cancel so the following applies:

Non-cancellable agreements treated as cancellable

A trader may choose to give cancellation rights to customers in the case of some agreements which would otherwise be non-cancellable. In such cases, however, the rules relating to the giving of copies of cancellable agreements and the content of those copies should be followed.

 

6 What the agreement must contain

1 A heading in one of the following forms of words shown prominently on the first page:

Hire-Purchase Agreement regulated by the Consumer Credit Act 1974

or

Conditional Sale Agreement regulated by the Consumer Credit Act 1974

or, in any other case,

Credit Agreement regulated by the Consumer Credit Act 1974.

Where the document embodies an agreement, of which at least one part is a credit agreement not regulated by the Act, the word ‘partly’ must be inserted before

‘regulated’ in the heading – unless the regulated and unregulated parts of the agreement can be clearly seen to be separate.

2 The name and a postal address of both trader and customer.

3 A description (in enough detail to identify it) of any security to be provided by the customer and a description of its subject matter. The description must be in the main agreement but the full terms can be in a separate document referred to in the main agreement.

4 Details of any default charges which the customer or a relative of his is required to pay if he breaches the agreement.

5 Certain financial and related particulars (see below).

6 Statements of certain forms of protection and remedies provided for the customer by the Act (see pages 12–14).

7 A signature box (see Appendix 2).

 

 

The amount of credit to be provided under a fixed-sum agreement (for example, a cash loan) or particulars of the credit limit under a running-account agreement (for example, a credit card).

The credit limit can be expressed as:

a a sum of money, or

b a statement that the trader will, under the agreement, periodically determine the credit limit and notify the customer, or

c a sum of money together with a statement that the trader may, under the agreement, periodically vary the credit limit and notify the customer, or

d if (a) (b) or © above are not appropriate either a statement indicating how the credit limit will be determined and notified to the customer or a statement that there is no credit limit.

 

This is not all an agreement must contain but only some relevant parts. I have a copy of an OFT doc from 2003 (i.e. before CCA2006 amendments) that details what a cancellable agreement must contain. I can email you a copy if you want.

 

Also, as this was a cancellable agreement, did you receive the correct copies of docs. and copies of cancellation notices as applicable to the circumstances ? This also needs checking.

 

Lots more homework to do!

 

Regards, Pam

[InKogneeToh]

Also, for what it's worth, my thoughts on the 'defence'

 

1) wrong

2) not sure

3) wrong

4) so what?

5) so what?

6) uummm! smoke and mirrors?

7) admission that they have defaulted under s78

8) Easy peasy - just read the CCA matey!!

9)we'll see about that!

 

Regards, Pam

[tamadus]

If yours are the same as mine on the nice shiney Cabot Financial paper, the letter head is ok, but if you look in the bottom left hand corner, it quotes Cabot Financial (Europe) Ltd.... That is a cause for concern, no matter what do we can't get any response from Cabot Financial (UK) ltd (kings Hill)

 

They should not even be mentioning Kings Hill, in their letters except to tell us that they have changed their name. I wonder if this name change thing has anything to do with the law changes coming up and complaints being able to go to the FOS....

 

These letterheads have Cabot Financial in top left corner and Cabot financial with address in top right hand corner. No mention of Cabot Uk

 

On the bank is some additional information which basically says the debt is owned by Kings Hil (No.1) Ltd and cabot Financial (europe) are entitled to receive payment. :o

[tamadus]

Seems to me they only have 2 of the required items on that document Tbern, name sof both parties andthe agreement summary box. I see no mention of credit limit, interest rate or terms and conditions.

 

Them not signing it should immediately make it unenforceable but the rest make sit doubly so IMHO.

[mcuth]

That defence sucks so much it could be a Hoover

IMHO not one of those denials conforms to CPR16.5...

 

Cheers

 

Michael

[InKogneeToh]

Hi again

 

Does your agreement contain this information?

 

If not - VERY detrimental to you!!

 

8 All agreements other than those described in paragraph 6 above

 

IMPORTANT – YOU SHOULD READ THIS CAREFULLY

YOUR RIGHTS

 

The Consumer Credit Act 1974 covers this agreement and lays down certain requirements for your protection which must be satisfied when the agreement is made. If they are not, the creditor cannot enforce the agreement against you without a court order.

The Act also gives you a number of rights. You have a right to settle this agreement at any time by giving notice in writing and paying off all amounts payable under the agreement

If you would like to know more about the protection and remedies provided under the Act, you should contact either your local Trading Standards Department or your nearest Citizens’ Advice Bureau.

 

 

 

9 Credit-token agreements under which the customer is

made liable to a limited extent for loss to the creditor arising from misuse of the credit-token by other persons

 

LOSS OR MISUSE OF CREDIT-TOKEN

 

If the credit-token is lost, stolen or misused by someone who obtained it without your consent, you may be liable for up to (£50) of any loss to the creditor. If it is misused with your permission you will probably be liable for ALL losses. You will not be liable for losses to the creditor which take place after you have told him of the theft, etc [provided you confirm any oral message in writing within seven days] [However, the credit-token can also be used under an agreement to which this protection does not apply. As a result, there may be circumstances under which the creditor could enforce full liability against you.

 

Regards, Pam