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

[pmhcfc]

PLEASE READ THIS:

http://www.cabotfinancial.com/pdf/Legal%20Misconceptions%20in%20Debt%20Sale%20and%20Administration.doc

 

I wonder if, this has to do with us ???

 

LOL.. Corn Legs Dwarf - sorry,I mean Glen Crawford, sounds a trifel pi**ed off with us lot..I mean, who else could he be refering to?

 

I'm still waiting for my reply back from a certain bank that will clarify what Cabot actually buy when they purchase a debt...I've asked for clairification that Cabot buy's the rights and the duties, be interesting to see what the bank's view is in all this...

 

My own personal fave from Corn Legs is this bit :

 

In fact, where a creditor fails to provide information requested in accordance with any of those sections, what the Act does is to prevent the creditor from enforcing the agreement until the creditor provides the information

 

[The creditor is not entitled, while the default continues, to enforce the agreement”: section 77(4)(a), 78(6)(a) and 97(3)

 

Well, if Cabot is aware of this then why do they do it. I can't understand what's wrong with Cabot, can't they understand that all we want is for the DCA's to act lawfully/legally. If a debt is owed to them, then by all means collect it as long as:

 

a) They're entitled to so by Law

 

b) Follow all the OFT etc guidelines on debt collection.

 

c) Show some compassion as and when compassion is needed.

 

What's so hard about that Glen?

[Seahorse]

Does clicking my scales (bottom left) help ?

 

No, it bloomin well doesn't!!! My leg still hurts where my horse kicked me yesterday.

[pmhcfc]

No, it bloomin well doesn't!!! My leg still hurts where my horse kicked me yesterday.

 

LoL ..Another question here on the LOP Act re this case:

 

House of Lords - Mulkerrins (formerly Woodward (FC)) (Appellant) v. Pricewaterhouse Coopers (a firm) (formerly trading as Coopers & Lybrand) (a firm) (Respondents)

 

13. The general rule is that the benefit of a contract may be assigned to a third party without the consent of the other contracting party. If this is not desired, it is open to the parties to agree that the benefit of the contract shall not be assignable by one or either of them, either at all or without the consent of the other party. There is nothing objectionable in this; a party is entitled to insist that he deal only with the particular party with whom he has contracted: see Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85, 105, per Lord Browne-Wilkinson. But unless he takes the precaution of including in the contract a prohibition of assignment, he has no right to object to it. A debt is freely assignable both at law and in equity without the debtor's consent. Section 136 of the Law of Property Act 1925 requires notice of the assignment to be given to the debtor if it is to be effective at law; it does not require his consent.

 

Do you think this is the one case that Cabot is relying on??

[pmhcfc]

LoL ..Another question here on the LOP Act re this case:

 

House of Lords - Mulkerrins (formerly Woodward (FC)) (Appellant) v. Pricewaterhouse Coopers (a firm) (formerly trading as Coopers & Lybrand) (a firm) (Respondents)

 

13. The general rule is that the benefit of a contract may be assigned to a third party without the consent of the other contracting party. If this is not desired, it is open to the parties to agree that the benefit of the contract shall not be assignable by one or either of them, either at all or without the consent of the other party. There is nothing objectionable in this; a party is entitled to insist that he deal only with the particular party with whom he has contracted: see Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85, 105, per Lord Browne-Wilkinson. But unless he takes the precaution of including in the contract a prohibition of assignment, he has no right to object to it. A debt is freely assignable both at law and in equity without the debtor's consent. Section 136 of the Law of Property Act 1925 requires notice of the assignment to be given to the debtor if it is to be effective at law; it does not require his consent.

 

Do you think this is the one case that Cabot is relying on??

 

And interesting point from the abovecase:

 

15. The reason that the debtor's consent is not required to an assignment of a debt is that the assignment cannot prejudice him. The assignment is subject to equities, which means that any set-off which the debtor may have against the assignor can be asserted against the assignee.

[Seahorse]

I did initially get all excited about that bit when I thought it meant it WOULD need my consent for the debt to be assigned. But got all despondent when I read it would need to have been written into the contract beforehand. Which is nonsense, because, there IS no enforceable agreement anyway. Hang on a minute!!!!! If there is no enforceable agreement, then surely there are NO terms and conditions to refer to, so should Barclaycard have been able to assign the debt to Kings Hill in the first place without my consent, and therefore neither did Kings Hill have a right to assign that debt to Cabot Europe without my consent????? Bearing in mind that I'm not arguing the rights and wrongs of the DPA here, I'm just examining what the HoL have said about the Property Act in one particular case.

 

Helllooooo, am I right, or am I hallucinating?????????

 

I'm off to bed before my brain melts.

[FANTASY CHARGES]

And interesting point from the abovecase:

 

15. The reason that the debtor's consent is not required to an assignment of a debt is that the assignment cannot prejudice him. The assignment is subject to equities, which means that any set-off which the debtor may have against the assignor can be asserted against the assignee.

 

does this mean that "the person who has bought the debt" is liable for any unlawful charges that the credit card company has added --- ???

[pmhcfc]

does this mean that "the person who has bought the debt" is liable for any unlawful charges that the credit card company has added --- ???

 

That's how I'm reading it, yes.

[Seahorse]

I'm going to ask WW in the morning.

 

(BTW see post 1283 - you're lagging a bit, P )

[tbern123]

LoL ..Another question here on the LOP Act re this case:

 

House of Lords - Mulkerrins (formerly Woodward (FC)) (Appellant) v. Pricewaterhouse Coopers (a firm) (formerly trading as Coopers & Lybrand) (a firm) (Respondents)

 

13. The general rule is that the benefit of a contract may be assigned to a third party without the consent of the other contracting party. If this is not desired, it is open to the parties to agree that the benefit of the contract shall not be assignable by one or either of them, either at all or without the consent of the other party. There is nothing objectionable in this; a party is entitled to insist that he deal only with the particular party with whom he has contracted: see Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85, 105, per Lord Browne-Wilkinson. But unless he takes the precaution of including in the contract a prohibition of assignment, he has no right to object to it. A debt is freely assignable both at law and in equity without the debtor's consent. Section 136 of the Law of Property Act 1925 requires notice of the assignment to be given to the debtor if it is to be effective at law; it does not require his consent.

 

Do you think this is the one case that Cabot is relying on??

 

If they are, they have misunderstood the situation.

 

A debt can be assigned, I have no problem with that. The problem is, following that assignment, does the new party become the creditor.

 

And the answer is yes:

 

UNADKAT & Co (ACCOUNTANTS) LTD And ASHOK BHARDWAJ .V. The TREASURY SOLICITOR : [2006] EWHC 2785 (Ch) paragraph 2.

.(by virtue of of a debt assignment, the interested party becomes the creditor).

 

And according to The Parliamentary Under-Secretary of State for Trade and Industry (Mr. Gerry Sutcliffe)

 

Under clause 23, a debt purchaser who became a creditor or owner when he purchased the loan would require a licence

[tbern123]

WW, GC and KM have got some catching up to do tomorrow. I wonder if they get together and discuss the things we post...

 

I would love to be a fly on the wall during one of those meetings.

[pmhcfc]

I'm going to ask WW in the morning.

 

(BTW see post 1283 - you're lagging a bit, P )

 

 

OOer...that's weird, cos I did a site search before I posted this cos I didn't want to repeat anything...The site search bought nothing up either...Hey ho- least we're thinking along the same lines

 

Tbern...Your thoughts match mine...Imagine the debate over morning coffee they might have lol.....wonder if Glen's new nickname is Cornlegs pml

[lookinforinfo]

An interesting assertion that a genuine enquiry to prove that a DCA does

have the right to collect a debt by way of a CCA request makes us

rogues.

I note that there was no mention of the rogues in his own business who send

out spurious copies of application forms etc, knowing full well that they do

not comply with the CCA, then continue to pursue the debtor in flagrant

disregard to the Law.

Or the other rogues who pursue a debtor without the authority of the original

creditor and who fail to desist after receiving such instructions from the OC.

 

I still don't see how, merely because his company was not the original lender,

DCAs can take on the rights but not the duties of the OC when a debt is

assigned to them.

I am pleased to see that the CAB is challenging them on this, since the DCAs

would claim that complying with a CCA request is a duty as is complying with

the terms of the original agreement-both of which they would be delighted

to weasel out of.

 

I am sure I read in the CCA that a debtor is entitled to challenge the right of

a DCA if they administer the debt in a more draconian way than allowed for

in the agreement but cannot find it now?.

[InKogneeToh]

Hi

 

It is also interesting to see that Mr Crawford does not appear to understand the word 'creditor'

 

Quote:

 

We do not believe that debt purchasers fall within the definition of "creditor" in section 189(1) of the Consumer Credit Act, because they take assignments of the rights, but not the duties, of creditors under consumer credit agreements: they collect the debts, but they do not themselves lend money

 

The definition of creditor in the dictionary is:

 

Noun1.creditor - a person to whom money is owed by a debtor; someone to whom an obligation exists

So if Cabot or any other DCA claim that a debt is owed to them then they are creditors!! What is so difficult for them to understand??

 

Regards, Pam

[elizabeth1]

WW, GC and KM have got some catching up to do tomorrow. I wonder if they get together and discuss the things we post...

 

I would love to be a fly on the wall during one of those meetings.

 

 

This company sure do need to wake up and smell the coffee!!! We seem to be doing their jobs for them? I reckon they should just give up and save themselves the headaches!!

[Seahorse]

I'm sure they wish some of us would just go away, Liz. But haven't they thought that perhaps a simple letter saying, OK, we give up, would MAKE some of us go away? Or are they so feckin stupid, that they think it's really worth while dragging this out, hoping that we'll eventually pay up?

 

Although I'll pay up on the same day as old Beelzebub has to put on his winter woollies.

[FANTASY CHARGES]

This company sure do need to wake up and smell the coffee!!! We seem to be doing their jobs for them? I reckon they should just give up and save themselves the headaches!!

 

pERHAPS we should form a venture capitalist group and buy them out !

 

( I've got a spare shilling (had budgeted it for the gas meter) to fund the purchase ( management buy out) of cabot(we've got some privet in the garden so perhaps i could form a "hedge fund") then we could sack em and sell the debts back to joe public at 10 pence in the pound .

 

In fact why couldn't some charity set itself up like cabot ?? and do just that ??

[pmhcfc]

Hi

 

It is also interesting to see that Mr Crawford does not appear to understand the word 'creditor'

 

Quote:

 

We do not believe that debt purchasers fall within the definition of "creditor" in section 189(1) of the Consumer Credit Act, because they take assignments of the rights, but not the duties, of creditors under consumer credit agreements: they collect the debts, but they do not themselves lend money

 

The definition of creditor in the dictionary is:

 

Noun1.creditor - a person to whom money is owed by a debtor; someone to whom an obligation exists

So if Cabot or any other DCA claim that a debt is owed to them then they are creditors!! What is so difficult for them to understand??

 

Regards, Pam

 

SO Cabot are saying that when they lend you money (they do do this) they are creditors, but when they are trying to collect money from you that you 'owe' them, they are not creditors???!!

 

Hey perhaps Ken and Co might offer us jobs in their legal department...:grin:

[InKogneeToh]

Hi

 

Just another thought - IF it turned out to be correct that Cabot was not the creditor because the duties had not been assigned then it would be the case that the duties still rest with the original lender.

 

So we would need to send the CCA request to them. If the copy agreement was not forthcoming or the agreement was improperly executed then surely the 'rights' under the agreement would still be unenforceable (at least without a court order) - whoever owns them!!

 

Regards, Pam

[pmhcfc]

I'm going to ask WW in the morning.

quote]

 

have you asked WW yet Seahorse??- I'm assuming you've gotten through the snow alright.

[andrew1]

 

Hey perhaps Ken and Co might offer us jobs in their legal department...:grin:

 

I worked for an engineering company once where the shop steward ( we had unions then ( pre maggie :grin: ) was a hell raiser and had us all out on strike more times than we had lunch breaks... any excuse - 'down tools' - so what did the company do? - made him personnel manager, gave him a car, bought him a suit, doubled his salary ( probably ) and brought him into management - he was not a popular bunny with the Union but the strikes stopped - Ken - are you reading? - there's a few who might be worth employing out here ! :grin: :grin:

[FANTASY CHARGES]

I worked for an engineering company once where the shop steward ( we had unions then ( pre maggie :grin: ) was a hell raiser and had us all out on strike more times than we had lunch breaks... any excuse - 'down tools' - so what did the company do? - made him personnel manager, gave him a car, bought him a suit, doubled his salary ( probably ) and brought him into management - he was not a popular bunny with the Union but the strikes stopped - Ken - are you reading? - there's a few who might be worth employing out here ! :grin: :grin:

 

 

HOW MANY PIECES OF SILVER ????

[andrew1]

Well tbern seems a likely candidate doesn't he? - "lives down the road" he said - they might employ him to square up against we Caggers - :o

[Seahorse]

OK, query sent to WW, cc'd to NG and KM.

 

Cabot Financial (UK) Limited

c/o Mr Willem Wellinghoff

 

Dear Mr Wellinghoff,

 

thank you once again for the opportunity to contact you regarding this matter.

 

Whilst I am still awaiting a reply from you regarding your assertion that the "rights but not the duties" of the original creditor apply to the owner, and therefore the creditor, of the account, I now have reason to believe that the Act that Cabot Financial (UK) Limited are basing their assumptions on, is The Law of Property Act 1925.

 

Would you please be so good as to confirm or deny this for me, please?

 

If that is the case, and bearing in mind that the basis I am challenging the amount owed is that it is made up of, at least partially, unfair penalty charges imposed by the original creditors, do you feel that I should now be challenging Cabot Financial (UK) Limited regarding those unfair penalties?

 

I would like to refer you to this snippet, taken from:

 

House of Lords - Mulkerrins (formerly Woodward (FC)) (Appellant) v. Pricewaterhouse Coopers (a firm) (formerly trading as Coopers & Lybrand) (a firm) (Respondents)

 

15. The reason that the debtor's consent is not required to an assignment of a debt is that the assignment cannot prejudice him. The assignment is subject to equities, which means that any set-off which the debtor may have against the assignor can be asserted against the assignee.

 

is the part I am particularly interested in. And I would like your opinion as a matter of some urgency, so that I may consider my next step in bringing this matter to a satisfactory conclusion.

 

As I understand the paragraph, this means that if I have a dispute with the original creditor's calculation of how much was owing, and to whom, as the debt has be assigned by the original creditor to (Cabot Financial (UK) Limited), it is the new owner to whom I should direct my dispute.

 

I would be much obliged if you would confirm or otherwise, my interpretation of the above. And if you do not agree, then I would seek your interpretation in the alternative.

 

Yours Sincerely,

 

Seahorse

[andrew1]

Good on you Seahorse..

[ODC]

This just gets better by the day