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

[tamadus]

just for reference sake this is from the wilson v secretary of state case.

 

4. The agreement was a regulated agreement for the purposes of section 8 of the Consumer Credit Act 1974. A regulated agreement is not properly executed unless the document signed contains all the prescribed terms: section 61(1)(a). One of the prescribed terms is the 'amount of the credit': see the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553), regulation 6 and Schedule 6, para 2. The consequence of failure to state all the prescribed terms of the agreement is that the court is precluded, by section 127(3), from enforcing the agreement. In the absence of enforcement by the court the agreement is altogether unenforceable: section 65(1).

 

This basically says that if ANY of the prescribed terms are missing from the agreement then under sec 127 even a court cannot enforce it.

[InKogneeToh]

Hi tam

 

If you are highlighting the requirement for the 'amount of credit' to be included in the agreement then this is qualified by the regulations:

 

3 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 how credit card issuers normally refer to it and usually in the separate T&Cs

 

However, the OFT doc I have states:

 

Some terms must always be contained in the signature document as described under the heading ‘What the agreement must contain’. But any other term of the agreement can be recorded either in the signature document or in another document referred to in it.

 

The 'amount of credit' is included under 'what the agreement must contain' and so, although it can be expressed as a statement that the creditor will determine it and notify the borrower, this statement MUST be in the signature document!!

 

All go check your agreements AGAIN!!

 

Regards, Pam

[InKogneeToh]

tbern,

 

Were are you? You're problem is solved!!

 

Regards, Pam

[tbern123]

lol trying to read it and translate it into my simple terms

[tamadus]

LMAO Tbern.

 

Thats what I was trying to say Pam, the document tbern has posted contains none of the prescribed terms that should be on the signed document except for the credit summary box and names and addresses.

 

Looks like that one is pretty much home and dried tbern

[tbern123]

Thanks

 

What I was trying to establish was, would a court order be granted to enforce this agreement, as without it being signed Barclaycard it isn't at the moment.

 

Cabot have called and written to me to demand payment and I intend to deal with that issue.

 

However, I want to know how hard I can push the issue that this agreement is improperly executed.

[InKogneeToh]

No

 

It does not contain all the prescribed terms so now comes within s127(3):

 

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).

 

Yours doesn't so wholly unenforceable!!

 

I have PM'd you

 

Regards, Pam

[tbern123]

Thanks Pam, I have just sent you an email....

[InKogneeToh]

LMAO Tbern.

 

Thats what I was trying to say Pam, the document tbern has posted contains none of the prescribed terms that should be on the signed document except for the credit summary box and names and addresses.

 

 

Hi tam

 

I realised you were saying the same thing but some members seem to have the impression that a credit card agreement must have the credit limit expressed as a sum of money, which is not correct.

 

Would you like a copy of this OFT doc for reference? If so, PM me with your email address and I will send to you.

 

Regards, Pam

[Rhia]

Tbern it says in the CCA that the agreement must include all terms and conditions and not just implied T&Cs. Also I think it was Peter Bard on the Consumer Agreements thread who had aletter from Ian McCartney MP via the DTi which said that a pre-contractual document (application form) is not a properly execute agreement. Now I have the first quote and will dig t out but read the Ian McCartney one and now can't find it. There seem to be two version sof his letter via different MPs and one of them says clearly the pre-contractual bit.

I have an almost identical situatiion t you with an application form that they are trying to say is the full agreement and it just isn't. Also if it's illegible it's unenforceable although I wasn't sure if that was just the scan you had made.

[andrew1]

If memory serves me right Ian McCarntney said little or nothing in those letters..

[Rhia]

I may have misread that letter but seem to recall it said the bit about the pre-contractual documentation. But in evey other sense it was typical politician's reply so you're right Andrew1

[InKogneeToh]

Hi

 

Many thanks to whoever gave me a tick within the last hour.

 

Does anyone know how many rep points you need to gain another green blob - OH! I sooo want another green blob!!

 

Regards, Pam

[Seahorse]

This is all rather interestingly going off tangent slightly for me. OT as regards my dispute with CarBoot and co, and Barclaycard, but bringing up a relevant point nonetheless, I have a query: if all the above is so, where would my new CC company stand in relation to my application? I applied online expecting there to be a CCA doc of some variety to be awaiting my signature when I got home the other day, only to find they have already sent me a nice, shiny new card ready to be activated my phone. How does all that work then? What if I defaulted and they tried to chase me for payment? They have no signed agreement other than an eTick in a box.

 

NOT that I intend to diddle you, my fine new CC partner. I need you to assist in my credit repair process. Oh, dear. That sounds a little like I intend to stay in credit at all times, thereby denying you an element of profit in our new-found friendship. Sorry, new CC company, but I'm a much wiser Seahorse since I discovered the CAG habit.

 

Seahorse

[InKogneeToh]

Hi Seahorse

 

I think there is a whole new set of regulations covering on -line credit applications and there is now the 'e-signature'!

 

I haven't got round to looking at those yet but they apparently cover this situation.

 

I'm off to bed now but many thanks for your rep. points. Much appreciated.

 

Regards, Pam

[Seahorse]

eSignature? Sounds a little like an invitation to fraud, but hey-ho, I suppose the powers that be will make sure nobody can apply that isn't really who they say they are. Hmmm

[debt_mountain]

1) wrong

2) not sure

3) wrong

4) so what?

5) so what?

In a defence statement they cannot just say disagree....they must give a clear arguement of why they disagree and under what grounds. (That's my understanding anyway). But 7 does kind of blow 1 out of the water.

 

Good ol' Mr Spencer.

[InKogneeToh]

In a defence statement they cannot just say disagree....they must give a clear arguement of why they disagree and under what grounds. (That's my understanding anyway). But 7 does kind of blow 1 out of the water.

 

.

 

Hi

 

I agree. I think tbern has good cause to apply for strike out of this defence as it discloses no reasonable argument. As you say, the CPR requires that where you deny an allegation you must state your version of the events/facts.

 

Also, points 7 & 8 illustrate quite clearly that they have no idea what they are talking about!!

 

Regards, Pam

[Seahorse]

What a fun idea? I've signed up too. If anyone would like to, but don't want to use their email address, let me know. I've set up a dummy domain, so you can have [email protected] (obviously swap the name bit for one of your own).

 

I can see where I'm going to be whileing away my free time.

 

Seahorse

 

(If you didn't know already) Kingshill No.1 became Cabot (uk) on 15th Jan 2007...Sorry to post so many all at once but I'm having some fun digging around about this company ..If you look at this website > The Association of Credit Professionals= you can join the group and can

[Deepthroat]

added

in error

[tbern123]

Time for another email...

 

 

----- Original Message ----- From: tbern123

To: [email protected] ; [email protected]

Sent: Tuesday, February 13, 2007 8:08 PM

Subject: Your Ref: 1173130

 

 

 

 

 

13 February 2007

 

 

Your Ref: 1173130

 

 

Cabot Financial (UK) Ltd

10 Kings Hill Avenue

Kings Hill

West Malling

Kent

ME19 4LT

 

 

Dear Ms Pratt

 

 

Thank you for your letter of 31st January 2007 and your promise to respond to my concerns as soon as possible. Sadly my disappointment with the level of service demonstrated by your company continues to grow. As you are aware it has now been two weeks, since you last responded to my concerns, however it has now been more than five months since I initially raised concerns via Cabot Financial (Europe) Ltd.

 

I would like to take this opportunity to confirm that none of my concerns have been resolved, on the contrary the number of my concerns has continued to increase.

 

As I have already commenced legal proceedings against Cabot Financial (UK) Ltd (previously known as Kings Hill (No.1) Ltd, in relation to an alleged HSBC account, I will no longer correspond with you in relation to this matter, except in relation to your financial settlement of my concerns.

 

I am now proactively seeking to resolve my concerns in relation to an alleged Barclaycard account. I note that the default registered by Kings Hill (No.1) has finally been removed from my credit file. Sadly, this does very little to repair the damage, distress and inconvenience caused by the registering of this default and the continued harassment by Cabot Financial (Europe) Ltd via constant and persistent telephone calls and numerous letters.

 

I am sure you will be aware that from 6th April 2007, the Financial Ombudsman Service, will start to handle consumer credit complaints about businesses with consumer credit licences. As I am sure you are also aware the Financial Ombudsman will charge companies up to £460.00 to investigate complaints that have been referred to them.

 

For the sake or clarify and to avoid any further delays, I will again out line my concerns.

 

On 1st November 2004, Kings Hill (No.1) Ltd, purchased an alleged debt from Barclaycard. As confirmed in your correspondence of 16 October 2006, neither Kings Hill (No.1) Ltd or their self appointed agents Cabot Financial (Europe) Ltd, had actually investigated the validity of this alleged debt.

 

In fact your agents took it upon themselves to instigate a program of bullying and intimidation in the attempt to force me to make payments in relation to this alleged debt. Further to your letter of 16 October 2006, I would like to thank you for providing me with a copy of the Barclaycard Consumer Credit Agreement.

 

You will note that as this agreement has not been signed by Barclaycard, it is deemed to be improperly executed and unenforceable without a court order. As you legal department will be able to confirm, it would be virtually impossible to obtain a court order as this agreement does not contain all of the prescribed terms that are legally required.

 

However, instead of confirming the status of this alleged debt, Kings Hill (No.1) registered a default on my credit file. This default has contributed to the requirement for me to pay additional interest in subsequent credit agreements, it has caused me undue distress and over the last five months has taken a considerable amount of my time to investigate.

 

I would now like to refer you to the Financial Ombudsman Service guidelines for non-financial loss, that were updated in December 2006. Please find the relevant sections below:

 

what is meant by 'distress and inconvenience ?

We focus first on distress and inconvenience awards, as these are the most common awards for non-financial loss damage.

 

Distress includes embarrassment, anxiety, disappointment and loss of expectation. The degree of distress involved can vary widely. On the one hand, it can be little more than a relatively minor annoyance. But in other cases, it can cause worry, loss of sleep or even prolonged ill health.

 

Inconvenience can include any expenditure of time and/or effort by the customer that has resulted from the business’s conduct. Again, in relatively minor cases this may not amount to a significant burden. But it can include severe disruption and a great deal of wasted time. Distress and inconvenience often go hand in hand. Where something has gone seriously wrong, it is quite common for the customer to have experienced both inconvenience and distress.

the business’s conduct in handling complaints

In addition to considering the impact on the customer of the matter that is the subject of the complaint, it may also be relevant to look at the business’s subsequent actions in addressing the customer's concerns.

Businesses are required to meet certain standards when dealing with complaints. If the business has handled the complaint badly - causing the customer distress or inconvenience - then an award may be appropriate, even if we do not uphold the initial subject of the complaint.

 

However, making a complaint does not in itself justify an award. Indeed, we do not normally make awards for matters arising from the handling of the complaint itself, except where the business maladministered its handling of the complaint (for example, through excessive delays) – or required the customer to take additional and unnecessary steps to pursue a complaint. This may include situations where, for example, a business refused to settle a case at an early stage, despite knowing that we had previously upheld similar complaints.

customer's own time and trouble

Allowances can sometimes be made for the time the customer needed to spend to put things right. Such allowances will normally be at a modest rate (around £50 to £100 a day, and not more than £10 per hour). However, a higher amount may be appropriate in the case of business complaints.

scale of awards

Where the degree of inconvenience and/or distress is sufficient to warrant a financial award, the level of the award is likely to be modest. Most awards are for less than £300 and in only a small number of exceptional cases do awards exceed £1,000. Awards involving pain and suffering are likely to be higher than those involving distress or inconvenience.

damage to reputation

When we assess whether we need to make an award for damage to reputation, and the level of such an award if appropriate, we apply similar considerations to those for distress and inconvenience awards. Damage to reputation may occur because a business’s actions have resulted in:

 

a third party being misinformed about the customer's circumstances (for example, their creditworthiness); or the improper disclosure of private information (for example, medical or other confidential records) which may be damaging to the customer's reputation.

Taking into consideration, the methods used to calculate awards for non-financial loss. I am willing to accept an ex-gratia compensation payment of £500.00. In addition to compensation for non-financial loss, I also require an additional payment of £1,000 in relation to the additional interest I have / am paying in relation to credit agreements following Kings Hill (No.1) Ltd registering a default on my credit file.. Please note this is only a fraction of the additional interest I have paid and will continue to pay.

 

In summary, to bring my concerns in relation to this alleged Barclaycard debt to a satisfactory resolution, I require payment of £1,500.00 within the next seven workings days. Failure to comply with my request will result in the instigation of further legal proceedings. I would also like to take this opportunity to express my concerns in relation to the change of name from Kings Hill (No.1) Ltd, to Cabot Financial (UK) Ltd without prior notification and I was very surprised that you did not mention this change in your recent letter.

 

 

Regards

 

 

 

tbern123

[debt_mountain]

Another cracker Tbern. Mr Maynard must love your ltters, it will give him an insite to the next flood of complaints he is likely to receive.

 

I particularly like the £460 charge from the finanicial ombudsman, is £1500 enough? for the stress and credit worthiness

[elizabeth1]

Tbern - excellent letter - should make Mr Maynard sit up and take notice?

[elizabeth1]

Another cracker Tbern. Mr Maynard must love your ltters, it will give him an insite to the next flood of complaints he is likely to receive.

 

I particularly like the £460 charge from the finanicial ombudsman, is £1500 enough? for the stress and credit worthiness

 

 

There are one or two "brewing" and about to wing their way to our friend Mr M!!! :lol:

[tbern123]

Thanks guys, as always you support is greatly appreciated..