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

[tbern123]

Just got home to find a letter from Hodsons.....

 

It is their defence.. I have only had a quick flick through and they have done it again.

 

Honestly speaking, I am impressed you can see the effort that they have put into it. Sadly though, they have shot themselves in the foot. Some of the "facts" they have refered to are contradictory to the information in my SAR...

 

They have also made a few other little mistakes and have stated facts that I can can prove aren't true.

 

Biggest news though...... it is signed by WW himself, I finally have something from him, now I feel part of the gang

[ODC]

What a silly Billy he is.

[psykix]

Hodson's/Cabot are certainly tenacious, I'll give them that.. But I guess they have lots of money to burn.

 

When is your court date?

[elizabeth1]

Just got home to find a letter from Hodsons.....

 

It is their defence.. I have only had a quick flick through and they have done it again.

 

Honestly speaking, I am impressed you can see the effort that they have put into it. Sadly though, they have shot themselves in the foot. Some of the "facts" they have refered to are contradictory to the information in my SAR...

 

They have also made a few other little mistakes and have stated facts that I can can prove aren't true.

 

Biggest news though...... it is signed by WW himself, I finally have something from him, now I feel part of the gang

 

 

Priceless aren't they?

[tbern123]

Hodson's/Cabot are certainly tenacious, I'll give them that.. But I guess they have lots of money to burn.

 

When is your court date?

 

They are a bunch of comedians.. well at least they make me laugh anyway

 

No court date yet, but going by the contradictory defence they have filed I can't wait. I have a few documents to show the judge lol:cool:

[elizabeth1]

They are a bunch of comedians.. well at least they make me laugh anyway

 

No court date yet, but going by the contradictory defence they have filed I can't wait. I have a few documents to show the judge lol:cool:

 

 

Nice to see a "plan" coming together isn't it???

[tbern123]

Sorry about taking so long.. I had a lot of typing to do...

 

Anyway, I would really appreciate your comments and suggestions in relation to my situation.

 

Any typos are my fault and not Cabots, as I was having probs scanning their defence, I retyped it myself.

 

That is except at the end when they get confused and think that they have the Claimant.... Wonder who checked their defence....

 

 

On a side note, please take a couple of minutes to please sign these petitions:

 

Petition to: Restict Access to Consumers White Data By the Debt Purchase Industry.

 

Petition to: Introduce legislation to give better protection from harrassment by Debt Collection Agencies.

 

24th December 2006, 16:25

 

 

 

In light of the above letter, I have today started legal proceedings via moneyclaim online against Kings Hill No.1 Ltd

in relation to the alleged HSBC account for undislosed damages.

 

Moneyclaim only has a limited space for the particulars of claim, here are the details of my claim. Please note this is ONLY in relation to the HSBC dispute...

 

Defendant has committed an offence/s under the CCA 1974 s77, s78 and s97, in relation to requests made by the Claimant for documentation.

 

Claimant claims breach of his right of privacy under article 8 of the HRA

1998 by Defendant.

 

Defendant has committed an offence/s by the disclosure of personal

data(as defined by the Data Protection Act 1988 to their appointed agent, Cabot Financial (Europe) Ltd.

 

Defendant has been unable to provide evidence of the agreement by Claimant. As such is unable to establish that Claimants consent has been given to process personal data (as defined by Data Protection Act 1998 and has committed an office under the DPA 1988 (schedule 2. 1 The data subject has given his consent to the processing.)

 

Claimant claims compensation as detailed in the DPA 1988 (Part II, Rights of Data Subjects and Others, section 13. 1). Claimant also claims compensation for an offence/s committed by Defendant under the

 

CCA 1974 (s.77, 78 and 97) and HRA 1998 (article 8) Claimant seeks compensation and damages of £X

 

28th December 2006, 19:47

 

I checked with moneyclaim today

 

The following information relates to your claim:

 

Claim Description: Breach of Legal Rights

Claim Number: 6QZ96662

Status of this Claim: Issued

Your claim request has been accepted. The Defendant has 14 days from the date they are served with the claim, to reply.

 

5th January 2007, 15:23

 

Just checked moneyclaim online, Kings Hill are disputing my claim for £500..... So now, I'll get my day in court.........

 

6th January 2007, 12:50

 

lol, I think they are going to need some help...

 

I recieved their defence to my claim today.... The solicitors acting on their behalf are Hodsons Solicitors (no surprise there) as followers of the Cabot's threads, people will know the relationship with this firm and that they share an address with the Messageing Service Ltd (or whatever they call themselves)

 

3. Defence

 

1. The Defendant denies having committed an offence (s) under S77, S78 and 97 of the Consumer Credit Act 1974

2. The Defendent denies that the Defendant has breached the Claimants rights to privacy under Acticle 8 of the Human Rights Act 1998

3.The Defendant denies that it has committed an offence under th Data Protection Act 1988.

4. At all material times the Defendant was a company which was a part of the Cabot Financial group of companies which operate from 10 Kings Hill Avenue, Kings Hill, West Malling, Kent.

5. The Defendant company is a vehicle by which portfolios of debt are purchased from credit card companies and other similar financial organisations.

6. Cabot Financial (Europe) Limited is a company whcih administers accounts aquired by the Defendant (Cabot).

7. It is admitted that following a request for information made by the Claimant a request was made by Cabot as administrators of the debt to HSBC for documentation. HSBC were unable to supply such copies. In consequence HSBC has taken the said debt back into its ownership.

8. The Defendant in any event puts the claimant to strict proof that it was a 'creditor' for the purposes of the Consumer Credit Act 1974 and not an assignee of the debt.

9. The Defendent denies that the Claimant is entitled to the relief claime or at all

 

For reasons I will explain later on today, I am very pleased with this defence and honestly speaking this is better then I was hoping for.

 

It would appear that their Solicitors have not actually read the CCA 1974 and they have also contradicted themselves.

 

 

12th January 2007, 23:22

 

 

 

The Court Manager

Dartford County Court

Home Gardens

Dartford

Kent

DA11 1DX

 

Dear Sir / Madam

 

Please find enclosed my completed Allocation Questionnaire (Small Claims Track). Further to section G, please find below my response to the defence provided by Hodsons Solicitors, on behalf of their client, the defendant Kingshill No.1 Ltd. Please note I am able to provide copies of the correspondence referred to in my response.

 

The defence that has been submitted confuses me, as response 7 contradicts response 1, 2 and 3. The Defendant’s Solicitors also appear to be confused to whom they are representing. Contrary to their defence response 6, the Defendant is in fact Kingshill No.1 Limited, not (Cabot). I would ask the Court to clarify the defence that has been submitted.

 

1. The Defendant denies having committed an offence (s) under s77, 78 and 97 of the Consumer Credit Act 1974.

 

As confirmed in a letter dated 29th September 2006, their ref: Isabel/1465790 from Ms Emma Robertson, Customer Relations Department, Cabot Financial (Europe) Limited. My initial request for information under the Consumer Credit Act 1974 was made on 8th September 2006.

 

In a further letter from Ms Emma Robertson, dated 16th October 2006:

 

‘We are writing to advise you that to date, we have not received any information from HSBC relating to the above account.’

 

Finally, I received a letter from Ms Robertson, dated 18 December 2006 confirmed:

 

‘Unfortunately, HSBC Bank plc have been unable to provide us with copies of the request information and have therefore recalled your account. We can confirm that your account has subsequently been reassigned to HSBC plc.’

 

Following my request made on 8th September 2006, the defendant has been unable to provide me with the documentation as specified within, the Consumer Credit Act 1974. This is also admitted in section 7 of the defendant’s defence:

7. It is admitted that following a request for information made by the Claimant a request was made by Cabot as administrators of the debt to HSBC for copy documentation. HSBC were unable to supply such copies.

 

Furthermore, in an emaildated 31st October 2006, I received from Ms Justine Horton, Team Leader, Customer Services Department, Cabot Financial (Europe) Ltd:

 

“Any requests for documentation under s77 and s78 of the Consumer Credit Act 1974 still have to be forwarded to the originators and as a result it is very unlikely that the documentation can be provided within the prescribed period. Cabot is not being obstructive regarding this matter - we are reliant on the originators”

 

This statement clearly demonstrates the contempt and lack of understanding the Defendant has in relation to its obligations under the Consumer Credit Act 1974.

 

I would like to take this opportunity to remind the court, of the content of the Consumer Credit Act in relation to s77, 78 and 97.

 

77. Duty to information to debtor under fixed-sum credit agreement.

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

(b) If the default continues for one month he commits an offence

 

78. Duty to information to debtor under running-account credit agreement

(6) If the creditor under an agreement fails to comply with subsection (1) -

(b) If the default continues for one month he commits an offence.

 

97. Duty to give information

(1) The creditor under a regulated consumer credit agreement, within the prescribed period after he has received a request in writing to that effect from the debtor, shall give the debtor a statement in the prescribed form indicating, according to information to which is practical for him to refer, the amount of the payment required to discharge the debtor’s indebtedness under the agreement, together with the prescribed particulars showing how the amount is arrived at.

(3) If the creditor fails to comply with subsection (1) -

(b) If the default continues for one month he commits an offence

 

Summary

 

As admitted in their own Defence, the Defendant has been unable to provide me with the documentation I requested under s77, 78 and 97 of the Consumer Credit Act 1974. As confirmed by the Consumer Credit Act 1974, the Defendant has committed an offence under three sections of the Consumer Credit Act 1974.

 

2. The Defendant denies that the Defendant has breached the Claimants rights to privacy under Article 8 of the Human Rights Act 1998.

 

Firstly, I would like to confirm the content of Article 8 of the Human Rights Act 1998:

 

 

ARTICLE 8

RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

 

 

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

 

Without my permission, the Defendant commenced the processing of my personal data and continued to disclose my personal data to their self appointed agents Cabot Financial (Europe) Limited. As soon as the Defendant purchased this account, they’re appointed agents Cabot Financial (Europe) Limited continued to bombard me with letters and phone calls demanding payment. I feel this continued harassment, demonstrated the Defendants disrespect for my private and family life.

 

3. The Defendant denies that it has committed an offence under the Data Protection Act 1988.

 

The Defendant processed personal data relating to the Claimant, as defined by the Data Protection Act 1988, without the permission or knowledge of the Claimant. The Defendant also disclosed personal data relating to the Claimant, as defined by the Data Protection Act 1988, to their appointed agent Cabot Financial (Europe) Ltd, without the permission of knowledge of the Claimant.

 

I would like to take this opportunity to refer the court to an email dated 31st October 2006, I received from Ms Justine Horton, Team Leader, Customer Services Department, Cabot Financial (Europe) Ltd:

 

“When purchasing accounts we are not supplied with any documentation (i.e. copy agreements or statements of account) and therefore any requests for such have to be forwarded to the originators to be retrieved from their archives - as I am sure you can appreciate this can be a lengthy process”

 

As confirmed by the Defendants appointed agent when they purchase accounts they are not supplied with any documentation. On this basis, I am unable to ascertain why the Defendant assumed they were permitted to process and disclose my personal data.

 

I can confirm that the Defendant and their appointed agent is registered separately, with the Information Commissioner’s Office as Data Controller’s.

 

On the 5th September 2002, the Defendant registered with the Information Commissioner’s Office as a Data Controller. Their Data Protection Register, reference is Z7064593 On the 26th April 2001, the Defendant’s appointed agent Cabot Financial (Europe) Ltd registered with the Information Commissioner’s Office as a Data Controller. Their Data Protection Register, reference is Z5415234.

 

Data Protection Act 1988

 

 

PART I

PRELIMINARY

 

 

Basic interpretative provisions. 1. - (1) In this Act, unless the context otherwise requires-

 

"data controller" means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed;

 

"personal data" means data which relate to a living individual who can be identified-

 

Fair Processing Notice

 

As clearly stated on the Information Commissioner’s Office own website http://www.ico.gov.uk/ :

 

Q: What do I need to put in my fair processing notice, which is given to individuals before I process their information?

 

You will need to outline what and how information is going to be processed. This is to make sure the individual knows exactly what is going to happen to their information and how it is going to be used. You shouldn't be doing anything with personal information unless the individual is made aware.

 

I can confirm that I have never received a Fair Processing Notice from the Defendant.

 

4. At all material times the Defendant was a company which was a part of the Cabot Financial group of companies which operate from 10 Kingshill Avenue, Kingshill, West Malling, Kent.

 

As the defendant is fully aware, both the Defendant and their appointed agents are registered with Companies House as different Limited Companies. I do however accept that both the Defendant and their appointed agent are part of a group of companies.

 

5. The Defendant company is a vehicle by which portfolios of debt are purchased from credit companies and other similar financial organizations.

 

This is not in dispute and is not relevant to my claim.

 

6. Cabot Financial (Europe) Ltd is a company which administers accounts acquired by the Defendant (Cabot)

 

Contrary to the Defendants response (Cabot) is not the named defendant. Kingshill No.1 Limited is the defendant. I would ask the court to clarify with Hodsons Solicitors, exactly who they represent.

 

7. It is admitted that following a request for information made by the Claimant a request was made by Cabot as administrators of the debt to HSBC for copy documentation. HSBC were unable to supply such copies. In consequent HSBC has taken the said debt back into its ownership.

 

Sadly, this frank admission contradicts the rest of the defence filed on behalf of the Defendant.

 

8. The Defendant in any event puts the claimant to strict proof that it was a ‘creditor’ for the purposes of the Consumer Credit Act 1974 and not an assignee of the debt.

 

I am disappointed the Defendant is not fully converse with the Consumer Credit Act 1974 and I welcome the opportunity to put to strict proof that the Defendant was a ‘creditor’ for the purpose of the Consumer Credit Act 1974.

 

I would like to take this opportunity to refer the court to the correspondence I have received from HSBC and Cabot Financial (Europe) Limited.

 

a) HSBC state in their letter of 12th September 2006:

 

“I am writing to inform you that the above account was sold by HSBC Bank plc to Kingshill No.1 Ltd on 2nd May 2006.

 

This means that the effective owners of the above account are Kingshill No.1 Limited”.

 

Cabot Financial (Europe) Ltd, have provided me with a statement dated 31st October 2006 that confirms that this account was acquired by Kingshill No.1 Limited on 2nd May 2006.

 

Furthermore, in a letter from Cabot Financial (Europe) Ltd dated 18 December 2006, they state:

 

"We can confirm that your account has subsequently been reassigned to HSBC Bank plc"

 

As I am sure Hodsons Solicitors as qualified legal representative of the Defendant, they are fully aware that the Consumer Credit Act 1974 clearly states:

 

189. Definitions

"Creditor" means the person providing credit under a credit consumer agreement or the person to whom his rights and duties under the agreement have passed by assignmentor operation of law, and in relation to a prospective consumer credit, includes the prospective creditor'

 

I feel that the correspondence from HSBC, Cabot Financial (Europe) Ltd and the above extract from the Consumer Credit Act 1974 are strict proof that for the purpose of the Credit Consumer Act 1974, the Defendant was a “creditor” of this debt.

 

9. The Defendant denies that the Claimant is entitled to the relief claim or at all.

 

I have based my claim for £500.00 based on the Financial Ombudsman’s guidelines for awards for non-financial loss. I appreciate that the Financial Ombudsman Service, do not currently govern Debt Collection Agencies, however their guidelines are a finance industry accepted way to calculate compensation.

 

 

Regards

 

 

 

 

tbern123

 

 

 

 

 

 

 

 

 

16th January 2007, 19:00

 

Ok, just checked with Royal Mail

 

Letter to Mr Dean Spencer

Letter to Mr Maynard (Kings Hill No 1)

Letter to Court Manager

 

All delivered.... So now the ball in well and truely in their court....

 

8th February 2007, 12:38

 

Just called the court for an update... My claim is being reviewed by a judge and I should hear more in another 4-6 weeks...

 

28th February 2007, 18:34

 

Finally had a response from the Court

 

1) My claim has been allocation to the small claims court

2) I have to serve a fully pleased Particulars of Calim by 12th April

3) Defence has to file a fully pleaded Defence by 9 April

 

I am a little disappointed, as I was really please with what I have previously sumitted. But on the other hand alot of information has come to light since I first made my claim, so this will be a good chance to add one or two things lol

 

My New Particulars of Claim:

 

11th March 2007, 00:04

 

Statement of Facts

 

 

On 2nd May 2006, the Defendant, Cabot Financial (UK) Limited (previously called Kings Hill (No.1) Ltd) purchased, an account from HSBC Bank Plc. Following numerous letters and phone calls from the appointed agents of the Defendant, on 8th September 2006, the claimant made a request under sections 77, 78 and 97 of the Consumer Credit 1974 for a copy of the executed credit agreement and supporting documentation to establish the validity of the alleged debt.

 

 

On 18 December 2006, the Defendants appointed agents Cabot Financial (Europe) Ltd, confirmed that they were unable to provide any documentation in relation to this alleged debt. On 28th January 2007, the Claimant made a Subject Access Request, under the Data Protection Act 1988, for details of the information held by Defendant.

 

On 20 February 2007, the Defendants, Solicitors (Hodsons) wrote to the claimant and confirmed that they did not hold any data in relation to the Claimant.

 

 

The Defendant disclosed the Claimants personal data, as defined by the Data Protection Act 1998 to their appointed agents Cabot Financial (Europe) Limited without the consent or knowledge of the Claimant. As confirmed in their letter of 19 February 2007, Cabot Financial (Europe) Ltd, subsequently disclosed this Data to their solicitors Hodsons and to UK Changes.

 

 

The Defendant refutes, they are the Creditor for the purpose of the Consumer Credit Act 1974. However, as confirmed by HSBC Bank Plc and subsequently by the Defendants agents Cabot Financial (Europe) Limited, the Defendant purchased the account from HSBC Bank Plc, as confirmed by section 189 of the Consumer Credit Act 1974, they became the creditor. Please refer to, 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).

The Claimant is seeking exemplary damages, in relation but not limited too:

 

1. The Defendant made no attempt to establish the validity of the alleged debt.

   
   

2. Distress caused by letters and phone calls from Defendants, agents Cabot Financial (Europe) Ltd.

   
   

3. Defendant has been unable to provide evidence of the agreement by Claimant. As such is unable to establish that Claimants consent had been given to process his personal data (as defined by DPA 1998) and has committed an offence under the DPA 1988 (schedule 2. 1 The data subject has given his consent to the processing.)

   
   

4. Defendant has committed an offence/s under the CCA 1974 s77, s78 and s97, in relation to requests made by the Claimant for documentation.

   
   

5. Defendant has committed an offence/s by the disclosure of personal data(as defined by the DPA 1988) to their appointed agent, Cabot Financial (Europe) Ltd.

   
   

6. Claimant claims compensation as detailed in the DPA 1988 (Part II, Rights of Data Subjects and Others, section 13. 1).

   
   

7. Claimant seeks compensation and damages of £500. (compensation calculated using the Financial Ombudsman guidelines for awards for non-financial loss)

   
   

 

Ok, I finally received their new defense yesterday. To make further discussion as easy as possible, I will post each point individually...

 

1. It is admitted that, on 2nd May 2006, HSBC Bank Plc (“HSBC) assigned to the Defendant, which is now known as Cabot Financial (UK) Limited, but was then known as Kings Hill (No.1) Limited, HSBC's rights against the Claimant under the Claimant under an agreement for a current account, number ******/******** (“the HSBC account”)
   

 

2. By a letter dated 12th May 2006, Cabot Financial (Europe) Limited, acting as agent of the Defendant and on its behalf, informed the Claimant that:

 

i) HSBC's rights under the HSBC account had been assigned to the Defendant;

ii) the balance outstanding and due to be repaid by the Claimanton the HSBC account was £*,***.**

iii) accounts assigned to the Defendant were serviced by Cabot Financial (Europe) Limited;

iv) Cabot Financial (Europe) Limited was authorised to receive payment on behalf of the Defendant and all correspondence should be addressed to Cabot Financial (Europe) Limited;

v) information about the Claimant's debt might be sent to the Credit Reference Agencies; and

vi) any information obtained would be used for the purpose of collecting debt.

 

3. By a further letter dated 12th May, HSBC infromed the Claimant that HSBC's rights under the HSBC account has been assigned to the Defendant and that the amount outstanding on the HSBC account on 2nd May 2006 was £*,***.**.

 

4. By a letter dated 12th July 2006, Cabot Financial (Europe) Limited invited the Claimant to contact it by telephone to discuss repayment of the balance outstanding on the HSBC account.

 

5. Between 1st June 2006 and 8th September 2006, the Cabot Financial (Europe) Limited made unsuccessful attempts to contact the Claimant by telephone

 

6. By email dated 8th September 2006, the claimant asked Cabot Financial (Europe) Limited not to contact him by telephone.

 

7. No telephone calls were made to the Claimant by or on behalf of the Defendant after 11th Spetember 2006.

 

8. It is admitted that, by email dated 8th September 2006, the Claimant asked Cabot (Europe) Limited to provide him with

 

i) a copy of the agreement for the HSBC account and;

ii) a statement of account, detailing any and all payments.

 

9. By a letter dated 12th September 2006, Cabot Financial (Europe) limited informed the Claimant that the information he had requested about the HSBC account was being sought from HSBC.

 

10. By a letter dated 18th December 2006, Cabot Financial (Europe) Limited informed the Claimant that HSBC had been unable to provide the requested information and that the account had been reassigned to HSBC.

 

11. It is not admitted that the Defendant was at any time the creditor under the agreement for the HSBC account for the purposes of section 77, 78 or 97 of the Consumer Credit Act 1974 (“the 1974 Act”). Section 189(1) of the 1974 Act provides that, unless the context other requires,

 

“Creditor' means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law”.

 

The Defendant never provided credit under any agreement with the Claimant and, although the rights of HSBC under the HSBC account were assigned to the Defendant, the duties of HSBC under the agreement for the account did not pass to the Defendant by assignment, by operation of law, or at all.

 

12. It is denied that section 77 of the 1974 Act applied in respect of the HSBC account, which was not an account under an agreement for a fixed-sum credit.

 

13. Even if, which is not admitted, for the reasons set out in paragraph 11 above, the creditor under the agreement for the HSBC account did receive a request for such information as it is referred to dection 78(1) of the 1974 Act, neither the Defendant not HSBC came under an obligation to provide the Claimant with information under that section, because the Claimant did not pay the fee of £1 which must be paid before such obligation arises.

 

14. It is denied that the Claimant made a request to the Defendant or to Cabot Financial (Europe) Limited under section 97 of the Consumer Credit Act 1974 (“the 1974 Act”), for a statement of the amount of the payment required to discharge his indetedness under the HSBC account.

 

15. It is admitted that, by letters dated 28th January 2007, the Claimant made subject access requests, under the Data Protection Act 1998 (“the 1998 act”), for copies of all data relating to the Claimant that was held by the Defendant and for copies of all data relating to the Claimant that was held by Cabot Financial (Europe) Limited. It is further admitted that, by letter dated 20th February 2007, Hodsons, solicitors acting on behalf of the Defendant, informed the Claimant that the Defendant did not hold any data in relation to the Claimant.

 

16. In compliance with the Claimant's subject access request, Cabot Financial (Europe) Limited provided the Claimant with copies of the data that it held in relation to the HSBC account, under cover of a letter dated 19th February 2007.

 

17. It is denied that the Defendant disclosed the Claimant's personal data to Cabot Financial (Europe) Limited, HSBC supplied Cabot Financial (Europe) Limited with information relating to the Claimant as set out in the letter dated 19th February which is refferred to in paragraph 16 above, and Cabot Financial (Europe) Limited subsequently disclosed that information to Hodsons and to UK Changes.

 

18. The Defendant us unable to prove the Claimant consented to the disclosure of his personal date in relation to the HSBC account by HSBC to third parties. HSBC has retained no copy of the agreement for the HSBC account.

 

19. Disclosure of personal data of the Claimant in relation to the HSBC account to Cabot Financial (Europe) Limited and such processing of that data as has been undertaken by Cabot Financial (Europe) Limited, including it disclosure to Hodsons and to UK Changes has been fair and lawful, whether or not the Claimant consented to such disclosure and such other processing, in that it was necessary for the purposes of legitimate interests pursued by the data controller, namely debt collection and defending this claim, and the Claimant was informed that his data would be processed for the purpose of debt collecting by the letter data 12th May 2006, which is referred to in paragraph 2 above. The Defendant will rely upon section 4, paragraphs 1 to 3 of Part II of Schedule 1, and paragraph 6(1) of Schedule 2 to the 1998 Act

 

The Defendant will rely upon section 4, paragraphs 1 to 3 of Part II of Schedule 1:

 

Can somone check this for me ???? I must be looking at the wrong section

 

4. - (1) Personal data which contain a general identifier falling within a description prescribed by the Secretary of State by order are not to be treated as processed fairly and lawfully unless they are processed in compliance with any conditions so prescribed in relation to general identifiers of that description

 

(2) In sub-paragraph (1) "a general identifier" means any identifier (such as, for example, a number or code used for identification purposes) which-

 

• (a) relates to an individual, and
  

 

• (b) forms part of a set of similar identifiers which is of general application.
  

 

paragraph 6(1) of Schedule 2 to the 1998 Act:

 

" 6. - (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject "

 

20. It is denied that the Claimant is entitled to exemplary damages, or any damages

 

21. If, which is denied for the reasons set out in paragraphs 11, 12, 13 and 14 above, the Defendant did fail to comply with section 77, section 78 or 97 of the 1974 Act or if, which is denied for the reasons set out in paragraphs 15, 16, 17 and 19 above, the Defendant did fail to comply with any provisions of the 1998 Act, it is denied, for the reasons set out below that the Claimant is entitled to damages arising from any such failure.

 

22. A failure by a creditor to comply with section 77(1), section 78(1) or section 97(1) of the 1974 Act does not give rise to any cause of action against the creditor for damages or any relief. The sanction for non-compliance is that the agreement is unenforceable against the debtor during the period of non-compliance: Section 77(4), section 78(6), and section 97(3). Section 170(1) of the 1974 act expressly provides that a breach of any requirement made, otherwise than by any court, by or under the Act shall incurr no civil sanction as being such a breach, except to the exten, if any, expressly provided by or under the Act.

 

23. Compensation is only payable under section 13 of the 1998 Act where an individual suffers pecuniary damage by reason of a contravention by a data controller of any of the requirements of the 1998 Act. The Defendant will rely upon the express provisions of section 13(1) and (2) and Johnson v The Medical Defence Union, Times 4th April 2006. The Claimant does not allege that he has suffered any pecuniary damage by rweason of the alledged contraventions of the 1998 Act and it is denied that he has suffered any such damage.

 

24. It is denied, for the reasons set out in paragraphs 11, 12, 13 and 14 above, that the Defendant has committed any offence under the 1974 Act.

 

25. It is denied, for the reasons set out in paragraphs 15, 16, 17 and 19 above, that the Defendant has committed any offence under the 1998 Act.

 

26. If and insofar as it is intended to be alleged that letters or telephone calls that were sent or made by or on behalf of the Claimant were intended to cause distress or that such letters or telephone calls were written, sent or made in such a way as was likely to cause unreasonable distress, that is denied.

 

2. By a letter dated 12th May 2006, Cabot Financial (Europe) Limited, acting as agent of the Defendant and on its behalf, informed the Claimant that:

 

i) HSBC's rights under the HSBC account had been assigned to the Defendant;

ii) the balance outstanding and due to be repaid by the Claimanton the HSBC account was £*,***.**

iii) accounts assigned to the Defendant were serviced by Cabot Financial (Europe) Limited;

iv) Cabot Financial (Europe) Limited was authorised to receive payment on behalf of the Defendant and all correspondence should be addressed to Cabot Financial (Europe) Limited;

v) information about the Claimant's debt might be sent to the Credit Reference Agencies; and

vi) any information obtained would be used for the purpose of collecting debt.

 

Erm...... not quite.....

 

They have reworded the letter....

 

I have a copy of it next, to me as I write this post....

 

It actually says.

 

1) Kings Hill (No.1) Limited is the legal owner of the account, referenced overleaf.

 

and

 

3) This letter acts as notice of the assignment of your account to Kings Hill (No.1) Limited and as such should be kept

 

I have had to put the word account into bold...

 

Please note WW, it does not say:

a) Debt

b) rights of the agreement

 

3. By a further letter dated 12th May, HSBC infromed the Claimant that HSBC's rights under the HSBC account has been assigned to the Defendant and that the amount outstanding on the HSBC account on 2nd May 2006 was £*,***.**.

 

Opppps, wrong again.. That is now 2 for 2

 

Firstly, I never actually recieved this particular letter. However, cabot did kindly provide me with a copy.

 

What this letter actually says (again, I have a copy next to me)

 

" I am writing to inform you that the above account was sold by HSBC Bank plc to Kings Hill No.1 Limited on 2 May 2006.

 

"This means that the effective owners of the above account are now Kingshill No.1 Limited"

 

Please note WW, the word account

 

Not, debt and still no mention of rights ????

 

9. By a letter dated 12th September 2006, Cabot Financial (Europe) limited informed the Claimant that the information he had requested about the HSBC account was being sought from HSBC.

 

What can I say, but oh dear... oh dear, oh dear, oh dear...

 

If they check their records, which they have kindly given me a copy of. They will have noticed that this letter, was actually addressed and sent to somebody else....

 

10. By a letter dated 18th December 2006, Cabot Financial (Europe) Limited informed the Claimant that HSBC had been unable to provide the requested information and that the account had been reassigned to HSBC.

 

 

Hey, they got this one correct... However, I have to again point out the word ACCOUNT, not debt and not rights !!!!!!

 

11. It is not admitted that the Defendant was at any time the creditor under the agreement for the HSBC account for the purposes of section 77, 78 or 97 of the Consumer Credit Act 1974 (“the 1974 Act”). Section 189(1) of the 1974 Act provides that, unless the context other requires,

 

“Creditor' means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law”.

 

The Defendant never provided credit under any agreement with the Claimant and, although the rights of HSBC under the HSBC account were assigned to the Defendant, the duties of HSBC under the agreement for the account did not pass to the Defendant by assignment, by operation of law, or at all.

 

Oh really ????

 

You better speak to Dr Roger Lucas of the Credit Services Association and of the Debt Buyers and Sellers Group, (Cabot is a member of both)

 

"Roger Lucas, of the Debt Buyers and Sellers Group, said: "When we take assignment of debts we stand in the place of the original creditor so it’s only right we should have the same obligations and rights."

 

Credit Today online

 

13. Even if, which is not admitted, for the reasons set out in paragraph 11 above, the creditor under the agreement for the HSBC account did receive a request for such information as it is referred to dection 78(1) of the 1974 Act, neither the Defendant not HSBC came under an obligation to provide the Claimant with information under that section, because the Claimant did not pay the fee of £1 which must be paid before such obligation arises.

 

 

Didn't see this one coming honest Gov'ner.....

 

I sent a letter to them enclosing a cheque for £3, the day after I sent the email. I have checked with my bank and they have confirmed that this has not been presented for payment. Isn't it lucky for them ??

 

Erm no, not really.... They have decided to bring this to my attention 7 months after I made my request....

 

This was never mentioned in any of their previous emails or letters. In fact their correspondance would in fact indicate that they did receive payment....

 

In a email from Justine Horton dated 31st October 2006, she states:

 

"Any requests for documentation under s77 and s78 of the Consumer Credit Act 1974 still have to be forwarded to the originators and as a result it is very unlikely that the documentation can be provided within the prescribed period. Cabot is not being obstructive regarding this matter- we are reliant on the originators"

 

In a letter from Ms Sue Pratt of 9 November 2006, she states:

 

"I can confirm that we are not the originator of the debts and are reliant on the retrieval of the information from each of the creditors. You have stated that under the Credit Consumer Act 1974 Sections 77 and 78 that as we have not supplied copies of the agreements within the appointed time therefore the default cannot be enforced"

 

No mention of the fee not being received.. In fact both of these confirm that they did receive a request under section 77 and 78 from myself

 

17. It is denied that the Defendant disclosed the Claimant's personal data to Cabot Financial (Europe) Limited, HSBC supplied Cabot Financial (Europe) Limited with information relating to the Claimant as set out in the letter dated 19th February which is refferred to in paragraph 16 above, and Cabot Financial (Europe) Limited subsequently disclosed that information to Hodsons and to UK Changes.

 

Let me get this right.. What they are saying is that Cabot Financial (Uk) Limited have not committed an offence as it was actually HSBC that disclosed my personal data directly to Cabot Financial (Europe) Limited !!

 

(note to self, write to HSBC and let them know)

 

18. The Defendant us unable to prove the Claimant consented to the disclosure of his personal date in relation to the HSBC account by HSBC to third parties. HSBC has retained no copy of the agreement for the HSBC account.

 

Finally !!!!!!!

 

A full and frank admission...

 

Thank you

 

20. It is denied that the Claimant is entitled to exemplary damages, or any damages

 

Really... sorry gonna have to burst your bubble here. As of today 6th April 2007, that is no longer your decision.. You see there is this organisation you may have heard of called the Financial Ombudsman Service....

 

Does the name ring a bell ???

 

Well, just to let you know.. they have actually issued guidlines relating to compensation for non-financial loss..

 

Here is a link just for you:

technical notes - complaints that the interest rate on a savings account is too low

 

26. If and insofar as it is intended to be alleged that letters or telephone calls that were sent or made by or on behalf of the Claimant were intended to cause distress or that such letters or telephone calls were written, sent or made in such a way as was likely to cause unreasonable distress, that is denied.

 

 

As I am the Claimant and you are the DEFENDANT, I am glad that none of my letters caused any distress

 

I am in the process of putting a pack together for the Judge, including copies of correspondance and copies of information from my SAR. This will show the "inconsistentcies" in their defence

 

Does anyone know, if I have to also send a copy to Cabot ?

[Seahorse]

What are we now? The A team? OK, baggsie the fancy gold jewellery.

(BTW, I got another letter from WW today as well.)

[TideTurner]

I'll be Face!

 

Seems like Billy boy gets involved when the going gets hot.

 

One area where the whole [problem] has been effective so far is when the bully boys are sent in. People are to scared to dispute debts which don't even exist or are over exaggerated.

 

The Tide's Turning though, and I think our Billy Boy's going to be a bit busier in the future.

 

It's time for everybody to challenge these bullies, and report them where they are agressive. The biggest weapon here is the Data Protection Act - and the CCA. Let's put the pressure on now.

 

Tide

[Cornucopia]

I'll be Face!

 

Seems like Billy boy gets involved when the going gets hot.

One area where the whole [problem] has been effective so far is when the bully boys are sent in. People are to scared to dispute debts which don't even exist or are over exaggerated.

 

The Tide's Turning though, and I think our Billy Boy's going to be a bit busier in the future.

 

It's time for everybody to challenge these bullies, and report them where they are agressive. The biggest weapon here is the Data Protection Act - and the CCA. Let's put the pressure on now.

 

Tide

 

 

Yes Tide, I agree with that, I have written to him several times but have been answered by one of the other "presidents" (YAWN). He only wrote to me when he sent me the Frankenstein copy of my "executed agreement", and very self-satisfied he sounded too! Idiot.

[tbern123]

What are we now? The A team? OK, baggsie the fancy gold jewellery.

(BTW, I got another letter from WW today as well.)

 

Can I be Howling Mad Murdock.... ???????

[ODC]

Yes Tide, I agree with that, I have written to him several times but have been answered by one of the other "presidents" (YAWN). He only wrote to me when he sent me the Frankenstein copy of my "executed agreement", and very self-satisfied he sounded too! Idiot.

Duhhh!!!!!! Does he not think the Court would like to see the real one not the Photoshop version:D

[Seahorse]

Watchoo saying, Fool???

 

Can I be Howling Mad Murdock.... ???????

[tbern123]

Read my new thread... they make me so mad

[TideTurner]

I take it you are Mr T then seahorse. I ain't gettin on no plane.

 

Please all be on the lookout for fraudulent documents where they are trying to 'adapt' the original agreement. This is fraud, and any documents received are evidence. Scrutinise everything, and bear in mind if they don't match the originals when requested by the Court they are up to their eyes in it.

 

With respect to Billy Boy, he is ultimately responsible for the actions of his staff, which carry a maximum jail sentence of 7 years.

 

See you in the showers Billy Boy.

 

Tide

[ODC]

 

With respect to Billy Boy, he is ultimately responsible for the actions of his staff, which carry a maximum jail sentence of 7 years.

 

See you in the showers Billy Boy.

 

Tide

If ONLY:D That would change the attitude of some of the DCAs who are not as efficient and professional as Cabot:rolleyes:

[Cornucopia]

Duhhh!!!!!! Does he not think the Court would like to see the real one not the Photoshop version:D

 

LOL! Yes, quite, ODC :

 

"M'Lud, I present you with a "true copy of the executed agreement", except we had to do a bit of cut and shuffling, the glue stick was very useful as were the post it notes that covered up somebody else's details before we photocopied it! Clever, eh? Oh and I forgot, M'Lud, just to be absolutely clear, we put on two different sets of aprs and the credit limit at the point of sale, because we can't remember what the credit limit was in 1976 or whenever it was and, just to stir things up a bit, we stuck a barcode over some writing on the application form, silly us, we forgot that we had already provided Corn with two copies of the application form when she first issued the CCA". I rest my case, M'Lud".

 

I am reliably informed by my friend Stan on my MBNA thread that the barcode came up as "tin of beans" on the scanner at Tesco, I was shocked that it didn't actually come up with "set of mugs":D

 

Joking aside, I cannot agree with TideTurner more, it is beyond imperative that anybody who receives a frankensteiner, checks every last bit of it. It is sad that, had I been rather less educated and rather less argumentative, I might have accepted that this was a true executed agreement and I worry about how many times this might have happened to other consumers out there.............

 

Sorry for the long hijack!!!

[NailPost]

Ask at the court. In criminal cases such packs, known as bundles in legal circles, are common.

 

If you do submit a bundle make sure it is paginated. Judges like to be able to go straight to the page rather than be told something vague - like you'll find it half way through.

 

Important letters or passages can be marked with tabs but the judge's bundle should not be marked by notes.

 

When's your day in court?

[tbern123]

Sadly no date as yet... Can't wait though....

[Seahorse]

Well, I'm just waiting for a little bit of image altering buffoonery to surface soon. As per this little snippet from FW WW.

 

However, it may not be clear from the copy of the agreement that an authorised representative of Barclaycard signed the agreement (which Barclaycard would have)

 

Although to be honest, that's hardly the only thing that is wrong with it. Hey, ho.

[tbern123]

They really have to stop making assumptions, it just blows up in their faces

[Cornucopia]

Well, I'm just waiting for a little bit of image altering buffoonery to surface soon. As per this little snippet from FW WW.

 

 

 

Although to be honest, that's hardly the only thing that is wrong with it. Hey, ho.

 

Oh MY GOOD GOD! You've got to be bloody kidding?!

 

What gets me with these people is that they are so high and mighty but then they put their misdeeds in writing! Good on them! I've got a letter that says :

 

"Whilst we did not issue a formal notice of default". Oh dear, that willl be why we didn't get a default notice.

 

I have also got :

 

"We will take every step to ensure this does not end up in Court" :

 

Hmmm, wonder why, could it possibly be :

 

No default notice.

 

Frankenstein agreement.

 

Non compliance of SAR.

 

Just for starters.........................

 

Oh happy days!

[Seahorse]

Stop sounding so smug, Corn. It makes you look like you're enjoying yourself

[InKogneeToh]

I am in the process of putting a pack together for the Judge, including copies of correspondance and copies of information from my SAR. This will show the "inconsistentcies" in their defence

 

Does anyone know, if I have to also send a copy to Cabot ?

 

Hi tbern

 

Once the judge has read the amended POC/defence etc. he will make a further directions order, which may or may not include exchanging witness statements/copies of docs relied on etc (the 'bundle') If this is required each party normally has to exchange these by a given date and file in court.

 

Regards, Pam

[Cornucopia]

Stop sounding so smug, Corn. It makes you look like you're enjoying yourself

 

Moi?

 

xx:D