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

[InKogneeToh]

Hi all

 

I have been following this thread with great interest. I just looked on the cabot website out of curiosity and found this gem amongst their client info:

 

Collections Approach

top ^

Integrity is pivotal to our business approach. As a class-leader in collection services, you can therefore be confident and rely on us as our ethics and compliance processes are second to none.

 

 

???????????????????????

 

Regards, Pam

[InKogneeToh]

Can everyone please please sign this:

 

We the undersigned petition the Prime Minister to Introduce legislation to give better protection from harrassment by Debt Collection Agencies.

 

I didn't start it, but it looks like something that we all should support

 

I've just signed.

 

Any chance this could be made into a sticky so all can see it?

 

Regards, Pam

[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

[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

[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

[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

[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

[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

[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

[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

[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

[InKogneeToh]

Hi

 

Yes, I have also seen something like that. I think it was an in-house DCA, Arrow Global who I think are listed as dormant and when the person had sent a cheque payable to Arrow, it was the bank (can't remember which one) who cashed it. They claimed that they were able to change the A/C payee to themselves!!

 

Regards, Pam

[InKogneeToh]

Hi PriorityOne

 

I got my wires crossed a bit in my last post - it was actually your case that I was thinking of - Global (not Arrow Global) - well close!.:o

 

It was A&L who told you this and I've copied the part from your thread:

 

With reference to the issue raised regarding why payments made to Global Debt Management Services (no mention of Limited) are banked by Alliance & Leicester this is due to the fact that Global Debt Management (still no mention of Limited) work on behalf of Alliance & Leicester as an inhouse debt recovery team and therefore use the same banking facilities (so, what's the advantage to you of doing that then, eh?...and, why do my statements show payments being collected by Global and not A & L PF ?)

 

 

 

Regards, Pam

[InKogneeToh]

P.S.

 

A&L are not saying which account the cheque is actually being credited to, are they!?!

[InKogneeToh]

A couple more things to add re all this...Kinshill No1 have never informed me that they've changed names- as far as I'm concerned- they still own the alledged debt... AND Robinson Way are trying to collect my alledged debt for cabot/kingshill...so what' the score with that...are Cabot guilty of also sharing my data with yet another company (ie RW) ?? ... Have i got good cause to fill out that complaint form ?

 

Hi

 

A search on the ICO register for Robinson Way reveals 'no matches'. I have also read on other threads that they are apparently not registered.

 

Regards, Pam

[InKogneeToh]

Is this what you want (or don't want I suppose)

For some reason you need the , after robinson

 

 

Registration Number: Z5395514

Date Registered: 11 May 2001 Registration Expires: 10 May 2007

 

Data Controller: ROBINSON, WAY & COMPANY LIMITED

 

Address:

C/O LONDON SCOTTISH BANK PLC

LONDON SCOTTISH HOUSE

MOUNT STREET

MANCHESTER

M2 3LS

Other Names:

EXPRESS DEBT COLLECTING SERVICES

HIGHLAND SOLUTIONS

CHASE SOLUTIONS

 

Oh right, so they are registered. I don't have any debt with these people but I have seen other posts where it's been said that they are not registered. I wonder if they have just been entering the name incorrectly? :o

 

Regards, Pam

[InKogneeToh]

You're welcome - just hope it hasn't scuppered your plans too much! :-|

 

regards, Pam

[InKogneeToh]

Hi tbern

 

Just some of my thoughts on Cabot's so 'professional' response:

 

The proper and approriate forum for your "concerns" to be addressed is within the exisiting litigation following the making of appropriate directions by the Court.

Wrong -as you say, all efforts should be made to avoid litigation or settle it as soon as possible!

 

The Bank of Scotalnd account remains in our client’s possession. In relation to that account the application form which constitutes the Agreement, together with account statements, were sent to you in November of last year.

Ah, but does it constitute a properly executed agreement Mr Spencer??

 

That does not mean that the debtor ceases to be liable to repay the debt in accordance with the terms of the Agreement

Mr Spencer, we're very disappointed in you! Have you not heard of the now famous cases of Wilson v FCT and Dimond v Lovell?

 

Cabot Financial (Europe) Limited is contracted to act as an agent for cabot Financial (UK) Limited (formerly Kings Hill (No.!) Limited). Your subject access request sent to Cabot Financial (UK) Limited was passed to Cabot Financial (Europe) Limited in order to process the request. We are instructed that Cabot Financial (UK) Limited does not hold any data to which your request relates. It will not have escaped your attention that the correspondence you have received from our client was from Cabot Financial (Europe) Limited and not Cabot Financial(UK) Limited or under its former name of Kings Hill (No.!) Limited.

I bet he had to unravel his tongue after dictating that bit!

 

The Data Protection Act permits disclosure of such information to and by those agencies with the debtors consent.

Correct - WITH THE DEBTORS CONSENT!!!!

 

We are further instrructed that our client is concerns by what it considers to be your attempt to avoid payment of a bona fide overdue debt for which iit will seek payment in full, together with interest and such costs as the Court shall deem recoverable.

That tongue ravelling episode must have affected his thought processes, poor man!

 

 

 

Don't you think it is so very kind of them tbern to send you such gems to add to your files? I think we should all club together and send Mr Spencer a nice thank you card and perhaps a book voucher - he could put it towards an idiots guide to the CCA.

Regards, Pam

 

 

[InKogneeToh]

Thanks for the rep. tbern, although I don't know what I've done to deserve it!

 

Regards, Pam

[InKogneeToh]

Hi

 

Are any of these on your 'new buddy' list?

 

Past Students

 

Regards, Pam

[InKogneeToh]

Now here's one for you to consider. According to Battleaxe the Hodson's brief said he was representing King's Hill No 1 Ltd. The dormant company. Now how is this happening. No mention of chnage of company name or anything.

 

Veeeery interesting!!!

[InKogneeToh]

Good Luck DM

[InKogneeToh]

Hi all

 

It has just occurred to me that maybe Cabot (and perhaps other DCAs) does only buy the debt from the banks/creditors and that there is no formal assignment of the consumer credit agreement.

 

It just seems quite odd that none of the DCA's seem to have a copy of the credit agreement for the accounts they are chasing. Surely if they had been legally assigned the entire agreement and therefore the right to enforce it, then they would hold a copy of that important document??

 

It would explain why they seem to think they have no duties under the agreement and why they do not consider themselves to be the creditor - because maybe they're not!!

 

They may just be buying charged off debts that they know were originally accrued under a credit agreement!?

 

This of course means that they do not, in fact, have the right to legally enforce the debt. They could just be relying on us not knowing that!

 

Any thoughts on this?

 

Regards, Pam