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

[InKogneeToh]

Hello Pam,

 

That may be the case in some circumstances. However, in my own situation I have letters stating that the account has been assigned to Kings Hill (No.1) and that they are effectively the owners of the account.

 

Hi tbern

 

Yes, I understand they are the owners of the account but my point is does this simply mean they have purchased just an outstanding debt on the 'account' (e.g. like an account I might have at a builders merchants or at small local store). These example debts could be sold on for collection and the buyer could assert a right to collect the overdue sums but they would not have any legal duties to the debtor. I'm just wondering if this is actually what's happening here.

 

Regards, Pam

[InKogneeToh]

Hi

 

I have just trawled through the Law of Property Act 1925 and the only section that could possibly have any relevance is this:

136. Legal assignments of things in action.- (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

This only means that a written assignment of a debt to an assignee give the assignee a legal right to that debt (and we all know that anyway!)

 

Section 25 says the following - and has no relevance whatsoever:

 

25. Power to postpone sale. - (1) A power to postpone sale shall, in the case of every trust for sale of land, be implied unless a contrary intention appears.

 

(2) Where there is a power to postpone the sale, then (subject to any express direction to the contrary in the instrument, if any, creating the trust for sale) the trustees for sale shall not be liable in any way for postponing the sale, in the exercise of their discretion, for any indefinite period; nor shall a purchaser of a legal estate be concerned in any case with any directions respecting the postponement of a sale.

 

(3) The foregoing provisions of this section apply whether the trust for sale is created before or after the commencement or by virtue of this Act.

 

(4) Where a disposition or settlement coming into operation after the commencement of this Act contains a trust either to retain or sell land the same shall be construed as a trust to sell the land with power to postpone the sale.

 

So what they are relying on, I presume, is the fact that a written assignment of a debt gives them the right to enforce it. Their reference to this Act further ignites my suspicions that they have been assigned only the debt ( or at least THINK they have)!

 

Regards, Pam

[InKogneeToh]

Please, Miss. Please, Miss. I've got one. Sort of. Not ACTUALLY what you might reasonably call an agreement, but I think it's the only one they're going to be able to get their grubby mitts on.

 

 

Was that sent to you by a creditor/DCA? What is/was/should be where the blacked out bits are - ought or nought?

 

Regards, Pam

[InKogneeToh]

Mr Maynard CEO of Cabot Financial thinks:

 

"In addition, Citizens Advice is currently pursuing a series of court cases which challenge the right of debt purchasers to pursue a regulated debt through the courts. They argue that according to the definition of ‘creditor’ under section 189 of the Consumer Credit Act 1974, a purchaser must prove that he has acquired the duties as well as the rights to a consumer credit agreement before he can become the ‘creditor’ and therefore pursue the right to sue for the debt. This goes against the general industry belief that section 139 of the Law of Property Act 1925 applies in the case of debt purchase, which only requires that written notice of the assignment is given to the debtor in order to complete a legal assignment of a debt, and again has serious implications for the industry."

 

This quote convinces me even more that they are only buying/being assigned the debt and not the credit agreement! The fact that they are relying simply on the LOP Act for their right to collect indicates that's the basis on which they claim to have acquired the rights but not the duties.

 

BUT - unfortunately for them and whether they recognise it or not, the CCA makes them the new creditor by that very act of assignment and they'd better wake up soon before their premises get totally obliterated by an avalanche of CCA requests!

 

Regards, Pam

[InKogneeToh]

[edited]

 

Delinquent?? They ain't seen nuffin' yet!!

[InKogneeToh]

I presume the original had a dark background, which didn't photocopy very well... Now that is a shame.... Is it signed by Barclaycard anywhere ???

 

This is 1000000% an application form - no credit limit, no repayment info, no interest rate, no statements of rights and protections, no cancellation info. etc. etc. etc. etc...........

[InKogneeToh]

Hi tbern

 

This goes back to what I was saying yesterday. It seems to me that Cabot, and probably many other DCA's, are buying (or think they are buying) just outstanding accounts and are relying solely on the LOP 1925 for their right to collect.

 

Relying on this Act, they are assuming that they do not need the CCA to be able to enforce a debt but will still rely on the original agreement (as proof of a contract just like any other) if they take it to court.

 

I think they have made a big mistake but this situation is again one that needs clarifying.

 

It will be interesting to see if the CAB test cases have/will establish any clarity.

 

Regards, Pam

[InKogneeToh]

 

Anyway, the Barclaycard and Bank of Scotland letters both say.

 

We hereby give you notice of the assignment of the debt to us in respect of the outstanding balance of your ***bank name *** account (How can a letter, supposedly from these banks state 'assignment of the debt to US' ??)

 

 

As per my previous post... The relevance of the CCA instead of the LPA is that s189 defines the DCA as the creditor

 

“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, and in relation to a prospective consumer credit agreement, includes the prospective creditor; (Yes, I entirely agree with you - I'm just guessing as to how the DCA's are actually (and incorrectly) treating these debts.)

 

 

 

Regards, Pam

[InKogneeToh]

I think what they are trying to say is assigned from them to Kings Hill What I was suggesting is that it looks pretty obvious that it was typed by Kings Hill because of the obvious error in the use of 'to us'

 

 

DCA's aren't allowed to send letters that appear to come from a Court, I wonder it they are allowed to send them so that the appear they are from another company ???? Well it's just possible that this is agreed to in the 'service agreement' between them that they have mentioned but I don't think it can be lawful!

 

I think that may be an issue for a totally different thread

 

Regards, Pam

[InKogneeToh]

Sorry my fault.. the letters say due to us, I missed out the word due when I typed it. Oh, that explains it then.

 

Sorry Cabot

 

As I said in my SAR they clearly say that as they are unable to obtain statements from a certain bank, so they will produce a list of transactions and they will then print them on their headed paper.... their being the bank whose account the SAR was refering to....

I would call that misrepresentation (or something stronger) wouldn't you?!

[InKogneeToh]

Hi tbern

 

I don't think you can claim compensation for offences committed under the CCA, i.e. non-compliance with s77/78 requests:

 

 

170 No further sanctions for breach of Act

 

(1) A breach of any requirement made (otherwise than by any court) by or under this Act shall incur no civil or criminal sanction as being such a breach, except to the extent (if any) expressly provided by or under this Act.

 

Regards, Pam

[InKogneeToh]

ok, a few monior changes....

 

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. - Acc No.......... 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 that 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 and, as confirmed by section 189 of the Consumer Credit Act 1974, they therefore became the creditor. Please refer to, UNADKAT & Co (ACCOUNTANTS) LTD And ASHOK BHARDWAJ .V. The TREASURY SOLICITOR, state the full title of the judgment and the relevant paragraph number then put the quote in quotation marks.(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 1998 (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 1998 to their appointed agent, Cabot Financial (Europe) Ltd.
   
6. Claimant claims compensation as detailed in the DPA 1998 (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)

 

Just a few grammatical tweaks and reminder to put in all of the judgment name, e.g. Bloggs v White 2003 CA 1737/2.

 

Judges like to have all the title so they can find the judgment easily.

 

Regards, Pam

[InKogneeToh]

Hi again

 

The bit that you need to add on to the judgment title is the reference : [2006] EWHC 2785 (Ch) (copied from the link on the Credit licence thread) and it's paragraph 2.

 

Regards, Pam

[InKogneeToh]

Thanks Pam,

 

 

Really appreciate your help.... I would click your scales, but I did that yesterday and it won't let me do it again yet lol

 

Thank you for the last click anyway - much appreciated.

 

Regards, Pam

[InKogneeToh]

The 1 confusing thing (Seahorses is onto this one though) is that when the banks are asked for a refund of the charges they eventually pay us back even though the debt was sold to DCA, why would they do that if they could just say bugger off and ask the DCA for it? Something has not transferred to the DCA? or the banks have so much cash and see the DCA as actually doing something useful that they just let it go and pay up.

 

Hi

 

I presume it's the banks who pay because it was them who made the charges and received the money. You couldn't make a claim against the DCA for something that they did not receive. It comes under a claim type called 'restitution for money had and received' and it was the bank who had the loot!

 

Regards, Pam

[InKogneeToh]

Hi

 

No, I'm not quoting from anything. All I am saying is that the action to reclaim penalty charges has nothing to do with the CCA or who the creditor is - it's a claim against the party who has actually taken your money.

 

Regards, Pam

[InKogneeToh]

... so what would you do in Rhia's and my situation where the charges have been refunded to Cabot instead of to us by the bank/Card co and what argument would you use against them? Do you think the bank have a right to send a refund to the DCA? In my case the debt was ALL charges.

 

Hi

 

Had you issued court proceedings for these charges?

[InKogneeToh]

Hi

 

I agree with you both. The way I see it, those charges made by the creditor are not/were not payments by you to the account and IMO should not be transferred to a third party as payment towards a debt without your consent.

 

Also many people have continued to claim the full amount after the banks have offered/repaid the difference between the OFT limit and the actual charge. The claim needs to be continued because that £12 was only the maximum, above which the OFT would take action, and they also said that they were not saying that this figure was fair. It is still up to the bank to show that the cost of each breach WAS £12 if that is what they are charging.

 

Regards, Pam

[InKogneeToh]

Hi tbern at al

 

It's all gone very quiet on here! :?

 

What's cookin'?

[InKogneeToh]

Sorry guys...

 

I am just waiting to hear back from the court, regarding their defence in relation to my claim re the HSBC account. I am also still working on the Creditor issue and trying to get my POC together for my second, large claim against them...

 

Oh, okay then - well what are doing dilly dallying on here then? Nose back down immediately! :D:p

[InKogneeToh]

As usual Cabot have interpreted things for their benefit

 

There are also popular misconceptions about the rights and obligations of debt purchase companies under the Consumer Credit Act. 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. We believe that the Government’s decision to create a new category of business for which a licence is to be required, namely debt administration, when the Act is amended in April 2008, reflects the fact that debt administration companies are not creditors for the purposes of the Act. (When explaining the new category of licence during parliamentary debate, the Under-Secretary of State for Trade and Industry said that the category was intended to cover those who "purchase portfolios of existing loans and administer them".) However, the fact that in our view debt purchase companies are not creditors does not mean that they are not entitled to enforce the debts that have been assigned to them, or which, in laymen’s terms, they have bought. As a legal assignee, under section 136 of the Law of Property Act 1925, a company which has bought a creditor’s rights under a credit agreement is entitled to sue the debtor for any repayment that remains due under the agreement.

 

But, as Cabot have purchased the account, they are not acting as a Debt Adminstrator.

House of Commons Standing Committee d

 

Cabot, you stand them up and I'll knock them down

 

Under clause 23, a debt purchaser who became a creditor or owner when he purchased the loan would require a licence. However, if the creditor or owner subcontracted the administration of his loan agreements to a third party, clause 24 means that the third party would require a debt administration licence. The combination of clauses 23 and 24 is important, as it will ensure that the OFT can protect consumers throughout the life of their agreement.

 

Tbern, you're a diamond!!!:D

 

Get them on the hook - I want to see them squirm!!

[InKogneeToh]

Hi

 

I tried to give you some well earned rep. tbern but it seems I have to spread my 'lurv' around a bit first!

 

Regards, Pam

[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

[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

[InKogneeToh]

Love it! Love it! LOVE IT!

 

I can just smell the gunpowder from here!! :D:D