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

[andrew1]

I have lodged my complaint to ICO on precisely these grounds as well as the illegal sharing of data between companies without consent. ICO has just been back to me for more letters to show that I did try and sort this out directly with DCA, which of course I did.

All they have been able to stump up so far is a unreadable photocopy of the APPLICATION form (not an executed agreement) I have attempted to read this after scanning and increasing size and although it is still difficult to read nowhere does it say that data can be used except for lending decisions in regard to the application and to prevent fraud.

The ICO will be the key to all of this. The original lender is most definitely at fault for not dealing with the debt properly and its undue haste to throw the consumer to the dogs of the debt collecting industry. Have you ever considered why they sell these debts for so little? It's because they know they were always worth so little in the end. They have made their rake off for the duration of the account life and I am sure they have always known their agreements/application forms were legally dubious, it's just that 99% of consumers never read them properly. Well the 1%ers are manning the barricades and are giving the lenders a very bloody nose indeed.

 

 

Actually Rhia, it was to do with the banks reputation ( ) They could not afford ( Pre Cag of course) to be seen to be harrassing debtors, the publicity would be very bad. All the heavy and nasty stuff is left for the DCA's and done in the DCA's name so the bank didn't get a bad reputation or its' name dragged through the papers - that was up until the beginning of last year, now of course they can only look to themselves for the self generated publicity they have bought unto themselves - even Max Clifford couldn't have done it better ! - and all this publicity is FREE

[andrew1]

Flattery will get you everywhere lol

 

Deb-Moutain, Andrew1 and the others where doing this before me and I have learnt a lot from them...

 

But, if I can help in anyway I will..

 

Can I take this opportunity to nominate a moto for the Cabot Fanclub ???

 

"Don't let the barstewards get you down"

 

What were you saying about flattery tbern? Anyway, I think we might be able to come up with something a little more flattering for our friends than this moto if you don't mind me saying so. Whilst I agree entirely with the implied reference and its' implications upon us - I think we must find something unique and original as a Moto - they have earned it - and maybe they'll incorporate it into their letter-heads for Cabot Financial UK Ltd when they decide to start writing the odd letter. So, lets make it a good one Now I'm not going to start the bidding, but how about we nominate a few ideas on that which is no resemblance to the 'Crapbots' and the likes of the past. Keep it clean and funny but not insulting..... off you go ! Tell you what - how about 'Court Jesters'

[andrew1]

What have I started? :o I did say try and keep it clean ...sorry tbern seemed to have got a hijack going .. lets keep this on thread....

[andrew1]

Would people agree if the above is compliant with CPR 16.4 ?

 

Which is right tbern?

 

1)

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, on 8th September 2006, the claimant made a request under sections 77, 78 and 79 of the Consumer Credit 1974 for a copy of the executed credit agreement and supporting documentation to establish the validity of the alleged debt.

 

2)...he Claimant is seeking exemplary damages, based on:

1) Defendant has committed an offence/s under the CCA 1974 s77, s78 and s97, in relation to requests

 

3) 4) 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).

[andrew1]

... 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.

[andrew1]

Hi

 

Had you issued court proceedings for these charges?

 

No. I haven't even asked for the yet.

[andrew1]

I think the situation should be that if the DCA can prove the debt the debtor should agree settlement with them but be free to reclaim the penalties from the original lender to be paid to the individual.

 

actually, I agree with you Rhia. I think Citi should, despite them giving the monies to Cabot, send the lot to me and reclaim it from Cabot themselves as I had no contract with Cabot and it was all fees and charges. I also do not believe they should keep the OFT £12 and refund the difference between their £25 and £12-cos that's exactly what they did.

[andrew1]

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

 

....also Pam, and thanks for that, the OFT do not make the laws of this land and if the charges are unlawful by exceeding the liquidated loss ( what it costs the bank) then even £12 is unlawful which makes the whole lot reclaimable anyway until they disclose their true costs.... onwards and upwards !

[andrew1]

Magnificent Janet-M. That is very useful information.

And another thought Andrew1. If your account was defaulted on penalty charges then that default must be removed completely it may even open the way to a few damages due to erroneous information.

 

Now, pm me your thoughts as to compensation. Citi never took the default off - it's been there since 2004 AND Cabot added one too... me see's £'s signs

[andrew1]

... and thats why I always call myself Andrew

 

 

Sarah xx

[andrew1]

Oh, Andrew/Sarah, I thought you was just confused

 

[andrew1]

I've got to go back over these threads to read up on the buying by Cabot of the rights to a debt rather than the duties, but can someone just confirm to me how this is done and which Act or law allows this to happen.

 

Say, for example, I am in a position to by a debt which has a guarantee/warranty period attached to it. Can I buy the debt and not pick up the responsibility of the guarantee/ warranty period? Is this the Law of Property or what and how do Cabot for example justify their right to do this?

 

 

Oh, and by the way Happy Mothers Day to all the MUMS on here..

 

 

.

[andrew1]

As far as I know, Cabot haven't yet told us that this is the law they are basing their assumptions on. (I don't THINK, but I may have missed it if they have). But PMHCFC has raised a point about this. Have a look on over at the post and article about it in the alternative Fan Club site. Where you are now a mod, BTW

 

Wow - a mod? !

[andrew1]

 

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

 

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

[andrew1]

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

[andrew1]

Good on you Seahorse..

[andrew1]

Time for another query to Experian. (REAL SHOES!!!)

 

Don't worry tbern, I think we are all missing the joke - Anagram? Seahorse? Experian ? joke ? OHHHWWW _ Seahorse is the Joke, sorry tbern - now I got it ! :D

[andrew1]

No, you've still not got it.... yes, I suppose you can get seahorse out of that, but it is a DESCRIPTIVE word. To describe the mood at the time of what I was feeling about the character of the collective that is Experian, based on their response.

 

OK, I'll make it easy for you and rearrange the last 5 letters, leaving you to juggle just 4 letters.

 

***HOLES. (There's only R - A - S and E to mix now to add to the front of the word.)

 

 

**** Holes - Seahorse - when you're in one you have to stop digging !!!! :D

[andrew1]

No ... tbern wrote it

[andrew1]

I just had a look over the accounts at some of the active companies the aforesaid 'stockton' is Co.secretary for.........interesting !

[andrew1]

Before we get too excited about this address and posting totally innocent company names , there are loads of companies operating out of these buildings, they are all single operating companies working from a myriad of offices and totally unrelated. These are big buildings full of offices and businesses.

[andrew1]

Big thanks to Andrew1 for the additional info (Sorry, CAG won't let me give you rep points at the moment)

 

This is a work in progress of my next letter to Cabot... I thought I would post it on here now, so that they know I am still here...

 

Dear Mr Maynard

 

 

Firstly, please accept my sincere apologies for the delay in providing you with a written response to the letter from your legal representative, Hodsons Solicitors. I would like to take this opportunity to inform you that I intend to delay the instigation of litigation proceedings in relation to the alleged Barclaycard account, your ref: 1173130.

 

 

I have taken the decision to delay litigation, as I intend to make a formal complaint to the Financial Ombudsman Service in relation to the conduct of Cabot Financial (Europe) Ltd and in relation to the way my complaint has been handled.

 

 

I first contacted Cabot Financial (Europe) Ltd on 8th September 2006. I am extremely disappointed that after six months, I find myself still being forced to write to you. I understand that Cabot Financial (UK) Ltd, do not believe that they are the creditor as defined in section 189 of the Credit Consumer Act 1974.

 

 

I understand that this opinion has been formed as you feel that only the rights and not the duties of a consumer credit agreement is assigned and that this belief is based on section 136 the Law of Property Act 1925.

 

 

This view is further reinforced in the article published on the Cabot Financial website by your colleague Mr Glen Crawford, entitled “Legal Misconceptions in Debt Sale and Administration”. Mr Crawford, quotes the Under-Secretary of State for Trade and Industry, as saying:

 

 

"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”.

 

 

As Cabot Financial (UK) Ltd are not the creditor, I feel that they are. ( doesn't make sense tbern)I would like to take this opportunity to fully clarify my thoughts.

 

 

Mr Crawford is willing to accept the opinions of Mr. Gerry Sutcliffethe Under-Secretary of State for Trade and Industry, you should also be aware of the other comments he made:

 

 

“There is a problem with the existing coverage of the licensing regime. It is not clear that businesses that purchase a portfolio of existing loans require a licence. The Department of Trade and Industry, the Office of Fair Trading and advice bodies have received complaints about businesses that purchase existing debts. Consumers are often confused about who is responsible for the contract and what controls there are on those businesses.”

He continues...

“Hon. Members will see that the definition of consumer credit business now covers businesses relating to the provision of credit by a person, or otherwise being a creditor. A creditor is a person who provides credit under an agreement or a person to whom the rights and duties under the agreement have passed by assignment or operation of the law. The new definition ensures that businesses will need a licence even if they are no longer making new agreements. They will need a licence if they only administer existing agreements by taking over the rights and duties of the creditor. The same logic applies for the new definition of consumer hire business.”

Mr. Gerry Sutcliffethe Under-Secretary of State for Trade and Industry, also states:

 

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

 

Source: House of Commons Standing Committee D Tuesday 28 June 2005.

In summary the source quoted by your colleague Mr Glen Crawford, has stated on record that a debt purchaser, (in this instance Cabot Financial (UK) Ltd) becomes the creditor when they purchase the loan.

Furthermore, as the Chairman of the Debt Buyers and Sellers Group “The Voice of the Debt Sale and Purchase Industry”. I presume, you are aware that your colleague Dr Roger Lucas of the Lewis Group and of the Debt Buyers and Sellers Group is quoted by Credit Today Online Magazine as saying:

"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."

This statement is contradictory to your own article published on the Cabot Financial website, in which you state:

“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”.

I would also like to refer you to the following court case UNADKAT & Co (ACCOUNTANTS) LTD And ASHOK BHARDWAJ .V. The TREASURY SOLICITOR [2006] EWHC 2785 (Ch) paragraph 2

This case confirms that by virtue of of a debt assignment, the interested party becomes the creditor.

 

In summary I have provided three sources to support my belief.

1. Mr. Gerry Sutcliffe the Under-Secretary of State for Trade and Industry (previously quoted by Mr Glen Crawford)
   
2. Dr Roger Lucas of the Lewis Group and of the Debt Buyers and Sellers Group (of which you are the Chairman). I also understand that Dr Lucas is / was the Vice President of the Credit Services Association, of which Cabot Financial is a member.
   
3. Legal precedence.

I trust that these examples establish that Cabot Financial (UK) Ltd are the creditor for the purpose of the Consumer Credit Act 1974. I also hope that you will reconsider your legal status and the responses that will be provided in future.

 

I will post my full response, once I have finished it

 

Brilliant I'm just nit picking...

[andrew1]

Don't you dare, make them read the lot - better entertainment than a night out on the town :D

[andrew1]

 

It's really time Mr M and his crew gave it up!!

 

 

Do you think they'd sell me their shares?

[andrew1]

If he doesn't get in touch with you soon I am going to call him and ask him to write to you. Otherwise add it to the writ.

"For systematically and persistently ignoring Tbern, WW is in default of the Seriously Effective Consumer Champions Act 2007. Maximum penalty - a stretch in one of those Nicaraguan jails.":-D

 

.... and he or his boss sir Ken won't be nominated for the coveted position of Credit Manager of the year in the Credit Today Awards for his outstanding contribution to the Credit Industry ( prize sponserd by his mates at Robinson Way ) dare they give it to him ? :-D