djdave vs Cabot

[djdave]

I've decided not to go down the Court route - for now. This morning I've had fun filling in the FOS complaint form and sending it off with a nice big bundle of evidence as it's been over 8 weeks since Cabot acknowledged receipt of my complaint and then fobbed me off.

 

I figure it will be less hassle for me, and a £400 slap for Cabot this way.

 

In my complaint I've raised their non-compliance with the Consumer Credit Act, non-compliance with Section 10 of the Data Protection Act, and their failure to resolve my complaint within 8 weeks.

 

If you're reading this Uncle Ken, you need to know that I'm not letting this lie until I get my default removed and you stop processing my data, however I achieve these aims. You've probably worked out who I am by now, so go on - I dare you, I double dare you - take me to court if you still think I owe you money.

[djdave]

Now it gets interesting, and I would appreciate some help!

 

This morning I've had a lovely letter from Cabot apologising for the delay (bless) and forwarding a very bad photocopy of a fax of an application form from Barclaycard, along with a completely flawed letter explaining its legality.

 

Here's the letter

 

Page one: http://i152.photobucket.com/albums/s185/djdave2007/cabotp1.jpg

 

Page two: http://i152.photobucket.com/albums/s185/djdave2007/cabotp2.jpg

 

And the application form:

http://i152.photobucket.com/albums/s185/djdave2007/cabotapp.jpg

 

First thoughts? Well, the application form is damn near illegible, in fact I've cleaned it up before posting it here. That's by-the-by, it's the content which matters.

 

What content? I cannot see any prescribed terms, any signature from Barclaycard, and notwithstanding Cabot's assertion that it's an agreement, I can clearly see "Barclaycard Application" at the top-left.

 

Turning to their letter, they state that they purchased the account "on or about 15th April 2005". Interesting then that the undated Notice of Assignment they initially sent me is on headed paper which was itself only produced in June that year. Not that I'd ever suggest it was anything other than genuine, you understand.

 

They then go on to repeat their claim that they had no obligation to supply an agreement - could somebody please clarify s189 to me in case I'm wrong?

 

Cabot then go on to restate their assertion that they have, in fact, satisfied their obligations. I'm sure they have not.

 

Then they dismiss out of hand my Data Subject Notice, claiming that I've quoted a wrong subsection. If this is correct (and the notice is further up this thread) then it's only on a follow-up letter, not on the Notice itself. Surely that doesn't give them the right to ignore it?

 

I'm thinking that my next move should be a simple letter back asking them to clarify a few points, something like this:

 

------------------------------------------------------------

 

Dear Cabot,

 

Thank you for your letter dated 22nd August. For the avoidance of doubt I do not acknowledge any debt to you or your clients.

 

I would be grateful if you would clear up the following points with regard to this alleged debt.

 

1) Is the document enclosed with your letter the same document you are relying upon to satisfy yourself that the alleged debt is genuine?

 

2) Was the Notice of Assignment you sent me in April this year a true copy of a document which was provided to you by Barclaycard?

 

3) Notwithstanding that in a subsequent letter chasing you up I may or may not have mentioned an incorrect subsection of the Data Protection Act, the original Data Subject Notice remains outstanding and therefore you have committed an offence. Do you intend to comply with the Notice at all?

 

4) I originally requested a copy of the executed agreement on April 2nd. Taking into account the text of the Consumer Credit Act which states that a creditor should provide this within 12 working days, and s189 which defines "creditor", could you please explain why it has taken over four months for you to send any documentation?

 

5) You claim that the debt was bought by the Cabot Financial Group. Please clarify whether you mean the limited company Cabot Financial Group Ltd (company registration number 05754978 ), or another company within this group and if so which one(s). For the avoidance of doubt please provide the company registration number(s).

 

6) Please provide me with the details of all third parties to whom the company mentioned in your answer to question 5 has passed my data, including any other companies within the Cabot Financial Group. Please also provide evidence of my consent to do so.

 

As these are simple questions, I would expect your answer within fourteen (14) days.

 

Yours....

 

---------------------------------------------------------------------------------------------------------

 

As I say, I'd really appreciate CFC's input with this.

[djdave]

I've got a cheque from Cabot!

 

Sadly it's only £1, but I'm framing it anyway. It came along with this letter:

 

I am aware you have paid the £1.00 fee required, under section 78 of the Consumer Credit Act. As explained in our letter dated 22nd August, there is no duty for Cabot to comply with this section, as Cabot is not the creditor this have [sic] been refunded as it was processed in error. Therefore please find attached a cheque for £1.00.

 

 

In the meantime please do not hesitate to contact us on 01732 524723 blah blah blah....

So where does that leave me? With an unenforcable application form and a DCA which believes that neither the Consumer Credit Act and the Data Protection Act apply to them.

 

I'm still not 100% sure of my next move, and I'd appreciate if someone would look at my previous post and give some advice

 

Thanks,

Dave

[ODC]

Cannot not see how Crapbot can go to Court with this one as they have failed to prove any debt actually exists. Obviously Ken's trying to muddy the waters. Im sure some of the 'experts' will be along to supply you with a Dear Ken letter.

 

such as

 

Dear Ken

 

The CCA applies to Crabot.

 

You are now in default and have committed a summary offence. As you do not appear to know your bum from your elbow I look forward to having the legality or otherwise of your argument decide by the Courts.

 

I am just goiing by advice received from the OFT and TS who state No CCA = No enforceable agreement = No Debt

[Seahorse]

The Cabot Financial Group is NOT the assignee of the account. That dubious honour belongs to Cabot Financial (UK) Limited. And what's all this bollix "the original copy may not be available to Cabot via Barclaycard. Barclaycard has supplied Cabot with a copy of the original"????

 

Either they have or they haven't. It certainly does not satisfy all requirements, the nonsense they HAVE sent you.

 

I wouldn't worry about trying to get them to admit the CCA applies to the. They'll never admit it. But it doesn't matter, because without an agreement, they are shafted. As Lizzy will testify.

 

As for your typo mentioned regarding the DPA notice, simply amend and resend.

 

What the heck was she smoking when she wrote that pile of excrement???

[rory32]

And what's all this bollix "the original copy may not be available to Cabot via Barclaycard. Barclaycard has supplied Cabot with a copy of the original"????

 

Perfectly straightforward. Barclaycard won't give them the original document (indeed this may no longer exist in it's original paper format). They will however give them a copy of the original (which is probably all Barclaycard hold in their system) such as a print out or photocopy.

 

I think the game is given away by the stressing of "if any" in the letter. This is the closest to an admission of we don't have a copy of the credit agreement that you will get from them - here's a copy of your application form.

[Seahorse]

When they start to insist the application form IS the the agreement, that's when you'll know they have nothing else. And they will.

[djdave]

Hey, Uncle Ken, I received an acknowledgement letter from the FOS today.

 

They sound like very nice people.

[Seahorse]

I think I shall start my new complaints against Cabot and Barclaycard to the ICO today too. I can get my initial complaints done online, then follow up with paperwork when I get home next week.

[djdave]

Be aware that the ICO are up to their eyeballs in complaints at the moment. But as I've just posted in this thread, they do get there in the end.

[thinksmart]

When they start to insist the application form IS the the agreement, that's when you'll know they have nothing else. And they will.

 

Oh oh oh Seahorse hold on .... what's the difference between an application form and an agreement? (Please don't say whether or not it says "Application Form" or "Agreement" at the top). I have to run hom now (not literally) and check more thoroughly what they've sent me (its just possible that the title at the top of the form might actually be legible!)

 

Anyone know if an agreement means diddly squat without its terms and conditions from the back?

 

Yeah I know I'm full of questions all of a sudden - I'm feeling the sharp end of the pin at the moment!

[Cabotkicker]

a legally binding agreement, properly executed and acceptable in court, must contain details such as a credit limit, credit amount, and repayment terms for you to agree to.

 

These generally aren't on an application form, just usually the current apr rates.

 

 

You can't sign a contract, without all these important details on, can you? Or you'd be agreeing to absolutely anything:o

 

The copy I was sent, said application in one bit, and agreement in another. At the top, it said agreement, but contains none of the prescribed terms. In Cabots covering letter, they called it 'your application'

 

 

please try not to wet youself laffing!

[Jeff2000]

Hi,

 

 

Usually the heading "application form", or something very similar, is a very big clue.

 

But do check them to make sure they do not contain any of the prescribed terms!

 

Better still, scan and post for further feedback!

 

 

Regards, Jeff.

[djdave]

For comedy effect, scroll back up to post #27 and see what Cabot are claiming an agreement looks like

[ODC]

For comedy effect, scroll back up to post #27 and see what Cabot are claiming an agreement looks like

Well if Uncle Ken and WW say its agreement then it must be:)

[Seahorse]

THAT'S all right then. I can go back to not thinking for myself now, safe in the knowledge that Ken and his Merry Men (and women) will keep me right.

 

Or should that be, Ken and his Merry boys and girls? They hardly seem old enough to vote.

 

And another word for Merry is. . . (sounds like. . .)

 

And what else floats?

 

BURN THE WITCH.

 

Oh, dear. My brain has stopped. Too many days at sea. I need to see real people again. Preferably female. And preferably standing on the other side of a bar pulling pints.

 

I need to lie down for a bit.

[thinksmart]

djdave on 17th August you said ;"They did however send me what they claimed to be a Notice of Assignment which would have been sent from Barclaycard, the original creditor. This is clearly a forgery, not even a conjectured reconstruction, as Barclaycard do not have any record of sending such a document. This I believe is tantamount to fraud."

 

I'm intrigued to know whether you or anyone else has got anywhere with this argument as I'm sure nigh on all of us have had one of those clearly fabricated letters. I myself complained to Cabot calling theirs fabricated when they sent me one as evidence under disclosure on the wrong company letterheading after a takeover of the OC by another bank, and and they issued me with a 2nd Witness statement sticking by their guns that it was a genuine representation of a letter which had been sent and it was just unfortunate that the company who's letterheading they had used hadn't rebranded the OC at the time the original letter would have been sent. They also claimed to be licensed by the OC to send out NoAs on their behalf. They have also done things like send out undated purported NoAs on "letterheadings" of OCs which have no address or company incoporation details or phone numbers on them - in fact nothing more than a logo! WHat ban would send out that!?!?! If one or two people get succes with having these pieces of fiction thrown out could we all use those as examples in Court of what these chancers routinely do? Any thoughts?

[thinksmart]

Just looked at this from post #27...

 

http://i152.photobucket.com/albums/s...7/cabotapp.jpg

 

Wondering how the argument about it not being signed by the OC and therefore not being a completed agreement is going? Yep I have the same and was hoping to use the same argument.

 

Whoever microfiched it with the barcode over the SIGNED CCA 1974 wording must have been an absolute idiot!

 

With it being illegible, unsigned by the OC, with no CCA 1974 advice and no terms and conditions could a judge find anyway to accept it as proof of an agreement? Someone must have tested this already?

[djdave]

thinksmart: I obviously agree that the NoA is suspect and the "agreement" an unenforcable application form.

 

I've referred these documents (and others) to both the OFT and the FOS, and will of course keep the forum updated when they reply. Meanwhile, I don't suppose Cabot would be interested in testing their case in front of a judge?

[Jeff2000]

thinksmart: I obviously agree that the NoA is suspect and the "agreement" an unenforcable application form.

 

I've referred these documents (and others) to both the OFT and the FOS, and will of course keep the forum updated when they reply. Meanwhile, I don't suppose Cabot would be interested in testing their case in front of a judge?

 

 

Me thinks that they might be just stupid enough to try!!!

[Seahorse]

They'll have no choice soon. I'll be asking the same question of the judge when I take them to court.

[djdave]

I've had a reply from the OFT today, several pages long, basically agreeing with my complaint. I've pasted some of their response here in case others find it useful. My comments are in red.

As you aware, the general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreementent for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request. I have highlighted the word request because the debtor/hirer must make a valid request. For the request to be valid it must be in writing and must be accompanied by a fee of £1. I note that you have already done this.

 

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order.

 

 

If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

(which basically contradicts the 12 day rule and the paragraph above)

 

A 'true copy' of an agreement principally consists of the terms and conditions of the agreement and the

statutory

content of the agreement.

(My highlighting, note that this would presumably include the prescribed terms)

The name, address and signature of the debtor does not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a 'true copy', since nobody would know what was in the original.

 

 

When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query.

 

 

However in circumstances like this we would view it is as unfair practice under section 25(2)(d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

 

We investigate all complaints received about consumer credit licence holders and, where we have the necessary evidence, we do take appropriate action. In our initial investigation of all complaints we consider how many complaints we have received overall and how strong the evidence is to support any action. It is unlikely that a licence would be revoked on the strength of one complaint.

(So keep 'em coming!)

Where we have strong evidence that unfair business practices have occurred, we may take steps to revoke or refuse the licence of the business in question. However, if we are to do this we need to take account of factors such as the number of complaints received how recent they are and how well evidenced. In cases where evidence is less strong we may issue a warning letter to the business putting it on notice that its behaviour, if repeated, will call their fitness to hold a licence into question. Any action we do take has to be proportionate. If an approach from the OFT makes a trader change its behaviour and treat consumers fairly in future, this is preferable to

putting a trader out of business.

 

 

If we do take any licensing action against this trader it is likely that we would need to disclose your client identity to this trader along with details of your complaint. I should therefore be grateful if you would provide me with written authorisation to disclose these details to the trader. I have enclosed a disclosure consent form for you to sign and return to me in the enclosed freepost envelope.

(Oooh look, they're actually

asking

for consent to share data - a concept lost on some companies we could mention...)

Needless to say, I'm very happy for the OFT to have my permission if it helps them take action against Cabot. Happy Birthday, Ken...

[ScarletPimpernel]

Thanks for posting that, Dave. As it happens, I'm in the midst of writing a formal complaint to Cabot about their unlawful processing of my data. I rather like the OFT's turn of phrase, and may borrow some bits of their letter...

[ODC]

Oh dear yet another one to poo on Ken's Birthday party

[Jeff2000]

I've had a reply from the OFT today, several pages long, basically agreeing with my complaint. I've pasted some of their response here in case others find it useful. My comments are in red.

If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

(which basically contradicts the 12 day rule and the paragraph above)

Needless to say, I'm very happy for the OFT to have my permission if it helps them take action against Cabot. Happy Birthday, Ken...

 

 

Hi dave,

 

 

I agree with your comments above. However, regardless of the time it takes to comply with the CCA request, I would of thought that you cannot un-commit a criminal offence!

 

 

Regards, Jeff.