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    • Hi all, an update on the case as the deadline for filing the WS is tomorrow i.e., 14 days before the hearing date: 7th June. Evri have emailed their WS today to the court and to myself. Attached pdf of their WS - I have redacted personal information and left any redactions/highlights by Evri. In the main: The WS is signed by George Wood. Evri have stated the claim value that I am seeking to recover is £931.79 including £70 court fees, and am putting me to strict proof as to the value of the claim. Evri's have accepted that the parcel is lost but there is no contract between Evri and myself, and that the contract is with myself and Packlink They have provided a copy of the eBay Powered By Packlink Terms and Conditions (T&Cs) to support their argument the contractual relationship is between myself and Packlink, highlighting clause 3a, e, g of these T&Cs. They further highlight clause 14 of the T&Cs which states that Packlink's liability is limited to £25 unless enhanced compensation has been chosen. They have contacted Packlink who informed them that I had been in contact with Packlink and raised a claim with Packlink and the claim had been paid accordingly i.e., £25 in line with the T&Cs and the compensated postage costs of £4.82. They believe this is clear evidence that my contract is with Packlink and should therefore cease the claim against Evri. Evri also cite Clause 23 of the pre-exiting commercial agreement between the Defendant and Packlink, which states:  ‘Contracts (Rights of Third Parties) Act 1999 A person who is not a party to this Agreement shall have no rights under the Contracts (Right of Third Parties) Act 1999 to rely upon or enforce any term of this Agreement provided that this does not affect any right or remedy of the third party which exists or is available apart from that Act.’ This means that the Claimant cannot enforce third party rights under the Contract (Rights of Third Parties) Act 1999 and instead should cease this claim and raise a dispute with the correct party.   Having read Evri's WS and considered the main points above, I have made these observations: Evri have not seen/read my WS (sent by post and by email) as they would have recognised the claim value is over £1000 as it includes court fees, trial fees, postage costs and interests, and there is a complete breakdown of the different costs and evidence. Evri accepts the parcel is lost after it entered their delivery network - again, this is in my WS and is not an issue in dispute. Evri mentions the £25 and £4.82 paid by Packlink - Again, had they read the WS, they would have realised this is not an issue in dispute. Furthermore to the eBay Powered By Packlink T&Cs that Evri is referring to, Clauses 3b and c of the T&Cs states:  (b)   Packlink is a package dispatch search engine that acts as an intermediary between its Users and Transport Agencies. Through the Website, Users can check the prices that different Transport Agencies offer for shipments and contract with the Transport Agency that best suits their needs on-line. (c)  Each User shall then enter into its own contract with the chosen Transport Agency. Packlink does not have any control over, and disclaims all liability that may arise in contracts between a User and a Transport Agency   This supports the view that once a user (i.e, myself) selects a transport agency (i.e Evri) that best suits the user's needs, the user (i.e, myself) enters into a contract with the chosen transport agency (i.e, myself). Therefore, under the T&Cs, there is a contract between myself and Evri. Evri cites their pre-existing agreement with Packlink and that I cannot enforce 3rd party rights under the 1999 Act. Evri has not provided a copy of this contract, and furthermore, my point above explains that the T&Cs clearly explains I have entered into a contract when i chose Evri to deliver my parcel.  As explained in my WS, i am the non-gratuitous beneficiary as my payment for Evri's delivery service through Packlink is the sole reason for the principal contract coming into existence. Clearly Evri have not read by WS as the above is all clearly explained in there.   I am going to respond to Evri's email by stating that I have already sent my WS to them by post/email and attach the email that sent on the weekend to them containing my WS. However, before i do that, If there is anything additional I should further add to the email, please do let me know. Thanks. Evri Witness Statement Redacted v1 compressed.pdf
    • Thank you. I will get on to the SAR request. I am not sure now who the DCA are - I have a feeling it might be the ACI group but will try to pull back the letter they wrote from her to see and update with that once I have it. She queried it initially with 118 118 when she received the default notice I think. Thanks again - your help and support is much appreciated and I will talk to her about stopping her payments at the weekend.
    • you should email contact OCMC immediately and say you want an in person hearing.   stupid to not
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    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
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      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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I realise that I do not usually share the same opinions as some Cabottors. It is of course entirely your choice whether you discuss or discard any of the issues I have raised. What I will say is, whatever you decide, I have nothing to gain or lose as I have purely undertaken to disclose the above as a matter of courtesy and assistance. Nevertheless, you will at least appreciate how much time it has taken me to do this. Some of you will possibly be pleased to learn that I have decided to cease posting in the Cabot Forum unless specifically asked by the thread originator.

 

Did I miss something? Why the negative post? Have you got into argument with somebody?

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Kind of. Some say that Cabot must own both the rights & duties whereas my opinion is that there must be some legal framework that shows statements in their letters to be correct (albeit without the same knowledge, a little misleading to the consumer). As you can probably guess each time I raise the issue I get ignored, accused of being a Cabot friend or just told it has already been discussed and they cannot do it.

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It does make sense. But also, when companies - or the original creditor - assigns the debt to another company it also must assign and the duties, otherwise the original creditor is condoning possible breach in the OFT guidelines and related legislative acts. What I mean is that by passing the right and ALSO the duties to the company assigned to collect the debt, the Law actually creates sort of a regulatory mechanism - otherwise what is to stop the DCAs to come into your house to collect money or harrass you (as they do) into paying the full amount NOW or whatever other awful practices they can come up with (read the forum and take your pick)?

I think, the 'transfer of the rights and duties' is drafted with this in mind - but then again I might be wrong...

The fact and the matter is that regardless who is the original owner of the debt - i.e. the creditor, there SHOULD be a credit agreement - properly executed. Otherwise I do not understand how you can delegate or assign the debt to somebody...

Imagine I am original creditor and you are DCA - if I don't have the credit agreement how do I prove to you that what I'm selling to you (or assigning) actually exists? By pinky swear? I have to actually show you documents that the debt exists (and application form does NOT prove this).

You do raise some points in your post and I wish that other people get in on the discussion as well.

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What does work though is if the assignment is equitable and, irrespective of whether the hello or goodbye letter is produced, the other 2 conditions required for absolute legal assignment have not been accounted for in the actual DOA.

This is very interesting Activ so what are the two other conditions you mention here?

and...

Now the DCA concept is working in exactly the same way (except they are authorised to data process too and probably get a % of income generated).

 

 

This idea of the DCAs getting a cut of the data processing has been aired before and a number of us believe this to be the case. Richard Spud suggested serving a S10 under the Data Protection Act removing your permission to process your personal data would remedy this.

They are skating on thin ice though surely as many, if not most, of these so called agreements are nothing more than the original application form and there is no executed agreement then the debt is unenforceable and the data processing is being unlawfully applied. Do you think companies like Cabot realise that they are possibly staring at a jail sentence?

I see that only today Richard Thomas the Information Commissioner has asked for sweeping powers to act on the banks (and DCAs) to stop them using personal data in this way.

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Richard kindly explained to us all that there are 3 conditions that need to be met in order for absolute legal assignment to take place. The hello/goodbye letters are only one of the conditions contained in the full DOA.. As I have already said absolute legal assignment does not fit in with what the DCA’s are actually doing.

 

Hello all, I thought I would add my two pence worth

 

to quote from Richard himself:

http://www.consumeractiongroup.co.uk/forum/general-debt/56819-deed-assignment-help-needed-3.html#post777598

"However, simply if the OC either sells the debt to the AC without giving Notice of Assignment to the debtor, in which case the sale will be an “Equitable Assignment” which in order for the debtor to be sued the Claim would need to be issued in the names of both OC and AC, or when Notice of Assignment is received by the debtor, the assignment automatically becomes a “Legal Assignment”, thus allowing the AC to then sue in their own name. Either way, a transfer of the title to the debt passes to an identifiable AC on the date the transfer document, “DOA” if you like, is signed by the OC."

 

 

 

So upon receipt of a Notice of Assignment, the assigment automatically becomes a "legal assignment"

 

I don't ever recall anyone actually being sent a Deed of Assignment. However, I do have three Notice's of Assignment from 3 OC's and copies of the subsequent Cabot "Hello" letters next to me,

 

I can't comment in relation to other DCA's, however in relation to Cabot as confirmed by Richard Spud the debts are not assigned by equitable assignment but by absolute assignment.

Remember if you find anything I say helpful, please click the scales

 

 

tbern123 vs Cabot

  1. Cabot again !!! Urgent Help Needed
  2. Litigation - tbern123 V Cabot Financial (Uk) Limited
  3. No more calls from Cabot... lol

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Having hijacked a Cabottors thread (SH) on my first posting, I have decided to share with all Cabottors my opinions of what I have discovered to date. Some relate solely to Cabot but the majority apply to all.

 

CCA non-production

 

In some cases this may well be genuinely gone forever. Are they holding it back, perhaps to make you out of time for obtaining some of the illegal charges later?

CCA request

 

Why do they then request from OC if they supposedly bought it. Under Absolute Legal Assignment all correspondence would have moved to the new owner. .

 

When a debt is sold to a DCA by a financial institution, they are normally provided with no documentation. Absolute Assignment only relates to the actual selling of the debt. Before any questions this, I do know this for a FACT and this does not mean the assignment must then be equitable.

 

Rights & duties

These are still there but not where you think. CCA 74 applies to the OC as it never really moved in the first place, it just appeared so (they have just appointed some-one to receive monies on their behalf in such a technical way even their own staff do not understand)..

 

The CCA does not only apply to the original creditor.

 

186 Agreement with more than one creditor or owner

Where an actual or prospective regulated agreement has two or more creditors or owners, anything required by or under this Act to be done to, or in relation to, or by, the creditor or owner shall be effective if done to, or in relation to, or by, any one of them.

 

I am sure I don't have to also remind people that the CCA also states:

“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;

 

 

 

Assigned back to OC

 

This is the giveaway to it having been Equitable Assignment all along. Remember these debts are bought in full and the legal document covering the legal jargon alone will consist of a vast number of pages. Do you seriously think they go to the same hassle of assigning back one at a time? Easier way to look at it, if you buy a book and decide you do not want it, can you then make the seller buy it back?.

 

I am in the fortunate position of having both correspondence from Cabot and from the OC and the proof in my S.A.R - (Subject Access Request) documentation to show that this does in fact happen.

 

 

AC using OC letterhead

 

The paper has come from some-where and I do not mean the bin. It is perfectly legal for the OC to authorise AC to use their letterheaded paper. The OC as “authoriser” is fully responsible to the receiver of such letter irrespective who wrote it or even if in their remit to write it. There may be issues between OC & AC over what has been written but without sight of the contract between those 2 parties, the receiver has no idea whether AC as acted within the limits it as been “authorised” to do.

 

I agree they must have agreement from the OC to use their headed paper. However, this opens a can worms. There are members on here that have had legal proceedings started against them by Cabot. This is in their sole name and the OC is not named as a co-claimant. So if the goodbye letter was written by Cabot on the other banks headed paper as per the LPA 1925 the assignment could only be equitable, this means that they can't actually start proceedings in their own name.

 

Cabot can't pick and chose which parts of the law applies to them.

 

CRA

 

There are guidelines they follow. Why do DCA’s often use £1 CCA fee as a payment towards debt? It extends the time taken to clear your credit file. Say a default was registered 5 years ago then it is due to come off in another year, adding another payment in year 5 suddenly creates another default and consequently it stays another 6 years..

 

A default stays on a credit file for six years, DCA can't reset the clock. It may be that they use the £1 to restart the 6 year period under the statue of limitations. However, as the payment of £1.00 is not an admission of the debt, they can't.

 

When you send £1.00, they don't actually pass this onto the OC, as the OC will give the DCA a copy of the documentation free of charge.

The above comments are based on my own personal opinion.

Remember if you find anything I say helpful, please click the scales

 

 

tbern123 vs Cabot

  1. Cabot again !!! Urgent Help Needed
  2. Litigation - tbern123 V Cabot Financial (Uk) Limited
  3. No more calls from Cabot... lol

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Aktiv, please don't take my response to your OP personally. This is a forum and we may not always like what other people post, but we read the posts and then have the opportunity to respond.

 

People see things differently, this is the beauty of this site. I have learnt so much from the people here. If we all agreed, it wouldn't be so much fun.

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tbern123 vs Cabot

  1. Cabot again !!! Urgent Help Needed
  2. Litigation - tbern123 V Cabot Financial (Uk) Limited
  3. No more calls from Cabot... lol

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I would strongly advise, everyone dealing with cabot to read the following document:

 

www.b-mag.org.uk/memos/Cascading%20Memo%2032.doc

 

Take a look at their website B-MAG - Home they know their stuff

Remember if you find anything I say helpful, please click the scales

 

 

tbern123 vs Cabot

  1. Cabot again !!! Urgent Help Needed
  2. Litigation - tbern123 V Cabot Financial (Uk) Limited
  3. No more calls from Cabot... lol

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You can certainly email and ask him.... I did a couple of months ago...

 

 

I won't post his email address here, but you can find it on their website

Remember if you find anything I say helpful, please click the scales

 

 

tbern123 vs Cabot

  1. Cabot again !!! Urgent Help Needed
  2. Litigation - tbern123 V Cabot Financial (Uk) Limited
  3. No more calls from Cabot... lol

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1) All sales must be conducted under the Law & Property Act (ie nothing whatsoever to do with CCA 74)

 

No, no, no. RS said that the LOP was just the mechanism by which the transaction is assigned. The CCA still applies.

You also said something about these contracts existing somewhere. They don't. There are people right across CAG dealing with different DCAs, different credit card providers and banks and it seems something like 90% of them have the same problem the OC is stumping up a copy of the application form (and this has been debated many times and confirmed by the highest legal sources) but an application form is not a true copy of the executed agreement. Hence many companies have actually been operating accounts unlawfully/ illegally and stand to have to refund all interest charged for the lifetime of the account and the even greater issue of having illegally processed personal data and on this latter point the Information Commissioners Office is getting very, very annoyed indeed.

I must also observe that this assignment talk was first raised by the Cabot raider (and you can call me a cynic for I am) but I think it's been planted as a red herring to divert the Caboteers from the issues mainly facing their cases that the contracts don't exist. And what the feck is an hello and goodbye letter? Jeesus. A myriad of Cabot companies have been used to confuse the consumer - deliberately in my view and they are also guilty of abusing the court system by bringing cases they cannot justify. I have read some of their claims and defences and they are skating on very thin ice and have been getting away with it until recently.

And the real biggie is illegal data processing without the data subject's explicit written permission (not given in perpetuity by signing an application form) and the rather wonderful prospect of Cabot and their ilk doing a stretch or losing their CCA Licence (or preferably both).

This comes down to a very simple principle, no executed agreement, unenforceable and no data sharing.

And before I leave for the night why does Cabot have a CCA licence if they don't need one ? Total and utter bollix chaps. Keep it coming Activ we just love a great debate.

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Tbern, looking at your own case, which is cheaper, paying the compensation you asked for, or losing it in court (travel costs, solicitors costs, court fees, your other costs on top of the compensation)? Whichever they chose to do, it would surely open the floodgates for even more claims so being a profit making institution they are going for the cheapest & least damaging.

 

This is the thing...

 

Either way it is going to cost them money.

 

They do have a 3rd option though

 

Settle this claim and the amount I have indicated that my second claim will be for and I would happily sign a confidentiality agreement and never tell a soul..

 

But, if they want to play. I'll play and I am having so much fun :p

Remember if you find anything I say helpful, please click the scales

 

 

tbern123 vs Cabot

  1. Cabot again !!! Urgent Help Needed
  2. Litigation - tbern123 V Cabot Financial (Uk) Limited
  3. No more calls from Cabot... lol

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(and you can call me a cynic for I am).

 

Ok if your gonna twist my arm behind my back

 

 

Rhia, you are cynic lol

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Remember if you find anything I say helpful, please click the scales

 

 

tbern123 vs Cabot

  1. Cabot again !!! Urgent Help Needed
  2. Litigation - tbern123 V Cabot Financial (Uk) Limited
  3. No more calls from Cabot... lol

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Thanks for the B-Mag doc Tbern. That leaves me prepared for court next week with 4 aces in my hand. 1 up my sleeve another in my sock and it's my turn to deal.

He didn't come looking for trouble, but trouble came looking for him.

When the smoke clears, it just means he's reloading.

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