Findings so far

[tbern123]

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.

 

No probs... as confirmed by KM, it is not only B-MAG that have interpreted things in this way

http://www.cabotfinancial.com/pdf/Increased%20Scrutiny%20of%20The%20Debt%20Sale%20Industry.pdf

 

CAB agree and they are taking it more seriously

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[tbern123]

Right I am off to bed, but on a final note in relation to Cabot and the CCA 1974.

 

As regular readers of my thread will know. Cabot have published an article quoting Parliamentary Under-Secretary of State for Trade and Industry Mr Gerry Sutcliffe and used things he has said to justify their postion

 

"

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."

It is all good and well quoting people.. But before you do that you should really check to see what else they have said...

He also said:

"This clause inserts into the 1974 Act a new type of ancillary credit business—debt administration. Businesses that administer debts on behalf of others will need a licence. Debt administration means performing duties under a consumer credit or hire agreement on behalf of the creditor or owner; or exercising or enforcing rights on behalf of the creditor or owner, not including debt collection. The clause ensures that a licence is needed to administer agreements if the person administering is not the creditor or owner."

 

He continues (boy do I like this quote):

"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"

 

To relate this to Cabot, (UK) become the owner / creditor and (Europe) become the administrator. So it is confirmed that the CCA 1974, does actually apply to them.

 

They need to stop using (Europe) to cover the failings of (UK). I have more like this for when I get to court. I have analysised their arguments and have full responses, ready and waiting.

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[tbern123]

Interesting. On a light note, are you going to complain for not getting a personal mention. He does imply one thing I thought, that being all DCA's are using the same legal framework. Not sure he's worried though.

 

 

Thanks to Andrew1

 

I am able to prove that this is also not the case as

 

Dr Roger Lucas of the Lewis Group (another DCA), speaking on behalf of the Debt Buyers and Sellers Group (remember KM is it's Chairman) has said on record:

 

Roger Lucas, of the Debt Buyers and Sellers Group, said: "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."

 

Credit Today online

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[louiboy]

Loui, we have not spoke before. Just because I have different opinions it does not prejudice what I would like to see happen. I wish you all the best next week and sincerely hope you win.

Thanks. I've been in court for over 8 months now. DCA served for 1K. Faced down 2 large companies, 1 law firm and 2 sets of local agents. This may be the final hearing. The OC has offered to abandon the case. The expense/risk/exposure was becoming to strong. Indicated they want to cut their losses and get out of Dodge.

 

I'm all for different opinions. They generate thought, both sides need to be examined before any conclusion is reached.

 

I think my rights under the CCA are stronger than the Assignees rights under the LOP. Any credit agreement is bound by the statute of the CCA. Just because you can say you own/purchased the debt does not automatically remove my rights.

 

However if I could use a LOP argument/defence/attack to my advantage. I wouldn't hesitate.

 

Everyone here needs to make their own decisions based on the information available and research. Our needs are similar yet different.

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[Seahorse]

Aktive, with your obvious talent for obfuscation and befuddlement, perhaps you should consider a career in the debt collection industry yourself. You appear to be doing a better job of it than old WW himself.

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[tbern123]

In relation to Banks and Debt Collection Agencies, a Deed of Assignment is usally a one page document.

 

Here is an example of a very basic Deed of Assignment

 

 

insert name

and address of

publisher

 

 

 

 

DEED OF ASSIGNMENT OF DEBT

 

 

In consideration of the sum of (insert name pounds sterling value in numbers and words)

 

 

Received from (insert name of the Publisher),

 

 

I hereby assign to (insert name of the Publisher)

all claims whatsoever which I have against (insert name and address of the Advertiser)

 

 

in respect of his failure to supply me either with the goods for which I have paid in advance or with a refund in respect of those goods. Furthermore, I hereby confirm that I have received no settlement, full or partial, from any other source and have no claim outstanding with any other body as far as this particular transaction is concerned.

 

 

 

 

 

 

 

 

Dated the …………………………………….. day of ………………………………………………………….. 20 ………..

 

 

 

 

Signed

 

 

 

 

Name in block capitals

 

 

 

 

 

 

Address

 

 

 

 

I have to strongly disagree with your point in relation to:

 

"Any true “assignment” in the contract will only be of an Equitable nature."

 

If this was the case, DCA's epecially Cabot would not be able to start legal proceedings in their own name only. Remember the main difference between an absolute assignment and a Equitable assignment is in, who's name legal proceedings can be started

 

Furthermore...

 

"The “rights & duties” in their true meaning are and always have been with the creditor, and the creditor is the party who signed the CCA."

 

The CCA 1974 is very clear on this matter, the creditor is NOT only the party that signed the CCA.

 

I have already posted in this thread the wording of s189.

 

Nothing against you personally Aktiv, but I hope people reading this thread are not put off, standing up for themselves.

 

The law is far from Black and white and is open to interpretation. People have more rights then they realise.

 

Reclaim your rights guys, don't let DCA's walk all over you.

 

For the record, CABOT (EUROPE) are acting as collection agents on behalf of CABOT (UK). CABOT (UK) are the owner / creditor and as I have previously confirmed, the CCA does apply to them.

 

Aktiv, I am will agree to disagree with you on this topic and I will not post in this particular thread again.

 

No offence intended

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[elizabeth1]

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.

CCA - production of application form

 

This proves there is some paperwork, ironically the very first piece, are the chances of the actual CCA (a slightly later document) being there really nil? I guess it as a little to do with bank charges. Remember this request goes to trained monkeys with little understanding and via several people after, are these the ones who will make very convenient scapegoats later."

AKTIV

I don't know how I missed this thread - But I do have a question.

 

So if this company "really do" have all the "paperwork" CCA's DOA's etc. - then why are they wasting time and valuable resources in being struck out of court? There are cases where they were clearly asked to produce this stuff and didn't - it cost them money to do this obviously.

Surely if they are trying to bring cases to court - it's good housekeeping to have all the relevant docs to hand prior to starting procedings - this way if they get the "old rogue customer" who dares to question their legitimate papers - they could readily comply and push their claims through court with ease? I don't understand why if it's all running so "tickety boo" then are they wasting the time of the so claimed "Defendants", Solicitors and the Courts time within the court system?

Surely it's an abuse of the Court system to be trying to bring such cases to prior to having the relevant papers to support such cases?

Moreover, if this paperwork really existed - then why be "struck out of court" ? there are cases this company have tried to bring to court that were struck out because they never pre empted people would know their rights and ask questions etc.. So how did this happen?

I get the distinct feeling that there is an element of "winging it" going on - where they really take a chance that people will be scared rigid by the "Court Claim" when it drops through the letter box !!! Let's face it - we know this company are doing "Land Registry" searches on people to distinguish whether they be a "home owner" or tenant - from that sight of the LR - we can place an educated guess as to who has some Equity in their homes etc.. and who might be scared enough to go take a quicky loan or remortgage to pay off the Court Claim to avoid the CCJ ? This company are clearly "cherry picking" who they try pick on with their claims?

I am not convinced things are as "in order" as we are being fooled into believing at all - surely this company doesn't waste resources like this if they have the DOCS to come forward with !!!

[make them aktiv runners]

The best advice I would give some-one, is to look around the forums, take in as much information as possible, ask questions, trust no-one, then check everything for accuracy to independent sources. If at all unsure, see CAB or debt solicitor (CLAS website has a legal aid calculator).

 

I personally think the term “rogue customers” is totally inappropriate for anyone in Ken’s position.

 

Finally on CCA issue I am a little concerned with the various different versions that keep being passed around for use. Unless the information provided by the DCA (not newbie who has often guessed for themselves) states clearly what type of credit they are claiming, I think the letter should always state 77, 78 & 79.

[snlc]

I have read these on your thread before. I can see what you are saying. Just a couple of things to think about from a different angle. Cabot have said they are debt administrators but that could well change before the legislation comes into effect. Roger's comments can also be construed as saying the original creditor will not let us have what we want.

 

I am not trying to pull your claim apart, far from it, if I add just a slightly different perspective it gives you the opportunity to cover it. I, like everyone else on here want to see you rewarded with total victory.

 

 

Sorry for butting in on this thread, but having read it through, the arguments are intriguing by what looks to be 2 sides. Aktiv, if I were to guess I'd say you work in the debt industry and the other posters look like the people owing the money and learning as they go along. It's healthy to read both angles if that is the situation. I couldn't care either way, but there's some interesting stuff there and a lot of passion. I'd hate to be Cabot that's for sure with these guys against them - hunger? I wish my sales team were as hungry!

 

Anyway, my point: and this is more for Aktiv but I'd be happy on the opinions of some of these other harrassers.....

 

In your responses Aktiv on a couple of occasions in this thread you have stated that Cabot ( and I use them as the example you are all using but they ( dca's ) probably are all the same), act as an 'Administrator' of debt. Now, from reading some of the other Cabot threads where the posters have obviously been doing one hell of a lot of digging and research ( wish I had the time) Cabot UK 'buy' the debt then pass it to the other company Cabet Finance (Europe) Ltd who 'administer' the debt. Okay, forget the Data Protection Act issues for a second, but 'BUY' the debt to me means passes a consideration to the bank (or whoever) for that debt which someone said elswhere is about 10% of the face value. That in itself is okay its a business deal, but if you buy something you can't then surely claim " well I bought it but it isn't really mine - I just look after it". Any contract where a consideration is given then the whole thing passes from one to another. ie: you pays your money and walk off with the goods - its called a 'sale'.

 

Another time you said "the dca might get a % for collecting the money" - that doesn't tie in with what happens if a debt is bought either. If the bank asks a dca to chase for a debt and they pay a commission to collect it then fair enough -( we get those flyers all the time from Debt collection agents offering to collect for a %), but they are not buying the debt in that case. Just like the solicitors fees you quote.

Now I don't want to get into any technical fight with any of you because I don't know a fraction of what you guys do, but as a trader myself in a small stationery business I buy and sell stuff all the time and you synopsis doesn't make commercial savvy from my experience.

 

In the nicest possible way can you explain EXACTLY what you mean given my take on it all? Thank you.

Sorry to hijack.

 

What might be useful to see is an actual trade/sales contract/agreement between the bank and the DCA. That would settle it once and for all.

[Rhia]

Obviously the Wilson case is easy to find. How many of these court cases are also held independently and accessible to the public eg BAILII or CAB? Do you personally know the person who gave you that information? Is the information being intentionally fed from within the industry? What are the full reasons for the case being struck out (not necessarily the same as reported)?

 

Activ I know this case Elizabeth is referring to and it was due to an improperly executed agreement. There are a number of examples of such cases being struck out on CAG. Some are Cabot, some are other DCAs. There is a very memorable recent case in Harrogate which got struck out. This did involve Cabot and the details are almost farcical. I'll paste it in here for your reference if I can find it and any others I come across. I do hope you are going to keep posting. It all makes for lively debate.

I knwo I chewed up a bit a couple of posts ago but it's only because I cannot believe the breathtaking way Cabot ride roughshod over rights. However it's probably becasue a supine public has allowed them...until now that is.

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[CabotFG]

 

Obviously the Wilson case is easy to find. How many of these court cases are also held independently and accessible to the public eg BAILII or CAB? Do you personally know the person who gave you that information? Is the information being intentionally fed from within the industry? What are the full reasons for the case being struck out (not necessarily the same as reported)? Are Cabot (or whoever) testing to find a “friendly” court (there are allegations on this site about another DCA and a certain part of the country)? Following on from the latter question, are they targeting areas where their potential caseload is high? I agree your winging it theory is another option.

 

Thought some of the readers of this thread, may find this case interesting. This is the one, that DCA's really hate..

Dimond v Lovell [1999] EWCA Civ 1311 (29 April 1999)

[CabotFG]

Yes there may well be a deed of assignment but if no payment has been made upfront and there is instead a charge then it is not an absolute assignment. Poor Ken must be getting rather fed up of the Cabot Fan Club not understanding why none of the Cabot companies are the creditor after all he does tell everyone exactly where to look! Bet he wonders why people love to write to him instead of exercising their right to deal with the actual creditor.?

 

Lets look at the Cabot Fan Club’s logic in very simple terms:

Bank X create a new company DCA Y and gives it money for all resources (buildings, equipment etc).

Contract 1 - Y has no money to buy anything with so Bank X give them some. Yes X pays X for the sale. Note, this must be done for an absolute deed of assignment.

X writes off the debt and recover a small portion of it by payng less tax. Result X (who lent the money originally) make a loss.

Y keeps any money they make. Result Y makes a profit.

 

Lets look at my logic in the same very simple terms:

X creates a new company Y and gives it money for all resources.

Contract 1 – X offer Y 20% return of any income they receive for a portfolio of debt, and retain 80% for themselves. Note, no money is paid upfront (absolute deed of assignment fails due to there being a charge).

X receives 80% of anything Y recovers and writes off the remaining 20%. Result X will have made a small loss against the interest element but not the capital originally lent.

Y make a profit.

 

Right, both methods work fine if X effectively own the lot as you could say it is all one big company. What happens if sold to a totally unrelated company Z – a slight inbalance X continues to make a loss while Y (now owned by Z) profit out of it. Would it be more logical for X to chase their own debts thus keeping any profit to themselves, or, alternatively did they sell the right business?

 

This I am afraid is going to be my last posting on this subject as I seriously do think I am hitting my head against a brick wall.

 

PS. If anyone can work it out and I did work in the industry, do you not think my job could have become rather insecure by now?

 

There seems to be a great deal of misunderstanding in this thread.

 

To clarify, I will use Cabot as an example...

 

When they "purchase" a debt.. They buy it. They do pay the OC's money for the debt. Any money they reclaim, in relation to the debt is not returned to the OC.

 

If a DCA is unable to reclaim funds, due to lack of documentation etc.. They have an agreement with OC's that they can sell these back to them.

 

I appreciate that this concept may be hard for some to accept, but this is the way the industry operates. tbern, has already posted that he has proof of this in relation to Cabot...

 

tbern please , to stop this from going on can you please post your proof.

 

I think you will find that both Debt_Mountain and tbern have both already started legal action against Cabot.

[CabotFG]

 

What does “purchase” mean. To you and me it does indeed been buy, but what does the dictionary actually say. Lets examine in it in more detail:

 

 

 

1. To obtain in exchange for money or its equivalent; buy.

2. To acquire by effort; earn.

3. To move or hold with a mechanical device, such as a lever or wrench.

n.

1.

a. The act or an instance of buying.

b. Something bought.

c. Acquisition through the payment of money or its equivalent.

2. A grip applied manually or mechanically to move something or prevent it from slipping.

3. A device, such as a tackle or lever, used to obtain mechanical advantage.

4. A position, as of a lever or one's feet, affording means to move or secure a weight.

5.

a. A means of increasing power or influence.

b. An advantage that is used in exerting one's power.

 

I have used this dictionary but then any would do.

http://sb.thefreedictionary.com/purchase

 

So, after all that, the dictionary does not say that a sum of money must be paid before the “goods” are delivered. Neither does it say that a sum of money cannot be paid at a much later date.

 

I am off to McDonald's to "purchase" a Big Mac. I will tell them that I will pay them next week.

 

Sarcastic example I know, but it clearly demonstrates the flaws in your argument.

 

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[CabotFG]

Yes there may well be a deed of assignment but if no payment has been made upfront and there is instead a charge then it is not an absolute assignment. Poor Ken must be getting rather fed up of the Cabot Fan Club not understanding why none of the Cabot companies are the creditor after all he does tell everyone exactly where to look! Bet he wonders why people love to write to him instead of exercising their right to deal with the actual creditor.

 

 

To quote Mr Maynard:

 

"Most purchasers are flexible in their approach to buying debt and will construct a transaction to suit the exact requirements of the seller, based upon one of two types of purchasing model. The first is outright debt purchase, where the client is seeking immediate value and therefore the agreed purchase price is paid up front at the point of sale."

He also said:

 

"The fundamental benefits of debt sale for lenders are that they can substantially reduce the number of accounts they need to actively manage and they gain the certainty and confidence of receiving an up-front cash payment."

In summary, Ken has freely admitted that payment is made to purchase, UPFRONT at the POINT of SALE.

This means that the assignment must be absolute.

[CabotFG]

FG, why do you not post the proof yourself. My only posting was to discover why Cabot state "rights but not the duties"and "we are not the creditor"

 

Being as you know all the answers, perhaps you would like to enlighten everyone else......

 

Mig Mac is a poor example.

 

Sorry, I have no proof

 

I said Big Mac was a poor example but you have to agree, I made my point

[CabotFG]

 

Under-Secretary of State for Trade and Industry Mr Gerry Sutcliffe

 

 

He continues (boy do I like this quote):

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

 

I have no proof, but I am sure that the Under-Secretary of State for Tade and Industry, knows what he is talking about.