Cabot/hudsons claimform - old barclaycard debt

[MoonHawk]

"That does not mean that the debtor ceases to be liable to repay the indebtedness in accordance with the terms of the agreement; nor does it mean that the debtor’s failure to meet his or her obligations under the agreement should no longer be recorded by credit reference agencies. What it means is that, until the creditor provides the information, the creditor cannot enforce the debt by issuing legal proceedings or by repossessing or realising any security."

What obligations are there exactly when they don't show any agreement whatsoever?

 

Best Wishes

MoonHawk

[joghuj]

but it does also mean they commit a criminal offense if the prescribed period of 12 days +2 +1 month expires and it is not produced.

 

Can you point me to the law which quotes these timescales Sarah?

 

Thanks again to everyone for good advice.

[andrew1]

MoonHawk:

 

Well that's the big question - no agreement - no debt, your obligations are what is in the agreement - so without it no interest can be determined or anything else, you might even chance asking for all your payments back - but that might be pushing your luck a bit. They can always prove you have had use of the money from statements so one would vere on the side of caution as to how far you push.

[andrew1]

Can you point me to the law which quotes these timescales Sarah?

 

Thanks again to everyone for good advice.

 

It's in the Consumer Credit Act

 

Take a look at this thread by djdave post 47 http://www.consumeractiongroup.co.uk/forum/cabot/83796-djdave-cabot-3.html

[joghuj]

It's in the Consumer Credit Act

 

Ah, just found it section 77-79. I should be getting more familiar with the CCA by now.

[andrew1]

Just added a bit by djdave in the last post take a look a through that.

[djdave]

Good thread, that djdave one

 

If you want copies of any of my OFT documents to back up your case, just ask. Not sure how helpful they'd be, but I'm happy to scan and email

[joghuj]

Good thread, that djdave one

 

If you want copies of any of my OFT documents to back up your case, just ask. Not sure how helpful they'd be, but I'm happy to scan and email

 

If there any that you think may be relevant and you have the time to scan them, It would be most welcome.

[MoonHawk]

MoonHawk:

 

Well that's the big question - no agreement - no debt, your obligations are what is in the agreement - so without it no interest can be determined or anything else, you might even chance asking for all your payments back - but that might be pushing your luck a bit. They can always prove you have had use of the money from statements so one would vere on the side of caution as to how far you push.

 

I was not going that far. As far as my understanding is, there is still a debt but not enforeceable. But there has to be agreed terms that if breached then you have defaulted. Also to register a default, there must be a Default notice which must tell you what terms of the agreement has been breached. Again no agreement no default. As far as I can make out, they are allowed to register:

1) Start date

2) Amount Outstanding

3) Payments made

 

The can not register

1) Payments missed

2) Default

 

Best Wishes

MoonHawk

[andrew1]

I was not going that far. As far as my understanding is, there is still a debt but not enforeceable. But there has to be agreed terms that if breached then you have defaulted. Also to register a default, there must be a Default notice which must tell you what terms of the agreement has been breached. Again no agreement no default. As far as I can make out, they are allowed to register:

1) Start date

2) Amount Outstanding

3) Payments made

 

The can not register

1) Payments missed

2) Default

 

Best Wishes

MoonHawk

 

 

That sounds about right Moonhawk

 

Sarah

[Rhia]

RE statements being supplied. My take on this is statements can only show that some activity took place between two parties so can only be a small part of it., After all no matter if activity took place without a properly executed agreement under the CCA in the first place no-one can prove what you agreed to.

Also elsewhere on this forum (sorry can't recall name) one of our CAGers actually "forged" statements to produce for the judge with the judge's name on (cut and paste) to prove that a statement on it's own means nothing and could be a forgery (which it was). The Judge agreed and she won the case.

[Jeff2000]

Hi,

 

 

That would be bluetack's!

 

 

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/90012-just-been-court-cl.html

 

 

 

Jeff.

[Rhia]

Yep Jeff - that's the one. Good work. Good case. Good win. Good read.

[Edz11]

I mentioned the article written by the Cabot boss just as a method of assisting joghuj. It's quite likely that the legal people he faces in court will try to argue that the debt IS enforceable. It will be difficult for them to say it is, if the Head of the Company that has retained them has admitted it isn't...

 

A Barrister I came across in 2002 tried that approach with me. He was supposed to be an expert in Consumer Credit Law but he was technically useless and was not clued up on the proper execution of agreements. He'd even overlooked one Statutory Instrument. He got totally lost thinking the case would be a walkover and the Judge had to rescue him. He was very rude by not acknowledging me when he stormed out, red faced and very unhappy under his wig. I won at the next hearing.

 

As for costs - LIP costs (litigant in person) should be claimed in these cases, although there's been a tendency to advise people in these forums not to do so. I always have. In a case where there has been tantamount to reckless disregard of the CCA and case preparation by Cabot then I think there should be an application for costs. They approach these cases on a "it won't cost us much" basis - so they think "why not?".

 

If there was a probable negative (in addition to their own costs), they might be more wary. It may only be £9.25 an hour (hasn't risen for years), but total up the time that you (joghuj) have spent on your case and I bet you may find it's about 30 hours...

 

I think the best thing to do is that where you have completed the AQ then raise the issue of costs with the Court at the next available opportunity. Costs follow the verdict, except in very rare cases. Your stance is that you didn't originally want to claim costs as you believed that Cabot would see that their case was built on sand and that they would withdraw it before you spent lots of time on it. However, they have carried on regardless and your magananimity ceased and they should pay for the time you've spent researching your case.

[joghuj]

Just setting off for court. Thanks to everyone again who has helped over the past few months. See you all tomorrow.

[elizabeth1]

Good Luck!!!

[Jeff2000]

Good luck joghuj!!!

[tomterm8]

Good luck...

[joghuj]

Hi all,

 

Not sure if yesterday was a good outcome or not, I think it was but not entirely sure.

 

The solicitor for Cabot turned up and came over to shake my hand before we went in, decent enough chap really. He immediately requested a 'multi-track', the judge asked him several questions regarding the claim but he had little knowledge saying he only got the details of the case last night. He mumbled something about my defence appearing to be taken from some internet forum but the judge wasn't (quite rightly) interested in that opinion.

 

The judge asked whether I had been sent any agreements, I told him I had received the application form for one account and some statements. He looked through the form and read the declaration near the signature '..bound by it's terms and conditions' etc.. I said that this does not represent a properly executed agreement according to CCA 1974.

 

He asked me about my defence and I told him that alleged debts are not enforceable in court. He asked who had told me that and I said again 'consumer credit act'. He seemed a bit miffed with this answer I thought and his tone changed (although) I wasn't too endeared to him at the start. He gave me a little speech along the lines of - many people are in court chasing bank account charges etc.. - he hopes I'm not running up debt and then trying to smokescreen the court, writing a clever defence etc.. as I could end up in trouble. I didn't like this at all and none of what he said was relevant to the facts of the case but he's the judge so can say what he likes can't he?

 

Anyway, he felt better after getting that off his chest and went on to say the following - again these are paraphrased.

 

Defendant has asked for disclosure and was entitled to such, by 16 Nov disclosure by list will be produced by claimant including legible application forms and executed agreements.

Any request for inspection to be made within 14 days of service of the list.

Witness statements of evidence by 21 Dec by both sides.

Case management by 14 Jan for 30 mins. 2 days before Claimant must file before hearing no more than 400 words of proposed further directions.

Something about a trial window was mentioned but not sure about that.

 

I was a bit disappointed really, the judge seemed quite dismissive and uninterested in the CCA and, before I argued the point, would have been happy to accept the application form as proof of debt.

 

So, thoughts on a postcard please!

[andrew1]

I think Lizzy will be along, but well done, first hurdle over! They need the Agreement and it doesn't sound like they've got it so before you go back Lizzy or someone here will give you what you need to tone this right down to the brass tacts. Don't worry, you've done well in the face of a peed off Judge fed up with bank charge claims by the sounds of things. This shows you the preparation Cabot go to, the poor guy only had the papers last night for gods sake. As someone else stated, when you go back you can claim costs at £9.25 per hour for at least 30 hrs for your work, you'll win have no fears.

[joghuj]

you'll win have no fears.

 

I hope you're right, some doubt is starting to creep in.

[djdave]

No need for doubt, the only thing which can really screw you is if they suddenly find a properly executed agreement. Which, let's be honest, they'd have done long ago if such a document existed.

 

I hope you don't mind me saying this, but you sound like you were a little under-prepared. That's not a criticism by any means, going to court is a complicated process and few of us would relish it. But for the next hearing I'd suggest that you read and re-read the relavent parts of the CCA and know them off by heart to the point where you are totally confident quoting from the Act.

 

Also prepare a skeleton arguement and know it backwards, so that if Cabot start throwing up a smokescreen (law of property yadda yadda yadda) you don't let them sidetrack you or the judge.

 

I'm in court in November over a data protection issue (not with Cabot sadly) and I've got a copy of my defence along with the whole Data Protection Act printed out in the bathroom. I could bore you senseless quoting from it, but I don't want any nasty surprises which I don't know how to counter.

 

The way I see things, you're almost home and dry. But take some time to ensure you don't trip over with the finishing line in sight.

 

Anybody here will be pleased to help, either on the public forum or by PM. I don't want you to have doubts, I want you to go to court knowing - not thinking - that you can win this.

[Edz11]

djdave is right. But it does sound like the Solictor and the Judge weren't up to speed either. The Judge mentioning bank charges seems to confirm this. I'd say it still looks very good for you so far.

 

My foray into the courts started in 2001 and ended with me taking on a bewigged Barrister. The Barrister was nice and charming whilst waiting to go into court. When we got inside and took our seats he threw down a fairly thick wad of copied pages from text books to me and the Judge. I asked him "is this Goode or Bennion?". He went white and flinched and replied "Goode". (Bennion actually wrote the CCA while Goode is considered to be the next best expert on it). When I gave him the names of the two likely authors he knew he was going to be in trouble. He hadn't prepared sufficiently.

 

I'd done enough reasearch to know that these two people existed and had gone off to the University Law library to look at their views on aspects of the CCA. I'd also got access to Consumer Credit Law reports which are a goldmine of very useful information. The upshot is that I knew more than the Barrister when I took him on and I knew infinitely more than the Judge did - but you have to show that knowledge to the Judge in a subtle way. It's how it's phrased. It's best not just to know what to quote but why you should quote it and as djdave says preparation is the key. Unfortunately that means time.

 

You need to feel that when you walk away from court that you knew more about the CCA than anyone else in that room. It's a bit like exams - the more revision you do the easier they are!

 

It sounds like you've just had a directions hearing. To be honest if I were you I would "switch off" until 16 November. If the disclosure list shows a copy of the executed agreement then you'll need to switch back on at that point. If it doesn't show on the list then it's "application for the claim to be struck out" time...

[Jeff2000]

Hello all,

 

 

I have a couple of questions regarding Cabot's tactics.

 

Why do they immediately ask for multi track, and on what grounds can they do this?

 

If they do ask for multi track, what should your response be?

 

These questions have probably been asked somewhere before, so forgive me if we are going over old ground here!

 

 

 

Jeff.

[tomterm8]

Hello all,

 

 

I have a couple of questions regarding Cabot's tactics.

 

Why do they immediately ask for multi track, and on what grounds can they do this?

 

If they do ask for multi track, what should your response be?

 

These questions have probably been asked somewhere before, so forgive me if we are going over old ground here!

 

 

 

Jeff.

 

they want to scare you. Multi-track is very expensive. the grounds they can use are, in essence, that the case is very complicated or very significent.

 

However, this claim is not very difficult, and is based on law established in statute, the house of lords, and appeal court. It really comes down to:

 

1. Do they have a properly executed agreement.

 

Which, once they provide a copy of that agreement is very simple to argue in court. if you do your research, you can argue in less than 5 minutes, via a skeleton argument.

 

I would have written such a skeleton argument, if it wasn't for the cold / flu I've had.