Cabot, your 30 days are up!

[elizabeth1]

...to forget about it!

 

I'd almost forgotten about this, in the heat of other battles, but this week, I received a letter from Cabot's in-house solicitor, Morgan Solicitors, saying they are now administering the account.

 

It seems I must contact them immediately to prevent litigation from commencing.

 

To recap: I CCA'd Cabot in March '07, for a debt they'd bought off Bank of Scotland. They failed to produce a credit agreement. I hadn't received a Default Notice or Notice of Assignment either.

 

They issued a court claim. I submitted a defence, and that was the last I heard. Until now.

 

So, what to do? Write to Morgan and remind them of the state of play? Will the claim still stand at court? I never applied for it to be struck out (couldn't afford the £75!).

 

This appears to be Cabots pattern - geez they are numpties!!

 

I know of others where Cabots file a claim using Deanos "online claims" through MCOL Northampton place. Once defendant files their defence to challenge Cabots case is struck out/stayed.

 

THEN Cabots write threatening legal actions - like they have a case if first case is struck out??

 

Just let them find out for themselves if they file and waste their time and money - don't remind them of nothing.

 

If they are daft enough to file again - just defend showing Judge the previous case as references - let judge see what a bunch of twits they are.

 

I reckon Cabots are just pretty lousy at what they do and are clutching at straws in an attempt to bully money off people.

[andrew1]

 

I reckon Cabots are just pretty lousy at what they do and are clutching at straws in an attempt to bully money off people.

 

Now whatever gave you that impression? :D

[creditcardmug]

I decided to keep schtum over it. Heard nothing else yet.

 

I double checked the file - they never produced a sausage in response to me s78 request in 2007. The claim was stayed in Sept 2007 due to their failure to proceed. I guess they could ask a judge to lift the stay? How long does a stayed claim remain active? Is there a point at which it's struck off?

 

Anyways, I ain't gonna remind them of what they haven't done or what they ought to do.

 

You could file an application to have their case struck out, it seems thats the consensus on here nowadays, may or may not open a can of worms, your choice.

[Yog sothoth]

Just when I'd almost forgotten about Cabot!

Cabot were chasing me for an alleged £13K debt they said I owed them, which was assigned to them by Bank of Scotland. BoS did provide a letter of assignment.

I CCA'd Cabot in March 2007 after they started to get really nasty, phoning neighbours up etc (I have their own phone logs detailing these calls!).

They responded, in August 2007, by issuing a Court Claim. The POC were as follows:

The Claimant is part of the Cabot Financial Group and has purchased the debt(s) scheduled below. Despite requests for payment the defendant has failed to pay the sum of £12,000 in relation to the Defendant's bank of Scotland Loan account number xxxx, And the Claimant claims: the sum of £13,000 together with interest under section 69 of the County Court Act 1984; and costs.

I couldn't understand why they were claiming £13K when the debt was for £12K, with no explanation of what the extra's were.

I hadn't received a default notice from Cabot, although I had previously had one from BoS. Neither had Cabot responded to my CCA request.

Anyway I filed a defence. They failed to respond by the due date and the case was stayed.

All was silent until May this year when I had a letter from Morgan Solicitors, saying Cabot had transferred the debt to them.

Then, in October, I had another letter from Morgan's, enclosing a copy of the Credit Agreement, signed and with the T&C page from the reverse of the agreement, all fully legible. Also, statements from 2002 to 2006, copy of Notice of Assignment and case history, including aforementioned phone call listings by them to my to neighbours etc.

I'm getting married on Friday this week so have been very busy and hadn't responded to this. However, I've now received an Allocation Questionnaire and they have applied for the stay to be lifted.

The Order says that no disclosure is required and no pre-trial checklist either.

It says I could apply to have it set aside, varied or stayed but the wedding has swallowed all my money so I couldn't do it and the deadline for that has passed now.

Thing is, now they've produced all these documents, my defence is largely irrelevant. To defend against it properly, I'd need a completely new defence! Am I allowed to do this? It says nothing in the Order.

Not sure what's the best way. I really don't want to go to court as my partner got torn to shreds earlier this year by Lloyds TSB and we ended up with a £10K charge on the house. I really need to avoid another.

I'm debating making an offer of payment.

My alternatives, it seems, are going to court and making a big deal about getting no default notice from Cabot. I don't know if that would be strong enough, given the credit agreement. And they can always just issue a default notice anyway, can't they?

Last time I sat in court, the judge made his decision 'on balance of probability', regardless of faults with the credit agreement. I'm worried he'll regard the lack of a default notice as a side issue and find in their favour. £13K with costs added. Scary. Another charge on the house and maybe Cabot will push for more, like Order for Sale.

Just what I need 2 days before my wedding.

Deadline is Sunday by the way, for return of the AQ.

[spamheed]

If nothing else this supports the idea of acting whilst the iron is hot, having their last claim struck out would have saved all of this.

 

From what you say, you have two options, negotiate a settlement with them, or fight it out, showing their abuse of process for what it is/was

[Sagittarius]

Hang about ..where's the actual document of Assignment ?

 

Check this out :

 

25. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

26. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

[Sagittarius]

It seems to me you need to demand disclosure from the Claimant of the DEED or Document of Assignment (different from the Notice of Assignment) using CPR 18 or CPR 31.14

 

Here's a good snippet in relation to this, perhaps you could edit and include it in your Draft Order for Directions which you include when you complete your AQ.:-

 

Document of Assignment Issues

 

1 The claimant alleged that it acquired, by a deed or document of assignment, a proprietary interest in a debt originally owned by the CREDITOR.

 

2 The requirements in the law for the perfection of such an assignment, sufficient to create a cause of action between the claimant and myself, are set out clearly in the law of property act 1925 s136.

 

Legal assignments of things in action

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

3 On [Date], I sent a letter requesting the inspection of the document or deed of assignment in relation to this claim. the claimant has refused me sight of the document and, consequently, implied that it was unwilling to plead this document.

 

4. In the eventuality that the claimant is unwilling to plead the assignment document, de facto the claimant has no right of action whatsoever in this case, and its case should be struck out as an abuse of process of the court.

[Sagittarius]

Check this out - excellent thread re a former lawyer taking on Cabot over suspect faulty Deed of Assignment :-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/213040-martin-cabot-financial-4.html#post2383496

 

"They have provided a D of A but with NO account numbers to link my account to their deed. Its worthless as evidence of assignment of my account! "

[Yog sothoth]

Thanks Sagittarius. Once the small matter of my wedding is out the way, I'll look deeper into this. In the meantime, I'll get my AQ in.

 

Can they still get enforcement if they haven't issued a Default Notice?

[Yog sothoth]

Bank of Scotland DID send me notice of assignment, dated and including full details of the account. Unless I'm missing something, won't that fulfil the obligations?

 

Anyhow, I'm filling in the AQ now. In the 'Directions' part, is it appropriate to request that Cabot produce a valid Default Notice and Deed of Assignment? I've not done one of these before so not entirely sure how to proceed here.

Edited December 3, 2009 by Yog sothoth

[themagician]

I made a CCA request to Cabot Financial (Europe) Ltd back in March. The 12+30 deadlines have now long gone, so I need to know what the next step is. I believe I have to complain to the OFT, is that correct?

 

Cabot did acknowledge receipt of my request and asked for "my understanding" as it may take up to 8 weeks to obtain the requested data from Bank of Scotland. This was back in April.

 

Since then they have requested that I contact them several times. I just ignored the requests. The last letter was on 18th April. Nothing since then.

its 12+ 2 days only!!!!

[themagician]

OK, I'll look at doing that as soon as I can afford to. Cheers.

you can still apply even if you cannot afford it .

[GAVBU28]

Yog sothoth - Reading with interest, hope everythng goes well for you, think I maybe in the same boat sooner rather than later.

[Yog sothoth]

you can still apply even if you cannot afford it .

Is it not too late now?

[shakespeare62]

Anyhow, I'm filling in the AQ now. In the 'Directions' part, is it appropriate to request that Cabot produce a valid Default Notice and Deed of Assignment? I've not done one of these before so not entirely sure how to proceed here.

 

A good example on how to fill out an AQ is here

[shakespeare62]

Bank of Scotland DID send me notice of assignment, dated and including full details of the account. Unless I'm missing something, won't that fulfil the obligations?

 

You think BoS sent you a notice. It was probably your DCA printing on their letterheads.

 

No. You want to see the Deed or Document of Assignment which is privvy between the original creditor and the new owner. For example, if the amounts quoted in the Document of Assignment and the Notice of Assignment are different - there is case law from the House of Lords which indicates this renders the assignment invalid. Alternatively if dates for the assignment are mentioned on the NoA and the DoA and these dates are different then it can also render the assignment invalid.

[Yog sothoth]

Update: The court wrote to me to say the case is stayed until 1st February to allow both parties to reach an agreement.

 

I am somewhat torn, I have to say. They have produced what seems to be a copy of the original Credit Agreement (or application form), signed and dated by me, and the T&C off the back.

 

What they haven't come up with, is a Deed of assignment, though I have a letter apparently from the original creditor and one from Cabot, stating the terms of the assignment.

 

Cabot have at no time sent me a Default Notice, although the OC did. I know a Default notice is essential, but is it a defence that Cabot didn't send one, if the OC did so?

[veryweary]

Update:

Cabot have at no time sent me a Default Notice, although the OC did. I know a Default notice is essential, but is it a defence that Cabot didn't send one, if the OC did so?

 

As far as I am aware, your account should only have been defaulted by the original creditor prior to sale of account to Cabot. Cabot would not issue a second default notice, and could be in trouble if they did.

 

Have you checked that the DN issued by BOS is legally correct ie dates and format?

[GAVBU28]

Update: The court wrote to me to say the case is stayed until 1st February to allow both parties to reach an agreement.

 

I am somewhat torn, I have to say. They have produced what seems to be a copy of the original Credit Agreement (or application form), signed and dated by me, and the T&C off the back.

 

What they haven't come up with, is a Deed of assignment, though I have a letter apparently from the original creditor and one from Cabot, stating the terms of the assignment.

 

Cabot have at no time sent me a Default Notice, although the OC did. I know a Default notice is essential, but is it a defence that Cabot didn't send one, if the OC did so?

 

I SAR’d cabot recently and they advised me that they have no obligation to send me a default notice, that’s the original creditors role.

[Yog sothoth]

The BOS Default Notice is correct as far as I can tell. There are certainly no glaring errors or discrepancies.

 

Ah well, you win some, you lose some. I imagine that even if I make an offer to cabot they'll turn it down as derisory, but what the heck. My choices are limited now.

[Yog sothoth]

Bit the bullet and sent them an offer of monthly payment.

[Yog sothoth]

Hmmm...not heard back from them.

 

Should I notify the court that I've tried to settle with them?

[Pinky69]

It's a pity you hadn't posted up BOS's Default Notice so we could have a look. You may have been able to claim rescission. Not many banks get DNs right. It would have been helpful to see the agreement too. I wouldn't have offered Cabot anything without first telling them you would be putting them to strict proof of a lawful Deed of Assignment in court and seeing what their response was.

[Yog sothoth]

I'm fearful of going to court even if the DN did have something amiss. My partner went to court against LTSB last year and despite all kinds of technical holes in their case (ie. the "CA" was an almost illegible copy of an application form, with illegible T&C and nothing to link the two - the bank relied on a print off of the T&C "for accounts at that time" which the judge allowed; no record of who or how or when the copies were made and other what we thought were significant errors), the judge stated (after a fortnight's thinking it over) that "on balance of probability" the account was genuine and our defence points were side issues.

 

Unless I have a watwertight case, there's no way I'd go through that again. The claimant's barristers and the judges are all part of the same club. They seem to regard us as the miscreants, trying to wiggle out of our debts, and the errors and mistakes of the creditors are 'mere' technicalities.

 

Where the judge, despite a creditor being in breach of the law, can make his judgement 'on balance of probability', what hope is there?

 

The documents produced by cabot are far clearer and of better quality than those produced in the above case by LTSB by the way.

 

In a nutshell, I think the stuffing's been knocked out of me.

[Pinky69]

The documents may be clearer but an unlawful DN is an unlawful DN and without one they cannot enforce the debt.

 

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but gives rise to a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

 

However, I feel you are right that you have had the stuffing knocked out of you from what you say so I don't think even the law will make any difference to you.