Another Cabot Court Case

[elizabeth1]

Today I went to court with my husband to deal with a case against Cabot Financial (UK) Ltd and Cabot Financial (Europe) Ltd.

 

These companies had previously tried to take my husband to court over two Credit Card accounts in December last year. We didn't recognise the companies involved so defended their claim by asking for the CCA's and SAR's for the accounts involved.

 

There were no CCA's and the SAR consisted of mainly generic letters with a recent dates on - so could have been for anybody anywhere? As a result of this Cabots were struck out of court - Judge had ordered Cabots to provide the necessary papers to prove their claim they failed to do so.

 

It was then that months were spent writing letters trying to get to the bottom of what Cabots were doing. It seemed that our friends in Cabot wouldn't show anything more than an Application Form to represent the CCA. WW wrote and told us that "we are not going to chase you for these accounts/debts - we are just going to keep writing crap to the CRA's and adding interest to these accounts". Naturally - that isn't a charming prospect is it? SO WE FILED A COURT CLAIM AGAINST THEM

 

In our Court Claim against the two Cabot companies (remember one buys the debt - the other processes the paperwork) we asked for ALL THE PAPERWORK.

 

Cabots filed a Defence using their solicitors HODSONS who basically filled our letterbox with the same old papers - totally irrelevant generic crap.

 

TODAY we had the AQ HEARING Cabots/Hodsons sent in a Local Locum solicitor lady - she was very nice. She was briefed by her clients to push to fast track hearings so that Cabots could push to get costs off us etc.. Now baring in mind that this claim wasn't about money - it was about PAPERWORK - the lady kept twisting and wriggling and trying her best to complicate matters to gain fast track in court.

 

Everytime it came to Hubbies turn to speak she interupted and kept bringing other issues which were nothing to do with the claim into the mix. The poor judge was looking confused and worried and the amount of papers in the folders to date = baffling!! Well I must say I got fed up and was there to help my hubby - two heads being better than one and all that. I then decided it was time to tell judge what we REALLY wanted.

 

A SINGLE DOCUMENT REPRESENTING EACH OF THE ACCOUNTS IN QUESTION IN THE FORM OF AN ENFORCEABLE CCA WITH THE CORRECT TERMS AND CONDITIONS TO REPRESENT THE CORRECT TIME OF ISSUE OF THE CARDS INVOLVED IN THE CASE.

 

It was simple - the Hodsons person screwed faces at the skeleton argument I presented judge with and she made several attempts to complicat matters by throwing other documents across to Judge like sale agreements etc.. she did earn jher dosh by trying really - the point I made was to keep the Claim simple at this stage and show Judge that the CCA was the foundation document the other papers didn't matter until a point where the CCA was proved to be correct and fully enforceable.

 

Fortunately the argument used was clear and simple and Judge issued an Order to Cabots to provide the relevant CCA's with all of the correct terms and condition as per an enforceable agreement. Cabots have 8 weeks to do this in or be struck out of court again. :D

Now let's see how they manage to complicate that order!!!

 

I post below the skeleton argument used to get this result today.

[elizabeth1]

Skeleton Argument

For the Attention of Case Manager

 

 

 

In the Matter of

Claimant V's

Defendants (1) Cabot Financial (Europe) Ltd

(2) Cabot Financial (UK) Ltd

 

CLAIM NUMBER -

 

1. This argument is intended to elucidate and clarify the issues that appear to the defendant to be hampering the speedy and equitable resolution of this court case, in order to expedite the directions hearing and management of the case. It is intended to be read in conjunction with the defence I have already submitted.

 

BACKGROUND TO THE CASE AND PREVIOUS LEGAL ACTION

2. The defendant brought a case against me on 4th December 2006, alleging that I had defaulted on two credit agreements. Case xxxxxxx issued at Rugby County Court and later transferred to xxxxx County Court at my request for a local Hearing. 3. After several disclosure requests, and a court order, the defendant failed to provide any enforceable credit agreement and the case was struck out on xxx xxx 2007.

4. Despite the fact that the court has already struck out the claims, the defendant continues to report inaccurate data about myself, despite a section 10 notice to cease and desist such processing, and has indicated its intention to continue updating such information(exhibit 1)

 

5. Subsequently, the defendant has provided within their Defence two documents it claims are the executed credit agreement (see attached, Exhibits 2 and 3). I respectfully submit that the defendant is bound to these claims by virtue of s172 of the Consumer Credit Act 1974.

6. It is my belief that these credit agreements are unexecuted, and that the court should use its powers under section 141 of the consumer credit act to determine the rights of the parties.

7. Further, it is my contention that this is unwarranted, and that by registering and updating default information on an unexecuted agreement, the defendant is attempting to bypass the will of parliament.

UNEXECUTED CREDIT AGREEMENTS

8. I refer in this section to both alleged agreements, exhibits 2 and 3.

 

9. Under s59(1) it appears that such agreements are void. It is therefore denied that these alleged credit agreements are valid for the purposes of enforcement by the courts.

 

10. In respect of that which is denied, if the court should decide that these are not void by virtue of s59(1) :

 

11. It is respectfully submitted that these agreements are improperly executed because they do are not in the prescribed format set out in under The Consumer Credit (Agreements) Regulations 1983. Each agreement was made before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

 

12. Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since these documents do not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61(1)(a) and s127(3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

13. The claimant requests that the court use its powers under section 141 of the consumer credit act to determine the rights of the parties.

 

Data Protection Issues

14. It is the contention of the claimant thatthe defendant has unlawfully processed data, in so far as it is updating data held by third party credit reference agencies, and for the reasons given in this section

 

15. Thedefendantat no pointnotified me that it was processing my data; this is in contravention of the data protection principals of the data protection act 1998 ("the act") schedule 1, part 2, s2 & s3.

 

16. The defendant, knowing that no legal obligation exists between the defendant and I, and by continuing to report the account as in arrears is failing in its duty to process data accurately, as required under schedule 1, part 2, s 7 of the act.

17. Having entered no lawful contract with the defendant, or the original creditor, (the alleged agreements having always been invalid as improperly executed) the defendant is now, and has always, been processing my personal data unlawfully with no legitimate interest in contravention of schedule 1, part 2, s9 of the act.

18. The defendant admitted, in a letter dated, 28 march , that it considers the amount outstanding "irrecoverable"; it is my contention that, knowing this to be the case (that is, that there was no basis in law to attempt to recover any money under the agreement), it is against both the spirit and letter of the law that a creditor should be able to continue to process data, and distribute that data including allegations of bad faith (that is, a default, or arrears on a credit agreement) rendered unenforceable by law.

19. It is further my contention that by updating the information at the credit agency, the defendant is continuing to process this data. The information at the credit reference agency expressly states that the defendant is the creditor, and having purchased all rights and duties under the agreement it is the data controller for the purpose of the data protection act 1998.

20. It is respectfully submitted that, a debt rendered unenforceable in the courts by the express will of parliament should not be enforced by any means whatsoever, and that the protections rendered by virtue of the consumer credit act should protect the claimant against unfounded allegations of default or arrears made by the defendant. The attention of the court is drawn to Wilson v Robertsons (London) Ltd [2005] EWHC 1425 (Ch) thus:

 

'What the 1974 Act does is put in place a bright line over which the parties, and in particular the lender, must not step…’

 

21. Further, it is the contention those at all relevant times this credit agreement was unexecuted, and that therefore there is not, and has never been, any lawful obligation to repay monies to the defendant, and that as a consequence any allegations that such an obligation exists are unfounded.

REQUEST FOR COURT ORDER

22. In view of this skeleton argument, I respectfully request the court determine the rights of parties to the credit agreement.

23. Further, I respectfully request pursuant to section 14 of the act, that the court order, the defendant cease and desist processing my personal data, that it requires any third party the defendant has disclosed my data to destroy this data.

[andrew1]

Brilliant Lizzy. Take note Mr Maynard - retirement might seem a remarkably good idea - We told you, look over your shoulder at all times, you never know where or when the Cabot Fan Club will appear.

[renegotiation]

Go Lizzy go. Subscribing to the CAT BO fan club. Any merchandise for sale?

[tomterm8]

Hm, you can tell that I'm more used to writing skeleton defences than claims, see paragraph 1:)

 

I guess you could say I've been helping Lizy out a little, although I've only been on the case for a couple of days. she had written a good POC, and had followed all the proper procedures. So, so far it's been a breeze of a case.

 

IMHO, Cabot are in between a rock and a hard place. If they don't provide an executed credit agreement for both accounts, they will lose the case. if they do, there is nothing whatsoever stopping you launching a criminal prosecution against them, since they've failed to abide by the requirements of the consumer credit act (in regard to disclosing data on request) . I believe such a prosecution would be successful, and would seriously call into question their fitness as a credit license holder.

[debt_mountain]

Excellent work Elizabeth1, they had this coming. Only 8 weeks to go.

 

and would seriously call into question their fitness as a credit license holder.

oh dear, oh dear, oh dear. What a shame that would be!!!

 

I cannot beleive how all these financial firms get to keep their licences, the banks for "admitting" by way of refunding charges, Mortgage Companies for taking a bigger exit fee than they were contractually entitled to do so and the good old DCA not giving jack about any act. Why are they allowed to just pay a "guesture" of goodwill and noone (government body) holds them to account????

[Curlyben]

Way to go Lizzie.

Kick em where it hurts

[miss muppet]

Thanks Lizzie, this is a really imformative and uplifting thread, I think you are being modest because it must have been a pretty daunting experience, taking note for when this might happen to us - Go girl, can't wait to hear the outcome:D

[Sailor21]

Great one lizzy!!!!! You have been a big help to me with my case.

[andrew1]

Well done everyone. We in the CABOT FAN CLUB need you all to tell us how you are progressing with your legal claims against Cabot. You will be far more successful if you prepare thoroughly your case and pass it by one of us before you file. Lizzy is no different from anyone of us out here. Normal, Law abiding (I think ) and had a rough time of things with these buggers. Consolidating information, sharing experiences and pulling together is bringing Cabot to their knees - and they don't like it. But, hey, tough, should have done it properly in the first place.

[hsbcfiddled]

Subscribing.

Love the skeleton argument.

[elizabeth1]

Tom Term - a small typo? not a problem really - thank you so much for your help. Thank you to everyone else here too CFC people especially so glad I am here.

 

Tom - yesterday Judge was really keen that the basics of this claim be shown etc.. he was in complete agreement that all of the rest was not relevant until the point where the CCA is in place. So this is really a tough call now for Cabot and any other company where this document is questionable - these companies need to realsie that they DO HAVE TO HAVE THE BASICS RIGHT.

 

This will be a really interesting case and really will bring things back to basics if it wins.

 

The important issues that I want to stress to people about cases like this is - keep it simple - and don't let the other side bully and scare. Yesterday the solicitor involved for Cabot was pushing so hard for Fast Track and kept going on about costs involved etc.. and trying to cloud issues with other papers etc.. it was scary for a moment or two. At one point I really feared this solicitor was going to get her own way as we couldn't get a word in edgeways. (she was good and did her job for the opposition really well) It was even mentioned how much this case has cost the Defendants (they have more money than sense really) Cabots would like hubby to pay these costs etc..

 

We just needed to remember the basic basis of our arguments and keep bringing it back to those points. The Judges are there to listen to both sides and they do that well. This judge explained to us yesterday that these are very much "new consumer cases" so they need to be kept clear and simple to achieve our goals etc..

 

All I can do now is wait to see Cabots next moves. I sense their clock is ticking away now

 

It will be interesting to see which way this goes in 8 weeks because all of the other arguments are void until the CCA is clearly shown.

 

If this woman would have had her way yesterday the CCA could have gotten completely overlooked and lost in other complicated arguments

[tomterm8]

Tom Term - a small typo? not a problem really - thank you so much for your help. Thank you to everyone else here too CFC people especially so glad I am here.

 

Tom - yesterday Judge was really keen that the basics of this claim be shown etc.. he was in complete agreement that all of the rest was not relevant until the point where the CCA is in place. So this is really a tough call now for Cabot and any other company where this document is questionable - these companies need to realsie that they DO HAVE TO HAVE THE BASICS RIGHT.

 

This will be a really interesting case and really will bring things back to basics if it wins.

 

The important issues that I want to stress to people about cases like this is - keep it simple - and don't let the other side bully and scare. Yesterday the solicitor involved for Cabot was pushing so hard for Fast Track and kept going on about costs involved etc.. and trying to cloud issues with other papers etc.. it was scary for a moment or two. At one point I really feared this solicitor was going to get her own way as we couldn't get a word in edgeways. (she was good and did her job for the opposition really well) It was even mentioned how much this case has cost the Defendants (they have more money than sense really) Cabots would like hubby to pay these costs etc..

 

We just needed to remember the basic basis of our arguments and keep bringing it back to those points. The Judges are there to listen to both sides and they do that well. This judge explained to us yesterday that these are very much "new consumer cases" so they need to be kept clear and simple to achieve our goals etc..

 

All I can do now is wait to see Cabots next moves. I sense their clock is ticking away now

 

It will be interesting to see which way this goes in 8 weeks because all of the other arguments are void until the CCA is clearly shown.

 

If this woman would have had her way yesterday the CCA could have gotten completely overlooked and lost in other complicated arguments

 

I agree, completly. It is very important to keep things simple, and clear.

 

As a litigant in person, you are at a distinct disadvantage in getting your point accross. The only way you can succeed, especially considering that judges are generally not specifically trained in consumer legislation, is to be better prepared than your opponent. Judges will always like it if you make it very clear what your argument is.

 

It is not, generally, legally necessary to write a skeleton argument for county court cases. And yet, I always recommend that people do just that. By writing a skeleton argument, you have the opportunity to rehearse what you are going to say, and make it much clearer and simpler than it would be if you were going to just talk off the top of your head. You can structure it so that the most important things go first, and (as in your case) explain why you brought the case.

 

In your case, the background section was key, i think, since it explained to the judge the circumstances of the case, and made it much harder for the defendant to play its game plan. It made the judge sympathetic... and, from the sound of it, relieved to have a simple explanation of what the case was about.

 

The main reason I recommend writing a skeleton argument, like the one in the post above, is that it makes it MUCH HARDER to cloud the issues. A well written, simple and clear skeleton argument can hold the hand of a judge through complex issues without being disrespectful. And the judge will tell the opponents soliciter to shut up while he reads it, giving you the opportunity to have his undivided attention.

[mrmarmite]

just subscribing,

[elizabeth1]

The main reason I recommend writing a skeleton argument, like the one in the post above, is that it makes it MUCH HARDER to cloud the issues. A well written, simple and clear skeleton argument can hold the hand of a judge through complex issues without being disrespectful. And the judge will tell the opponents soliciter to shut up while he reads it, giving you the opportunity to have his undivided attention.

 

I will do this with my other cases in future because it was easier to keep the focus of the cases basis clear. I do advise anyone to try this way of dealing with these hearing like this - because it worked so well.

 

Each time the focus was dragged away to more complicated issues by the opposition - I could play it well and bring focus back with the points I had listed in my argument. There was no route to allow the opposition to make thing complex or scary even.

 

Like Tom says - this allows the most inexperienced people to keep matters simple and focused like bullet points to be addressed

[andrew1]

' Bullet ' being the appropriate word

[Josie8]

Excellent skeleton argument. Go get them! The law is very clear & so is parliament. No CCA = no money or enforce. Parliament had the opportunity to alter that in the light of the wilson case when they were passing CCA2006 but deliberately left the status quo for earlier agreements as the potential money loss was capped at 25k

[Peterbard]

HI

 

Just like to add a public well done Lizzy.

 

Cases like this will go a long way to stopping the watering down of the CCA that seems to be insidiously working away at the Act.

The simple trick is to stick to the legislation. If an agreement is unenforceable then it is unenforceable if a section 77 request is not complied with as per the regulations then it has not been complied with, sounds obvious but then you get the TS who say it is generally accepted that the creditor only has to do provide a fraction of what is required.

Nonsense you have shown that the CCA is still a force to be reckoned with all we have to do is stick with it and don’t be brow beaten into thinking someone else knows better.

Best regards

Peter

[spiritgirl59]

Subscribing

 

Elizabeth1 a big WELL DONE to you and your hubby - I can't wait to see what happens next.

 

You should give yourselves a big pat on the back because it must have been very daunting in there. It goes to show that the ordinary man or woman in the street WILL get listened to and that these DCAs cannot just walk all over us willy-nilly. As you and the others have said, keeping it simply and making the Judge's life easier by having everything properly laid out in writing has definitely paid off.

 

Cyberhugs

Love Spiritgirl x

[maybelline]

well done, can I borrow some of it, I DONT mean cut and paste huge sections, but just need help trying to get my POC into a reasonable sounding argument for my date in Oct, I am amending my claim as agreement is unenforceable, however, I am also quite worried about this question over their showing a history of payment and the judge just rubberstamping it as enforeceable because of this? any other suggestions?

 

brilliant, good luck!

[elizabeth1]

Maybeline feel free to use as much of this info as you need - Good Luck

[grobbo24]

just subscribing, may use some of this if it gets this far with me.

[maybelline]

thanks a lot elizabeth1, just got my ICO letter re Wf, no luck with them but onward and upward!

[nicklea]

It is not, generally, legally necessary to write a skeleton argument for county court cases. And yet, I always recommend that people do just that. By writing a skeleton argument, you have the opportunity to rehearse what you are going to say, and make it much clearer and simpler than it would be if you were going to just talk off the top of your head. You can structure it so that the most important things go first, and (as in your case) explain why you brought the case.

 

Hi Tomterm,

 

This might sound a stupid question - but when do you do a skeleton argument? Do you just bring it along with you to the hearing or do you have to supply it in advance and how does it differ from a witness statement?

 

I've got a case with Morgan Stanley at the moment, we've just exchanged AQs and I've issued a Part 20 counterclaim against them.

 

Regards

 

nicklea

[elizabeth1]

Hi Tomterm,

 

This might sound a stupid question - but when do you do a skeleton argument? Do you just bring it along with you to the hearing or do you have to supply it in advance and how does it differ from a witness statement?

 

I've got a case with Morgan Stanley at the moment, we've just exchanged AQs and I've issued a Part 20 counterclaim against them.

 

Regards

 

nicklea

Nicklea - this was used in the AQ hearing we took it along with us on the day (a copy for Judge to read, one for the opposition, a copy for us with the relevant bits highlughted that we wanted to focus on)

 

It was a way to keep things focused with bullet points that needed addressing etc.. - it's not a formal requirement or document - it's just a few pages with an outline argument to use - so even if you get hit by nerves and the otherside are trying to drown you in other complexities - you can keep refering back to YOUR pages and use it to push for what you want.

 

You'll be surprised how much better you'll feel just for having something prepared and rehearsed. It does make it harder for the otherside to brow beat and confuse matters to swing things their way.