Subbing, as usual they never learn to settle early and pay less..

subbing.. An appeal will definitely be given in your case. That judge would be wondering whether is was PMT or silliness that got the better of her on the day. How ridiculous Judges are becoming these days. A lot of them just believe you must be really poor and stupid to have this sort of case before the Court, whereby the chances of your summing up the costs factor to defend your right is very slim. I bet if you had the weakest lawyer you could find, the Judge would not have made such a flawed judgement. partly because the lawyer will be able to afford the costs of a subsequent appeal. Court systems these days, is now all about how much money you have, that you can waste and nothing more.. I think another useful precedent is on its way... Unless the bank decides to bottle it and run when your appeal gets granted. Some of these legal pegs make me sick

Can someone recommend a decent law firm in the London area, that is good in handling consumer debt issues, unfair bank charges, DPA and default matters alike in this forum. Please any recommendations should be based on your own experience or from people close to you.. My friend is relocating to Romania, and would like to pass his court case over to a good solicitor/barrister to continue the court action whilst he is over in Romania. His claim is allocated to the fast track and he will most definitely win... Any names?? Thanks

Here is the OFT018 document you were looking for.... oft018 - Cancellable Agreements.pdf

Corrections "What I meant by my brief statement in Post #80 has been raised in your defence at paragraph 31. See the defence by Pt2537 above regarding Deed of Assignment." Sorry my brain is a little fried this morning..

Corrections "What I meant by my brief statement in Post #80 has been raised in your defence at paragraph 33. See the defence by Pt2537 above regarding Deed of Assignment."

Gonnagetem, What I meant by my brief statement in Post #44 has been raised in your defence at paragraph 33. See the defence by Pt2467 above regarding Deed of Assignment. You must stress on seeing the Deed of Assignment at the Court Hearing. Do not let up or allow the case to proceed during attendance at any hearing for this case until this document is tendered before the Court. It is important that you see the Deed of Assignment and verify whether both the rights and duties have truly been assigned to the DCA (Claimant). If only the rights but NOT duties then you can ask the Court to strike out the claim immediately, as it would be the case that the claim has been brought wrongly before the Court because the DCA (Claimant) would need to make the original lender a co-claimant in the case. This worked for one of my friends and the case ended abruptly, there and then. Just giving you tips on how importnat it is for you to stress on them providing the Deed of Assignment... Stay lucky....

5. The rights and duties of passed to the Claimant pursuant to an assignment dated ***** notice of which was given to the Defendant on ***********. Have you seen a copy of the Deed of Assignment yet, in order to verify the above statement. It is important that you ask or seek for this, as it is integral to whether the case in question has been properly brought before the Court to start with, there are a number of threads about. In my opinion, only 1% of assignments to these DCA's are absolute !!

Hi all, did any of you read the first page of the application form containing the personal details properly. My eyesight is not that good but somewhere in the application form in the section titled "Barclaycard Visa Card / Mastercard" there is a written statement as follows "....you have read and agreed to the Bsarclaycard Conditions, especially condition 15 which is about how we use your information..". It is quite odd, I cannot find this "condition 15 - how we use your information" in the two other documents that are supposedly the Terms and Conditions. Am I going blind ... surely the implications here are that of a conjectured reconstruction. IMHO this agreement is unenforceable in my opinion. I think Pinky still has ammo to fire...

... unless of course they have bought the debt back from Cabot and Cabot have then served you with a notice of assignment back to the Original Creditor. Then the Original Creditor is entitled by all means to set-off against your claim. Anyway if you truly owe the debt, then a refund will help you pay it off. The idea of Cabot not being entitled to set-off does not make this a supposed loophole for escaping the debts you truly owe and should pay. If there is money by way of refund then you pay them off and feel free as air afterwards.

Duncan_Disorderly, Put simply... Cabot cannot ask for the refund of charges to be paid to them. The Original Creditor has to pay the refund of penalty charges to you and NOT Cabot. Remember the penalty charges being refunded to you is occurring after notice of assignment and is not subject to the assignment itself. The only way Cabot can collect the refund of charges is if you 1) Make them a co-defendant in your bank charges claim that you file with the court 2) You sign an agreement with the Original Creditor and Cabot (all three parties signing the document) that they can set-off your debt from the refund of bank charges claim. If the above two criterias are not met, then the Original Creditor is not entitled to pay one penny to Cabot after of course you have launched your bank charges claim with the court. The burden of any contract cannot be assigned, liability always remains with the Lender. The Original Creditor cannot assign its burden to Cabot without your agreement, besides even Cabot would'nt consider buying the Original Creditor's burden (debts owing to someone else) that would be crazy. Remember when the original creditor assigned the debt to Cabot, they did so by passing on their right, title and benefit. They have no right, title or benefit remaining after assignment. The penalty charges to be refunded have to be paid to you directly. Hope this sheds some light.

The cross-claim is related to the position of the DCA recieving payments meant for you. The bank in paying the DCA have acted as if they are agents of the DCA. So it would appear that the DCA had a cross-claim or lien against the bank charges that was being refunded to you. This of course is wrong as the claim (contractual breaches) you have against the bank is totally different from the claim the DCA would likely have against you. Besides the DCA cannot be entitled to your payout which occurred after the debt was assigned to them. The bank's claim (acting as agent of DCA) in this regards is a cross-claim or counter-claim.

Remember the FOS are not legally savvy in all areas. Even if they knew you had a loop hole it would'nt be appropriate for them to show you what it is. As they will always like to keep their necks stiff and straight, and cater for the companies bankrolling their existence. Case law is there to help with the arguments you can use about set-off rights. The bank cannot set-off the money they are supposed to pay you to a third party without your express permission. If you have'nt given them express permission then you have'nt been paid, it is that simple.

Tifo is correct... The bank must pay you and NOT the DCA. I had this problem with GE Capital who claimed that they had paid the penalty charge refunds to CL Finance, even when I insisted that I want it paid to me directly. The County Court Judge was riding along with them, the banks legal rep until I stopped them all dead in their tracks with the legal definition of set-off and the rights thereunder. I won the argument hands down and got paid a wasted costs order on top. Here are excerpts of some arguments to use ..... Set-off is only available where the following criteria is satisfied – (i) The cross-claim must be closely connected with the primary claim. (ii) The cross-claim must be for an amount of money (liquidated debt) that must be capable of being calculated with some degree of precision. (iii) The claim and cross-claim must be mutual, they must be owned as between the same parties (or their assigns) in respect of the same rights. (iv) The cross-claim must be due prior to the customer receiving a notice of assignment. The assignor's intent of selling the debt onto a third party is to plainly get rid of all control over the debt and to transfer the right and title over to the assignee. It is therefore axiomatic that the assignor cannot retain any control over the debt or any authority to collect. The assignor has nothing to gain from performance and therefore has no set-off rights. The general principle underlying mutuality is that the claims of one person should not, without agreement be used to satisfy the liability of another. The time for determining mutuality is when set-off is being asserted. For there to be mutuality, each claimant must be the beneficial owner of the claim owed to it. In the event of assigning the debt followed by written notice to the debtor, the assignor will neither be the legal or equitable owner of the sold debt and thus mutuality will not be present. Reference can be made to the case of National Westminster Bank v Halesowen Presswork And Assemblies Limited [1972] AC 785 where it was said that: "it is necessary that the debts be between parties in the same right ..." Reference can also be made to the case of Edlington Properties v. Fenner & Co. Ltd [2005] EWHC 2158 (QB) which also affirms this position that the assignor has no right of set-off to a third party (assignee) for a damages claim brought against it post-assignment, as any equitable set-off in this regard is personal in nature and the debt sold is not transferred subject to it. The Claimant finds there is no further consideration to be made in respect of the third party (assignee). The third party (assignee) is not a co-defendant in the instant case. For set-off to operate the nature of the claim must be mutual and must be owned as between the same parties in respect of the same rights. The right to set-off is a self-help remedy, and is normally found in actions of debt brought by a plaintiff, where the defendant raises a cross-claim for a debt to reduce or make extinct judgement which would otherwise have been obtained by the plaintiff. In the instant case the Defendant (assignor) does not fit the profile of either party as it has no beneficial title or interest, or grounds for claiming a right to set-off a claim brought against it for breach of contract. I hope helps other people who have this type of issue with the banks. In fact you can do some minor legal research on the internet about the subject "equitable set-off rights".

I believe you can sue Cabot only if they were strictly the legal owners in accordance with s136 LPA 1925 for both accounts at the time you paid them off. Remember it depends to a large extent on what remedy or damages you are after... data protection, bank charges, extortionate bargain etc However, I believe 95% of debt assignments are equitable, as many obligations/duties cannot be transferred without the consent or permission of the borrower. If the assignments were equitable then you can sue Cabot as the lone party if your primary cause of action is based on data protection and injury to credit reputation. Otherwise for any other causes you will have to sue both Cabot and the OC, as Cabot will and can present valid and cogent defences regarding its reliance on the OC, and on the flip side the OC can say it was no longer the legal owner following assignment. You may be left scratching your head.. Remember if you are forcing the issue, you really don't want to blackhole your campaign. In short sue both Cabot and the OC you cannot go wrong. As which ever way the gun barrel points both will be treated as valid targets. It will then be down to them (Cabot & OC) to choose who takes the bullet.