I wouldn't ignore this Fred as it looks like they are ready to serve papers on you. However you need to use the pre action protocols to get a copy of the original agreement and also need to take apart the assignment of this debt between one company and another. You could state you wish to make a settlement but this id dependent upon them establishing a) there is a copy of an original agreement and b) the original debt has been correctly assigned at the various stages.

So happy Christmas all around then HIUTH?

Great work HIUTH - you had the tenacity to see it thorugh to the bitter end.

I have been talking to someone who was in a similar position except they had a Goldfish card and this was sold on to Barclays so Barclays now have all the documents and even if you never dealt with them directly they will have the documents you need to see in their archives so it is still worthwhile sending them a SAR. I understand the Goldfish office in Glasgow closed down or staff were transferred to Barclaycard. I also have a copy of Barclaycard's t&c and in the part about ending the agreement it is very different to the original MSDW. This one is dated 2008. I would still try and get hold of a copy of the varied agreements which were issued under Goldfish and see how these compare. If the account was running from 2000 to 2008 they must have varied at some stage. I think they were using both names which is causing confusion. http://www.guardian.co.uk/business/2008/feb/08/barclaysbusiness.creditcards and this http://www.lloydsbankinggroup.com/media/pdfs/investors/2005/2005Dec20_LTSB_Goldfish_Sale.pdf You therefore also need to see the deed of assignment (unredacted) between MSDW and Goldfish as well as the deed of assignment between Goldfish and Cabot to ensure this has been correctly assigned at each stage otherwise the ownership could be in doubt. Also in GR33 see 16.4 (which continues onto next document). I would include in a Part 18 request a request for clarification as to what this section of the terms and conditions actually means to you. Have they been sharing your personal data across the world? If so with whom and where have you given them your explicit agreement to this happening. It makes logical sense that, being a US company, they have been sharing your personal data with US companies. Not only do they need your explicit agreement to do this the companies they share personal data with have to be included on a Govt "approved" list. This is Chapter IV of the EU Directive 95/46/EC - look at Article Six Derogations (1). For a start you have to have given your unambiguous permission (not hidden away in some illegible scrappy part document). Ask some questions and get the Information Commissioner involved. CHAPTER IV TRANSFER OF PERSONAL DATA TO THIRD COUNTRIES Article 25 Principles The Member States shall provide that the transfer to a third country of personal data which are undergoing processing or are intended for processing after transfer may take place only if, without prejudice to compliance with the national provisions adopted pursuant to the other provisions of this Directive, the third country in question ensures an adequate level of protection, The adequacy of the level of protection afforded by a third country shall be assessed in the light of all the circumstances surrounding a data transfer operation or set of data transfer operations; particular consideration shall be given to the nature of the data, the purpose and duration of the proposed processing operation or operations, the country of origin and country of final destination, the rules of law, both general and sectoral, in force in the third country in question and the professional rules and security measures which are complied with in that country. The Member States and the Commission shall inform each other of cases where they consider that a third country does not ensure an adequate level of protection within the meaning of paragraph 2. Where the Commission finds, under the procedure provided for in Article 31 (2), that a third country does not ensure an adequate level of protection within the meaning of paragraph 2 of this Article, Member States shall take the measures necessary to prevent any transfer of data of the same type to the third country in question. At the appropriate time, the Commission shall enter into negotiations with a view to remedying the situation resulting from the finding made pursuant to paragraph 4. The Commission may find, in accordance with the procedure referred to in Article 31 (2), that a third country ensures an adequate level of protection within the meaning of paragraph 2 of this Article, by reason of its domestic law or of the international commitments it has entered into, particularly upon conclusion of the negotiations referred to in paragraph 5, for the protection of the private lives and basic freedoms and rights of individuals. Member States shall take the measures necessary to comply with the Commission's decision. Article 26 Derogations By way of derogation from Article 25 and save where otherwise provided by domestic law governing particular cases, Member States shall provide that a transfer or a set of transfers of personal data to a third country which does not ensure an adequate level of protection within the meaning of Article 25 (2) may take place on condition that: (a) the data subject has given his consent unambiguously to the proposed transfer; or (b) the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of precontractual measures taken in response to the data subject's request; or © the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and a third party; or (d) the transfer is necessary or legally required on important public interest grounds, or for the establishment, exercise or defence of legal claims; or (e) the transfer is necessary in order to protect the vital interests of the data subject; or (f) the transfer is made from a register which according to laws or regulations is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate legitimate interest, to the extent that the conditions laid down in law for consultation" are fulfilled in the particular case. Without prejudice to paragraph 1, a Member State may authorize a transfer or a set of transfers of personal data to a third country which does not ensure an adequate level of protection within the meaning of Article 25 (2), where the controller adduces adequate safeguards with respect to the protection of the privacy and fundamental rights and freedoms of individuals and as regards the exercise of the corresponding rights; such safeguards may in particular result from appropriate contractual clauses. The Member State shall inform the Commission and the other Member States of the authorizations it grants pursuant to paragraph 2. If a Member State or the Commission objects on justified grounds involving the protection of the privacy and fundamental rights and freedoms of individuals, the Commission shall take appropriate measures in accordance with the procedure laid down in Article 31 (2). Member States shall take the necessary to comply with the Com mission's decision. Where the Commission decides, in accordance with the procedure referred to in Article 31 (2), that certain standard contractual clauses offer sufficient safeguards as required by paragraph 2, Member States shall take the necessary measures to comply with the Commission's decision.

So at the very least you should have had new t&cs from Goldfish and it seems Barclays. You need to SAR Barclaycard immediately. It seems the t&cs they are relying on may not be the ones that were applicable at the time you held the account. I would have a good look around the site as they have copies of t&cs - I think Alan from Derby keeps them. You need Goldfish and 2008 Barclaycard. What date was the account assigned to Cabot as I feel sure it would be Barclaycard who assigned the debt to them? The t&cs will have been varied and so they may be different. Of course if the original application is ruled u/e due to being illegible then this is academic but defo SAR Barclaycard and in the post tomorrow. You can also send a Part 18 request for clarification from Cabot asking questions about the t&cs have they been varied which ones were current when they were assigned but you need to be very specific.

Well that is a MSDW set of t&cs but there is nothing connecting it to your application as far as you can see. The fact that it is pre 2006 and is not "easily legible" renders it technically unenforceable. A court has no choice to declare it unenforceable being pre 2006 and you will have been prejudiced because of this. However, going back to the original t&cs as MSDW merged with Goldfish in 2006 and then with Barclays in 2008 you should have been given new t&cs which will have varied the originals anyway. Have they produced these at all? When did you last make a payment as this is important too. BTW the first photobucket page is missing.

Can you post up GR3 and the original terms and conditions. If GR3 is not the original t&c do you know when it dates from? If you don't have the original t&cs which were in operation at the time you signed the application form you need to get hold of a copy. You also need to know if MSDW were sharing your personal data with the USA which I have been told they have been doing and people have not been aware of this nor given their explicit permission. This may be why you are having problems getting your SAR details from them. Just popped back as this is the situation. MSDW was a US credit card provider. I say WAS as they no longer exist. They joined with Goldfish in late 2006 and they in turn were taken over by Barclaycard on 14th March 2008. Therefore you should send a SAR to Barclaycard. Further...whose terms and conditions are Cabot quoting from because if it's from the current or recent Barclaycard t&cs they are worse than useless. They have to produce the t&cs from MSDW dated the same as when you signed the not "easily legible" application form. If they don't have these then they will have a difficult job proving what you actually agreed to when you signed up as well as permission to data share and to assign. Also when did you last make a payment or acknowledge payment? Who did you actuially send your SAR to for MSDW?

Alarm bells ringing! This is the Amex Brandon case isn't it? That case is being appealled. I am going to have to read your entire thread again before making further observations but the OC was MSDW who were operating a credit card and having made investigations they do or did issue Default Notices to those after three months in arrears so somewhere in this saga there will be a DN. There is something in the CCA whereby they have to provide statement at least every 12 months and just because you are not paying anything in they are applying interest to the account by their own admission (above) so there is movement on the account which (I think) means they should supply statements. However if they haven't got a copy of the original agreement which you have signed then they do not have your permission to assign to anyone or share your personal data with third parties. They can quote the Carey judgement but this was (I believe) a judge acting as a High Court Judge. Wilson-v-Hurstanger was Court of Appeal in 2007 and is still the authority. The Carey judgement enabled creditors to assemble a facsimile of an agreement in order to provide information under a s77/78 request NOT for enforcement. They still hav e to provide a copy of the original agreement in court and that must have your signature and the prescribed terms. They only get away with this due to many judges not being up to speed on the CCA and being guided by barristers in the face of a LiP. P.S. And be easily legible. Have to dash.

That's a thought Andrew. If they have varied the terms of the agreement they should have produced an updated agreement to sign along with new T&Cs but you still can't contract out of the CCA.

Hi pab yes agree that a live debt can be legally assigned but it is very very unusual in the business model we have here. If it is live then they have become the creditor with the rights and duties and so should be supplying monthly statements etc. Let's just retrace our steps. They are saying that they do not need to issue a DN as the account is all arrears. Cabot would not issue a DN anyway as the OC would. This would have to be issued under the CCA whether it is all arrears or arrears plus payments to come. Cabot say it has not been terminated...is that correct? Of course it has because otherwise it would be against the way they operate buying deliquent debt that has been terminated by the OC and written off to tax and possibly indemnifying insurance. If it is still live then they are operating their own version of the agreement and are attempting to contract out of the CCA which is not allowed under s 173 (I think sub section1) of the CCA.

I'll do a bit of digging and see what else I can find as I think they are playing on words here. This has to do with repudiation of contract and it's setting off a few bells in my head as seem to have encountered this before. You do need to know what MSDW did in relation to this. Did they terminate? Did they issue a DN? Did they assign without terminating? I just can't see that MSDW would be any different to any other credit card provider who finds a consumer unable to pay issues the statutory DN under the CCA (note statutory) gives them the statutory time limit to catch up and when the conmsumer fails to meet that deadline terminates it, writes off to tax and assigns to a DCA. We have the usual wonderfully named "hello" and goodbye" notices issued by the OC (goodbye) and the DCA (hello) in line with the Law of Property rules on assignment. Hmmm!

You see I really don't understand this. If this debt has been properly assigned it will have been written off as a tax loss by the original creditor and sold onto Cabot at (usually) around 10 pence in the £ using the Law of Property Act as a mechanism to assign the debt. If this is an agreement covered by the Consumer Credit Act and regulations then the original creditor must have issued a Default Notice after the three months went into arrears. Of course the whole thing must be arrears on a credit card as it is debt that has been amassed. However in a loan agreement which has not been fully paid up and still has, say months to run, some will be in arrears but some will be in the future. I quite understand that they could be collecting "arrears" it's the absence of the DN in these circumstances that is puzzling. We know Cabot don't issue default notices as they buy the rights and not the duties (well that's what they claim). The OC needs to confirm if they terminated the agreement and issued a DN (apologies if you have this info but I haven't flicked back) The question needs to be put to Cabot if no default notice has been issued and the account has not been terminated then is this still a live account in which case Cabot becomes the creditor for the purposes of this agreement and as creditor it assumes the rights AND the duties. Debts can be assigned fairly easily and in business factoring is a regular feature whereby a company sells or "factors" its outstanding invoices to an outside company to collect thus freeing up their cash flow (albeit for a percentage to the collector). Where I am puzzled and PT may well be able to answer this is that if this is a regulated agreement under the CCA these rules must be followed not should be or could be but "must".

You have my every sympathy my friend had a big flood like this and the damage was unbelieveable and it was all due to a leak in the washing machine pipe to the outside drain.

This is priceless. Utterly priceless. Hope they aren't in cahoots with the bailiffs HIUTH. Why don't they just cough up?

Cymru - Docman has hit the nail on the head. The 14 days for adefault notice is statutory the Judge has no discretion in the matter. What he seemed to think you may or may not do is irrelevant. There is a good case called Peyman-v-Lanjani which supports this.

And there I believe you have hit the nail on the head.I am not a tin foil hatter either but it is obvious with some of these judgements, including the OFT one, that someone has had a word in some other one's ear. This whole stuff about lending Ireland £7bn appears to be to help bail out their banks further as our banks are implicated. It all stinks...and don't get me going on this royal wedding we're all having to pay for. Rant over.

How does that work. Cymru the whole thing is a mess. I don't think Andrew mislead you over the interest either. I think it's this (and will be happy to be contradicted) they confused you and the Judge with the assignment. If the OC has assigned the debt via the provisions of the original agreement then they are assigned the rights but not the duties however and as Babybear's own correspondence shows below the DCA is considered the creditor for the purposes of s77/78. It is not possible to contract out of the CCA. It was Parliament's wish that it was brought in to protect consumers and so, if Cabot has a properly assigned debt it has to abide by the CCA. http://www.consumeractiongroup.co.uk/forum/showthread.php?147392-CCA-DCAs-and-the-Unfair-Commercial-Practices-Directive We know Carey and all sorts have queered the pitch since BabyBen's letter but let's assume the assigned debt is enforceable then Cabot has to obide by s82 of the Act to vary the interest rate. s82. "Where, in a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect until notice of it is given to the debtor or hirer in the prescribed manner." It says a lot more but this is the crux of it. If Cabot has not given you notice under s82 in the prescribed manner that they have changed the interest rate they are in trouble. These are Professor Benion's notes on this and he was the architect of the CCA http://www.francisbennion.com/pdfs/fb/1977/1977-006-consumer-credit-act-pt3.pdf What I think has happened is that Cabot has claimed it is terminated and sold on to them under the Law of Property Act which gives them a lump sum debt (and as Andrew rightly states they buy this for peanuts and come after you for the full amount plus interest) to which they have added their own 12% interest rates - which relates to, well nothing apart from their own greed. They have contracted you out of the CCA but it is not possible to do this. The CCA takes precedence but your Judge was probably not aware of the distinctions and saw the barrister and you as a LiP and went along with them. There is still no agreement which even shows that Cabot or any third party had any right to be assigned a debt. If pre 2005 then s172 (3) comes in and then there's the effects of the new Unfair Relationships under the UTCCR. I am just a lay observer but there seems so much wrong with this it's difficult to know where to start and I really don't get how you don't have a CCJ. Can you get a copy of the hearing? We really need an expert to tell us if I am right or wrong here but I would apply for an appeal and get a direct access barrister but I know that's not always possible.

This is ridiculous and I am so sorry for you Cymru. There is little point in having consumer laws if the Judges make it up as they go along and Carey has muddied the waters and actually added to the confusion, not clarified.

That was my interpretation too BA. Reading Carey agfain it seems the decision has confusedf rather than clarify.

Good luck today Cymru!

So how does the Carey Judgement sit with the Wilson-v-Hurstanger and the need for the subscribed terms to be within the "four corners of the agreement"? "33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement."

If not signed by the creditor it is "improperly executed". It must have the prescribed terms within the signature document as laid down in the CCA and the regulations. This was upheld by Wilson-v-Hurstanger. I was just trying to make clear to anyone else who may be reading the thread that just because it says "application form" doesn't mean it isn't capable of also being an agreement. It's shoddy draftsmanship by the finance houses who, over the past decade, in an unseemly rush to get as many new customers as they could decided to cut corners. This is why we are seeing some big names with poor documentation and some can't even find the originals. Which is why everyone must insist on seeing the actual original (if possible) or at least a certified copy of the original in court if a dispute gets that far. The Carey judgement which they use to conjure up a couple of sheets of T&Cs is only a measure for them to produce basic information under s77-s78 requests.

Me too!

Hi sorry I knew your case was a set aside - shouldn't reply to threads when it's late. I think the illegibility or not "easily legible" is the strong one IMO. If Pt's lurking he's the one you need. You do have to watch these "application" forms though - even if they say they are if they have the prescribed terms and are clearly linked to T&Cs they can be deemed to be an application/agreement. They should comply with the CCA and the regulations for this to carry any weight.

pt if as you say "not arrears" if this consists of PPI or charges then are these considered "arrears"?