tom Vs Cabot/Hitachi Credit

[hunni2006]

just a thought, you mentioned a DMP, so presumeably you have other debts, have you checked them all out?

do any of them include penalty charges?

do you have any other debts that fall under CCA? have you sent them a CCA request for the agreement to see if the debt is enforceable?

etc, etc.... you could be paying debts that you don't have to...

[tom a]

sent off CCA request to all creditors.

Alliance & Leicester - looks ok.

Egg credit card/DLC - still trying to find agreement.

Northern Rock/Eversheds - looks ok.

HSBC managed loan/MCS - trying to find agreement.

EON/SRJ - not covered by CCA

 

Will have a good read through the links you have put on and no doubt be back for some more advice.

Thanks once again.

[hunni2006]

no problem.

[tom a]

Can someone please take a look at the letter I propose to send to Cabot and add or delete where necessary. Writing is not my strong point.

Thanks in advance.

 

In reply to your letter dated 2nd October 2009 I am very surprised that a company who claims on it’s website to be “ a company who will work with our customers” and “We think of you as our customers and will treat you as such”, would choose to omit parts of the credit agreement to try and confuse myself, or could it have been an error on your part?

For your ease I include credit agreement as it should have been sent to myself.

 

 

The REALITY is that Section 61(1) states -

 

A regulated agreement is not properly executed unless

(a) a document in the prescribed form itself containing all the prescribed terms

and conforming to regulations under section 60(1) is signed in the prescribed

manner both by the debtor or hirer and by or on behalf of the creditor or owner,

and

(b)the document embodies all the terms of the agreement, other than implied terms,

and

© the document is, when presented or sent to the debtor or hirer for signature, in

such a state that all its terms are readily legible.

 

You also choose to refrain from quoting section 127 (3) in it’s entirety.

 

 

 

Here is what Section 127 REALLY says -

 

127.—(1) In the case of an application for an enforcement order under—

(a)

section 65(1) (improperly executed agreements), or

(b)

section 105(7)(a) or (b) (improperly executed security instruments), or

©

section 111(2) (failure to serve copy of notice on surety), or

(d)

section 124(1) or (2) (taking of negotiable instrument in contravention

of section 123),

the court shall dismiss the application if, but (subject to subsections (3) and (4)) only

if, it considers it just to do so having regard to—

(i)

prejudice caused to any person by the contravention in question, and

the degree of culpability for it; and

(ii) the powers conferred on the court by subsection (2) and sections 135

and 136.

(2) If it appears to the court just to do so, it may in an enforcement order reduce or

discharge any sum payable by the debtor or hirer, or any surety, so as to compensate

him for prejudice suffered as a result of the contravention in question.

(3)

The court shall not make an enforcement order under section 65(1) if section

61(1)(a) (signing of agreements) was not complied with unless a document (whether

or not in the prescribed form and complying with regulations under section 60(1))

itself containing all the prescribed terms of the agreement was signed by the debtor or

hirer (whether or not in the prescribed manner).

(4) The court shall not make an enforcement order under section 65(1) in the case of a

cancellable agreement if—

(a) a provision of section 62 or 63 was not complied with, and the creditor or

owner did not give a copy of the executed agreement, and of any other document

referred to in it, to the debtor or hirer before the commencement of the proceedings

in which the order is sought. or

(b) section 64(1) was not complied with.

(5) Where an enforcement order is made in a case to which subsection (3) applies, the

order may direct that the regulated agreement is to have effect as if it did not include a

term omitted from the document signed by the debtor or hirer.

 

According to OFT guidelines

2 UNFAIR BUSINESS PRACTICES

Communication

2.1 It is unfair to communicate, in whatever form, with consumers in an unclear,

inaccurate or misleading manner.

2.2 Examples of unfair practices are as follows:

a. use of official looking documents intended or likely to mislead

debtors as to their status, for example, documents made to resemble court

claims.

b. leaving out or presenting information in such a way that it

creates a false or misleading impression or exploits debtors'

lack of knowledge

 

I once again dispute the alledged debt owed to Cabot due to no date on your signature and no cooling off period .

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

[tom a]

Also would it be ok to email this to Cabot? Thanks

[hunni2006]

BUMP re post #54 please

 

Hi Tom

 

just bumping this for you to see if someone with more experience can have a look for you. I would say it could probably do with a little polish;)

 

As far as emailing goes, I would definitely post a hard copy aswell, & make sure it's recorded & you get delivery confirmation.

 

hth

regards

hunni

[vint1954]

I don't think that the letter above is appropriate. As I have said in earlier posts, the agreement generally looks ok, so you are clutching at straws realy. I don't think that the 2 issues with your agreement are enough for a court to rule it unenforcable. If you want to question the execution then:

 

Address

 

Date

 

Dear sir/madam

 

Thank you for your further response to my request under the Consumer Credit Act section 78.

In your response you again confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As I have previously pointed out, this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any (prescribed terms / signature) means that a court would be prevented from enforcing it under s127(3). The copy agreement supplied is as you must be aware improperly executed under the above sections of the act, signing of agreements, and additionally is devoid of a right to cancell.

 

It is my opinion, having sought advice, that the agreement that you have supplied is flawed for the reasons stated above. I suggest that you should close the file and cease processing an personal data relating to me on this matter.

 

Yours faithfully

[hunni2006]

Hi Vint1954

 

would it not be appropriate for him to point out the misquoting of the relevant sections of CCA in their letter along with the OFT guidelines? or would that be confusing the issue?

 

hunni

[vint1954]

It will only confuse the matter and won't effect the validity of the agreement. Could mention that they have misquoted the act, but that is about all.

[tom a]

After thinking about this I have decided to add Cabot to my DMP.

I don't want to be arguing for months and still have to pay.

I will question the charges when my DMP is up and running.

Thanks everyone for all your advice.