Davey vs Halifax/BOS/Cabot

[davey77]

Hi thanks for that. Yes the signature page has the Prescribed Terms in my case sadly.

 

http://i157.photobucket.com/albums/t42/davey77_2007/Halifax_Agreement2.jpg

 

Do you have a thread going on Cabot vjohn?

 

If they sent a standard template letter then it means they don't know how to answer the points i have previously raised!

[vjohn82]

Ummm... no thread on Cabot but they sent me this:

 

 

 

 

 

Notice the similarities

[davey77]

Ah i see.. thanks! Yes they do seem to rely on a standard format then 'tweak' it slightly for each individual. I'm sure that saves them a lot of time and avoids replying to specific points.

Edited April 7, 2009 by davey77

[vjohn82]

It's enough to confuse people who probably use this forum and are not sure what step to take next.

 

Sorry to hear that the prescribed terms are there; it means the letter I sent to them in response won't be very useful for you

 

I will try to remember to let you know what happens with Cabot if I get a reply from them... the next step from here is a complaint to the ICO if they don't resolve my complaint properly but I suspect that the defaults are on my credit file for some time yet unless I convince them to write the debt off.

[davey77]

Yes these letters are purposely and carefully constructed to confuse even the well seasoned.

 

I suppose you have heard that the ICO never take an interest in complaints re the supply of a properly executed agreement? SARs and the like yes, but as per usual, with any regulatory body, when it comes to Credit Agreements they are on the side of the Creditor.

[vjohn82]

I read some information regarding the ICO where they will investigate complaints regarding the abscence of any agreement.

 

Where it comes to agreements that do not have prescribed terms they look at a number of factors which includes:

 

Is the customer able to produce evidence that they disputed that a default occurred?

 

Did the customer dispute the default before the lender announced their intention to file a default or after?

 

What is the nature of the dispute? For instance, does the customer allege that the agreement has been breached, for example, because the goods supplied were faulty, or does the customer simply dispute the amount of the default?

 

What evidence has the customer produced to support their side of the dispute?

 

Has the lender simply ignored this evidence or have they produced evidence to support their version of events?

 

If the goods financed were supplied by a third party, has the lender taken reasonable steps to check the accuracy of the information supplied about the dispute?

 

Does the customer argue that payment is owed not by them but by a third party such as an insurance company, and, if so, is there any evidence?

 

Has the customer told the lender that they are exercising set- off rights?

 

Is the customer defending a court action by the lender to obtain a judgment, and what is the nature of their defence?

 

Has a court refused judgment to the lender and, if so, on what grounds?

 

If the dispute has not been before a court, is the lender prepared to test their claim by seeking a CCJ or decree against the customer? If not, why not?

 

I am hoping to test the resolve of the ICO in sticking to these guidelines if I make a complaint and I will certainly refer to them when the time comes. The last one is the important one though... why haven't they used court action?

[davey77]

Interesting stuff VJ. You've done your homework. Nice to have that tucked up your sleeve and look forward to seeing the ICO wiggle out of that one.

[davey77]

Trading Standards

Torbay Council

Roebuck House

Abbey Road

Torquay,

Devon,

TQ2 5TF

 

 

Dear Sir/Madam,

 

I wish to make a complaint regarding the supply of documentation i am legally entitled to but I have, to date, been denied access to.

 

In December 2008, a previous Halifax Credit Card account was sold to Cabot Financial Europe Ltd and my request for the agreement pertaining to that account has, after much persuasion, recently been supplied to me (in part). (Copy of which is enclosed for your reference.)

 

My understanding of the Consumer Credit Act1974 (CCA1974) has given me grounds to question these documents on the following basis:

 

They are Improperly Executed due to the missing signature of the original lender.

As such i refer you to the following quote from the CCA1974:

 

“s61 CCA - Signing of agreement:

(1) 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,“

 

The document in question refers to other pages that apparently make up the full agreement of which i have not been given access to, namely pages 1,2,5,6,7,8 and i refer you to the following quote form the CCA1974:

 

Section 78(1):

 

“shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”.

 

Therefore, the documentation in question that refers to other pages within that document would form part of any full agreement and as such should also be supplied under section 78.

 

I would also ask Trading standards to confirm the legal right of Cabot Financial to apply so called ‘interest’ to this account since purchasing it last December at a rate of approx. £10 a month. This, to me, indicates a charge for debt collection and after requesting a breakdown on how these charges reflect a true and actual cost basis i have not had a satisfactory answer apart from the statement Cabot have a ‘legal right to apply interest under the agreement’. The ‘agreement’ of which, as i have already stated as it currently stands is Improperly Executed and incomplete so fail to see how this document can be relied upon as absolute authority to add interest and/or charges at will, without any further explanation from Cabot Financial.

 

I enclose previous correspondence for your reference and ask that you investigate these matters and keep me informed of your progress.

 

I look forward to receiving your reply,

 

Yours sincerely, Davey

Edited April 7, 2009 by davey77

[vjohn82]

Nice letter...

 

The above statements, by the way, are are directly from the Data Protection Technical Guidance with a foreword by Richard Thomas (the Information Commissioner).

 

He wrote:

 

"The aim of the guidance is to provide advice to credit grantors on the conditions under which information about defaults is filed with the credit reference agencies. Only if credit grantors file defaults information in broadly comparable circumstances to each other will credit reference agency records provide meaningful information about the financial standing of individuals, and be processed in a way that is fair to those individuals. The guidance sets common standards for filing defaults while recognising that some differences exist with the wide range of credit products available."

 

What is "fair to the individual" if a credit agreement did not encompass the prescribed terms or if debt collectors have no means of providing proof of a debt?

 

Like I said it's possibly a long shot using it but it's from the horse's mouth so to speak.

[davey77]

Sounds like a chance though.. there is nothing better than using a regulator/creditor/organisation's own statements when constructing an argument against them.

[davey77]

No reply from TS (what a surprise) and it's 2 weeks this tuesday i sent the letter. If i don't have anything by then i'll write another letter.. and another one.. and another one until they take notice.

[davey77]

I spoke too soon:

 

 

In other words, don't bother us with this rubbish again as we are not interested...

[Livis]

Hi Davey, just read the above letter.

They clearly aren't interested are they

These organisations annoy me, they are supposed to be here to help but when it comes to it, they are just as useless and unhelpful as the banks it seems!

Livis xx

[davey77]

Hi Livis.. yes i know what you mean. Almost feels like a letter from the FOS or a creditor themselves the way they word it

[davey77]

I also notice TS haven't really answered my question regarding the charges Cabot are applying to the account each month. These can't be 'late fees' as they suggest as the account has been terminated and sold?!

 

I'll give TS the 'improperly executed can only be decided by a Court' but they haven't replied to the point i made about the other pages and monthly charge.

 

I feel i have been given the brush off by TS.

[davey77]

It seems the “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it” has a get out clause:

 

(If any)... Which is what creditors use and TS rely on not to supply and/or investigate further re S 78 1.

 

As a consequence I'm not sure where to go with this one but to ignore Cabot until they make an offer.

[davey77]

Has anyone used the Which? legal service?

[davey77]

ok, i think my next step will be to SAR Cabot. Avoiding S 78 requests altogether.. that 'should' produce the other pages and if not will result in an ICO complaint.

[davey77]

Subject Access Request

( Data Protection Act 1998 )

 

Dear Sir/Madam

 

ACCOUNT NUMBER: **** **** **** ****

Ref: **********

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

11. Other pages referred to within any credit agreement and/or documentation. Should the agreement and/or documentation refer to a total of 8 pages, i require all 8 pages to be supplied.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

Please note that the above address is the one which you normally (and have recently) used to communicate my private business to me and which you have hitherto found to be completely acceptable without question.

 

Yours faithfully, Davey

[davey77]

[davey77]

Balance still increasing by £10 a month i see.

 

If they think they are going to pass the buck to the OC they have another think coming. No reply for now.. i'll wait and see what they come up with first.

[davey77]

[davey77]

All quiet on this thread. Nothing further from Cabot. The deadline for the SAR is up tuesday/wednesday so if i have nothing by then a complaint will be sent off to the ICO.

[spartathisis]

Cabot bought mine just as a SAR was being processed by Halifax (Dec 08). I have had no CCA from either, Cabot have stated they are putting the account on hold til they get the info required. Halifax stated no dispute we know nothing!

 

I dont like HBOS or Cabot

[davey77]

Just when i was geared up to complaining about the lack of SAr it turns up this morning. Reams of paperwork which i am considering scanning and posting up to show others what has been supplied for their benefit. (May take a while).

 

The important point is that the other pages that make up the 8 page agreement (once again) has not been supplied so i will still sort out a complaint to the ICO and ask for those pages.