Cabot financila (Vanquis CC) court summons is it too late to use CCA 1974?

[vjohn82]

this is starting to get scary. The last thing I want to do is lose and give myself a bigger debt to pay. The losing cases certainly seem to be stacking up at the moment, and their arguments are one step ahead of us....

I'm reading away atm, thanks for pointing me in the right direction for info.

 

Vjohn, I would be interested in any arguments that you have, but considering the amount of people who have had their threads monitored I'm not sure that it would be the best option to put them on open forum

 

This was quoted...

 

PART XI

 

ENFORCEMENT OF ACT

 

Part XI Contracting-out forbidden

 

173.

 

(1) A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any regulation made under this Act.

 

(2) Where a provision specifies the duty or liability of the debtor or hirer or his relative or any surety in certain circumstances, a term is inconsistent with that provision if it purports to impose, directly or indirectly, an additional duty or liability on him in those circumstances.

 

(3) Notwithstanding subsection (1), a provision of this Act under which a thing may be done in relation to any person on an order of the court or the Director only shall not be taken to prevent its being done at any time, with that person's consent given at that time but the refusal of such consent shall not give rise to any liability.

 

The easy way to argue your way out of the paper bag that is the "no need for a DN" argument is to simply refer to s.87 of the CCA... it offers the consumer the protection AGAINST court action by the creditor willy-nilly.

 

We are still unaware of the case the solicitor in the other claim was quoting but we suspect it was a Rankines one where they had actually taken their own creditor to court.

 

The essence of that case was that the Judge stated a DN could not be rule compliant/or non compliant if the creditor had not actually taken the step of legal enforcement. Sort of counting chickens before they hatch.

 

There is no case law which says a DN is not required for a regulated agreement under the CCA.

 

The people who are "losing" their cases are very few and far between... most of them are due to poor judgements... the others due to lack of preparation... others due to stupidity/mistakes.

 

If you read plenty and understand what advice we are offering you won't be in their boat ;-)

[diddydicky]

spot on Vjohn

 

this is the danger of the forum- some folk are clearly not competent to LIP and should be discouraged by other posters if it appears from their posts that they have not grasped the arguments

 

these folk need to seek legal representation

[vjohn82]

spot on Vjohn

 

this is the danger of the forum- some folk are clearly not competent to LIP and should be discouraged by other posters if it appears from their posts that they have not grasped the arguments

 

these folk need to seek legal representation

 

Some posters sometimes believe that they have a sense of entitlement to information that we post. They don't seem to realise that we weren't born with this information pre-loaded.

 

I remember when I first came on this forum... it's no accident I have become very knowledgeable... it's taken a lot of bloody hard work. You have to put in the hours and ask questions on what you don't understand.

 

Some people need a step by step guide to litigation but fail to grasp that there has never been a case like their own before... this is because it will be a different judge/different day/different solicitors/different weather/different figures/different mood.

 

Every case is unique which is why you have to really get to grips with your own case. Panicking on here is a good strategy when you want whoever is spying on your thread to "think" that you are under pressure and worried... I have to say HFO were surprised when I turned on that trick once... they walked out of that hearing with their tail between their legs.

 

Rant - done!

[hunni2006]

thanks for all the help.... I really appreciate it:)

 

I'll keep reading, as you so rightly put it Vjohn... it does take a lot of reading and hard work to gain the knowledge....sometimes I think that it takes me a little while to sort through the information I'm reading before I fully understand it! I guess I'm one of life's panickers!

[vjohn82]

It wasn't a criticism of you hunni... simply a reiteration of my POV

[caro]

Don't panic Hunni. Forewarned is forearmed.

 

If you know what arguments may come up in court then you can have your answers ready.

 

Preparation is the key.

[hunni2006]

It wasn't a criticism of you hunni... simply a reiteration of my POV

 

It wasn't taken as such either! tbh, my post was more a case of thinking out loud! I agree with what you said, I too have gained huge amounts of knowledge since joining this site.... but my life is such that anything that can possibly go wrong, usually does, with bells on.... so I try to be absolutely certain that I have covered all bases, and fully understand everything....

 

I appreciate you taking the time out to help.

 

 

Don't panic Hunni. Forewarned is forearmed.

 

If you know what arguments may come up in court then you can have your answers ready.

 

Preparation is the key.

 

as usual... you are so right!..... oh, and thank you for the birthday wishes for my dad! had a great day/night:lol:

Edited April 16, 2010 by hunni2006
it's late... I cant flipping type properly!

[hunni2006]

I've been reading 'til my eyes hurt!

 

On reading steven4064's great thread http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

 

Can anyone offer a little more clarification on this snippet in relation to properly executed agreements, and where I could get more info....

 

Finally, there are requirements about the accuracy of the statament of APR. These are given in Schedule 7. The APR stated must be no more than 0.1% below the actual interest charged and no more than 1% above.

 

the reason I ask is that from day 1 of the statements provided to me the interest charged on my account bears no relation to the figures quoted in the T&C provided.... so would that mean that the agreement is improperly executed?

Edited May 12, 2010 by hunni2006
can't spell

[cymruambyth]

Surely they haven't provided the wrong t&cs!!!!!

[Hadituptohere]

Cabot wouldnt do that would they??? send the wrong T&C's and try to pass them of as the Correct ones??? SURELY NOT...

 

Hadituptohere

[hunni2006]

URGENT!!!!!

 

court tomorrow morning... and a huge skeleton argument has arrived in the post this morning.

 

"issues" according to them are as follows:-

 

1. did I sign a document online that contained all perscribed terms
   
2. did the assignor on request provide a true copy of the executed agreement containing all prescribed terms
   
3. does the claimant have any duty to comply with a s78 request
   
4. does what they have provided constitute a true copy in any event
   
5. Is the claimant the legal assignee of the agreement between the Assignor and the defendant
   
6. was notice of assignment given to the defendant
   
7. was there any requirement to send a default notice.
   

 

 

ok... so

case authorities...

• Carey V HSBC [2009] EWHC 3417 (QB)
  
• McGuffick V RBS [2009] EWHC 2386(comm)
  
• Linden Garden Trusts LTD V Lenesta sludge Disposals ltd [1994] 1 A.C. 85
  
• Kinch V Bullard [1999] 1 FLR 66
  

 

submissions

.

 

in relation to 1

 

• Claimant has adduced sufficient evidence to show that the defendant signed the credit agreement online as claimed.
  
• a signature may be electronic for regulated cca's and it was the assignor's discretion as to how such signature was provided by the defendant.
  
• Assignor has provided reasons why there is an absence of Hard copy application form.
  
• Letter provided by the assignor, dated 8th sept 2009 describes the online process & it is clear that the defendant signed the agreement by ticking the appropriate boxes indicating that she had read the 'full terms & conditions'
  
• The latter is sufficient to render the terms contained within one document, cumulatively, the agreement.
  

 

In relation to 2

 

• Evidence shows defendant made a request for 'application information' from the assignor
  
• under cover of letter dated 8/9/09 assignor provided terms and conditions 'initially sent with welcome pack'
  
• Inference to be drawn is that assignor sent to the defendant a copy of the executed credit agreement after her online application, compliant with s63 of the Act
  
• letter dated 8/9/09 and copy of the t&C constitutes a true copy of the agreement * see submissions in relation to 4
  
• All of prescribed terms are present
  

 

 

in relation to 3

 

• the claimant had no duty to comply with a request made under s78(1)
  
• the claimant has no such duty as they are not the creditor as defined by s189
  
• Claimant are legal assignee's and it is trite law that the burdens of a contract can never be assigned without consent
  
• if this analysis is correct and claimant had no duty under s78(1) then it is submitted that the claimant has provided sufficient proof for the purpose of this hearing on the balance of probabilities.
  

 

in relation to 4

• what the claimant has provided is what has been provided to them by the assignor
  
• if it is found that in relation to the fourth submission (above) that the claimant is correct in their analysis then it must follow that the claimant has complied with the s78(1) duty by providing a true copy of the executed agreement containing all of the prescribed terms in any event.
  
• if it is found that in relation to the fourth submission (above) that the claimant is incorrect in their analysis the claimant would rely on their proposition that they as legal assignees had no duty to supply the copy as requested.
  
• Claimant would further contend that the purpose of s78(1) is not proof of this claim, but the purpose behind the section is the provision of information, then the evidence adduced is sufficient in any event to prove their claim for the purpose of these proceedings.
  

 

in relation to 5

 

• Evidence adduced is sufficient to show account has been assigned to them.
  

 

In relation to 6

 

• notice of assignment may simply be notice in writing under hand. There are not other prescribed requirements as to Notices of Assignment
  
• Service of the NOA is sufficient if left at the Defendants address.
  
• Sending the NOA by ordinary prepaid post is a valid method of service in order for the NOA to have been left at the defendants address.
  
• Legally the defendant does not actually have to recieve the NOA for service of it to be validly effected
  
• Evidence shows that the NOA was created and sent to the defendants address.
  

 

In relation to 7

• No requirement to send a default notice.
  
• Circumstances in which it is necessary for a default notice to be sent are not applicable on the facts.
  
• Assignor as their remedy in this matter chose to assign defendants account to claimant. There is no Legislative provision or other rule which the claimant is aware of proscribing the Assignor from doing so.
  
• Defendant contractually agreed that the assignor could assign the account at any time.
  
• no duty on claimant to send a default notice as they are not the creditor as defined by CCA1974 for reasons previously given. Duty binds the creditor.
  
• Even if the claimant is the creditor, they have chosen not to exercise any of the remedies under s87(1) thus meaning that service of a default notice was not required.
  
• Claimants claim is for arrears only, and there is no duty for the claimant to send a default notice in such circumstances.
  

Summary

• Both as to law and fact the claimant is entitled to succeed their claim for the reasons given
  
• Defendant has alluded to Parliament's intention in enacting the CCA1974. It is accepted that protection of consumers was the intention. It was not Parliaments intention that anybody should benefit from a windfall when a valid claim has clearly been established against them.
  

 

Any helpfull comments, or links would really be appreciated....

 

Note... letter of 8/9/09 was never received ( or even sent) to me

[pt2537]

ok

Crutchley v Go Debt {2009} Liverpool High Court before HHJ Ellery

 

I dont have the case to hand but it held that a assignee is the creditor under the Consumer Credit Act 1974

 

Secondly to suggest otherwise would mean that a debt can be assigned to escape the Act which was there to protect a consumer

[hunni2006]

thanks for that PT, will try to find that

[Hadituptohere]

Bumping for you Hunni, good luck tomorrow

[underdog13]

Best of luck to you, Hunni:)

[caro]

Will be thinking of you hunni. Wish I could give you some more practical help, but I know you've put in a lot of work so you certainly deserve to win.

[determindator]

Hello Hunni,

 

Having read your thread I believe you have the upper hand. The request you've just received has been sent in an ethically unacceptable time frame to purposely make you feel ill at ease. I hope your family friend will accentuate this to show what you have had to tolerate from this company in your pursuit to get answers from them. It is unfair this company has asked these questions so late in the day.

 

I will be thinking of you tomorrow, go with gusto and will and may your litigation friend will be your rod and staff,

 

sending my love

 

x

[Hadituptohere]

Excellent words detemindator, was trying put put a few words together myself to raise hunni's confidence. These are really the **** of the earth and I feel you are so right about their motives.

 

Hadituptohere

[cymruambyth]

Good luck. YOU ARE RIGHT. Just remember that they try to baffle and ambush to try and distract you and the DJ because they know that if the law is interpreted correctly they have no case.

Best wishes for tomorrow.

[hunni2006]

thank you for all your good wishes..... heading off to court now...

 

will let you all know asap.

[caro]

Hope things have gone your way hunni.

[vjohn82]

Looking forward to hearing how this pans out

[freethemice]

Just read this thread and hoping it all went well. Either way we would all like to know.

 

Urgent you have left your name and address on the photobucket picture post number 8 image number 2

[hunni2006]

HI all

 

sorry to say, after a 5 hour court session, yet again Cabot won the battle. (didn't feel much like posting last night)

 

• the Judge seemed to see nothing wrong with the fact that they could not prove what date I had applied, and had in fact pleaded 2 different dates (neither of which was correct)
  
• accepted their argument that there was no need for a default notice, that the amount was all arrears
  
• accepted their argument that they were not the 'creditor' but could still take action against me
  
• accepted the T&C as an executeable agreement
  
• accepted a totally redacted deed of sale with NO identifying info related to the sale of My agreement
  
• accepted, that entry on a computer log is proof of production, posting and service of a notice of assignment... you don't have to receive it for it to be served.
  
• accepted the totally fictitious letters that they said were sent by Vanquis... (giving details of the wrong date for me opening the account, very precise, even giving a time, but totally wrong and supposedly enclosing T&C's) even though I had the original letters that were really sent, ( offering me a refund of charges)
  
• completely ignored the section 61a part signed by debtor and creditor and said the tick box electronic signature was enough for that.'otherwise every agreement signed online would be unexecuteable'
  

 

in his judgement he was keen to point out that although he was careful to apply the law,(yeah right) he was glad to be finding in their favour.... 'you had the card, you spent the money.' which I'm sure influenced his decision to ALLOW s69 interest on top.... ' yes I know it's discretionary, but they've been denied their money.' was all he said:evil:

 

so... all in all a pretty cr*p day.

[pt2537]

well,

 

APPEAL

 

Get hold of Crutchley v Go Debt from Law Society which is a HIGH COURT authority and go appeal