Cabot Financial – Dealing with Cabot Financial

[Stephan56]

In response to the Judge's question to Exasperated of "Do you owe money", maybe a better response (of use to tohers in future) is to say somethign like "not if the agreement does not meet the legal requirements" or "that is what we are here to determine, your Honour, as you will not doubt be applying the correct legal analysis to this".

 

You do NOT want to sound TOO CLEVER but it is imporatnt not to "make admissions" that make it easy for a Judge to rule against you.

 

We ALL borrowed money on credit cards, cannot pay it back and are getting hassled. That is why we are here. We "owe" the money.

 

However, for a creditor to collect there are TWO hurdles:

 

1. The debtor must genuinely have borrowed the money and not paid it back; AND

2. The creditor must have a CCA compliant and legally enforceable agreement.

 

It is a TWO PART TEST. Most creditors can get over Part 1. it is Part 2, due to their own rubbish documents and negligent record keeping that trips them up. And that is what the law provides.

 

Judges need to be reminded that you (the debtor) look to them to apply the law, even if that results in a decision that judge personally does not like.

[Fester Tester]

The fact that money may be owed is irrelevant. The question is, do they have any right to enforcement of that debt.

 

So the answer to the damning question should always be, "That is not what we are here to determine."

[exasperated]

In response to the Judge's question to Exasperated of "Do you owe money", maybe a better response (of use to tohers in future) is to say somethign like "not if the agreement does not meet the legal requirements" or "that is what we are here to determine, your Honour, as you will not doubt be applying the correct legal analysis to this".

 

You do NOT want to sound TOO CLEVER but it is imporatnt not to "make admissions" that make it easy for a Judge to rule against you.

 

We ALL borrowed money on credit cards, cannot pay it back and are getting hassled. That is why we are here. We "owe" the money.

 

However, for a creditor to collect there are TWO hurdles:

 

1. The debtor must genuinely have borrowed the money and not paid it back; AND

2. The creditor must have a CCA compliant and legally enforceable agreement.

 

It is a TWO PART TEST. Most creditors can get over Part 1. it is Part 2, due to their own rubbish documents and negligent record keeping that trips them up. And that is what the law provides.

 

Judges need to be reminded that you (the debtor) look to them to apply the law, even if that results in a decision that judge personally does not like.

S56,

Totally agree and if I could have that time again the outcome would surely be different. This though should be a warning to others that we, as you have rightly said, should continue forming our game plan and have a strategy in place for all eventualities.Companies like Cabot will continually change their game plan and if we sit back we wont be ready for them.

This is a great idea of yours S56

Exasp

[exasperated]

The fact that money may be owed is irrelevant. The question is, do they have any right to enforcement of that debt.

 

So the answer to the damning question should always be, "That is not what we are here to determine."

 

Fester,

I would change many things and if I get my time again (as I am now beginning the process of trying to get the CO removed) I will be much better prepared and the first words out of my mouth in repsonse to that question would be along the lines you have suggested

Exasp

[exasperated]

S56,

Totally agree and if I could have that time again the outcome would surely be different. This though should be a warning to others that we, as you have rightly said, should continue forming our game plan and have a strategy in place for all eventualities.Companies like Cabot will continually change their game plan and if we sit back we wont be ready for them.

This is a great idea of yours S56

Exasp

Sorry scabhunter started the thread so apologies and praise to him also

Exasp

[kitchenboy]

Hi Hunni,

I got a charging order from an unsecured loan and went to court after only being a cag member for a few weeks last year. The judge was an absolute nightmare and said he had 1 question 'did I owe the money' I replied 'yes but' expecting to give my side of the argument. No buts he said and granted them the order. I have to say that we should start a new thread as it cannot legally correct that you enter an agreement with a creditor on a unsecured basis and they can change that to secured without your written permission.

Good luck with yours, hope you do better than me

 

I am so sorry this happened to you, but his is my point about arguing the CCA as your main defence, don't get me wrong of course it is important but you ultimately take a risk as it relies on how well you can argue the points and some sort of judge lottery. This is why I think the assignment argument is effective because you are not arguing whether you owe an alleged debt but the right for Cabot etc to sue in their name. How can they do this without the original T&C's regardless of whether an enforceable agreement exists.

 

Also equitable assignment can take place whether there is an agreement or not and you don't need to be notified. The OC can just pick up the phone and tell X to collect from Y and they have made the assignment. So you are not arguing against the assignment just what form it takes.

 

Absolute assignment is bit of a grey area and as how I understand it, absolute assignment under the Law of Property act was envisioned as a means to protect the assets of a business being sold or when changing hands and debt being owed is an asset. However the trading of consumer debt is something that in the grand scheme of things is quite a recent development, so they rely on the act as some sort of blanket cover, as it would be just too expensive for them to effect an assignment correctly, as it may require some form of novation.

[kitchenboy]

Also this may help;

 

Where a facility agreement required the prior written consent of the borrower in order for the loan to be assigned, the Court of Appeal has held that in order for an assignment of the loan to be valid prior actual or deemed consent must be received.

and

 

This decision emphasises the importance of carrying out comprehensive legal due diligence before purchasing debt on the secondary market. If there has been a previous assignment of the debt, as part of this legal due diligence, a purchaser will need to check whether borrower consent was required for such an assignment. If so, it must be determined whether consent was given (either express or deemed) prior to the assignment being executed, or whether the borrower waived the consent requirement.

Source: Barbados Trust Company Limited (formerly known as CI Trustees (Asia Pacific) Limited) v (1) Bank of Zambia (2) Bank of America N.A. [2007] EWCA Civ 148

[Stephan56]

I agree the Assignment issue (and effectively challenging the "standing" of the DCA to bring the claim in the first place) is VERY IMPORTANT and a strategy/tactic we need to "flesh out". I have been trying to research it - but not easy - and I have trouble (so far) gettng my head around it. Nevertheless, i wil persevere, as no doubt will others.

 

For me, if no Agreement can be produced then everything that flows from the Agreement must fail. For example, no doubt and Agreement DID (i) allow for assignment/sale of debt without borrower consent (whereas in a commercial setting borrower consent often required) (ii) allow processiing of data etc.

 

The problem is, Mr DCA, YOU HAVE NO AGREEMENT. Not just a faulty agreement which is unenfoceable as to the debt claimed as key terms missing) but NO AGREEMENT WHATSOEVER to produce to the Court. You SAY you have all these rights, and there IS an Agreement, but can never produce one.

 

I would have thought the Court system, in general, would have said that a COPY OF THE ORIGINAL AGREEMENT must be attached to any claim. That woudl stop the DCAs and others filing claims with no proper documentation. That said, the way the Courts let DCAs get away with things is a real scandal

[Fester Tester]

It is a delaying tactic at best. All Cabot needs to do is issue an effective NOA, and the assignment is absolute. Thereby giving them every right to pick uo and start again.

[Fred Bassett]

I joined the Cabot Fan Club this week heres my thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/225933-spamheed-cabot.html

 

Not a lot has happened up to now, I got exactly the same introduction letter and another allegedly from Egg, however the coding on the side of both letters proves that they were both created on the same machine, by the same operator - so either Cabot are impersonating Egg or vise versa.

 

 

When I spoke to Trading Standards about it, they felt that it was a matter for the police as it would be misrepresentation, however they would be more than happy should Cabot continue to chase after being told about the dispute.

 

I agree that a single thread with guidance on best practice would be beneficial to all (except Cabot)

 

Spamheed,

 

Have you seen this thread. Think you'll find it interesting.

 

Regards.

 

Fred

[Fred Bassett]

Could somebody please explain, for my benefit, what the difference is between an equitable assignment and an absolute one, and how the CCA is affected by this. I'm struggling to keep up with this thread because of a fundamental lack of knowledge here.

 

Thank you.

 

Regards.

 

Fred

[spamheed]

Spamheed,

 

Have you seen this thread. Think you'll find it interesting.

 

Regards.

 

Fred

 

Hi Fred I think you forgot to post the link?

[cymruambyth]

Fred curyben stated this earlier:

Absolute - the DCA owns ALL the rights and duties of the original creditor and can enforce the agreement through the courts in their own name.

 

Equitable - the DCA has the right to collect the debt, but needs to work with the OC if legal enforcement is required. Also they may need to refer to the OC over certain matters.

on this thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115450-what-deed-assignment.html

[PriorityOne]

If the assignment WERE absolute, then Cabot cannot claim that the CCA does not apply, when they are challenged for copies of agreements.

 

Thay cannot have it both ways.

 

 

Cabot haven't claimed that the CCA does not apply.... the CCA was made to the original creditor 2 years ago .... and was sold while still in dispute. All I had to do was point this out to Cabot and they went quiet for a very long time because they seem to have no paperwork at all.... despite contacting the original creditor several times (apparently).

 

They've since re-emerged with some very strong bully tactics (in writing), which are against OFT guidelines on debt collection and complete bowlarks as well.... so they're not doing too well. They also tried very hard to pressurise me into 'phoning them, but because they'd already had a S10 Notice which was ignored and instructions not to contact me by 'phone (mentioning various Acts).... must have felt it would be unwise to breach anything else, so have never 'phoned me apart from at the very beginning when they bought the account and I told them to b*gger off.

 

At the moment, they don't seem to know how to answer me. They've had 2 official complaints from me so far and need to be very careful what they print because every time they send anything, I rip it apart and send a reply (by rec. delivery)

 

There is no CCA (to date), the request is 2 years old, the original creditor tried to default the same account twice and got caught out (hence the sale), the balance upon assignment was incorrect.... it doesn't correspond with the original default notice and the assignment is invalid....

 

I don't have a detailed thread on it.... because I know they trail these forums and prefer to keep certain things back but if anything interesting develops, I'll let you know.

 

Fun times....

[Fester Tester]

Cabot tend to keep quiet when faced with this situation. Every so often they might (and are actually obliged to anually anyway) send a statement. But it is the pitiful fart of an ancient dog that has long ago lost its teeth.

 

I often think that the way to provoke any sort of meaningful action on their part, thereby getting them to take court action where you can tear them to pieces and be rid once and for all, would have been to act slightly less aggressive from the outset and lull them into a false sense of security.

 

Way too late for thatfor me now of course. Hindsight certainly IS a wonderful thing.

[Fred Bassett]

Hi Fred I think you forgot to post the link?

 

 

Sorry Spamheed - it's this one, but I think you've see it now anyway:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/225773-saddler10-cabot-egg.html#post2507970

 

Regards.

 

Fred

[Fred Bassett]

Fred curyben stated this earlier:

Absolute - the DCA owns ALL the rights and duties of the original creditor and can enforce the agreement through the courts in their own name.

 

Equitable - the DCA has the right to collect the debt, but needs to work with the OC if legal enforcement is required. Also they may need to refer to the OC over certain matters.

on this thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115450-what-deed-assignment.html

 

Thanks cymruambyth, how would I find out if my Cabot agreement is equitable or absolute?

 

Regards.

 

Fred

[cymruambyth]

Is it on any of their 'representations of a document you would have received'? Otherwise, write and ask them? (they should know....)

[hunni2006]

Try getting them to provide you with a copy of the deed of assignment/bill of sale.....

they seem to have great trouble in providing that.

[Fred Bassett]

Is it on any of their 'representations of a document you would have received'? Otherwise, write and ask them? (they should know....)

 

Thanks. I ask, because I wrote to Cabot recently and suggested that I pop into their office to view the originals. They told me that they don't hold the original documents and that these had probably been destroyed anyway.

 

I'm expecting things to kick off with Cabot very soon, so this thread could be very well timed for me.

 

Regards.

 

Fred

[Fred Bassett]

Try getting them to provide you with a copy of the deed of assignment/bill of sale.....

they seem to have great trouble in providing that.

 

This is part of the reason for my argument with them. What they provided was a great big pile of dung - 3 months after Morgan Stanley/Goldfish had zeroed the balance. I've told Cabot I think they are committing fraud. All they've been able to send since is something that they say 'would have looked like' the deed of assignment.

 

Fred

[Fred Bassett]

Hello guest. How's West Malling today?

[PriorityOne]

I often think that the way to provoke any sort of meaningful action on their part, thereby getting them to take court action where you can tear them to pieces and be rid once and for all, would have been to act slightly less aggressive from the outset and lull them into a false sense of security.

 

 

Yes, you're probably right, but I have no desire to battle this out in court. If they do choose to take me there, then I will.... but my paper trail will be huge.

 

[maxruda]

hello I'm about to go down this path it would appear and as a complete novice would appreciate instructions and help.

 

firstly a question:

 

If the last contact you had from egg was in 2006

 

(had a little disagreement with the individual who called my mobile.

Somehow, despite not having a card on the account for 2 years, the balance went over the credit limit while all minimum payments had been made for the 2 years without a card on the account! i stated I'd not pay till they came back to me and they never did)

 

and the cabot letter has been sent to an address you haven't lived at for over 8 years, does the address the CCA was taken from have to be concerned as that is where cabot sent the letter not to another more current address that Egg had on file. (which i no longer reside at)

 

or is it as simple as returning the letters to cabot in the post marked 'not at this address'?

 

 

and wait for cabot to track me down through electoral roll etc?

 

The owner of the property the CCA was first taken at is concerned about the credit file on his property.

 

Also please do let me know my best course of action.

 

Is there anyone who has a simple contractual or procedural route to minimising the settlement or negating it all together?

 

I need help, please, I've not done this before and it looks like a veritable minefield to meander through!

[exasperated]

Hi Maxruda,

I would suggest you start your own thread where you will receive better more pertinent advice to your questions. Title the thread Maxruda V Cabot and simply copy what you have put here and you will get lots of help.

When I joined cag I did the same thing and was told what I have told you.

You by the sounds of it though are in a very 'good position' but egg agreements on here caused great confusion until mastered by one of the site team.

Also to save time the site teasm will need to see your agreement to evaluate the next course of action so you will nedd to get a copy of it on your new thread.

Here's how if you have a scanner...

 

If you have access to a scanner I suggest you scan the agreement and post it on this thread after **removing all personal details**

All these matters seem time consuming at first but you will quickly realise that in order to solve your problem you have to be meticulous

 

Here is how if you have a scanner

 

1)Scan the document onto your computer saving it on the desk top or another file where you can find it.

2) Then go to the image and open with paint, using the 'rubber' in paint shop remove all your personal details including the loan number etc, anything which can be tracked back to you.

3) Type www.photobucket.com and open an account, dont worry its easy to do you just supply an email address and then choose username and password.

4)On the front page it will have button saying 'upload image' and when pressed will access your computer. Search for the edited agreement and upload onto photobucket.

5) Where the image is now loaded on photobucket you simply give it a name if you want and then click on the image to open it. There will be four boxes of link codes on the bottom left of the screen so you may share the image with others and the one I use is the IMG code. You need to copy this code in its entirety and then paste that code onto your thread here. When you preview your thread it should then change from a load of letters etc to the edited agreement.

Hope this helps and don't forget to edit all your personal info

Exasp