County Court Claim

[IdaInFife]

-----------------------------------------------------------------

 

Please explain why you appear to be so emphatic with your statement.

 

 

 

Call me stupid, but the Application Form does not appear to contain :

• The Amount of Credit
  
• Credit Limit
  
• Interest
  
• Repayments
  
• An Authorised Signature by a Goldfish person
  

Therefore. when are "prescribed terms" not "prescribed terms"..?

 

In fact, What ARE prescribed terms which enable an application form to suddenly become an enforcable CCA ??

 

 

in your links can see

 

credit limit

interest

repayments

 

which are required for an enforceable cca

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

 

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit

 

 

what do you think makes it unenforcebale?

[stupot59]

in your links can see

 

credit limit

interest

repayments

 

which are required for an enforceable cca

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/105315-my-agreement-enforceable-useful.html

 

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit

 

 

what do you think makes it unenforcebale?

 

 

I must be naive, but rumour has it that things like rate of interest and credit limit shoud be specific and contractual, insomuch as two parties, creditor and debtor agree to those figures in the agreement and both sign the agreement on that basis. Isn't that what a Consumer Credit Agreement is ?

 

A document which just says

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

 

...that seems vague in the extreme...Who in their right mind would sign and agree such a clause as this ?

 

????

[IdaInFife]

you ain't getting it.

 

 

the above shows you what an agreement is required for the prescribed terms

 

on the links you have posted it has credit limit, which will be determined from time to time

 

repayments - in your link it details about your repayment terms

 

interest - in your links it shows you what itnerest you would pay in different circumstances

 

if everything like the above is on an agreement then a if a credtors signature is missing this in itself does not render and agreement unenforceable

 

if you can maybe say why you think it is not enforceable?

 

ida x

[stupot59]

So what you are saying is that I should cancel my defence of the claim and concede to CABOT ?

 

I am assuming that as a Site Team member you have some legal savvy(please confirm) concerniong this, but as a point of info for myself, why are prescribed terms so vague ? I have always taken the view that contracts should be specific, e.g. if the interest rate is 1.5% oer month, the agreement should state that, if the credit limit is £3,000 the agreement should state that too...Obviously, if market conditions change the lender can offer a new agreement to the borrower in the form of a new CCA. I am aware that there are arguements on this forum concerning the issuance of new CCAs every time a credit card is replaced with a new one..this is a different issue, but I cannot see any reason why a lender cannot operate in a less vague manner.

 

What are you views on my situation regarding the non issuance of valid notices of assignment, then subsequent questionable "representations" of said documents turning up from Cabot months after ?

 

What would a judge think of this when he/she reads my defence ?

 

Thanks

[ScabHunter]

I can't get into arguments over the enforceability or otherwise of the agreement because I simply can't read it.

 

I think the DN is going to be vital in this case, especially if the agreement is enforceable. stupot59, do you have a copy of any default notice you may have received? If not, I would suggest sending a SAR to the original creditor.

 

You have sent a CPR 18 letter. Crapbot will just ignore that. You can request disclosure at the AQ stage, but that is at the court's discretion. Although the OC will have 40 days to comply, I think it is still worth sending. You never know how many delays and adjournments there might be.

 

SH

[stupot59]

Thanks SH....In fact I have already sent a SAR to Goldfish/Morgan Stanley..

 

I sent it by special delivery to

Goldfish Bank Ltd.

P.O. Box 10001

Glasgow

G68 9ZJ

 

Can anybody confirm this address as correct? I seem to remember that Goldfish were taken over by Barclays I think...that's my reason for the question.

 

--------------------------------------------------------------------

 

There has been no Default Notice provided by either Goldfish or Cabot.

[Desperate Daniella]

Hi,

 

You are right. Barclaycard took over the Goldfish accounts. Hopefully!! your letter will be forwarded to them but just in case you should probably send a copy and covering letter to:

 

Barclaycard

1234 Pavilion Drive,

Northampton Business Park

Northampton

NN4 7SG

 

They are the people who are supposed to deal with supplying copies of CCAs, but of course they usually don't and just ignore you.

 

DD

[IdaInFife]

I am only commenting on your question about the enforceability of your cca and what may be deemed as enforceable and what is required.

 

the majority of site team members have no legal training(including myself) but we can only give you advice through experience and what info is availabie and of course the same goes for many many memebers of cag

 

i have not and cannot comment on your defense or court case itself as we use a different legal system as to proceedings, your thread is now within legal issues and you will get help regarding the court process from others are are more knowlegeable like SH etc

 

ida x

[car2403]

I'm not sure what you can achieve by Defending a claim when you have an enforceable agreement

 

As has been mentioned, the Default Notice might be unlawful, etc, so that seems the best plan of attack.

 

When is your Defence due? I don't think a holding Defence asking for the DN to be disclosed would be strong enough, at this stage.

[stupot59]

My Defence is due 12th November...

 

I am very interested in defending this claim, as I believe that Cabot have acted unlawfully in creating documents which never existed, presumably thinking I will just lay down and die.

 

..The absence of Default Notices adds spice to the dish !

 

If this claim is undefended Cabot will no doubt believe they can perform in the same way and with complete impunity...so help required please !...Any questions will be promptly answered.

[stupot59]

Aren't Crapboot legally required to disclose documents on which their case relies ? If. as is said, they ignore my request and bank my 10 quid anyway, would it be worth mentioning this within my defence ?

[stupot59]

you ain't getting it.

 

 

the above shows you what an agreement is required for the prescribed terms

 

on the links you have posted it has credit limit, which will be determined from time to time

 

repayments - in your link it details about your repayment terms

 

interest - in your links it shows you what itnerest you would pay in different circumstances

 

if everything like the above is on an agreement then a if a credtors signature is missing this in itself does not render and agreement unenforceable

 

if you can maybe say why you think it is not enforceable?

 

ida x

 

----------------------------------------------------------------------

 

I draw your attention to the following link on this forum :

 

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-2.html

 

It seems others are in disagreement with you....Kindly explain why you are adamant that a properly executed Consumer Credit Agreement does not have to bear the signatures of both parties...

 

Re : An "executed agreement" must be properly formatted and must be signed by both parties

 

Also, I am still interested as to how clauses which do not specify the ACTUAL interest rate or ACTUAL credit limit can be binding as "Prescribed Terms" Please clarify..

 

Regards,

 

stupot59

[stupot59]

Thread moved to Legal Issues, you OK with that stupot59.

 

Regards.

 

Scott.

 

 

Thanks Scott !

[stupot59]

From the 'Vague' POC that Cabot have issued, it would not be possible for you (the Defendant) to submit a proper defence.

 

Cabot must disclose to you all documents that relate to the case; documents that support their claim.

 

When you receive your AQ (allocation questionairre) you will have to request 'Directions' and then you will be able to submit your amended defence.

 

 

At what point do I receive the AQ ? If I am approaching the deadline for submission of my defence and I do not have the required disclosure from Carboot, what do I do then ?

[car2403]

----------------------------------------------------------------------

 

I draw your attention to the following link on this forum :

 

 

http://www.consumeractiongroup.co.uk/forum/general/33174-consumer-credit-act-agreements-2.html

 

It seems others are in disagreement with you....Kindly explain why you are adamant that a properly executed Consumer Credit Agreement does not have to bear the signatures of both parties...

 

Re : An "executed agreement" must be properly formatted and must be signed by both parties

 

I think you need to tone your replies down a little, matey. With attitude like that, you'll soon find the number of people on here willing to help you dwindling. I'm sure that isn't your intention, but we're all on the same team, here, right, so let's act like it please.

 

As for the signature, there is "proof" as you put it, in s.60/s.61 of the CCA 1974, which states the requirements for an agreement to be properly executed. To be such, it requires the signature of both parties - debtor and creditor. If one of them is missing, the agreement is improperly executed and enforceable under a Court order only by s.65.

 

The answer to your question, though, lies in s.127(3), which states that an agreement, containing the prescribed terms that does not have a debtors signature is excluded from having an enforcement order issued under s.65. Ergo, a missing creditor signature will mean an improperly executed agreement that can be enforced by the Court under a s. 65 order.

[stupot59]

Thanks indeed and apologies if my tone seemed a bit "out-of-order"....Perhaps I am getting a bit stressed over this and feel the need to gain some solid assistance dealing with it....When I read posts on this forum that appear to conflict, I obviously wish to know which has more merit and what grounds form each of the contributors' opinions.

 

Thanks again..!

[car2403]

I would trust site team's opinion

[stupot59]

Ah Ha

 

Vague POC from Cabot, as ever!

 

 

I am wondering whether or not my best defence is staring me in the face...Carboot's POC make no mention of the Agreement, only the Assignment of the alleged debt....and "Notice of Assignment having been given to the Defendant in writing."

 

As this was never received either from the Original Creditor or Cabot (only a pair of shoddy cut and pasted "representation" letters some 6 months after the event, received from the DCA) I believe that this should be the main thrust of my defence.

 

Any comments ?

[stupot59]

I am pondering on whether to send a CPR 31.14 request to Crapbot and their solicitors. However, I think I may be restricted in what I can ask for, as, the claimant's POC mentions only the assignment of the debt...no agreement..no default notice etc.

 

After having already sent CPR 18 to Cabot...(Which they will probably ignore), plus a request to visit their premises and inspect the original agreement...perhaps the CPR 31.14 could be a bit OTT..

 

Any opinions are welcome..

 

Stupot59

 

 

[stupot59]

I will greatly appreciate any responses to my above 2 posts..as the clock is ticking on my defence presentation..

 

Thanks,

 

stupot59

[stupot59]

From the 'Vague' POC that Cabot have issued, it would not be possible for you (the Defendant) to submit a proper defence.

 

Cabot must disclose to you all documents that relate to the case; documents that support their claim.

 

When you receive your AQ (allocation questionairre) you will have to request 'Directions' and then you will be able to submit your amended defence.

 

 

Thanks for your info AC...I assume that if Cabot fail to repond to my request for disclosure of all docs. I will have to plead an "embarrassed" defence will I not?

 

In this instance should I mention only what is included in the claimants POC ? Or should I mention all other documents which Cabot have failed to disclose after my written request ?

 

Cabot have mentioned only assignment and notice of assignment ..nothing whatsoever about an agreement or default notice..

 

At what stage of the proceedings do I receive the AQ ?

 

Thanks again..

[stupot59]

I sent a CPR 31.14 to Carboot's solicitors, Morgan on 1/11/09 requesting verified and legible copies of 1) The Deed of Assignment and 2) The Notice of Assignment.

 

My Embarassed Defence was submitted on 11/11/09

 

Morgan have now replied to my letter enclosing yet another, different "representation" of a notice of assignment, allegedly sent to me on 26/3/08.There appears to be little doubt that this is another "cut & paste" job.

 

As for the Deed of Assignment they have said that because, as a document, it was not cited in the POC it is not covered under CPR 31.14

 

I suppose that's true notwithstanding the wording of the POC, i.e. "The Claimant is the Assignee of a Debt(s) from Goldfish Bank Ltd." I would however, appreciate any comments from you guys on whether I can insist on receiving a copy of the assignment itself, based on the wording of the POC.

 

Perhaps with the POC being so vague, Cabot are going to rely solely on their two hashed up versions of the alleged notice of assignment. Would they really have a valid, winnable case using what can only be described as spurious documentation ?

 

Meanwhile my SAR to Barclays has resulted in only copies of credit card statements...I have sent another request for ALL documentation.

 

I will be interested to receive your feedback/comments/suggestions on my case...

[stupot59]

After having submitted my "embarassed" defence I have now had three letter exchanges with Morgan Solicitors (acting for Cabot) within which they have provided the following :

 

1. A 2nd version "representation" of an alleged Notice of Assignment letter

2. A copy of what they say is the Deed of Assignment. This appears to be a schedule of terms and conditions of a sale that took place roughly about the time Cabot first appeared on the scene and is signed by various bods from Goldfish and Cabot. The document however, makes no mention of my name within it, or the price paid for the debt and could therefore apply to anybody.

3. A lengthy document which allegedly provides a record of all Cabot's actions with regard to my "account." Within it they state that a letter termed HEL007 was sent...They appear to believe that this is proof that the hashed up "representation" Assignment Notice letters are valid. They state that because ...Quote - "this information is stored electronically we refer to it as a "representation."

 

I am interested in the fact that Morgan have actually sent me what they believe is a valid Deed of Assignment, after earlier saying that they are under no obligation to provide it, as it was not cited in the POC.

 

In addition, the "stored electronically" chestnut seems a bit thin...If there is an ongoing dispute or business with a customer's account a company would surely be falling short of good business practice if they were unable to produce copies of original documents, especially as the issues are current and it is not as if these documents are old. I am interested to learn anybody's opinion and what my next action should be. I am happy to provide copies of documents, but only by PM..

 

I must confess, I am feeling more confident about my case and, win or lose, the opportunity to expose the failings of this DCA and their representatives seems a tempting attraction.

 

Thanks...

 

stupot59

[stupot59]

Getting a bit concerned that nobody is replying to my posts...I really need help with this and was under the impression that I can get that here....Have the site team "blackballed" me for my rant of a while back ? (to which I have apologised)..

 

I cannot believe that none of the original contributors to the thread have nothing to say in reply to my latest posts....

 

Anyhow...I guess we all have our own paths to tread...

 

stupot59

[car2403]

 

Have you asked a question that has gone unanswered, Stu? Can you point it out.

 

Normally, with these things, if you aren't getting replies, it usually means you are right and no one has any more to add/say on the subject. I do know what you mean, though.

 

If only site team could blackball folk - I can think of a few who deserve it, actually. (But I won't be drawn on who ) Sadly, that tool is reserved for Admin, not Site Team.