Me v Cabot

[diddydicky]

Too many of you have made the same mistake of misinterpreting the relevant section of the CCA.

 

You CANNOT be held to be in default of, for instance S78, where you cannot supply a copy of an agreement because it does not exist.

 

IF ANY was inserted to clarify that the recipient of a CCA request would not be in default of that request under that very circumstance. Otherwise, prior to the 2006 amendments, you would then be saying that failure to produce an agreement after the prescribed term, EVEN WHERE THERE NEVER WAS AN AGREEMENT, means the creditor would have committed a statutory offence. That makes absolutely no sense whatsoever.

 

I'm afraid that failure to understand that and, either willfully or in ignorance, choose to interpret that section of the Act as meaning that No Agreement = Creditor in Default of Request, is quite clearly erroneous.

 

It is patently ridiculous to suggest that a creditor MUST produce something in response to a request, where there IS nothing to produce.

 

Agreed, far too many supply worthless application forms or non compliant agreements and call them Regulated Agreements. But that in itself does NOT mean that they have failed in their duty under the relevant section. It simply means that they have failed to produce something which does, in fact, not exist.

 

As for someone's contention that I should apologise for other comments, I say this: If you find yourself in court faced with a barrage of questions as to why you think you are right, and the creditor is wrong, you are going to look pretty silly if you haven't understood what people have been telling you, and you fall apart.

 

So, no. I make no apology.

 

the "if any" was more likely to have been included to cover agreements pre 1985 IMO and/or because some agreements will exist but not be "executed" agreements

 

many agreements for instance do not have the creditors signature which makes them non executed agreements and the creditor would need to apply to a court to enforce them

 

Even if your reason for the "if any" is taken at face value then it would be included precisely in order to prevent the act of not providing what the creditor cannot provide from being an offence or default in itself.

 

However , the PURPOSE of s78 is to PREVENT the creditor from enforcing an agreement if it is not properly executed therefore he can gain no relief from the consequences of failing to comply with s78 UNLESS AND UNTIL he does comply

 

thus if he later finds an executed agreement he can then re commence enforcing it.

 

If your interpretation of "if any" was valid then all a creditor need say to ANY s78 request is "sorry pal- aint got one" and he is " off the hook" - don't be a chump !

 

If we were not dealing with regulated agreements (which must be properly executed) we would not be making s78 requests

 

The reason i suggested that you apologise to other caggers had nothing to do with the validity of the arguments you put forward, however i suggest you already know that!

 

If caggers have not fully understood the legal arguments and "fall apart" in court they do so with the best intent and doing the best that they can to defend themselves and do not really need buffoons like you putting them down.

 

David did not really stand a chance against goliath - but at least he had a go

 

IMHO cag does not need know it alls and bigheads like you!!

Edited November 27, 2009 by diddydicky

[hungrybear]

Too many of you have made the same mistake of misinterpreting the relevant section of the CCA.

 

You CANNOT be held to be in default of, for instance S78, where you cannot supply a copy of an agreement because it does not exist.

 

IF ANY was inserted to clarify that the recipient of a CCA request would not be in default of that request under that very circumstance. Otherwise, prior to the 2006 amendments, you would then be saying that failure to produce an agreement after the prescribed term, EVEN WHERE THERE NEVER WAS AN AGREEMENT, means the creditor would have committed a statutory offence. That makes absolutely no sense whatsoever.

 

I'm afraid that failure to understand that and, either willfully or in ignorance, choose to interpret that section of the Act as meaning that No Agreement = Creditor in Default of Request, is quite clearly erroneous.

 

It is patently ridiculous to suggest that a creditor MUST produce something in response to a request, where there IS nothing to produce.

 

Agreed, far too many supply worthless application forms or non compliant agreements and call them Regulated Agreements. But that in itself does NOT mean that they have failed in their duty under the relevant section. It simply means that they have failed to produce something which does, in fact, not exist.

 

As for someone's contention that I should apologise for other comments, I say this: If you find yourself in court faced with a barrage of questions as to why you think you are right, and the creditor is wrong, you are going to look pretty silly if you haven't understood what people have been telling you, and you fall apart.

 

So, no. I make no apology.

 

 

I've been 'avoiding' this 'discussion, but what the hell. If there is no agreement then yes fester is technically correct you cannot be in 78(6) default for not supplying it and there is no statutory offence because the cca does not apply- there is no agreement regulated by the cca and therefore any monies given were exactly that, given. This is because 'if there is no agreement then the sum given to the debtor must be viewed as a gift without and realistic expectation of its repayment'. That's pretty much word for word from case law but I cannot remember off the top of my head which one. If you guys really want I will dig it out though, just to get all the toys back in the pram

[diddydicky]

I've been 'avoiding' this 'discussion, but what the hell. If there is no agreement then yes fester is technically correct you cannot be in 78(6) default for not supplying it and there is no statutory offence because the cca does not apply- there is no agreement regulated by the cca and therefore any monies given were exactly that, given. This is because 'if there is no agreement then the sum given to the debtor must be viewed as a gift without and realistic expectation of its repayment'. That's pretty much word for word from case law but I cannot remember off the top of my head which one. If you guys really want I will dig it out though, just to get all the toys back in the pram

 

don't bother on my account- i don't mind debate but my beef is more to do with his holier than thou attitude!! IMO he is clearly a "barrack room lawyer"

[vjohn82]

I don't know... diddy on one hand and fester on the other... but which one is better???

 

FIIIIIIGGGGGGGHHHHTTTTTT!!!!

 

[copyright Harry Hill]

[appo0712]

Hi all, another letter from Cabot. Account has been escalated to their Pre Litigation Dept.

 

They have increased the debt by £753.53 since sending me the copy of the application form

 

Should i resend as below, and should i ask why they have increased the debt wilst it's in despute.

 

"Dear cabot,

 

Nothing you sent either complies with my cca request or provides any proof whatsoever of a legally enforceable debt. In the absence of any further documentation this matter remain in cca section 78(6) dispute. Naturally you may, at your choice and own cost, refer the matter to a district judge who will confirm this situation.

 

If you write again I trust you will enclose definitive legally enforceable proof that there is a matter I need to discuss further, else I fail to see what meaningful response I could give"

Edited December 10, 2009 by appo0712

[vjohn82]

Hi all another letter fron Cabot, Account has been escalated to their Pre Litigation Dept.

 

Funny that... my wife received the exact same letter today from Cabot.

 

Looks like the automated computers are on overtime ;-)

[hungrybear]

Hi all another letter fron Cabot, Account has been escalated to their Pre Litigation Dept.

 

They have increased the debt by £753.53 since sending me the copy of the application form

 

Should i resend as below, and should i ask why they have increased the debt wilst it's in despute.

 

"Dear cabot,

 

Nothing you sent either complies with my cca request or provides any proof whatsoever of a legally enforceable debt. In the absence of any further documentation this matter remain in cca section 78(6) dispute. Naturally you may, at your choice and own cost, refer the matter to a district judge who will confirm this situation.

 

If you write again I trust you will enclose definitive legally enforceable proof that there is a matter I need to discuss further, else I fail to see what meaningful response I could give"

 

That's what I would send, along with an I do not acknowledge any debt, kindly prove there is a matter ti discuss, take me to court or stop harassing me.

 

OR

 

File it under I for ignore - they no more have a pre-litigation department then my local chinese takeaway does!

[appo0712]

Hi All,

Cabot sent me a letter saying i need to to elaborate futher (regards my post #55). Should I send them the account in despute letter pointing out the failings, or play their game and sent one saying I dont understand their last letter and ask them to elaborate more.

[vint1954]

Hi All,

Cabot sent me a letter saying i need to to elaborate futher (regards my post #55). Should I send them the account in despute letter pointing out the failings, or play their game and sent one saying I dont understand their last letter and ask them to elaborate more.

What exactly do they want you to elaborate on?

[appo0712]

Update, account passed onto, Mogan (Cabot's in house solicitors).

Morgan have sent a copy of the application form, and are trying to use the words "This is an agreement regulated by the CCA 1974"

 

Should I respond to them, or just add it to my collection of junk sent by Cabot?

 

http://i898.photobucket.com/albums/ac188/appo66/cabot/morgan.jpg

[appo0712]

Hi all.

Just received a CCJ from Morgans, issues by Northamptons CC.

[Hadituptohere]

Have uo had any previous paper work from Northampton court, is it actuall a ccj or just a claim issued at Northampton?

 

Hadituptohere

[diddydicky]

Hi all.

Just received a CCJ from Morgans, issues by Northamptons CC.

 

i assume you mean that you have received a claim from them- not a ccj

 

since they have not yet provided you with the prescribed terms- they are prevented from enforcement

[appo0712]

Hi Hadituptohere & diddydicky,

 

Sorry my mistake, It is the claim form that they sent. Issued at Northhampton.

[appo0712]

Hi,

I'v just logged onto the Northampton CC website. The question i have is, do I just complete the Acknowledgment of Service?

If that is the case I assume I'l need to contact either Cabot or Morgans Solicitors, but i'm not sure on the type of letter to send. Any help or ideas would be most welcome.

The issuse date was the 21st

 

Thank you

[Hadituptohere]

Hi, I think as you have received a claim in County court your thread should be moved to legal issues by one of the site team, you should acknowledge service and then make a CPR 31.14 request to Morgans, try this thread for advise

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

Hope a few others will be about soon to help you out

 

Hadituptohere

[appo0712]

Hi All,

 

Original post

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/234277-me-cabot.html

 

Cabots have faild to send a true copy the the CCA, and passes the account to their in house soliciots, Morgan.

Who in turn stated that Cabot are not responceable for compliance with S77 / s78 of the CA 1974, as "Cabot is the Assignee of the contractual benefits of the Credit Agreement", and it's a matter of contractual law, where they gain from the benefits but excludes them from the burden of liabilities.

Morgan have sent me a copy of the CCA application form, and are using the the words "this is a credit agreement regulated by the comsumer credit agreement only sign if you want to be legally bound bt its terms"

A long with this they sent a financial statment of account fron Cabot, and copy of a letter of assignment with the words stamped on it "representation of a letter sent to the customer"

 

The POC on the Northhampton CC claim form are:

The Caiment is the assignee if the debt

Credit Card Ref xxxxxxxxxx

Notice of assignment having been given to the Defendent in writing. Dispite demands for payment, £xxxxxx remains due.

The Caiment claims £xxxxx + interest under s.69 County court Act 1984 + costs.

 

 

I've just logged onto the Northampton CC website. The question i have is, do I just complete the Acknowledgment of Service?

If that is the case I assume I'l need to contact either Cabot or Morgans Solicitors, but i'm not sure on the type of letter to send. Any help or ideas would be most welcome.

The issuse date was the 21st

 

Thank you

 

Note for Site admin; Sorry if i've cross posted, but i'm unsure on how to get the post moved.

[maroondevo52]

Hi, appo0712.

 

I have unapproved your duplicate post and merged your other two threads on this subject together.

 

Regards.

 

Scott.

[vint1954]

Hi All,

 

Original post

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/234277-me-cabot.html

 

Cabots have faild to send a true copy the the CCA, and passes the account to their in house soliciots, Morgan.

Who in turn stated that Cabot are not responceable for compliance with S77 / s78 of the CA 1974, as "Cabot is the Assignee of the contractual benefits of the Credit Agreement", and it's a matter of contractual law, where they gain from the benefits but excludes them from the burden of liabilities.

 

Well, they might like to think so, but they are wrong. The OFT and the CCA confirm that third parties purchasing debts are in fact the creditor.

 

Morgan have sent me a copy of the CCA application form, and are using the the words "this is a credit agreement regulated by the comsumer credit agreement only sign if you want to be legally bound bt its terms"

A long with this they sent a financial statment of account fron Cabot, and copy of a letter of assignment with the words stamped on it "representation of a letter sent to the customer"

 

But those terms have to be correct!

 

The POC on the Northhampton CC claim form are:

The Caiment is the assignee if the debt

Credit Card Ref xxxxxxxxxx

Notice of assignment having been given to the Defendent in writing. Dispite demands for payment, £xxxxxx remains due.

The Caiment claims £xxxxx + interest under s.69 County court Act 1984 + costs.

 

 

Their POC is poor and they are not allowed to charge interest on a regulated agreement. Muppets.

 

I've just logged onto the Northampton CC website. The question i have is, do I just complete the Acknowledgment of Service?

 

Service of the Money Claim is deemed 5 days after the date on the claim. You then have 14 further days to acknowledge the claim, then a further 14 days to put in your defence. Keep a close watch on these dates.

If that is the case I assume I'l need to contact either Cabot or Morgans Solicitors, but i'm not sure on the type of letter to send. Any help or ideas would be most welcome.

The issuse date was the 21st

 

Thank you

 

Note for Site admin; Sorry if i've cross posted, but i'm unsure on how to get the post moved.

 

You need to acknoweledge the claim online and tick the box that states you will defend in full, if that is your intention.

 

Next you will need to send a CPR31.14 letter to the claimants solicitors to request documents. This is critical to get off early. Watch the dates for return of info bearing in mind the court timescales.

 

I will find a letter that you can use.

 

You need to understand fully all of the processes and your case\defence as it will be you that possibly has to defend this in court.

[vint1954]

You need to get this off to their solicitors, today or tomorrow. You will need to read it through and understand it, making sure it is correct for your situation before sending. Send this Recorded delivery, first class signed for.

 

You have given them seven days to respond, following service, so check when it is signed for add 7 days. If there is no response then a further letter needs to be sent.

 

You need these documents before you submit your defence.

 

 

 

 

27th April 2010

 

 

 

Dear Sir,

 

Re: xxxxxxxxxxxxx v xxxxxxxxxxx Case No: xxxxxxxxxx

 

CPR 31.14 Request

 

On xxxxxxxxxxx 2010, I received the Claim Form in this case issued by you out of the Northampton ( CCBC ) County Court.

 

I confirm that I am in the process or returning my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Prior to the issue of proceedings I had delivered a request for the production of the agreement mentioned in the Claim Form and on which you rely. That request was ignored.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

 

1 The agreement, a true copy of both sides of the original executed agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the originals should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

2 The default notice issued by the Original Creditor

 

3 The termination notice issued by the Original Creditor

 

4 The deed of assignment relating to this account between xxxxxxxxx and xxxxxx

 

5 Any other documents mentioned in the Particulars of Claim

 

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy.

 

Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any versions to include an obligation to recover and preserve such versions, which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

Yours faithfully

[appo0712]

Hi Vint1957,

 

I've sent my acknowledgement of service to the court this morning, and prepared a requset for documentation via CPR31.14 and also included a request via CPR18 for all additional info that they intend to use. This will go out in tonights post

 

Morgan Solicitors

PO Box No 250

West Malling

Kent

ME19 4EX

 

CPR31.14 Request

On 23 April 2010 I received the Claim Form in this case (Ref:Removed ) issued by you out of the Northampton Count Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following document(s) mentioned in your Particulars of Claim

 

1: the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached

 

2: the notices & deeds of assignment You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party. In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defenceIf you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you

 

REQUEST FOR INFORMATION UNDER CPR 18

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

I have received a recent court claim Case Ref: Removed issued from your organisation out of the Northampton County Court. In order to file a defence and counter claim I require some information. Given that this matter is now the subject of legal proceedings, you are obliged to disclose under the Civil Procedure Rules, the information and documents detailed below.

The information must be furnished within fourteen days of the receipt of this letter. If you fail to comply, this will be reported to the Court, a copy of this letter will be provided as evidence to the same and an Order enforcing your compliance will be sought.[/

1. A true copy of the 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. 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

1.1 If copies of any of the above documents are to be relied on in court rather than originals, a copy of the Notice of Proposal to adduce hearsay evidence required under s2(1) of the Civil Evidence Act 1995 together with proof of the authenticity of the document(s) as required under s8(1)(b) of the Act, including but not limited to

(a) a copy of the procedure(s) used for copying, storing and retrieving documents

(b) a copy of the relevant log entry showing the time and date of the scan or copy, the name of the member of staff making the copy, the method used for copying, storage and retrieval and time and date of destruction of the original document(s)

© copies of internal and external audit reports covering the entire period from the date of the copy to the present to demonstrate that the procedures have been complied with

(d) copies of Quality Assurance accreditation certificates covering the entire period from the date of the copy to the present to demonstrate that the procedure(s) and audit process(es) comply with the appropriate quality standards

2. All records you hold on me relevant to this case, including but not limited to:

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

b. 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 Barclaycard

c. .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

d. Details of any collection charge 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

e. 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

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

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

3. Any other documents you seek to rely on in court. I will require this information within the next fourteen days. I must advise you that if the information is not forthcoming, it will be reported to the Court that you are trying to frustrate proceedings and denying me the opportunity to file a defence

 

Yours faithfully,

Edited April 27, 2010 by appo0712
Removed formating codes from text

[vint1954]

Well done. Keep an eye for confirmation of delivery on the Royal Mail website, then add 7 days.

 

At that point we need to send a hurry up and think about an embarrassed defence

[appo0712]

Just checked for confirmation of delivery, but online tracking shows, was posted at (post office) on 27/04/10 and is being progressed through our network for delivery. (I've had this several times in the past, although the post does make it the postal address the tracking states the same).

 

I'm not sure on the dates for deadline, do i allow for the weekend and bank holiday.

The CC was issued on 21/4 (acknowledgement done online 27/4 requesed 28 days)

CPR 31.14 & 18, sent on 27/4

[appo0712]

anyone have an idea of the deadline dates, is it working day or are the weekend and bank holiday inculded?

[appo0712]

Morgan have sent info regarding CPR 31 & 18

I'll scan and upload later on today.