Barclaycard/Cabot/Mackenzie Hall

[Donel261]

I would love to start court action against them tig, but I am not that good and dont have a clue what to write in the court papers or back it up if they actually turned up. I am trying to learn from the Cabot Fan Club before I do anything... this has been going on for ages but we are all starting to get somewhere with them now, we have WW writing us standard letters and the good old board writing random briefings which are clearly for our attentions... ha ha (they will get there in the end, we are not going away!)

[tiglet]

I understand court action is daunting - I hope that you can sort it out without having to resort to it, but if it gets to the stage where there is nothing else you can do, CAG will be here to help and support! x

[Donel261]

Quick update, court claim lodged today against barclaycard for the unlawful penalty charges (they offered me half but I said I want it all, wonder why they pay up when they have sold on the debt? ) anyway, the total amount of charges if half the amount Cabot are claiming so we will see how it goes and once they pay up how I can use that in the future against Cabot.

 

........ and still waiting for WW to respond to my last letter, do we have his e-mail address anywhere so I can chase him?

[NailPost]

Billycard's response suggests they have either bought the debt back from Cabot or they never sold it to thm in the first place simply asking them to harrass yu on their behalf. A SARN would reveal which of these to be the case.

 

What you must guard against now is that B'card don't hand over the money to Cabot rather than to you.

[Seahorse]

Quick update, court claim lodged today against barclaycard for the unlawful penalty charges (they offered me half but I said I want it all, wonder why they pay up when they have sold on the debt? ) anyway, the total amount of charges if half the amount Cabot are claiming so we will see how it goes and once they pay up how I can use that in the future against Cabot.

 

........ and still waiting for WW to respond to my last letter, do we have his e-mail address anywhere so I can chase him?

 

WWellinghoff@cabotfinancial.com

[Donel261]

Snap! I had a letter from WW this morning.

 

Poor thing, he must have wanted to get them all out before he hung up his polka dot cravat for the Easter break. I am sure he will be watching oue little group to gage reaction before planning the next batch of nonsense letters.

 

It reads:

 

Dear Donel261,

 

Thank you for your letter dated 8th March 2007.

 

I regret that you felt the need to write to Cabot Financial (Europe) Limited ("Cabot") and apologise for any inconvenience that you may have experienced in relation to this matter. I am dissapointed to learn that you felt that my previous response did not satisfactorily deal with your concerns. However, I shall adequately respond to your retrospective conerns below and set out the accurate position.

 

I note that you have advised Barclaycard of your legal proceedings in relation to the unlawful charges. Cabot purchased your account from Barclaycard on or about 23rd July 2005 and has not at no applied any charges to the account. The current outstanding balance on your account is £881.14 which is the amount Cabot is legally entitled to collect.

 

Cabot has always acted appropriately and in accordance with the relevant laws, regulations and guidance applicable in our industry and specifically in accordance with provisions of the Consumer Credit Act 1974 and the Data Protection Act 1998.

 

Your view on the definition of creditor is a misconception. Cabot is not a creditor for the purpose of the Consumer Credit Act 1974 as confirmed in previous correspondence. The fact the duties cannot be assisgned is a matter of common law which applied to contractural assignees such as Cabot, which is effected by the deed of assignment and the original credit agreement.

 

You state in your letter that we have failed to supply an executed copy of your credit agreement under the Consumer Credit Act 1974 ("the Act"). Cabot has supplied you with a copy of the original credit agreement as supplied by Barclaycard. Although the credit agreement is marked "Application", once signed, it constitutes a valid credit agreement for the purposes of the Consumer Credit Act 1974. You shall note from the copy supplied to us from the creditor, Barclaycard, that your signature supported the statememt "This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms." It is therefore clear that you were in clear agreement with the terms applicable and that you agreed that you were bound by the terms of the agreement since 7 December 1998, which was the date you signed the agreement.

 

It may not be clear from the copy of the credit agreement that an authorised representative of Barclaycard signed the agreement (which Barclaycard would have) but it is absolutely clear that in consideration for your acceptance of the terms you received credit in the form of a credit card and used the same to access funds from Barclaycard. Therefore you expressly, if not impliedly, entered into an executed Credit Agreement with barclaycard for funds.

 

Notwithstanding the above, it is not our duty to supply a copy of the credit agreement as I have clarified in previous correspondence.

 

In relation to the purschase of your account, Cabot has completed all necessary requirements in confirming the validity of the account. As stated above, Cabot is legally entitled to collect the outstanding balance on your account. Cabot's responses have at all times been clear and in no way intended to confuse or mislead any person.

 

In relation to your concerns abut processing your data, Cabot is legally entitled and obligated under the original credit agreement and assignment documentation to process information and also report to the credit reference agencies. Furthermore, Cabot discloses information to credit reference agencies about customers' conduct of their accounts because that disclosure is necessary for the purposes of legitimate interests persued ny us, other members of the credit industry and credit reference agencies. Credit Reference Agencies hold such data and disclose it to prospective lenders because that is, similarly, necessary for the purposes of the same legitimate interests.

 

Under the original terms of the credit agreement, which you signed with the creditor, you consented to information being disclosed to third parties and credit reference agencies. Accordingly, that data protection act, permits disclosure of such information to and by credit references agencies without customers consent. Unless such time it is proved that information registered with the credit reference bureaux is factually incorrect, we cannot agree to have the entry deleted. Please also note that Section 55 of the data protection act relates to unlawful buying and selling of data and is not applicable to the current circumstances.

 

Unfortunatley Cabot cannot accept your offer of £300 in full and final settlement and further cannot delete the entry with the credit reference bureaux. However, Cabot is again prepared to extend the gesture of goodwill for one payment of £600 in full and final settlement of the matter. Cabot has already offered you a significant reduction on the true outstanding balance in the interest of settling this matter. Once we receive the amount in full and final settlement , your credit reference file shall be updated as soon as possible to confirm your account is satisfied. However, if you decide to issue proceedings against us, Cabot shall strongly defend the same and will enter a counterclaim against you.

 

I trust I have clarified all points raised in your letter and look forward to your proposals for repayment.

 

Yours Sincerely

 

 

Willem Wellinghoff

Head of Compliance

 

Well, what can I say WW, a lot of wind and puff when stripped down and hardly an adequate response at all.

 

You have simply failed to address any of my concerns or clarifiy any of the points raised in my original letter to you. You have again droned on repeating and quoting your original letter, confidently asserting that you are right and I am wrong.

 

However, all is not lost, I am glad to see that you now suggest you are willing to roll up your sleeves and have a fist fight with me "Cabot shall strongly defend the same and will enter a counterclaim against you."

(Bring it on you wannabee!!!)

 

I am of the view that your suggestion that we settle this matter in court to allow you to have your day is probably the best way forward in settling this matter, I therefore refuse any further "repayment" pending the conclusion of my court action against Barclaycard for "50%" of the amount you now claim I owe, which consists of "UNLAWFUL" charges!! thereafter I will come after you, initate the action and let you prove your worth in court.

 

I am bored with you now WW, I have been reasonable and you have spat in my face with these nonsense arguements, get a new cravat for court!!

[tbern123]

Your view on the definition of creditor is a misconception. Cabot is not a creditor for the purpose of the Consumer Credit Act 1974 as confirmed in previous correspondence. The fact the duties cannot be assisgned is a matter of common law which applied to contractural assignees such as Cabot, which is effected by the deed of assignment and the original credit agreement.

 

WW, you really need to stop using the same old patter..

 

So duties cannot be assigned.. I know exactly where you got this from. However, I think you will find it is the duties of the Debtor and not the Creditor that cannot be assigned.

 

As you are fully aware the CCA 1974 states VERY clearly:

 

189 Definitions

(1) In this Act, unless the context otherwise requires—

“creditor” means the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law, and in relation to a prospective consumer credit agreement, includes the prospective creditor;

 

Just in case you missed it:

 

his rights and duties under the agreement have passed by assignment or operation of law

 

notice the use of the word and ?? So if they can't be assigned why does the CCA 1974 say they can. You have to consider that this legislation was introduced over 30 years ago. Surely, if it was wrong, it would have been changed by now ?

 

As a employee of Cabot Financial, you will also be fully aware that they are active members of both the Credit Services Association and the Debt Buyers & Sellers Group.

 

In fact I am sure you are aware that you CEO, Mr Ken Maynard is in fact the Chairman of the Debt Buyers & Sellers Group.

 

Dr Roger Lucas, who was the vice-chairman and may still be of the Credit Services Association, also represents the Debt Buyers & Sellers Group (remember the one your boss is chairman of) has kindly made the following statement:

 

"Roger Lucas, of the Debt Buyers and Sellers Group, said: "When we take assignment of debts we stand in the place of the original creditor so it’s only right we should have the same obligations and rights."

Credit Today online

 

 

 

Well said Dr Lucas:

"When we take assignment of debts we stand in the place of the original creditor"

 

"it’s only right we should have the same obligations and rights."

 

Just to also clarify as confirmed by UNADKAT & Co (ACCOUNTANTS) LTD And ASHOK BHARDWAJ .V. The TREASURY SOLICITOR [2006] EWHC 2785 (Ch) paragraph 2, the interested party became the creditor by virtue of a deed of assignment.

[Donel261]

He can't help it, he is employed to get rid of us and he cant. He is too stubborn to admit defeat but he can't defend the undefendable.

 

Thing is, when you google Cabot Financial our little club comes up if they got over themselves and settled we would probably not be challenging them and giving them the bad press .

 

I am certain WW reads these boards, identify yourself sir!!

[tbern123]

I note that you have advised Barclaycard of your legal proceedings in relation to the unlawful charges. Cabot purchased your account from Barclaycard on or about 23rd July 2005 and has not at no applied any charges to the account. The current outstanding balance on your account is £881.14 which is the amount Cabot is legally entitled to collect.

 

In relation to the purschase of your account, Cabot has completed all necessary requirements in confirming the validity of the account. As stated above, Cabot is legally entitled to collect the outstanding balance on your account. Cabot's responses have at all times been clear and in no way intended to confuse or mislead any person.

 

Here we go again !!!!!

 

Notice the use of the word account.

 

Not Debt and not rights, but account

[tbern123]

 

In relation to your concerns abut processing your data, Cabot is legally entitled and obligated under the original credit agreement and assignment documentation to process information and also report to the credit reference agencies. Furthermore, Cabot discloses information to credit reference agencies about customers' conduct of their accounts because that disclosure is necessary for the purposes of legitimate interests persued ny us, other members of the credit industry and credit reference agencies. Credit Reference Agencies hold such data and disclose it to prospective lenders because that is, similarly, necessary for the purposes of the same legitimate interests.

 

Really ????

 

Shame the ICO don't agree.

 

Cabot Financial (UK) Limited is registered as a data controller with the ICO. In this instance they act as the Data Contoller and as their appointed agents, Cabot Financial (Europe) should only act as Data Processor.

 

However, as they have kindly confirmed Cabot Financial (UK) Limited does not hold any data. So this would mean that Cabot Financial (Europe) Limited, must be acting as the Data Controller.

 

I have an email from the ICO and they feel that Cabot Financial (Europe) have misinterpreted their position..... Cabot Financial (Europe) Limited are not legally obligated or allowed to do diddly swot

[tbern123]

In relation to the purschase of your account, Cabot has completed all necessary requirements in confirming the validity of the account. As stated above, Cabot is legally entitled to collect the outstanding balance on your account. Cabot's responses have at all times been clear and in no way intended to confuse or mislead any person.

 

According to my SAR, they don't actually do anything to confirm the validity of the account. I would guess the same is true here. Otherwise they would have noticed that the form is not signed by Barclaycard and is not enforceable without a court order. As the selling of it is enforcement action, it should never have been sold.

[tbern123]

. However, if you decide to issue proceedings against us, Cabot shall strongly defend the same and will enter a counterclaim against you.

 

What ???

 

A counter claim for what exactly ??? The agreement is not enforceable without a court order, as they don't have one, there is nothing they can do. I would take that statement as a bully boy threat....

 

You know the best way to deal with bullies, is to stand up to them !!!

[tbern123]

Sorry for all the posts, they are just starting to annoy me by keep repeating the same old rubbish over and over again !!!!

 

Make a complaint to the FOS, they will charge Cabot over £400 to investigate your complaint. As the agreement is not executed the law is actually on your side and there are court cases that support this. I'll find the cases later.

[tbern123]

He can't help it, he is employed to get rid of us and he cant. He is too stubborn to admit defeat but he can't defend the undefendable.

 

Thing is, when you google Cabot Financial our little club comes up if they got over themselves and settled we would probably not be challenging them and giving them the bad press .

 

I am certain WW reads these boards, identify yourself sir!!

 

You are right, so does their Solicitor Mr Spencer of Hodsons....

 

On my threads, they should be more worried about the things I don't post and plan to present in court, then the things I do post. I can't wait for my day in court.....

[Donel261]

No you post away Tbern, thanks for the input!! they are annoying me today, I have a slight hangover and a cabot letter is not the best way to start the day :roll:especially when its content is tripe.

 

I also have a little something up my sleeve that I intend to present in court regarding the data protection side and the way they have managed my "account". They have made a big booo booo!!

[Rhia]

Just caught up with this post. Tbern your posts have countered all the points that I was chuckling about. The rights and duties bit has them tied in complete knots. One minute they are using rights and duties, the next they don't have to. This rather splendid pick and mix approach dubs them the Woolworths of the legal profession.

They cannot add any interest to a default balance under CCA 1974 yet they have so you need to demand disclosure. This has given me such a laugh...happy Easter all. Just go for them D!

[InKogneeToh]

Hi

 

Just been reading about your Cabot saga (haven't I seen this somewhere before?? )

 

Right- my favourite topic - the credit agreement! (Should I apply for Mastermind?)

 

In fact why am I still here? - I could be earning loads of lolly helping them to draft proper ones! - but we don't want to give them that, do we?! )

 

Anyway - back to this wonderful and all powerful 'agreement' that they allege you signed and which they have gone beyond the call of duty to provide you a copy of!

 

Does it contain any reference to a credit limit (or how it is to be determined), the interest rate and the amount/frequency of repayments?

 

Does it mention T&Cs 'overleaf'?

 

Check all the small print carefully and then we can play that great Panto game - Oohh yes it is! Oohh no it isn't!

 

Regards, Pam

[Donel261]

Hi

 

Does it contain any reference to a credit limit (or how it is to be determined), the interest rate and the amount/frequency of repayments?

 

Does it mention T&Cs 'overleaf'?

 

Hiya Pam,

 

It would help if I could actually read the writing on the "application form" they have provided to me but I doubt very much it will contain any of that information as it is a copy of a form you could pick up in Sainsburys, complete and send off, its not specific to interest rates, repayment, or a credit limit.

 

It takes the poor man a month to come up with a new response letter and all he does is change the paragraphs around and repeat the same thing.

 

When I get charges back from Barclaycard I will take this feckers to court.

[InKogneeToh]

Hiya Pam,

 

It would help if I could actually read the writing on the "application form" they have provided to me but I doubt very much it will contain any of that information as it is a copy of a form you could pick up in Sainsburys, complete and send off, its not specific to interest rates, repayment, or a credit limit.

 

 

 

Hi

 

Are you able to photograph or scan it and post it up? I'd be interested to see it (minus personal info. of course).

[Donel261]

No scanner at home, can do it when I return to work on Wednesday though. I have just trauled through seahorses thread as I know he posted an image of the application form but I couldnt find it.

 

Seahorse, have you still go the image saved?

[psykix]

Just caught up with this post. Tbern your posts have countered all the points that I was chuckling about. The rights and duties bit has them tied in complete knots. One minute they are using rights and duties, the next they don't have to. This rather splendid pick and mix approach dubs them the Woolworths of the legal profession.

They cannot add any interest to a default balance under CCA 1974 yet they have so you need to demand disclosure. This has given me such a laugh...happy Easter all. Just go for them D!

 

Is this correct? They cannot add interest to a default balance? If this is correct, then how come the defaults on my credit file show one balance when it was defaulted, and a vastly higher balance at the present time?

 

I need to know this - could be added ammo for me

[Rhia]

This is what the OFT says about this (the bit in blue is the meaty bit):

Debt Collection Charges

1.10 In the Office’s view, there is no legal basis for a creditor (or a debt collection agency acting on the

creditor’s behalf) to claim collection costs from a debtor in the absence of express contractual

provision in the agreement between the debtor and the creditor. If there is no such provision, then

collection charges cannot be demanded as a debt due under the agreement. If an agency claims an

entitlement to recover charges pursuant to a separate agreement with the debtor, there must be a

binding contact to this effect, with legal consideration (ie benefit) provided to the debtor. A letter

served on the debtor merely informing him that he is liable to pay certain charges is not in the Office’s

view such an agreement, regardless of whether it is signed by the debtor.

1.11 The above applies to all credit agreements, whether regulated or not, although for regulated consumer

credit agreements there is an additional reason why costs might not be recoverable. The Consumer

Credit (Agreements) Regulations 1983 require inclusion in the credit agreement of an indication of any

charges payable on default. If this is not included, the agreement is not properly executed, and so will

not be enforceable against the debtor without a court order.

1.12 It is the responsibility of creditors and debt collection agencies to ensure that they do not recover

collection charges in the absence of an express contractual provision entitling them to do so.

Furthermore, debtors should not be led or allowed to believe that they are legally liable to pay such

charges where this is not the case. Failure to act in accordance with these principles is likely to be

regarded by the Office as an unfair or improper business practice within section 25(2)(d) of the

Consumer Credit Act and thus relevant to the issue of fitness to hold a consumer credit licence.

1.13 If there is any ambiguity in the debtor-creditor agreement as to whether it covers a particular charge, or

as to the permitted amount of the charge, the Office considers that this should be resolved in favour of

the debtor as this is the approach likely to be adopted by a court in construing the agreement.

Furthermore, even if collection charges are provided for in the credit agreement, where charges are

levied which are of an unreasonable amount and/or are disproportionate to the main debt, this too may

be regarded by the Office as an unfair or improper business practice within section 25(2)(d) of the

Consumer Credit Act. If firms are in any doubt they should consider taking legal advice.

Office of Fair Trading

Consumer Credit Policy Section

17 January 2000

[InKogneeToh]

Hi

 

The above is only in relation to 'collection charges', e.g. charges for letters/visits or late/missed payments etc. and is not about the interest that is payable under the terms of the agreement. If the charges are not specified in the actual agreement they cannot be applied.

 

Regards, Pam

[Rhia]

There is something elsewhere re default balances and I can't find it at the moment will post it as soon as...

[psykix]

So really I need to SAR Cabot and the original creditors to find out what constitutes the difference between the original debt and the amount they currently stand at? Will they be included if I SAR them?

 

Not sure if time is on my side though to do all this, considering they already have a charging order over my property...

 

Sorry for hijacking the thread!