Court Papers arrived - DebtControl V Cabot/MSDW

[car2403]

I'm not sure I agree it's a success until the details of what won, where and how are shared for the masses to consider it a 'success'

[Debtcontrol]

I'm not sure I agree it's a success until the details of what won, where and how are shared for the masses to consider it a 'success'

 

**EDITED** I am keen for any relevant information to be shared, albeit without mention of my personal circumstances.

 

For my part, I will keep it short then as I want to share any DCA bashing available:

 

My case was dismissed & Cabot were ordered to pay costs.

 

Of course they have right of appeal, but given that they were found wanting on several points (explained in an earlier non moderated post) they would perhaps have difficulty doing so.

 

Hope this helps Car.

 

DC.

Edited February 14, 2011 by car2403
Referring to previously edited posts

[pt2537]

 

Of course they have right of appeal,

 

.

It is true they have the right to appeal, but, the problem is that they couldnt satisfy the judge, as set out in the judgment, that they could on balance show that the agreement was properly executed or that they had complied with s78 (1)

 

Therefore appealing is really unlikely to be open as these were findings of fact on the evidence, and they would essentially be saying the judge was barking mad if they tried to appeal, as the trial judge is entitled to make those findings on the evidence

[debbbbsy]

Plus Cabot got a real kicking from the judge, and I understand its not the first time this month, so they have to be shaken I hope and perhaps will reassess the way they do business? I'm not holding my breath though!

 

This information needs to be shared. We have just recieved a Notice of Assignment ( dated 9 Feb) from Cabot, with a cut & pasted barclaycard logo. Its evident that the letter has been manufactured by Cabot and is not a genuine Barclaycard letter. Also, Barclaycard have already admitted almost 3 years ago that they have been unable to locate the Agreement, and yet Cabot are demanding payment. They clearly have not learnt there lesson.

[pt2537]

This information needs to be shared. We have just recieved a Notice of Assignment ( dated 9 Feb) from Cabot, with a cut & pasted barclaycard logo. Its evident that the letter has been manufactured by Cabot and is not a genuine Barclaycard letter. Also, Barclaycard have already admitted almost 3 years ago that they have been unable to locate the Agreement, and yet Cabot are demanding payment. They clearly have not learnt there lesson.

Ah

 

Cabot hold licence to produce the notice of assignment by virtue of their assignment agreement, it seems a theme within the deeds themselves.

The fact Barclaycard dont have the agreement is no bar on litigation, however, if they do litigate then does that mean the claim is an abuse of process ? maybe, if they cant plead their case properly

 

Also you would need to plead this in your defence and set out the issues etc, clearly concisely etc, and remember just because they cant find the agreement does not mean there wasnt one

 

and you need to be aware that Cabot may well try and introduce evidence to say that there was an agreement, and that it was properly executed etc. Whether that gets them home or not is another matter.

[debbbbsy]

At the moment they are only demanding payment. However, interestingly, they admitted over the phone that the account is not enforceable.

[Basil Fawlty]

Ah

 

Cabot hold licence to produce the notice of assignment by virtue of their assignment agreement, it seems a theme within the deeds themselves.

The fact Barclaycard dont have the agreement is no bar on litigation, however, if they do litigate then does that mean the claim is an abuse of process ? maybe, if they cant plead their case properly

 

Also you would need to plead this in your defence and set out the issues etc, clearly concisely etc, and remember just because they cant find the agreement does not mean there wasnt one

 

and you need to be aware that Cabot may well try and introduce evidence to say that there was an agreement, and that it was properly executed etc. Whether that gets them home or not is another matter.

 

Pt, are you saying that Cabot are different from anyone else, in that they can produce a Notice of Assignment themselves, rather than the original creditors?

 

BF

[pt2537]

At the moment they are only demanding payment. However, interestingly, they admitted over the phone that the account is not enforceable.

then they are not breaking any rules if they are simply asking for payment, although if you have an admission from them, then that may well be dynamite if they progress with litigation

[pt2537]

Pt, are you saying that Cabot are different from anyone else, in that they can produce a Notice of Assignment themselves, rather than the original creditors?

 

BF

not really, many of the do so, Link Financial do too from my experience

[Basil Fawlty]

not really, many of the do so, Link Financial do too from my experience

 

And do the judges normally look kindly on them for doing so, in your experience?

[pt2537]

And do the judges normally look kindly on them for doing so, in your experience?

its contained within the Deed, so yes mostly they do, some frown on it but at the end of the day, its not gonna get you to a winning position with who sends the notice,

[diddydicky]

most judges will be looking to see if the assignment was served on the defendant- therefore an admission that it has been received- albeit from the assignee rather than the assignor- is probably going to satisfy most lower court judges (IMO)

[Basil Fawlty]

most judges will be looking to see if the assignment was served on the defendant- therefore an admission that it has been received- albeit from the assignee rather than the assignor- is probably going to satisfy most lower court judges (IMO)

 

 

And if its been sent by ordinary 2nd class post for example, as they often do, there's no proof it was received?

 

BF

[pt2537]

And if its been sent by ordinary 2nd class post for example, as they often do, there's no proof it was received?

 

BF

then that comes down to witness evidence

 

IE they produce the person who says they placed it in the care of the Royal Mail

[diddydicky]

And if its been sent by ordinary 2nd class post for example, as they often do, there's no proof it was received?

 

BF

 

 

My point was that If receipt of the NOA has been acknowledged by the defendant - then it matters not if it was recorded, first class , second class or carrier pidgeon-- from the assignor or by the assignee on the assignors behalf- the purpose is served if the defendant admits knowledge of it.

 

Therefore it would be unwise to refer to or acknowledge receipt of something that has not been properly served upon you!!

[Basil Fawlty]

My point was that If receipt of the NOA has been acknowledged by the defendant - then it matters not if it was recorded, first class , second class or carrier pidgeon-- from the assignor or by the assignee on the assignors behalf- the purpose is served if the defendant admits knowledge of it.

 

Therefore it would be unwise to refer to or acknowledge receipt of something that has not been properly served upon you!!

 

Thanks dd, that was my point...that if they have sent you a NoA by ordinary post, there is no proof of this unless you admit receiving it, though pt states that they only have to show that someone sent it, though I still dont understand how this shows proof of receipt.

 

BF

[diddydicky]

Thanks dd, that was my point...that if they have sent you a NoA by ordinary post, there is no proof of this unless you admit receiving it, though pt states that they only have to show that someone sent it, though I still dont understand how this shows proof of receipt.

 

BF

 

 

i don't agree with PT- the law of property act is pretty clear as to what constitutes service- and whilst they could swear an affidavit that they posted it- if the defendant positvely asserts no knowledge of the NOA - then unless there is a record of its delivery to the intended recipient i cant see that they would get very far for it is for them to prove- not for the defendant to disprove

 

which is precisely why the act says what it says!

[DonkeyB]

edit

 

Thanks dd, that was my point...that if they have sent you a NoA by ordinary post, there is no proof of this unless you admit receiving it, though pt states that they only have to show that someone sent it, though I still dont understand how this shows proof of receipt.

 

BF

 

PT mentions they may get the person who supposedly sent the item to swear it was sent.

 

In one case elsewhere, we have exactly this situation – the claimant has issued a WS stating that letters were sent first class, as is their norm, and by that person.

 

Luckily, CAG-learned good practice means we can prove second class postage on contemporaneous envelopes that contained similar documents, from a different building many miles away – so another angle is simply to discredit the witness. This won’t be much use with the bigger companies though, where they have better (and sometimes proper) processes in place.

Edited February 14, 2011 by DonkeyB
offensive remarks removed I DO NOT BELIEVE THEY WERE OFFENSIVE – D

[car2403]

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[pt2537]

Thanks dd, that was my point...that if they have sent you a NoA by ordinary post, there is no proof of this unless you admit receiving it, though pt states that they only have to show that someone sent it, though I still dont understand how this shows proof of receipt.

 

BF

 

no no no, i suggest that they may try to establish service via means at their disposal, i have seen this accepted by the Court recently in Hastings where they merely served witness evidence to say they served the notice

 

I didnt say i agree with that and that its right, only that they may try it

[car2403]

no no no, i suggest that they may try to establish service via means at their disposal, i have seen this accepted by the Court recently in Hastings where they merely served witness evidence to say they served the notice

 

I didnt say i agree with that and that its right, only that they may try it

 

Interesting questions to be asked here about the Civil Evidence Act and hearsay, surely?

[pt2537]

Interesting questions to be asked here about the Civil Evidence Act and hearsay, surely?

but when you have a person giving direct evidence, such as "I placed the letter in the post box" then that will be given weight by the Court, and whether or not its right for the Court to decide that the letter was indeed posted surely becomes a matter for the appeal judge at the appeal court at the end of the day really.

 

This is the problem, and it seems many judges are quite prepared to accept that too

[Basil Fawlty]

no no no, i suggest that they may try to establish service via means at their disposal, i have seen this accepted by the Court recently in Hastings where they merely served witness evidence to say they served the notice

 

I didnt say i agree with that and that its right, only that they may try it

 

Thanks pt, I didnt think that you agreed with it, sorry if I gave that impression. I was just confused that they could get away without any proof of receipt, only a proof of posting, especially as I thought I'd read somewhere that a NOA had to be properly served by using registered post and receiving a signature.

 

BF

[car2403]

but when you have a person giving direct evidence, such as "I placed the letter in the post box" then that will be given weight by the Court, and whether or not its right for the Court to decide that the letter was indeed posted surely becomes a matter for the appeal judge at the appeal court at the end of the day really.

 

This is the problem, and it seems many judges are quite prepared to accept that too

 

Indeed.

 

There'll be a chain of causation to challenge, of course - if it's someone who deals with 1,000's of these letters each day, how can they be certain that THIS one was posted, etc.

 

Of course, as with any argument, it's about how you counter what they are saying, and you're always on the back foot in those situations, I'd guess.

[Ford]

generally. for eg note S4, and cpr 33.4/5 where there is only a 'statement'.