Cabot/FIRE Help Please - TSB CC debt 2006

[Peterbard]

Are Cabot aware that you have a long standing repayment arrangement in place ?

 

Perhaps a letter advising them of this and offering to transfer the payment to them on proof of assignment of the debt.

 

The CCA issue is a bit of a red herring, although I am sure there will be many hours of fun sending requests back and to. The request itself is simply a request for information, failure to provide a copy does not place the account in dispute and failure to reply within the statutory period merely means that they cannot pursue the debt through the courts, which I don't think they intend doing anyway.

 

If they have bought the debt they should maintain any ongoing repayment arrangement, the sensible approach to this would be to advise them of this and get back here when we know what they say.

[BRIGADIER2JCS]

Brigadier2jcs

 

Will I still continue to pay my £5 per month to TSB. Also what will I say to Cabot in my reply?

 

Yes keep paying TSB least until the CCA situation is clear.

 

A simple letter to The Compliance Manager

Cabot Financial.

 

 

Ref: use theirs.

 

Sir/Madam

 

I refer to Cabots letter date xx.xx.xxx. in reply to my request made under sections 77/78 of the Consumer Credit Act 1974 (as amended.

 

As Cabot must be aware the time scale allowed for compliance with such a request is 12 + 2 Working Days not 40 days.

 

This proposed time scale is unreasonable as Cabot is aware.

 

Therefore I expect Cabot to comply with my lawful request within the time scale laid down in the act.

 

I am however prepared to allow a further 7 days to allow Cabot to obtain the requested documents.

 

As this account predates April 2007 please be aware a 'reconstituted agreement' is unacceptable.

Edited December 3, 2013 by ims21
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[Peterbard]

The Op's choice absolutely, however what exactly is sending this letter supposed to achieve?

 

They are taking to long to reply to a request for information, so what, it does not mean that the debt is in dispute. It certainly does not resolve the problem.

 

 

If it were me I would contact them and ensure that they were aware of a repayment arrangement, and ensure that it was transferred then I would get on with my life.

Edited December 3, 2013 by ims21

[dx100uk]

Sri no....

 

once/if they fail the 12+2 please send the failure to comply letter and stop payment

 

ruddy fleecers.

 

dx

[Peterbard]

Well Ok as long as the OP is aware that they only have to create a reconstructed agreement and they will be able to take her to court, and also that they will use the failure to maintain a repayment arrangement as evidence to support their claim.

[dx100uk]

or that they've been cash cowing them for years and the OP found cag...

 

I've never seen a debt goto court and the defendant be further 'punished' because they stopped payments

when the claimant failed to provide what the defendant considered was an enforceable CCA.

 

regards

 

dx

[Peterbard]

or that they've been cash cowing them for years and the OP found cag...

 

I've never seen a debt goto court and the defendant be further 'punished' because they stopped payments

when the claimant failed to provide what the defendant considered was an enforceable CCA.

 

regards

 

dx

 

There are now documented cases of creditors enforcing none existing agreements, and for the sake of a fiver a month, personally I would not risk it.

Anyway the OP has a variety of opinions to chose from, and is aware of possible consequences of any action which is not a bad thing IMO

Edited December 3, 2013 by Dodgeball

[Peterbard]

Yes of course a recon agreement can be presented to satisfy a section 78 request no matter when it was executed ??

Thought this was common knowledge.

 

Sorry if I appear to be questioning everything you say, we seem to have the same area of interests.

Edited December 3, 2013 by ims21

[Peterbard]

Yes keep paying TSB least until the CCA situation is clear.

 

A simple letter to The Compliance Manager

Cabot Financial.

 

 

Ref: use theirs.

 

Sir/Madam

 

 

 

As this account predates April 2007 please be aware a 'reconstituted agreement' is unacceptable.

 

)

 

I know the brigg is probably ignoring this , but for the sake of anyone else viewing and particularly the OP , this is completely incorrect, there is no reason a reconstructed agreement cannot be supplied on an agreement no matter when it was executed, and it would comply with the requirements of section 78 of the act.

 

I have no idea where the idea came from that anything else was the case.

[BRIGADIER2JCS]

a recon may and only may satisfy a CCA request BUT it will not suffice to enforce the debt via the courts in this case.

Edited December 3, 2013 by ims21
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[Peterbard]

a recon may and only may satisfy a CCA request BUT it will not suffice to enforce the debt via the courts in this case.

 

 

 

 

Your letter only refers to the section-78 request it says nothing about enforcement, by which I presume you mean the granting of an enforcement order under section 127(1) of the CCA.

 

Even if this were the case you would still be wrong, section 127 says nothing about the production of a signed agreement.

Edited December 3, 2013 by ims21
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[Desperate Daniella]

I would hazard a guess that if a recon agreement has been accepted as enforceable by a court then the case wasn't properly defended, or the judge was biased in favour of the creditor in which case it should be possible to win an appeal.

[BRIGADIER2JCS]

I would hazard a guess that if a recon agreement has been accepted as enforceable by a court then the case wasn't properly defended, or the judge was biased in favour of the creditor in which case it should be possible to win an appeal.

Quite so, and the amendments that came into force in April 2007 excluded agreements made prior to this date.

 

Recons are rarely accepted and as you say Daniella it's because the case has not been defended. one does not leave any opportunity to wrong foot a DCA.

Edited December 3, 2013 by ims21
...

[Peterbard]

Quite so, and the amendments that came into force in April 2007 excluded agreements made prior to this date.

 

Recons are rarely accepted and as you say Daniella it's because the case has not been defended. one does not leave any opportunity to wrong foot a DCA.

 

 

It seems like an elementary lesson in the enforceablity of a regulated agreement is required OK

 

If an agreements enforceaabilty is brought into question the debtor would challenge it under section 65 of the act, the creditor would then seek an enforcement order under section 127(1) at which point the court would decide based on the amount of prejudice caused by the error and also the requirements of section127(3-5) if one should be granted. The latter prohibits the enforcement of an agreement if there are no prescribed terms or signature, this section was repealed in the 2006 CCA and the repeal was enacted in April 2007.

 

As said the prohibition from enforcement only mentions that an agreement was signed it says nothing about the production of a document in order to enforce. There has recently been several cases where this has been proven on contested claims, although these were in the lower court the law is sound and the judgments persuasive.

 

Hope that assists, although the letter which Brigadear wrote mentions nothing of any of this of course and only refers to the section78 request

Edited December 3, 2013 by ims21
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[Peterbard]

more info discussed on here post 23 ish

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?410474-CCA-Reply-from-HSBC/page2&highlight=Arrow+Global+Frost

[sequenci]

Quite so, and the amendments that came into force in April 2007 excluded agreements made prior to this date.

 

Recons are rarely accepted and as you say Daniella it's because the case has not been defended. one does not leave any opportunity to wrong foot a DCA.

 

 

Hi Brig,

 

Is there a source for this information.

 

As far as I'm aware, it is the case that so long as the 'reconstituted' agreement has details of the debtor, the prescribed terms, and all the financial and other information required by the Consumer Credit (Agreements) Regulations 1983 it would suffice - regardless of when the agreement was entered in to.

Edited December 3, 2013 by ims21
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[Desperate Daniella]

Thank you for posting that link.

 

At your post 33 on that thread you say that the Waksman Judgment in Carey doesn't stipulate that the agreement should be produced, but at Paragraph 234 (4) it says that a copy of the original agreement must be supplied if the agreement has been varied by the creditor. It doesn't say it can be a recon; it specifies a "copy of the original agreement".

 

I have found that this argument, and reminding them at the same time of their obligations under CPUTR 2008, has been extremely effective.

[Desperate Daniella]

Hi Brig,

 

Is there a source for this information.

 

As far as I'm aware, it is the case that so long as the 'reconstituted' agreement has details of the debtor, the prescribed terms, and all the financial and other information required by the Consumer Credit (Agreements) Regulations 1983 it would suffice - regardless of when the agreement was entered in to.

 

As far as Capital One is concerned they will never let you see anything like the alleged original agreement. This is probably because they were application forms without prescribed terms and they don't want to admit that.

[Desperate Daniella]

And the same applies to Goldfish. Barclaycard acquired them without any agreements as far as I can see, or if they did get the agreements they know they were only application forms.

 

I've never seen a properly executed Goldfish account in five years.

[Desperate Daniella]

Lombard actually did send their so-called agreement. I think that was a mistake. There were no prescribed terms so not enforceable.

[Peterbard]

Thank you for posting that link.

 

At your post 33 on that thread you say that the Waksman Judgment in Carey doesn't stipulate that the agreement should be produced, but at Paragraph 234 (4) it says that a copy of the original agreement must be supplied if the agreement has been varied by the creditor. It doesn't say it can be a recon; it specifies a "copy of the original agreement".

 

I have found that this argument, and reminding them at the same time of their obligations under CPUTR 2008, has been extremely effective.

 

Yes a copy refers to the "true copy " and the form is as stipulated in the regulations( ie no signature required and really just the financial details), this must be supplied with the current details.

 

CPUTR is not actionable of course by the individual although many people quote it anyway, I am unsure if it really does any good.

[Desperate Daniella]

Well whenever I mention those two points they go away! (And write off the balance and/or agree in writing that they don't have an enforceable agreement and won't be enforcing. The proof is in the pudding so to speak.

 

Anyway, how do you know that "copy" in 234 (4) refers to a "true copy"? Where does it say that this is the definition of what Judge Waksman said.

[Desperate Daniella]

And what a lot of DCAs say is a "true copy" isn't, and it's possible to prove that in many cases.

[Peterbard]

Hi Brig,

 

Is there a source for this information.

 

As far as I'm aware, it is the case that so long as the 'reconstituted' agreement has details of the debtor, the prescribed terms, and all the financial and other information required by the Consumer Credit (Agreements) Regulations 1983 it would suffice - regardless of when the agreement was entered in to.

 

Yes you are correct there has been no change in the requirement regarding the form copy documents made under section 180 of the act since they came int force in 1985. Although the form of the agreement themselves changed in May 2005 when the 2005 1482 amendment agreement regulations were enacted(key information)

Edited December 3, 2013 by Dodgeball

[Peterbard]

Well whenever I mention those two points they go away! (And write off the balance and/or agree in writing that they don't have an enforceable agreement and won't be enforcing. The proof is in the pudding so to speak.

 

Anyway, how do you know that "copy" in 234 (4) refers to a "true copy"? Where does it say that this is the definition of what Judge Waksman said.

 

I think it came up in a case and was dismissed by the judge as being something of a daft idea that if a copy was supplied a original complete with signature would somehow magically appear, even though none was required under the regulation. I will see if I can find the case for you it was one of the Rainkines I think.

 

Yes sometimes creditors do give up the ghost don;t they, that is a good thing.