djdave vs Cabot

[djdave]

Can I join the fan club?

 

My first thread on this forum was http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/72730-scotcall-ignored-cca-request.html , and since Trading Standards are now busy with ScotCall I thought I'd turn my attention to our good friends in Kings Hill.

 

Today I officially became a Cabot fan, receving this letter:

 

Dear djdave,

 

We have today contacted Barclaycard to order a copy of the original agreement (what? you didn't have it when you started chasing me? naughty naughty!) and hope to resolve this matter swiftly.

 

Although we anticipate a reply within the next 21 days (odd, the CCA says 12 working days) it can take up to 8 weeks if the information we require has been archived, and we therefore request your understanding in this matter (oh I understand alright. I just hope Trading Standards and the Financial Services Ombudsman are as understanding)

We are assisting you in providing a copy of the agreement but please note that we are not obliged to as we are not the creditor (my dear Cabot, you really need to read the CCA)

The current balance on your account currently (nice grammar, using current twice!) stands at £xxxx.xx, which includes accrued interest of £xxx.xx (I wasn't aware that Cabot could charge interest. Strange. That'll go in the complaint), and we have received no payments on the account. If you wish for a full statement of account prior to the date Cabot Financial purchased the account we suggest you contact Barclaycard directly (already done, I've SARd them as you can bet your life there's unlawful charges on my account)

Finally, we refute your suggestion that non-compliance with your request would be a criminal offence; the agreement would merely be unenforceable (again, Cabot really need to brush up on the CCA)

Yours sincerely,

Emma (I write in crayon) Robertson

 

Cabot Financial (Europe) Limited is licenced under the Consumer Credit Act 1974 (Not for much longer if everybody complains about their shoddy and criminal behaviour!)

Well, the clock is ticking. Let's see what the postman brings!

[djdave]

I spoke to Trading Standards about my Scotcall complaint today. When I told the guy what was in the Cabot letter he laughed. A lot.

 

Once they default, I'll be adding them to the complaint.

[djdave]

Their "8 week" timeframe and their denial that non-compliance would be an offence

[djdave]

It's nearly Criminal Offence Day!

 

Clintons are missing a gap in the market...

[djdave]

Well today I received another letter from Scotcall, saying that "despite numerous attempts" to resolve this I still haven't coughed up.

 

Trading Standards and OFT duly notified

 

I've sent Scotcall this:

 

Scotcall Debt Collecting Services

SpectrumBuilding

3rd Floor

55 Blythswood Street

Glasgow

G2 7AT

 

17 May 2007

 

By recorded delivery, reference DL xxxxxxxxxxxxxxx

 

Dear Sir/Madam

 

Your reference: xxxxxxxxxxxx

 

I am in receipt of your letter dated 14th May 2007. I do not acknowledge any debt to your company or its clients.

 

As you will be aware, I wrote to you on 13th February requesting a copy of the agreement under which you believe this debt exists. This is my right under Section 78 of the Consumer Credit Act 1974, and Section 189 clarifies that you are under an obligation to comply whether or not you are the original creditor.

 

This letter included the Statutory Fee, and was signed for by L. Hamilton on February 16th.

 

To date I have received no reply. As you will know, Section 78 Subsection 6 of the Act states:

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the

agreement; and

 

(b) if the default continues for one month he commits an offence.

 

You will surely also be aware that guidelines published by the Office of Fair Trading preclude you from taking any collection action while the debt is in default or dispute.

 

As I do not recognise this debt, I have also sent a request to Cabot Financial asking for a copy of the agreement. They have indicated that they are attempting to obtain a copy of the agreement from Barclaycard, but as yet have not received a copy.

 

Therefore I was extremely disappointed to receive you recent letter demanding payment. I would be most interested in knowing more details about the “numerous attempts to resolve this matter” to which you refer, and would like your explanation as to why you are continuing to pursue this matter when you have ignored my legitimate attempts to clarify whether the alleged debt exists.

 

I have passed this matter to my local Trading Standards service, and will be forwarding them a copy of your latest letter. I shall also be passing details of this case to the Office of Fair Trading as I believe you are in breach of their guidelines on Unfair Practices in Debt Collection.

 

You should treat this letter as a formal complaint, and follow the procedures laid down by the Financial Ombudsman Service for dealing with complaints. Should I not receive a satisfactory reply, or should I receive no reply at all within 14 days, I shall pass this matter to the FOS for their investigation.

 

I look forward to your prompt reply.

 

 

 

Yours faithfully,

 

 

 

Idiots!

[djdave]

Scotcall have given up now but I do have one interesting question.

 

Cabot claim to be chasing up the CCA, but were able to send me a copy of the Notice of Assignment. It seemed odd at the time that it was undated, yet was printed on headed Barclaycard paper which was produced in June 05 - Cabot took over this alleged debt long before that.

 

Well now the poor chap from DHL has delivered me a box containing the results of the S.A.R - (Subject Access Request) I sent Barclaycard. It's amazingly detailed, and when I've finished with it will keep the local recycling centre busy for weeks.

 

However, there's no mention of this Notice of Assignment. None whatsoever.

 

A cynical chap might suggest that Cabot knocked it up themselves. Now of course I would never think such a thing, but what would be the implications if they had?

 

As an aside, there's no executed agreement in Barclaycard's reply, so good luck to Cabot getting their hands on one...

[djdave]

Notice of Assignment:

 

If the notice includes an amount demanded that is incorrect it renders the notice legally invalid (e.g. unlawful charges or DCA admin/collection charges).

Even if the amount doesn't include charges but is misstated it is still invalid.

If the date is incorrect it is legally invalid (i.e. does not tie in with the deed of assignment - the execution of assignment should be the same as the date shown on the notice).

The case that supports this is W.F.Harrison & Co Ltd v Burke [1956] 1 WLR 419

That's very useful to know. Very useful indeed

[djdave]

Right then. No CCA from these jokers, so I'm making the next move. I've composed the following letter and would appreciate your thoughts and suggestions:

 

Cabot Financial Europe Ltd

10 Kings Hill Avenue

Kings Hill

West Malling

ME19 4LT

By recorded delivery, reference DL xxxxxxxxx

22 June 2007

 

Dear Sir/Madam

Your reference: xxx/xxxxxxxx

 

As you will recall, I wrote to you on 2nd April requesting a true copy of any alleged agreement which you are relying upon when claiming that a debt exists between myself and your company.

 

For the avoidance of doubt, I do not acknowledge any debt to you or your clients.

 

You will be aware of your obligations under Section 78 of the Consumer Credit Act 1974 to supply these documents within the statutory timeframe, although in your letter of 16th April you claim that you are not obliged to supply these documents are you are not the creditor.

 

I would draw your attention to Section 189 of the Act which states:

 

“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;

Also you letter refutes my suggestion that non-compliance would be an offence.

 

I would like to remind you of the text of Section 78, specifically subsection 6 which states:

 

(6) If the creditor under an agreement fails to comply with subsection (1)—

 

(a) he is not entitled, while the default continues, to enforce the agreement; and

 

(b) if the default continues for one month he commits an offence.

This time period has elapsed, and you have failed to supply the documentation requested. It is apparent that you were never in possession of the necessary documents when you started chasing me for this alleged debt.

 

You have now committed an offence under the Consumer Credit Act, which I intend to report to the relevant statutory authorities.

 

I now require the following to be auctioned immediately:

 

1) The return of my £1 payment in respect of the statutory fee.

 

 

2) You must contact all third parties with whom you have shared my data (including but not limited to credit reference agencies, and other companies within the Cabot Financial group) to instruct them to destroy and cease processing my personal data with respect to this account.

 

 

3) Pass the enclosed Data Subject Notice to your data controller for their immediate attention. This notice requires you to cease processing my personal data in accordance with Section 10 of the Data Protection Act 1988 (The right to prevent processing causing damage or distress). I would remind you that you have, by statute, 21 days to comply with this Notice OR to indicate the extent to which you intend to comply (if at all) and explaining the parts of the Notice you consider to be unjustified.

 

 

4) Confirm to me, in writing, that you have completed these steps.

 

 

5) Send me written confirmation that you will be taking no further action regarding this account.

Should I not receive a satisfactory reply within fourteen (14) days, or should I receive no reply at all, I shall bring this matter to the attention of:

 

• The Financial Ombudsman Service

• The Office of Fair Trading

• Trading Standards

• The Information Commissioner’s Office

• Consumer Groups

• Local and National Media

 

I also reserve to right to commence proceedings in the County Court for breach of the Consumer Credit Act and the Data Protection Act.

 

I look forward to your prompt response.

 

Yours faithfully,

 

 

 

Me

Enclosed:

Data Subject Notice

 

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

 

 

DATA SUBJECT NOTICE PERSUANT TO SECTION 10 OF THE DATA PROTECTION ACT 1988

 

For the attention of:

The Data Controller, Cabot Financial Europe Ltd, Kings Hill, WEST MALLING, Kent, ME19 4LT

 

With regard to:

Me, My House, Here, My Postcode

 

This is a Statutory Notice under Section 10 of the Data Protection Act requiring you to cease storing and processing all personal data relating to myself, and to cease immediately the sharing of such data with any third parties.

 

Furthermore you should contact any third with whom you have shared my data (including but not limited to credit reference agencies, and other companies within the Cabot Financial group) to instruct them to destroy and cease processing my personal data.

 

I believe the processing of my data to be unjustified within the definitions of the Data Protection Act as the information you are holding is incorrect and likely to cause me substantial damage and distress, and that damage or distress would be unwarranted.

 

You are reminded that, as data controller, you have by statute twenty-one (21) days in which to give written notice EITHER that you have complied with this Notice, or intend to comply with it; OR the extent to which you intend to comply with this Notice (if at all) and explaining the parts of the Notice which you considered unjustified in any way.

 

Dated 22nd June, 2007.

 

 

 

Me

Sent recorded delivery, reference number DL xxxxxxxxxxGB

 

 

Any good?

[djdave]

Shameless self-bump, I'd appreciate any comments on the above letter before I post it

[djdave]

Just an update, such as it is, before I go on holiday. I sent the above letter and have had two seperate "Please bear with us while we investigate your complaint" replies.

 

So I've sent them this:

 

Jane Rodemark

Customer Assurance Team Leader

Cabot Financial Europe Ltd

10 Kings Hill Avenue

Kings Hill

West Malling

ME19 4LT

 

By recorded delivery, reference DL xxxxxxxxxGB

 

6 August 2007

 

Dear Ms Rodemark,

 

Your reference: Xxxxxxxxx

 

For the avoidance of doubt, I do not acknowledge any debt to you or your clients.

 

You will recall that you are in receipt of a Data Subject Notice dated 25th June 2007, a copy of which is enclosed for your ease of reference.

 

This was signed for on the 26th June since when I have received two letters from you, both stating your intention to deal with this within 10 working days. In both cases the 10 working days have elapsed without resolution.

 

I would draw your attention to Section 10, subsection 3 of the Data Protection Act 1988 (Data Protection Act) which states:

 

(3) The data controller must within twenty-one days of receiving a notice under subsection (1) ("the data subject notice") give the individual who gave it a written notice-

 

 

(a) stating that he has complied or intends to comply with the data subject notice, or

 

 

(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.

While I can appreciate that you may feel that you need time to investigate this matter, you will equally appreciate that the DPA is clear in its timescale, and that you have now exceeded this statutory period.

 

You have therefore committed an offence under the DPA, which I intend to report to the Information Commissioner’s Office and the Financial Ombudsman Service.

 

I shall also be reporting your breach of the Consumer Credit Act 1974 to the FOS as you have failed to furnish me with a copy of an executed agreement, thus committing a separate offence.

 

Your flagrant disregard for two pieces of legislation at the core of your business lead me to question your suitability to hold a Consumer Credit Licence, and I shall be making my concerns known to the Office of Fair Trading.

 

I will be on holiday until August 12th. On my return I expect to find your written acknowledgement that you have acted on my Data Subject Notice, otherwise I shall commence action with no further warning through the County Court for breach of the Data Protection Act, plus costs.

 

I look forward to your prompt response.

 

Yours faithfully,

 

Let's see what (if anything) they say to that!

[djdave]

Well, all that was waiting for me on my return was another letter explaining that they were invistigating and hoped to have an outcome within 10 days.

 

Bless 'em.

 

Now I've reported them to the OFT (below) and will be starting court proceedings next week.

 

Consumer Credit Licensing

Room 1C/5

Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London

EC4Y 8JX

 

16 August 2007

 

Dear Sir / Madam,

 

I would like to bring to your attention my experience with Cabot Financial (Europe) Limited, who in my opinion have shown themselves unfit to hold a Consumer Credit Licence.

 

They initially contacted me through a third party called Scotcall Debt Collection back in February of this year, claiming that I owed them £xxxx.

 

Having no idea what this could be, I contacted Scotcall and asked for copies of the relevant documentation.

 

Scotcall referred me back to Cabot, who I also noticed had placed a default on my credit file. I therefore contacted Cabot asking for a copy of the paperwork they were relying on. This was back on April 2nd, since when all I have received from them are several letters asking for my understanding while they investigate.

 

As you will know, the Consumer Credit Act is clear that a creditor has 12 working days to supply a copy of an agreement before they are in default. If the default continues for more than a month they commit an offence. I have brought this to Cabot’s attention but they have denied any wrongdoing.

 

They did however send me what they claimed to be a Notice of Assignment which would have been sent from Barclaycard, the original creditor. This is clearly a forgery, not even a conjectured reconstruction, as Barclaycard do not have any record of sending such a document. This I believe is tantamount to fraud.

 

As it is clearly obvious that Cabot have been attempting to collect a non-existent debt with no paperwork to back up their claim, I sent them on June 25th a Data Subject Notice requiring them to cease processing my personal data, and to instruct third parties (ie the Credit Reference Agencies) to rectify my data.

 

The Data Protection Act is clear that a data controller has 21 days to respond to such a notice, and yet all I have had from Cabot, despite me sending them a reminder, is a letter again asking me to remain patient while they investigate.

 

I have had to resort to threatening them with legal action, and will have no hesitation in bringing proceedings in the County Court to force them to comply with the Data Protection Act.

 

I believe that their behaviour, including their flagrant disregard for two pieces of legislation at the core of their business, calls into question their suitability to hold a Consumer Credit Licence, and I would be most interested in your comments.

 

Please do not hesitate to contact me should you require any further information, including copies of any correspondence in this matter.

 

Yours faithfully,

 

[djdave]

I've decided not to go down the Court route - for now. This morning I've had fun filling in the FOS complaint form and sending it off with a nice big bundle of evidence as it's been over 8 weeks since Cabot acknowledged receipt of my complaint and then fobbed me off.

 

I figure it will be less hassle for me, and a £400 slap for Cabot this way.

 

In my complaint I've raised their non-compliance with the Consumer Credit Act, non-compliance with Section 10 of the Data Protection Act, and their failure to resolve my complaint within 8 weeks.

 

If you're reading this Uncle Ken, you need to know that I'm not letting this lie until I get my default removed and you stop processing my data, however I achieve these aims. You've probably worked out who I am by now, so go on - I dare you, I double dare you - take me to court if you still think I owe you money.

[djdave]

Now it gets interesting, and I would appreciate some help!

 

This morning I've had a lovely letter from Cabot apologising for the delay (bless) and forwarding a very bad photocopy of a fax of an application form from Barclaycard, along with a completely flawed letter explaining its legality.

 

Here's the letter

 

Page one: http://i152.photobucket.com/albums/s185/djdave2007/cabotp1.jpg

 

Page two: http://i152.photobucket.com/albums/s185/djdave2007/cabotp2.jpg

 

And the application form:

http://i152.photobucket.com/albums/s185/djdave2007/cabotapp.jpg

 

First thoughts? Well, the application form is damn near illegible, in fact I've cleaned it up before posting it here. That's by-the-by, it's the content which matters.

 

What content? I cannot see any prescribed terms, any signature from Barclaycard, and notwithstanding Cabot's assertion that it's an agreement, I can clearly see "Barclaycard Application" at the top-left.

 

Turning to their letter, they state that they purchased the account "on or about 15th April 2005". Interesting then that the undated Notice of Assignment they initially sent me is on headed paper which was itself only produced in June that year. Not that I'd ever suggest it was anything other than genuine, you understand.

 

They then go on to repeat their claim that they had no obligation to supply an agreement - could somebody please clarify s189 to me in case I'm wrong?

 

Cabot then go on to restate their assertion that they have, in fact, satisfied their obligations. I'm sure they have not.

 

Then they dismiss out of hand my Data Subject Notice, claiming that I've quoted a wrong subsection. If this is correct (and the notice is further up this thread) then it's only on a follow-up letter, not on the Notice itself. Surely that doesn't give them the right to ignore it?

 

I'm thinking that my next move should be a simple letter back asking them to clarify a few points, something like this:

 

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

 

Dear Cabot,

 

Thank you for your letter dated 22nd August. For the avoidance of doubt I do not acknowledge any debt to you or your clients.

 

I would be grateful if you would clear up the following points with regard to this alleged debt.

 

1) Is the document enclosed with your letter the same document you are relying upon to satisfy yourself that the alleged debt is genuine?

 

2) Was the Notice of Assignment you sent me in April this year a true copy of a document which was provided to you by Barclaycard?

 

3) Notwithstanding that in a subsequent letter chasing you up I may or may not have mentioned an incorrect subsection of the Data Protection Act, the original Data Subject Notice remains outstanding and therefore you have committed an offence. Do you intend to comply with the Notice at all?

 

4) I originally requested a copy of the executed agreement on April 2nd. Taking into account the text of the Consumer Credit Act which states that a creditor should provide this within 12 working days, and s189 which defines "creditor", could you please explain why it has taken over four months for you to send any documentation?

 

5) You claim that the debt was bought by the Cabot Financial Group. Please clarify whether you mean the limited company Cabot Financial Group Ltd (company registration number 05754978 ), or another company within this group and if so which one(s). For the avoidance of doubt please provide the company registration number(s).

 

6) Please provide me with the details of all third parties to whom the company mentioned in your answer to question 5 has passed my data, including any other companies within the Cabot Financial Group. Please also provide evidence of my consent to do so.

 

As these are simple questions, I would expect your answer within fourteen (14) days.

 

Yours....

 

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

 

As I say, I'd really appreciate CFC's input with this.

[djdave]

I've got a cheque from Cabot!

 

Sadly it's only £1, but I'm framing it anyway. It came along with this letter:

 

I am aware you have paid the £1.00 fee required, under section 78 of the Consumer Credit Act. As explained in our letter dated 22nd August, there is no duty for Cabot to comply with this section, as Cabot is not the creditor this have [sic] been refunded as it was processed in error. Therefore please find attached a cheque for £1.00.

 

 

In the meantime please do not hesitate to contact us on 01732 524723 blah blah blah....

So where does that leave me? With an unenforcable application form and a DCA which believes that neither the Consumer Credit Act and the Data Protection Act apply to them.

 

I'm still not 100% sure of my next move, and I'd appreciate if someone would look at my previous post and give some advice

 

Thanks,

Dave

[djdave]

Hey, Uncle Ken, I received an acknowledgement letter from the FOS today.

 

They sound like very nice people.

[djdave]

Be aware that the ICO are up to their eyeballs in complaints at the moment. But as I've just posted in this thread, they do get there in the end.

[djdave]

For comedy effect, scroll back up to post #27 and see what Cabot are claiming an agreement looks like

[djdave]

thinksmart: I obviously agree that the NoA is suspect and the "agreement" an unenforcable application form.

 

I've referred these documents (and others) to both the OFT and the FOS, and will of course keep the forum updated when they reply. Meanwhile, I don't suppose Cabot would be interested in testing their case in front of a judge?

[djdave]

I've had a reply from the OFT today, several pages long, basically agreeing with my complaint. I've pasted some of their response here in case others find it useful. My comments are in red.

As you aware, the general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreementent for (fixed-sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request. I have highlighted the word request because the debtor/hirer must make a valid request. For the request to be valid it must be in writing and must be accompanied by a fee of £1. I note that you have already done this.

 

 

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order.

 

 

If a default lasts for a month (for example a calendar month) it constitutes an offence. We understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

(which basically contradicts the 12 day rule and the paragraph above)

 

A 'true copy' of an agreement principally consists of the terms and conditions of the agreement and the

statutory

content of the agreement.

(My highlighting, note that this would presumably include the prescribed terms)

The name, address and signature of the debtor does not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which has become payable under the agreement but remains unpaid; and the total sum which is to become payable under the agreement by the debtor (the latter two must include the various amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a 'true copy', since nobody would know what was in the original.

 

 

When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently he cannot otherwise.

 

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query.

 

 

However in circumstances like this we would view it is as unfair practice under section 25(2)(d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

 

We investigate all complaints received about consumer credit licence holders and, where we have the necessary evidence, we do take appropriate action. In our initial investigation of all complaints we consider how many complaints we have received overall and how strong the evidence is to support any action. It is unlikely that a licence would be revoked on the strength of one complaint.

(So keep 'em coming!)

Where we have strong evidence that unfair business practices have occurred, we may take steps to revoke or refuse the licence of the business in question. However, if we are to do this we need to take account of factors such as the number of complaints received how recent they are and how well evidenced. In cases where evidence is less strong we may issue a warning letter to the business putting it on notice that its behaviour, if repeated, will call their fitness to hold a licence into question. Any action we do take has to be proportionate. If an approach from the OFT makes a trader change its behaviour and treat consumers fairly in future, this is preferable to

putting a trader out of business.

 

 

If we do take any licensing action against this trader it is likely that we would need to disclose your client identity to this trader along with details of your complaint. I should therefore be grateful if you would provide me with written authorisation to disclose these details to the trader. I have enclosed a disclosure consent form for you to sign and return to me in the enclosed freepost envelope.

(Oooh look, they're actually

asking

for consent to share data - a concept lost on some companies we could mention...)

Needless to say, I'm very happy for the OFT to have my permission if it helps them take action against Cabot. Happy Birthday, Ken...

[djdave]

I've just got back from a weekend up north to find the M25 gridlocked, my lawn infested with slugs, and the weather awful.

 

But to cheer me up, the Financial Ombudsman Service have written saying that my complaint has been passed to their casework support area awaiting allocation to an investigation team. Thanks guys

[djdave]

Nearly two months after asking Cabot to clarify some points, I've finally received a reply. Apologies for any typos, I scanned it rather than typing it all out!

 

My comments are in red:

 

CABOT REFERENCE xxxxxx - VENDOR BARCLAYCARD

 

Thank you for your letter, which was received in our office on 31st August 2007. May I apologise for the delay in responding to you.

 

I regret that you have felt the need to contact Cabot Financial (Europe) Limited ("Cabot") to express your dissatisfaction about our service.

 

I note from your letter that you have raised various points and I will respond to them in the order, which you have raised them.

 

Firstly, Cabot supplied you with a copy of the credit agreement (you mean you supplied an application form, missing pretty much all the prescribed terms, damned near illegible, and not signed by Barclaycard) , which you agreed and consented to with Barciaycard. We also enclose a copy statement of your account since your account was assigned to the Cabot Financial Group of Companies and we are to receive the statements of your account from Barclaycard shortly, upon which the same wiil be forwarded to you.

 

It is clear that you have signed the credit agreement (application form, but I'll let that go for the moment). You will note that this is a regulated credit agreement for the purposes of the Consumer Credit Act 1974, which is supported by your signature in acceptance. Furthermore, in consideration of your acceptance of the agreement, you received the availability of credit from Barclaycard by way of a credit card, which you have clearly used. Please be advised that the credit agreement, which you signed, proves that you signed and entered into an agreement. The statement of your account, which we will receive from Barclaycard, will prove that there was an outstanding debt at the time of the assignment of your account. Once we have provided the statement of account it is enough to satisfy that the debt exists. (really?)

 

Secondly, regarding your query relating to the company registration numbers, I can clarify that this debt was assigned to Cabot Financial (UK) Limited by Barclaycard and Cabot Financial (Europe) Limited act as servicing company for the Cabot Financial Group of Companies. In order to save any confusion, we collectively defined the companies concerned as the Cabot Financial Group in previous correspondence. Please note that defining the above companies to the Cabot Financial Group was not intended to confuse or mislead the situation (now call me cynical, but I believe that's exactly why there are so many "Cabots"). Cabot Financial (Europe) Limited and Cabot Financial (UK) Limited are part of the Cabot Financial Group of Companies. For the sake of clarity, we will forthwith refer to the individual companies concerned in full.

 

Thirdly, I note from your letter that you would like Cabot Financial (Europe) Limited to confirm if the Notice of Assignment sent to you on 16th April 2007 is a genuine copy of a document supplied to Cabot Financial (Europe) Limited by Barciaycard. I can clarify that the Notice of Assignment we sent to you is a reproduction copy of the Notice of Assignment that Barciaycard provided to Cabot Financial (Europe) Limited. (Strange this. I have it in writing from Barclaycard's data protection manager that no such document exists. I think Cabot forgot the word "conjectured")

 

Fourthly, In relation to your concern regarding the processing of your data, Cabot Financial (Europe) Limited is legally entitled and obligated under the original credit agreement and under the Data Protection Act to process information and also to report to the credit reference agencies. We disclose information to credit reference agencies about customers' conduct of their accounts because that disclosure is necessary for the purposes of legitimate interests pursued by us, other members of the credit industry and the 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. Furthermore, 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 (I dispute this, but the application form is so hard to read that I honestly couldn't say. But then, as it's only an application form, and missing prescribed terms, surely I've never given my consent). Accordingly, the Data Protection Act, section 4, Schedule 1 and Schedule 2 of the Act, in particular paragraph 6 of Schedule 2, permits disclosure of such information to and by credit reference agencies without the customers' consent. The credit reference agencies that we have reported your data to are Experian, Equifax and Callcredit. We have also sent your personal data to our debt recovery agents, which are Logic (Eos) and Scotcall for the recovery of the outstanding balance due under the agreement. You would have agreed to pass on your data regarding this issue when you signed the agreement (application form! How many more times?), which would have been included in the terms and conditions applicable at that time.

 

Lastly, regarding your subject notice under section 10 of the Data Protection Act 1998 ("Data Protection Act"), we have previously set out our position regarding this issue. Section 10(1) of the Data Protection Act states:

"Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground, for specified reason -

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted."

Section 10(2) of the DPA states:

"Subsection (1) does not apply

(a) in a case where any ofthe conditions in paragraphs 1 to 4 of Schedule 2 is met, or (b) in such other cases as may be prescribed by the Secretary of State by order."

I refer your attention to paragraphs 1 to 4 of Schedule 2 of the DPA, which states:

"Conditions Relevant for purposes of the First Principle: Processing of any Personal Data

The data subject has given his consent to the processing. 2. The processing is necessary

For the performance of a contract to which the data subject is a party, or

For the taking of steps at the request of the data subject with a view to entering into a contract

The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.

The processing in order to protect the vital interests of the data subject. "

 

You shall note that section 10(2)(a) of the OPA the words "any of the conditions" and paragraph 1 and 2 of Schedule 2 of the OPA are entirely relevant to your case. As you signed a credit agreement which has been assigned to Cabot Financial (UK) Limited, of which the terms we are entitled to enforce, section 10(1) of the OPA does not apply to your circumstances.

 

Cabot Financial (Europe) Limited and the Cabot Financial Group of Companies have at all times acted appropriately and in accordance with all laws, regulations, codes of practice and guidance applicable to its industry. (Apart from failing to respond to a CCA request within the statutory timescale [and even then only with an application form], failing to reply to a Data Subject Notice within the statutory timescale, unlawfully processing and sharing my data)

 

I can confirm that the outstanding balance on your account is £xxxx and that interest has been accruing on this account. I can also confirm that we have received correspondence from the Financial Ombudsman Service who have duly notified us that your concerns do not fall within their jurisdiction as these were raised in February 2007, therefore prior to 6th April 2007.(and this, ladies and gentlemen, is why the CSA / DBSG can proudly boast about how few complaints the FOS has handled, and therefore claim that DCAs are lovely as nobody ever moans about them!)

 

In light of this, I would respectfully recommend you contact our Collections Team on 0845 0700 116, within 14 days, in order to discuss repayment of the above account. If no contact is made within these 14 days, Cabot reserves the right to return your account to our Collections process.

 

We trust this adequately resolves your concerns. In the meantime, please do not hesitate to contact us on 01732 524723 if you have any further queries. The Customer Assurance department is open from 9am to 5pm Monday to Friday.

 

Laura Jolliffe

Customer Assurance Adviser

 

So in a nutshell, Cabot are saying that they've done nothing wrong and please give us some money. Seeing as all I've ever had from them is a totally unenforcable application form, and seeing as how the FOS don't want to get involved, I'm wondering what my next move should be.

 

I'm tempted to just sit back and let them try Court action. I'd be interested to see how their application form photocopy goes down with a judge.

 

Worst case scenario, I'm on long-term incapacity benefit so even if I lost in Court I can't see a judge ordering particularly massive payments.

 

Any advice, please?

[djdave]

They obviously read your threads with great interest at Cabot Towers...

That would not surprise me one iota. I'm sure they worked out long ago who that mysterious djdave is!

 

As an aside, I suspect that Laura didn't write this. The language, and particularly the rather odd 'you shall note' suggests that it was written by someone for whom English is not their first language - a Belgian, for example.

WWell wwell wwell!

[djdave]

Here's a question. Going back to the original application form (link below), section 10 refers to "Personal Data" but the box isn't ticked.

 

Sadly I cannot read the text, so don't know whether it's an opt-in or an opt-out.

 

Does anybody have a more legible copy of a Barclaycard application form from the same sort of date (1996) which would contain the same text?

 

Here's the linky:

http://i152.photobucket.com/albums/s185/djdave2007/cabotapp.jpg

 

[djdave]

Well I've sent them a letter which is far too long and dull to bother you with here, but can be summarised thus:

 

Dear Feckers,

Put up or shut up.

Yours sincerly etc

[djdave]

So much for a forum being a place to share knowledge...

 

Anyway, the application form states the '74 Act.