Cabot/hudsons claimform - old barclaycard debt

[atwozee]

 

Can anyone give me any details on the appeal process. Where do I appeal (local court), which forms etc..

I have read this thread with much interest. Sorry the case did not go well.

 

Not sure if you got your appeal in but I would think (not sure for certain) the original default notices served on the Barclaycard accounts would have been issued by Mercers. Mercers would not have been the owners of the debt at the time the DN was issued and would only be acting as agents for Barclaycard. Therefore, Barclaycard and only Barclaycard, in accordance with the CCA 1974, can issue a valid default on these accounts.

 

This means that the default notices themselves were and remain invalid so they had no right to demand the full balance on termination of the account. They also lose the right to sell that full balance on as a debt payable under the agreement whether terminated or not.

 

Long story short – Cabot are only entitled to claim the amount in arrears as detailed in the original default notices. So at the very least you should appeal the amount awarded to the claimant.

 

Did you keep a copy of the default notices?

[atwozee]

Sorry to hijack this thread but I’ve just finished reading the (unbelievable) skeleton argument put forward by Hodsons – I am amazed that they managed to get judgement based on their argument.

 

There are lots of discrepancies but one of the biggies seems to be the argument they put forward regarding the default notices and subsequent termination of the account.

 

(point 12) they argue that a DN has already been served by the OC but they are unable to produce copies of the default notice. (point 13) they concede that for an account to be terminated the debtor must first have been issued a default notice and they quote s 87 of the CCA 1974

 

They claim that the agreements have already been terminated so they must prove this claim in court. So how the hell can they prove that the agreements were terminated without first producing a copy of the DN – we have to take them at their word do we? Without a valid DN the original creditor cannot terminate the agreement – if they chose to lose the default notices that’s their problem not yours.

 

It seems to me that there is an argument to be put forward that the agreements have not been terminated in accordance with the act (unless they can produce valid copies of the DN’s) and therefore the original creditor has sold on the accounts as live agreements (but only as far as the debtor is concerned) and the argument as to whether the agreement is enforceable under s 127 becomes the main issue.

 

I can understand how difficult it must be to be an LIP but the argument they have put forward has more holes in it than a teabag. Hodsons have managed to sidetrack the real issue by maintaining the agreement is terminated and the judge agreed based on their word.

 

I’m guessing though that you have decided not to pursue an appeal but it’s important for other people in a similar situation to counter the argument put forward by Hodsons.

[underdog13]

Cabot have long argued that they are not the creditor as defined by the Consumer Credit Act 1974, in particular sections 77 and 78. Opinion has been divided even amongst the various regulatory bodies. Until now.

The Unfair Commercial Practices Directive has now been implemented into UK legislation, and as a result, the Office of Fair Trading has now issued guidance to enforcement officers that provides a legal argument to support their view that Debt Collection Agencies and Debt Purchase companies ARE creditors for the puroses of sections 77 and 78 of the Consumer Credit Act.

 

So, surely if they are deemed to be creditors for the purposes of supplying the CCA, they should be bound by it's duties and obligations?

 

You should note that this is only supported by the iplementation of this new directive, which came into force on 26 May 2008. So if you complained prior to that date to Trading Standards, Office of Fair Trading etc, about a company’s refusal to accept that they are obligated to supply a copy of a credit agreement, your complaint is unlikely to be upheld.

HOWEVER, if you haven’t complained yet, NOW IS THE TIME TO DO SO.

[atwozee]

That’s good to know, thanks.

But regardless of whether they are a creditor or not the debt is still alleged to be owed under the terms of a written agreement and if that agreement is flawed then their claim should (and I say should) fall down.

It’s up to the debtor to get a ruling on the agreement in court and if they can’t get a ruling there and then (because a copy of the agreement isn’t available in court) then the case should be stayed until a ruling can be made. That would be my argument anyway.

If the judge ignores this and awards in favour of the claimant then that should be sufficient grounds for an appeal by the defendant shouldn’t it?

[underdog13]

Completely agree, Atwozee.

[Richard Spud]

EXCELLENT WORK BY THE OFT AGAINST A DCA

See the latest action published on 21st April 2009 and valuable OFT opinions to cite to other DCAs and the County Courts.

http://www.oft.gov.uk:80/news/press/2009/44-09

“Under the Limitation Act 1980, which applies to England and Wales, a debt is considered to be statute barred when no payments have been made against it or where it has not been acknowledged for six years. A statute barred debt cannot be legally recovered. Whilst the OFT accepts that the debt still exists, the OFT considers that it can be unfair to pursue the debt in the circumstances set out in our Debt Collection Guidance”

Quote from the OFT MACKENZIE HALL PDF document:

“REQUIREMENTS IMPOSED BY THE OFT REQUIREMENTS RELATING TO:

MACKENZIE HALL LIMITED

A debt is considered as in dispute where:

A request under section 77 or 78 of the Consumer Credit Act 1974 has not been complied with, and this prevents the agreement being enforced without the permission of the court”

I suggest that the above reference to ss.77 and 78 of the CCA 1974 is a very strong endorsement of the rights of consumers to be provided with true copies of Regulated agreements.

HTH

Regards – Richard.