Babble vs Cabot/Monument

[babble]

Update:

 

Not heard anything from Morgans (their solicitors) yet.

 

I have just received a Notice of Transfer of Proceedings, transferring it to my local county court.

 

It also includes an allocation questionnaire to be completed and submitted by 1st March. Any hints and tips on completing the form would be appreciated.

 

David

[babble]

Another update:

 

Just looking through the Pre-Action Protocol stuff it appears that they are to have informed me of the action for each account and within those documents to state quite a lot of information including the documents that they are going to rely on.

 

Firstly they haven't sent me a pre-action protocol letter for both accounts.

 

Secondly the one they have sent they have just stated my name, account number and how much they want and very little else. Definitely no mention of any documents they intend to rely on. Is this something I can bring up at this stage?

 

I'm making this point because in the questionnaire from the court it asks if I have complied with the relevant pre-action protocols. Surely if they answer that they have and it turns out they haven't then they will be in the doo-doo?

[MAGDA]

Which AQ do you have? N149 or N150?

[babble]

Hi Magda

 

The AQ is N150

[MAGDA]

This should help babble re: completing AQ, see post #54 onwards.

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/191718-advice-please-court-papers-3.html#post2189112

 

regards, Magda

[babble]

Quick Update:

 

I completed my AQ and handed it in. They have said that they have sent a copy to me but it still hasn't arrived, no surprises there!!!

 

Need some help pretty quickly though because today I received a letter from the court 'Notice of Case Management Conference' and I'm not sure what to do:

 

It states:

 

On Friday, 26th February 2010

 

District Judge X sitting at X considered the papers in the case and

 

ordered that:

 

1) Disclosure of documents shall be dealt with as follows:

a) The parties shall give to each other standard disclosure of documents by serving copies together with a disclosure statement by 4pm on Friday, 12th March 2010.

b) Any request to inspect the original of a copy document shall be made by 4pm on Friday 26th March 2010 and any such request shall be complied with within fourteen days of receipt of the request.

 

2) The claim shall be listed for a case management conference with a time estimate of 30 minutes on the first available date after Tuesday, 6th April 2010. If a notice giving details of the time and place of the hearing is not enclosed with this Order, one will be sent to you shortly.

 

3) The claimant shall seek to agree with the defendant, and file and serve at least four clear days before the case management conference:

a) a case summary

b) a statement of the issues to be determined by the court

 

4) Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court to arrive within seven days of the service of this order.

[babble]

Hi can anyone give me some help with this?

Thanks

[citizenB]

Just having a read of your thread to see how best to advise.. BRB

[citizenB]

[/url]

 

Quick Update:

 

I completed my AQ and handed it in. They have said that they have sent a copy to me but it still hasn't arrived, no surprises there!!!

 

Need some help pretty quickly though because today I received a letter from the court 'Notice of Case Management Conference' and I'm not sure what to do:

 

It states:

 

On Friday, 26th February 2010

 

District Judge X sitting at X considered the papers in the case and

 

ordered that:

 

1) Disclosure of documents shall be dealt with as follows:

a) The parties shall give to each other standard disclosure of documents by serving copies together with a disclosure statement by 4pm on Friday, 12th March 2010.

b) Any request to inspect the original of a copy document shall be made by 4pm on Friday 26th March 2010 and any such request shall be complied with within fourteen days of receipt of the request.

 

2) The claim shall be listed for a case management conference with a time estimate of 30 minutes on the first available date after Tuesday, 6th April 2010. If a notice giving details of the time and place of the hearing is not enclosed with this Order, one will be sent to you shortly.

 

3) The claimant shall seek to agree with the defendant, and file and serve at least four clear days before the case management conference:

a) a case summary

b) a statement of the issues to be determined by the court

 

4) Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court to arrive within seven days of the service of this order.

 

 

Aha, I got the impression from your post on another thread that you required an Embarrassed Defence.

 

I note that these figures have been lumped together with no breakdown and also the POC ask for s69 interest which isnt allowed on agreements under CCA1974.

 

Is that your defence in the panel below ??

 

 

 

Thanks for your help

 

1The claim as pleaded does not contain sufficient particulars to permit the Defendant to file a properly particularised and pleaded defence.

 

2.The claimant’s document which they claim is a "consumer credit agreement", as a basis for enforcement of a debt under the Consumer Credit Act 1974 ("the Act"), is not valid at law for the following reasons:

 

(a)The "agreement" provided by the claimant is legally unenforceable as it does not contain the required information under Schedule 6 of the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) ("the regulations") which are required under sections 61(1)(a) and 127(3) as it then was, of the Act, which apply to agreements executed prior to 6th April 2007. Specifically lacking is:

 

information as to the amount of credit (para.3 of the regulations)

information as to the interest rate (para.4 of the regulations)

information as to the repayment terms. (para.5 of the regulations)

 

(b) Further, section 61 of the Consumer Credit Act 1974 and Schedule 6 of the 1983 regulations and the case law relied upon make it clear that the required information must be included in the same document and not merely referred to in another document. Any reference to the "Terms and Conditions" attached in a separate document is of no legal effect for the purposes of enforceability as they are not signed by the debtor.

 

©The Act contemplates a document that "contains" the prescribed terms in section 61(1)(a) and a document that "embodies" the full terms in section 61(1)(b)

 

The term "embody" is defined in the Act: "A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it." However, the word "contains" is not defined by the Act but is so defined by case law (see (h) below) to mean "within the four corners of the agreement" and "not in a separate document."

 

(d)Therefore, the "agreement" is further improperly executed in accordance with section 61(1)(a) of the Consumer Credit Act, 1974 as it does not contain "all the prescribed terms" within it and it alone.

 

(e)Further, the claimant cannot rely on section 127(3) of the Act as there is no document that contains (as compared to "embodies") all the prescribed terms within it and it alone that is signed by the debtor

 

(f)Section 127(3) of the Consumer Credit Act 1974 was abolished by the Consumer Credit Act 2006, however Schedule 3, Part 11© of the 2006 Act states that section 127(3) of the 1974 Act remains applicable to agreements entered into prior to the commencement of the 2006 Act. The commencement date of the 2006 Act was 6th April, 2007.

 

(g)The claimant has admitted that the agreement in question was entered into in 2002 and 2004 respectively, Section 127(3) of the Consumer Credit Act 1974 therefore applies to the agreement in question

 

(h)The defendant will rely on the House of Lords case of Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40 (10 July 2003) in applying this interpretation of the law and regulations in relation to unenforceable consumer credit agreements and this agreement

 

3. The court is therefore barred from issuing an enforcement order under the Consumer Credit Act 1974, in accordance with sections 65 and 127(3) as it then was, and the claimant’s claim must fail.

 

4. It is averred that before these proceedings may be commenced a valid default notice and a valid termination notice must be served upon the Defendant.

 

5. The Defendant has no knowledge of the service of a default notice. The claimant is put to strict proof as to the content and service of any such alleged default notice. The Defendant does not admit that any alleged default notice was valid. The Claimant is put to strict proof as to the validity thereof.

 

6. It is not admitted that the aforesaid agreement was lawfully assigned to the Claimant. The Defendant has not been permitted to inspect either of the two Assignments and has therefore been unable to satisfy himself as to whether the Assignments are valid. The Defendant avers that he is entitled to, as a matter of Law, to inspect both Assignments.

 

7. The Claimant is put to strict proof that such Lawful Assignments took place and as to the precise terms thereof.

 

8. If, which is not admitted, the Assignments to the claimant did occur it is averred that for such an Assignment to be lawful that notice of it must be served in accordance with the terms of the Section 136 of the Law of Property Act 1925.

 

9. It is denied that a valid Notice of Assignment has at any time been served upon the Defendant. It is averred that for Service of any Notice of Assignment to be effectual it must, where postal service has been adopted, be served by Registered Post.

 

10. Further, and in the alternative it is not admitted that the sums claimed are lawfully owing. The Claimant is put to strict proof as to how the sums claimed have been calculated and as to how it is asserted that the sums claimed are contractually owing.

 

11.The Defendant as part of the Request for Further Information of the Claim pursuant to part 18 of the Civil Procedure Rules, made on the XXXXXX 2009 requested that the Claimant provide complete list of transactions and charges and other information essential to my defence. The Claimant has failed to comply with that request.

 

 

12.Further, and in any event in view of the failure to comply with the CPR part 18 request, it is denied that the Claimant is entitled to costs as claimed or at all

 

13.In view of the foregoing it is denied that the Defendant is indebted to the Claimant as alleged or at all

 

It is respectfully requested that the Defendant be granted permission to amend this defence on satisfactory response from the Claimant with all of the information requested and necessary in order to submit a full defence.

 

Statement of Truth

 

I believe that the facts stated in this defence are true.

 

I am the Defendant.

 

IMHO, you needed to throw this back at them originally asking for a fully particularised POC.

 

You require the breakdown of both accounts from inception of account.

 

You require copies of both assignments

 

You require copies of Default Notices on both accounts as the lack of one or an invalid DN is a complete defence in itself.

 

s69 interest..

 

Furthermore, the Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

 

Righto, back to your original query. Were you provided with form N265

which if you havent been, can be obtained by clicking on the link ^^^

 

It is fairly straightforward. Just needs to be completed and forwarded to the other side by the date advised in your order. The opposition are to do the same. If either of you have documents listed that the other side wants to have a look at then copies are to be requested and supplied by the date advised in the order.

 

If it isnt listed on your form, then you cannot use it in court.

[angel_1]

hiya babble

 

looks like citizen has come to the rescue again - hiya cb

 

am subbed to this thread now too

 

hope at least i can give u a bit of moral support along the way too

 

laters keep positive angel x

[babble]

Hi to both of you. I have started a thread for the natwest one which is what my query was about re: embarrassed defence.

 

Any help with either of these cases is greatly appreciated though )

 

It seems that all these companies are coming out of the woodwork at the moment to try to get some cash in!!!

[volvo]

subbing

[babble]

Hi CitizenB

 

That is the defence I have submitted. I used that because it basically covered the main points that I understood. I didn't realise until seeing the other posts that I could throw it back at them. I guess it's too late now.

 

I will definitely investigate (and bring up) the point about the interest and the default notices.

 

As for the form N265 I wasn't given one. I will download this and complete it. I don't think I have any documents though apart from some of the copy application forms that they sent me in response to my CCA1974 request. Is there anything that I might need to put on the form such as legal documents like the CCA1974 or the wilson case as they are referred to in my defence or is it given that I can just refer to them?

[MandM]

Subbing

[MAGDA]

Hi CitizenB

 

That is the defence I have submitted. I used that because it basically covered the main points that I understood. I didn't realise until seeing the other posts that I could throw it back at them. I guess it's too late now.

 

I will definitely investigate (and bring up) the point about the interest and the default notices.

 

As for the form N265 I wasn't given one. I will download this and complete it. I don't think I have any documents though apart from some of the copy application forms that they sent me in response to my CCA1974 request. Is there anything that I might need to put on the form such as legal documents like the CCA1974 or the wilson case as they are referred to in my defence or is it given that I can just refer to them?

 

Hi Babble,You don't need to disclose case law or any legislation you seek to rely on, as these are already in the public domain. Just letters you have from you to the claimant and vise versa, and court papers, letter, etc.

You shouldn't have that much to disclose I wouldn't think

 

Magda

[mercyblue]

Technically you would only need to disclose items not common to both parties.

[babble]

Sent mine off recorded and received theirs in the normal post on the last day. Strangely they have combined the disclosure and cpr 18 request info together...nice.

 

I will post more later but basically they have come out with a load of rubbish including denying the need to send me a default notice etc so they haven't sent a copy of certain things. I was under the impression that if they are to report a 'default' to a credit reference agency they had to have issued a proper default notice.

 

I'm going to go through it properly and pick it to bits - think I have some specific reading to do. However when it comes down to it they have sent copy 'agreements' for both accounts as they had sent me before....which I believe amounts to nothing really.

[cymruambyth]

I will post more later but basically they have come out with a load of rubbish including denying the need to send me a default notice etc so they haven't sent a copy of certain things. I was under the impression that if they are to report a 'default' to a credit reference agency they had to have issued a proper default notice.

 

 

I think anyone can report you for defaulting on a payment. A DN is for when the account is 'on final probation'.

[citizenB]

Sent mine off recorded and received theirs in the normal post on the last day. Strangely they have combined the disclosure and cpr 18 request info together...nice.

 

I will post more later but basically they have come out with a load of rubbish including denying the need to send me a default notice etc so they haven't sent a copy of certain things. I was under the impression that if they are to report a 'default' to a credit reference agency they had to have issued a proper default notice.

 

I'm going to go through it properly and pick it to bits - think I have some specific reading to do. However when it comes down to it they have sent copy 'agreements' for both accounts as they had sent me before....which I believe amounts to nothing really.

 

Rubbish, at some point the original creditors should have sent you Default Notices and for the claimant to take you to court, then they will need to provide copies or evidence that they were sent, were in the prescribed format and gave you sufficient time to remedy. They will also be required to provide evidence of the manner in which they were posted to you.

 

In order to be able to bring this action against you, they will also be required to prove that the accounts were assigned to them correctly and that you were informed of this by registered/recorded post.

 

Once you have had a read of what you have been sent.. post up a suammary and we can move forward.

 

Cym is correct I think in that they dont need to issue a Default notice prior to recording information with CRAs, but I think that to say you HAVE defaulted then they will have needed to have sent you one.

[babble]

I'm going to go through it this afternoon / evening and I might spend some time and scan each page of their response to the CPR 18 request. That way everyone can see exactly what they've put rather than me trying to summarise and possibly miss something important.

Then I can go through the points and get the exact part of any acts relevant to each response and deal with it accordingly depending on what they've sent or not as the case may be.

I do think a lot of it is to draw attention away from the fact that they only have two application forms and they aren't agreements. In one of the letters cabot sent to me they tried to make out that because it says 'this is a regulated credit agreement under the consumer credit act 1974' and I signed it, then that makes it a properly executed agreement. They are just trying it on.

[cymruambyth]

They always try it on!

If you are going to scan pages, remember to remove all data including bar codes and amounts. They do read CAG:eek:

[babble]

After fighting with my pc and the internet I've finally managed to complete a summary as follows:

The numbers refer to the numbers in the CPR 18 request.

 

In response to request 2 and 3 they refer to Cabot Europe’s action history.

 

In response to my request (4) for a properly executed agreement they have responded by saying they have enclosed a copy of the executed credit agreement. In both cases they have supplied the completed application forms.

 

It is quite interesting that on the providian (became monument) application that it suddenly has underneath it a barcode and the wording credit agreement. The copy cabot sent me quite clearly says application form. I had pointed this out to cabot and also to morgans. I am sure they are aware that an application form can not be an agreement.

 

In contract law a contract can not be formed unless a minimum of three requirements are met in a particular order – offer, acceptance, agreement. It is clear that an application is, or precedes the ‘offer’ stage.

 

In response to my request (5) for a true copy of terms and conditions they have included copies of terms and conditions (with lots of underlining…trying to point out why it meets the requirements I suppose). It is quite clear that these were not on the back of the application form though as they are A4 size.

 

In response to my request (6) for a notice of assignment for both accounts they have included a copy of what was apparently sent to me. Stating that in their action history it says they’ve done it.

 

In response to my request (7) for evidence that a notice of assignment has been received they say they refer to the above paragraphs and submits that the notices were sent to my last known address pursuant to the criterion set out in section 196 of the law of property act 1925. In other words they don’t have proof that they sent it or I received it. I also don’t understand why they keep coming back to this law of property act – in their first ever response they tried to use that to justify themselves.

 

In response to my request (8) for a deed of assignment they have sent redacted copies…again referring to the law of property act in purchasing it.

It appears that barclays (monument) sold the account to Kings Hill (no.1) limited….I have never received anything from this company and it is not Cabot Financial (UK) Ltd.

Capital One sold their account to Cabot Financial (UK) Ltd.

 

I haven’t gone through each document properly but in flicking through I did notice that the sale authorisation document isn’t actually signed by anyone from capital one. Yet there is included another sale authorisation document which is signed by capital one. It quite clearly looks as someone has quickly added the second one and not removed the first. The person at cabot who signed is the same person but the signature is slightly different so it is not the same document. It also appears that this is a copy of a copy not a copy of an original as in the first sale authorisation document.

 

In response to my request (9) for statements of account they have supplied them including what they have added. It seems peculiar that they have added interest to the monument account but not the capital one account.

 

In response to my request (10) for a formal default notice they say they don’t need to…. ‘a default notice need only be sent to the defendant in a limited number of circumstances’ they then quote section 87 (1) CCA 1974 and then go on to say ‘the claimant avers that sections 87 and 88 apply only where the creditor/claimant wishes to take one of the steps specified in s87(1)(a) to (e).

 

A default notice is not required where the creditor/claimant simply demands repayment of arrears’ and then they say that no default notices were required in respect of the accounts as it merely demands repayment of arrears.

 

Maybe I’m wrong here but in their correspondence there is no mention of arrears, they ask for the whole amount. That isn’t a demand for payment of arrears.

 

In response to my request (11) evidence that DN’s have been sent they say they don’t need to because they’ve established that they didn’t have to send DN’s

 

In response to my request (12) true copies of default/termination notices and proof of postage they state they don’t have to send DN’s. They then go on to state that termination notices are not required because the agreements have not been terminated.

 

In response to my request (16) regarding a genuine copy of any notice of fair use of my data as required by the DPA they state that they are unaware that they must provide a notice of fair use of personal data and ask me to draw their attention to the relevant provision in the DPA. They then try to make out that the alleged agreement they have means they can process my data.

 

I personally thought that my stautory request for the agreement and the statement that I did not acknowledge the debt would give rise to the fact that until they provide a properly executed agreement they do not have my consent to process my data. As they defaulted on the request and subsequently breached the act and committed an offence then they have to get an order to make the agreement lawful if they have one. Until that point they do now have my written consent to process my data. Therefore I would think section 10 and schedule 2 of the DPA 1998 applies. I'm not particularly sure where the fair use notice comes in to it unless that means part (3) of section ten where the data controller has to give notice of their intention.

　

Edited March 17, 2010 by citizenB
included paragraphs to aid reading.

[citizenB]

Hi babble, thanks for the summary.

 

There are two areas of interest the Assignments and the Default Notices. I will send out some S.O.S's on your behalf in order to get some feedback for you.

 

PS. Sorry, I put some spacing in your Summary in order to make it easier to read.

[vjohn82]

Hi babble/CB,

 

Typical arrogance from Cabot to be honest. They interpret everything to their own little messed up world and expect others to concede. I have had had MANY battles with Cabot and, fortunately, came out on top in all of them.

 

The Default Notice issue is the most pertinent... they ALWAYS get this wrong. The Default Notice has to be sent before the account is terminated in any case so their version of arrears etc is obviously incorrect. Despite this, if they are only claiming for arrears they have not stated this in their case and are proceeding with court action for the full amount (as you stated yourself).

 

Notice of Assignments are a little more tricky I suppose and without sight of all of the documents in question I cannot help with this... that said, Barclays (prior to 2008) seemed to cock up the assignments of their accounts by producing no proper deeds... if this is the case in this one then I suspect that Cabot have no cause of action anyway.

 

Any chance of scanning up some docs?

[vjohn82]

They always try it on!

If you are going to scan pages, remember to remove all data including bar codes and amounts. They do read CAG:eek:

 

Leave the amounts on and barcodes...

 

We want them to identify Caggers... in the recent case between BOS & Mitchell costs were awarded against BOS because they knew the legal arguments and discontinued at the last minute. The Judge ruled it an abuse of process to allow it to drag on so long.

 

If Cabot attempt to use anything from the thread... this is proof that the Claimant knows the weakness of the case and will be, in all honesty, shooting themselves in the foot.

 

As long as your personal details are removed, to meet the terms of CAG, I would leave everything else intact.