Babble vs Cabot/Monument

[DonkeyB]

1. Suggest you PM Vint1954 to ask him to look at whether these accounts have been terminated. This is important and Vint usually has the answers. Selling a debt does not automatically mean termination - otherwise the factoring industry would collapse!

 

2. I'm not happy about a combined claim. Through the CPR, are you now clear as to how the amount claimed has been reached - to the penny? Need a proper legal brain on the claim combination issue - Morgans are making a balls up by doing this in quite a few cases at present - seems to be a trend they've started, maybe to try and save money.

 

3. The T&Cs supplied for the Monument account are Monument's own, dated June 03, and not the ones in force when you took the card out in May 2002. You need the originals and should demand them. Can you recall if any T&Cs had been provided to you when you actually signed the app forms? If not, Carey v HSBC from the Manchester case could be useful.

 

4. Did you ever receive a formal demand for each account or letters before action? I think you've hinted you did not. Was there any other correspondence prior to the claim than that posted on here already?

 

5. In the distant past, can you remember receiving a Default Notice regarding either account from the original creditors? Have you checked your credit file to see when any defaults were registered? Also, did you receive any letters telling you your cards had been stopped? Have you sent a SAR to both OCs to get info on letters sent and full statements?

 

6. Do you have a copy of the NoA re the Monument account?

 

7. Re the Cabot/Kings Hill No 1 issue. On 15 Jan 2007, Kings Hill (No 1) Ltd changed its name to Cabot Financial (UK) Ltd. At exactly the same time, Cabot Financial (UK) Ltd changed its name to Kings Hill (No 1) Ltd. What date was the Monument debt sold to Cabot? If it wasn't prior to 15 Jan 2007, then Cabot Financial (UK) does NOT own the debt and there is no cause of action. These facts may bring up some discrepancies in the Deeds of Assignment, which you must get hold of and let us see - these could be crucial to ownership and cause of action.

 

Sorry if you've already provided any of this info - trying to get up to speed quickly.

 

If we can pull holes in just one of these accounts, then their whole case fails - if they want to double up a claim, they can also suffer by doing so.

[babble]

1. Suggest you PM Vint1954 to ask him to look at whether these accounts have been terminated. This is important and Vint usually has the answers. Selling a debt does not automatically mean termination - otherwise the factoring industry would collapse!

 

Will do.

 

2. I'm not happy about a combined claim. Through the CPR, are you now clear as to how the amount claimed has been reached - to the penny? Need a proper legal brain on the claim combination issue - Morgans are making a balls up by doing this in quite a few cases at present - seems to be a trend they've started, maybe to try and save money.

 

It looks accurate but it seems strange that they claim that they can continue to add interest as they have an agreement but they only add interest on the monument account.

 

3. The T&Cs supplied for the Monument account are Monument's own, dated June 03, and not the ones in force when you took the card out in May 2002. You need the originals and should demand them. Can you recall if any T&Cs had been provided to you when you actually signed the app forms? If not, Carey v HSBC from the Manchester case could be useful.

 

I have never received T&Cs for either account. I noticed that the were not the T&Cs from the date of the account application in addition they said monument whereas the company was providian at the time. I thought that might be useful. Will look at Carey. Strangely though in the CPR18 response they have managed to find a copy of the providian T&Cs.

 

4. Did you ever receive a formal demand for each account or letters before action? I think you've hinted you did not. Was there any other correspondence prior to the claim than that posted on here already?

 

The only correspondence received was constant 'you owe us x amount please call us to arrange payment' as shown on here. No formal demands or LBA's have been sent apart from that one morgan sent (as posted) regarding monument where they witter on about pre-action protocols etc....even though they haven't complied themselves.

 

5. In the distant past, can you remember receiving a Default Notice regarding either account from the original creditors? Have you checked your credit file to see when any defaults were registered? Also, did you receive any letters telling you your cards had been stopped? Have you sent a SAR to both OCs to get info on letters sent and full statements?

 

I've never received a default notice for either account. I have some credit file reports so I will check them. They also state in their info when info was passed to cra's. No letters received telling me cards had been stopped. I haven't sent SAR's to either OC, I am so broke at the moment I don't have the money to do that right at the moment.

 

6. Do you have a copy of the NoA re the Monument account?

 

I have the copy that they (morgans) sent to me as part of the cpr18 response.

 

7. Re the Cabot/Kings Hill No 1 issue. On 15 Jan 2007, Kings Hill (No 1) Ltd changed its name to Cabot Financial (UK) Ltd. At exactly the same time, Cabot Financial (UK) Ltd changed its name to Kings Hill (No 1) Ltd. What date was the Monument debt sold to Cabot? If it wasn't prior to 15 Jan 2007, then Cabot Financial (UK) does NOT own the debt and there is no cause of action. These facts may bring up some discrepancies in the Deeds of Assignment, which you must get hold of and let us see - these could be crucial to ownership and cause of action.

 

It says on the copy of the 'account sale agreement' 'dated 1st November 2006'. However the sheet where barclays and cabot have signed isn't dated and neither is the second schedule which describes form of offer. This makes reference to 2007 about the agreement dated 2006 but the actual dates have not been filled in. I will try to scan as much as I can and then go from there.

[DonkeyB]

It says on the copy of the 'account sale agreement' 'dated 1st November 2006'. However the sheet where barclays and cabot have signed isn't dated and neither is the second schedule which describes form of offer. This makes reference to 2007 about the agreement dated 2006 but the actual dates have not been filled in. I will try to scan as much as I can and then go from there.

 

"Account sale agreement"? Oh dear, it's not a deed! They're fecked on that one!

 

What we need urgently is the actual date of assignment from Monument/Barclays to Cabot. This is critical. The agreement should show the company number - this is what we need to work out who really owns what.

 

Can you post up what you have of the so-called 'account sale agreements'?

[DonkeyB]

6. Do you have a copy of the NoA re the Monument account?

 

I have the copy that they (morgans) sent to me as part of the cpr18 response.

 

What's the date on this?

[DonkeyB]

Also, there are rules on how these agreements/deeds are laid out and signed, so sight of them will be useful.

 

You are allowed to inspect the originals at their premises - suggest you be a pain in their arse and put in a request.

[DonkeyB]

Sorry to babble on (eek...bad pun), but do you have any copies of 'hello' letters from Cabot, saying they now own the accounts? If not, can you request them? Your CPR should have uncovered them as they claim in the PoC they informed you in writing.

 

The wording of their intro letters could be important.

[babble]

Hi Vjohn/donkey

 

I'm going to scan up as much as I can and will be back later!

 

I agree with the arrogance thing as from the start it was we will pick what laws we apply and only the bits that support us....as I pointed out to them the holes in their arguments they then change their tune. At first they didn't have to abide by the CCA 1974, then it was we have sent the agreements but out of time so we can now do x, y and z....etc etc

 

Again I don't mind if they know that I use CAG, like you said if they are watching (and I think they are because in their transcript they mention that I said I use this forum) and they proceed when they know they don't have a case it prejudices them for this case and any others. It may also leave them open to being made a 'vexatious litigant' which is something that I may just have to investigate further in the future as this may cause them some serious problems.

[DonkeyB]

Looking at the documents and what you've told us, I think there are plenty of holes. We just have to use the law to defend you against them, that's all! It's your right.

[foolishgirl]

Looking in at CB's request, babble.

 

Think most of your points have been addressed by DB & Vint. I would add

 

(a) they can combine 2 x debts on one POC but only if it is properly particularised (eg. they can't lump them all together in one sum & expect you to sort our the details). If you can post the POC up please or point its location?

 

(b) when you get their disclosure list which is certain to have the agreement listed if not the DOA, I would seek inspection of the originals. Also you may want to apply for directions to have proof of posting for the DN & NOAs & for the original DOA to be produced to the court to ensure they have legal entitlement to the claim. The trail they have produced as a redacted copy looks very iffy.

 

© the argument they stated re. S87 & your DN is a load of rubbish & can easily be overcome.

Edited March 17, 2010 by foolishgirl
addition

[citizenB]

Both are on one claim form.

 

Court Claim form: claim form on Flickr - Photo Sharing!

 

Capital One Notice of Assignment Letter: cap one notice of assignment on Flickr - Photo Sharing!

 

Cpaital One Credit Agreement: cap one credit agreement on Flickr - Photo Sharing!

 

Capital One Application Form: cap one app form on Flickr - Photo Sharing!

 

Providian (became Monument) Application Form: providian application form on Flickr - Photo Sharing!

 

Monument Credit Agreement: mon terms 01 on Flickr - Photo Sharing!

mon terms 02 on Flickr - Photo Sharing!

mon terms 03 on Flickr - Photo Sharing!

mon terms 04 on Flickr - Photo Sharing!

mon terms 05 on Flickr - Photo Sharing!

 

There was no notice of assignment letter from Monument. Neither company provided an actual document showing the transfer.

As can be seen the application is to Providian but the original terms and conditions have not been supplied just the most recent ones for Monument.

I can find no proper default notices for either account.

Just lots of letters denying they have to abide by the CCA 1974 etc and demands for payment as is their usual methods.

 

Looking in at CB's request, babble.

 

Think most of your points have been addressed by DB & Vint. I would add

 

(a) they can combine 2 x debts on one POC but only if it is properly particularised (eg. they can't lump them all together in one sum & expect you to sort our the details). If you can post the POC up please or point its location?

 

(b) when you get their disclosure list which is certain to have the agreement listed if not the DOA, I would seek inspection of the originals. Also you may want to apply for directions to have proof of posting for the DN & NOAs & for the original DOA to be produced to the court to ensure they have legal entitlement to the claim. The trail they have produced as a redacted copy looks very iffy.

 

© the argument they stated re. S87 & your DN is a load of rubbish & can easily be overcome.

 

FG, I have bought forward the POCs and other stuff above.

 

Many thanks to you, DB and VJ for looking in. Much appreciated. :grin:

[citizenB]

POC text

 

The Claimant is the assignee of a Debt(s) from Monument

Credit Card reference 1708350

Capital One

Credit Card reference 1719748

Notice of Assignment have been given to the Defendant in writing.

Despite demand for payment, £6327.78 remains due.

The Claimant claims 6617.78 and interest under s69 County Courts Act and Costs.

 

 

The references for a start are obviously not the Account references and they have claimed s69 interest which they arent allowed to do and they have also lumped the two amounts together.

[vint1954]

1. Suggest you PM Vint1954 to ask him to look at whether these accounts have been terminated. This is important and Vint usually has the answers. Selling a debt does not automatically mean termination - otherwise the factoring industry would collapse!

 

The agreement can continue after sale, providing that the new owner can offer the same facillities to borrow and repay the loan or CC.

If they have sold the debt as a whole, without transferring the benefits of the agreement, then account terminated. Termination probably happened before the account was sold, bu requesting the ballance in full.

 

2. I'm not happy about a combined claim. Through the CPR, are you now clear as to how the amount claimed has been reached - to the penny? Need a proper legal brain on the claim combination issue - Morgans are making a balls up by doing this in quite a few cases at present - seems to be a trend they've started, maybe to try and save money.

 

Quite right DB, should be 2 claims if it was 2 accounts with the OC. Too many variables between accounts to be sure of getting the POC right.

 

3. The T&Cs supplied for the Monument account are Monument's own, dated June 03, and not the ones in force when you took the card out in May 2002. You need the originals and should demand them. Can you recall if any T&Cs had been provided to you when you actually signed the app forms? If not, Carey v HSBC from the Manchester case could be useful.

 

Spot on DB, they must supply both sets of T&C's.

 

4. Did you ever receive a formal demand for each account or letters before action? I think you've hinted you did not. Was there any other correspondence prior to the claim than that posted on here already?

 

5. In the distant past, can you remember receiving a Default Notice regarding either account from the original creditors? Have you checked your credit file to see when any defaults were registered? Also, did you receive any letters telling you your cards had been stopped? Have you sent a SAR to both OCs to get info on letters sent and full statements?

 

The DN is cricial for them, to then go on and claim the benefits of s87, demand ballance in full or sell the account. Without it they are screwed.

 

6. Do you have a copy of the NoA re the Monument account?

 

7. Re the Cabot/Kings Hill No 1 issue. On 15 Jan 2007, Kings Hill (No 1) Ltd changed its name to Cabot Financial (UK) Ltd. At exactly the same time, Cabot Financial (UK) Ltd changed its name to Kings Hill (No 1) Ltd. What date was the Monument debt sold to Cabot? If it wasn't prior to 15 Jan 2007, then Cabot Financial (UK) does NOT own the debt and there is no cause of action. These facts may bring up some discrepancies in the Deeds of Assignment, which you must get hold of and let us see - these could be crucial to ownership and cause of action.

 

Sorry if you've already provided any of this info - trying to get up to speed quickly.

 

If we can pull holes in just one of these accounts, then their whole case fails - if they want to double up a claim, they can also suffer by doing so.

DB, I think the best approach is to get the OP to list for each account:

Date of DN

Rectification date within the DN

Ammount required to be paid in the DN. ( arrears or full ballance)

Date of any letter demanding the full ballance

Date of assignment.

Probably best to work from the bottom up, then look at the agreement.

Did the OP SAR the OC.

[vint1954]

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.

 

You will need to demand that the original is in court for the hearing.

 

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.

 

This is sane thinking babble. Abandon it now:D

 

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.

 

You need to be requesting the Prescribed terms that were on the back of the application and ask them how it was ever intended to become a regulated agreement, without a place for the OC to sign.

 

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.

 

Have you moved?

 

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….This NOA also required 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).

 

Absolute and utter ballcocks. They have gone on to take the next step by terminating and demanding the ballance in full. Where do they get these people, Grange Hill.

 

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.

 

Wrong, wrong, wrong. Are they only sueing you for the arrears? Is the account still live and you are able to use the card again, when the arrears are paid. If they have not issued DN's it's game over for them, but be sure on that point.

 

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.

 

Thats termination, DN required. These people have purchased a pup.

 

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.

　

Vint

[DonkeyB]

Oh vint, you do it for me every time!

[vint1954]

The first part of the defence is easy:

 

PART VII

DEFAULT AND TERMINATION

Default Notices

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "

default notice ") is necessary before the creditor or owner can become entitled, by

reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

(2) Subsection (1) does not prevent the creditor from treating the right to draw

upon any credit as restricted or deferred, and taking such steps as may be necessary to

make the restriction or deferment effective.

(3) The doing of an act by which a floating charge becomes fixed is not

enforcement of a security.

(4) Regulations may provide that subsection (1) is not to apply to agreements

described by the regulations.

 

And the reason for a DN, giving timescales and remedy:

 

89. If before the date specified for that purpose in the default notice the debtor or hirer takes the action specified under section 88(1)(b) or © the breach shall be treated as

not having occurred.

[foolishgirl]

FG, I have bought forward the POCs and other stuff above.

 

 

Thanks for that CB. POC is rubbish ain't it?

 

Too late now but this really deserved a strike out applic. from the start.

 

However great points Vint. That should really give you something to get your teeth into, babble.

[DonkeyB]

Spot on FG. Should have requested they clarify the PoCs within 7 days under threat of N244 application for strikeout - I've learned a lot from pt2537's 'getting started' thread!

[vint1954]

This will need some work, but can be used as the start of your defence for the DN only.

 

The Default Notice.

x. The Claimant failed to issue a Default Notice to the Defendant as he is required to do under section s87(1) of the Consumer Credit Act 1974.

a) The prescribed format and need for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

b) It is submitted that the Claimant:

 

(i) Did not issue a default notice, thus making it impossible for the defendant to remedy the alleged breach or indeed seek legal advice.

(ii) Further unlawfully rescinded the agreement by requesting the balance of the account in full, before issuing a compliant Default Notice, an action which the defendant accepts.

 

c) Not issuing a Default Notice is in clear breach the regulations mentioned in x(a) above, and the intent of Parliament in amending s87 of the Act, was clearly an effort to protect the debtor.

d) For the consequences of the failure of a default notice to be accurate, or not issued at all, I would point the Claimant to the judgement handed down at appeal by the High Court in the case of: (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) by Lord Justice Kenedy.

“Failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.”

Woodchester v Swain & Co

 

“It is worth remembering that very often these type of contracts are, in fact, complicated in themselves, quite apart from the question of any default, that those who draw up the contracts, that is to say, the finance companies, have necessarily the obligation of being able to calculate what is owing thereunder.

 

As Mr Hodgkinson points out, the words of Section 88 (1) require the lender to "specify" not only the nature of the breach - which in this case was adequately described as failure to pay the rental specified on their due dates - but also what action is required to remedy the breach. In the context of this case that meant specifying accurately what sum of money had to be paid.

Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid. Here we are dealing with a statute which, for good and obvious reasons, requires a lender or owner to set out precisely what needs to be done to put right the alleged breach of contract. If a sum of money has to be paid it needs to be "specified". And if the figure given is more than the sum which the giver of the notice is entitled to demand, the notice, in my judgment, must be invalid.”

 

h) The Claimant has, in response to my request for documents under CPR31.14, admitted that a Default Notice was not issued in this case.

[foolishgirl]

Apologies if I'm wrong, vint, but hasn't a defence gone in?

This will be WS stuff then?

[vint1954]

Could be foolishgirl. I've not read the whole thread.

Edited March 17, 2010 by vint1954

[alangee]

Babble

 

You mention that they sent a copy of Providian T&C's in response to your CPR 18 request. On the facing page in the middle under the Providian National Bank, does it have a date, something like Jan 02?

 

Donkey

 

What is the relevance of Account Sale Agreement versus Deed of Assignment?

 

Vindt

 

In the Account Sale Agreement, at section 2.3 it states, Upon Acceptance of the offer persuant to clause 2.2(b) (this clause blanked out), all of the Sellers rights, title and interest in and to the Accounts to which the Offer relates shall thereupon pass to the Buyer upon the terms and subject to the conditions of this Agreement and the Offer. (these conditions are also blanked out).

 

It is this point that they rely on to continue adding interest and demanding the arrears.

 

Alan

[vint1954]

I think it referrs to Interests rather than Inerest as a % rate.

 

For all of the above to happen, and the debt assigned absolutely to the new owner, it needs to be completed as a deed of assignment rather than just a sale agreement.

 

Without the deed, they cannot take action in court, without the OC being a co-claimant.

[babble]

Hi Everyone,

 

just managed to finish scanning, covering personal info and uploading...here is the 'set' at:

 

cpr18 response - a set on Flickr

 

hopefully this should give you access to the full 33 pages that I've scanned, I've added a couple of notes etc to them. My most recent employment may have a bearing on some of my notes but I think it best if I only reveal that via pm.

 

I notice that a lot of info has been posted this afternoon....I'm going to have a flick through it in a little while and then hopefully go through the comments relating to the info they have provided and try to work from there.

 

I have sent a defence in and since that I have received the order to disclose and notice of a case management conference. I will copy those documents if you think it pertinent. I wish I'd known more at the very start, but I'm learning

 

Now for some coffee and painkillers (am full of cold and am recovering from abdominal surgery a couple of weeks ago).

 

Thanks everyone for looking in and commenting / helping

[Hadituptohere]

Good luck babble and im watching with interest, very much in a similar position with cabot/morans, hope you have a speedy recovery..

 

Hadituptohere

[cymruambyth]

Although I'm further ahead than you, some of your answers are very helpful;). Hope you have a speedy recovery, at least there is lots of 'light' reading for you!