Court case this week against Cabot

**Ruby** · 4th January 2015, 21:30:PM

Re: Court case this week against Cabot

bump please :tinysmile_hmm_t2:

**Endlessnine3** · 4th January 2015, 22:17:PM

Re: Court case this week against Cabot

I will follow this with interest as I have a date with them soon and there solicitor has sent some very very dodgy copies of letters and some agreement that I can't even read

good luck

**Mineral1** · 4th January 2015, 22:47:PM

Re: Court case this week against Cabot

Best of luck.... Your Scottish Legal System... Where's this being heard? For the record you have more balls than those who would hide behind their specialised litigation machine simply to turn a profit from your distress! :tongue2:

**mystery1** · 4th January 2015, 23:21:PM

Re: Court case this week against Cabot

Section 61 is nothing to do with a copy under s78.

I have pretty much no doubt the original had both parties details on it. The fact that a copy had none is only relevant under s78. Read Carey.

Any argument under s61 is about what was agreed and signed originally, at the time you signed.

M1

**Ruby** · 5th January 2015, 15:10:PM

Re: Court case this week against Cabot

61 Signing of agreement.

(1) A regulated agreement is not properly executed unless—
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

To be properly executed, the agreement should:

Be headed appropriately, i.e. "Credit Agreement regulated by the Consumer Credit Act 1974";
Contain the name and address of both parties (debtor and creditor);
Set out the financial and related particulars of the agreement:
- Credit limit - applies to running account agreements (i.e. credit cards);
- Total charge for credit, rate of interest, etc. - applies to both fixed sum and running account agreements;
  - For fixed sum agreements, the total charge for credit
  - For both types - the rate of interest and the total amount of other charges
- Timing of repayments - applies to both types of agreements;
- Amounts of repayments - applies to both types of agreements, expressed as:
  - (a) a sum of money;
  - (b) a specified proportion of a specified amount (including the amount outstanding from time to time);
  - (c) a combination of (a) and (b) above; or
  - (d) in a case where the amount of any repayment cannot be expressed in accordance with (a), (b) or (c) above, a statement indicating the manner in which the amount will be determined.
- APR
State your right to cancel the agreement within a certain period of time and details of when and how to do this;
Have a signature box with your signature and date, however, if you applied online from Jan 2005 onwards, a tick box would fulfill the role of a signature.

MI, Cabot have 'conveniently' bundled two accounts together and I can assure you that on one there was no mentioned of anyone apart from the creditor themselves. I am basing my argument in court on the above which I believe is Section 61. I trust the points raised in Section 61 are relevant to agreements entered into in 2006.

In the other account in question I shall keep section 78 in mind as although the agreement did include the names and addresses of both parties the agreement could not have been a true copy as I have luckily kept the very first statement from the account and the APR/Charges details are different to what Cabot have sent. This is why I wanted to know what section of the Act talks about the pursuer needing to provide all the T & C's during the term of the contract when replying to a CCA request. My argument is that it is highly unlikely that during the three/four weeks from when the account was opened did the financial information change and if by remotest chance it did then the amended T & C's should have been included in my CCA request.

As for balls ........ :tinysmile_twink_t2: My family would second that!

**mystery1** · 5th January 2015, 15:51:PM

Re: Court case this week against Cabot

MI, Cabot have 'conveniently' bundled two accounts together and I can assure you that on one there was no mentioned of anyone apart from the creditor themselves. I am basing my argument in court on the above which I believe is Section 61. I trust the points raised in Section 61 are relevant to agreements entered into in 2006.

Yes they are. However what you are attempting to do, from what i see, is take a "true copy" supplied under s78 and say that that is what was signed originally and thus s127(3) makes it unenforceable via s60,61 & 65 (irredeemably unenforceable). You need to stop thinking like that. The account MAY be unenforceable under those sections but you can't just say to the court the copy sent to you has no details of the parties on it which makes it unenforceable at inception. You'll likely lose and be laughed at. http://www.bailii.org/ew/cases/Misc/2012/19.html

S78 is temporary unenforceability and that is where the duff copy comes in to play. http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html http://www.bailii.org/cgi-bin/markup...method=boolean http://legalbeagles.info/wp-content/...Bachellier.pdf

Enforceable under s78 but not s127(3)
http://www.bailii.org/ew/cases/Misc/2012/14.html

Can work in reverse but i've not seen a decision on it.

M1

**Ruby** · 5th January 2015, 19:58:PM

Re: Court case this week against Cabot

OMG I think I will be eligible for a law degree after this case!!! Okay I think I need to simplify things. Is it 'reasonable' to request a Notice of Assignment and compliant default notice from the pursuer? Despite repeated requests these have not been forthcoming. Court papers have numerous discrepancies - which Cabot have 'accidentally' revealed. Also, with one of the two accounts listed in the court papers I have had no financial association with at all but Cabot's solicitors have 'clarified' that the the court papers meant to say XYZ Bank.

Sorry, I need to be a little cautious at this stage just in case certain nummties at Cabot or their 'representatives' are reading this thread.

Where can I access the Consumer Credit Act?

**Ruby** · 5th January 2015, 20:13:PM

Re: Court case this week against Cabot

What I am also trying to say is with one of the accounts in question Cabot have failed to comply with my CCA request by not supplying MY Credit Card Agreement. What they have supplied makes no reference to anyone but the original creditor. It fails to comply with all aspects of section 61.

**mystery1** · 5th January 2015, 23:32:PM

Re: Court case this week against Cabot

Where can I access the Consumer Credit Act?

http://www.legislation.gov.uk/ukpga/1974/39/contents

Original before changes.

http://www.legislation.gov.uk/ukpga/...9740039_en.pdf

Is it 'reasonable' to request a Notice of Assignment and compliant default notice from the pursuer?

Yes and don't forget they have to prove their claim but only on the balance of probability. Never request a compliant anything. Asking for a compliant default notice rather than the default notice they sent invites them to think you don't have one and peraps they may get creative.

Pleadings can be changed but if it needs done when it's after a deadline there will be financial costs.

What I am also trying to say is with one of the accounts in question Cabot have failed to comply with my CCA request by not supplying MY Credit Card Agreement. What they have supplied makes no reference to anyone but the original creditor.

S78 (6) makes it unenforceable.

It fails to comply with all aspects of section 61.

It doesn't have to for s78. If you were arguing prescribed terms then you may have had a case under 127(3) but you're not. The parties to the agreement will have been on the original agreement, 100%. How did you know who you were signing up to and how did you get the card ?

M1

**Ruby** · 6th January 2015, 06:10:AM

Re: Court case this week against Cabot

Thank you so much M1 for your input - considering the time you posted on this thread I assume you don't turn into a pumpkin at midnight

The different sections of the act confuse me and probably most folk and that is what the litigation team in Cabot bank on.

I am naturally concerned of making a fool of myself on Friday - David and Goliath spring to mind.

I did have an insane thought about perhaps just rolling over and letting them get their way but I think at this stage of the game they are very likely to put a CCJ against me anyway if I set up a repayment plan so I recon I probably have nothing to lose by fighting to the bitter end.

**mystery1** · 6th January 2015, 12:00:PM

Re: Court case this week against Cabot

Concentrate on s78.

http://www.bailii.org/ew/cases/EWHC/QB/2009/3417.html

Part VI of the Act

This Part is entitled "Matters arising during currency of credit or hire agreements". And under the rubric "Duty to give information to debtor under running-account credit agreement" is s78, the provision at the centre of this litigation. This provides as follows:
"s78 (1) The creditor under a regulated agreement for running-account credit, within the prescribed period [12 working days] after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer, -
(a) the state of the account, and
(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and
(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.
(2) If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (l)(c), he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.
(3) Subsection (1) does not apply to -
(a) an agreement under which no sum is, or will or may become, payable by the debtor, or
(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.
(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;..."
Variation of or modification to the original agreement is dealt with by s82 which provides as follows:
"s82 (1) Where, under a power contained in a regulated agreement, the creditor or owner varies the agreement, the variation shall not take effect before notice of it is given to the debtor or hirer in the prescribed manner.
(2) Where an agreement (a "modifying agreement") varies or supplements an earlier agreement, the modifying agreement shall for the purposes of this Act be treated as -
(a) revoking the earlier agreement, and
(b) containing provisions reproducing the combined effect of the two agreements,
and obligations outstanding in relation to the earlier agreement shall accordingly be treated as outstanding instead in relation to the modifying agreement..."
The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Copies Regulations")

Section 180 of the Act conferred power on the Secretary of State to make regulations "as to the form and content of documents to be issued as copies of any executed agreement."
It is helpful to set it out in full:
"si 80 (1) Regulations may be made as to the form and content of documents to be issued as copies of any executed agreement, security instrument or other document referred to in this Act, and may in particular -
(a) require specified information to be included in the prescribed manner in any copy, and contain requirements to ensure that such information is clearly brought to the attention of a reader of the copy;
(b) authorise the omission from a copy of certain material contained in the original, or the inclusion of such material in condensed form.
(2) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document -
(a) is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;
(b) is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations;
and references in this Act to copies shall be construed accordingly.
(3) Regulations may provide that a duty imposed by this Act to supply a copy of a document referred to in an unexecuted agreement or an executed agreement shall not apply to documents of a kind specified in the regulations."
The Copies Regulations were made under this provision.
Under the rubric "General requirements as to form and content of copy documents" Regulation 3 provides as follows:
"(1) Subject to the following provisions of these Regulations, every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall be a true copy thereof.
(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;
(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);
(c) in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer; and
(d) in the case of any copy of an executed agreement given to the debtor under section 77(1) of the Act for fixed-sum credit, or under section 78(1) for running-account credit, under which a person takes any article in pawn, any description of the article taken in pawn"

" a creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself."

"As a matter of common sense it is difficult to see how a copy of an agreement can omit the names of the parties. It might be thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. However, as noted above, any application of the concept of materiality must not override the requirements of s78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided:
(1) The name and address of the debtor would have appeared on the executed agreement and it is not suggested otherwise; a copy of the executed agreement would thus, without more, need to contain those details;
(2) Moreover those details are required by the Agreements Regulations. While Reg. 3 (2) (a) permits the omission of certain information about the debtor, this does not apply if the information was required by the Agreements Regulations. As the name and address is (see paragraph 13(1) above), the obvious implication from Reg. 3 (2) (a) is that it cannot be omitted;
(3) Even more tellingly, Reg. 3 (2) (c) permits the omission of the name and address from the s62 copy (of the unexecuted agreement). That surely entails the conclusion that outside the case of a s62 copy, the name and address is required; this is supported by the editors of Guest and Lloyd's Encyclopedia of Consumer Credit Law ("Guest") at p3200/l;
(4) As against this, the Defendants contend first that Reg. 3 (2) merely sets out a list of expressly permitted omissions. It does not mean that other omissions, entailed by an application of materiality, are not permitted. I disagree. Leaving aside what might be described "low level" omissions which could be cured by such an application (spelling errors, non-misleading presentational matters) the form of Reg. 3 suggests that it is providing a code for what is to be expected in a copy, as si 80 itself provided for in some detail. Any omission of any significance (which must include name and address) needs to be expressly permitted under subparagraph (2);
(5) On Reg. 3 (2) (c) specifically, it was said that this was entailed because it would usually be impossible to put a name and address in the s62 copy which would be presented to the debtor (for example as in the worked example) in a booklet available to all prospective applicants, before he had engaged in the application process. I follow that, but I do not see why that deprives the point made in subparagraph (3) above of its force. Indeed, it may suggest that there had to be a compelling reason (impossibility as Mr Mitchell put it in paragraph 16 (c) of his written submissions) before the omission of the name and address could be contemplated.
(6) It is also said that this view of Issue 1 (c) will place an unnecessary (and perhaps impossible) burden on lenders because it may be hard to find the original address or it may have been lost altogether because for example it was electronically overwritten by a later address. This is of course possible in theory but it is noteworthy that in the cases before me, it was not suggested that the creditors concerned could not have produced a name and address if necessary and that included the case of Yunis where none was provided, in part to keep the lis generated by that case, alive; (I canvassed this point with Ms Tolaney for HSBC on Day 2 p59 but in the event no further submissions from HSBC as to the practicality of providing in some way the original name and address were made, on the basis that there was no evidence available on the point);
(7) I am mindful of the theoretical scenario postulated which compares a failure to provide a name and address in the executed agreement itself and a similar omission in the s78 copy. In the former case, to omit the address would lead to an IEA but one which the Court could enforce under sl27 (1). On the other hand, assuming that the address was indeed on the original executed agreement but the s78 copy omitted it, the result would be continuous unenforceability under s78 (6) until and unless the address were found and inserted into or onto the reconstituted copy. The more serious state of affairs is the former yet the latter yields the harsher consequence. In abstract terms that is correct - but I have serious doubts as to whether the latter is likely to arise. See sub-paragraph (6) above;
(8) It is further said that the provision of the name and address to the very person who can be expected to know it is unnecessary and pointless. But part of that submission relies on the broader argument that the purpose of s78 and the Copies Regulations is the Current Information Purpose. However, as explained in relation to Issue 2 below, I think that is too narrow a meaning. And if - as I find in relation to Issue 2 - a copy of the original executed agreement (albeit reconstituted if the creditor wishes) is still necessary where there have been later variations, there is no reason why the copy should not, equally, include the name and address of the debtor at that time."

"As between the Claimants and the Defendants, there appears to be no real dispute here. The question is "Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made?" and the answer to be given is "No"."

"Accordingly, I conclude that Reg. 7 requires a copy of the executed agreement in its original form as well as a statement of the terms as they are at the time of the request." This can be a recon.

SUMMARY OF FINDINGS
The following is a brief summary of the principal findings and conclusions set out above:
(1) A creditor can satisfy its duty under s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself;
(2) The s78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself;
(3) The creditor need not, in complying with s78, provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 as to form, as at the date the agreement was made;
(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms;

M1

**Ruby** · 6th January 2015, 22:06:PM

Re: Court case this week against Cabot

http://www.bailii.org/ew/cases/EWCA/Civ/2011/105.html - Another for the books :tinysmile_twink_t2:

**mystery1** · 6th January 2015, 22:30:PM

Re: Court case this week against Cabot

I raise you

MBNA v McCullagh002.pdf

I know it's a lower court but the court of appeal isn't binding on this side of the wall either and it's more on point.

M1

**Amethyst** · 9th January 2015, 17:13:PM

Re: Court case this week against Cabot

Update for Ruby's thread

Today, 16:09:PM #24

Ruby

VIP Member

Join DateMay 2009Posts1,054Thanks (Given)1594Thanks (Received)1268Mentioned2 Post(s)

Re: % of CCJ cases that are won compared to lost ?

Update - Case stopped !!!!!

Cabot's rep said that Cabot are still requesting compliant paperwork from the original creditors however we stated that it is now well into the fourth month since Cabot received our CCA request and they have had more than enough time to supply the compliant paperwork. Judge agreed - and the case has been stopped.

Once again I would like to thank all those who have helped me and encouraged me to fight the good fight. Special thanks to Amethyst, FP, M1 and PT - you are earth angels

It took me a while to get my head around all the issues involved and your patience and guidance has been very much appreciated.

On the side, I found a piece of paperwork which I am sure was not meant for my viewing pleasure. Cabot bought the two accounts for £140 - they were taking us to court for just over 4K!!!! I am sure once they have paid the court fees and the solicitors who represented them, it would have cost them a lot more than what they paid to buy the accounts - JOB WELL DONE

aw:

Last edited by Ruby; Today at 16:23:PM.

Court case this week against Cabot