Cabot Financial - Simple Procedure (Scotland)

[Amethyst]

If they sort themselves out have you got a plan for the next steps ? ( the credit agreement is incomplete we know, there's not yet any default notice, - do the statements provided look correct as far as you recall ? etc )

[jaguarsuk]

This is from the original order...

The sheriff has responded....

The Sheriff orders the claimant to lodge the following documents at or before the CMD, failing which the action may be dismissed:
1. The original loan agreement.
2. The assignation of the debt.
3. Proof of intimation of the assignation upon the respondent .
4. Default notice.
5. Proof of intimation of the default notice.
6. Statement of account.

funny thing is, they sent me the loan agreement, the assignation, proof of assignation, but thy didn’t seem to have these at the cmd, they then gave me a statement at the cmd from the original creditor... haven’t got the default notice or proof of default notice as of yet.

sont understand why they didn’t seem to have anything at the cmd except the statement which I hadn’t even been sent ??

It could be that the loan agreement, the assignation or proof of assignation aren't compliant so well worth having them checked over. Wouldn't put it past them to send you non compliant in the hope you'll concede and then pay up.

[User457]

If they sort themselves out have you got a plan for the next steps ? ( the credit agreement is incomplete we know, there's not yet any default notice, - do the statements provided look correct as far as you recall ? etc )

No plan for next steps, if they get everything together ?

When you say the Credit agreement is incomplete, is this because of the missing conditions ? If so, do I have an argument to raise on this ?

Statement is in full from the original creditor and yes, I recognise most of the transactions.

[User457]

It could be that the loan agreement, the assignation or proof of assignation aren't compliant so well worth having them checked over. Wouldn't put it past them to send you non compliant in the hope you'll concede and then pay up.

How would I have these checked ?

[User457]

Update...

I got a response from Cabot regarding my CCA request.... They have sent a copy of the credit agreement (as posted here before), and have included a covering letter saying that they believe the agreement is now enforceable ?

That's all they have sent ? I was expecting more than just this and they are way beyond the prescribed 12 days ! Oh and also, I already had this anyways from the documents they sent me !!! #confused ?

[ScottishSolicitor]

How would I have these checked ?

Speak to a lawyer

[Amethyst]

The agreement copy they have sent you refers to additional terms ( clause 15 and clause 10 are mentioned particularly ) therefore it is not complete.

Also, the statements they have sent you, is it just those 3 anual statements that say 'no transactions in this period' or is there actually anything showing how the balance / amount claimed has been built up/calculated ?

[User457]

How would I raise this argument that the aforementioned clause are missing ?

they did provide me with a full statement from original lender.. they didn’t post this just handed it to me at CMD.

Caught me off guard as this was going to be my main argument, now I’m relying on them not producing the default notice, I think ???

[jaguarsuk]

How would I raise this argument that the aforementioned clause are missing ?

they did provide me with a full statement from original lender.. they didn’t post this just handed it to me at CMD.

Caught me off guard as this was going to be my main argument, now I’m relying on them not producing the default notice, I think ???

Once the Sheriff has done the opening gambit I assume they'll ask if all the documents have been provided now. They'll say they have and you just tell the Sheriff they haven't.

Simply tell the Sheriff that they have failed to comply with the previous order set by the court, in that they have not sent a complete copy of the agreement as the additional terms referred to in clauses 10 and 15 (if that is the clauses referring to them) of the part they have provided still have not been forthcoming. If applicable they have also failed to provide a copy of the Default Notice and as such you respectfully request the claim is dismissed.

[User457]

Sounds reasonable, what would my options be if they end up producing everything... would I then need to ask for a time to pay order ?

[User457]

Update...

I got a statement of account from Cabot and they have added £188.85 of Legal costs to the original outstanding balance. I'm under the impression that they can only add legal costs amounting to 10% of the balance which in this case would be approx £240 ?
Would this be correct and should these have been added now ?

Also, got a letter from nolans with more "evidence".... they have sent me what looks like letters between Cabot and Next about purchasing the debt. ? (Assignation of the debt)

As far as I was aware this part they had already complied with ?

They also sent section 87 of the consumer credit act and have stated that no Default Notice was required in the current case as only installments under the agreement are being sought ???

What does this mean ?

Do they actually need the default notice ?

Do they need the proof of assignation of default notice ?

[Amethyst]

Interesting - how have they actually worded that and what have they sent you - a print out of the legilsation s.87 ?

They also sent section 87 of the consumer credit act and have stated that no Default Notice was required in the current case as only installments under the agreement are being sought ???

On 17/10/2011 the respondent entered a mail order agreement with next directory under which the respondent borrowed from them a sum of money repayable on demand. The said agreement was an agreement regulated under the consumer credit act 1974.......The last payment was made to account on 16/04/15 the said sum of £2416.82 is the sum sued for. The claimants have made frequent requests to the respondent to make payment of the said sum but the respondent has refused or delayed to do so

hmmm, Late payment charge of £7.50, £1, and interest would be applied to the balance.... since Cabot bought it in Jan 2017 the amount hasn't changed ( according to their letters ) which would indicate default rather than arrears on a live account.

So you last paid in April 2015. Do you know what the balance was on that date ? Does it show on the statements/transaction lists ?

As their agreement is incomplete there aren't actually any terms about defaulting the account ( think that would be clause 10 )

Also had you continued making the minimum payments what would they have been ( from April 2015 to date ) and would they have added up to the 2416.82 .... they can't call in the whole debt without default - so can only claim arrears ( ie. the minimum payment that would have been due each month )

What shows on your credit file? and what does the outstanding debt show as historically - it should be increasing each month and not show as a default. Noddle shows the balance and credit limit history quite clearly if you have a free account on there. ( if it does show as defaulted it doesn't necessarily mean a default notice has been issued )

Just some thoughts, it really might be worth getting a solicitor involved, particularly if you can get someone who will take costs from the other side as payment. Regardless though it may be worth speaking with someone about this 'no default' issue.

[ScottishSolicitor]

Setting aside the default issue, from my understanding the creditor has yet to produce a copy of the actual assignation document. If I was representing a client in such circs I would be arguing that failure to produce same is a fatal flaw in their case and that it should be dismissed

[User457]

Interesting - how have they actually worded that and what have they sent you - a print out of the legilsation s.87 ?





hmmm, Late payment charge of £7.50, £1, and interest would be applied to the balance.... since Cabot bought it in Jan 2017 the amount hasn't changed ( according to their letters ) which would indicate default rather than arrears on a live account.

Agreed.

So you last paid in April 2015. Do you know what the balance was on that date ? Does it show on the statements/transaction lists ?

Balance was £2461.58, theres then a few charges added over the next months and then a transfer to allit ? and then all charges removed again ?

As their agreement is incomplete there aren't actually any terms about defaulting the account ( think that would be clause 10 )

Think this argument still stands ?

Also had you continued making the minimum payments what would they have been ( from April 2015 to date ) and would they have added up to the 2416.82 .... they can't call in the whole debt without default - so can only claim arrears ( ie. the minimum payment that would have been due each month )

Agreed

What shows on your credit file? and what does the outstanding debt show as historically - it should be increasing each month and not show as a default. Noddle shows the balance and credit limit history quite clearly if you have a free account on there. ( if it does show as defaulted it doesn't necessarily mean a default notice has been issued )

Checked credit file and shows as default with default date of 07/09/15 and updates each month with DF.

Just some thoughts, it really might be worth getting a solicitor involved, particularly if you can get someone who will take costs from the other side as payment. Regardless though it may be worth speaking with someone about this 'no default' issue.

See red above

[User457]

Update, got even more paperwork through today, will get all scanned in tomorrow and upload... looks like they don't have / can't obtain default notice but are pushing for judgement in favour anyways.... I'll get uploaded asap.