Morgan V Cabot

[morgan054]

Re: Morgan V Cabot

Hello All,

Thought i'd give this one an update, Having recently heard of a possible "Test Case" regarding CCA enforcability, i wonder if it was just coincidence that i have received a letter from the courts requiring me to fill in an Allocation Questionaire?? 12 months on from the original court action.

I have duly returned it to the court, 9th Oct, so just waiting for the outcome, I basically outlined in it that the Claimant (Cabot) through their sols, have still not sent me the information i asked for in my holding defence.

Just a couple of points to mention also, their sols (Morgans) have sent me copies of statements, an application form (signed by both) some terms and conditions.

1. They say that the terms enclosed relate to the account in question, however the amounts are different ie the credit limit, apr, (etc in fact they are recent T&C just with my name on them.)

2. They have also stated that a payment of £1 was made to this account so the Limitations act does not apply,( the £1 was for the cca request)

3. They say that a default notice has not been served and does not need to be( i know that they (Halifax) served me with a default notice and termination letter but having trouble with finding it since our move.

Just wondering if any of these will have any relevance should it go further, are the courts automatically staying CCA cases pending the outcome of the test

[Amethyst]

Re: Morgan V Cabot

2. They have also stated that a payment of £1 was made to this account so the Limitations act does not apply,( the £1 was for the cca request)

lol divs - you obviously have a copy of the letter sent with the £1 for the CCA request so thats a pants argument isnt it. Would it actually be statute barred anyway ?

Sounds like the agreements rubbish too, be interesting to see what they come back with after the AQ - theres a few test cases coming up for various parts of the cca so I guess they could be preparing - think the next ones are end of November - when you got the AQ did you call the court to check if Cabot /Morgans had entered anything which prompted the picking up in the case ?

I dont know about the default notice though sorry xx

[morgan054]

Re: Morgan V Cabot

Hello Ame, How are you? Thanks for the reply.

Yes i have a copy, but it wouldnt be statute barred anyway, they must know that, but out of interest, if it was close to that time, and the case was stayed till the test case, could it become statute barred or because they have started proceedings would that not count?? just a thought?

The last i heard was a letter with the details described above, about August from the sols, so i guess they must have dug it out again and thought, we'll try again.

I'm not sure if the default notice will have any bearing on the case if they havent got it, but their letter states

You will observe that in a limited number of circumstances a Claimant is required by virtue of Section87(1) of the Consumer Credit Act 1974 to serve a copy of a Default Notice to the issue of proceedings. The Claimant submits that neither the respective Assignors nor the Claimant was required to send a default notice prior to the issue of proceedings in this matter. It is submitted that the Assignor or Claimant would only be required to send such a Notice under Section 87(1) or ths Consumer Credit Act 1974 if the Claimant wished to:

a) Terminate the agreement
b)Demand earlier repayment of any sum
c)recoverpossession of any goods or land
d)Treat anyright conferred on the debtor or hirer by the agreement as terminated
e) Enforce any security

Goode: Consumer Credit Law and Practice-Issue 27 discusses the need for the service of a default notice at11B(5.167) It states Section 87 and 88 apply only where the Creditor whishes to take one of the steps specified(inSection 87 (1) (a to e) as soon as the period for compliance with the Default Notice has expired. A notice is not required where the Creditor simply demends paymant for arrears, with or without Contractual Interest. As the Claimant does not wish to rely upon any of the circunstances listed in section 87 of the Consumer Credit Act 1974, neither the Claimant nor the assignor was required to send a Default Notice under that Section or at all. The summs claimed by the Claimant as Assignee relate to arrears only.


Just to mention they are claiming the WHOLE amount, not just arrears, seems a bit strange to me and i'm wondering if they have put that in because they SHOULD have sent a Default Notice.

[LuggerBugs]

Re: Morgan V Cabot

I imagine CB would know better, but I would have thought that unless a default notice was issued, then they CANNOT demand the whole amount.

Have you actually had a default recorded with the CRAs?

I'm just wondering if they are trying some wordplay trickery around the Enforcement aspect.

[morgan054]

Re: Morgan V Cabot

Hi, I dont know if its recorded with the CRA's but i do know for certain that one exists as i found it today, from the Halifax, so i'm not sure what to make of their assumption that none was given, or indeed if that would change anything in court.

At worst they will get a judgement which i will pay at what i can afford, i have no assets anymore, but i dont want to lie down and just give in, so i need to look at all the angles and decide which one to go with.

[morgan054]

Re: Morgan V Cabot

Have received a notice of Allocation to the Fast Track from the courts.

"Each partymust file a completed pre-trial check list no later than 11th Feb 2010 and the claimant must pay a fee of £100. In addition a hearing fee of £500 must be paid by the claimant.

1. The case is allocated to the Fast Track.

2. The parties must give standard Disclosure by 4pm on the 19th November 2009

3. Requests for copies and or inspection must be made by 4pm on the 26th November 2009

4. Lay witness evidence must be exchanged by 4pm on the 31 December 2009.

5. Pretrial Check list/Listing Questionnaires must be filed by each party by 4pm on the 11th february 2010

6. The case shall be listed for trial on the 16th March 2010 at 10.30 T/E 1 Day.

7. The Claimant must lodge at Court and serve upon the Defendant at least five working days before the trial, a trial bundle in accordance with the CPR 39.5 and accompanying Practice Direction

8. Costs of today be costs in the case.


The Sols have replied listing the documents available to me which they say have already been sent to me, however although they have sent copy statements etc, all of the correspondence between myself and Cabot are just blank pages??? i have got some of their letters but wondering if it is relevant in that i may have lost some.

Can i request these by telephone as i need to do it by, 4pm today, not sure if i need to, but if that is what they will be producing in Court should i ask for it all anyway.

Although it states that the Claimant must supply a Court bundle 5 days before, do i have to do the same?

[morgan054]

Re: Morgan V Cabot

Anyone with some guidance on a Witness statement, I have drafted one but could do with possible corrections/alterations before i send it this week ,, thats if i can get out with this snow, lol, been stuck in for second day today.

[Amethyst]

Re: Morgan V Cabot

Stick it up then babe xxx

[Sapphire]

Re: Morgan V Cabot

Stick it up then babe xxx

PMSL are you quite sure about that statement Ame ?

[morgan054]

Re: Morgan V Cabot

Stick it up then babe xxx

Ooooooh:santa2:

Anyways here goes, not sure if its even in the right format but any imput however harsh it may be as to its content or order of would be most appreciated.


In The Toytown County Court


BETWEEN
CLAIM No. xxxxxxxxxx

Cabot Financial (UK) Limited

CLAIMANT

And

MORGAN

DEFENDANT
__________________________________________________ _____________________________

WITNESS STATEMENT OF MORGAN

• I, xxxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, am the Defendant

in this action and representing myself as a Litigant in Person

• I make this Witness Statement in support of my Defence against the Claimants claim against me.

3. I make this Witness Statement from information and facts within my own knowledge and which I
believe to be true.

• The Claimant filed a County Court claim on 30th September 2008, which was vague

and did not disclose sufficient details as in, Exhibit KJ1. An amended Particulars of Claim have still not
been presented to me. or the Court to my knowledge..

• After filing my defence, on 20th October 2008, I received a reply to my request for the claimant to

substantiate their claim, with a true copy of the written agreement, under sections 77 and 78 of the Consumer Credit Act 1974, for which I paid the statutory £1 fee. Exhibit KJ2.

• I was sent an illegible copy of an application form, Exhibit KJ, headed, Halifax Bank.

• The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557 requires that the lettering in every copy of an executed agreement be easily legible.

Page 1

• Under s.61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under

regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule
6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating
the credit limit, the rate of interest; and repayment terms.
The prescribed terms must be within the agreement and not in a separate document for it to be compliant
with s60 (1) as ruled in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299.

Further, if the agreement does not contain these terms in the prescribed manner and does not comply with
s.60 (1), it is improperly executed and only enforceable by court order as per Wilson v FirstCounty Trust
Ltd - [2003] All ER (D) 187 (Jul).

“The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it
clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

The court's powers under section 127(1) are subject to significant qualification in two types of cases. The
first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the
court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form,
containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document
containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement
order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or
unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of
cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections
62 and63, section 127(4) precludes the court from making an enforcement order.

• The copies, Exhibit KJ4, are not Terms and Conditions relevant at the time of account opening.

PRESCRIBED TERMS & THE REQUIREMENTS OF THE CONSUMER CREDIT ACT 1974

Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed
manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a
state that all its terms are readily legible when presented for signature.


Under s.61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under
regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6
column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the
credit limit, the rate of interest; and repayment terms.

The prescribed terms must be within the agreement and not in a separate document for it to be compliant with
s60 (1) as ruled in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299.

Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s.60
(1), it is improperly executed and only enforceable by court order as per Wilson v First County Trust Ltd –
[2003] All ER (D) 187 (Jul).

“The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear
in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first
type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court

Page 2

'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all
the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the
prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type
of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement
pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in
accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4)
precludes the court from making an enforcement order.”

10, No Default Notice, has been issued by the Claimant, as per Section87(1) of the Consumer Credit act 1974.

S87 Need for default notice

(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,—

(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.
.
11. In previous correspondence from the Claimants solicitors, Exhibit KJ5, a three page document, on page 2, last
paragraph, it is contested that there was no requirement by the claimant to issue a Default Notice, as the
alleged amount is the “Arrears only”. If it is the case then, the amount of arrears would be substantially
lower than the amount detailed in their witness statement, and no breakdown of that arrears has been
provided by the claimant. It is submitted that the claimant failed to issue a Default Notice as described
in 10., above so are precluded from taking legal action.

12. Page 2, Paragraph 4, of Exhibit 5, maintains payment was made to this account in the sum of £1.00,
However, this was the Statutory fee required for a Consumer Credit Act request which was sent to
the original creditor, Halifax bank, when I originally requested a copy of the agreement. Having ignored
my legitimate request, the Halifax retained the fee and passed it to a firm of solicitors, a copy of my further
request and their response is Exhibit KJ6.

13.In relation to the claimants Exhibit “IL4”, I deny the Claimant’s statement that the account was assigned to
the Claimant and puts the Claimant to strict proof.

The Claimant asserts that a Notice of Assignment was sent to the Claimant but does not specify by which
method the notice was served.

I submit to the court that effecting statutory assignment from Halifax Bank Ltd to Cabot Financial (UK) Ltd,
requires explicit Notice of Assignment under the hand of the assignor as required by S 136(1) of the Law of
Property Act 1925.

Page 3

14. For the assignment of a debt to be effective and so giving the Claimant a right of action, a valid notice of
assignment must have been sufficiently served on the Defendant by a registered postal service pursuant to
s196(4) LPA 1925 before court action is commenced.


It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a
registered letter and that under the Postal Services Act 2000 schedule 8 any reference to registered post is to be
construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

The Defendant asserts that by case law, if there is a failure of a Notice of Assignment to be accurate, the legal
right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison
& Co Ltd V Burke and Another [1956] 2 All ER 169].





Statement of Truth


I Morgan believe the above statement to be true and factual


Signed
------------------------------- merged -------------------------------
Just remembered also, scanning through the recent case at Manchester it was noted that one of the cases, Conniff if i recall was



124. The copy documentation here is not compliant because it only consists of
the current terms and not the original terms.

Would that be in the same vein as i am thinking in my case too.

[morgan054]

Re: Morgan V Cabot

Just another quick question, do i, and the claimant, have to file a WS with the Court

[Amethyst]

Re: Morgan V Cabot

Cool I will have a good read through in the morning and see if Curly will take a look over it as its more his area (CCA stuff) Yes you will need to file a copy with the court as well as sending a copy to the Claimant.

[morgan054]

Re: Morgan V Cabot

Ok, Thankyou Ame, i will formulate copies for both later, if, they appear to be in order.

[volvo]

Re: Morgan V Cabot

subbing

[morgan054]

Re: Morgan V Cabot

1

I, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx of xxxxxxxxxxxxxxxxxxxxxxxxx, am the Defendant

in this action and representing myself as a Litigant in Person

2

I make this Witness Statement in support of my Defence against the Claimants claim against me.

3

I make this Witness Statement from information and facts within my own knowledge and which I

believe to be true.

4

Except where otherwise mentioned in this defence, I neither admit nor deny any allegation made in the claimants

Particulars of Claim and put the claimant to strict proof thereof.

5

The Claimant filed a County Court claim on 30th September 2008, which was vague

and did not disclose sufficient details as in, Exhibit A1. An amended Particulars of Claim have still not

been presented to me. or the Court to my knowledge..

6

After filing my defence, on 20th October 2008, I received a reply to my request, Exhibit A2, for the claimant to
substantiate their claim, with a true copy of the written agreement, under sections
77 and 78 of the Consumer Credit Act 1974, for which I paid the statutory £1 fee.

7

I was sent an illegible copy of an application form, Exhibit A3, headed, Halifax Bank.

8

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 SI No. 1557
requires that the lettering in every copy of an executed agreement be easily legible.

9

Under s.61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under
regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule
6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating
the credit limit, the rate of interest; and repayment terms.
The prescribed terms must be within the agreement and not in a separate document for it to be compliant
with s60 (1) as ruled in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299.





Page 1
10 Further, if the agreement does not contain these terms in the prescribed manner and does not comply with
s.60 (1), it is improperly executed and only enforceable by court order as per

Wilson v First CountyTrust
Ltd - [2003] All ER (D) 187 (Jul).
“The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it
clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment
The court's powers under section 127(1) are subject to significant qualification in two types of cases. The
first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the
court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form,
containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document
containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement
order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or
unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of
cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections
62 and63, section 127(4) precludes the court from making an enforcement order.

11

The copies supplied, Exhibit A4, are not Terms and Conditions relevant at the time of account inception

PRESCRIBED TERMS & THE REQUIREMENTS OF THE CONSUMER CREDIT ACT 1974

Any such regulated agreement regulated by the Consumer Credit Act 1974 must be signed in the prescribed

manner both by the debtor and the creditor or owner, embody all the terms of the agreement, and be in such a

state that all its terms are readily legible when presented for signature.

Under s.61 of the Act, any agreement regulated by the Act, must contain certain Prescribed Terms under

regulations made by the Secretary of State under S 60(1). These Prescribed Terms are contained in schedule 6

column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are terms stating the

credit limit, the rate of interest; and repayment terms.

The prescribed terms must be within the agreement and not in a separate document for it to be compliant with

s60 (1) as ruled in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299.

12

Further, if the agreement does not contain these terms in the prescribed manner and does not comply with s.60

(1), it is improperly executed and only enforceable by court order as per Wilson v First County Trust Ltd –

[2003] All ER (D) 187 (Jul).


“The House of Lords in the case of Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear

in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first

type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court

'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all

the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the

prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type

of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement

pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights in

accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4)

precludes the court from making an enforcement order.”





Page 2

13

No Default Notice, has been issued by the Claimant, as per Section87(1) of the Consumer Credit act 1974.

S87 Need for default notice


(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,—

(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

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

by the regulations.

14

In previous correspondence from the Claimants solicitors, Exhibit 5, a three page document, on page 2, last

paragraph, it is implied that there was no requirement by the claimant to issue a Default Notice, as the

alleged amount is the “Arrears only”. If it is the case then, the amount of arrears would be substantially

lower than the amount detailed in their witness statement, and no breakdown of that arrears has been
provided by the claimant. It is submitted that the claimant failed to issue a Default Notice, as described
in 10., above, so are precluded from taking legal action.

15

Page 2, Paragraph 4, of Exhibit 5, maintains payment was made to this account in the sum of £1.00,
however, this was the Statutory fee required for a Consumer Credit Act request which was sent to
the original creditor, Halifax bank, when I originally requested a copy of the agreement. Having ignored
my legitimate request, the Halifax retained the fee and passed it to a firm of solicitors, a copy of my further
request and their response is Exhibit 6.
16 In relation to the claimants Exhibit “IL4”, I deny the Claimant’s statement that the account was assigned to

the Claimant and puts the Claimant to strict proof.

The Claimant asserts that a Notice of Assignment was sent to the Claimant but does not specify by which

method the notice was served.


I submit to the court that effecting statutory assignment from Halifax Bank Ltd to Cabot Financial (UK) Ltd,

requires explicit Notice of Assignment under the hand of the assignor as required by S 136(1) of the Law of

Property Act 1925.

17

For the assignment of a debt to be effective and so giving the Claimant a right of action, a valid notice of

assignment must have been sufficiently served on the Defendant by a registered postal service pursuant to

s196(4) LPA 1925 before court action is commenced.





Page 3

18

It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a

registered letter and that under the Postal Services Act 2000 schedule 8 any reference to registered post is to be

construed as meaning a registered postal service (e.g. Royal Mail recorded delivery or special delivery).

The Defendant asserts that by case law, if there is a failure of a Notice of Assignment to be accurate, the legal

right to the debt cannot be assigned effectually at law within the meaning of s 136(1) LPA, 1925. [W F Harrison

& Co Ltd V Burke and Another [1956] 2 All ER 169

19

If the claimant cannot supply a document signed by the creditor and debtor, easily legible

and containing the prescribed terms per schedule 6 column 2 of SI 1983/1553 the

agreement cannot be enforced. If the claimant asserts that it can provide proof that the

monies have been used by the defendant and therefore even in the absence of the credit

agreement the debt should be repaid then I quote the House of Lords in Wilson -v- FCT

"lender is intended by Parliament to be left without recourse against the borrower in respect

of the loan. That being the consequence intended by Parliament, the lender cannot assert at

common law that the borrower has been unjustly enriched. That would be inconsistent with

the parliamentary intention in rendering the entire agreement unenforceable" this clearly

outlines that even if it is the case that the lender has loaned the monies to the debtor, if he

does not comply with the CCA 1974, he cannot seek and equitable remedy and stands to

lose the monies loaned

20

Further more I refer to Sir Andrew Morritt's judgment in Wilson and FCT [2001] EWCA

Civ 633 in the Court of Appeal at Para 26

In effect, the creditor--by failing to ensure that he obtained a document signed by the

debtor which contained all the prescribed terms--must (in the light of the provisions in ss

65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of

the loan moneys to the debtor. The creditor had chosen to part with the moneys in

circumstances in which it was never entitled to have them repaid;



Well this is about as much as i can manage, save correcting spelling etc, so this is the final attempt,... any pointers, criticisms, argument as to why i should not use this then please feel free to comment, thanks