Help Appreciated With Cabot

**Curlyben** · 19th March 2009, 13:40:PM

Re: Help Appreciated With Cabot

Yep scan up the "agreement" and we'll give it the once over.
Then it's a case of writing to the court informing them of Cabot's inability to comply with your CPR

**xrm1** · 19th March 2009, 16:15:PM

Re: Help Appreciated With Cabot

Hi Curlyben, thanks for the quick response.

I have scanned in the so-called 'agreement' and it can be found here:

http://www.axne06.dsl.pipex.com/images/Cabot1.jpg

Other than that there were some statements and some terms & conditions which appear to have been photocopied in Jan 2002.

I've had a few problems due to my wife's health but thought I had sorted everything out and paid off all my cards.

I know Cabot have put a default on my credit record. The strange thing is there is (or at least was) another on there from Barclaycard for the exact same amount and the same start date - only the Barclaycard one says the balance has been satisfied.

**Curlyben** · 19th March 2009, 16:18:PM

Re: Help Appreciated With Cabot

Well if that's what they are going to reply on in court they are completely shafted !!!

Oh deary me.
B'card strike out again and here's why:

This is taken from another thread;

Originally posted by Curlyben

Under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a seperate sheet headed T&C or similar ISN'T acceptable.

SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6)

This applies to all agreements pre May 2005.
So basically this is unenforceable, under 127(3).

Just to add to my comments re terms witin signature doc.
This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said

33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.
As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.

**xrm1** · 28th March 2009, 12:42:PM

Re: Help Appreciated With Cabot

As suggested by Curly ben - I have sent letetrs to both Cabot and Morgan Solicitors as follows:

Thank you for your letter of **DATE**, the contents of which are noted.

Frankly, I am surprised of the need to remind a debt collecting company about the requirements of Consumer Credit Agreements regulated under the Consumer Credit Act, 1974 (CCA).

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

The documents that have been supplied thus far are woefully inadequate in this regard.

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain ALL the prescribed terms of the agreement and conform to regulations under s60(1).

SI 1983/1553 Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3).
These are clearly detailed here for reference:

4. Agreements for-- (a) running-account credit; A term stating the rate of any interest on the credit to be provided under the agreement.

5. Consumer credit agreements. A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--
(a) number of repayments;
(b) amount of repayments;
(c) frequency and timing of repayments;
(d) dates of repayments;
(e) the manner in which any of the above may be determined;
or in any other way, and any power of the creditor to vary what is payable.

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor.

If therefore any of the prescribed terms are missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

As the above referenced terms are missing from the supplied documentation this agreement is wholely unenforceable in a court of law.

I am well aware of the amendments made by the Consumer Credit Act 2006 and would like to draw your attention to schedule 3 s11:

"The repeal by this Act of—

(a) the words “(subject to subsections (3) and (4))” in subsection (1) of section 127 of the 1974 Act,

(b) subsections (3) to (5) of that section, and

(c) the words “or 127(3)” in subsection (3) of section 185 of that Act,

has no effect in relation to improperly-executed agreements made before the commencement of section 15 of this Act."

Should your client now continue with this legal action as stated in your letter, I will welcome the opportunity for a judge to look at several offences committed by Cabot under CCA, as well as your client’s non-compliance with and total disregard for the law on this occasion.

Therefore you have 7 days from receiving this letter to contact me with your intentions to resolve this matter, otherwise your conduct will be reported to the Court handling this case.

I would appreciate your due diligence in this matter.

I look forward to your reply.

Yours faithfully etc

I have now received a response to the letters which can be found here:

http://www.axne06.dsl.pipex.com/images/morgan1.pdf

If anyone has the time, I would be interested to hear opinions on this response - particularly the legal references and the last paragraph.

**Curlyben** · 28th March 2009, 12:52:PM

Re: Help Appreciated With Cabot

I've just been having a read of the Linden Gardens case and it seems to be to do with contract and assignment and NOTHING what so ever to do with CCA.
I think they have thrown this in to confuse the situation, especially as they don't appear able to actually SPELL the case correctly !!!!!
http://www.nadr.co.uk/articles/publi...dge%201993.pdf

**xrm1** · 4th April 2009, 10:43:AM

Re: Help Appreciated With Cabot

I am getting a bit desperate and worried now. I have sent numerous letters to Cabot/Morgan Solicitors advising them that they have failed to comply with various aspects of the Civil Procedure Rules.

I have also written to the court advising them of the same and requesting either the case be struck out or an order made forcing them to comply.

I have heard nothing from anybody and my AQ is due in on Monday.

It seems Cabot want to take this all the way and it is likely to go to the fast track and I can't afford any costs!

Can anybody offer any advice or just some words of support.

**Curlyben** · 4th April 2009, 10:49:AM

Re: Help Appreciated With Cabot

Well fill in the AQ and ask for the month stay to attempt settlement.
Select SMALL claims track, I know the value should mean it's fast, but it's quite clear cut as the agreement is unenforceable. Might also be worth including Draft directions as well..

Have you written to the court and informed them of Cabot ignoring your CPR ?

Have a read of this one for some pointers: Birdie Vs Abbey card

**xrm1** · 4th April 2009, 13:30:PM

Re: Help Appreciated With Cabot

Yes - have written to the court informing them of Cabot/Morgan's non-compliance with CPR request, non-compliance with CPR Pt 18 2.3 and CPR 42.2 (1) and (2). Have requested that the court either:

a) Exercise its’ powers under CPR pt.3 and order that the case be struck out.
or
b) give due consideration to the attached Draft Order for Directions.

Draft Order for Directions

The Claimant shall within 14 days of service of this order send to the Defendant and to the Court:

Fully particularised statement of case
Referenced agreement, default notice and Notice of Assignment
Copies of any statement or other document relied upon pursuant with CPR18
A full response to the CPR request of 19th January 2009

If the Claimant fails to comply with this order, the claim will be struck out without further order.

The Defendant shall within 14 days thereafter file and serve the following:

An amended defence sufficiently particularised in response to the documents supplied by the claimant

If the Defendant fails to comply with this order, the Defence will be struck out without further order.

So far have heard nothing from Cabot, Morgans or the court.

------------------------------- merged -------------------------------
Also tried to have a look at the Birdie vs Abbey Card thread but it is not allowing me to do so. It comes up with a message saying 'you do not have permission to access this page'.

**Curlyben** · 4th April 2009, 14:25:PM

Re: Help Appreciated With Cabot

There you go bud give the link a try now.

The AQ bit is post #64 & 65
Should be of use.
I'd be inclined to go along the same lines.

**xrm1** · 4th April 2009, 15:39:PM

Re: Help Appreciated With Cabot

Cheers for this.

Will get everything off to Cabot/Morgans and the court on Monday and see what happens.

**Curlyben** · 4th April 2009, 15:46:PM

Re: Help Appreciated With Cabot

Did you find the thread useful ?

**xrm1** · 4th April 2009, 19:07:PM

Re: Help Appreciated With Cabot

Yes thank you CB - I found the thread really useful. I am a bit more confident now that I have read through it. I will be sending out letters and the AQ along much the same lines and see what happens.

I have also banged out a letter to Cabots threatening to take them to court for compensation for harassment. I
------------------------------- merged -------------------------------
Yes thank you CB - I found the thread really useful. I am a bit more confident now that I have read through it. I will be sending out letters and the AQ along much the same lines and see what happens.

I have also banged out a letter to Cabots threatening to take them to court for compensation for harassment. I don't honestly expect to get anywhere with that - but I thought I would just rattle their cage a bit for a change.

**Curlyben** · 4th April 2009, 19:34:PM

Re: Help Appreciated With Cabot

With the Cabot and harassment the case you want is
Ferguson v British Gas Trading Ltd [2009] EWCA

**xrm1** · 5th April 2009, 18:06:PM

Re: Help Appreciated With Cabot

Cheers matey - that certainly makes interesting reading.
BTW, AQ all ready to go to court tomorrow with Draft Order for Direction. Have also sent another CPR request to Cabot and the muppets at Morgans. Feeling a bit happier now.

Help Appreciated With Cabot