**DISCONTINUED** Cabot Financial Court Summons ( Scotland )

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Please note cover letter from Vanquis dated Feb 2010: - 'We enclose a copy of the executed Agreement being the Vanquis Visa Card terms and Conditions.'

Surely they need to provide more than just general T & C's to make an account enforceable?

[Amethyst]

Re: Ok, its now my turn - Cabot Financial Court Summons

Right.... could do with some input from Scottish peeps on this (as I'm kinda starting from scratch on the processes here) and Flaming Parrot on the requirements of pre 2007 agreements needing the signed doc not just random terms and conditions without name/address on.





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DEFENCE

1. The Pursuer states, “The defender resides at the address as stated in the instance which is within the territory of this court and has been a resident for more than three months immediately prior to the raising of this action and is domiciled there. This court accordingly has jurisdiction. To the knowledge of the pursuers no proceeding are pending before any other court involving the present cause of action between the parties hereto nor is there any agreement between the parties prorogating jurisdication over the subject matter of the present cause to another court. The nature and circumstances of the defender's residence are that he has a substantial connection with Scotland.
”

This is admitted.


2. The Pursuer states that, “On 7/1/06 and 15/12/06 the defender entered agreements with Bank of Scotland and Vanquis under which the defender borrowed from them sums of money repayable on demand. The said agreements were agreements regulated under the consumer credit action 1974. ”.

This is admitted. It is explained that the agreement between the parties is regulated by the Consumer Credit Act 1974. It is further explained that on xx/xx/xx the Defender requested that the Pursuer provide him with a true copy of the executed credit agreement, which is his statutory right, pursuant to Section 78(1) of the Consumer Credit Act 1974. The Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 (SI 1983/1569) sets out that the claimant must comply with such request in 12 working days of receipt of such request. In response, the Pursuer failed to supply the executed credit agreement as defined under Section 78(1) of the Consumer Credit Act 1974.

In response to the purported credit agreement supplied by the Pursuer, it is denied that this is a valid executed credit agreements within the definition contained within the Consumer Credit Act 1974 and it is submitted that the document supplied to the Defender fails entirely to comply with Consumer Credit legislation as stated.

The documentation supplied by the Pursuer is not compliant with the Consumer Credit Act 1974 and Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). Under the Consumer Credit Act 1974 there are certain conditions laid down by parliament which must be complied with if such agreement is to be enforced by the courts:-

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under Section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553).

It is explained that the document supplied by the Pursuer does not confirm to the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the Prescribed Terms are not contained within the agreement. These terms must be contained within the Agreement to be compliant with Section 60(1) of the Consumer Credit Act 1974.


The Pursuer states that, “ The defender failed to pay as agreed on demand and is in breach of contract with the Said Bank of Scotland and Vanquis”.

This is denied. It is explained that ................


The Pursuer states that, "The said suppliers assigned all rights in the said debts to Cabot Financial UK Ltd and the pursuers have advised the defender of the same"

This is denied. It is explained that the Defender has not received a notice of assignment from the original creditor, MBNA.

The Pursuer states that, " The said sum of £4153 is the sum sued for. The pursuers have made frequent requests to the defender to make payment of the said sum bu the defender has refused or delayed to do so. "

This is denied. It is explained that ................


PLEA-IN-LAW


1. The Pursuer has failed to supply the Defender under a formal request made under Section 78(1) of the Consumer Credit Act 1974 copies of the regulated credit agreement. Accordingly this alleged debt is unenforceable under Section 78(6) of the same Act while the default continues.

2. The Defender denies the sums being claimed as due and the decree should not be granted as craved.

In respect whereof


Signed ......................... ......................... ...............

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

I can't thank you enough for this input, Ame. Hopefully FP will also be able to help with pre 2007 agreements (in Scotland).

xx

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Wee bit of good news:- just had word from the solicitor to say the account is on hold until Cabot find the paperwork! They will let us know before the 17th of any further action.

Roll on April 2015 with the new regs that cut out all the nonsense!!!

[FlamingParrot]

Re: Ok, its now my turn - Cabot Financial Court Summons

I can't thank you enough for this input, Ame. Hopefully FP will also be able to help with pre 2007 agreements (in Scotland).

The Consumer Credit Act is the same north of the border even when the court process is not. The reason why April 2007 is important is because s.127 of the CCA was repealed at that point, but not retroactively, meaning it still applies to agreements entered into before that time.
s.127 of the CCA stops the court from making an enforcement order without a properly executed agreement: http://www.legislation.gov.uk/ukpga/...on/127/enacted

(3)The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

(4)The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(a)a provision of section 62 or 63 was not complied with, and the creditor or owner did not give a copy of the executed agreement, and of any other document referred to in it, to the debtor or hirer before the commencement of the proceedings in which the order is sought, or

Wee bit of good news:- just had word from the solicitor to say the account is on hold until Cabot find the paperwork! They will let us know before the 17th of any further action.

Roll on April 2015 with the new regs that cut out all the nonsense!!!

Uhmm, there's been cases here where accounts have been put 'on hold' and the defendants have not submitted a defence, then the claimants have applied for default judgment.

[FlamingParrot]

Re: Ok, its now my turn - Cabot Financial Court Summons

Section 61(1) of the Consumer Credit Act 1974 defines what constitutes a properly executed agreement:

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.

I have only included those terms that are appropriate for a credit card and left out the ones that wouldn't apply here such as those for lump sum loans. :nerd:

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Aww thanks so much FP. From what you have said if they turn up with little more than what the OC's did 5 years ago then they can go and whistle :tinysmile_twink_t2: We will be posting our defence tomorrow (guaranteed post) and will certainly not be relying on what the solicitor said verbally.

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Just a quick up date - We have heard nothing from either the solicitor or Cabot so the defence went in the post today (guaranteed next day delivery). Not leaving things to chance!

Two can play silly games :tongue2:

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

We received on Saturday two letters (one for each account) from Cabot saying that they do not hold the CCA agreements but will get back to us in the next 40 days. To reiterate ,the court papers were issued at the beginning of September and we formally requested the CCA agreements at the same time!

Court case was/is technically next week. If we had not requested the CCA agreements would they have turned up in court without the paperwork and chanced their arm? Are we in the minority who know how the system works and they issued the court papers with fingers crossed that we would just get frightened and call up and pay without question? Either that or not do anything and they would get a default judgement in court.

These kind of antics both shock and upset me at the same time. How do they get away with this sort of thing?

The courts must be absolutely fed up with companies such as Cabot!

Maybe I have just lived a sheltered life .....................

[hairbear]

Re: Ok, its now my turn - Cabot Financial Court Summons

Its a business
The banks undrwrite their loss
The DCA get their cut by fishing
The court system are kept employed
Its just the poor schmuck who lost his job because his employer found it cheaper to take his work force abroad because the government dont give a toss about industry ( I could go into the whole 'Good Will Hunting' bit but I wont).

HB

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Well HB, in this case I feel like the poor schmuck too! People don't count only numbers :tinysmile_cry_t:

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Just spoken to the courts and they have said that because we put in a defence (rightly so) we will need to appear in court for a preliminary hearing. This hearing, from what the staff said, will be brief. There will be a follow up court hearing (probably in a couple of months) where proof/evidence will need to be produced ie. (I assume) the CCA agreement. We have never been in a court room before so feeling a little nervous but I guess we need to look at it as just another life experience/adventure ......

[Amethyst]

Re: Ok, its now my turn - Cabot Financial Court Summons

Good attitude to have

The prelim hearing should just be to order the claimants provide the documents before the full hearing.

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Yeah, just annoyed that hubby will lose a day's pay just to attend! He is self employed and works in another part of the country so has to take a day off for probably not more than 5 minutes needed :tinysmile_cry_t:

[Ruby]

Re: Ok, its now my turn - Cabot Financial Court Summons

Just a quick update:

We had our full 30 seconds in front of the judge (well it felt like it!) Case is on hold until the beginning of January and paperwork is forthcoming (or not!!) Judge looked at us, smiled and asked if we are happy for the case to be postponed due to lack of paper evidence and we smiled back and said yes. (I would have genuinely loved to say no but thought it more 'polite' to just agree).

A big thanks to all, especially to Sharon and FP for your practical and emotional support xx