Dilema v Cabot Financial/Mortimer Clarke

[dilema]

Hello Forum,

The last time I posted I had submitted the relevant papers to the Courts as per the advice previously provided, requesting a copy of the Credit Agreement etc..

The situation now is that Cabot have provided a copy of a credit agreement with my name and a previous address. However their letter states that this is a 'reconstituted true copy of of your credit agreement, which for the avoidance of doubt complies with the consumer credit (Cancellation notices and copies of documents) Regulations 1983 and therefore complies with the obligations set out in section 77-78 of the Consumer Credit Act 1974.'
It then goes on to say that they consider the agreement is now enforceable etc...

From my prospective, I do not know anything about this Company and for all I know they have produced a standard document with my name and a previous address shown, as I am sure this information is accessible through the right channels.

I have since written back requesting a signed copy of the agreement and for them to provide details/correspondence that any outstanding debt has been assigned/acquired by them.

What is my position here and would the information they have provided stand up in court/be enforcable. And are they obligated to provide a signed copy of the original agreement and supporting evidence they have the right to pursue any outstanding debt..?

Your help would be very much appreciated.

Dilema

[nemesis45]

Re: Dilema v Cabot Financial/Mortimer Clarke

Hello Forum,

The last time I posted I had submitted the relevant papers to the Courts as per the advice previously provided, requesting a copy of the Credit Agreement etc..

The situation now is that Cabot have provided a copy of a credit agreement with my name and a previous address. However their letter states that this is a 'reconstituted true copy of of your credit agreement, which for the avoidance of doubt complies with the consumer credit (Cancellation notices and copies of documents) Regulations 1983 and therefore complies with the obligations set out in section 77-78 of the Consumer Credit Act 1974.'
It then goes on to say that they consider the agreement is now enforceable etc...

From my prospective, I do not know anything about this Company and for all I know they have produced a standard document with my name and a previous address shown, as I am sure this information is accessible through the right channels.

I have since written back requesting a signed copy of the agreement and for them to provide details/correspondence that any outstanding debt has been assigned/acquired by them.

What is my position here and would the information they have provided stand up in court/be enforcable. And are they obligated to provide a signed copy of the original agreement and supporting evidence they have the right to pursue any outstanding debt..?

Your help would be very much appreciated.

Dilema

Hi,
Cabot can supply a recon agreement to satisfy the CCA request, but it must to be viable in court have the following information.

1. Your name and address as it was when the account was opened. OK.

2. The creditors name and address as it was when the account was opened. ?

3. The terms and conditions relevant when the account was opened. ?

4. The terms and conditions relevant when the account was closed. ?

5. Any other documents mentioned in the Ts & C's ?

6. Any material amendments made to the T's & C's during the life of the agreement.?4

A current statement of the account should also be included. ?
Without seeing the recon it's difficult to judge the enforceability.

nem

[R0b]

Re: Dilema v Cabot Financial/Mortimer Clarke

Was the agreement before 6 April 2007 by any chance?

[dilema]

Re: Dilema v Cabot Financial/Mortimer Clarke

Nem,

Thanks for the quick response.

In answer.
1. The address is not the same from when the account was opened. The address shown is an address I requested later for statements to be sent.

2. Creditors Name is the same, address I would think it is.

3-6. To be honest I am not sure, as it is likely I may not have kept all the info/copy of the original agreement, as I cleared alot of things out, as I am not currently in the UK.

They did provide some statement information, relating payments that were previously made. Again, not sure accessible these types of documents are to Company's such us these.

Regards

Dilema

- - - Updated - - -

Rob,

The agreement would have been before this date

[FlamingParrot]

Re: Dilema v Cabot Financial/Mortimer Clarke

Hello Forum,

The last time I posted I had submitted the relevant papers to the Courts as per the advice previously provided, requesting a copy of the Credit Agreement etc..

The situation now is that Cabot have provided a copy of a credit agreement with my name and a previous address. However their letter states that this is a 'reconstituted true copy of of your credit agreement, which for the avoidance of doubt complies with the consumer credit (Cancellation notices and copies of documents) Regulations 1983 and therefore complies with the obligations set out in section 77-78 of the Consumer Credit Act 1974.'
It then goes on to say that they consider the agreement is now enforceable etc...

From my prospective, I do not know anything about this Company and for all I know they have produced a standard document with my name and a previous address shown, as I am sure this information is accessible through the right channels.

Hello dilema
Cabot is a debt purchaser, they would have obtained the information from the original creditor. Is that address the address you were living at when you opened the account?

I have since written back requesting a signed copy of the agreement and for them to provide details/correspondence that any outstanding debt has been assigned/acquired by them.

What is my position here and would the information they have provided stand up in court/be enforcable.

That depends on whether the recon they have produced actually relates to your account which isn't always easy to establish. It would be a question of checking interest rates, charges, etc. to see if what the agreement states matches what you were actually charged.

And are they obligated to provide a signed copy of the original agreement and supporting evidence they have the right to pursue any outstanding debt..?

They are not obliged to provide a signed copy, sadly the Carey ruling established that a recon is an acceptable response to a CCA request. A notice of assignment would be required to evidence they own the debt.

[dilema]

Re: Dilema v Cabot Financial/Mortimer Clarke

Hello Flaming Parrot!

Thanks for the response.
The address shown on the credit agreement is not the original address when I opened the account..
Does this help my case..?

Dilema

[R0b]

Re: Dilema v Cabot Financial/Mortimer Clarke

If you agreement was before April 2007 then s.127 of the CCA 1974 shall apply

Enforcement orders in cases of infringement

(1)

In the case of an application for an enforcement order under—

(a)

section 65(1) (improperly executed agreements), or

(b)

section 105(7)(a) or (b) (improperly executed security instruments), or

(c)

section 111(2) (failure to serve copy of notice on surety),

(3)

(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).

It is my understanding that the court cannot enforce the agreement as because it was entered into prior to April 2007, they have therefore re-constituted the agreement but is missing a signature. As per sub section 3 of the Act, this cannot be enforceable.

EDIT: Arguable as well that the fact they have inserted the incorrect address it is not an original agreement, get them to sign a witness statement and argue fraud

[FlamingParrot]

Re: Dilema v Cabot Financial/Mortimer Clarke

Was the agreement before 6 April 2007 by any chance?

They can still supply a recon as per Carey, the judgment actually dealt with pre-2007 accounts.

This would only be relevant if the agreement signed didn't contain all the prescribed terms or no agreement was signed at the time the account was opened. For that we have to go back to when and how the account was taken out. What was this, a credit card?

[dilema]

Re: Dilema v Cabot Financial/Mortimer Clarke

Rob thanks for the info

[R0b]

Re: Dilema v Cabot Financial/Mortimer Clarke

Completely understand your point FP and agree with you on re-constituted agreements, however as s.127(3) describes that unless the creditor can provide both the prescribed terms and the production of the signature then the court cannot enforce the Agreement. It seems like its harsh on the creditors but I am certain there is several case law on this which confirms what I am saying - I shall dig around.

[FlamingParrot]

Re: Dilema v Cabot Financial/Mortimer Clarke

If you agreement was before April 2007 then s.127 of the CCA 1974 shall apply

It is my understanding that the court cannot enforce the agreement as because it was entered into prior to April 2007, they have therefore re-constituted the agreement but is missing a signature. As per sub section 3 of the Act, this cannot be enforceable.

That's not what s.127(3) actually says, it refers to the time the account was opened. The OP could argue that they never signed an agreement with all the terms regardless of the recon, however, to make that assertion stand up in court they'd have to explain the full details of what happened when they opened the account, for example, that they just filled out a form on the back of a magazine advert, or a little booklet that didn't have any terms on it, etc. In many cases the terms were only supplied later, with the card carrier (in the case of credit cards). Or that there was no agreement to sign at all, as was the case with many home shopping/catalogue accounts.

EDIT: Arguable as well that the fact they have inserted the incorrect address it is not an original agreement, get them to sign a witness statement and argue fraud

Fraud is taking this a little too far. :eek2: If this is an address where the OP did live at it would have been on record with the bank so it would be a mistake rather than fraud. Big difference there.

[dilema]

Re: Dilema v Cabot Financial/Mortimer Clarke

The agreement was for a Credit Card and from memory, I think this would have been a signed agreement, as I recall there was a promotion with the Card, fool me, although my financial position was more positive then.

However, the agreement they provided only relates to an address that was provided at a later date and not when the agreement would have been taken out

[FlamingParrot]

Re: Dilema v Cabot Financial/Mortimer Clarke

Completely understand your point FP and agree with you on re-constituted agreements, however as s.127(3) describes that unless the creditor can provide both the prescribed terms and the production of the signature then the court cannot enforce the Agreement. It seems like its harsh on the creditors but I am certain there is several case law on this which confirms what I am saying - I shall dig around.

But that's not what it says, it refers to the time the account was opened, not the documents provided on request. I am familiar with lots of cases that have been won by virtue of s.127(3), PT2537's old blog is full of them, however, they all refer to what was in place at the time the account was opened and requires an assertion from the defendant and their own version of events to establish that s.127(3) should kick in.

http://www.legalbeagles.info/forums/...002#post414002

[nemesis45]

Re: Dilema v Cabot Financial/Mortimer Clarke

Nem,

Thanks for the quick response.

In answer.
1. The address is not the same from when the account was opened. The address shown is an address I requested later for statements to be sent.

2. Creditors Name is the same, address I would think it is.

3-6. To be honest I am not sure, as it is likely I may not have kept all the info/copy of the original agreement, as I cleared alot of things out, as I am not currently in the UK.

They did provide some statement information, relating payments that were previously made. Again, not sure accessible these types of documents are to Company's such us these.

Regards

Dilema

- - - Updated - - -

Rob,

The agreement would have been before this date

The address for you must be that at the time the account was opened so a recon fails on that.

3 -6 should form part of the recon agreement.

nem

- - - Updated - - -

But that's not what it says, it refers to the time the account was opened, not the documents provided on request. I am familiar with lots of cases that have been won by virtue of s.127(3), PT2537's old blog is full of them, however, they all refer to what was in place at the time the account was opened and requires an assertion from the defendant and their own version of events to establish that s.127(3) should kick in.

http://www.legalbeagles.info/forums/...002#post414002

Have to agree here!

nem

[dilema]

Re: Dilema v Cabot Financial/Mortimer Clarke

Thanks Nem

My gut feeling was/is that any copy of the agreement should be in accordance to when the agreement was first opened.

Dilema