Reston Solicitors CPR 31.14

[judgemental24]

Re: Reston Solicitors CPR 31.14

That is the way i see it as well

Not saying i am right though

[mystery1]

Re: Reston Solicitors CPR 31.14

Unfortunately M1 I will have to disagree with you on this - I can see your point as I initially thought that too but let's think this through.

If going by what your saying Cabot UK is the creditor having bought the debt, and don't meet the criteria cause the claimant is Cabot UK then firstly the judgment would be invalid as the agreement was assigned to Cabot UK and not the servicer, the servicer cannot be the claimant due to privity of contract.

As in my previous post Cabot Europe and Merlin are both authorised to conduct activities such as collecting debt insofar as they have interim permission.

Now the confusing bit is 3(c) Cabot UK is not conducting any collecting of debt activities themselves because a) they are not authorised to do so and b) it's a criminal offence. They have instructed another business who has permission and authorisation to conduct the collection of debt on their behalf (Cabot Europe/Merlin) and exercise Cabot UK's rights under the agreement.

Cabot UK is still the claimant because the debt was assigned to them by the original creditor and they have the rights to claim the outstanding debt.

P.s paragraph 3 also says they must satisfy with paras. 4 and 5 which you missed it on your post.

So in my mind, the defendant in this case needs to request disclosure of a few things but before I suggest anything, does Restons view forums such as these? They could have made some slip ups here and obviously do not want to allude to those slip ups.

I would say that it is not up to the court to untangled the web created by corporate stupidity.

Cabot UK are the creditor ( Jones v Link). I would say, and i'm quite sure the courts have/would say, that debt collection includes enforcement which is deemed as gaining a judgement. (McGuffick)

Neither of the Cabots with IP can be appointed representatives https://www.the-fca.org.uk/appointed...onsumer-credit

Restons probably do monitor LB.

M1

[R0b]

Re: Reston Solicitors CPR 31.14

I don't think there's a dispute that Cabot UK are the creditors in this situation.

I note your point on McGuffick however, collecting a debt and enforcing one are two different things. A court who issues judgment in favour of a person I believe is also not an enforcement, but merely a money judgment in favour of the claimant. Enforcing a money judgment would be for example a writ, charging order- see CPR 70. As per McGuffick, if commencing legal proceedings is only a step towards enforcement then attempting to collect a debt under a breach of contract certainly isn't enforcement.

Now onto the meatier stuff and I refer to your FCA link and apologies there's going to be a few quotes here to illustrate my point.

An appointed representative does not need to have permission or authorisation of any kind, they are merely acting on behalf of an authorised firm under its supervision. I understand your point about this bit however it is not relevant because Cabot UK are not appointing representatives per se, they are relying on the exemptions that we are discussing which provides them a right not to hold a licence or have permission from the FCA.

It is probably arguable that since Cabot UK no longer have a licence/authorisation to conduct regulated activities, the business would be deemed to be an Special Purpose Vehicle (SPV) which is exactly what this particular article was intended for. It enables a company set up for a specific purpose of purchasing debt portfolios and the enter into an agreement with another company whether that be a subsidiary or third party that has permission from the FCA to conduct the relevant activities without the need for the creditor (Cabot UK) to have a licence.

The reason why this all come about was because the previous legislation was unclear as to whether an SPV could buy debt portfolios and exercise its rights through another business without the need of a consumer credit licence. In any event SPVs usually applied for a licence to cover their own backs. Since the FCA took charge, they have attempted to clarify the matter and created this specific article enabling SPVs ot be exempt from authorisation, subject to the conditions. If a regulated activity is carried out by a business that is not authorised or exempt, then the agreements relating to that activity may be unenforceable and of course will commit a offence.

Just to throw something else into the mix see another section below

Article 60J Regulated Activities Order

A person who is not an authorised person does not carry on an activity of the kind specified by article 60B(2) in relation to regulated credit agreement if that person exercises or has the right to exercise the lender's rights and duties under the agreement pursuant to an agreement with an authorised person who has permission to carry on an activity of the kind specified by article 60B(2)

See also this link for the quote below http://www.legislation.gov.uk/uksi/2...0140506_en.pdf

exempt from authorisation under FSMA persons who acquire rights underregulated credit agreements (consumer credit loans), but do not actually make anysuch loans, provided that the person servicing or administering the loan isauthorised by the FCA. The instrument provides a parallel exemption for regulatedconsumer hire agreements. The effect of these provisions is that special purposevehicles used in capital market arrangements and securitisations, and otherfunding structures, will not require authorisation, but relevant consumerprotections will be maintained because of the requirement that the servicer isauthorised

All in all, it appears everything seems to be above board here. The defendant in this case must now request disclosure of the following:

1. Master servicing agreement and sub-servicing agreement
2. All correspondence sent from Cabot UK, Cabot Europe, Cabot Merlin and Restons to the Defendant.

Only then can we tell whether or not there could be any defences/rebuttals on this particular point.

[mystery1]

Re: Reston Solicitors CPR 31.14

Their lordships disagree with you on enforcement. Wilson Dimond Salat as well as Waksman QC (note the negative tones towards dismissing the claim) in Tang.

Indeed in Grace

Nor is there merit in the submission that Mr Grace had escaped enforcement on technical grounds. The requirements of the CCA for which unenforceability is the sanction are part of a structure laid down by Parliament for the protection of consumers and the regulation of the consumer credit market. Although they may be technical in their application, and the consequences for non-compliance sometimes draconian, they are not mere technicalities in the sense that Miss Urell described them. In the present case for example the discrepancies in the copy agreement sent to Mr Grace were about the interest rate and the APR under the hire purchase agreement. There is nothing merely technical in the statutory requirement that these matters be clearly and accurately set out for the consumer




If you search the FCA register an appointed representative will show.

E.g.

Search for Sturgeon Ventures. Scroll down an open up appointed representatives .....

I picked Arkview advisors and searched the registered for them. Lo and behold "Status: Appointed representative (Reference number: 683314)"

CF UK does not show as that and yes, anyone would be wise to ask the question of the FCA. On the face of it they are not an AR.

M1

[R0b]

Re: Reston Solicitors CPR 31.14

I am afraid will have to disagree again here. In reference to Grace, it is simply saying that he cannot prevent the bank from enforcing their rights and if he refuses to pay they can enforce the judgment by applying to the court.

Jowitt's Dictionary of English Law 3rd Ed. defines enforce as to compel observance (of a legal obligation) by way of legal proceedings.

Oxford dictionary of law defines enforcement of law as the process by which judgments and orders may be enforced ... they may be enforced by a variety of methods including a writ, third party debt order, charging order and attachment of earnings order.

Yes granted enforcement could probably mean gaining a judgment for the debt but does not prevent someone from refusing adhering to the order and in which case a person will want to enforce their right by way of the above options.

Again, your referencing appointed representatives which I don't think have any effect in this matter. An AR does not need to have any permission as they are merely acting under instructions from an authorised firm. A person who is exempt under article 55 does not need any permission/licence/authorisation however the business they are instructing to service the rights of the agreement must be authorised and have permission - there is a key difference here.

CF UK does not need to notify FCA as they are not authorised and as long as they satisfy the requirements under article 55 then thats all that is required. Nothing within those sections specifies that the person who is exempt must notify the FCA as an appointed representative. I'm happy to be proven wrong if you can supply the relevant extracts from the acts or orders.


Either way, it is difficult to tell whether or not Cabot have complied with article 55 unless the defendant requests the necessary documentation and correspondence.

[mystery1]

Re: Reston Solicitors CPR 31.14

I am afraid will have to disagree again here. In reference to Grace, it is simply saying that he cannot prevent the bank from enforcing their rights and if he refuses to pay they can enforce the judgment by applying to the court.

That is what the Bank argued and they lost. Indeed it was held that they could not record him as a defaulter as the original agreement was unenforceable

Jowitt's Dictionary of English Law 3rd Ed. defines enforce as to compel observance (of a legal obligation) by way of legal proceedings.

Oxford dictionary of law defines enforcement of law as the process by which judgments and orders may be enforced ... they may be enforced by a variety of methods including a writ, third party debt order, charging order and attachment of earnings order.


Yes granted enforcement could probably mean gaining a judgment for the debt but does not prevent someone from refusing adhering to the order and in which case a person will want to enforce their right by way of the above options.

There are many examples of things a court compels one to do which, in reality, only means there are sanctions for non compliance. The CCA is pretty clear about enforcement if you read Wilson, Dimond etc

Again, your referencing appointed representatives which I don't think have any effect in this matter. An AR does not need to have any permission as they are merely acting under instructions from an authorised firm. A person who is exempt under article 55 does not need any permission/licence/authorisation however the business they are instructing to service the rights of the agreement must be authorised and have permission - there is a key difference here.

CF UK does not need to notify FCA as they are not authorised and as long as they satisfy the requirements under article 55 then thats all that is required. Nothing within those sections specifies that the person who is exempt must notify the FCA as an appointed representative. I'm happy to be proven wrong if you can supply the relevant extracts from the acts or orders.

http://www.cummingslaw.com/publicati...sentatives.pdf

Becoming an appointed
representative
In order to become an AR:
1. the AR must enter into a written agreement
with a principal whose scope of permission
covers the regulated activities relevant to the
proposed AR’s business;
2. the agreement must contain the required
terms set out in SUP 12.5;
3. once the agreement is finalised, the principal
must notify the FCA via ONA within 10
business days after commencement of
activities (see SUP 12.7.1R);
4. the FCA will add the information to the FCA
Register;



M1

[R0b]

Re: Reston Solicitors CPR 31.14

An AR can only be appointed if the business appointing them is authorised by the FCA.

Again, I refer to this in that a person is

exempt from authorisation under FSMA persons who acquire rights under regulated credit agreements (consumer credit loans), but do not actually make any such loans, provided that the person servicing or administering the loan is authorised by the FCA.

CF UK has acquired rights and those rights administered by CF Europe/Merlin who are authorised. CF Europe/Merlin cannot be an AR because CF UK is not authorised and so cannot instruct/appoint an AR. They are using the exemption rule specifically created for such purposes as this and so an AR does not and cannot apply.

I suspect we are in a stalemate here on this point, the only way of really finding out will be if this goes to court.

[mystery1]

Re: Reston Solicitors CPR 31.14

We must not forget who "P" is.

55.—(1) A person within the description in sub-paragraph (3) (“P”) is exempt from thegeneral prohibition in respect of any activity of the kind specified by article 60B(2) of the
Regulated Activities Order (regulated credit agreements)(c) carried on in relation to a
qualifying agreement provided that the conditions in sub-paragraphs (4) and (5) are
satisfied in respect of the agreement.

For "P" to exist we look again to sub para 3

(3) P is within the description in this sub-paragraph if P—(a) is not the original lender;
(b) does not grant, is not required to grant, and does not promise to grant credit under the
qualifying agreement or any other regulated credit agreement; and
(c) does not undertake any activity of the kind specified in article 39D(1) (debt adjusting),
39E(1) or 39F(1) of the Regulated Activities Order, or which would be so specified but for
article 39H(1) of that Order, except in an exempt period.

Note the very important "and".

As i pointed out before

39F.— Debt-collecting(1) Taking steps to procure the payment of a debt due under a credit agreement or a relevant article
36H agreement is a specified kind of activity.

So clearly to become "P" they cannot chase payment. They are not "P" as they do do this.


55(2) would appear to help them but as they are not "P" it does not.


The single most important part is

55.—(1) A person within the description in sub-paragraph (3) (“P”)

(3) P is within the description in this sub-paragraph if P

As shown they do not qualify under sub para 3 and are not "P".

M1

[R0b]

Re: Reston Solicitors CPR 31.14

And so we have a moot point.

It is my understanding of your argument that CF UK cannot be "P" for the purposes of the exemption because, even though CF UK has (allegedly) a servicing agreement with CF Europe/Merlin to administer and exercise CF UK's creditor rights, it is your argument that CF UK is deemed to be undertaking a regulated activity even though it is CF Europe/Merlin that is undertaking the procurement of debt within article 39F on behalf of CF UK?

The problem with that point is, firstly the Order explains that in the event that a service agreement terminates for whatever reason, "P" can undertake a regulated activity (39F in this case) for a maximum period of thirty days. This therefore on (my) interpretation would mean that if "P" is not authorised to undertake regulated activities under 3(c) then he would fall within the scope of "P".

Now, even if you argue that is not the case then how do you argue article 60J?

A person who is not an authorised person does not carry on an activity of the kind specified by article 60B(2) in relation to regulated credit agreement if that person exercises or has the right to exercise the lender's rights and duties under the agreement pursuant to an agreement with an authorised person who has permission to carry on an activity of the kind specified by article 60B(2)

So therefore what article 60J is saying is that (again my interpretation), if someone who is not an authorised person (CF UK) has an agreement in place (servicing agreement) with an authorised business and permission to undertake the relevant regulated activity (CF Europe/Merlin have permission albeit interim but nevertheless permission) and exercise that person's rights, the person who is not authorised is deemed not to be carrying out a regulated activity.

On that basis, your argument that CF UK is undertaking a regulated activity for the purpose of 3(c) will fail.

[pt2537]

Re: Reston Solicitors CPR 31.14

Unless ive missed something, the licensing provisions of the CCA (s21,39 &40) are still live on the statue books

Therefore it is still an offence to undertake regulated activities without a licence.

Don't forget Hicks v Walker & Reynolds too.

Oh and were in the Appeal Court too on this point so we will have a ruling soon enough

[Stu]

Re: Reston Solicitors CPR 31.14

For someone who didn't understand a single thing above (Give be a piece of wood and ill build you a home) but it might as well have been in French, have Cabot uk broken the law.?

[Amethyst]

Re: Reston Solicitors CPR 31.14

I think the answer is, possibly.

[judgemental24]

Re: Reston Solicitors CPR 31.14

This question will be down to Judicial Interpretation on the day if a case is ever appealed to the high court

[Amethyst]

Re: Reston Solicitors CPR 31.14

As per Paul's post

CCA - 21

(1)Subject to this section, a licence is required to carry on a consumer credit business or [F1a consumer hire business or an ancillary credit business] .

(2)A local authority does not need a licence to carry on a business.

(3)A body corporate empowered by a public general Act naming it to carry on a business does not need a licence to do so.

CCA 39

39 Offences against Part III.

(1)A person who engages in any activities for which a licence is required when he is not a licensee under a licence covering those activities commits an offence.

(2)A licensee under a standard licence who carries on business under a name not specified in the licence commits an offence.

(3)A person who fails to give the [F1OFT] or a licensee notice under section 36 within the period required commits an offence

CCA 40 ( not so sure about this one as it's about making the agreement )

40 Enforcement of agreements made by unlicensed trader.

[F1(1)A regulated agreement is not enforceable against the debtor or hirer by a person acting in the course of a consumer credit business or a consumer hire business (as the case may be) if that person is not licensed to carry on a consumer credit business or a consumer hire business (as the case may be) of a description which covers the enforcement of the agreement.

(1A)Unless the OFT has made an order under subsection (2) which applies to the agreement, a regulated agreement is not enforceable against the debtor or hirer if—

(a)it was made by the creditor or owner in the course of a consumer credit business or a consumer hire business (as the case may be); and

(b)at the time the agreement was made he was not licensed to carry on a consumer credit business or a consumer hire business (as the case may be) of a description which covered the making of the agreement.

(2)Where—

(a)during any period a person (the ‘trader’ has made regulated agreements in the course of a consumer credit business or a consumer hire business (as the case may be), and

(b)during that period he was not licensed to carry on a consumer credit business or a consumer hire business (as the case may be) of a description which covered the making of those agreements,

he or his successor in title may apply to the OFT for an order that the agreements are to be treated for the purposes of subsection (1A) as if he had been licensed as required.]

(3)Unless the [F2OFT] determines to make an order under subsection (2) in accordance with the application, [F3it] shall, before determining the application, by notice—

(a)inform the applicant, giving [F4its] reasons, that, as the case may be, [F3it] is minded to refuse the application, or to grant it in terms different from those applied for, describing them, and

(b)invite the applicant to submit to the [F2OFT] representations in support of his application in accordance with section 34.

(4)In determining whether or not to make an order under subsection (2) in respect of any period the [F2OFT] shall consider, in addition to any other relevant factors—

(a)how far, if at all, debtors or hirers under [F5the regulated agreements in question] were prejudiced by the trader’s conduct,

(b)whether or not the [F2OFT] would have been likely to grant a licence covering [F6the making of those agreements during] that period on an application by the trader, and

(c)the degree of culpability for the failure to [F7be licensed as required] .

(5)If the [F2OFT] thinks fit, [F8it] may in an order under subsection (2)—

(a)limit the order to specified agreements, or agreements of a specified description or made at a specified time;

(b)make the order conditional on the doing of specified acts by the applicant.

[F9(6)This section [F10(apart from subsection (1))] does not apply to a regulated agreement F11. . . made by a consumer credit EEA firm unless at the time it was made that firm was precluded from entering into it as a result of—

(a)a consumer credit prohibition imposed under section 203 of the Financial Services and Markets Act 2000; or

(b)a restriction imposed on the firm under section 204 of that Act.]

[F12(7)Subsection (1) does not apply to the enforcement of a regulated agreement by a consumer credit EEA firm unless that firm is precluded from enforcing it as a result of a prohibition or restriction mentioned in subsection (6)(a) or (b).

(8)This section (apart from subsection (1)) does not apply to a regulated agreement made by a person if by virtue of section 21(2) or (3) he was not required to be licensed to make the agreement.

(9)Subsection (1) does not apply to the enforcement of a regulated agreement by a person if by virtue of section 21(2) or (3) he is not required to be licensed to enforce the agreement.]

[R0b]

Re: Reston Solicitors CPR 31.14

Unless ive missed something, the licensing provisions of the CCA (s21,39 &40) are still live on the statue books

Therefore it is still an offence to undertake regulated activities without a licence.

Don't forget Hicks v Walker & Reynolds too.

Oh and were in the Appeal Court too on this point so we will have a ruling soon enough

I'm afraid it's repealed.

Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013/1881

For those who are interested I've attached legislation - see page 43, 20(10)

Part 3 (sections 21 to 41ZB) (licensing of credit and hire business)(a) is omitted(b).