Reston Solicitors CPR 31.14

[Amethyst]

Re: Reston Solicitors CPR 31.14

nice easy reading then Nibs..

Further, under (new) Article 60J of the RAO, a person who is not an authorised person does not require a licence to exercise, or have the right to exercise, the lender's rights and duties under a 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 the permission to exercise, or have the right to exercise, the lender's right and duties under a regulated credit agreement.

which basically says , yes, any old sod can own cca debts but only exercise the rights via an authorised person. So Cabot are in the clear.

?????

[Amethyst]

Re: Reston Solicitors CPR 31.14

As Cabot (UK) Financial are the named claimant - is that not part of exercising their rights under the cca ? Shouldn't they have got Cabot ( Marlin) or Cabot (Europe) to be the claimant ?

[Nibbler]

Re: Reston Solicitors CPR 31.14

Hence I didn't comment, and just posted the link. :lol:

[Amethyst]

Re: Reston Solicitors CPR 31.14

To$$er

[R0b]

Re: Reston Solicitors CPR 31.14

Looks like that is the case then, unless someone smarter has a better argument than that

[Amethyst]

Re: Reston Solicitors CPR 31.14

[MENTION=551]pt2537[/MENTION] - what do you reckon ?

( Thanks [MENTION=71570]R0b[/MENTION] btw - navigating ever changing legislation is a nightmare )

[lawyer123]

Re: Reston Solicitors CPR 31.14

Thank you !

[mystery1]

Re: Reston Solicitors CPR 31.14

So lets have a look.

Point 1 - Article 55

(1) A person within the description in sub-paragraph (3) (“P”) is exempt from the general prohibitionin respect of any activity of the kind specified by article 60B(2) of the Regulated Activities Order
(regulated credit agreements)

(3) P is within the description in this sub-paragraph if P—(a) is not the original lender; TICK
(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; TICK and
(c) does not undertake any activity of the kind specified in article 39D(1) (debt adjusting) TICK,
39E(1)TICK or 39F(1) See below of the Regulated Activities Order, or which would be so specified but for
article 39H(1) of that Order, except in an exempt period.

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.



In other words they are exempt if they take no action or make no attempt to collect a debt. As they are taking court action that is clearly a no.

So point 1 is utter nonsense and they are not exempt for the reason they claim.



Point 2 - 60i

60I. Arranging administration by authorised person
A person (“A”) who is not an authorised person does not carry on an activity of the kind specified
by article 60B(2) in relation to a regulated credit agreement where A—
(a) arranges for another person, who is an authorised person with permission to carry on
an activity of that kind, to exercise or to have the right to exercise the lender's rights and
duties under the agreement, or
(b) exercises or has the right to exercise the lender's rights and duties under the agreement
during a period of not more than one month beginning with the day on which any such
arrangement comes to an end.


They haven't arranged for someone else to take action on their behalf as the claim is in their own name. It's more than one month too.

Not exempt under point 2 either.




Thanks to [MENTION=71570]R0b[/MENTION] as i'd never have worked out the BS without the correct SIs to look at.

The upshot is, they're full of shite and still fecked.

IMO.

M1

[R0b]

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.

[Amethyst]

Re: Reston Solicitors CPR 31.14

I still don't understand how CABOT UK can be the claimant - as bringing a claim is 'exercising rights' for which you have to be authorised? They could get an authorised person to bring the claim, or an authorised person who owned the debt could get Cabot to bring the claim, but neither of those is the case ?

[R0b]

Re: Reston Solicitors CPR 31.14

Cabot UK will enter into an agreement with an authorised company to service the agreement, that includes exercising Cabot UKs rights whether it's recover, enforce, amend or Vary anything under the agreement - in this case it's the enforcement of debt.

If it makes it simpler to understand you could say said company is an agent with authority to exercise rights under the agreement on behalf of Cabot.

Said company then exercises The rights of Cabot and instructs solicitors to claim the outstanding balance - Cabot is still the claimant in this matter because they are the creditor albeit will be the company who is giving instructions to the solicitor, not Cabot.

I understand the points being made but this is how I think it will be interpreted by the courts. This section essentially gives an indirect right to recover the money.

Now there is obviously a very valid point by M1 it is probably going to come down to the interpretation of how the court. Does paragraph 3(c) mean that a Person is is exempt if they are not attempting to procure the recovery of debt or does it mean that they don't need to be authorised to undertake those activities themselves.

I reserve the right to change my mind on this as it requires a lot of thought

[Amethyst]

Re: Reston Solicitors CPR 31.14

So.... that would mean Cabot (Europe) (or whomever) would have to be the client of the solicitors ? surely?

[judgemental24]

Re: Reston Solicitors CPR 31.14

I was always under the impression a DCA that purchased debt portfollio cannot litigate as they are not allowed to hold a consumer credit licence

They get a Subsidiary company within that same group of companies who will hold that consumer credit licence to demand payment and litigate.

Black1 financial ltd buys the debt portfolio as an example
Black 1 holdings will they administer the account on behalf of Black1 financial ltd

Or am i barking up the wrong tree??

[R0b]

Re: Reston Solicitors CPR 31.14

The whole purpose of this particular section was for the specific use of special purpose vehicles not having to apply for a consumer credit licence or authorisation from the FCA when they did not really need one and this section enabled them to do that, which is why I still think there is an argument against this.

[R0b]

Re: Reston Solicitors CPR 31.14

Black1 financial ltd buys the debt portfolio as an example
Black 1 holdings will they administer the account on behalf of Black1 financial ltd

Or am i barking up the wrong tree??

Whilst I can't comment on what a DCA can and can't do, that is an example of how this section would apply, which is my understanding of it. Black 1 holdings are not the creditor but merely act on behalf to exercise the rights of black 1 finance

Anyway it is derby day today so i shall mull this over while I'm out.