Sapphire v Cabot (Monument Card)

[Sapphire]

Re: Sapphire v Cabot (Monument Card)

Thanks for that guys, you support really means a lot at this moment. :grouphug: Oh and Welcome Home Luggerbugs :kiss:

[Sapphire]

Re: Sapphire v Cabot (Monument Card)

Thanks for that guys, your support really means a lot at this moment. :grouphug: Oh and Welcome Home Luggerbugs :kiss:

[LuggerBugs]

Re: Sapphire v Cabot (Monument Card)

Oh, Saffy. I took your advice. But my good shoes kept annoying Mrs LB every time I turned over in bed.

[Sapphire]

Re: Sapphire v Cabot (Monument Card)

Oh, Saffy. I took your advice. But my good shoes kept annoying Mrs LB every time I turned over in bed.

Blimey I forgot about you're sense of humour :kiss:

[LuggerBugs]

Re: Sapphire v Cabot (Monument Card)

What????

[Curlyben]

Re: Sapphire v Cabot (Monument Card)

Hmmmmm yes well.
Nice mailer there, but nowt else.

I'll get back to you shortly once I've had a think.

[Curlyben]

Re: Sapphire v Cabot (Monument Card)

Did you ever have a response from Cabot about your GoGW payments ?

[Sapphire]

Re: Sapphire v Cabot (Monument Card)

For my reference.

Timeline for whats gone on with this, all paperwork I have:

2006

2 May 2006 - Letter received confirming payment plan.
15 May 2006 - Letter received confirming payment plan.
29 September 2006 - Letter reminding me of importance of paying by agreed date.

Then I woke up and joined A N OTHER site.

1 November 2006 - Letter sent requesting CCA agreement
18 November 2006 - Letter received conforming they are investigating and will send CCA

2007

15 March 2007 - Please find enclosed copy of agreement, a reply card and non compliant, see attachment below.
19 April 2007 - Sent them the 'its not the right agreement and sod off letter'
19 April 2007 - Received Letter note we havn't received your response.

2008

6 February 2008 - Received, your account is on hold for further 14 days so I can contact them to discuss repayment.
6 March 2008 - Sent them another CCA request.
14 March 2008 - Received we sent you a copy but you never responded.
26 March 2008 - Repaying your account letter with yet another copy of the Reply card attached.
2 April 2008 - Letter sent stating that reply card does not comply but as a GOGW I would pay them £10 month (pfft having a brainstorm there eh)
7 April 2008 - Letter received contact Cabot we need to talk to you.
18 April 2008 - Letter received about Repaying your account.
16 May 2008 - Letter received Your Request under the CCA, sorry we havn't supplied it in 24 days and hope to send it soon.
29 May 2008 - Unfortunately Cabot not able to provide paperwork etc your entitled to apply to original lender for it.

[Sapphire]

Re: Sapphire v Cabot (Monument Card)

2009

13 February 2009 - Letter received, am pleased to supply info under CCA and guess what its yet another copy of the friggin reply card, photocopies of the statements and a copy of letter of assignment dated 13 February 2009, with 'Representation of letter send on 24th August 2004' handwritten and in pencil. AND letter dated 13 February 2009 Dear saffy 'the account you held with xxxxx was purchased by the Cabot Financial Group and currently has an outstancing balance of xxx. Please contact us without delay to discuss repayment of this debt. AND written by hand at the top and in pencil 'representation of letter sent on 1 September 2004'. AND sheet entitled 'Additional Information'. AND 2 pages of what look like activity reports from 28 August 2004 - 25 January 2009.
7 March 2009 - Letter sent 'Account in Dispute'
24 March 2009 - Letter received 'Our response to your letter' and here it is in full

Dear Saffy

OUR RESPONSE TO YOUR LETTER

I refer to your letter dated 7 March 2009 and our previous correspondence in relation to the account referenced above.
Your have stated that Cabot has not provided you with a copy of the credit agreement. However please be advised that although the original copy may not be available, Monument has supplied Cabot with a copy of the original which you signed and satisfies all requirement of both Monument and Cabot. Therefore, this satisfies all obligation of both parties.
For your ease of reference please find enclosed a further copy of the credit agreement that you signed and agreed to with the original lender. Please not that on the copy of this agreement, you signature is supported by the statement 'This is a credit agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms'. You shall also note on the Credit Agreement that under the heading 'Declaration' it states 'Credit Agreement regulated by the Consumer Credit Act 1974'. Therefore, this constitutes a valid credit agreement, which is regulated by the Consumer Credit Act 1974 and under the terms of the agreement.
With regards to the requirements of the agreement regulations 1983/1553 concerning the form and content of the agreement, these regulations do not deal with this matter, as it is the CCA that deals with this matter as primary legisation. Section 189(4) of the CCA states:
A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it'.
Section 61 of the Consumer Credit Act, which deals with the 'signing of document' states
'A regulated agreement is not properly executed unless
(a)A document in the prescribed form itself containing all the prescribed terms and conforming to the regulations (Consumer Credit (Agreement) Regulations 1983) under section 60(1) is signed in the prescribed manner both by the debtor...
(b)The document embodies all the terms of the agreement, other than the implied terms...'.
The word 'embodies' means that the document need not set out all the terms itself, but may refer to another document setting out the terms under section 189(4). In this instance on the application form it is clear that the Terms and Conditions are mentioned in the Declaration box and therefore you are incorrect in stating that the agreement cannot be set out in different documents.
As to prescribed terms, this is covered in section 61(a), above, where it mentions, 'contains'. The terms and conditions have set out all the prescribed terms as required under the Consumer Credit (Agreement) Regulations 1983 and therefore there can be no argument as to the validity of the form and content of the agreement.
In relation to your concern regarding the processing of your data, Cabot Financial (Europe) Limited is legally entitled and obliged under the original credit agreement and under the Data Protection Act to process information and also to report to the Credit Reference Agencies ('CRA's'). We disclose information to CRA's about customers' conduct of the accounts because that disclosure is necessary for the purposes of legitimate interests pursued by us, other members of the credit industry and the CRA's. CRA's hold such data and disclose it to prospective lenders because that is , similarly, necessary for the purposes of the same legitimate interests. Furthermore, under the original terms of the credit agreement, which you signed with the creditor, you consented to information being disclosed to third parties and CRA's. Accordingly, the Data Protection Act, section 4, Schedule 1 and Schedule 2 of the Act, in particular paragraph 6 of Schedule 2, permits disclosure of such information to and by CRA's without the customers' consent. You would have agreed to pass on your data regarding this issue when you signed the agreement, which would have been included in the terms and conditions applicable at that time.
In conclusion, we are perfectly within out rights to enforce the debt against you as your arguments are clearly unfounded and you have no basis for your dispute or claim for failing to pay the outstanding balance under the credit agreement. Regrettably, if no payment arrangement to settle your outstanding balance is forthcoming within 14 days, we shall have no other option but to escalate your account in our collection process. Therefore I would recommend you contact us on 0845 0700 116 in order to discuss the options available to you in settling the outstanding balance of xxxxx on your account.
If you have any other queries please call me on xxxxxxxx
Yours etc

Steve Perring

AND yet another photocopy of the Reply card blown up to A4 size how very kind of them. Copy of T & C's that look like they are from 09/06.

26 March 2009 - Letter received 'Repaying your account' call us on xxxx

[Curlyben]

Re: Sapphire v Cabot (Monument Card)

Now something smells here I wonder what it could be

I've seen this before from Cabot and of course they are talking cobblers.

This is taken from another thread;

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.

[Sapphire]

Re: Sapphire v Cabot (Monument Card)

I was wondering what you'd make of it hun, so basically its an attempt at trying to blind me with science is it.
So what do you recommend then I've gone through your guide and to be honest I can't see where sending the Non-Compliant CCA letter will get me as they seem to be intent on poo-pooing it.
Advice please hun xxx

[pt2537]

Re: Sapphire v Cabot (Monument Card)

If it assists, here is a master particulars of claim for declaratory relief on the basis that the agreement is unenforceable for the reasons set out herein

IN THE XXXXXXXXXXXX CASE No:

COUNTY COURT

BETWEEN:

XXXXXXXX

Claimant

and

R. RAPHAEL & SONS PLC T/A MONUMENT

Defendant

PARTICULARS OF CLAIM

The agreement

1. On the XXXXX 2003 the Claimant entered into a credit agreement (“the agreement”) with the Defendant. The agreement is regulated by the Consumer Credit Act 1974 (“CCA 1974”) as set out in s 8 of the CCA 1974.

2.The agreement running account credit as defined by s 10 CCA 1974 and is a credit token agreement as set out within s14 CCA 1974.

3.The agreement number was XXXXXXXXXXX

4.The agreement must inter alia comply with s61 (1) CCA 1974 if it is to be properly executed.

5.The consequences of improper execution are that the agreement is unenforceable save for an order of the court under s65 (1) CCA 1974.

6.On the (DATE) a formal request for a copy of the credit agreement was made to the Defendant. The Defendant duly supplied the agreement that the Claimant signed however that agreement was not compliant with the requirements of the CCA 1974.

7.The agreement is improperly executed and unenforceable against the Claimant for the reasons set out herein.

Defects for which render the agreement improperly executed and unenforceable

8.The agreement fails to state a term as required by Regulation 6 and schedule 6 Para 3 Consumer Credit Agreement Regulations 1983 (the Regulations) as the credit limit or term stating how the limit will be determined is missing from the agreement.

9.The agreement fails to state a term as required by Regulation 6 and schedule 6 Para 4 of the Regulations as the rate of interest is absent from the agreement.

10.The agreement fails to state a term as required by Regulation 6 and schedule 6 Para 5 of the Regulations as the term stating how the debtor may discharge their obligations is missing from the agreement.

11.S 61 CCA 1974 states:

“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”

12. The matters set out in paragraph 8,9 & 10 herein are prescribed terms and are required for compliance with s61 (1) (a) CCA 1974. The consequences of these terms missing render the agreement improperly executed.

13.S65 CCA 1974 states: “Consequences of improper-execution

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.”

14.However s 127 (3) CCA 1974 states:

“Enforcement orders in cases of infringement

(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).”

Accordingly the court is precluded from making an order allowing enforcement of the agreement as a prescribed term is missing or misstated.

Further breaches of the CCA 1974 and the Regulations ( SI 1983/1553)



15.In breach of Regulation 2 and Schedule 1 Para 1 of the Regulations the agreement fails to state the heading in the form prescribed by Para 1 and the heading is not shown prominently.

16.In breach of Regulation 2(1) and Schedule 1 Para 10 (1) of the Regulations the agreement failed to state each rate of interest charged on the credit provided under the agreement

17.In breach of Regulation 2 and schedule 1 Para 12 of the Regulations, the timing of repayments is absent

18.In breach of Regulation 2 and schedule 1 Para 13 of the regulations the amounts of repayments is absent

19.In breach of Regulation 2(6) and Schedule 1 Para 15 of the Regulations the agreement fails to state the APR in relation to the agreement.

20.In breach of Regulation 2(3) the Agreement failed to state the statements of protection and remedies available to the debtor under the CCA 1974 in the form set out within Column 3 of Schedule 2 of the Regulations

21.In breach of Regulation 2 (1) and Schedule 1 Para 22 of the Regulations, the Agreement fails to state an indication of the default charges payable under the agreement.

22.In breach of Regulation 5(4) of the Regulations, the agreement fails to contain certain lettering that affords more prominence than any other lettering

23.The Claimant seeks an order pursuant to S 142 (1) CCA 1974 that the agreement is unenforceable against him by the Defendant or any other party.

24.In addition the Claimant is aware that when an agreement is found unenforceable as a matter of procedure, the Defendant will add a default entry on the Claimants credit file if the Claimant fails to make repayments.

The Claimant avers that

A) The Defendant has not produced or shown that there was an agreement which complied with the Consumer Credit Act 1974

B) The Consumer Credit Act 1974 was enacted to provide protection to consumers by making sure that as a bare minimum, there was transparency in lending and that consumers were given the statutory information if the agreement is to be enforceable against them, the 1974 Act also sets out the penalties if the lender does not comply with the requirements of the 1974 Act.

C) It is contrary to the scheme of the Consumer Credit Act 1974 that if a credit agreement is unenforceable due to the Defendants failings, that the Defendant is then entitled to take retaliatory measures and damage the Claimants credit file for a period of 6 years when it was parliaments intention that the Debtor (Claimant) did not have to pay the loan back.

Therefore the Defendant should not add any adverse data to the Claimants credit file and any such data would be wholly incorrect due to the matters outlined in a, b & c above

25.If the court is satisfied that the credit agreement is irredeemably unenforceable as a result of the matters pleaded, the Claimant seeks an order pursuant to section 14 Data Protection Act 1998, ordering the Defendant to remove all adverse data from the Claimants credit file in relation to this account

AND THE CLAIMANT CLAIMS

1)A declaration made under s 142 (1) CCA 1974 that the agreement (a copy of which is attached) to these particulars is improperly executed and therefore unenforceable under s 127 (3) CCA 1974

2)Further, by reason of the Defendants breaches aforesaid of both prescribed and other terms, the relationship between the parties was unfair to the claimant within the meaning of s140A of the CCA 1974

3)An order made pursuant to s14 Data Protection Act 1998, ordering the Defendant to remove all adverse data from the Claimants credit file in relation to this matter

4)Costs



Statement of truth


The Claimants believe that the facts stated in these particulars of claim are true. I am duly authorised by the Claimants to sign the statement of truth.



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

[Sapphire]

Re: Sapphire v Cabot (Monument Card)

Oooooooooooo thanks for that hun, will investigate it fully, with a little help of my friend.

[pt2537]

Re: Sapphire v Cabot (Monument Card)

no worries, youre welcome, obviously the drafted pleadings are without prejudice and you should seek proper legal advice before relying on them blah blah blah

i know, but ive gotta say it LOL