Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

[Garlok]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

I think review of the appropriate sections of the Act needs to be undertaken. The DN is strictly defined as is termination. It must be dated and must give a specific date for remedy which must give 14 clear days from service. Barclays/Barclaycard practice was/is to issue. DNs after one missed payment and one week before the 2nd is due. Via Mercers their in house chase dogs. They are usually incorrect and have provided basis for defence but more judges are disliking this. The creditor remains in default until a correct DN and termination are in place then they can proceed. However this does not affect the date of the original cause of action. Yes in unregulated contracts the coa will be written into its terms and will be the next working day after the breach of those specific terms.Many fail to make use SAR early enough or have failed to keep their own records. Hence the chase dogs get away with it. But spreading these misconceptions about default dates on CRA files really must cease as it is endangering vulnerable people future lives and finances.

[charitynjw]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

From what i have read it depends on the contract , I think Capital 1 send you a letter and give you 30 days to catch up, others may send a DN as soon as you have missed a payment, particularly if you are frequently late.

Again from what I have read the cause of action takes some interpretting
I think it is the date that they could first issue a claim but others say differently

If it is the date I think, is it the theoretical date or is it the actual date after they have issued the necessary demands terminations or whatever

It really doesn't matter a jot what the T&Cs might say.
CCA 1974 ss86b & c will trump them (if different)

[NWHC]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

Can you explain further please how these are related to the cause of action and the ability to take legal action

I understand that if these haven't been issued then they have problems but not how they can alter the COA

Aren't these to do with notices of sums in arrears and not default notices under S87(1)

[KjGarly]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

CCA and CPR letter sent today, recorded and P/O included in the letter going to Cabot. Took a wee bit longer sending due to both myself and my 2y/o daughter being ill so off work with no access to a printer. So now what do I do? Wait to hear back from either Cabot or Mortimer Clarke?

[Amethyst]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

Yes wait to hear back and keep an eye on your defence date


On the statute barred issue the Capital One 2004 terms are http://www.legalbeagles.info/forums/...One-Terms-2004
Paragraph 15 contains the terms of default ( so when the cause of action can acrue) http://www.legalbeagles.info/forums/...6&d=1416390446

[pt2537]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

I think review of the appropriate sections of the Act needs to be undertaken. The DN is strictly defined as is termination. It must be dated and must give a specific date for remedy which must give 14 clear days from service. Barclays/Barclaycard practice was/is to issue. DNs after one missed payment and one week before the 2nd is due. Via Mercers their in house chase dogs. They are usually incorrect and have provided basis for defence but more judges are disliking this. The creditor remains in default until a correct DN and termination are in place then they can proceed. However this does not affect the date of the original cause of action. Yes in unregulated contracts the coa will be written into its terms and will be the next working day after the breach of those specific terms.Many fail to make use SAR early enough or have failed to keep their own records. Hence the chase dogs get away with it. But spreading these misconceptions about default dates on CRA files really must cease as it is endangering vulnerable people future lives and finances.

A creditor only needs to serve a default notice if he wishes to take the steps in s87(1), if he choses to terminate the contract because he doesn't like the colour of your socks he can do so, subject to the restrictions under s98A. The Court of Appeal accepted that contractual termination would be open to creditors who didn't wish to rely on breach, this was made clear in Brandon v Amex.

The question of when the limitation period runs on a regulated agreement is one which will not be settled until a case goes before the Court of Appeal, while I believe that Glass is a more appropriate case for the limitation period, many judges in the County Courts, including circuit judges are following BMW v Hart and deciding that if the contract has a clause which says the debt can only be called in after service of the default notice, then that is when the limitation clock runs.

[KjGarly]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

Yes wait to hear back and keep an eye on your defence date


On the statute barred issue the Capital One 2004 terms are http://www.legalbeagles.info/forums/...One-Terms-2004
Paragraph 15 contains the terms of default ( so when the cause of action can acrue) http://www.legalbeagles.info/forums/...6&d=1416390446

Interesting. So Capital Ones terms on defaulting start when you miss the first payment. The information I've requested from Cabot would tell me anything I'd need to know in regards to failed payments near 6 years ago right?

[nemesis45]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

Interesting. So Capital Ones terms on defaulting start when you miss the first payment. The information I've requested from Cabot would tell me anything I'd need to know in regards to failed payments near 6 years ago right?

If you are referring to your CCA request that will only provide a copy of the agreement and a current statement of the account.

Companies like Cabot are debt purchasers who buy the debts in Portfolio lots with the absolute minimum of data, not even the agreement is supplied which is why you see Cabot having to request data from the original creditor all the time.

To get the information you describe it will be necessary to make a Subject Access Request under the provisions of the Data Protection Act 1998, which provides for an individual to request all the " personal data a company holds on them,

The drawback at this stage is a SAR has a 40 day timescale for response and a £10 statutory fee is payable.

You can try phoning Capone and asking for such information, but it will depend ( from experience) on who you get to speak to as responses are variable.

nem

[pt2537]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

I second this as the trigger date.

But I believe that a *Default Notice re CCA 1974 can't be sent out until at least 2 payments have been missed.

*As distinguished from a default notification on a credit file, which is an altogether entirely different animal!

Im sorry but as a matter of law this is incorrect. A payment does not need to by missed for the creditor to serve a default notice. I agree that the default on the credit file isnt a default in the sense of s87(1) Consumer Credit Act, however the point above is incorrect.

For example, a term of the Hire purchase agreement states the debtor must keep the vehicle insured. The debtor fails to insure the vehicle but maintains monthly payments, are you saying there is no actionable breach of contract? In my view there is a breach and therefore a default notice is needed before the creditor can terminate the agreement demand the return of goods or demand repayment.

If were going to argue pedantic points we should make sure were right.

[pt2537]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

The drawback at this stage is a SAR has a 40 day timescale for response and a £10 statutory fee is payable.

And most importantly, generic terms and conditions arguably arent personal data subject to the disclosure obligations under s7 DPA. Another point often missed, but clearly case law sets out what IS and IS NOT personal data. To that extent i agree with you nem a DPA request is cumbersome.

[nemesis45]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

And most importantly, generic terms and conditions arguably arent personal data subject to the disclosure obligations under s7 DPA. Another point often missed, but clearly case law sets out what IS and IS NOT personal data. To that extent i agree with you nem a DPA request is cumbersome.

I agree PT the banks in particular refuse to send parts of the documents termed an " agreement" on the grounds that T's & C's are generic however the actual document signed by both parties is also being withheld.

nem

[charitynjw]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

Im sorry but as a matter of law this is incorrect. A payment does not need to by missed for the creditor to serve a default notice. I agree that the default on the credit file isnt a default in the sense of s87(1) Consumer Credit Act, however the point above is incorrect.

For example, a term of the Hire purchase agreement states the debtor must keep the vehicle insured. The debtor fails to insure the vehicle but maintains monthly payments, are you saying there is no actionable breach of contract? In my view there is a breach and therefore a default notice is needed before the creditor can terminate the agreement demand the return of goods or demand repayment.

If were going to argue pedantic points we should make sure were right.

[MENTION=551]pt2537[/MENTION]

My fault for not being clear in my post.

I was referring to a situation where the agreement is defaulted due to missed payments, but yes, I agree that that is not the only reason why an agreement can be defaulted.

The Devil is in the detail, though! (Where have I seen that before, lol!)

[pt2537]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

I agree PT the banks in particular refuse to send parts of the documents termed an " agreement" on the grounds that T's & C's are generic however the actual document signed by both parties is also being withheld.

nem

http://www.twobirds.com/en/news/arti...elsh-ministers

[nemesis45]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

http://www.twobirds.com/en/news/arti...elsh-ministers

Thanks PT.
nem

[charitynjw]

Re: Court Claim - CABOT Financial (UK) Ltd/Mortimer Clarke Solicitors/Capital One

I agree PT the banks in particular refuse to send parts of the documents termed an " agreement" on the grounds that T's & C's are generic however the actual document signed by both parties is also being withheld.

nem

What is the situation when generic T&Cs are personalised? (Some T&Cs that I have seen have the borrower's name printed on the top)