Cabot - dodgy documents sent?

[pharmchick]

Re: Cabot - dodgy documents sent?

V9 version seems to be ok for the 2004 period.

How about the other T&Cs?

They sent other T and C's which had a separate cover letter saying "defaulted agreement". I will attach the first few pages and the last page as there are lots of pages. These T&Cs don't have any version number.

[nemesis45]

Re: Cabot - dodgy documents sent?

What you have received is a reconstituted agreement which must have:

Your name and address as it was when the account was opened.
The original creditors name and address as the time the account was opened.
The terms and conditions relevant at the time the account was opened.
The T's & C's relevant when the account was closed/terminated.
Any other documents mentioned in the T's & C's .

A signed current statement of the account.

nem

[charitynjw]

Re: Cabot - dodgy documents sent?

I thought for older agreements (pre 2005?) the prescribed terms MUST be on the within the signature document and not separate?

The exact wording of s127.3 is

(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).

They therefore do not have to evidence the actual signed agreement, they only need to convince a judge that a suitable document was (in the balance of probability) signed.

[pharmchick]

Re: Cabot - dodgy documents sent?

Ok, so how would I know if the T&Cs they sent me are the actual ones from the time I opened the account? The bank statements they sent me were not signed,so that's the only "definite" non-compliance so far. Apart from the other person's DN of course

[pharmchick]

Re: Cabot - dodgy documents sent?

- none of the T&Cs mention the credit limit.
- the statements are simply print outs not official statements; they bear no account number or address, they are unsigned. Basically they could be anyone's. The first 5 years of the statements only show the balance each month, no itemisation of transactions or charges/interest
- the default notice they sent is actually a notification of impending default if I do not clear the outstanding balance 28 days from the date of that letter; the other person's docs had 2 default letters: one letter to notify her that a default will be issued in 28 days if outstanding balance is not cleared (just like the one in my name). Another letter of the actual default notice which was issued 28 days after the first letter
- the outstanding amount quoted on "my" default notice letter is not the same as the outstanding amount stated in the unsigned statements. The difference is significant (by hundreds of £)

Would these points form a valid defence in case of a claim?

[nemesis45]

Re: Cabot - dodgy documents sent?

- none of the T&Cs mention the credit limit.
- the statements are simply print outs not official statements; they bear no account number or address, they are unsigned. Basically they could be anyone's. The first 5 years of the statements only show the balance each month, no itemisation of transactions or charges/interest
- the default notice they sent is actually a notification of impending default if I do not clear the outstanding balance 28 days from the date of that letter; the other person's docs had 2 default letters: one letter to notify her that a default will be issued in 28 days if outstanding balance is not cleared (just like the one in my name). Another letter of the actual default notice which was issued 28 days after the first letter
- the outstanding amount quoted on "my" default notice letter is not the same as the outstanding amount stated in the unsigned statements. The difference is significant (by hundreds of £)

Would these points form a valid defence in case of a claim?

From what you say yes this mess that Cabot has made certain should be mentioned in defence, I would help of you could post copies of the documents after removing all personal data.

[charitynjw]

Re: Cabot - dodgy documents sent?

As yet, no court claim has been issued.

No harm in preempting the possibility, but imho it would be best to limit any correspondence to that which may be absolutely necessary (eg, responding to a definite letter before claim).
& even then, don't 'give away' any failings on their part at this stage (for example, the lack of prescribed terms).
That can form an important part of your defence to a court claim should one ever be issued.

[Diana M]

Re: Cabot - dodgy documents sent?

- none of the T&Cs mention the credit limit.
- the statements are simply print outs not official statements; they bear no account number or address, they are unsigned. Basically they could be anyone's. The first 5 years of the statements only show the balance each month, no itemisation of transactions or charges/interest
- the default notice they sent is actually a notification of impending default if I do not clear the outstanding balance 28 days from the date of that letter; the other person's docs had 2 default letters: one letter to notify her that a default will be issued in 28 days if outstanding balance is not cleared (just like the one in my name). Another letter of the actual default notice which was issued 28 days after the first letter
- the outstanding amount quoted on "my" default notice letter is not the same as the outstanding amount stated in the unsigned statements. The difference is significant (by hundreds of £)

Would these points form a valid defence in case of a claim?

I sense from your posts that you're anxious to 'future proof' yourself in the event of a claim being issued.

As Charity has said you've not received a Letter Before Action/Claim so you have no real need to engage in any correspondence at this stage.

If you write to say they've not complied with your s.78 CCA Request you can expect a letter back which says "in what way have we not complied?".

Then what do you do? If you tell them the flaws they will seek to remedy them with further reconstituted documents.

No one can tell you whether the documents you have been sent are non compliant without seeing them.

You've raised some points so I'll comment on what you've said, not on what I've seen (because I haven't seen anything).

The amount requested on the Default Notice may differ from the amount outstanding on the account statements because a DN can only request that you pay the arrears on the account and not the full balance outstanding, although your description of what is being claimed on your DN is ambiguous.

Forget what's written in the other persons DN because that's not relevant to your situation.

You say you've been sent loads of statements but they're not "signed". Why would they need to be signed and who do you think should have signed them?

I probably haven't helped you with this post but I'm trying to manage your expectations because it would be wrong to let you think you've got a cast iron Defence without (a) seeing the paperwork and (b) assessing whether any perceived flaws could be remedied before Trial.

Di

[Diana M]

Re: Cabot - dodgy documents sent?

would help of you could post copies of the documents after removing all personal data.

I agree.

Di

[Diana M]

Re: Cabot - dodgy documents sent?

So far no further threats. The cover letter which they included along with the paperwork stated:
" "We refer to the above matter and your letter dated xxx, a copy of which is enclosed for ease of reference [they actually did NOT enclose a copy of my letter]. We enclose the following documents in relation to this account: - copy of agreement, - statement of account. - default notice. We confirm that the balance remains outstanding. Our client requires this to be addressed and we enclose our income and expenditure form to be completed and returned to us with an offer of repayment within 14 days."

^ ^ ^ this post suggests you have not received a LBA or any threat of court proceedings (yet). You've been asked to make an offer to pay.

Send a Subject Access Request to Capital One to get the full history of this account. The Transaction Log will tell you what was/wasn't sent to you and on what date. It will show all activity on the account up until the assignment to Cabot.

When you've got that (SAR) you'll be able to cross check the documents you've been sent by Cabot (Mortimer Clarke) for 'honesty and accuracy'.

It'll also be useful to see what isn't in your SAR response. If a document is produced (reconstituted) that doesn't tally with the Transaction Log details then that begs the question of where did the current owner of the debt get the information.

Send a SAR to Capital One pronto.

Di

[warwick65]

Re: Cabot - dodgy documents sent?

Hi Pharmchick

The statements do not actually have to be signed but there does have to be a signed letter saying what the outstanding balance is, that will suffice for a statement of account.

Your statements sound rather like the ones they sent me, just a running balance which, although it goes down shows no credits for some months

The Default notice should be in a prescribed form http://www.legislation.gov.uk/ukpga/1974/39/section/88

The amount on the default notice will probably not be the outstanding balance but the value of the arrears or total of missed payments

The letter of default is not the default notice if you see what i mean

They should have issued a default notice and then 28 days later I think they issue a notice of default with a demand for payment of the full amount - they are not very clear at all

I can't remember how much the claim is for

If in doubt get some legal advice

Did you ever SAR Capital One ?

[pharmchick]

Re: Cabot - dodgy documents sent?

Thank you all very much for all the input, greatly appreciated! Just to let you guys know, I have uploaded most of the docs, (except the statements) on pages 1 and 2 of this thread for your reference. Please feel free to look at the uploads, let me know if you want me to upload the statements too, though I will upload only one or two pages of the statement because they are 50+in total...

I may be wrong,but I have read several times on this and other forums that statements of accounts sent must be signed by the creditor as per quote below from the CCA Act 1974 ?


"78.—(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer..."

Please enlighten me

[charitynjw]

Re: Cabot - dodgy documents sent?

deleted

[seduraed]

Re: Cabot - dodgy documents sent?

I have had a retired solicitor friend of mine advise that in situations like this cover each point in a single communication. So S71Request is one email complaint another,cpr request,another and so on. This keeps each paper trail clear and measy they can't argue regarding a clerical error because an important request is a long way down and buried.

[pharmchick]

Re: Cabot - dodgy documents sent?

Ok so now we are back to square one again. Got a letter from MC saying that if I don't pay in 14 days they MAY take legal action to obtain a CCJ. It's not a formal letter action. I assume silence is golden in this case?