Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

No, I remember - I saw the following:-

Section 140A of the Consumer Credit Act 2006.
The unfair relationships test.

The new section 140A inserted by the 2006 Act allows the courts to make any of the wide ranging orders open to it under the new provisions if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair because of one or more of the following:-

(a) any of the terms of the agreement or of any related agreement;

(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;

(c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement)

The court may take into account all matters it considers relevant to this assessment, including matters relevant to the debtor and to the creditor.

http://www.brodies.com/binformed/leg...redit-act-2006

So, ‘(c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement)’,

Cabot have not complied with the O’s Decision regarding the credit card agreement.

[charitynjw]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

From your link

......of the new Consumer Credit Act 2006

That's not to say that it's wrong.
But it is somewhat dated.

[warwick65]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Well as I haven't seen the ombudsman's decision it is difficult to say.

However your logic seems confused. The debt may or may not be SB and it is only unfair to chase if they know it is SB.

By the way the OFT was replaced a good while ago.

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Hi,

A while back I received this sound advice from Amethyst, which I am going to follow.

[I think lead with the Ombudsman decision myself, then the s.77-79 CCA and CPR info, then Stat Barred, then licencing. ( think that's the right order of importance ?)]

I had my partner go back through his bank statements, circa 2011, which are all live, online, with the bank. The account is definitely statute barred. Actually I was quite impressed that all his statements are available like that.

B4N
FF
xx

[warwick65]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Although SB is an absolute defence and IMO would be the first thing you mention I am not sure if the account will by SB. As already said, it is difficult to see how reclaiming PPI can be done without acknowledging the account and therefore the debt.

You have said that after reclaiming the PPI there was a positive balance but they are now claiming a debt - does this mean you continued to use the card after the PPI reclaim or have I misunderstood.

As for the licensing I would suggest you are very careful about making accusations against them as you enter a whole new area if criminal law comes into play - a whole new level of proof

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Although SB is an absolute defence and IMO would be the first thing you mention I am not sure if the account will by SB. As already said, it is difficult to see how reclaiming PPI can be done without acknowledging the account and therefore the debt.

You have said that after reclaiming the PPI there was a positive balance but they are now claiming a debt - does this mean you continued to use the card after the PPI reclaim or have I misunderstood.

As for the licensing I would suggest you are very careful about making accusations against them as you enter a whole new area if criminal law comes into play - a whole new level of proof

You are confusing acknowledging/discussing the 'account' and the 'debt'. It is possible to acknowledge/discuss the former without the latter.

Reclaiming PPI is telling a creditor that they owe the account holder money - that the creditor is indebted to the account holder. Any letters from the account holder saying they don't owe the creditor any money/the disputed money/the 'debt' does not count as breaking a six year period. Contacting the FOS to make a complaint that the creditor owes the account holder money is not acknowledging the debt, particularly if the return of the money owed by the creditor, in this case for PPI, results in a negative balance on the account, ie, that the creditor owes the account holder more money than the account holder owes the creditor.

In other words; that the return of the money to the account by the creditor returns the account to a position where a refund must be made to the account holder in order to return the account to a zero balance.

The card was not used after the PPI claim. The creditor made a small refund after the O Decision, which resulted in a balance/debt remaining on the account, but the creditor has not complied with the conditions of the O Decision, so has only made a scant partial refund. After the O Decision, because my partner made it clear that he was going to get the O Decision put in place, Cap One (original creditor) sold the account on. In other words, fooled a greedy debt collector to take on the problem. Each debt collector who has come demanding money has had the position made clear to them and they have vanished into the woodwork.

Cabot are clearly unlicensed. Criminal law is straightforward and not a problem.

[warwick65]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

We must disagree on what is and isn't acknowledgement of the debt, however I think you will find that i am right on this one.
In fact it is not really about acknowledgement but about COA and what resets that COA. If you have some case law or other legal interpretation I really would appreciate seeing it. It may of course be that Cabot do not have access to the FOS decision and your letters

I clearly misinterpreted what you said about their being a positive balance.

While it is true cabot are clearly unlicensed and it is a legal argument a skilled person could use, I wish you luck in standing up in court and accusing them of a crime.

Lets hope that they make the commercial decision to discontinue before it even gets to court but I strongly urge you not to include in your defence an mention of criminality - by all means say they are not licensed and therefore do not have a right to bring the claim but don't go saying they are committing a criminal offence.

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

[QUOTE=warwick65;755192]
In fact it is not really about acknowledgement but about COA and what resets that COA. If you have some case law or other legal interpretation I really would appreciate seeing it.
I would not put it here while this matter is sub judice. However, the law is quite clear about the criteria to enable the absolute statute barred defence.

While it is true cabot are clearly unlicensed and it is a legal argument a skilled person could use, I wish you luck in standing up in court and accusing them of a crime.
I have never said I would do that. I would not introduce criminal matters into a civil court judge's domain. I did state in an earlier post, 'Is it not time to get the police involved?'


[but don't go saying they are committing a criminal offence.] Again, I would not do that. It is the judge's court, not mine, and the advocate's role is to present facts and arguments, and leave the judgment to the Judge.

[warwick65]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

, the law is quite clear about the criteria to enable the absolute statute barred defence.

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Hi Warwick65,

Francis Ewan Urquhart was a fictional character and a cold-blooded murderer in the TV series, House of Cards. I can see him happily working for a company such as Cabot or Drydens, and I personally don't equate myself with the superiority or morality of his character. Nor do I admire it, or would ever espouse it, because he was the bad guy in the story.

I'm actually really not sure how appropriate or relevant your response was. Humour is subjective, but I didn't see any in it. I am uneasy about the 'vibes' coming from you, and uneasy about the way the comments between you and I are heading, given that forum contributors need to observe Netiquette. Therefore forgive me if I don't respond to you any further.

I will post again when I have an update about the case.

FF

[warwick65]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

I don't expect a response but this forum is a community. My comment was a phrase that is now fairly common political speak. As I am sure you know Law is not an exact science and the law on Limitations is still evolving, in fact I believe there is a pending appeal that may make some changes regarding the start date with regard to S87(1) default notices.

Contrary to what you may think I actually want you to succeed by my opinion, and I don't think I am alone in that your argument may be shaky. I look forward to the update

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Hello everybody,

Having checked the timeline, it goes like this;

05.2007: Partner tookout a credit card agreement.
08.2010: Partner hadfallen behind with payments. Cap1 sent a Noticeof Default S87(1) and terminated the account. (Both on same date.)

Partner realised the account had mis-sold PPI premiums. (He had not ticked the box to request PPI.)


02.2011: He complained to Cap1, with no success.
03.2011: last reduced payment to Cap1. Nothing since.

07.2011: He complained to Ombudsman.
07.2013: Ombudsman’sDecision in my partner’s favour. BothCap1 and my partner agreed it. (Yep, it did take 2 years and it was an actual Ombudsman whogave the Decision, not an adjudicator.)

I am considering getting my partner to send Cabot/Drydens an SB letter now, beforesubmitting the Defence next week. (No CCA or any other docs have arrived.) I would appreciate your thoughts.
KR
FF

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

COA= cause of action

Why would unfair relationship come into it?

Thank you for explaining COA. To answer your question, it would be an unfair relationship because it is harassment, because Cabot are unlicensed, and cannot pursue this matter through the Courts, and they know it is SB. See quote below from S40 of the Administration of Justice Act. 1970.

S40 Punishment for unlawful harassment of debtors.

(1) A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—


(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;


(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;


(c) falsely represents himself to be authorised in some official capacity to claim or enforce payment; or


(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.


(2) A person may be guilty of an offence by virtue of subsection (1)(a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

[globalet93]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

like

[FaithForever]

Re: Court Claim - CABOT FINANCIAL (UK) / CAPITAL ONE - 15-9-2017

Hi all,

the site's playing up. I couldn't post for a few minutes. The MCOL site isn't working today either. It's refusing ID and passwords.

I sent off a CCA and CPR 31.14 request on 30.10.2017. (Did not send a SAR.) We have had no documents back. If I hear nothing is the next step an N244 costing £255? Ouch.


I have written the following, which will be posted tomorrow by Special Delivery.


Creditor name and address own name and address

Solicitors’ name and address date




I do not acknowledge any debt to you or any other company or organisation that you claim to be representing.


Dear Sirs

Claim Number: XXXX
Limitation Act 1980
Consumer Credit Act 1974
Administration of Justice Act 1970
Proceeds of Crime Act 2002

On (date) I received a County Court claim from yourselves of which I have acknowledged receipt on (date) indicating my intention to defend in full.

You contacted me regarding Account No: XXXXXXXXXXXXXXX, which you claim is owed by me. I repeat I do not acknowledge any debt to you or any other company or organisation that you claim to be representing.

I would point out that under the Limitation Act 1980 Section 5, “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued”.

The last payment of this debt was made over six years ago and no further written acknowledgement or payment has been made since that time.

Unless you can provide STRICT proof and evidence of payment by myself or written acknowledgement of the debt from me in the relevant period under Section 5 of the Limitation Act 1980, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed, and should you try to proceed with court action I must inform you that I shall vigorously defend this action in court citing Section 5 as part of my defence.

For the avoidance of doubt STRICT proof should include how any alleged payment was made, from what bank account it was allegedly made from, and the name of the person who allegedly made such deposit. If you are not able to provide this information I will require a written explanation, and please be aware that I will require you to provide this proof in any court should you pursue your legal action. In this matter I refer you to Halsbury's Laws of England/Civil Procedure (Volume 11 (2009) 5th Edition Paras 1 - 1108; Volume 12 (2009) 5th Edition Paras 1109 - 1836)/20. "Evidence/(6) Documentary Evidence and Real Evidence/(i) Proof of Execution of Documents/A. Modern Documents/867. Strict Proof

You are also reminded of the FCA Consumer Credit Source book (CONC) Rules which you are legally obliged to adhere to, and further I am fully aware that compliance with the Rules is a condition of any debt collector’s FCA Licence:

Rule 7.15.4 "...a firm must not attempt to recover a statute barred debt in England, Wales or Northern Ireland if the lender or owner has not been in contact with the customer during the limitation period."

Rule 7.15.7 "It is misleading for a firm to suggest or state that a customer may be the subject of court action for the sum of the statute barred debt when the firm knows, or reasonably ought to know, that the relevant limitation period has expired."

Rule 7.15.8 "A firm must not continue to demand payment from a customer after the customer has stated that he will not be paying the debt because it is statute barred."

Should you choose to ignore the above or attempt to circumvent the Rules I will use this as a defence. Further, I will draw this breach to the attention of the FCA Compliance Team.
I await your written confirmation that no further contact will be made concerning the above account, that this matter is now closed, that you have filed a Notice of Discontinuance with the Court and I await service of same upon me.

Yours faithfully

Name"