Cabot/Mortimer Clarke letter of claim

[amugu]

Well, now you've supplied some further information, that could change things as to your rights and any defence you may have.

First of all, selling the account does not automatically terminate the agreement. Transferring agreements from one party to another is common practice and perfectly legal and valid. There are two ways which an agreement can be transferred - called assignment whereby the third party takes on the rights but not the liabilities of the contract which remain with the incumbent or novation where both the rights and liabilities transfer to the third party. The agreement will only terminate if the terminating party indicates as much either through words or actions.

I think this is where you need to be careful and ensure you fully understand what has actually been said by Mortimer Clarke or Cabot. If the correspondence suggests that BOS did not send a DN, you cannot imply that the agreement was terminated, they simply didn't send one but that can be rectified by Cabot by issuing a DN. If there are clear words that BOS did not serve the DN before they terminated the agreement, then you could imply from those words they BOS treated the contract as terminated and then decided to sell the account on albeit the agreement was wrongfully terminated and you have a defence.

As to your point about the default date, unless the default is still registered with credit reference agencies, there is absolutely no point arguing about the date on which the default should have been registered because it only sits on your credit file for 6 years.

The current situation could be viewed in multiple ways. For example:

1. If BOS treated the agreement as terminated without serving the DN and you continued to make payments following termination on the honest belief that BOS were entitled to receive them but have only become aware after the fact that the DN was not actually served. You could argue there was a misrepresentation by BOS by suggesting they were entitled to the amounts when in fact they weren't because they wrongfully terminated the agreement and all those payments made after the termination date should be returned to you on a restitutionary basis. For that you would need to bring a claim against BOS and any claim brought by Cabot against you would be defended on the basis of wrongful termination and Cabot cannot benefit from a creditor's breach i.e. BOS' wrongful termination.

2. If there's no evidence of BOS claiming the agreement to be terminated and no DN served, Cabot could remedy this issue as I described above and then failure to pay the amounts owed would entitle them to full payment of the debt under the agreement. In your defence, you argue that Cabot, through their words and actions i.e. by sending the letter before claim and presumably seeking the full debt amount owed together with whatever interest amount has been calculated, are treating the agreement as terminated because creditors are only allowed to claim an accelerated amount e.g. the full debt that is owed only if the agreement is terminated. As such, under the principles of estoppel (suggest you look this up if you don't know what it is), they are prevented from claiming that the agreement was never terminated otherwise why else would they have brought a claim for the full debt amount? They would only be entitled to the outstanding debt that you have part-paid potentially with interest on top of that at the given contractual rate calculated up to the date of the wrongful termination. That would be at the earliest when BOS determined the date that contract was terminated or worst case, the date when Cabot purchased the debt.

It's possible other scenarios may come up that I've not specifically thought about but those are the two scenarios that immediately spring to mind. Whatever the case, if you plan on defending this then it would be sensible to go in with a well-worded robust response it may put you in good standing but how you respond depends on how you interpret what MC/Cabot have said to you about the DN. It may also be a sensible option to make a subject access request to BOS and see what information they hold about you including your account notes, payment history etc.

Also, just to be clear these are also not your only defences to the claim which we can look at should Cabot decide to issue a claim.

Thank you once again. I think option 1 looks the most likely and one that I would like to pursue. When I first raised the issue of a lack of default notice being served, BOS insisted the account was defaulted and they provided a screenshot showing the date when the DN was served. However, when I looked at the date on the screenshot(see attached), when the default notice was apparently sent, I realised that date could not have been accurate because I had only missed one payment before this notice was sent instead of the 3-6 months. I drew their attention to this and this was when BOS did a further review of the account and told Cabot that they did not send me any letters to notify me of the default notice. It was this complaint that resulted in BOS saying the time limit for them to look into this has elapsed (6/3 years). Am I therefore right in thinking that based on the screenshot of the DN date in 2008 up to to the point of review in 2020, they had acted in the knowledge that a DN had been served on me, I did not remedy the breach and therefore terminated the agreement?

[R0b]

For some reason I can't access the attached file but just to be clear, do you have it in writing that BOS informed Cabot that it never sent the default notice letter or words to that effect? If you have that, I'm not sure anything else matters because the agreement was wrongfully terminated and you rely on that as your primary argument for Cabot to disprove and you formulate any other relevant defences to argue.

[amugu]

For some reason I can't access the attached file but just to be clear, do you have it in writing that BOS informed Cabot that it never sent the default notice letter or words to that effect? If you have that, I'm not sure anything else matters because the agreement was wrongfully terminated and you rely on that as your primary argument for Cabot to disprove and you formulate any other relevant defences to argue.

The exact words from Cabot
'I can confirm BOS provided us with a screenshot of their system showing the default notice was sent to you. We do not have the original copy; however, I have previously supplied the screenshot for your reference. When you contacted us previously you stated having reviewed the account statements from BOS they showed the first missed payment was on --/-- 2007 and a month later on --/-01 /2008 you had made the required payment of xxxx. However, the screenshot shows the default notice was issued 6 days after the payment. We forwarded this to BOS, and they confirmed, upon further review of their account notes no letters were sent, nor have they had contact with you. I am unable to provide further clarification around this statement and the account management at the time and therefore, I suggested raising your concerns with them directly'
It was based on the response that BOS came up with the 6/3 limit