Cabot court claim over Halifax disputed Bank Charges

[Neal12]

Hi
I'm in the process of defending a court claim by Cabot Financial/ Restons solicitors for Halifax Bank Charges £2363.27 in dispute since 2008.
I have sent recorded the following letter:

I do not acknowledge any alleged debt with Cabot Financial.
This account is in dispute with Halifax plc and has been since 28^th November 2008.
Not only is this a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the consumer credit Act 1974 and Data Protection Act 1998

My previous dispute from 28^th November 2008 has NOT been answered.

As Halifax plc are now in default of my Consumer Credit Act agreement request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Now I would respectfully suggest that this account is returned to the Halifax plc for resolution of these defaults and breaches, as Cabot Financial cannot lawfully pursue any enforcement activities.

If Cabot Financial chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, the Financial Conduct Authority ( formerly Trading Standards, Office of Fair Trading), Information Commissioners Office, Financial Ombudsman Service and possible court action.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading Collection Guidelines

I hope that this will not be necessary and an acceptable solution can be accomplished.

I would appreciate your due diligence in this matter.
I look forward to hearing from you in writing.

Needless to say no one has replied so I am entering this letter in my defence slightly altered as I have reported Cabot to FOS ICA and their own governing body.

My question is should I submit a counter claim against Cabot if I don't acknowledge the 'debt'

Any advice and assistance greatly appreciated

[Amethyst]

Re: Cabot court claim over Halifax disputed Bank Charges

IT is acually 77(4)/78(6) that says they cannot enforce the debt. Enforcement action has been determined as obtaining judgment under McGuffick


edit: link to McGuffick http://www.bailii.org/ew/cases/EWHC/Comm/2009/2386.html

In contrast, the bank invited the court (as set out in the list of issues) to conclude not only that reporting to the CRAs did not amount to enforcement, but that a number of other activities did not constitute enforcement: (i) reporting to CRAs without also telling them that the agreement is currently unenforceable; (ii) disseminating or threatening to disseminate the claimant's personal data in respect of the agreement to any third party; (iii) demanding payment from the claimant; (iv) issuing a default notice to the claimant; (v) threatening legal action and (vi) instructing a third party to demand payment or otherwise to seek to procure payment.

So far as activities (iii) to (vi) are concerned, it was accepted on behalf of the claimant that these did not amount to enforcement or actions to enforce the agreement. That concession seems to me to be correct: at most these activities are steps preparatory to subsequent enforcement. Furthermore, in a recent decision, Rankine v American Express Services Europe Ltd [2009] CCLR 3, HHJ Simon Brown QC (sitting as a Deputy High Court Judge) concluded that the bringing of proceedings is only a step taken with a view to enforcement and not actually enforcement. It seems to me that that conclusion must be correct. Were it otherwise, as Mr Handyside pointed out, one would be left with the conundrum that the creditor could not apply to the court for an enforcement order under section 127(1), because to do so would amount to enforcement, not permitted by section 65(1).

It follows that, in my judgment the reporting to CRAs and related activities do not constitute enforcement for the purposes of the Consumer Credit Act.

[nemesis45]

Re: Cabot court claim over Halifax disputed Bank Charges

Hi
I'm in the process of defending a court claim by Cabot Financial/ Restons solicitors for Halifax Bank Charges £2363.27 in dispute since 2008.
I have sent recorded the following letter:

I do not acknowledge any alleged debt with Cabot Financial.
This account is in dispute with Halifax plc and has been since 28^th November 2008.
Not only is this a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the consumer credit Act 1974 and Data Protection Act 1998

My previous dispute from 28^th November 2008 has NOT been answered.

As Halifax plc are now in default of my Consumer Credit Act agreement request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Now I would respectfully suggest that this account is returned to the Halifax plc for resolution of these defaults and breaches, as Cabot Financial cannot lawfully pursue any enforcement activities.

If Cabot Financial chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, the Financial Conduct Authority ( formerly Trading Standards, Office of Fair Trading), Information Commissioners Office, Financial Ombudsman Service and possible court action.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading Collection Guidelines

I hope that this will not be necessary and an acceptable solution can be accomplished.

I would appreciate your due diligence in this matter.
I look forward to hearing from you in writing.

Needless to say no one has replied so I am entering this letter in my defence slightly altered as I have reported Cabot to FOS ICA and their own governing body.

My question is should I submit a counter claim against Cabot if I don't acknowledge the 'debt'

Any advice and assistance greatly appreciated

Good afternoon,

The OFT is no more you need make yourself familiar with the FCA source book, much but not
all parts of the OFT Guidance on Debt Collection 2006 is incorporated.
If Halifax issued a " Final Response " ( which usually done) dismissing your dispute then
apart from a complaint to the OFT at the time all happened ( more than 6 years ago?)

Halifax once it has closed the account and sold the debt is unlikely now to hold any information
as it is required only to store it for 6 years after the account was closed.

Did you send Halifax a formal CCA Request sect 77/78/79 for a copy of the agreement accompanied
by the required statutory £1 fee?

How has Halifax breached sect.10 of the DPA 1998?
Are you referring to a Subject Access Request Inc. £10 statutory fee?
I have in the past taken up the non provision of agreements with SAR's the
ICO's reply was on the lines of " although we might expect am agreement to
be supplied there is no specific obligation so to do" many creditors do not
supply agreements with SAR's and there is no penalty for not doing so.
Unlike a CCA request where a debt cannot be enforced in court without
the agreement or a compliant reconstituted one.

Cabot has I suspect has no knowledge of any dispute from 2008, nor
will they I suspect as this alleged " dispute " is over 6 years old. ( see above re retention of documents after 6 years)

This "dispute " should have been settled on way or another back in 2008 . I can see nothing unlawful or vexatious here.
Your complains basically are out of time.

You would have been better looking at ways to defend Cabot's claim e.g.

1. Is the debt statute barred? i.e. no payments or unequivocal written admissions of liability in the 6 years immediately prior to the claim
being issued.

2. If this is a loan or a credit card sending Cabot a CCA with the £1 statutory fee if they cannot fulfil the request the debt
is unenforceable via the courts.

Cabot for once are not in error here!

nem

[Neal12]

Re: Cabot court claim over Halifax disputed Bank Charges

Thanks Amethyst I'll add that to my defence.
Any thoughts on the counterclaim?
I'd guess that I'd have to add Halifax but wouldn't that be a separate claim/case?

[Neal12]

Re: Cabot court claim over Halifax disputed Bank Charges

Hi Nem
Thanks for your input.
The amount is for unfair bank charges and I have never received a final response from the Halifax.
The dispute was suspended by the Ombudsman after the High Court decision with OFT and I have had no further correspondence from Halifax until I received the Court papers from Cabot on 24/12/15. I have asked for the CCA, pursuant to s.77/78 of the Consumer Credit Act 1974. and notice of assignment but no joy yet.



Cabot have not replied to any of my letters and neither have their solicitors.
As I understand it Halifax are in the wrong selling on a disputed debt surely they should be the ones pursuing it?
I found these parts of section 10:

GROUNDS FOR NOTICE

My grounds for giving you this NOTICE are:
(a) the processing of my personal data by you is causing or is likely to cause substantial damage to me and any person residing with me; causing a lack of ability to obtain credit due to the wrongful processing of our data, in that it is likely to cause undue stress to our ability to continue to, or obtain, credit. And, as they have failed to provide proof via a Deed of Assignment, that they are not entitled to process our data or act as a data controller, without said proof of ownership of the agreement.
(b) the processing of my personal data by you is illegal as you do not have my consent.
(c) the processing of my personal data is illegal as we do not have a contract.
(d) the processing of my personal data is illegal as you have no legal obligation that applies to your organisation.
(e) the processing of my personal data is illegal as it is not necessary for you to protect my vital interests.
(f) in any case the damage and/or distress is unwarranted.

NO EXEMPTION FROM THE PROVISIONS OF SECTION 10 OF THE DATA
PROTECTION ACT 1998

You are not excused compliance with this NOTICE under the provisions of Section 10(2) of the Data Protection Act by virtue of the reasons set out below:
(1) I have not given you my consent to process my personal data.
(2) I am not a party to a contract with you.
(3) You have no legal obligation with which you must comply and which would permit you to process my personal data.
(4) No processing undertaken by you could be undertaken to protect my vital interests.