Cabot and resolvecall

[roygoodbeat]

So I need to check the default notice. Does that mean they can issue a new one just like that after 10 years or go to court after 10 years?

[pt2537]

So I need to check the default notice. Does that mean they can issue a new one just like that after 10 years or go to court after 10 years?

Mr Brennan-Banks elaborated on the first of those policy arguments by pointing out that, on Judge Madge's approach, if, even after the lapse of a long period, the creditor serves a defective default notice, he or she could then serve another one, drawing out the period of delay even further: see Harrison v Link Financial Limited [2011] EWHC B3 at [75]. In the same vein, he said that the effect of CCA s.185 was that, in the case of a joint account, the failure of the creditor to serve both joint account holders could expose the one who was not served with a long-delayed exposure to a claim.

On the issue of prejudice from an ability to delay indefinitely service of a default notice, Deputy District Judge Medlicott said that certain observations of Lopes LJ in Coburn v Colledge weighed heavily on him. The issue in that case was whether, for the purposes of limitations, the cause of action of the plaintiff solicitor for payment for work done for the defendant accrued on completion of the work or only after the plaintiff had delivered his signed bill of costs. The Court of Appeal held that the limitation period began to run as soon as the work was completed, and so the plaintiff's right of action was barred. Lopes LJ said (at p. 709):

"Sect. 37 of the Solicitors Act, 1843, appears to me to assume that there is a cause of action, and merely to postpone the bringing of an action upon it until the period of one month from the delivery of the bill. There is nothing in the section, so far as I can see, inconsistent with the view that the cause of action arises when the work is completed. It was urged that, if this construction were adopted, a solicitor would have a shorter time during which he may abstain from bringing his action for work done than the rest of Her Majesty's subjects. That may be so; but on the other hand, if the plaintiff's contention is correct, the solicitor may abstain from delivering his bill for twenty years, and then at the end of that time he may deliver it and sue after the expiration of a month from its delivery. It seems to me that that would be a very anomalous and inconvenient result."

As the Deputy District Judge observed, that passage was referred to, and quoted, by Taylor LJ in Swansea City Council v Glass at 853, when he said: (at 853):

"Thus, I conclude that the requirement to serve a demand is a procedural condition precedent to bringing proceedings. It is not part of the cause of action.

I am fortified in this view by consideration of what could result if the local authority were right. Upon their argument, the local authority could delay service of a demand indefinitely. Then, having served their demand long after the works were complete, they would have a further six years in which to take proceedings in the High Court or the County Court. In Coburn v. Colledge [1897] 1 Q.B. 702, 709, Lopes L.J. said: …."
There is no doubt that CCA s.87(1) was intended to confer a benefit on the debtor under an agreement regulated by the CCA. It undoubtedly does so since it provides a debtor in default with the opportunity to remedy and expunge for all time that default.

It is true that, on Judge Madge's interpretation of section 87(1) and clause 8f of the Agreement, the debtor is potentially exposed to a long-delayed claim for sums outstanding under the credit agreement. That, however, is no different from the case of a loan repayable on demand. In such a case, the creditor's cause of action only arises if and when the creditor makes a demand. That is implicitly recognised in LA 1980 s.6 which provides that, where a contract of loan does not provide for repayment of the debt on or before a fixed or determinable date or make repayment conditional on a demand or some other matter, the cause of action to recover the debt accrues on the date on which a demand is made.

Yes, thats exactly what im saying. Confirmed by the Court of Appeal see the text in bold

[roygoodbeat]

So how do you defend against it under statue barred. Do I write to let them know. If the default notice is valid then they cannot take further action. What in the case if they terminate the agreement by selling it onto a third party?

[roygoodbeat]

Is it only the original creditor that can issue a new default notice.

[pt2537]

Is it only the original creditor that can issue a new default notice.

No, any creditor can issue a default, the definition of creditor covers assignees too,

[pt2537]

So how do you defend against it under statue barred. Do I write to let them know. If the default notice is valid then they cannot take further action. What in the case if they terminate the agreement by selling it onto a third party?

thats the difficulty, its never straight forward and there will always be twists and turns with cases like these

[roygoodbeat]

Ok. Got a subject access request. Checked an old Experian report and original default was around oct 2009. I sent them a statue barred letter.
I then got a letter from resolvecall last week stating home visit. Have sent them and cabot a letter stating that I have already written to cabot about statue barred in March, and they have chosen to ignore letter or acknowledged it. I have checked the disc they sent. On here it shows two ghost payments made to the account, which were not made by me. No payment or acknowledgement from me has been made since 2009, from the cause of concern. Ie default notice in 2009. I have noticed a number of comments over time that cabot appear to add these ghost payments* making claims you paid. I am going to wait to see if cabot write to me after my last letter before taking the next step. If they claim I made payments I was going to write to say I never did and put in a gdpr request for them to amend their records as this is incorrect data. If they are making these payments up, surely this is fraud and can be considered a criminal practice? Any advice to prepare the next step would be appreciated!

[MIKE770]

tell them to give information as to who paid the alledged amounts/the amount/ how paid/ cheques (Bank). account from/ date ,???? bank account from/ type of method payment, **

[ploddertom]

If REsolvecall do decide to visit then that is their tough luck when you open the door and tell them to do one. If they want to waste their time & money then let them do it. I've said this before that I live in a rural area and when they knocked on my door I just told them to go back a different way as it was more scenic - I live approx 25 miles from civilisation so it must have wasted a good half day for them. Strangely they never came back.

[roygoodbeat]

Hi. Just had a letter from Cabot acknowledging my letter. They have stated that the last payment was Oct 2014 (which I never paid so made up by them) they said it is therefore not statue barred. However they have also said that they would close the account as it is close to becoming staue barred and have said they will cease any of their normal debt collection activities. Anyone heard of this before or are they finally giving up?

[ploddertom]

ld be they realise they have been caught out - not for the first time. There is a possible chance they may pass/sell it on to someone else to try their luck. Just be aware of anything that may come through the post. Did you actually sent Cabot a SAR, & if so did they comply with it?

[roygoodbeat]

Yes. They sent a reply to my sar. Not everything there. Si can they sell on after saying they are closing account?

[ploddertom]

One of the usual tricks of any Debt Collector especially when they realise they have been caught out in their lies or that they are not getting anywhere.

[roygoodbeat]

Just a question on this. Clearly they have incorrect data, ie I have never paid anything since 2009. Surely under GDPR rules, if I request it, they legally have to amend their records or I can take legal action against them for false records.

[roygoodbeat]

Now had a card put through from Resolvecall. They attempted to call at my house. I called them and told them Cabot gave said they will close the account but they have not been informed of this. I have asked them to remove my data but they said they cannot unless Cabot allows them.