Cabot Financial UK Ltd

[asifsh]

Re: Cabot Financial UK Ltd

At what point are we to expect a decision on this high court appeal?

Might it be wise for asifh to point this out to the court and adjourn proceedings until such decision has been made?

Any further details will be very helpful.

This is my first time in court and this site has been extremely helpful.

[R0b]

Re: Cabot Financial UK Ltd

Of course I agree with you, there can always be two sides to an argument and I agree with you on Cabot's position, whilst the specific exemption under the Act may have been intended for a specific use, it does not specifically state that the exemption applies only for specific purposes i.e. article 55 provides exemptions strictly for special purpose vehicles, which I believe was the FCA's intentions. Theoretically, Cabot would be appear to be acting in accordance with article 55 and as you say, it would be up to the court to decide whether or not they are trying to circumvent FCA authorisation.

Also bearing in mind that case was made under the CCA however since the FCA has different rules and regulations and repealed the majority of the CCA in relation to conducting such activities, the outcome may be different.

At what point are we to expect a decision on this high court appeal?

Might it be wise for asifh to point this out to the court and adjourn proceedings until such decision has been made?

[pt2537]

Re: Cabot Financial UK Ltd

Quick message for Nem,

Not gone quiet on this at all, there is an appeal before a High Court judge which will deal with these issues, until the matter is resolved the rest is speculation.

Sadly i am more limited than ever due to recent news in my private life which has had to come first for a change.

So there we go

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Interesting, was their representative legally qualified? obviously CB UK cannot "use" their licence per se but as our discussions on this thread have encountered it may be possible to be exempt provided by using an authorised third party to exercise their rights.

Even if CB UK lose this case in question, I think it would be naive of them not to appeal it and get an authoritative ruling on whether they can or cannot be exempt under the FSMA.

Do you have any counter argument to this argument asifh?

Also, just read the case of Hicks v Walker & Reynolds. I suppose this could be distinguished to an extent given that it related to credit-brokerage rather than simple exercising one's rights as a creditor.

One can always distinguish a case if you look hard enough. The commentary in Goodes law report though makes it clear that the scheme being used in Walker & Reynolds was merely designed to avoid the licensing regime within the CCA and therefore should not be allowed. In my view this is right, the purpose of the regime was to ensure consumers were protected from unlicensed traders.

I cannot see that Cabot can be allowed to avoid being authorised in the way being suggested, this doesnt seem to accord with the advice from counsel who advised the FCA themselves on their licensing structure, but as i say there will be a judicial decision on this soon enough.

[R0b]

Re: Cabot Financial UK Ltd

Interesting, was their representative legally qualified? obviously CB UK cannot "use" their licence per se but as our discussions on this thread have encountered it may be possible to be exempt provided by using an authorised third party to exercise their rights.

Even if CB UK lose this case in question, I think it would be naive of them not to appeal it and get an authoritative ruling on whether they can or cannot be exempt under the FSMA.

Do you have any counter argument to this argument asifh?

Also, just read the case of Hicks v Walker & Reynolds. I suppose this could be distinguished to an extent given that it related to credit-brokerage rather than simple exercising one's rights as a creditor.

[Nibbler]

Re: Cabot Financial UK Ltd

This? http://legalbeagles.info/hicks-v-wal...1999-gccr-721/

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[MENTION=551]pt2537[/MENTION]

[asifsh]

Re: Cabot Financial UK Ltd

I've been to my hearing very recently as a defendant and Cabot Financial UK Ltd as the Claimant for about £7500 claim.

I rose the point that Cabot Financial UK Ltd's license had lapsed before making this claim and under the CCA s40 an agreement can not be enforced by an unlicensed entity. The judge asked the Claimant's representative for explanation. He said that he has been informed that Cabot Financial UK Ltd as being part of the Cabot/Marlin are allowed to use license of their sister/parent company. I told the judge there is a judgement which prevents them from doing so. I had read about Hicks v Walker and Reynolds in this thread.

The judge said to Claimant's representative that this is possibly a fundamental error in the claim.

A 2nd hearing will be held in 3-4 weeks. I been asked to submit the judgment (Hicks v Walker and Reynolds) and the the Claimant has been asked to provide evidence to prove their compliance with the license using a proxy.

Can some one guide how I can obtain a copy of Hicks v Walker and Reynolds and/or any similar case.

[R0b]

Re: Cabot Financial UK Ltd

The ICO has no power to correct data supplied to CRA's it can recommend/advise it to be corrected.

Debatable, they do have powers by way of enforcement notices failure to comply with that can result in a fine.

@Sparkie1723 I haven't forgotten about this but will take some time to digest. In the meantime I'm not sure if you have come across the Supreme Court case of Plevin v Paragon Personal Finance Ltd - guidance on unfair relationship (s.140) and the lords stated that the very minimum creditors should be doing to ensure a fair relationship is comply with the Consumer Credit Sourcebook (CONC).

I referenced somewhere a couple of paragraphs in the CONC relating to providing evidence if dispute and notification of assignment in a prompt manner. Under s.140 the court likes at the whole range of issues and isn't restricted when it comes to finding whether a relationship was unfair, unlike the UTCCR.

[Sparkie1723]

Re: Cabot Financial UK Ltd

So, lets assume you go to court and argue the incorrect entry, the main point of your argument being ... due to the incorrect entry the agreement should not be enforced against the debtor due to a misreprentation, making the agreement voidable at the discretion of the debtor? Debtor wishes the agreement to be unenforceable and void.

Cabot's defence being ... Mr judge, CF Marlin has had a change of name reflected in CH and it is incorrect insofar as the entry on the credit report hasn't been updated to reflect the new name change. We are exempt to have a licence (under debate) as we instruct an authorised firm to exercise our rights of recovering the debt. The debtor still owes the money to the creditor and there would be no difference in the debtors position if the entry of the company name was changed or not. Yes there has technically been a breach of DPA under principle 4 but this is a minor breach to which the ICO has the power correct the matter or in extreme cases fine company if it so wishes. But Mr judge should not make a ruling that agreement is unenforceable. This would be unjust.

Judge orders:

1. entry to be corrected in credit report.
2. Agreement still enforceable
3. nominal damages (maybe if your lucky)

that's how I'd see it panning out but of course judges are wierd and wonderful and the outcome may be different on the day.

Thanks for playing devils advocate Rob I do really appreciate it.............I believe that the claim could also be brought under section 140 of the CCA to "open the door" to also bring in the Misrepresentation Act.
In this case who is the creditor when the debt was assigned by the original creditor? Marlin Financial Services LIMITED are claiming to be the creditor.
The ICO has no power to correct data supplied to CRA's it can recommend/advise it to be corrected.
Sparkie

[R0b]

Re: Cabot Financial UK Ltd

So, lets assume you go to court and argue the incorrect entry, the main point of your argument being ... due to the incorrect entry the agreement should not be enforced against the debtor due to a misreprentation, making the agreement voidable at the discretion of the debtor? Debtor wishes the agreement to be unenforceable and void.

Cabot's defence being ... Mr judge, CF Marlin has had a change of name reflected in CH and it is incorrect insofar as the entry on the credit report hasn't been updated to reflect the new name change. We are exempt to have a licence (under debate) as we instruct an authorised firm to exercise our rights of recovering the debt. The debtor still owes the money to the creditor and there would be no difference in the debtors position if the entry of the company name was changed or not. Yes there has technically been a breach of DPA under principle 4 but this is a minor breach to which the ICO has the power correct the matter or in extreme cases fine company if it so wishes. But Mr judge should not make a ruling that agreement is unenforceable. This would be unjust.

Judge orders:

1. entry to be corrected in credit report.
2. Agreement still enforceable
3. nominal damages (maybe if your lucky)

that's how I'd see it panning out but of course judges are wierd and wonderful and the outcome may be different on the day.

[Sparkie1723]

Re: Cabot Financial UK Ltd

That ICO entry is the Marlin Financial entry - it's had the name change applied.

Absolutely........name changed to Cabot in Feb 2015 as you pointed out ............the entry on the persons credit file was entered as Marlin Financial Services LIMITED on 30th JUne 2015 and has been updated as of Day before yesterday as a credit card with Marlin Financial Services LIMITED...........they cannot conduct regulated consumer credit business.
Incorrect entry.
Sparkie

[Amethyst]

Re: Cabot Financial UK Ltd

That ICO entry is the Marlin Financial entry - it's had the name change applied.

[Sparkie1723]

Re: Cabot Financial UK Ltd

Cabot Credit Management Group Limited
Cabot Financial (Europe) Limited
Cabot Financial (Marlin) Limited
CABOT FINANCIAL (UK) LIMITED

That's good stuff ...No Marlin Financial Services Limited showing.
On the entry I'm talking about they have changed the original credit card number/ agreement number to their own number and as pt has argued and their ICO registration does not allow Cabot........or Marlin to conduct consumer credit business................they can only buy debts and collect them and collect on behalf of third parties.
I'm getting there I think.

Sparkie

[Sparkie1723]

Re: Cabot Financial UK Ltd

Sorry I think I've understood you point now, the issue is the name of the company the default is under correct?

Just had a quick scan on Grace v Blackhorse (not clued up on all of the CCA cases) and seems to relate to irredeemably unenforceable agreements, so for temporarily unenforceable ones Briggs LJ indicated thats another issue for another day, but he did agree as regards to other authorities like McGuffick which implies that an entry for default on unenforceable agreements can apply?

I think there would be a causation for the debtor to prove as if it is the same company but merely a change of name the debtor is still in the same position and the only issue is obviously an administrative one whether the ICO would take a point on this I have no idea.

Agree with you Rob however the 4th Principle of the DPA remains ......." accuracy " of data /information........ to claim a limited company still exists in its OWN right when it doesn't contravenes the Companies Act and is a Misrepresentation of a Fact.
Sparkie

[Amethyst]

Re: Cabot Financial UK Ltd



Cabot Credit Management Group Limited
Cabot Financial (Europe) Limited
Cabot Financial (Marlin) Limited
CABOT FINANCIAL (UK) LIMITED

[Sparkie1723]

Re: Cabot Financial UK Ltd

There will be some changeover period of course. The reporting needs to be accurate so yes as they report entries after the change of name the new name should be entered. But for the ICO - Marlin Financial Services Limited exist and have just changed name to Cabot.... I suspect entries are put on CRA files through company codes and they need updating

ICO say they do not exist as far as they are concerned............the entry on the persons credit file was entered in June 2015.............Cabot have no such entry as Marlin Financial Services LIMITED being used as a trading name on their ICO licence.

I'm only really trying to nail Cabot for some wrongdoing to help someone.
Sparkie