Mrs Bigandy -V- Cabrot

[bigandyuk1]

Hi All,

I have been dealing with cabot for a few months now and they have been CCA'd etc. They have sent me an application form and some T&C's:







I responded to these with this:


Account In Dispute

Dear Emma Robertson
Thank you for your letter of 07/03/2008, the contents of which have been noted.
You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.
On 22/06/2007 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.
Mercers have failed to comply with my request, and as such the account entered default on 12/08/2007.
The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both Littlewoods and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.
Furthermore

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.
These limits have expired.
As you are no doubt aware section 77(6) states:
If the creditor fails to comply with Subsection (1)
(a) He is not entitled , while the default continues, to enforce the agreement.
And
(b) If the default continues for one month he commits an offence.
Therefore this account has become unenforceable at law.
As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.
Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.
Furthermore I shall counterclaim that any such action constitutes unlawful harassment.
Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.
This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.
Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.
It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.
Should you not respond within 14 days I expect that this means you agree to remove all such data.
Furthermore you should be aware that a creditor is not permitted to take ANY
Action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.
* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.

I reserve the right to report your actions to any such regulatory authorities as I see fit.
You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.
I would appreciate your due diligence in this matter.
I look forward to hearing from you in writing.
Yours faithfully

They have now sent the following and I was hoping to find some help replying.





Kind Regards
Bigandy

[Amethyst]

Re: Mrs Bigandy -V- Cabrot

Hi Andy - i have unapproved your cca front page as it shows your wifes full name and DOB and work phone number - do you want to edit and then pop it back up.
Ame
xx

[bigandyuk1]

Re: Mrs Bigandy -V- Cabrot

Damn your eyesight must be good !! or mine is really bad. I have edited the cca now although none of the details that you could see are current.

At least if the copy is clear enough to be able to see those details then it is clear enough for a judge to see that it is an application form without the prescibed details

Regards
Bigandy

[Amethyst]

Re: Mrs Bigandy -V- Cabrot

hmmmm okay I still have her full name and date of birth hun, plus bank account number, sort code etc. Just being careful.

Anyway - which prescribed terms do you believe are absent ?

cancellation rights, payment terms, APR etc are all there as far as I can see.

[bigandyuk1]

Re: Mrs Bigandy -V- Cabrot

Ok now i'm goin to have to get heavy with you.....As you viewed the original un edited CCA you will have that in your browser cache. To see the new edited version.. load up this thread and then hit F5 or the browser refresh button. You should then get to see the new version with details edited out.

Prescribed terms missing:

Co signature of the CC company
Interest rates
APR
Credit limit
etc etc etc

There are some items on the T&C's but they are not linked and could be from any point in time.

And anyway it is an application for credit not a CCA and this is admitted in writing by cabrot in their latest threat'o'gram.

Kind Regards
Bigandy (Microsoft Certified Systems Engineer 'NT4' 'Windows 2000' 'Windows 2003', Sun Solaris 9 Certified, Certified Webmaster, Citrix Certified Administrator, Dell certified Server Engineer etc etc etc) otherwise known as a geek

[Amethyst]

Re: Mrs Bigandy -V- Cabrot

ahhhhhhhh yes you are absolutely correct xx thats lots better

An application for credit can also be a bonafide credit agreement so long as it contains the prescribed terms. Any chance you can enlarge the T&C bits ? my bendy head eye sight isnt that good. Also the sig box on the appl form. Cause I cant make much of that out at all.

The CCA does state somewhere (I forget where off top of my head sorry) that attached T&Cs with prescribed terms if they are to form part of the contract should also be signed. aka

If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.

So I agree with you on that score, because although the terms are on the T&Cs from what i can read, its not signed.

So curious, what made you start CCA'ing Cabot, are they getting heavy with you ?

[bigandyuk1]

Re: Mrs Bigandy -V- Cabrot

And just to add that as far as Mrs BA can remember Barclaycard was not mentioned when she applied for this littlewoods card. The T&C's are clearly Barclaycards.

She does not feel she owes this debt as the card was up to £3K and she paid all but about £100 off over two years ago. Her limit was then reduced to the £100 owed. She did not realise it had been reduced and in a very short time went over this new limit. The balance that is being claimed by Cabrot is made up of decietfully gained charges. IMHO

Regards
Bigandy

[Amethyst]

Re: Mrs Bigandy -V- Cabrot

How much are cabot claiming ?

So she reduced the balance to £100, then they reduced the limit to match but didnt inform her, and she continued spending on it therefore racking up charges.

do you know how much of the current debt is charges and how much legitimate spending ?

[Amethyst]

Re: Mrs Bigandy -V- Cabrot

in the signatory box it does appear to say the cards provided by barclays bank plc (first line ?)

[bigandyuk1]

Re: Mrs Bigandy -V- Cabrot

I hope I am not going to bore everybody now.... Up until 2004 I was a fairly successful business man. I owned four leased pubs my own home and a couple of cars. In 2004 I was diagnosed with a heart complaint and started to fall ill. I was uable to keep the businesses running as they should and had to rely on my management. This turned out to be a bad thing as nearly all of my managers decided to remove large amounts of cash from the pubs and run away.

Anyway I was declared bankrupt in January 2006 losing all my businesses and then in June 2006 my house was also taken bythe official receiver.

My health was not improving and my family and I moved into rented accomodation whilst my emergency trips to the hospital seemed to be increasing. In August 2006 my Mother passed away and I thought that things could not get any worse (How wrong you can be sometimes) two weeks after her funeral I was once again rushed into hospital with another suspected heart attack, but this time after extensive checks I was told my heart was in great condition and that it was the Stomach and throat Cancer that I should really be worried about. (this was not turning into my best year ever).

My wife was told to go home a nd get our affairs in order as there was only a 20% chance I would survive.

I wont go on about the gory details...Present day and I did survive having my stomach and lower part of my throat removed and am in full remission.

Enter the DCA's..I thought all our debts from those bad years had gone with my bankruptcy but low and behold we had forgotten that Mrs BA was joint signature on a lot of them and the PPI didn't seem to pay up on any.

So I had lots of time to surf the net and started CCAing any DCA that came after her as most of the debts were old and we were or are not in a position to pay them off I thought I would get them all to prove the enforcability of the claims before I made any offers of payment.

I would guess that of the £675 Cabot is claiming at least £500 is charges that we believe should not be there.

Kind Regards
Bigandy

[bigandyuk1]

Re: Mrs Bigandy -V- Cabrot

Barclaycard..First line..Told you my eyes were shot away...

[Amethyst]

Re: Mrs Bigandy -V- Cabrot

Excellent, thanks for that it really does help to know a bit of background

Well not excellent what you have had to go through :hug: but you know what I mean.


Okay first things first then, which other debts do you still have to deal with other than cabot, whats the balances owing and where abouts in the process are you.

This cca looks kosher to me, but tmw I will get someone else to look at it with me a little more in depth, especially ref the prescribed terms being as seperate T&C's. I would still tho only use it as a tool to getting reduced minimum payments, but I'm unaware what threats you are under from Cabot, and what part of the balance is legitimate and whats charges that we can fight off, before making arrangements on the rest.

Whats your financial status like now ?

If you can tell me those bits first that'd be good.

[bigandyuk1]

Re: Mrs Bigandy -V- Cabrot

To Date Only three debts seem to be outstanding:

Link Financial £3K CCA provided Letter sent asking for debt to be written off.

RBS £9k Now with the third DCA No CCa provided by either RBS, Moorcroft(the first DCA to chase this debt a year ago) or AIC. Now just received a letter from Apex chasing the same debt and I have sent the following reply:

ACCOUNT IN DISPUTE

Re: my request under the Consumer Credit Act 1974

Thank you for your letter dated 15/04/2008, the contents of which are noted
You attention is drawn to the fact that this account is subject to a serious dispute. On 11/07/2007 I requested Moorcroft/RBS supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date Moorcroft/RBS have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or RBS, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…
78 Duty to give information to debtor under running-account credit agreement
(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—
(a) the state of the account, and
(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and
(c) the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.
(6) If the creditor under an agreement fails to comply with subsection (1)—
(a) he is not entitled, while the default continues, to enforce the agreement; and
(b) if the default continues for one month he commits an offence.

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;
Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).
This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

To clarify s61(1) states
(1)A regulated agreement is not properly executed unless—
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible
In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—
1.Number of repayments;
2.Amount of repayments;
3.Frequency and timing of repayments;
4.Dates of repayments;
5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..
At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as Moorcroft/RBS become compliant with my request. As Moorcroft/RBS are still not in compliance with my request I insist that the following takes place with immediate effect
• All charges levied since 11th July 2007 be removed from the account and further charges cease until such time as Moorcroft/RBS comply fully with my original request or such time as a court makes an enforcement order
• All entries which refer to missed payments be removed from my credit file
• All collection activities by your company cease with immediate effect until Moorcroft/RBS comply with my request from 11th July 2007 or such time as a court makes an enforcement order
In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection
The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states
2.6 Examples of unfair practices are as follows:
h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

What I Require.

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.
I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well
No other correspondence will be accepted
Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful.
With reference to your most recent letter informing me of a visit by one of your representatives, please take note that I will only communicate with you in writing.
Should it be your intention to go ahead with a "doorstep call" in defiance of my instructions, please remember that there is only an implied license under English Common Law for certain people to visit me on my property without express permission; the postman, metre readers, etc. (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).


Please therefore take note that, I revoke license under English Common Law for you, or your representatives to visit me at my property and, if you do so without my permission, you will then be liable to damages for a tort of trespass. You would also be conspiring in a trespass if you sent someone to visit me nevertheless.
Take further note that any attempt to send personal callers to my home in furtherance of your Spurious claim will be dealt with by whatever action I deem necessary in the circumstances, including but not limited to minimum force to remove said persons from my property with or without police attendance. Any person attending on your behalf may find themselves subject to arrest and detention under both common and criminal law. YOU HAVE BEEN DULY WARNED and you as employers of such agents render yourselves liable to prosecution for the actions of these agents.

I trust this clears up any ambiguity you may have.

And then there's good ole Cabot and whatever that Application form says it is still not counter signed by BC or anybody else for that matter.

Financial situation is Incapacity benifit topped up with Income support and Disabled Living Allowance.

Just as a side note my wife was recently diagnosed with COPD only 40% of her lungs left. The medical proffesion says her median for life is 10 to 15 years at best...

I hope anybody reading this understands that it is hard to show emotion throughthe medium of text and that although it may seem so I do not take this situation light heartidly.

Kind Regards
Bigandy

[Amethyst]

Re: Mrs Bigandy -V- Cabrot

Thanks andy. Well firstly I think you have done a grand job so far, and I wouldnt think you take it lightheartedly, it is difficult to convey emotion through text which is why I wanted a bit more to go on, see where you are at and what the goal is, different methods suit different people so it is important, and some times there are a lot bigger issues/giant debts which havent been mentioned behind the scenes, Hope I haven't come over as being a nosey bonk.

Your RBS letter is excellent and I would be interested to hear their response on it.

Link financial - I assume you have provided them with details of your income expenditure and general status in asking for the debt to be written off.


Thanks for clearing up about the signatories on the Cabot agreement too, it is hard to tell from scanned copies if they have been blanked out or just werent there to start with.

So all you have to do now is respond to Cabots letter, which will be along similar lines of the RBS letter, but on lack of prescribed terms rather than non supply.

I'm not sure if you want to push them into taking court action against you which you will then strongly defend on the basis of an unenforceable credit agreement, or if you are wanting to ask them to write the debt off/or just get them to back off, remove the £500 charges and allow you to pay the legitimate £175 (as in spent not as in cca compliant) debt at a rate you can afford.

Whats your idea thus far ?

[Amy]

Re: Mrs Bigandy -V- Cabrot

Andy, with regard to the Cabot debt, would it not be simpler to reclaim the penalties imposed on this account and set up an agreement to pay back what you legitimately owe rather than fight them on their CCA or lack thereof?