Cabot SAR

[Gprit]

Some years ago, Cabot acquired five credit card debts I had with BOS/halifax/IF/Barclays/Lloyds. This amounted to a substantial sum and was the result of 'getting my fingers burnt' in property development. There is no entry in my Credit report for any of these amounts, or from Cabot.

For the past several years I have been paying an agreed £1/month on each account to Cabot, no payments missed or late. They seem quite happy with this and don't bother me. This amounts to the princely sum of £60 / year in reduction of the substantial debt, less whatever they spend on administration/letters etc.

I am almost seventy and have negotiated substantial debt write-offs with NatWest, Capital One and Tesco directly. Cabot would not write their debts off. With my sisters help I have tried to negotiate a settlement of £2000, (ok the total debt is around £40,000), but they keep saying no. I have pointed out to them hem that if I live to 80 they will only get £600 and to 90 they will get £1200.....and I will have no assets to leave, but they are adament I keep paying £1/month each account.

I could simply keep paying this and let it die with me, but I want a 'clean sheet'. I have requested a SAR within 40 days.
1) Assuming they respond in the timescale but do not send any signed novation agreement or original /certified copies of the original agreements bearing my signature, can they actuallly DO anything if I stop payment?
2) I am selling the modest house I have in the UK (no equity) and going to live with family in France. If I just leave the UK and don't give any French adress what would/could they do?
3) If I did either of 1 or 2 can they retrospectively place entries on my credit report?
thanks

[Gprit]

Just wanted to place a final post here.......I was very apprehensive about just stopping the £1/month nominal payments I was making, but in the end decided to take the plunge, advise Cabot what I was doing and why (that I believed the documents unenforceable). That was in August 2018. I never got a reply or any further correspondence from them. Thankfully that period when I incurred these debts - through a bad property venture - is now behind me and I have rebuilt my credit score to 'excellent'...

So to others I say - persevere and do not give up.!

I should add that I was grateful for all the advice received here.

[Diana M]

Re: Cabot SAR

That 2nd set of T&Cs also show a £25 charge for missed payments.

Which wouldn't have been the case if those Ts & Cs were in existence when the account was terminated in July 2009 which Cabot says was the case in their reply letter in post # 35.

They should have been £12.

"We supplied you with a copy of the original credit agreement that you signed, accompanied by two sets of reconstituted terms and conditions.

The first set of terms and conditions have been provided by Halifax as those that were in force at the time you entered into the agreement on 3 November 2005 and the second being valid when the account defaulted on 7 July 2009."

Di

[Diana M]

Re: Cabot SAR

I downloaded the document that I uploaded(!) but don't see my name or address...only date of birth....

Your name and address is at the top of both Page 3 and Page 4 of your PDF.

I reported it to Admin as soon as I saw it so they may be able to redact that for you.

Di

PS I can also see that your Cabot reference number is on Page 1 of your PDF and also the Halifax credit card reference.

[Diana M]

Re: Cabot SAR

Those general terms originally would likely have been in a leaflet along with the agreement.

That's what the Claimant's lawyers try to say in court but they've been proved wrong by DJs who've dismissed their claims based on that assertion and lack of evidence to prove it.

As in the case of HFO Capital Ltd v Roland Wegmuller (one of @pt2537 's successful cases) where the judgment is posted on Legal Beagles here > http://legalbeagles.info/hfo-capital...-county-court/

And also in the case of MKDP LLP v Diana Mayhew.

Di (aka Diana Mayhew )

[Gprit]

Re: Cabot SAR

Crossed out bits - yes, by me...as they also sent updated T&C 2008 which seemed to overlap on the printed pages they sent.
My argument is that on pre 2007 documents ALL prescribed terms and General terms and T&C and CC company signature need to be within one signature document and it needs to be obvious that it is all contained document or if any other documents referred to in the main agreement, they must be supplied. The Received stamp is NOT an Intelligent Finance Received stamp and is therefore meaningless.
I also maintain that there was NO separate leaflet and that there was No letter sent to cancel within 14 days. Basically I need to know whether the arguments in my letter to Cabot are valid - I believe so as I did a lot of research before sending.

I downloaded the document that I uploaded(!) but don't see my name or address...only date of birth....

[Diana M]

Re: Cabot SAR

Regarding the halifax(Intelligent Finance) CCA details sent by Cabot (see redacted document attached).

I sent them the following letter:
-----------
Appreciate this is a bit of a long one - any further comments/advice?

Who actually owns this debt?

On the top right of that letter it says "Write to us at Cabot Financial (Europe) Ltd." , but might it be owned by Cabot Financial (UK) Ltd?

You've sent them a long detailed letter setting out all the reasons as to why you believe the agreement is not compliant/valid. This will only help them to reconstitute a better version if they decide to issue proceedings (hopefully not) in the event your observations are correct.

Don't do their job for them

Di

[charitynjw]

Re: Cabot SAR

That 2nd set of T&Cs also show a £25 charge for missed payments.

[Diana M]

Re: Cabot SAR

There's a big difference between a credit agreement being 'compliant' and the debt being enforceable in court.

It's possible to have a 'compliant' agreement but there could be a whole host of other statutory flaws which would defeat a claim such as a bad DN (s 87), failure to serve Notice of Sums in Arrears (s.86) and Deed of Assignment issues etc.

This is a £11k debt so I'm not going to advise you either way on the document you've uploaded which appears to be a reconstituted document.

It seems to show that the account was opened in November 2005 (Page 2 of your PDF) yet at the bottom of the Ts & Cs (Page 12 of your PDF) there looks like a reference to 1/10/08. Can you explain why that would be?

Incidentally your full name, address and date of birth is on those documents so you need to remove those details to protect your identity.

Di

[Amethyst]

Re: Cabot SAR

The crossed out bits in the general terms - was that just something you've done on the copies? Ahh yes as they aren't on the first copy you posted - are the crossed bits parts that don't appear on the signature sheet ? Looks like it would be enforceable yes - 2005 and they've provided the signed original - what issues do you have with it following their clarification? is it the same copy they've sent with the highlighting on?

Signature page refers to conditions in the general terms ( eg12.2) and they do match up which makes it likely they are the correct ones. The prescribed terms do seem to be on the signature page. Execution is on another page ( the stamp) rather than in the exec dig box on signature page but that page is linked. Those general terms originally would likely have been in a leaflet along with the agreement.

[Gprit]

Re: Cabot SAR

Yes - but I am trying to determine whether the 'agreement' is in fact legally enforceable.

[Amethyst]

Re: Cabot SAR

Well Barclaycard is done with, Lloyds is on hold, and they have provided the agreement for IF.

Sounds like you have an arrangement on the IF account ?

[Gprit]

Re: Cabot SAR

Regarding the halifax(Intelligent Finance) CCA details sent by Cabot (see redacted document attached).

I sent them the following letter:
--------------

I have now had an independent review of your letter and documents dated 23rd January 2017 in which you
claim that this account is enforceable.
The document provided:
The document provided is not complete. Page 1 refers to signing the agreement on Page 3. The alleged
agreement in your submitted version is actually the second page. The Prescribed terms are also not complete
in the document.

You will be aware that pre-April 2007 agreements cannot be enforced with a reconstituted agreement. Only a
certified true copy of the original in its entirety can be considered, and only if it meets the requirements,
otherwise it still stands as unenforceable.

The document that you are obliged to send me is a certified 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
the original company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments.
It was not stated that these were reconstituted T&C as required by the CCA 1974 Act 13.1.4(2)
The reconstituted Terms and Conditions that you sent are clearly unrelated to the alleged agreement, and
whilst that may satisfy a CCA Request it would not be acceptable in any legal action - only an original
document would suffice.

The alleged agreement makes no mention of Terms and Conditions and I never received Terms and Conditions.
The document refers to my right to cancel the agreement - Halifax never sent these details.

Prescribed Terms:
The court cannot make an enforcement order in respect of a pre-April 2007 credit card agreement unless a
document containing all the prescribed terms was signed by the debtor (section 127(3) CCA 1974).
The “prescribed terms” which must be contained in the document signed by the debtor are set out in Schedule
6 to the consumer credit (Agreements) Regulations 1983 (“the Agreements Regulations”) :
The Agreement must contain a Credit Limit, or a reference that the Credit Limit will be set at a later
date, or a statement that no Credit Limit is required.

• The Agreement must declare the APR% rate, monthly and/or annually.
• The Agreement must contain a date/or indication of a date such as weekly, monthly or annually, for
• payments to be made, or state a date will be decided upon later, or that monthly statements will be

provided to show the date of required payment.

• The Agreement must contain a notice of your right to cancellation - usually 14 days from the date

signed.

or a condition that it may not be cancelled under the Act and/or various others.

• The Agreement must contain ALL Terms & Conditions.
• The Agreement must be legible, and the type face distinguishable from the background colour.
• The Agreement must be signed by both parties - Debtor and Creditor/or their representative and dated.

Any copy of the Agreement lawfully requested by the debtor under section 78 of the Consumer Credit
Act 1974, must be a valid and true Certified Copy of the Original Agreement - in this instance,
reconstituted agreements are not valid, true copies and unacceptable.
ALL of the above, must be contained within a single, signed document and parts may not be sent
separately, or issued under separate cover.
If any of the above is not included, or if the Agreement is not legible, then the Agreement is unenforceable at
law.

ALL prescribed terms need to be within one signature document and it needs to be obvious that it is all
contained document or if any other documents referred to in the main agreement, they must be supplied.
In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to
ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the
parties … and/or the court can identify within the four corners of the agreement.


Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself:
they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above
all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for
manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court
is whether they are, on a true construction, included in the agreement”.

Clearly the application document supplied lacks the Prescribed terms within the document, and is therefore
improperly executed and irredeemingly unenforceable by any court by virtue of section 127(3) CCA 1974.
It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms
without a copy of those terms being supplied to the debtor at the point of signature.

Conclusion:
It is considered that the debt is unenforceable in a Court of Law for the reasons given above.
I am advised therefore to discontinue payments on this account.
---------------------------------------

They have replied:

You assert that we have failed to comply with the duty to provide information as set out in s78 of the Consumer Credit Act 1974.
You believe that on Cabot reference ..... all the terms and conditions are required to be on one document and that a number of prescribed terms are omitted from the documents sent.

I also understand that you believe reconstituted agreements are not valid for accounts opened prior to 2007.

You have stated that page 1 of the agreement refers to signing an agreement on page 3 and we only sent you page 2 of the agreement.

On review I note that we are still currently waiting on documentation for Cabot reference .. (Lloyds TSB) to fulfil your CCA Request.
You were advised of this in our letter dated 28 March 2017.
This account currently remains on hold.

On Cabot reference .... (Barclaycard) you were advised on 28 March 2017 we could not obtain the documentation and the account was unenforceable.
We have taken the decision to cease collection on this account.

As advised in my previous email I referred your further concerns to our Compliance Department for further investigation for Cabot reference ... (Halifax credit card).

On 23 January 2017 my colleague wrote to you and you were provided with:
1. A legible copy of your Signed Credit Agreement
2. Terms and Conditions
3. Varied Terms and Conditions
4. Statement of Account

On review of the credit agreement sent to you it is clear that there are no page numbers shown on the copy provided.
However, what has been provided is clearly entitled
‘CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974’ and has been signed by you, Mr ..... on 27th October 2005.

I have enclosed a further copy of the original signed credit agreement with all relevant prescribed terms highlighted for ease of reference.
Please be advised the file is encrypted and I will send the password in a separate email.

The relevant prescribed terms are as follows:
§ Nature of the agreement (Title as referred to above)
§ Parties to the agreement (Name and address of creditor and borrower)
§ Credit Limit
§ Total Charge for Credit
§ Timing of repayments
§ Amounts of repayments (at least 2% or £5, whichever is more)
§ APR
§ Variable rates or items (statement that in calculating APR no account has been taken for varied rates and an indication that any change to interest rates will be communicated by giving notice.)
§ Charges on default (Charges to be applied in the event of failure to make minimum payment, exceeding credit limit or failed Direct Debits, cheques or other items)

We supplied you with a copy of the original credit agreement that you signed, accompanied by two sets of reconstituted terms and conditions.

The first set of terms and conditions have been provided by Halifax as those that were in force at the time you entered into the agreement on 3 November 2005 and the second being valid when the account defaulted on 7 July 2009.

We therefore believe your comment that a reconstituted agreement is not sufficient to satisfy a request under section 78 of the CCA where the agreement pre dates April 2007 not relevant to your case.

Your comments regarding the signed credit agreement are noted however, there is no requirement in relation to the location of the creditor’s signature on a credit agreement.
It has also been found in legal precedent, that any writing, including the writing of the account number by the creditor on the credit agreement, with the intention of authenticating it, is sufficient.

This has been confirmed by Morton v Copeland (1855) 16CB 517, per Maule J at 535 and Hill v Hill [1947] Ch 231 per Morton LJ at 40. With respect I draw your attention to the enclosed copy of the signed credit agreement where Halifax has clearly stamped the date ‘received 1 November 2005’.

The signed statement of account is accurate.
The Agreement was terminated on 7 July 2009 and you became liable for the full outstanding balance.
You are not able to draw further on this account.

For the avoidance of doubt, the sum of £11,151.68 is due and payable to us.
I consider that we have complied with your request in accordance with s78 of the Consumer Credit Act 1974.
Therefore we consider that the agreement is now enforceable.

As the account is enforceable it has been returned to our collections process.
Please be advised Cabot will not respond further to any issues already addressed.

------------------------------
Appreciate this is a bit of a long one - any further comments/advice? Thanks

[Gprit]

Re: Cabot SAR

thanks...sorry about that.

[Kati]

Re: Cabot SAR

Page 2, top left, underneath "Parties".

sorted xx

- - - Updated - - -

Your personal name and address are on that uploaded agreement.

You need to remove it, redact it and then re-post it

Di

sorted