Hi S

Cleggs here again.

Sorry I have not been on here for ages but been so busy.

An update so far:

I got a letter back from the CABOT on the 5th June basically saying that I signed an agreement giving permission for them to put my details on the credit file and that is where it is staying. They would not take it that I have never agreed to owning this debt. They have also said that they are not the agent acting for barclaycard but that they are the now owner of this debt, so I assume they bought this debt.

I have spoken to barclay card and they have stated that they do not have any record of this account. I have today written a letter to Barclay card getting it in writing that they do not have any record of this account. Then I will send a copy to the credit reference agency and Cabot finance in a hope that once they know that barclaycard have stated in writing that they do not have any details of this account then

Cabot will close it. I cant see how they can say they are putting it on hold until the agreement comes to light if barclaycard are stating that they do not have any record of this account, therefore no agreement. TS has stated that hopefully this confirmation from barclaycard will put an end to it. Consumer Credit direct are logging it with TS again.

Its bugging me so much now that I want it ended.

Angry Cleggs

Hi Pesty Cleggs,

Yep, back to waiting again.

I would spend your waiting time contacting the Information comissioner and reporting/ complaining to them.

https://www.ico.gov.uk/Global/contact_us.aspx

Also, keep contacting TS, every couple of days or so, don't make a nuisance of yourself but keep you in the forefront of their mind. They have loads of complaints so you will quickly fall off the radar unless you stay in touch.

S

Stubie-one ahd hi Cherryred,

Well I have sent that letter off now and just changed the bits at the bottom stating that I would go to TS etc. Like you said Stubie cant really tell them that if I have done it already.

Will just have to wait and see what happens next.

Cherryred, I am not sure about the bit of advice you gave at the bottom of your piece but this CC would have been taken out by myself no spouse.

Now its just the waiting game again.

Cleggs

stubie/cleggs,

have just found this forum and interesting stuff. some good advice stubie - keep up the good work.

Just a few points on cleggs matter - some of the letters before action don't take into account the changes in law with the CCA 2006 and Rankine case. Basically if lender doesnt come up with copy docs under s77/78, under s77(4) and 78(6) they cannot enforce the agreement while it is default - "dispute". s77 (4) (b) and 78 (6)(b) re an offence being committed after a month's default has been revoked. see s170(1).

the case of rankine v american express last summer stated that if a copy doc is not provided under s77/78, you can seek an injunction against lender to stop any enforcement. this is under 170(3).

Interesting but there's been no cases in court requesting this so it's kinda early days with this. Recent request for test cases may provide judgment on this.

However in your case - cleggs - fact that cabot admit they cant find copy doc is interesting. As debt collection agency they should not be pursuing debt w/o evidence of agreement, and is responsibility of them and creditor to produce it when asked. Have only had a glance of your letters/history but if you've paid statutory fee you are entitled.

Also another point you may wish to check is whether or not the lender has the original signed executed agreement between you/ex wife and lender. If not you could argue the debt is unenforceable under s61 CCA as the agreement was not properly executed. If you could get letters out asking for this, and they don't provide then you would really have a strong case not to pay and to have default removed from credit file!

The recent decision in the Chester County Court was not a judgment by Judge Halbert, only a request for a number of his cases in Chester to be heard in the Commercial Court in London as test cases. We have had sight of the actual letter issued by District Judge Derek Halbert to Justice Smith which sets out his recommendations and proposed timetable for his cases.

There has been no judgment or ruling, contrary to several media reports. There is a letter from a Chester County Court Judge - Derek Halbert to the Commercial Court in London which asks to consider referring some of his cases as High Court test cases, and then to suspend his other cases. Some believe it’d mean all similar claims go on hold, though non-court negotiation would still take place.

At present there is NO STAY and NO CASES have been frozen.

Feel free to ring Chester County Court and they will advise that they are still hearing cases on Consumer Credit Act actions!

Redcherry Reclaim has contacted Chester County Court on 8^th May and they confirmed cases were still running. We have also been in keeping a close eye on developments.

What Redcherry Reclaim believes, is that the press reporting and legal developments will help get rid of unscrupulous and unprofessional claims management companies, and those bringing unfounded or frivolous claims to court. It is important that people understand how and when a claim can be brought for unenforceability, and this is why Redcherry Reclaim have in-house solicitors within the company reviewing and auditing agreements and files. Quality control is part of our “audit” process and cases are referred to barristers for an opinion before a claim is brought.

Should a stay in proceedings occur throughout the Courts in the UK, it does not prevent people making claims. First, all claims will still be based on the established proven “old law” - i.e. the Consumer Credit Act from 1974. Because of the nature of claims there’s still a chance for settlement outside court proceedings, and in some cases it's better to do things that way!

People should also bear in mind that if proceedings are stayed in the future the banks may not be able to take action against customers where we can provide evidence that their agreements are challengeable. You may be able to ask for suspension of any action against a consumer or an order against a creditor as their account will be deemed to be in dispute (see Consumer Credit Act 1974 section 65(1), the unfair relationships “test” in s140A Consumer Credit Act 2006, powers of court in s140B and Regulation 6(1) and Schedule 6 of the Consumer Credit Agreement Regulations 1983).

Please note that banks are in litigation and do defend individual actions – and do lose! Recently the case of Walker v Southern Pacific Personal Loans Ltd was heard on appeal by Southern at, you guessed it, Chester County Court! Judge Halbert presided over the appeal and... Southern lost due to their non-compliance with the prescribed requirements of the Consumer Credit Act 1974.

Even the considered expert on the law of consumer credit, Sir Roy Goode is quoted on BBC Panorama in November 2008 as saying: “The rules relating to the formation of agreements are extremely complex. So any slip entitles the user not to pay…”

So it's not all doom and gloom as the press would like us to believe!

One final thought,

If they cannot find the agreement then there is no agreement and all of the terms of the agreement are void.

One of the terms of the agreement is the right to charge interest etc. If there is no agreement then they cannot charge interest, if they did (very likely) then you have a strong case to reclaim it.

Food for thought and, possibly, a bit of compensation for all your lost sleep.

S

Ignore this post, I must engage brain before activating mouth (typing fingers). Its a load of tosh. If we go for return of interest then we would have to acknowledge the existence of the account which could be counter productive, based on prior statements.

S

Good news, the common problem is that TS will not get involved, by giving you a reference then they are going to get involved, we make progress.

The move with equifax is positive, as long as the default is not registered elsewhere. We should get that cleared as a response to the letter or the intervention of TS.

I would let TS and Equifax do the donkey work now so send the letter as is - in the letter we said that we would wait for their response before referring the matter, which we haven't done - that isn't a problem but it would contradict the content of the letter.

As far as dates are concerned, the phone call evidence is unsupported - your word against theirs, basically, so the written statement is difinitive as it can be evidenced. It does show that they don't even have clear facts to work from, though.

I would send the letter, then enjoy the rest of your day

Good work with TS

All the best

S

Hi S

Ok I have been doing lots of phone calling this morning. Trading standards was my first port of call. They have logged this and given me a reference number. They basically say the same as you, either they put up or shut up. They cannot proceed without the original agreement. They then told me to get in touch with Equifax where this file is held and I spoke to a very nice lady there who stated that I log a complaint with them and they get in touch with Cbot.

I have sent this complaint off to Equifax now.

Should I let Cabot know all this in my letter to them, at least then they know I am serious.

On another note, I noticed in my last letter they told me this account went into default on the 26 Nov 06 but when I first spoke to them on the telephone they said Nov 04.

Speak soon

Cleggs

Hi Cleggs

Yes, I've been busy, the typing didn't take very long - it was correcting all the spelling mistakes that took the time.!

Glad you are putting this into perspective.

Send the letter to Cabot, then copy it to TS and FOS - at least they will have a comprehensive summary of your counter arguements, it should go with a copy of the Cabot letter so they can see the position from both sides. This especially inportant in relation to the alleged mis information.

Then sit and wait for the replies.

Keep me posted so we can counter any arguements or objections from any side.

S

P.S. It was the work of a couple of hours but worth it if it gives you peace of mind - it will also serve me in some other things I am involved in, so worth it all round.

Have a good weekend

Hi S

Now who's doing lots writing. Wow thanks for all that. That must have taken you ages.

So I post this off to Cabot and then fill out the forms on line for financial ombusman. Do I tell trading standards that I have sent this last letter.

Do I post this letter off even if I have not had a chance to talk to TS first. I have got such a busy work load this week so will probably only get as far as sending the letter off, will that still be ok for now?

I am still worried about all this but I have learnt that there are more important things in life to worry about.

Thank you again for that I will type up the dates today and send it off recorded delivery.

Cleggs

Hi Cleggs,

Try this, you may need to tidy up the format a bit. I think the letter, in large part, covers the list of contraventions for TS so you could read the letter and see what questions come back.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Usual addresses etc,

Ref XXXXXX

Dear sir/ madam,

Regarding you letter of <date of their letter>, the contents of which are noted.

May I, firstly, draw your attention to the content of my original letter of <date of letter>.

As you will be aware, the Consumer Credit Act 1974, as amended (the Act), s 78 (1) requires, upon receipt of the appropriate request, that you provide a true copy of the executed agreement. This is further qualified by SI 1569 (1983) (Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983) which prescribes a period of 12 working days for the satisfaction of such a demand and cites the above act and section as relevant in this regulation. The prescribed period expired on <date>.

I would, further, draw your attention to s78 (6) of the Act, which states:

(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

Whilst I acknowledge your comment relating to the status of an alleged debt in the absence of an agreement I would suggest that you consider the full implications of the above excerpt from the Act.

As the creditor, and Cabot Financial, as their agent, are now in legal default under S78 (6), the Act denies the creditor leave to enforce the alleged agreement. Since the authority to share data, wherein I am the data subject, is contained within the agreement, since it cannot be elsewhere, the denial of right to enforce also denies the right to process data.

Regarding your statement to the effect that the Consumer Credit Act 1974 permits processing of personal data, be advised that this act contains no such provision. If you refute this statement then please provide the relevant citation in order that my advisors can review the validity of your claim.

With regard to the Data Protection Act

The Data Protection Act States in schedule 2:

Conditions relevant for purposes of the first principle: processing of any personal data

“1. The data subject has given his consent to the processing.”

As previously stated, the relevant permissions must be contained within the agreement document or a referred document, or there is no such permission. As you are unable to prove the existence of such a document, it follows that you cannot evidence any authority contained therein. Such authority cannot be presumed or assumed and in the absence of any agreement must be assumed not to exist unless the contrary be proven. With regard to the content of any related documents; the validity and relevance of such documents can only be determined from references held within the four corners of the agreement document; the earlier logic is applicable in this instance also.

The Data Protection Act continues:

“6. — (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”

As previously stated, legitimate interest is contingent upon the pre-existence of the relevant agreement. Since the existence, and by inference, the existence of relevant content, cannot be proven, then legitimate interest in respect of any party cannot be so proven.

A statement in you previous letter indicates an obligation to share personal data. I would be grateful if you could provide the relevant details pertaining to this obligation and the manner in which this obligation entitles relevant statute to be set aside.

The Data Protection Act follows

“Part II Rights of data subjects and others.

10. Right to prevent processing likely to cause damage or distress.

— (1) Subject to subsection (2), an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons—

(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b) that damage or distress is or would be unwarranted.

As it is clear that the processing of data, wherein I am the data subject, for the purposes as notified is, and is intended to be, likely to cause damage and distress, and is, moreover, unwarranted.

This letter constitutes notification, pursuant to the above section of the Data Protection Act, requiring Cabot Financial and all related and associated companies and individuals to cease and desist from processing data wherein I am the data subject, until such time as irrefutable proof of relevant authority is provided, or for perpetuity.

I require:

Removal of personal data from any and all systems owned or operated by Cabot Financial and related companies, systems or individuals, or proof of the right to possess this data.

Removal of any and all default notices wheresoever registered at any time in relation to the alleged account in question.

Written confirmation of compliance with the above.

In the event that you fail to acknowledge and comply with the above, or refuse to do so; be advised that this matter will, without further notification, be referred to regulatory authorities of my choosing.

Be advised that any regulatory authorities to which this matter is referred will have attention drawn to S25 (2) of the Act and section 13 of the Data Protection Act.

I trust you will render this course of action unnecessary.

Please respond to this letter as a matter of urgency, and, in any event, within 21 days.

Yours faithfully

I asked if you were the same one as you seem different, more self confident, less worried about the empty threats etc

I'm going out for a while so will set to with the letter later or tomorrow, depending upon my state of sobriety upon my return.

You should be able to locate TS noline, the complaint forms for the financial ombusman are also on line. Similarly for the information comissioners office.

Also, once we have all this done - couple of days, hopefully - then pack a copy of everything off to the OFT. They won't do anything about it as they don't take individual cases - that's for TS and the FOS - but they are the issueing authority for the credit licenses, and review all such cases when any license is due. They may not act, but they could well be interested. And it helps when writing " this matter has been referred to the OFT for review....."

Talk later

S

S

yep same pest as before.

Thank you for your help I think your option sounds good. I will find the tradings standards office, if you could help compose something that would be brill. I will add all the bits I put in brackets like you said.

Could you forward that summary to read to trading standards in case I do get one that does not know the law enough.

Speak to you soon

Cleggs

Hi Pesty Cleggs :-)

Are you the same pesty Cleggs that i first spoke to a couple of weeks ago?

How long did that lot take to type?

If it were me, then response would be "letter before Action" 14 days notice to comply with request before commencement of legal action, serve an injunction on them to remove.

You may not want to do that yet.

I have seen many letters like your's, all the consumer sites are repleat with them. They presume ignorance on your part and tell you a load of rubbish in the hope that you don't know any better.

I think that we need to put together a response along the lines of your comments in brackets and dismantle the case put forward regarding what they would like the law to say - tell them what it actually says. Then tell them you will go to trading standards, OFT and the information comissioner.....Then do it. Get them involved at this stage, they are taking the pee. You might find some of the regulators just as frustrating as Cabot but we have more leverage with the regulators.

I will get the rusty cogs working and compose something. If you can find the number for your local TS (Trading Standards) and give them a call. Have all the info around you so they get the full SP, letters, calls, defaults (Cabot idiots!!!). You may need to remind them of the law too, quote from the letters. If you need a summary to read to them, let me know. Don't assume that, as a regulator, they will know what the law says, or necessarily be bothered to go and find out - I do them a dis-service but the feedback is if you get a good one, they are brilliant, but there are others who are, lets say, less committed.

Oh, and practice trying for the sympathy vote (Cried all night , sleepless nights, daren't answer the door, you know the drill)

It might help

Find out who your MP is and where to get in contact, we might use that later as leverage on the regulators

S

Hi again Stubie-one

Its pesty cleggs here. Since I sent that last letter that you showed me I have had another letter back from them on the 7th May 09, basically telling me that they will not be removing this default from my credit file.

What annoys me most about this letter is that I have never admitted to owning this debt and they clearly have written to me as though I have. Could you shed some light on what to do next please.

If anyone else has any tips I would be grateful.

I was going to send a letter back to them roughly stating that a) I have never admitted to owning this debt and had stated this in my first letter requesting the true copy of the agreement and b) that if I have never admitted that this debt was mine then how can I have signed the agreement stating that they can share my information with a third party or CRA and finally c) if they dont have my true signed copy then how can they show that I even signed anything in the first place.

The letter they sent me is as follows (sorry rather long winded though)

Dear xxx

Cabot ref. xxxxx

Our response to you correspondence

I refer to your letter dated the 28th April 2009 and our previous correspondence.

I understand that your query relates to your request under sections 77/78 of the comsumer credit act 1974.

A request has been made to obtain a copy ofyour credit agreement (no mention of original) and any available statements from Monument (now barcalycard), according to sections 77/78 of the consumer credit act 1974, and we will forward the information to you upon receipt. (this was reqeusted a long time ago). In the meantime please be assured that your account will remain on hold until the requested information has been provided.

Please be advised, that the failure to provide a copy of your agreement in time does not affect the legality of your debt with Cabot Financial group but merely renders the credit aggreement unenforceable until such a time the agreement can be produced.(How long do they have waiting for this agreement?)

(Now this is the bit where they have ticked me off)

In relation to your concern regarding the processing of you data, Cabot is legally entitled and obliged under the original credit agreement and under the data protection act to process information and also to report to the credit reference agencies(CRA). We disclose information to CRA's about customers' conduct of their accounts because that disclosure is necessary fior the purpose of legitimate interests pursued by us, other members of the creidt industry and the CRA's. CRA's hold such data and disclose it to prospective lenders because that is, similarly, necessary for the purposes of the same legitimate interests.

Furthermore, under the original terms of the agreement,(bearing in mind they dont even have this original agreement to read from), which you signed with the creditor, you consented to information being disclosed to third parties and credit reference agencies.(again what agreement are they reading from?) Accordingly, the data protection act, section 4, schedule 1 and schedule 2 of the act, in particular paragragh 6 of schedule 2, permits disclosure of such information to and by CRA without the consumers consent.

With regards to your concern regarding the reporting of a default on this account, as you previously breached your contractual obligations, with monument, (again I didn't even know I owed them money) for failure to making payments to your loan agreement, monument reported a default with the credit reference agency, for the benefit of any other party in the credit industry who would legitimately require accessing information. On assignment of your account to cabot financial ltd, which was on or around the 24th Nov 06, we would have an obligation to continue the reporting of the behaviour of this account to the credirt reference agencies in its name. As the default registered has at all times been accurate, we regrettably cannot remove the same.

I trust I have clarified matters for you and set out our position cleary.

If you have any queries in relation to the above account, please do not hestitate to contact me.

Yours sincerely

Customer Assurance Adviser

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Has anyone had this kind of letter and what do I do next, would a letter from me be the right way?

I am getting very confused now

Cleggs