Cabot Financial re MBNA

TFC_2

I sent Cabot the following letter:

I do not acknowledge any debt to your company.

With reference to the above, we would be grateful if you would send us a copy of this credit agreement, statement of account and notice of assignment.

I understand that under the Consumer Credit Act 1974 (Sections 77−79), we are entitled to receive a copy of our credit agreement on request. We enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

I understand a copy of our credit agreement should be supplied within 12 working days.

I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.


I have received the letter below from Cabot Financial, in response to my letter

We acknowledge receipt of your request under sections 77and/or 78 of the Consumer Credit Act 1974.
The Cabot Financial Group is not obliged to provide this information but we are pleased to help and have already requested the documentation for you from the original lender.
Cabot Financial does not accept the statutory fee required under section 77 and/or 78 of the Consumer Credit Act 1974 and as a result Cabot has returned the fee for £1.00 that you have sent.
What happens next
We anticipate that we will be able to provide this information within 12 days. In the event we are unlikely to obtain this information within those time limits, we will write to you again.
Contacting Cabot
If you have any queries about your account or any payment options, call one of our helpful customer advisors on 01732 524615 (Minicom: 01732 524630).
In the meantime we thank you for your co-operation.

Yours sincerely
I would welcome comments

fermi

TFC wrote: »

The Cabot Financial Group is not obliged to provide this information but we are pleased to help and have already requested the documentation for you from the original lender.

Rubbish. If they wish to try and collect the debt then they are obliged to provide the info.

I've seen Cabot try to mislead people like this before. As I said, it is rubbish.

TFC wrote: »

Cabot Financial does not accept the statutory fee required under section 77 and/or 78 of the Consumer Credit Act 1974 and as a result Cabot has returned the fee for £1.00 that you have sent.

Doesn't matter whether they accept the fee or not. They are still legally bound to comply with the request.

TFC wrote: »

We anticipate that we will be able to provide this information within 12 days. In the event we are unlikely to obtain this information within those time limits, we will write to you again.

Nope. If they don't comply they can take a run and jump.

crazyhaggid

fermi I'm having similar problems with cabot they now claim that their poor copy of the CCA is all they need to supply I've looked at the CCA and it states:

77.—(1) The creditor under a regulated agreement for fixed sum credit, within the
prescribed period after receiving a request in writing to that effect from the debtor and
payment of a fee of 15 new pence, 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,—

its the 'if any' bit I'm worried about is this a get out clause for them?

fermi

crazyhaggid wrote: »

its the 'if any' bit I'm worried about is this a get out clause for them?

Nope. If there 'isn't any' then they can't supply it and can't therefore enforce the debt.

Plus under s127(3) they need a valid genuine copy of the signed agreement with the prescribed terms in order to enforce through the courts, irrespective of any requirement under sections 77-79.

crazyhaggid

Thanks for that, they have actually sent me a copy of it but its unreadable, I'll copy in the reply they sent to me now that I've taken the matter to the ombudsman...

crazyhaggid

Our response to your letter
I refer to a letter from the Financial Ombudsman Service received on 12th November 2008.
I understand you believe Cabot has failed to provide you with the relevant documentation as requested under section
77/78 of the Consumer Credit Act.
We accept that there was an initial delay in providing the relevant documentation to you, as it was necessary for the
information to be retrieved from the original lender's archives, as previously advised. According to the Consumer
Credit Act section 78(6), once we have complied with the request under section 78(1) of the Consumer Credit Act
1974, and for the avoidance of doubt Cabot has complied with the said section, albeit out of time, it may once again
enforce the agreement. Notwithstanding, we provided the required information to you in July 2008, which satisfied
your request for information.
For clarification, the Cabot Financial Group purchased your account from HFC, the original lender, on or about 28th
March 2008. The Cabot Financial Group, the assignee of your account, are entitled to collect the outstanding balance
on your account and also to enforce the original terms of the credit agreement. Although Cabot has no obligation
under section 77 and/or 78 of the Consumer Credit Act 1974 to supply with information, Cabot will at all times assist
its customers in order to provide information. Cabot at all times relies on the original lender to provide information in
order to assist with your enquiries.
Please find enclosed a copy of the credit agreement that you signed and agreed to with the original lender. Please
note that on the copy of this agreement, your signature is supported by the statement "This is a Credit Agreement
regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms". You shall also
note on the credit agreement that under the heading "Declaration" it states "Credit Agreement regulated by the
Consumer Credit Act 1974". Therefore, this constitutes a valid credit agreement, which is regulated by the Consumer
Credit Act 1974 and under the terms of the agreement.
Furthermore please be advised that although the original copy may not be available to Cabot, HFC has supplied
Cabot with a copy of the original which you signed and satisfies all requirements from both HFC and Cabot. Under
section 78 of the Consumer Credit Act 1974 it states "the creditor... shall give the debtor a copy of the executed
agreement (if any)" and stress the words "if any". As re-iterated above, Cabot has been provided with a copy of the
agreement from HFC and therefore, this satisfies all obligations from both parties. In addition please find enclosed
the relevant statements, which clearly detail the transactions and payments you have made on this account and the
relevant terms and conditions.
With regards to the legibility of the credit agreement and terms and conditions, it is the case that at the time of
entering into the agreement with HFC, all terms were clearly legible, which you agreed and signed to in order to
obtain the credit, which you have received and utilised.
I note from your letter dated 9th August 2008 you have stated "under Scottish Law we are unable to pursue a debt if
we have failed to provide a copy of the terms and conditions. Please be advised that your credit agreement is
regulated by the Consumer Credit Act 1974. A term in the credit agreement states, "This agreement is governed by
the Laws of England". As a result Scottish law does not apply.

crazyhaggid

With regards to the requirements of the agreement regulations 1983/1553 concerning the form and content of the agreement,
these regulations do not deal with this matter, as it is the CCA that deals with this matter as primary legislation. Section 189(4)
of the CCA states:
A document embodies a provision if the provision is set out either in the document itself or in another document referred to in
it."
Section 61 of the Consumer Credit Act, which deals with the "signing of document" states "A regulated agreement is not
properly executed unless"
(a) A document in the prescribed form itself containing all the prescribed terms and conforming to the regulations (Consumer
Credit (Agreement) Regulations 1983) under section 60(1) is signed in the prescribed manner both by the debtor...
(b) The document embodies all the terms of the agreement, other than the implied terms..."
The word "embodies" does not mean, "contain" as you have stated. The word "embody" (in contrast to "contain" which is set
out is subsection (a) of section 61) means that the document need not set out all the terms itself, but may refer to another
document setting out the terms under section 189 (4).
As to prescribed terms, this is covered in section 61 (a), above, where it mentions, "contains". The terms and conditions have
set out all the prescribed terms as required under the Consumer Credit (Agreement) Regulations 1983 and therefore there can
be no argument as to the validity of the form and content of the agreement.
With regards to your claim that Cabot applied interest to your account on assignment of this account, I can confirm that when
Cabot purchased the above account from HFC the outstanding balance was £1557.56. (This is clearly stated on the March
2008 HFC statement that we have enclosed). On checking our records it would appear that Cabot, has not received regular
payments from you and subsequently penalty interest has been applied to the account in October 2008. Cabot will only
suspend interest on your account, if an agreed repayment arrangement is in place and cleared payments are received
accordingly.
Please be advised that Cabot is legally entitled, under the original credit agreement signed with HFC, to apply the contractual
rate of interest to your account. For your information, I have included a statement of your account since Cabot's ownership,
which details all transactions on the account and a reproduction copy of our notice of notice of assignment dated 8th April
2008, which you have received, as it was upon receipt of this letter that you first contacted Cabot.
In conclusion, we are perfectly within our rights to enforce the debt against you as your arguments are cleariy unfounded and
you have no basis for your dispute or claim for failing to pay the outstanding balance under the credit agreement. Therefore I
would recommend you contact our collections department, within 14 days, on 0845 0700 116 to discuss the options available
to you in order to settle this account. I must inform you that if we do not hear from you within this time frame we will have no
alternative than to return your escalate your account within our collections procedures.
I trust I have set out our position clearly and have dealt with your concerns to your satisfaction. However, if you remain
dissatisfied with our response, you may refer your concerns to the attention of the Financial Ombudsman Service, within 6
months of this letter, who may investigate your complaint. Please find enclosed a leaflet from the Financial Ombudsman.
If you have any other queries in relation to the above account, please do not hesitate to contact me

fermi

crazyhaggid wrote: »

Thanks for that, they have actually sent me a copy of it but its unreadable, I'll copy in the reply they sent to me now that I've taken the matter to the ombudsman...

Eeek!! That is a lot to go through.

But from just skimming through I can see that Cabot are talking complete cobblers on many points. :rolleyes:

I'm not going to be able to go through all that tonight, but I will try to tomorrow if needed.

If it looks like I have forgotten (could happen ) then PM me to remind me.

crazyhaggid

Thanks its most appreciated to have people like you on my side

stapeley

Any documentation sent in reply to a CCA request MUST be legible. I JUDGE could and would not accept evidence where some parts are not legible. In those circumstances the orginal copy would be required . Carbooty have said the Orginal may not be available to them . Would you but a car without the LOG BOOK ? stick to your guns .

kaz2196

hi
i recieved the same letter from cabot stating they are not obliged to provide a cca returned the postal order and would request it from original lender (abbey).now on day 14 ive recieved another letter stating abbey were experiencing delays retrieving it from their archives and as a gesture of goodwill they would place the account on hold until abbey are no longer experiencing delays.why do financial instututions never admit the truth and everything is as a gesture of goodwill.when they supply my cca i may offer to pay them as a gesture of goodwill.