Cabot - can anyone help make sense of this? 31 January 2009 at 4:07PM in Debt-free wannabe 3 replies 644 views

lolly222

After requesting the CCA from Cabot on 26th November and having received several 'original lender experiencing delays in retrieving it', we sent off a formal account in dispute letter on 25th Jan as Cabot were way over the 12 + 2 days.

We have now received the following letter from Cabot - which seems full of contradictions and waffle about various sections of the CCA and DPA that mean they (Cabot) can do what they like.

Can anyone help with deciphering what Cabot are trying to explain and whether any of their points are valid?? Apologies for the lengthy post!

Our response to your correspondence

I refer to your letters dated 26th November 2008 and 25th January 2009, and our letters dated 3rd, 15th and 29th December 2008 and 12th January 2009.

I understand your letter relates to a request you have made for a copy of your credit agreement with HFC, the original lender.

The Cabot Financial Group purchased your debt from HFC on 28th March 2008.

In your letter dated 26th November 2008, you state that you are entitled under sections 77-78 of the Consumer Credit Act 1974 to a copy of the credit agreement that you signed with HFC. Although Cabot does not have an obligation under section 77 and/or 78 of the Consumer Credit Act 1974 to supply this information, Cabot will assist the original lender and customers in providing this information.

We have made several urgent requests to HFC to forward any documentation relation to your account to us. Unfortunately, Cabot has not received documentation due to a delay in retrieving this information from their archives. We shall, however continue to pursue this information and on receipt of the requested documentation, shall forward to you accordingly.

Please be advised, that the failure to provide a copy of your agreement in time does not affect the legality of your debt with the Cabot Financial Group but merely renderes the credit agreement unenforceable until such tim the agreement can be produced. As aforementioned, Cabot does not ahave a duty to provide this information and therefore section 78 of the Consumer Credit Act does not apply to us. As a gesture of goodwill, Cabot has and shall cease any collection activity until such time the credit agreement is supplied to you.

With regards to your subject notice under section 10 of the Data Protection Act 1998 ("DPA"), section 10(1) of the DPA states:


"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 specifiedd purpose or in a specifried manner, any personal data in respsect of which he is the data subject, on the graound, for specified reason -

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

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

Section 10(2) of the DPA states:


"Subsection (1) does not apply

(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or

(b) in such othert cases as may be prescribed by the Secretary of State by order."

I refer you attention to paragraphs 1 to 4 of Schedule 2 of the DPA which states:

Conditions Relevant for purposes of the First Principle: Processing of any Personal Data
1. The data subject has given his consent to the processing.

2. The processing is necessary

a. For the performance of a contract to which the data subject is a party, or

b. For the taking of steps at the request of the data subject with a view to entering into a contract

3. The processing is necessary for compliance with anhy legal obligation to which the data controller is subject, other than an obligation imposed by contract.
4. The processing in order to protect the vital interests of the data subject."

You shall note that section 10(2)(a) of the DPA the words "any of the conditions" and paragraph 1 and 2 of Schedule 2 of the DPA are entirely relevant to your case. As you signed a credit agreement which has been assigned to Cabot Financial (UK) Limited, of which the terms we are entitled to enforce, section 10(1) of the DPA does not apply to you circumstances.

I trust I have set out our position clearly.

RAS

[quote]Please be advised, that the failure to provide a copy of your agreement in time does not affect the legality of your debt with the Cabot Financial Group but merely renderes the credit agreement unenforceable until such tim the agreement can be produced. [/quote]

Roughly translated - we know that we cannot chase you for the money again until,the CCA is produced.

With respect to the DPA

As you signed a credit agreement which has been assigned to Cabot Financial (UK) Limited, of which the terms we are entitled to enforce, section 10(1) of the DPA does not apply to you circumstances.

i would suggest that since they have no evidence that you ever signed a Consumer Credit Agreement section 10(1) is applicable and suggest you take advice from the Information Commisioner on this - not a complaint - take advice, preferably in writing enclosing a copy of the letter you received

GeorgeUK

The main point of their letter is

Cabot has and shall cease any collection activity until such time the credit agreement is supplied to you

You shall note that section 10(2)(a) of the DPA the words "any of the conditions" and paragraph 1 and 2 of Schedule 2 of the DPA are entirely relevant to your case

As for the legaleese, they are basically saying that section 10 of the DPA does not apply to them as section 2, paragraphs 1 and 2 apply.

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

This consent would be on the CCA - which doesn't appear to exist.

2 The processing is necessary—
(a) for the performance of a contract to which the data subject is a party, or
(b) for the taking of steps at the request of the data subject with a view to entering into a contract.

a) the CCA would be the contract - no CCA, no contract.
b) you are not entering into a contract with them so this does not apply.

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.
(2) Subsection (1) does not apply—
(a) in a case where any of the conditions in paragraphs 1 to 4 of Schedule 2 is met, or
(b) in such other cases as may be prescribed by the Secretary of State by order.
(3) The data controller must within twenty-one days of receiving a notice under subsection (1) (“the data subject notice”) give the individual who gave it a written notice—
(a) stating that he has complied or intends to comply with the data subject notice, or
(b) stating his reasons for regarding the data subject notice as to any extent unjustified and the extent (if any) to which he has complied or intends to comply with it.
(4) If a court is satisfied, on the application of any person who has given a notice under subsection (1) which appears to the court to be justified (or to be justified to any extent), that the data controller in question has failed to comply with the notice, the court may order him to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.
(5) The failure by a data subject to exercise the right conferred by subsection (1) or section 11(1) does not affect any other right conferred on him by this Part.

As you signed a credit agreement which has been assigned to Cabot Financial (UK) Limited

Who says you signed a credit agreement, or that one even exists?

of which the terms we are entitled to enforce,

There would be terms if there was a CCA, but there isn't so there are no terms to enforce

section 10(1) of the DPA does not apply to you circumstances

Really?

10(1) Subject to subsection (2),

We've already looked at that and there is proof of no consent or contract.

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.

So by writing to them you can ask that you data not be processed, or removed from their system if
a) These leeches having your details and contact information may cause distress? Yup, i think so.
b) they don't have a good reason for causing the distress. Hmm, they are chasing you for payment of a debt... which they can't actually prove you owe. Is this "unwarranted"?

Basically they are trying to justify their chasing the debt, but seem to be failing. From what they have put though, it seems they intend to keep your details on record and you may be hearing back from them. Probably in a year they will try again hoping you have forgotten about these letters and the CCA request so keep a hold of all correspondence you have sent and received.

lolly222

Thanks for your help. Thought that was probably the case but wanted to make sure I hadn't missed anything!