Cabot Financial - Final Response

fishezuk

Hi, I wonder if someone can provide me with some clarification!

With regard to a credit card debt bought by Cabot from MBNA I have sent the usual template letters prohibiting doorstep visits and claiming that the debt is unenforceable as the credit argreement was not correctly administered by MBNA - no lender signature etc.

I have received a final statement from them and here is the overview.

They Say: The credit agreement was not administered properly by MBNA but as there are statements showing use of the credit card it is enforceable and if i do not pay they will reinstate debt collection including doorstep visits.

I Say: If the contract was not correctly administered it is not legally enforceable and they cannot reinstate doorstep visits as it is my legal right (irrespective of the debt) to insist that doorstep visits are not made.

So three questions if anyone can help. 1) Who is right? 2) How can I respond 3) if i am right who has the legal power to decide - do i take them to court? do i wait for them to take me to court? do i contact the FSA/OFT and what power would they have?

I would appreciate any response to this as I am getting confused as to where to go next.

Many Thanks

John

fermi

When was the card first taken out?

Do they have a CCA signed by you? Doesn't matter whether MBNA signed it I'm afraid.

fishezuk

Yes was signed by me. 3/4 years ago. But terms and conditions illegible on separate sheet.

fermi

fishezuk wrote: »

3/4 years ago.

Before or after April 6th 2007?

bargainbetty

If you refuse doorstep visits, that remains in place. Whatever the circumstances of the debt, you still have a right to refuse their appointments and to deal with them in writing.

Whatever happens, make a note of that in every letter to them - their staff have had their common law right to 'presumed consent' withdrawn, and that will not change without your permission.

Good luck x

fishezuk

Thanks both of you. The start date was 4/7/2003 the 'default date' 3/8/2007.

fermi

What exactly is wrong with the agreement?

PNPSUKNET

they cant enforce via the courts, however your credit file is going to be trashed for a few more years and they can still chase you and sell it on

fermi

PNPSUKNET wrote: »

they cant enforce via the courts,

Not necessarily true. Depends on exactly what is wrong with the agreement.

The example give in the first post was "no lender signature". That in itself doesn't prevent a court enforcing such an agreement.

fishezuk

Here is the letter / grounds I complained on:

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY
In this letter there are a number of points I would like to raise:
Regarding your proposed doorstep visit
Further to my previous letters (the contents of which have clearly been ignored!) I will ONLY communicate with you in writing. I have noted your repeated attempts to contact me and these have been logged for future reference.
As it is your intention to arrange a doorstep visit please be advised that under OFT rules you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.
There is an implied license under English Common Law for people to be able to visit me on my property without my express permission; the postman and people asking for directions etc. (Armstrong v Sheppard & Short Ltd. [1959] 2 QB 384 per Lord Evershed M.R.) Therefore take note that I revoke license under Common Law for you or your representatives to visit me at my property and if you do so you will be liable to damages for a tort of trespass and action WILL be taken including but not limited to police attendance.


Regarding the Account – Why I consider that it is still in dispute
I WOULD LIKE TO REPEAT THAT I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY AND STILL REQUIRE YOU TO SUBSTANTIATE THIS BEFORE I CORRESPOND FURTHER!
Can I remind you (in addition to the points made above) that you as the creditor you are not permitted to take ANY action against this account whilst it is in dispute and therefore you may not demand nor am I obliged to offer any payment to you, you may not add further interest or charges and you may not pass the account to a third party.
Furthermore, I have documentary evidence (in the form of my letter to you on 19th August 2009) clearly stating that I would only correspond in writing regarding this account and that any telephone calls or personal visits will be viewed as harassment. Therefore, should you take ANY further action on this account other than that in writing I will without further notice make a complaint to the Office of Fair Trading and the Information Commissioner as appropriate.
Please let me state very specifically why I consider that the account is still in dispute to enable you to address these points and hopefully achieve a mutually acceptable resolution to this issue.
You have failed to respond to my legal request to supply me with a true copy of the original Consumer Credit Agreement for this account. I made a formal request for a true signed agreement for the alleged account under the Consumer Credit Act 1974 (s.77 – s. 79).
The document that you are obliged to send me is a true copy of the executed agreement that contains all the prescribed terms, all other required terms and statutory notices and was signed by both your company (there is no signature for the lender on the documents supplied!) and myself as defined in s.61(1) of the CCA (1974) and Subsequent Stautory Instruments.
This is further confirmed on the Office of Fair Trading Website where it states:
‘Both the borrower and the lender must sign the agreement. A copy of the executed agreement must be given to the borrower, either when he signs it or within seven days. A further copy of the unexecuted agreement may also need to be provided. If the agreement is cancellable (because it was signed off trade premises), notice of cancellation rights must be included in the copy agreement, and must also generally be sent by post or email to the borrower within seven days.
If the above requirements are not met, the lender can only enforce the agreement against the borrower by getting a court order. Local authority trading standards services or the OFT can take enforcement action against the lender, using powers in Part 8 of the Enterprise Act 2002.’
In addition, as you are no doubt aware, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI/1557) states:
2. Legibility of notices and copy documents and wording of prescribed Forms
(1) The lettering in every notice in a form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable for the [background medium upon which the information is displayed].
Similarly, the Consumer Credit Act 1974 s.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. Therefore this account has become unenforceable at law”.
In addition, the documents I received appear to be an illegible photocopy and a separate ‘copy of the current terms and agreement’. The prescribed terms as required by section 60(1) Consumer Credit Act 1974, are not at all visible and therefore the documents provided do not constitute a ‘true copy’.
Clearly, it is in both parties interest to avoid taking legal action. However, please be advised that should you choose to do so it will be both vigorously defended and contested. Furthermore, I shall counter-claim that any such action constitutes unlawful harassment. I am currently awaiting an appointment with a local solicitor in order to protect my legal rights in this matter should it be necessary.
I shall both email and send this letter by secure post and would request that you acknowledge:
1) Receipt of this letter / email
2) Confirmation that you will take no further action on this account until the above issues are resolved
3) Confirmation that you will only communicate in writing not by telephone, personal visit or any other method of communication as requested (again) by myself.
As you are proposing to visit on 14th May 2010 I would appreciate acknowledgment of the above points by Wednesday 12th May 2010 at the latest. Should I not receive these clarifications by this date I will take further action that I consider appropriate to protect myself from unwanted visits or telephone calls.
I look forward to your response and am still hopeful of a mutually acceptable resolution to this matter.

DarkConvict

CCA asks for a true copy, true copies can omit the signatures and date.

https://forums.moneysavingexpert.com/discussion/2532927

Q. I know what linked means, but what exactly does it mean with regards to the agreement needing to be linked with prescribed terms?
A. The prescribed terms should be on the signatory page, therefore if you were sent an application form, the prescribed terms will not be on the same page as the signature (i.e. your signature). As such there should be a link to a separate page or additional terms.

What is actually needed - http://forums.moneysavingexpert.com/showpost.html?p=33792793&postcount=59

Details like your address do need to be correct, it should be the address it was taken out at, not the one you currently live at.

The regulations state:

(2) There may be omitted from any such copy-
(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;
(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

http://forums.moneysavingexpert.com/showpost.html?p=30356103&postcount=13