Received court claim for a statute barred debt (Cabot / Mortimer & Clarke)

PirateAndy

Grumpelstiltskin said:

Your big problem is you didn't complete the form that was included with the letter you received in the summer. At that point if you had sent the completed form back and asked for  further information and proof of the debt if Cabot couldn't produce it there would be no court hearing.

This is indded a road not taken scenario now. Had I known to look out for a reply form rather than specific wording on the letterhead I would've responded then.

Alas here we are. But I am confident they will not be able to produce the original signed credit agreements required.

PirateAndy

sourcrates said:

I do agree it would have been better all round to have avoided this going to court, but that is by the by, and we are where we are now.

I think the defence (posted above) is good, one thing I would say is that the court doesn't expect you to have legal knowledge or training, as you are a layman, your defence should reflect that, keep it simple and to the point.

Its quite possible once they are aware of your defence, they may throw in the towel, and not pursue this any further.

Well I'm hoping so. Though this is why I've also sent the relevant CPR and CCA letters recommended by Legal Beagles. I'm confident no legally binding documentation exists within their records for these old debts.

As far as I'm aware they have to produce the original signed agreement documentation or copies thereof to enforce a debt. Though please tell me if I'm wrong.

sourcrates

PirateAndy said:

As far as I'm aware they have to produce the original signed agreement documentation or copies thereof to enforce a debt. Though please tell me if I'm wrong.

A re-constituted copy of a credit agreement is perfectly acceptable, this has been tested in court many times previously.

They do not have to provide the exact original piece of paper, and no where in the legislation does it say a signature is required.

The copy they do provide must be populated with information already held on the companies own systems, if its not there, they cannot simply make it up.

And if they do re-constitute it, they must tell you so.

PirateAndy

sourcrates said:

PirateAndy said:

As far as I'm aware they have to produce the original signed agreement documentation or copies thereof to enforce a debt. Though please tell me if I'm wrong.

A re-constituted copy of a credit agreement is perfectly acceptable, this has been tested in court many times previously.

They do not have to provide the exact original piece of paper, and no where in the legislation does it say a signature is required.

The copy they do provide must be populated with information already held on the companies own systems, if its not there, they cannot simply make it up.

And if they do re-constitute it, they must tell you so.

Well on Legal Beagles they have stated the following:

"Yes, you have 4 accounts, 1 x credit card, 3 x loans, it's o.k. for them to have the one claim, but there are 4 accounts, what if they have one agreement and not the other three? (It's a very, very long shot that any of those agreements exist, even if they do they may have to provide 'True Copies' because they were taken out in 2004. So they can't 'reconstruct' them from different data they hold. "

So now I have two conflicting piece of info on two different forums I trust for these types of things.

Though I am leaning towards Legal Beagles being more in the know tbh.

But in-so-far as this discussion goes: What does 'reconstituted' mean legally? 

ManyWays

I suggesting sticking with Legal Beagles, they deal with this sort of things a lot

sourcrates

PirateAndy said:

Well on Legal Beagles they have stated the following:

"Yes, you have 4 accounts, 1 x credit card, 3 x loans, it's o.k. for them to have the one claim, but there are 4 accounts, what if they have one agreement and not the other three? (It's a very, very long shot that any of those agreements exist, even if they do they may have to provide 'True Copies' because they were taken out in 2004. So they can't 'reconstruct' them from different data they hold. "

So now I have two conflicting piece of info on two different forums I trust for these types of things.

Though I am leaning towards Legal Beagles being more in the know tbh.

But in-so-far as this discussion goes: What does 'reconstituted' mean legally? 

This is, once again, a bit of a myth/common misconception.

In the Carey v HSBC case it was established that a reconstituted copy was enough to satisfy a s.77-79 request and the Carey case actually related to a pre-2007 agreement.

S.77-79 of the CCA has not changed in any way since 2007, it was s.127(3) of the CCA that was repealed with effect from April 2007.

S.127(3) prevents a court from enforcing a debt unless there was a proper agreement containing all the prescribed terms to start with, i.e. at the time you opened the account. It had nothing to do with information requests or reconstructed agreements.

So yes, the Carey case confirms a recon satisfies a CCA request, but the recon copy has to be honest and accurate, for example, it has to include the terms that were in force at the time you opened the account and any variations made after that.

They can only populate it with information already held on their own systems, if they don`t hold such information, they cannot simply make it up.

If you search Legal Beagles you will find the poster you quote above was found to be incorrect in their assumptions, for the reasons stated above, its a common mis-understanding as I said earlier.

PirateAndy

sourcrates said:

PirateAndy said:

Well on Legal Beagles they have stated the following:

"Yes, you have 4 accounts, 1 x credit card, 3 x loans, it's o.k. for them to have the one claim, but there are 4 accounts, what if they have one agreement and not the other three? (It's a very, very long shot that any of those agreements exist, even if they do they may have to provide 'True Copies' because they were taken out in 2004. So they can't 'reconstruct' them from different data they hold. "

So now I have two conflicting piece of info on two different forums I trust for these types of things.

Though I am leaning towards Legal Beagles being more in the know tbh.

But in-so-far as this discussion goes: What does 'reconstituted' mean legally? 

This is, once again, a bit of a myth/common misconception.

In the Carey v HSBC case it was established that a reconstituted copy was enough to satisfy a s.77-79 request and the Carey case actually related to a pre-2007 agreement.

S.77-79 of the CCA has not changed in any way since 2007, it was s.127(3) of the CCA that was repealed with effect from April 2007.

S.127(3) prevents a court from enforcing a debt unless there was a proper agreement containing all the prescribed terms to start with, i.e. at the time you opened the account. It had nothing to do with information requests or reconstructed agreements.

So yes, the Carey case confirms a recon satisfies a CCA request, but the recon copy has to be honest and accurate, for example, it has to include the terms that were in force at the time you opened the account and any variations made after that.

They can only populate it with information already held on their own systems, if they don`t hold such information, they cannot simply make it up.

If you search Legal Beagles you will find the poster you quote above was found to be incorrect in their assumptions, for the reasons stated above, its a common mis-understanding as I said earlier.

But they still need the data of the agreement to be held on a system they have access to otherwise it's unenforceable.

The example you cite appears to be a direct court case between an individual and a bank itself. So it stands to reason they will have access to old agreement terms. I find it highly doubtful Cabot (as a third party debt collector) will have the same type of information accessible as they took this on in 2020. Many years after the original defaults occurred. They will not have access to NatWest's information / data repository as they washed their hands of this years before that. Back in 2016.

You appear to be comparing apples to oranges.

sourcrates

I apologise for not explaining more clearly how a CCA request for information, under s 77-79 works, so for the avoidance of any doubt, please allow me to explain further.

None of the debt purchasing companies ever holds the credit agreements for the debts they purchase, that information is always retained by the original creditor, in every case, period.

So when companies such as Cabot/Lowell/PRA Group etc, whoever they might be, receive a CCA request for a debt they have purchased, they must always refer the matter back to the original creditor whose job it is to then either fulfil that request, if they can, or to confirm they cannot do so.

The debt purchasing company has a duty to pass the request on to the OC, and that is the fullest extent of their involvement, the responsibility of fulfilling your CCA request lies with the original creditor not the new owner, and always has done with purchased debt.

This process has not changed since the consumer credit act was brought into law in 1974, a recon agreement is, and always has been acceptable, confirmed by Carey v HSBC, as long as it fulfils the criteria already stated previously.

I hope that clarifies matters for you.

ManyWays

sourcrates said:

None of the debt purchasing companies ever holds the credit agreements for the debts they purchase, that information is always retained by the original creditor, in every case, period.

I am not sure it is that black and white. Sometimes a book of debts is sold with the purchaser taking on all the rights and responsibilities of the original lender. Sometimes a book is sold complete with CCA agreements. Sometimes a book is sold with the right to request a CCA agreement. Sometimes a book is sold with no right to request a CCA agreement. 

But this makes no difference to the borrower, as they are not told which of these applies. So you ask the debt purchaser for the CCA agreement and see what they reply. Sometimes the CCA agreement comes straight back. Sometimes you are told that a CCA agreement cannot be produced. Often, you are told that the creditor has asked the lender for the document.

sourcrates

Well the question was "What does reconstituted mean legally" and that has now been answered.