Barclaycard /Cabot bulls**t

[joe1965]

Barclaycard sold my account onto Cabot who sent the usual threats and annoyed me with their phone calls.

So I CCA'd them and also sent the telephone harassment letter, a few days later I got these responses:

I replied with this letter;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your letters dated *********, the contents of which are noted.

 

You attention is drawn to the fact that this account is subject to a serious dispute. On ******, I requested Cabot Financial supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date Cabot Financial have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], 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,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(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; and

(b) if the default continues for one month, he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

Clearly this is a situation as described in s78 (6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1) (a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced.

 

 

 

 

 

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as Cabot Financial become compliant with my request. As Cabot Financial do not comply with my request I insist that the following takes place with immediate effect

• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until Cabot Financial comply with my request from ********or such time as a court makes an enforcement order
  

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence, I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement does not exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must provide to me within 21 days a detailed breakdown of your reasoning behind continuing to process my data.

It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

 

 

I must also point out misconceptions in the letters sent by you on the *********. As a debt collection agency holding a credit license you are required under the Consumer Credit Act to provide the information required and to state you are under no obligation to provide it (**********) is false and is against The Administration of Justice Act 1970, section 40 which has not (as you state in your letter of 15th December 2008) been repealed.

Copies of both letters with a formal complaint under the Administration of Justice Act have been sent to and accepted by The Office of Fair Trading.

In addition, your letter of the ******** stated you are waiting for the information from the original lender. As stated in earlier correspondence from you, you are now the owner of this debt and as such, this information should be in your possession before you try to demand payment for the alleged debt. This has also been brought to the attention of The Office of Fair Trading.

 

I trust this outlines the situation

 

Regards

 

To which I had this reply today;

 

I am thinking of replying with the letter below,

 

I refer to your letter dated **********, the contents of which are noted.

 

The object of this letter point out errors that are contained in your correspondence concerning your position.

 

You stated that you purchased the debt from ****** on *******.

 

However, you are contending that you purchased the rights but not the duties of the agreement. In the case of an absolute assignment, you are a creditor as defined by section 189. of the Consumer Credit Act 1974. As such, you are obliged to provide the credit agreement under sections 77-78 of the Consumer Credit Act 1974. Section 189 of the Act is clear that an assignment is of both rights and duties.

 

I also issued you with a subject notice under section 10 of the Data Protection Act.

The response from you is that you are entitled to enforce it as I signed a credit agreement that has been assigned to you. The only problem with your statement is that you do not have a credit agreement signed by me in your possession or yet been able to provide one from Barclaycard. The assumption that there is a signed credit agreement is not a good enough reason for you to refuse the subject notice.

My subject notice under section 10 of The Data Protection Act is a valid and legal request, which you will comply with until you can provide a valid signed credit agreement. Any processing of my data by you, and I will report it to the Information Commissioner

 

Section 40 has not been repealed as you mistakenly state, only amended to comply with CPUTR 2008’

(3A)Subsection (1) above does not apply to anything done by a person to another in circumstances where what is done is a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008 and the other is a consumer in relation to that practice.

Only Parliament can repeal acts of law, not Debt collection agencies.

However, as the letter was regarding your telephone harassment, it also come under the Protection from Harassment Act 1997 and section 127 of The Communication Act (2003)Temporarily removing my number from your records is not what I asked for or require. ANY telephone calls from you will regarded as harassment and will be reported to the relevant authorities!

Has anyone got any comments or ideas on how it could be improved?

[42man]

Funny how they quote the Data Protection Act especially in light of this case - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115280-useful-information.html