Cabot/FIRE/MSDW

[PlanB]

Re: Cabot/FIRE/MSDW

The whole point of the CPUTR letter is that you are demanding a declaration from them that they actually hold a fully enforceable fully compliant original agreement. This NOT to ask for a copy merely a declaration one way or another. To lie or mislead is an offence under these regulations

From what you have said above they have not complied with a perfectly legal demand. Reading back quickly they don't seem to have actually provided anything have they?

I clearly haven't understood the creditor's legal obligations under a CPUTR request

If Cabot has blatantly admitted (i.e. made a declaration) to C in that letter that they are not holding the original CCA why haven't they complied with the request ?

[garlok]

Re: Cabot/FIRE/MSDW

They have said that they have no legal obligation to hold it, which is in fact untrue. they do have an obligation under CCA1974 to have the relevant documentation to support any threat of litigation.

Under CPUTR they are not allowed to mislead and in this case they clearly are attempting to mislead. If they had shut up at the point of admission then it may just have been considered compliant but on the fringes. However not having it is an admission that they cannot enforce so in trying to hide that fact they go on to commit an offence. Simple.

regards
Garlok

[PlanB]

Re: Cabot/FIRE/MSDW

So it's a double whammy for Cabot.

1. They have misled and threatened a debtor with legal action to carry out something which they are not able to achieve in court, and so have comitted an offence under CPUTR, and

2. They have shot themselves in the foot (with C's help) by the admission that they don't hold the original CCA which means they can't enforce in court under s127 CCA 1974 (not even with a good recon?).

Have I got that right now

[garlok]

Re: Cabot/FIRE/MSDW

In effect yes. The only problem as we have discussed elsewhere is that there are no real sanctions against the transgressor under the CPUTR by the consumer, only the regulator (OFT) can bring such actions.

Personally I see the CPUTR's real benefits to the consumer directly in two ways.

1. Many times the creditor will back down at the thought of having to make such a clear statement and the thing goes on hold if they do not have documentation.

2. It is a very good piece of evidence to present to the court in your defence whatever they turn up with if it ever gets that far. They place themselves in a cleft stick.

Priority One is a real expert on CPUTR and it is worth while for a broader picture reading up on her posts. She has had good successes with making crditors or their agents back down from any court action.

regards
Garlok

[cymruambyth]

Re: Cabot/FIRE/MSDW

Yep, spot on Mr G.

As a result of their admitting they've never held the original agreement; means they're unable to pursue this via court as you still need the original document to rely on: if it ever got to court.

I'd be sat back with a wee glass of something right now; I'd most definitely not worry

That was my interpretation, however, having dealt with Cabot before, I wouldn't be at all surprised if they follow up with a claim form

[Undercover Elsa]

Re: Cabot/FIRE/MSDW

They are rather persistant aren't they? I just checked and I've had 121 calls from them in the last 12 weeks. Is that a wee bit OTT? All blocked off course. No letters, just calls for a very measly debt.

[cymruambyth]

Re: Cabot/FIRE/MSDW

I must have had abut 6 letters saying that they won't communicate with me any more!

[Riz]

Re: Cabot/FIRE/MSDW

That was my interpretation, however, having dealt with Cabot before, I wouldn't be at all surprised if they follow up with a claim form

They may try the "s127(3) only requires that an an agreement was signed" argument. i.e. doesn't say that it must be produced in court. Just evidence to support that one was.

OFT on Carey made that look more plausible on the surface.

http://www.oft.gov.uk/shared_oft/bus...it/OFT1272.pdf

2.19 Often consumers and their advisors assume that if a signed copy is not provided by the creditor or owner, this necessarily means that the agreement cannot be enforced: either on the basis that section 77(1), 78(1) or 79(1) (as the case may be) has not been complied with, or in reliance on section 127(3) (in the case of agreements to which that subsection still applies).

This overlooks the fact that there is no obligation on an information request to provide a copy which includes a copy of the signature.

It also overlooks the fact that section 127(3) does not apply merely because a signed document is not available at the court hearing; the section requires that a document containing the prescribed terms 'was' signed by the debtor or hirer. The creditor or owner may be able to provide evidence that its practice was always to require a signature to its agreements and that its agreements always complied with section 61(1)(a) of the Act and the debtor or hirer may be unable to satisfy the court that he or she did not sign an agreement.

Not saying I agree with the above opinion, but who knows whether a judge would agree.

[Never-In-Doubt]

Re: Cabot/FIRE/MSDW

That was my interpretation, however, having dealt with Cabot before, I wouldn't be at all surprised if they follow up with a claim form

And when they see the solicitors name on your defence form they'll think again!

Paul "loves" playing with Cabot.

[Never-In-Doubt]

Re: Cabot/FIRE/MSDW

Rizzle then surely to alleviate that we all deny ever receiving an agreement and put them to strict proof meaning they'd then require an original.

Not saying to do that but it's the first thing that pops into my head

But yes judges will revert to carey unfortunately however we rely on Paul to confirm if there's a defence or time to settle so not all doom and gloom (yet)!

[Riz]

Re: Cabot/FIRE/MSDW

And when they see the solicitors name on your defence form they'll think again!

I think that is becoming true for a wide range of DCAs. :

Paul "loves" playing with Cabot.

And beating them.

[cymruambyth]

Re: Cabot/FIRE/MSDW

Rizzle, I know 1 local DJ who would agree with that view, however I feel that the " Paul" factor could even help him in his interpretation of the law.

[Never-In-Doubt]

Re: Cabot/FIRE/MSDW



@ fizzle

[cymruambyth]

Re: Cabot/FIRE/MSDW

Sorry, technical problems with hand eye co-ordination

[Riz]

Re: Cabot/FIRE/MSDW

Yep. As said, I'm not saying I agree with that.

And yes, "Paul" or a certain legal firm would likely run rings round any argument based on it.

But Cabot won't know that until a responce to a claim, so they may think they can chance their arm in court at first.