Morse's Unenforceability Diary

[Morse]

NW, thank you, it means more than you could know.
Xxx

[Morse]

Morse: Debt Number Five
Type of Account: Halifax Credit Card
Date Commenced: December 2007
Approx Balance: £800
Date Last Paid in Full: 2010
Current Arrangement: Not paid anything for around 6 months
Status: Defaulted
Account Owner: MFS Portfolio
(Managed by Cabot)

April 2018 - I wrote (emailed) Cabot to update them on our circumstances and offer a settlement figure. It was a low offer funded by my bother. Cabot refused.

(August I found AAD)

07/09/2018 - I sent Cabot a request under Section 77/78.

13/09/2018 - Cabot respond with a letter:

Unfortunately we currently do not have the relevant information on file, so we will be requesting a copy of the credit agreement and terms and conditions from your original lender, as well as a statement of your account. This may take some time, but we will write to you within the next 12 days with an update.

This one is in my husband's name. We got it to pay the gas bill!

I didn't realise this wasn't owned by Cabot until I did the Section 77/78 request, I've never heard of MFS.

Does anyone know who they are?

Many thanks, Morse

[Roger]

MFS Portfolio (part of what was Marlin Group which was taken over by Cabot)
Cabot are the Managers.

This is the Financial Conduct Authority entry which shows that their Authorisation has been Cancelled from 24/04/2015
http://fca-consumer-credit-interim.f...w?accId=572895

Make a note of this in your Diary and file a copy of that FCA entry away!!

Whilst the S 77/78 is outstanding this is Unenforcible..
Post up any communication you receive from Cabot.

[Morse]

MFS Portfolio (part of what was Marlin Group which was taken over by Cabot)
Cabot are the Managers.

This is the Financial Conduct Authority entry which shows that their Authorisation has been Cancelled from 24/04/2015
http://fca-consumer-credit-interim.f...w?accId=572895

Make a note of this in your Diary and file a copy of that FCA entry away!!

Whilst the S 77/78 is outstanding this is Unenforcible..
Post up any communication you receive from Cabot.

Hello Roger, thank you for taking the time to reply. I've seen many of your posts and I'm grateful for any input or experience that you share. I'll be sure to make a copy of that. We're currently not paying anything on this account so it will be interesting to see what Cabot do next. I'm a little frightened to annoy them on this one as it's relatively small. However, I think I can ignore them until /unless they can respond to the S77/78
Thanks again

[Morse]

Morse: Debt Number Six (included for completeness but it is statute barred)

Type of Account: Egg Credit Card (hubbies)
Date Commenced: 2002
Approx Balance: £2,000
Date Last Paid in Full: 2008
Current Arrangement: Not paid anything since September 2010
Status: SB
Account Owner: Cabot

Cabot had this account in 2010, I sent them a Section 77/78 request in November 2010. They could not respond with anything, they wrote every so often to say they were still looking but I never restarted any payments. I haven't acknowledged the debt in any way for 8 years.

After I wrote offering settlement on our other accounts (this one was not included as I referenced each account), in their email response they listed this debt with a 50% settlement offer (pffft). They said it had just been sent back from another agent.

My brother definitely settled an egg loan in early 2011. I have every reason to believe this account was included in that settlement.

I also had an egg card which I believed had been settled. With no prompt Cabot wrote to me in 2016 to say after a review they had decided to write this one off and close the account. It was also SB by then but I appreciated the gesture!

[Warwick65]

Hi
I have to say , out of all my dealings with many different debt collectors and purchasers , I have to say i have found cabot to be the most reasonable. In the past they have told me debts are unenforceable when they could not supply the CCA and have let them go Statute Barred.

Having said all that cabot do seem to have had some trouble with all the relatively recent acquisitions and mergers and their failed flotation on the stock market. I think Di may have a few words to say on Cabot Financial (UK), The whole Cabot empire is made up of companies who own companies who own companies and is quite convoluted

It is quite important to be able to follow the chain of the debt , not necessarily who is collecting but who actually owns it and when any transfer takes place. I am not a lawyer so wouldn't like to comment on who can collect and who can't and in any event the arguments are often complex and not for the litigant in person should it get to court.

Clearly your most serious debt is the Northern Rock which i am sure Di can offer help with

[Morse]

Morse: Debt Number Seven (included for completeness and in case it's helpful for other members)

Type of Account: HSBC MLA (loan)
Date Commenced: 2009
Approx Balance: £12,000 (allegedly)
Date Last Paid in Full: 2011
Current Arrangement: Not paid anything since 2014
Status: Not acknowledged
Account Owner: Arrow Global

This one is different. When our troubles started in 2009, we had overdrafts, a partly paid off loan and credit cards with HSBC. The interest on it all was ludicrous and I wrote a complaint to the then Chief Executive a chap called Paul Thurston. This was because we knew we were going to have problems in 2008, we contacted the bank at that point and they said there was nothing they could do until we actually got into arrears. We ended up with a Managed Loan Account.
Originally for around £24,000. When we couldn't afford the monthly payments it went to Metropolitan. We had a reduced payment but that also became unaffordable in 2014. This was a period where I ignored everything for a while.
In October 2015 I tackled some post and found a letter from Wescot. I called Wescot but they said they had passed the account back to HSBC. I phoned HSBC and spoke at length to 'Hector' in recoveries. He told me that we had no other accounts with HSBC other than our mortgage. I asked if it had been sold on and he said no. I asked for that in writing, he said he couldn't do that but there would be a record of our conversation (both a recording of the conversation and his notes). We were on the phone around 40 mins while he rang round other departments. This was October 2015.

March 2017 - Letter before Claim received from Restons.

I called Restons and told them I did not acknowledge the debt. I gave then the history and told them HSBC had written the debt off. Of course, they didn't believe me! They said if I didn't respond to the LBA that the claim would be issued. I demanded to speak to a manager. A chap called me back, I said I needed to see proof that Arrow owned the debt because as far as I was concerned they had got this out of the bin. I told him a court would require this anyway and that I was trying to avoid wasting the courts time. He was very reluctant and kept saying I had to pay and how it seemed unlikely that HSBC would write it off. But when I asked him to tell me what their complaints procedure was, another chap came on the phone. He told me that Arrow had purchased the account on a certain date. (This date was 4 days after I had spoken to Hector). I told them to give me proof so that I could approach HSBC and ask them what was going on. The chap started going on about how I had no right to see any paperwork between their client and HSBC. I said that was ridiculous - and that I thought was I was asking for was entirety reasonable and therefore I wanted to make a complaint under their complaints procedure. At that point, the chap gave in and said they would go back to their client and ask for the proof of the debt. He asked if that satisfied my complaint and I said yes.

Heard nothing else from Restons.

October 2017 - Letter from Capquest asking me to get in touch.
(Ignored)

On the MLA I never received a default notice. I've never had any statements from anyone. Arrow registered a default on my credit file dated July 2013. I haven't challenged it with them as I do not want to enter into any dialogue whatsoever.

I will fight this if anyone else gets in touch and of course I'll post it on here.

[Morse]

Hi
I have to say , out of all my dealings with many different debt collectors and purchasers , I have to say i have found cabot to be the most reasonable. In the past they have told me debts are unenforceable when they could not supply the CCA and have let them go Statute Barred.

Having said all that cabot do seem to have had some trouble with all the relatively recent acquisitions and mergers and their failed flotation on the stock market. I think Di may have a few words to say on Cabot Financial (UK), The whole Cabot empire is made up of companies who own companies who own companies and is quite convoluted

It is quite important to be able to follow the chain of the debt , not necessarily who is collecting but who actually owns it and when any transfer takes place. I am not a lawyer so wouldn't like to comment on who can collect and who can't and in any event the arguments are often complex and not for the litigant in person should it get to court.

Clearly your most serious debt is the Northern Rock which i am sure Di can offer help with

Hi Warwick
Thank you ever so much for your reply, I appreciate your input. I'm sure when I did the original CCA requests in 2010 it was off the back of someone with a username Warwick on another site. If that was you I'm grateful.
(I panicked though when some of the advice on the site got very peculiar and so I began making token payments.)

Yes Cabot have been good. I would much rather pay them off in some way than try to go another 6 years of not paying. But then I'm conflicted, at times when I've paid them over the years it's been at the expense of everything else. My house is literally falling apart.

Warwick, do you know if I should send the agreement on the Northern Rock loan to the Webmaster email address or should I wait to be asked? I'm really keen for some advice on the cancellation stuff.

Many thanks again.
Morse

[nightwatch]

I would send it to Niddy (webmaster emai) put your username in the title and if possable a link to the diary. xx

[Morse]

I would send it to Niddy (webmaster emai) put your username in the title and if possable a link to the diary. xx

Thank you NW I will do that. I'll post up any feedback .Xx

[Never-In-Doubt]

I’ve had a look at the NR agreement but being honest I don’t see much wrong with it. However, I just look for the obvious - the devil is in the detail and so by going through everything with a fine toothed comb you’ll find errors but then again so will Jo & Di, if there are any.

So I would maybe ask Di if she’ could take a look at it for you but regardless I’’d not be responding to CQ just yet.

Good luck.

[Morse]

I’ve had a look at the NR agreement but being honest I don’t see much wrong with it. However, I just look for the obvious - the devil is in the detail and so by going through everything with a fine toothed comb you’ll find errors but then again so will Jo & Di, if there are any.

So I would maybe ask Di if she’ could take a look at it for you but regardless I’’d not be responding to CQ just yet.

Good luck.

Hi Niddy
Thank you for taking the time to have a look and for coming back to me so quickly. I appreciate it. I'll wait and see if Di has any input
Best wishes and thanks again.
Morse

[Joanna Connolly Solicitors]

Thank you for taking the time to have a look and for coming back to me so quickly. I appreciate it. I'll wait and see if Di has any input

Hello

I'm happy to provide input.

Can you tell me which post has the history of this debt please (and re-quote it if possible). My apologies for not reading back through your whole thread.

If you want us to also look at your credit agreement you can email it to me using di@joannaconnollysolicitors.co.uk . There's no need to blank anything out and remember to include any Ts & Cs which they sent you.

Di

[Morse]

Morse: Number One

Type of Acc: Northern Rock Personal Loan
Date Commenced: October 2006
Approx Balance: £23,000
(£25,000 original amount, £34,000 total including interest)
Date Last Paid: June 2008
Current Arrangement: £1.00 pcm
Status: Defaulted
Account Owner: Marlin.
(Collections Agent Cabot)

Hello, this is my first time posting. I'm looking for some input please. I have 6 other outstanding debts so I'll create separate posts for those in the next day or so. This forum and its members are amazing, I gave up on forums years ago but then I came across you and I've been blown away by the dedication shown by many of your members. Thank you in advance - I am truly grateful for any help.

By way of background...

13/09/2013 - Sold to Marlin

(Between 2013 and April 2018 I spoke to Cabot over the phone on a couple of occasions, I received letters for review etc but I largely ignored them).

April 2018 - I wrote (emailed) Cabot to update them on our circumstances and offer a settlement figure. It was a low offer funded by my bother. Cabot refused.

(August I found AAD)

07/09/2018 - I sent a request under Section 77/78 for all our accounts owned by them.

13/09/2018 - Cabot respond with a covering letter, a copy of the signed Credit Agreement, a set of terms and conditions and a statement of the account. The covering letter states:
"We consider that the agreement is now enforceable and therefore we are entitled to obtain a County Court Judgement against you. However, we would prefer that you work with us to set up a repayment plan to settle your outstanding balance."

This is by far the largest of our debts, after taking this one I had to accept we had a problem and I haven't entered into a credit agreement of any kind since this one.

I remember taking a punt by applying because I didn't think we had any chance of being approved for the loan and I remember trying to cancel when the direct debit mandate came and I realised I couldn't afford the monthly payment. As I couldn't seem to cancel, they reduced the monthly repayment by a reasonable amount (the monthly repayment was £286 - I'm sure it was nearer £330 before). I think they must have removed my husband's name from the agreement at the same time because the agreement is very clearly in my name only and signed only by me. This is a relief, but I was very surprised as the loan was based on our joint income.

I was so surprised, that I tackled the filing cabinet in my cellar (I haven't opened it for around 10 years) I found the original. What Cabot have sent is a photocopy of the front of my agreement, but the terms and conditions are slightly different. Funnily enough the clause not in my terms and conditions seems to be in relation to joint applications as it states...
"If there is more than one borrower, references in this Agreement shall refer to each and every person who signed this Agreement and the liability of such person to us shall be joint and several so that each borrower is fully liable for the full amount due to us at any time."
Probably irrelevant but I guess Northern Rock realised it wasn't a good idea to use someone else's income for an agreement and then not refer to that person as its clear from this that the terms and conditions changed.

What I can't understand now (having spent every spare moment in the last two weeks reading about the CCA) is why I couldn't cancel the loan when I wanted to. It was not taken out in a branch or in person or anything like that. It was unsecured, for exactly £25,000 and must have been regulated by the the CCA (the signature box says so although, . I read about cases where people had loans as part of a Together mortgage and despite stating that they were covered by the CCA they were not). This loan was the only account we had with Northern Rock.

There is no reference whatsoever in the signed agreement, the terms and conditions or the letter confirming the money was in our account as to the ability/right to cancel the agreement.

Is this all correct?

Many thanks, Morse.

Update 23/09/18 - sent the agreement to Niddy at the webmaster email address.

After everything I have read, I believe this agreement was improperly executed because it was missing information on the right to cancel (S 60) I also beleve it is irredeemably unenforceable because it can't be rectified (there was no information in any of the original documents regarding cancellation either). Because it was pre 2007 a court cannot enforce it.
Fingers crossed anyway! I'll post Niddy's reply as soon as I get it.
Edit: oh no! I've realised, whilst it is definitely improperly executed, S127 isn't going to apply because I signed an agreement containing all the prescribed terms.

I guess the question I should be asking is whether there is a chance I can persuade a judge not to enforce it? Can the court choose not to enforce an improperly executed agreement even though there is a signed agreement containing all the prescribed terms (but not in the correct form)? I confused myself into thinking the omission of the cancellation clause was some sort of fatal error (because Parliament had laid down the requirements for regulated agreements and if they were not followed the consequences would be dire for the lender - even if it meant enrichment(? ) would occur - or words to the effect of).

This loan allowed me to delay the inevitable for a couple of years. Had I been able to cancel it when I knew I couldn't make the payments it would have meant financial ruin in 2007 rather than in 2009. All the loan actually allowed us to do was continue making payments on the other credit we had for two more years.

I may contact Di for a formal opinion. My brother says he'd rather pay to fight this than pay Cabot.

Any thoughts welcome and appreciated.

Correspondence received 24/09
Dear Morse

Were writing to you today to let you know your account has been moved to our Sensitive Support team as we understand you're going through a difficult time and we're here to help.

About our Sensitive Support Team

This is a dedicated team of specially trained people who are there to understand your situation and to offer you support when you need it.

Most importantly, the people you'll now be dealing with have a deep passion to help you and they want to make dealing with Cabot as easy as possible.

What Happens Next?

We'd like to understand your situation further so we can find the best possible solution for you and this account - rest assured we will never ask anything of you that either you can't afford or manage.

Please can you get in touch with us within 30 days of this letter, however is easiest for you. If we don't hear from you in this time we'll be back in touch.

We'll speak to you soon.

Yours sincerely

Debarah Green
Customer Operations Director

This is a rather lovely letter. Not sure how to approach.

Hello Di

Thank you for your reply. I've quoted the account here.

I'll email the agreement and the terms to you, I'd be very grateful for any input.

Best wishes, Morse x

[Joanna Connolly Solicitors]

Hello Di

Thank you for your reply. I've quoted the account here.

I'll email the agreement and the terms to you, I'd be very grateful for any input.

Best wishes, Morse x

Cabot say the account is with their "Sensitive Support Team" and you have not been sent a Letter Before Claim stating any intention to issue a court claim.

I'll reply to your emails next week (thank you for providing me with a correct phone number) but even if the credit agreement document were to be enforceable, there can be other reasons for a debt to be unenforceable in court.

I note you say the account was assigned (sold) to Marlin which may introduce assignment issues for Cabot.

Di