DoingMyBest's Unenforceability Diary

[The Tech Clerk]

Colin G Quinn

[DoingMyBest]

Hi all,

[EDIT: I remember now there are other forums here about Cabot UK, I'll get back up to speed on those. Advice still welcome!]


I lasted posted back in February 2020 (18 months ago). Since then, Nolans (Cabot UK's solicitors) have sent various demands for money, and a couple of documents demanding I tell them my precise income and outgoings. A couple of days ago two Sheriff's Officers delivered a Simple Procedure Notice of Claim to my home, saying they are suing me for the Lloyds and HBOS cards, totalling £2.8k. I have 3 weeks to respond. I've still got no way of paying.

Warwick65 says above,

"If it is Cabot financial uk then they are not authorised."

Can you give more detail please? If it is still the case, how do I fight it? I think I reply, immediately, to the Court that they are unauthorised to bring the claim? What law should I challenge them under?

Failing that, it looks like I have to make them an offer to pay something monthly (and somehow work out how), or ask for a Time To Pay order, going through the Court process. Presumably I'd then be liable for the court costs?

There's this warning on the Citizens's Advice pages re Scottish Courts:

> If you don’t admit the claim and want to dispute it, you, or a representative, has to go to court if there’s a hearing.

>Before that happens the sheriff will consider your case for disputing the claim. You should be aware that if you dispute the claim then later change your mind and settle the case you could end up paying huge expenses because the court may take the view that you should have settled it at the beginning of the case.

Thanks in advance,

DMB

[DoingMyBest]

Thanks!
DMB

[Timewilltell]

Just sit tight, I’m not up on Scots law maybe Di can advise?

[DoingMyBest]

Hi Timewilltell,

Thanks for the reassurance and advice! Nolans sent a letter yesterday, saying they "require settlement in full, or acceptable instalment proposals, within fourteen days... In the event that you fail to respond, then court proceedings may be raised against you." And threatening to add the fees. I think the key word here is "may". Importantly, they name their clients as Cabot Financial UK Limited, who, the Cabot thread on this forum explains, are unauthorised by the FCA.

DMB

[Timewilltell]

They will probably write to you at this stage it is no more than another will you pay request, if they were serious they’d say it a letter before claim and would have to provide you with a questionnaire form, others may be able to elaborate.
given I have been dealing with Cabot for a number of years now and have had solicitors letters which have come to nothing, I suspect it’s to make you feel scared, but stay strong and the great guys and girls on here will keep you safe.

[DoingMyBest]

[Also posted in the Cabot thread]

Hi all,

Cabot have sent me a letter saying they are "referring" my account to Nolans Solicitors, who "will want to speak to you within the next seven days where they will review your situation and help you to arrange the most suitable solution for you based on your circumstances".

DMB

[DoingMyBest]

Hi Di,

Many thanks for your advice here.

> send PRA a formal CCA Request

Already did! Sorry I'd not clearly expressed that above. They didn't supply the documents, but claimed they didn't need to. As you established, they do. Your precedent was established in English & Welsh law though, whereas I live in Scotland; Presumably if they press it, I'll have to read up on the cases and defend myself in court? Are they likely to follow the precedent or come to a different conclusion?

Also I was in England when I opened the account, if that affects things?

Thanks again,

DMB

[Joanna Connolly Solicitors]

NatWest/PRA

• Type of account: overdraft

• Date commenced: 1986

• Approx balance: £1,500

• Date last paid (approximate date you last made a FULL payment): 2018

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): Purchaser

Overdrafts are covered by s78 CCA so send PRA a formal CCA Request including the £1 statutory fee for this ex-NatWest overdraft from 1986.

PRA may tell you that overdrafts aren't covered but they'd be wrong if they did, as Jo explains here >

The claim against our clients in this case was for monies owing under a personal Current Account Overdraft. We lost at first instance before a District Judge in Peterborough County Court and appealed the decision before HHJ Walden-Smith sitting at Cambridge County Court.

The Appeal was successful yesterday. This is an important case because it confirms that consumers using the unenforceability provisions of the Consumer Credit Act 1974 can successfully defend claims for personal Current Account Overdrafts in court. In this instant case the Appeal court found the personal Current Account Overdraft agreement to be unenforceable pursuant to the Consumer Credit Act because of lack of evidence of compliance with the requirements of the OFT determination.

It was also accepted that Creditors must comply with S 78 Consumer Credit Act 1974 requests relating to personal Current Account Overdrafts, not just credit cards and loans. In this case the Appeal court did find that MFS Portfolio Ltd had complied with the S 78 Consumer Credit Act request. If they hadn’t complied with the statutory request then the personal Current Account Overdraft would have been unenforceable pursuant to s.78 (6) (a) Consumer Credit Act , which is contrary to the position creditors normally take.

The court also positively approved of the principle established in a European case ruling we put before the court that it is for the creditor to prove statutory compliance. The court did not appeove of the District Judge’s earlier decision in the lower court that our client not recalling something somehow reversed the burden of proof onto our clients and away from the Claimant.

Di

[DoingMyBest]

Hi Warwick65,

Sorry to hear you've gone through this too. I hope you're on an even keel now.

Regarding Barclays, this was roughly 8 years or so ago, and if I'd challenged it then, I fear my whole fragile credit system would have come down. I managed to struggle on for a long time after, just about functioning financially, and hoping things would turn a corner. But that extra interest was another anchor to drag. Ironically it has bitten them back, because 2 of the 3 unenforceable cards were my Barclays ones (dating back to the 90s)! I might not have defaulted, and slowly paid them back. Sorry it's too late to be of use to others here.

> if I am correct, the cards are covered by Scottish Law but the Natwest overdraft is covered by English

Thanks, if it's relevant, I moved to Scotland 20 years ago,

Thanks,

DMB

[Warwick65]

Hi
Well to answer your first question

I can not say 'no one obtains credit with the sole idea of not paying it back'. There are clearly some who do but they are the very few and the stuff of newspaper headlines and not the stuff of "truth'. It is like saying one homeless man is an alcoholic therefore all are (although to be fair, if I was homeless I think I would want to blot it all out and not being able to afford the good stuff would be on the White Lightning, which I have just seen hasn't been on sale for 11 years). So I would rather treat everyone as a person who has found themselves in an unfortunate position. I am just that sort of person; I had substantial debts and found my income seriously reduced so I could not service them. I know of someone else, who was going merrily along and then the credit crunch came.

I just noticed your comment about Barclays, as far as I understand it now, if they up your interest rate you can refuse and then set up a repayment plan to pay off the borrowing. Of course you lose the card which can make life more difficult. If you can prove that I suspect there are people who might like to know about it.

Diana Mayhew Never-In-Doubt As for the debts, if I am correct, the cards are covered by Scottish Law but the Natwest overdraft is covered by English , maybe Di or Niddy can confirm

[DoingMyBest]

Hi Warwick65,

> No need to make excuses as to why you defaulted.

Thanks for your understanding, and I appreciate this being such a supportive environment where people don’t judge. Being an open forum though, some readers might reasonably ask: “You borrowed the money, shouldn’t you repay it?” I’d reply that I have, and far more, in heavy interest over the years. At times I was falling faster than I could climb. There’s making an honest profit, and there’s usury: The loan shark credit card companies charge exorbitant rates, and raise them arbitrarily. Barclays, for instance, suddenly upped theirs by a quarter when I was well within my limit, with a perfect payment record. There was a laughable “option” to “decline” it by repaying £10k in a fortnight. Only one type of character makes offers you can’t refuse. So, at the risk of kicking off a much larger debate, I don’t feel morally obliged to pay these gangsters any more money.

> With Cabot it depends which version of Cabot is the owner. They try to hide this by saying Cabot version x is managing . If it is Cabot financial uk then they are not authorised.

It says "Cabot Financial (Europe) Limited is an Appointed Representative of Cabot Credit Management Group Limited which is authorised and regulated by the Financial Conduct Authority".

> Did you live in Scotland when you took the loans/ cards out?

The cards, yes, but the NatWest account I opened back in 1986 in England. I'd be amazed if they still have the paperwork :-)

Thanks again,

DMB

[Warwick65]

No need to make excuses as to why you defaulted.

With Cabot it depends which version of Cabot is the owner. They try to hide this by saying Cabot version x is managing . If it is Cabot financial uk then they are not authorised. Yes indeed Scottish law is different so for example while Jo and Di can offer advice I am not sure if Jo can represent you.

Did you live in Scotland when you took the loans/ cards out?

[DoingMyBest]

Halifax/Moorcroft

• Type of account: credit card

• Date commenced: 2015

• Approx balance: £2,200

• Date last paid (approximate date you last made a FULL payment): 2017

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): DCA

[DoingMyBest]

BOS/Cabot

• Type of account: credit card

• Date commenced: 2015

• Approx balance: £1,300

• Date last paid (approximate date you last made a FULL payment): 2017

• Are you on arrangement or not paying: Not currently paying

• Status (default/in arrears/up-to-date): Default

• Account owner (who is writing to you, a DCA or the lender or debt purchaser): Purchaser