Mercers-Barclaycard**WON**

[citizenB]

subscribing.. Mercers want to be my penpal as well LOL x

[Jeff2000]

Originally Posted by pt2537

Thanks for that Jeff, i just wanted to check, thats all.

ive seen cases where claims have been issued by companies who do not hold the legal right of action.

it would appear in this case that does not apply as Barclay card would be entitled to sue for this debt.

oh well, not to worry

Hi pt,


Just had another look and the claimant is Barclays Bank plc.

I don,t suppose that makes any difference?


Regards, Jeff.

[Jeff2000]

Hello all,


OK, tomorrow is the deadline to acknowledge the claim.

So I have a couple of questions that I would like answering. (For reassurance really, as I think I already know the answers).

I am assuming that I will be counterclaiming. There are a number of charges and interest on those charges. This is important as it will bring the total of their claim well below £5000. Or am I on the wrong track?

I have also been contemplating claiming back the PPI. What do you think?

Or, do I forget the charges for now and concentrate defending on the basis of unenforceability?

As usual, all comments and suggestions will be appreciated!


Regards, Jeff.

[SURFBOY]

subscribing , i am a barclycard/mercers customer also.
I will no doubt be going through the same as you all soon .
i will start my own thread.

[Jeff2000]

Hi all,


Just been on MCOL and succesfully acknowledged the claim.

Might need a bit of help formulating my defence and counterclaim!


Thanks in advance.

Jeff.

[slick132]

Hi Jeff,

This has been moved into BC forum, prob as a result of the site shuffling at the w/e.

Where was this thread before and do you want it moved back there.

I'll ask one of the team to advise on a suitable Defence response.

Slick

[paulwlton]

I think we can put up a decent defence and counterclaim.

I just thought i'd mention i've just kicked BC and their side kicks A....

Paul

1.On the ( insert date), the defendant signed an Application Form for a credit card facility to be provided by the Claimant. (Exhibit 1)

2.Provision of this credit facility was Dependant upon a satisfactory credit record being obtained by the Defendant from one or more Credit Reference Agencies, and upon other lending decision criteria. The Application Form was therefore a pre-contractual agreement to enter into a prospective full regulated credit agreement with the Defendant in the event that the Claimant's application was successful.

3.The Application Form contained a clause which included the following statement -


'I have read the terms and conditions setting out the agreement with Capital One and in the event that my application is accepted, I agree to be bound by these terms and conditions'. As such, it purported to bind the Claimant to the terms and conditions of any prospective credit agreement with the Defendant.

4.Section 59 (1) of the Consumer Credit Act 1974 states that 'An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.'. The defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

5.The defendant’s application for credit was successful and a line of credit was provided.
However, no subsequent regulated credit agreement, fully setting out the proposed terms and conditions and containing all the terms, information and statutory statements as prescribed by the Consumer Credit Act, was ever provided by the claimant for the defendant to sign and agree to. The credit facility was therefore given with no agreement made for repayment.

6.From the date that the Application Form was signed, until on or around (insert date), the defendant was labouring under a mistaken belief that there existed between myself and the claimant a valid regulated credit agreement and that I had a legal obligation to repay the credit provided, whereas in fact no such document existed. In these circumstances, it might be argued that the Defendant has a common-law remedy against the Claimant, in that an ordinary indebtedness exists which entitles the claimant to retain the monies already paid by the Claimant, and to sue for the balance deemed to be outstanding. However, legal precedent makes clear that credit arrangements of this nature must be set down and governed by a regulated credit agreement that conforms to the exact requirements of the Consumer Credit Act. Where such an agreement is found to be improperly executed, the lender is at risk of having the terms of the agreement amended in favour of the borrower, as compensation for any prejudice caused. In a case where the agreement is found to be wholly unenforceable, the lender loses all his rights under the agreement in accordance with the policy aims of the legislation, and furthermore is denied recourse to any common-law remedy in respect of the money lent. Wilson v Secretary of State for Trade and Industry [[2003] UKHL 40 ].

7.In this case, it is not that there is a regulated agreement, but one that is improperly executed and subsequently unenforceable, it is that the claimant has failed to provide a regulated agreement at all, and therefore has not complied in any way with the legislative requirements. To nevertheless permit the defendant to retain monies paid to him, or to allow enforcement of the balance claimed to be outstanding would be wholly contrary to the policy aims of the legislation and would entirely negate it's effect.

8.If it is found that the Application Form does constitute a valid agreement to repay any monies subsequently lent to thedefendant, it is alternatively contended that the document does not conform to the requirements of the Consumer Credit Act, in that it contains no terms or conditions or other statutory statements and is consequently improperly executed and wholly unenforceable by virtue of Section 127(3) of the Act.
In that event, the defendant will contend that any monies already paid to the Defendant were as a result of a mistaken belief in her legal obligation to pay, and that there was in fact no such obligation, as per Lord Hoffmann in Dymond v Lovell (HL - 11 May 2000): 'Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law'.

9Further, even if the claimant is found to be entitled to retain the monies he has already received, this sum included interest and other charges, the terms of which were not set out in the prescribed manner in a regulated credit agreement, and therefore were not agreed to by the defendant. The only document signed by the defendant contains no terms whatsoever, and therefore the Defendant had no mandate to apply such terms. The defendant therefore contends that in this event I would be entitled to a refund of all such interest and charges.

10.The claimant has indicated that a record of the credit status in respect of this account has been provided to one or more Credit Reference Agencies, and on( insert date), after the date of issue of this claim, the claimant served on the defendant a Notice of Default under the Consumer Credit Act (Exhibit 2). The Claimant claims that by reason of the facts of this claim, there has been no such default in respect of any alleged terms of a purported credit agreement and that consequently any adverse information provided to any third party is incorrect, unfounded and detrimental to the defendant’s future credit prospects. The defendant therefore requests the erasure of any record of this nature.
The defendant therefore claims:

1. The refund of all sums paid to the claimant to date.

1. 2. Or in the alternative, the defendant claims the refund of all interest and other charges paid
   to date.
   3. The removal of any adverse information provided to, and included in, the records of any
   third party.
   
   4. In the event that a regulated credit agreement is found to exist, the defendant claims a
   declaration of the court that the agreement is improperly executed and unenforceable
   against her.

1. The Claimant further claims interest under Section 69 of the County Court Act 1984 at the rate of 8% from the date of each payment made to the claimant , currently (insert figure)and continuing at the same rate until payment or the date of judgment.
   The Claimant believes that the facts stated in these Particulars of Claim are true.
   
   Signed................... ......................... .......(defendant)
2. 
   Dated(insert date).

You could also insert

In the event that this honourable court should deem the purported agreement enforceable, but would disallow any such refund of monies paid, the defendant would respectfully request that all charges and interest accrued thereon (as per Exhibit C) applied to the account in dispute, are refunded in full - as there are no provisions within any documents supplied by the claimant to be applied.
Further, and in the event that this purported agreement is granted enforceable under this courts' jurisdiction, the defendant would respectfully ask that the Default Notice served by the Claimant (it is believed this has been issued vexatiously and retaliatory to this ongoing dispute), be rendered void and inoperable.
Any such amount claimed to be in default by the claimant , is;
1) Issued in breach of section 88 'where a valid regulated agreement must exist for issue of said default notice'
2) Any such amount claimed to be in default, has been placed in written and continued dispute since the defendant’s' letter of xx/xx/xx (Exhibit D)
3) Whilst in dispute, a Creditor may not enforce any such agreement
4) Any such amount shown as in default, contains penalty charges and interest on same, making the material breach of s87(1) unwarranted and a counter claim for compensation as per Woodchester v Swayne.

[tomterm8]

I thought with a credit card, the agreement becomes executed for the purposes of s59(1) when you first use the credit card?

under s59(1) an agreement is void to the extent it binds you to enter a future credit agreement, however under s66 (Aceptance of Credit-tokens) you become liable for the agreement when you sign the card or use it for the first time.

At that point, the agreement would no longer be a prospective agreement.

the s127 argument have merit, and I think should be given greater emphaisis.

66.
Acceptance of credit-tokens.
— (1) The debtor shall not be liable under a credit-token agreement for use made of the credit-token by any person unless the debtor had previously accepted the credit-token, or the use constituted an acceptance of it by him.

(2) The debtor accepts a credit-token when—
(a)
it is signed, or

(b)
a receipt for it is signed, or

(c)
it is first used,


either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.

[paulwlton]

[quote=tomterm8;1380827]I thought with a credit card, the agreement becomes executed for the purposes of s59(1) when you first use the credit card?

under s59(1) an agreement is void to the extent it binds you to enter a future credit agreement, however under s66 (Aceptance of Credit-tokens) you become liable for the agreement when you sign the card or use it for the first time.

At that point, the agreement would no longer be a prospective agreement.

But sec 59 has already been breached because it's pre-contractual and is binding on you to enter a future credit agreement, so the agreement is void

[tomterm8]

the effect of s59 is that the agreement is void only to the extent that it binds you to enter into a prospective credit agreement . So until you chose to enter the agreement, you can back away at any point.

But you did chose to enter the agreement.

[paulwlton]

Originally Posted by tomterm8

the effect of s59 is that the agreement is void only to the extent that it binds you to enter into a prospective credit agreement . So until you chose to enter the agreement, you can back away at any point.

But you did chose to enter the agreement.

I see where your coming from. Hmmmmmm

[Jeff2000]

Originally Posted by paulwlton

I see where your coming from. Hmmmmmm

Hi,


Hmmmm indeed! And I thought we were doing so well!

Anyway, many thanks for everyones help and input. It really is appreciated!

One other thing. I have discovered that I require further copies of statements going back to the start of the account. Will this mean that a holding defence need to be put forward?


Regards, Jeff.

[slick132]

Hi Jeff,

Get an Subject Access Request letter off to BC for the state's required asap.

You could also try calling them to see if this can be done more quickly - explain that you've rec'd a Court Claim and need the state's urgently. Don't bother with normal cust'r svs - there's another office which will d/w your request faster - if I come across it, I'll post back.

Was your thread in the debt forum - I think it should go back there so you get the advice you need more readily.