Thread: Is Court The Next Step, Or Can I Get Out Of It?

probably a standard threat-o-gram from mercers

write to barclaycard with this and cc mercers

Send by recorded....and edit as required

Account In Dispute

Ref:

Dear Sir/Madam

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.
You have failed to comply with my request, and as such the account entered default on **DATE**.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore


You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

This limit has expired.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

Therefore this account has become unenforceable at law.

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

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 within 21 days provide me with 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.

Furthermore you should be aware that a creditor is not permitted to take ANY
Action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.


I reserve the right to report your actions to any such regulatory authorities as I see fit.
You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully
__________________



send mercers this

Harassment by telephone

Account Number: XXXXXXX
I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.
I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)
I now require all further correspondence from your company to be made in writing only.
I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.
If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.
Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

Hi Otisan and welcome to CAG

Further to PGH7447 advise above the stark reality is however, if you are not making normal payments to an a/c, at some stage a Court claim will be filed. These Companies as everyone knows, play hardball, so why anyone would assume that they will be allowed to continue making nominal pmts forever and a day, with the Bank's blessing, when they know you own a property (for example) is beyond me! More and more people are getting into difficulties with loans and credit cards, so the worse the situation gets, the more aggressive the banks and credit card Companies will become in enforcing debts. I wouldn't disagree that it's probably possible to stave off a Court claim for a period of time, by sending various letters to creditors, but eventually it will happen!

As far as I'm concerned, if you know how to deal with these situations to achieve the best possible outcome from day one, and refrain from becoming fixated on avoiding Court at all costs, you stand a much better chance of getting rid of debts and moving on with your life. This has to be preferable to finding yourself living with the constant uncertainty regarding what the creditor might do next, and unable to plan for any sort of future for yourself and your family?!!

Fighting back does take courage, but it's a lot easier than you might think! If some people have opted to write to creditors and challenge what they're doing, that shows a determination to fight back! A Court claim is no different! Whenever you are questioning/challenging someone else's point of view, you are making an argument, so there's nothing to stop you doing it in front of a Judge, if you have to! They're human beings as well and some of them are even quite nice! If you get a stroppy one, just imagine him sat on the toilet, he won't seem quite so intimidating
then!

Regards

Andy

Hi Otisan,

I've put this thread in the BC forum, where you're among many similar cases.

I've also imported your above post from another thread.

You're probably a long way from court at the mo - in the world of BC, 7 months is nothing !

Have a read of other threads here and you'll see what others are doing.

hiya otisan

ive also got a prob with bcard and also written, but like andyorch has put it so well in post 4

i feel this is where im at too at the moment, trying to avoid court has now convinced me is not in my best interests

so its a case now about self education and fighting back as best as you can like andy has said

bcard may in a few months even find your cca but reality is that if it was that simple why not supply it now, so the use the legislation and now you have to educate yourself with the legislation too

a lot of us are being sent the same info time and time again, either you decide to pay or be forced by them to deal with the paperwork and their inhouse collection mercers,,,,,

have you within these 7 months received a default notice yet? it will be good if you scan it here so we can ensure whether its defective in any way

anyway will sub to your thread and ive sent a cpr31.16 letter and now being very reasonable and patiently awaiting on them...... but like others have found bcard dont appear to be responding, but there is then the option after to start a court request, will post up the link

im of the view of what mainly what andy has so elegantly put in post 4
and slick has put to you

i tried so hard last year to get a nominal amount set up way before i knew my rights and CAG,,,,and you know they still didnt really care, the calls continued and i didnt get better from the stress i was under - so this year my attitude is harder and ive become better educated in these legal matters and im processing my paper trail and always with the attitude preparing my case as i continue my journey for the court case way ahead in the future ,,,,,unless something else happens to avoid that,,,

will be back with pt's link am backkkkkkkkkkkkkkkkkkkkkk kkkk see below

http://www.consumeractiongroup.co.uk...uldnt-use.html

laters angel x

and that my request under section 78 does not adhere to section 60.

Here is Section 60 of CCA1974:

Making the agreement
60 Form and content of agreements
(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—
(a) the rights and duties conferred or imposed on him by the agreement,
(b) the amount and rate of the total charge for credit (in the case of a
consumer credit agreement),
(c) the protection and remedies available to him under this Act, and
(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.
(2) Regulations under subsection (1) may in particular—
(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;
(b) contain requirements to ensure that specified information is clearly
brought to the attention of the debtor or hirer, and that one part of a
document is not given insufficient or excessive prominence compared with
another.
(3) If, on an application made to the Director by a person carrying on a consumer credit business or a consumer hire business, it appears to the Director impracticable for the applicant to comply with any requirement of regulations under subsection (1) in a particular case, he may, by notice to the applicant, direct that the requirement be waived or varied in
relation to such agreements, and subject to such conditions (if any), as he may specify, and this Act and the regulations shall have effect accordingly.
(4) The Director shall give a notice under subsection (3) only if he is satisfied that to do so would not prejudice the interests of debtors or hirers.

There is subordinate legislation : the Consumer Credit (Total Charge for Credit, Agreements and Advertisements) (amendment) Regulations 1999, SI 1999/3177.

I have added italic emphasis above.

You should know you have protections under the Act and your remedies under the Act include s.77/78 to ask for their 'ticket' on the debt, a nice clean copy of the good old Agreement properly executed. Not actually rocket science, is it, keeping paper in an archive.

And, they should know the prescribed form these things should take! Nice clear copies, all above board.

In no way can I see their point that you do not adhere to section 60. I don't think you have to!
LL

Hi Otisan,

Make a list of these calls and send it with letters of complaint to OFCOM and to the fos and Trading Standards asking them to assist with this harassment and investigate. Tell them you consider the phone calls and texts to be in breach of the OFT debt collection Guidelines.

Confirm why you consider the account to be In Dispute.

Read the OFT Guidelines at Link No3 in my signature - sections 2.6 and 2.8 should help.

Are there any penalty charges on this a/c which you should be reclaiming.

http://www.consumeractiongroup.co.uk...i-dummies.html

Originally Posted by otisan

What is a reasonable reply to this letter??
Still getting texts and calls from the debt companies eventhough the letters have been sent over and over again. The texts are now saying they are pursuing legal action. But saying that, last weeks texts said someone was going to come to my door.. and no one ever did.
Still though, a bit nervous about whats to come and need a good reply to this letter.

Hi Otisan


Do nothing, absolutly nothing dont write chasing, dont think that if you are doing nothing then you should be.Your Creditors will give up eventualy and then pass it on to one of their sidekicks.
I advocate not pursuing any company once the CCA request has been sent, unless you are the subject of legal action, in which case it's important to get the information you need to prepare a defence and c/c as soon as possible

To ensure you have the best possible case, should you eventually be issued with a Court claim; you need to keep all correspondence that you are sent, as you can guarantee regardless of sending the CCA request, you will be harassed for pmt. All calls must be logged, answered or not, dates, times, names etc.... This is to build a case of harassment against them. The Consumer Credit Act 1974, states that they are not entitled to enforce the agreement whilst the default continues, so in addition to not be entitled to take legal action, they have no right to collect pmt, so it necessarily follows that they are entitled to harass you either! You cannot harass a person for a debt, when you haven't proved it exists

My point is that your interests are not best served by pursuing them. Let them dig a big hole for themselves, so that you can counter-claim for damages for harassment and hopefully if they can't produce an agreement you have Data Protection Act 1998 breaches as well as defamation

I would also suggest not going through their security Q's if you are unfortunate enough to answer a call. Do not bring up the CCA request either, so what if they don't produce the agreement after 12mnths? As long as you have a recorded/guaranteed proof of postage delivery slip, you're fine. The longer they leave things, the worse it is for them. Simply tell them to write to you, don't tell them not to ring, as the calls obviously form part of the harassment
Let their stupidity help you build a case....simply sit back and bide your time.

If someone has debts, it is important to understand that there are no quick resolutions. Those who seek quick remedies in a bid to put the matter behind them hastily, do themselves no favours at all. Debts can be significantly reduced or disposed of, if the situation is approached tactically from the start.....you just have to be patient!


I trust the above clarifies your position

Regards

Andy

Re the threat of home visits, print off this letter and keep it by the door.

If someone DOES call round, as soon as you realise who they are, hand them a copy of this letter and politely tell them to leave - http://www.consumeractiongroup.co.uk...eats-home.html

Shut the door and don't have any further discussion with them.

Have you looked at the CPR route to get a copy of your agreement. See Link No2 in my signature below. You could send BC Pt's first CPR letter - it'll cost you nothing.

Here's a thread worth watching to see how this unfolds - http://www.consumeractiongroup.co.uk...-goldfish.html

Apart from maybe the 1st CPR route letter, I agree you should do no more just now. At least until we see how smt37's case runs.