Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
Today I was speaking to a solictor today, and because of the McGuffick Case. That I have no chance.
Sorry, no chance of what exactly?
The above is an Application Form, that does not appear to have any Prescribed Terms, dated 2001, so it would be covered by s61(1)(a), s65 and s127 of The Consumer Credit Act 1974.
If that is all Barclays gave got, then they will have trouble enforcing it.
Well everyone I spoke to goes on about the Mcguffick case.
Reason been is about the copy of the agreement
The judge rule as that they do NOT have to produce the orginal signed and scecuted agreement to prove an agreement exist.
Plus they can reconstituted copy agreement ( so long as it has the borrowers name and address and correct terms and conditions fo the bank at the time of provision) can be used in order to enforce payment of the credit card debt if a borrower defaults.
I know 1st credit are goin to use that against me plus the quote some scottish law (Don't ask I ask her what it got to do with English She couldn't reply back)
Plus they given me Next monday to come up with payment plan or they start court proceedings
I think you have been given some very duff advice.
I would advise that you read up on both the McGuffick Case and also on the recent Manchester Test Cases. These are the two areas that have given the bankers and DCAs some false hopes, and they are busy trying to exploit these before too many people establish that they are actually no better off then they were.
The bottom line is the McGuffick Case was mainly concerned with a s77(1) CCA Request in relation to a Loan, and the bank's failure to respond to that. The actual Agreement was accepted as being enforceable, it was an argument about where the bank stood whilst they were constrained via s77(4).
The Manchester Test Cases are concerned with the flood of Claims made by Consumers against banks, when the banks were the Defendant. The Consumers were the Claimants, so the burden of proof fell upon them to prove their case, and many were found wanting, mainly because the weakest cases had been selected for testing, no surprises there.
In your case, it is likely to be a case of the bank taking you to Court, so they would be the Claimant, and you the Defendant. The burden of proof therefore falls upon them, and none of the above Test Cases, including McGuffick, will help them.
They still need:
(1.) An Agreement, signed by you, that contains the Prescribed Terms.
(2.) A valid s87(1) Default Notice.
The Application Form above does not appear to satisfy (1.) above, at least from what I can see of it. I can't see any Prescribed Terms...so it fails s61(1)(a).
They can send all sorts of rubbish back in response to a CCA s78(1) or s77(1) Request, but when it comes to Court, i.e. where they are the Claimant, then they will need the Agreement signed by you, not some cobbled together hotch potch held together with glue and banker's sweat.
Plus they given me Next monday to come up with payment plan or they start court proceedings
This is a standard DCA Threat, and I bet it was made on the Telephone?
First thing you must now do is stop talking to them, and force them to keep everything in writing.
There is nothing a DCA has to say that you need to listen to. Their job is to intimidate and bully, simply to shake your confidence and to tease your Debit Card out.
Once you stop talking to them, you are one huge step towards fighting back and taking charge of these muppets.
I think you have been given some very duff advice.
I would advise that you read up on both the McGuffick Case and also on the recent Manchester Test Cases. These are the two areas that have given the bankers and DCAs some false hopes, and they are busy trying to exploit these before too many people establish that they are actually no better off then they were.
The bottom line is the McGuffick Case was mainly concerned with a s77(1) CCA Request in relation to a Loan, and the bank's failure to respond to that. The actual Agreement was accepted as being enforceable, it was an argument about where the bank stood whilst they were constrained via s77(4).
The Manchester Test Cases are concerned with the flood of Claims made by Consumers against banks, when the banks were the Defendant. The Consumers were the Claimants, so the burden of proof fell upon them to prove their case, and many were found wanting, mainly because the weakest cases had been selected for testing, no surprises there.
In your case, it is likely to be a case of the bank taking you to Court, so they would be the Claimant, and you the Defendant. The burden of proof therefore falls upon them, and none of the above Test Cases, including McGuffick, will help them.
They still need:
(1.) An Agreement, signed by you, that contains the Prescribed Terms.
(2.) A valid s87(1) Default Notice.
The Application Form above does not appear to satisfy (1.) above, at least from what I can see of it. I can't see any Prescribed Terms...so it fails s61(1)(a).
They can send all sorts of rubbish back in response to a CCA s78(1) or s77(1) Request, but when it comes to Court, i.e. where they are the Claimant, then they will need the Agreement signed by you, not some cobbled together hotch potch held together with glue and banker's sweat.
This is a standard DCA Threat, and I bet it was made on the Telephone?
First thing you must now do is stop talking to them, and force them to keep everything in writing.
There is nothing a DCA has to say that you need to listen to. Their job is to intimidate and bully, simply to shake your confidence and to tease your Debit Card out.
Once you stop talking to them, you are one huge step towards fighting back and taking charge of these muppets.
I hope this helps.
Cheers,
BRW
Ok thanks I goin to draft up a letter 1st thing in the morning,
and I will update the thread and see what the outcome is.
I think you have been given some very duff advice.
Cheers,
BRW
As ever BRW, fantastic concise advice.
Silver, if you speak to them on the phone they'll make threats that they dont dare repeat in writing... as to the legal points, BRW has pointed out how to respond to them if required.
IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.
You say solicitor says you have no chance of winning. Winning what? Are you in court? Or are you going for non-enforceable agreement?
Well I spoken to 'claims specialist solictor' on the 5th Jan. He said he couldn't read the T&C because it was illegible so therefore they couldn't enforce it.
He asked for a clean copy and readable copy with the signed copy of both the creditor and debtor, and BC kept sending the same copy over and over again.
But after the ruling of the McGuffick case he said it would doubtful he can win.
If you were hoping to have a CMC take your bank to court to show the debt is unenforceable, the recent Manchester cases will have put paid to that.
Going to court as the claimamt seeking a ruling against the bank as defendant will not be going on much more and at least the sol'r you spoke to was decent enough to tell you this.
Have you read up opn the McGuffick or Manchester cases yet. Just because you are unlikely to win as a claimant doesn't mean the debt is enforceable if the bank takes you to court. The thread about the Manchester cases will explain the difference between you going into court as the claimant and as the defendant.
Are there any penalty charges on the card a/c - theses can still be reclaimed in full, along with any mis-sold PPI.
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
If you were hoping to have a CMC take your bank to court to show the debt is unenforceable, the recent Manchester cases will have put paid to that.
Going to court as the claimamt seeking a ruling against the bank as defendant will not be going on much more and at least the sol'r you spoke to was decent enough to tell you this.
Have you read up opn the McGuffick or Manchester cases yet. Just because you are unlikely to win as a claimant doesn't mean the debt is enforceable if the bank takes you to court. The thread about the Manchester cases will explain the difference between you going into court as the claimant and as the defendant.
Are there any penalty charges on the card a/c - theses can still be reclaimed in full, along with any mis-sold PPI.
Thanks for the advice. Iam NOT looking to take them to court. 1st credit has threaten to take me to court. and yes there are penalty charges and ppi which i didnt sign up for.
So right now not sure the best action to take, because so far i havnt heard anything from them yet.
Sorry there no paragraphs return key is not working for some strange reason
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
Personally, I would reply with a letter on the lines of this:
Dear Sir/Madam,
Thank you for your letter. Whilst it extensively quotes the recent McGuffick case, I don't see that it changes anything or indeed that it has any relevance to my situation. The fact remains that even if you choose to take me to court, you will not be able to enforce an alleged debt until such time as you provide a valid copy of an agreement containing all the prescribed terms. Since you have failed to do so until now, I can only conclude that you do not in fact have anything of the kind and must conclude that any attempt to take me to court would fail under that very simple premise. As you very well know, an application form does not consitute a credit agreement and I am at a loss as to why you would keep on sending me this.
I therefore respectfully ask you to either desist from hounding me or take me to court if you think you have a case, and I will then be only too happy to defend in full and let the justice system decide.
Yours etc...
Something like that anyway. They push, you push right back. If they think you know you won't be a pushover, they are far less likely to take you to court. ;-)
Apologies to people who I was in the process of helping, I may be gone some time.
You've issued a CCA request and they've sent the application form from Barclays which doesnt appear to contain any terms and conditions... did they send any terms and conditions alongside this?
As to the letter from the DCA, they are correct in their quoting of the McGuff case re: data protection, their letter basically says they will still mark your credit file so your s10 notice is invalid.
If they have sent a copy of the original terms and conditions alongside the cca application they have given you and they are both LEGIBLE then they have met the s78 according to my interpretation of the Manchester rulings.......... but that is not to say they are enforceable.
Oh and as for the no Barlcyard signature it means the agreement isnt executed properly but the courts will no doubt rubber stamp it if thats all thats wrong with it.
IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.
I think we need to know how old this agreement is. Waksman threw something very nasty for the banks et al in his summaries at para 234 plus.
Essentially without quoting the thing in full, at each and every unilateral variation of the alleged agreement they will have to provide a fully provable paper trail complete with ORIGINAL agreement (not recon please note) right back to the date of alleged inception (execution) of the alleged agreement.
I think we need to know how old this agreement is. Waksman threw something very nasty for the banks et al in his summaries at para 234 plus.
Well I'd say 2001 from the screenshot in post #1
Essentially without quoting the thing in full, at each and every unilateral variation of the alleged agreement they will have to provide a fully provable paper trail complete with ORIGINAL agreement (not recon please note) right back to the date of alleged inception (execution) of the alleged agreement.
Yep, I took the assumption that t&c from the time would comply but I seem to remember he stated they had to have the original debtors address on them as well didnt he?
IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.
Yes he did and IMHO this stress in his summaries of ORIGINAL this ORIGINAL that provides much more hope for success all of the wrangling over what he has said previously. In fact with that nothing has fundamentally changed, i.e. recycled toilet paper will do for s78 request but what he is really saying is that should a lender bring an alleged debtor before his court then they had better have their house in order with originals and that really does mean right back to the date of inception. I have posted on another thread the details of a conversation I had yesterday with a close relation, now a citizen of another country, who worked in IT "in the city". During his time there our wonderful regulators i.e. the FSA issued guidance to these financial institutions that they only need to keep original documents for seven years then destroy. Promising all the backing they would need should the sort of trouble we now have blow up in their faces. I would therefore venture to suggest that NONE of them could actually provide the paper trail to comply with Waksman's judgement in full plus it is arguable that ANY document over seven years old is a forgery knocked up for the purpose in the light of FSA guidance to banks.
Remember to defend as we have always said the balance moves in our favour and it is the lender that is to be put to "strict proof"
It is early days but I am sure this will be tested to the full in coming months.
No hope of winning?
from barclaycard at the bottom.
Reply With Quote
Originally Posted by banker_rhymes_with
