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Penfold V Barclays (Woolwich) No agreement and taken to Court


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Hi,

I was not getting much help or info from the Woolwich board so I am posting here as this will have interest to a few others I imagine.

Many many years ago (Like 9-10years!) I had a Woolwich Account with an ex wife. We split and that account became a debt. I have no idea how I imagine her spending etc. I do not remember getting a default notice nor how it ended up at Equidebt Limited, but it did. I agreed payments and have been paying religiously until now.

I decided it was time to find out what I was paying, why etc. I asked for the CCA agreement or what info they had on this. Surprise surprise Equidebt said they sent everything back to Woolwich (so debt was NOT sold on) and Woolwich said "too old no info!". I truly cannot believe the arrogance of the banks! So I proceeded to issue an N1 form at my local court with the following POC:

1. The Claimant had an account (“the Account”) with the Defendant which was joint with his ex-wife. This was opened on or around 1997 and subsequently sent to a debt recovery firm (“Equidebt Limited”) in 1998

2. A schedule of payments made to Equidebt Limited is attached to these particulars of claim

3. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the debt recovery company and the Defendant

4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder.

5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law

6. The Defendant contends that the data was destroyed under the Data Protection Act, however, the Information Commissioners Office only issues Data Protection guidelines and as any learned person would know “standard industry practice” does not correlate with “legal right or responsibility”. The Claimant therefore requests a full refund of payments made under this non enforceable debt, interest and court fees going back to its inception.

7. The Claimant argues that this account was active by virtue of regular payments being made into it on a monthly basis.

8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40.

10. Therefore the Claimant claims all monies received by the Defendant or Equidebt Limited to the Account.

11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.

12. Accordingly the Claimant Claims:

 

a) the return of the amounts paid to Equifax Limited in the sum of £1038;

b) Court Costs;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 28/05/1998 to 06/07/2007 of £478.37 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.23

I believe that the contents of these particulars of claim are true.

 

 

Now I got in contact with Barclays litigation to speed things up (I thought) and now I hear they will defend. They have until 4pm Monday so no doubt something will turn up on Monday morning.

In the meantime I would love to have people’s views on this matter over the weekend, whilst I am waiting to find out what they are going to say. I mean are they really going to tell a Judge "we don't know much about this except he did owe us the money and so please don't judge against us!"

Has anyone else been in a similar position or done the same sort of thing?

Penfold

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why do you think you are entitled to get your money back?

 

Because I should not have been forced to pay it in the first place! I did not spend it, I have no records on it nor do the bank.

 

Why should the Bank be allowed to force me to pay it? Is that not the better question? I am questioning the legalities not the morals Sequenci! Bank charges are legal too remember???

 

Penfold

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Because I should not have been forced to pay it in the first place! I did not spend it

you stated in your first post that it was a joint bank account, i'm slightly confused? you would have been joint and several liable for it?

I am questioning the legalities

 

me too! i'm just keen to ascertain what grounds you are using to get this refund. i'm not questing anything but the legal argument!

 

i'm interested in it, i'm not judging you at all!

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me too! i'm just keen to ascertain what grounds you are using to get this refund. i'm not questing anything but the legal argument!

 

i'm interested in it, i'm not judging you at all!

 

Sorry Sequenci, but I have had many many moral battles over the years including the messy divorce that created this debt in the first place! Anyway see below and please please anyone have any ideas? By the way I started quering this early this year after settling my IVA, but note not once in 6 odds letters from Woolwich/ Barclays have I been even given the account number! So where did they make the below up from exactly?

 

OK Got Woolwich defence today (waiting for me at home). I will post my POC with the defence underneath each one. Please help in picking holes in any of this….

1. The Claimant had an account (“the Account”) with the Defendant which was joint with his ex-wife. This was opened on or around 1997 and subsequently sent to a debt recovery firm (“Equidebt Limited”) in 1998

It is admitted that the Claimant had a Woolwich current account number XXXXXX

Well at least I know the account number now as they never told me it in any of their correspondences!

2. A schedule of payments made to Equidebt Limited is attached to these particulars of claim

It is admitted that Equidebt Limited were engaged by the Defendant in April 1998 to collect on its behalf a debt due and owing from the Claimant in the sum of £1038

3. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the debt recovery company and the Defendant

This is admitted

4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder.

It is denied that the debt amount paid by the Claimant was “inaccurate” and the Claimant is put to strict proof as to why he now contends the debt amount was “inaccurate” and why he was not an account holder. It is the Defendant’s contention that the Claimant was an account holder, jointly with another or otherwise.

I believe I said I was not the “main” account holder even if the account was joint. I did not say I was not an account holder. I am saying I believe it to be inaccurate because I have no records on the said debt. As such I believe I am within my rights to question its contents, how it came about and everything about it. Or am I wrong? Do I need to prove it is inaccurate or is it down to the Defendant to prove it is not?

5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law

The Defendant denies that it is in breach of any obligation to supply documents in compliance with Section 189 of the Consumer Credit Act 1974 and the Defendant fails to understand the relevance of this Section in the context of paragraph 5. The Defendant also denies that the debt is legally unenforceable.

Overdrafts and any credit under £25,000 is regulated under the CCA or am I wrong again here? If I am right then they are in breach as they have not supplied any details whatsoever regarding the debt or account

6. The Defendant contends that the data was destroyed under the Data Protection Act, however, the Information Commissioners Office only issues Data Protection guidelines and as any learned person would know “standard industry practice” does not correlate with “legal right or responsibility”. The Claimant therefore requests a full refund of payments made under this non enforceable debt, interest and court fees going back to its inception.

Under the Defendant’s retention policy of data and records, the Defendant will retain certain data for upto six years after closure of an account. The Claimant is put to strict proof as to the relevance of the information Commissioner’s Office, Data Protection Guidelines. The Defendant does not understand the Claimant’s reference to “standard industry practice” and how this does not correlate with “legal right or responsibility”. The Defendant also denies that the Claimant is entitled to a full refund of payments made. The Defendant also denies this is a “non-enforceable debt”.

Ok where do I start…In simple English for the Defendant there is no Law that says data must be destroyed only guidelines. I believe (and obviously could be wrong) that I have a right to question the accuracy of information especially from a Bank who says I owe them money whenever I feel like it especially if recent events in the media have shown the Banks in a different light entirely. I am questioning their statements on data destruction so there is relevance in my statement. By the way Regulation 6 of the FSA’s rules and FSA rule 7.3.2 require financial organisations to retain transaction records for five years after the completion of any transaction. Are monthly payments not transactions then? Is the closing of the Equidebt Account (due to the creation of the IVA) not a transaction as well?

7. The Claimant argues that this account was active by virtue of regular payments being made into it on a monthly basis.

The defendant denies that account number XXXXXXX is still an active account. Upon making formal demand for payment of the crystallized balance in April 1998, the account ceases to be useable as an account by the Claimant, once it had been referred to the Defendant’s Debt Recoveries Unit in 1998. The payments received from the Claimant were in discharge of the debt balance.

Well I have to say how convenient to say an account is closed and passed elsewhere, but still take the payments!

8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

The Defendant does not agree with the Claimant’s interpretation of Section 142(1)(b) of the Consumer Credit Act 1974. The Defendant is not seeking to enforce a regulated credit agreement as the debt due and owing from the Claimant to the Defendant was repaid in full in the sum of £1038 by April 2005, thus extinguishing the liability of the Claimant. It is also denied that Section 65(1) is relevant in that the Defendant will contend that the credit agreement was enforceable. The Claimant is put to strict proof why he is able to make the assertion of there being an improperly executed regulated agreement between him and the Defendant. The Defendant will contend that Section 65(1) is irrelevant sin since there is no intention on the part of the Defendant to enforce a regulated credit agreement as against the Claimant. Section 127(3) of the Act as repealed by the Consumer Credit Act 2006 will only apply to regulated credit agreements executed after April 2007.

Well this is where I think this gets interesting…Firstly, as stated before an overdraft is regulated under the CCA so there needs to be an agreement of sorts in place. Then secondly, this debt was not settled and actually went into my IVA in 2005! With a balance of £740 still left on it! So this blows this out of the water OR am I missing something once more? This debt has NOT been repaid in full! I have letters chasing me in 2005 and it has been entered in the Court bundle when my IVA went through in 2005. Funny if they are not trying to enforce it why was it entered into the IVA and why did they not say “hold on, you have paid this off mate…”. So they were in fact still enforcing the debt. I do not understand the bit about Section127(3) only applying to regulated credit agreements after 2007 when it was in the CC Act in 1974? Can anyone explain to me what they are on about?

9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40.

The Defendant will deny the Claimant’s assertion of there being an unenforceable credit agreement and will refer to the preceding paragraph. The Defendant will deny that the case of Wilson and others V Secretary of State for Trade and Industry [2003] UKHL 40 is applicable to the facts of this case. The Claimant is put to strict proof as to the relevance of the House of Lords decision.

So since I can prove they were trying to enforce it I guess that blows this one out too? As for the case, it is all about a non existent credit agreement where the credit company had to refund all payments made…in a nutshell anyway.

10. Therefore the Claimant claims all monies received by the Defendant or Equidebt Limited to the Account.

The Defendant denies that the Claimant is entitled to return of any monies collected from him either directly or via its agents, namely, Equidebt Limited

LOL they are hardly going to say have it here mate…

11. Save payments into and/or determined by the Court, any sums paid in settlement of this claim are required to be made by cheque, which should be made payable to the Claimant.

Is not admitted

12. Accordingly the Claimant Claims:

a) the return of the amounts paid to Equifax Limited in the sum of £1038;

b) Court Costs;

c) The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year, from 28/05/1998 to 06/07/2007 of £478.37 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.23

I believe that the contents of these particulars of claim are true.

This is denied

So I recon their strongest sections were if I had paid this off and they were not trying to get money out of me. Can anyone please tell me if the customer has a right to question their account at any stage and if so is it in any legislation or just in terms and conditions?

Thanks,

Penfold

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interesting thread

post office WON 12/11/06

 

abbey.LBA sent 30/10/06.MCOL claim submitted 8/11/06.allocation questionnaire sent 16/12/06.schedule of charges sent 16/12/06.WON

 

2nd abbey claim SAR sent 3/1/07.WON.complaint letter sent 18/1/08

 

alliance and Leicester.WON

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Normally there is no case for the refund of monies paid on a debt just because the debt is unenforceable. The debt still exists and was liable to be

paid. However it appears that Barclays are contending that the debt [£1038]was paid off in April 2005.

Therefore as it appears you have overpaid, they should repay the balance.But if the debt has been paid they do not have to supply you with

details from your CCA request.

It would appear that your case will therefore fail if you are taking them to court for a breach of the Consumer Credit Act.

But I am surprised that they have not offered to repay any monies paid after

April 2005-plus interest.

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Normally there is no case for the refund of monies paid on a debt just because the debt is unenforceable. The debt still exists and was liable to be paid. However it appears that Barclays are contending that the debt [£1038]was paid off in April 2005.

Therefore as it appears you have overpaid, they should repay the balance.But if the debt has been paid they do not have to supply you with

details from your CCA request.

It would appear that your case will therefore fail if you are taking them to court for a breach of the Consumer Credit Act.

But I am surprised that they have not offered to repay any monies paid after

April 2005-plus interest.

 

The debt was not paid off. I paid a total ove £1038 over 9 years to Equidebt, I was still being threaten in 2005 for the other £740. Due to other financial pressures I entered an IVA and the remainder of the debt was put into that. If it has been paid off at all it was last month when I completed the IVA early bu selling my home!

 

I asked Woolwich for T&C's when my account was opened, they have not supplied, I asked for default notice and info, they have not supplied, I am the Claimant they are the Defendant, why is the owness on me to prove as per their defence rather than them to show me given I am taking them to court?

 

Penfold

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I was thinking of writing a type of nudge letter to Barclays Litigation, but now I am thinking let's go to court and then bang I tell the judge the above points and let the barrister/ lawyer look a plonker without knowing the facts about his client...Or am I withholding info? Am I obliged to tell them they have the wrong info?

 

Penfold

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In that case as there is a debt then they are in breach of teh CCA.And the debt is unenforceable if they cannot produce the original

agreement in Court. That does not mean you are entitled to any money back

now though.

In the Wilson case, which was to do with action against a Pawnbroker, Mrs

Wilson was given back her car which she had given as security, she was not

given back money that she had paid [tho' I do accept she had probably paid no money. However had she done so I cannot see how she would have been

entitled to have it returned.]

 

Is the Court case on Monday, or is that when you both have to file your POCs?

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Subscribing with interest, Slick

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No defence needed to be filed by MOnday and they sent directly to me. I know what you mean about the Wilson case, however, is it not worth a try? Are Barclays going to really wait and see what the Judge says especially if they are uncertain what I have on them since they have so little on me (apparently).

 

So what is the opinion, should I let Barclays litigation know they got it wrong or let them look silly in court, cause I will go...

 

As for getting money back...I have been told by HSBC I will not get my charges back, how many of you out there have also been told things by the Banks or even defence solicitors? I do not expect to get it back, however, if I do great or at least I can ask the Judge to get them to refund the court costs as they should have acknowledged the debt did exisit, give me my account number and be more cooperative towards me.

 

Votes please...

 

Penfold

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Sorry Sequenci, but I have had many many moral battles over the years including the messy divorce that created this debt in the first place! Anyway see below and please please anyone have any ideas? By the way I started quering this early this year after settling my IVA, but note not once in 6 odds letters from Woolwich/ Barclays have I been even given the account number! So where did they make the below up from exactly?

 

so to get my facts straight, this debt was part of the IVA of which these guys were involved with?

 

4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder.

 

It is denied that the debt amount paid by the Claimant was “inaccurate” and the Claimant is put to strict proof as to why he now contends the debt amount was “inaccurate” and why he was not an account holder. It is the Defendant’s contention that the Claimant was an account holder, jointly with another or otherwise.

I believe I said I was not the “main” account holder even if the account was joint. I did not say I was not an account holder. I am saying I believe it to be inaccurate because I have no records on the said debt. As such I believe I am within my rights to question its contents, how it came about and everything about it. Or am I wrong? Do I need to prove it is inaccurate or is it down to the Defendant to prove it is not?

have they sent you a full statement of account as part of your request under the CCA?

 

5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law

The Defendant denies that it is in breach of any obligation to supply documents in compliance with Section 189 of the Consumer Credit Act 1974 and the Defendant fails to understand the relevance of this Section in the context of paragraph 5. The Defendant also denies that the debt is legally unenforceable.

Overdrafts and any credit under £25,000 is regulated under the CCA or am I wrong again here? If I am right then they are in breach as they have not supplied any details whatsoever regarding the debt or account

yes, they are certainly regulated sir. they are just exempt from PArt V of the act.

 

 

 

 

8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

The Defendant does not agree with the Claimant’s interpretation of Section 142(1)(b) of the Consumer Credit Act 1974. The Defendant is not seeking to enforce a regulated credit agreement as the debt due and owing from the Claimant to the Defendant was repaid in full in the sum of £1038 by April 2005, thus extinguishing the liability of the Claimant. It is also denied that Section 65(1) is relevant in that the Defendant will contend that the credit agreement was enforceable. The Claimant is put to strict proof why he is able to make the assertion of there being an improperly executed regulated agreement between him and the Defendant. The Defendant will contend that Section 65(1) is irrelevant sin since there is no intention on the part of the Defendant to enforce a regulated credit agreement as against the Claimant. Section 127(3) of the Act as repealed by the Consumer Credit Act 2006 will only apply to regulated credit agreements executed after April 2007.

Well this is where I think this gets interesting…Firstly, as stated before an overdraft is regulated under the CCA so there needs to be an agreement of sorts in place. Then secondly, this debt was not settled and actually went into my IVA in 2005! With a balance of £740 still left on it! So this blows this out of the water OR am I missing something once more? This debt has NOT been repaid in full! I have letters chasing me in 2005 and it has been entered in the Court bundle when my IVA went through in 2005. Funny if they are not trying to enforce it why was it entered into the IVA and why did they not say “hold on, you have paid this off mate…”. So they were in fact still enforcing the debt. I do not understand the bit about Section127(3) only applying to regulated credit agreements after 2007 when it was in the CC Act in 1974? Can anyone explain to me what they are on about?

Seems like they have their wires crossed on this one. s127(3) is relevant as this debt was pre-6th april

 

9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40.

The Defendant will deny the Claimant’s assertion of there being an unenforceable credit agreement and will refer to the preceding paragraph. The Defendant will deny that the case of Wilson and others V Secretary of State for Trade and Industry [2003] UKHL 40 is applicable to the facts of this case. The Claimant is put to strict proof as to the relevance of the House of Lords decision.

So since I can prove they were trying to enforce it I guess that blows this one out too? As for the case, it is all about a non existent credit agreement where the credit company had to refund all payments made…in a nutshell anyway.

The wilson case was a little bit different and i'm not sure it is going to be relevant, i'm dying to be proven wrong, however.

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so to get my facts straight, this debt was part of the IVA of which these guys were involved with?

 

Yup they were part of the IVA arrangement, although interestingly enough they were not paid last month...But they were in the initial paperwork that went to the court!

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have they sent you a full statement of account as part of your request under the CCA?

 

No, they have no info and "not obliged to keep it"

 

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yes, they are certainly regulated sir. they are just exempt from PArt V of the act.

 

 

What I thought

 

 

 

Seems like they have their wires crossed on this one. s127(3) is relevant as this debt was pre-6th april

 

Again what I thought

 

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The wilson case was a little bit different and i'm not sure it is going to be relevant, i'm dying to be proven wrong, however.

 

Me too...I am not holding breath, but I really do not believe they will let a judge decide for such small amounts, surely their barrister would cost more than I am claiming? I just want to see their face when we go to court and they repeat the defence and I say "actually your honor, that is not right, here is proof that they were chasing the debt, it was entered into an IVA in this very Court and so what is their defence all about really when they have breached the CCA?"

 

What you recon? No chance or slim one?

 

Penfold

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If the debt has been paid, then their defence is

strong. If they are wrong then their defence is in tatters.

I'd be inclined to leave your IVA bombshell til much closer to the Court day.

Then write and point it out.

They will then realise what a mess they are in and will not want to go to

Court. Then you should be able to negotiate an ex gratia payment that will,

to you, feel like you have got some of your money back. They will also have

to pay your Court fees and any other expenses incurred as a result of the

case. In addition, they must amend your credit file, and make out that it

has been settled.

If you go to Court, the Woolwich/Barclays will get a bashing from the Judge

with possible fines etc which may be higher than your possible exgratia payment. Plus their barrister will cost them on top should you leave it go

to Court. But that will not put money in your pocket. And certainly not

get any money back from the amounts you have already paid.

You will get some kind of compensation but probably not as much as you

could negotiate prior to the case.

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Ok,

 

Thanks for that lookingforinfo,

 

The debt was not paid in 2005 like they have stated and like I said I have letters from Equidebt chasing higher monthly payments! I entered the IVA in 2005 and Woolwich were on the court papers. I settled the IVA early last month so technically it is settled now, but there is no payment to Woolwich from my IP so either they withdrew (after my letters) or my IP agreed with me that they had no claim and did not pay them. I honestly do not know, but I do know what they have written in the defence is most definately wrong...

 

Point taken so I will wait until directions from the judge then depending on timescale email my Barclays Litigation chat a nice little bombshell, how about:

 

Dear XXXXXXX,

 

Thank you for your letter with the defence for Woolwich Bank please be aware that this is not a personal or moral issue, but a matter of legalities and responsibilities. I could very easily just wait for the Judges directions and even our date in Court, but I hope my responses to your defence may help us resolve this earlier and hence not wasting the courts time. Failing that at least I can show the Judge I am trying to resolve the matter. I am happy to continue to communicate via email if you wish, as it saves postage, paper and our planet.

 

What I would like is for your client to admit the case, and be finished with it. I will accept a Bank Transfer/ cheque, as I stated previously, for £1636.00 and that will be that, claim 7LU02480 finished with!

 

I will answer your defence after each point you raised, please feel free to reply or not, as you see fit, though an acknowledgement would be nice. I would also like to point out that I understand case number XXXXXX has just been awarded Judgment. That case was against Monument (Barclays Bank) and whilst I appreciate each case is different it has similar issues with no legal credit agreement in place.

 

1. The Claimant had an account (“the Account”) with the Defendant which was joint with his ex-wife. This was opened on or around 1997 and subsequently sent to a debt recovery firm (“Equidebt Limited”) in 1998

It is admitted that the Claimant had a Woolwich current account number XXXXX

Well at least I now know the account number. I was never given this information in any of the eight different letters I received from Woolwich/ Barclays/ Equidebt/ or Heatons. You would have thought that was the first simple piece of information I could have been given.

 

2. A schedule of payments made to Equidebt Limited is attached to these particulars of claim

It is admitted that Equidebt Limited were engaged by the Defendant in April 1998 to collect on its behalf a debt due and owing from the Claimant in the sum of £1038

Well this is the first incorrect fact you have quoted. I was actually supposed to repay a total debt of £1778.05 NOT £1038 as you have quoted. I have a statement of account from Heatons Solicitors regarding this debt who have confirmed this amount and the payments I made.

 

3. The Claimant made a formal request for a copy of the signed, executed credit agreement for the above account under Section 77(1) and Section 78(1) of the Consumer Credit Act 1974 to the debt recovery company and the Defendant

This is admitted

This was not complied with and hence Barclays/ Woolwich are in breach of the Consumer Credit Act. I understand this debt is from a current account with an overdraft. This is most certainly regulated under the CCA and I do not need to tell you that.

 

4. The Claimant contends that the debt amount was inaccurate and would therefore like proof of how the debt was originally came about as the Claimant was not the main account holder.

It is denied that the debt amount paid by the Claimant was “inaccurate” and the Claimant is put to strict proof as to why he now contends the debt amount was “inaccurate” and why he was not an account holder. It is the Defendant’s contention that the Claimant was an account holder, jointly with another or otherwise.

I believe I said I was not the “main” account holder even if the account was joint. This was my ex-wife’s account and I was added on later. These have not been supplied as yet. I did not say I was not an account holder. I asked for the terms and conditions in place at the time I was added to this account.

I am saying I believe it to be inaccurate because I have no records on the said debt apart from being told over the phone it was an overdraft that was not paid back. As such I believe I am within my rights to question this account, how it came about and everything about it. You are asking me to prove this, however, I cannot without seeing statements of the account and further to 3 above they have not supplied this to me.

 

5. The Defendants obligation to supply these documents has been breached under Section 189 of the CCA 1974 and therefore the debt is unenforceable and cannot now be proved or enforced in a court of Law

The Defendant denies that it is in breach of any obligation to supply documents in compliance with Section 189 of the Consumer Credit Act 1974 and the Defendant fails to understand the relevance of this Section in the context of paragraph 5. The Defendant also denies that the debt is legally unenforceable.

Overdrafts and any credit under £25,000 are regulated under the CCA. Therefore once again Woolwich are in breach as they have not supplied any details whatsoever regarding the debt or account.

 

6. The Defendant contends that the data was destroyed under the Data Protection Act, however, the Information Commissioners Office only issues Data Protection guidelines and as any learned person would know “standard industry practice” does not correlate with “legal right or responsibility”. The Claimant therefore requests a full refund of payments made under this non enforceable debt, interest and court fees going back to its inception.

Under the Defendant’s retention policy of data and records, the Defendant will retain certain data for upto six years after closure of an account. The Claimant is put to strict proof as to the relevance of the information Commissioner’s Office, Data Protection Guidelines. The Defendant does not understand the Claimant’s reference to “standard industry practice” and how this does not correlate with “legal right or responsibility”. The Defendant also denies that the Claimant is entitled to a full refund of payments made. The Defendant also denies this is a “non-enforceable debt”.

Ok where do I start…In simple English for your client there is no Law or Statute that says data must be destroyed only guidelines. I believe (and obviously your client thinks I am wrong) that I have a right to question the accuracy of information held on me. Especially from a Bank who says I owe them money when recent events in the media have shown the Banks in a different light entirely. I am questioning their statements on data destruction so there is relevance in what I said.

By the way Regulation 6 of the FSA’s rules and FSA rule 7.3.2 require financial organisations to retain transaction records for five years after the completion of any transaction. Are monthly payments not transactions then? What was account number 3WXXXX\54\1 all about then? This was the Equidebt account number so even if you say the original account was closed or frozen another was created in its place and given this was also still directly linked to your client, the Defendant. Surely this merits being an active account as transactions are regularly taking place on it and I am sure a Judge would agree with me on that point. If you want to argue that point then why was the account closed with Equidebt in 2005 and they passed the files back to the Woolwich? I have a letter from them to confirm this point. Is the closing of the Equidebt Account (due to the creation of my Individual Voluntary Arrangement in 2005) not a transaction as well? Are you saying that your client was in direct breach of the FSA regulations then as well as what I am claiming they are in breach of?

 

7. The Claimant argues that this account was active by virtue of regular payments being made into it on a monthly basis.

The defendant denies that account number XXXXX is still an active account. Upon making formal demand for payment of the crystallized balance in April 1998, the account ceases to be useable as an account by the Claimant, once it had been referred to the Defendant’s Debt Recoveries Unit in 1998. The payments received from the Claimant were in discharge of the debt balance.

Well I have to say how convenient to say an account is closed and passed elsewhere, but still take the payments! The debt was not sold on and so Woolwich were in direct receipt of the monies paid. As stated before even if you wish to say the original account was frozen another one was created. Please provide me with the definition of what your client defines an account as and also where I signed to agree with that definition. In any case I think I might just let the judge decide on the definition of an active account.

 

8. In accordance with the Act section 142(1)(b) the Claimant requests that the court declares the credit agreement unenforceable under section 65(1) by virtue of section 127(3).

The Defendant does not agree with the Claimant’s interpretation of Section 142(1)(b) of the Consumer Credit Act 1974. The Defendant is not seeking to enforce a regulated credit agreement as the debt due and owing from the Claimant to the Defendant was repaid in full in the sum of £1038 by April 2005, thus extinguishing the liability of the Claimant. It is also denied that Section 65(1) is relevant in that the Defendant will contend that the credit agreement was enforceable. The Claimant is put to strict proof why he is able to make the assertion of there being an improperly executed regulated agreement between him and the Defendant. The Defendant will contend that Section 65(1) is irrelevant sin since there is no intention on the part of the Defendant to enforce a regulated credit agreement as against the Claimant. Section 127(3) of the Act as repealed by the Consumer Credit Act 2006 will only apply to regulated credit agreements executed after April 2007.

Firstly, as stated before an overdraft is regulated under the CCA so there must have been an agreement of sorts in place. Then secondly, this debt was not settled and actually went into my IVA in 2005! With a balance of £740 still left on it! This debt has not been repaid in full, I am sorry to say you have been misinformed here! I have letters chasing me in 2005 for payment and it was entered in the Court bundle when my IVA went through in 2005. If your clients were not trying to enforce it why was it entered into the IVA and why did they not say that I had paid this off in full? So they were in fact still enforcing the debt as I understand they even voted at the creditors meeting. As I am not a lawyer I do not understand what you said about Section 127(3) only applying to regulated credit agreements after 2007 when it was in the CCA in 1974? Please could you clarify this for me?

 

9. By virtue of the unenforceability of the credit agreement as item 10 above, the Defendant has no rights, as precedent set in Wilson and others v Secretary of State for Trade and industry (Appellant) [2003] UKHL 40.

The Defendant will deny the Claimant’s assertion of there being an unenforceable credit agreement and will refer to the preceding paragraph. The Defendant will deny that the case of Wilson and others V Secretary of State for Trade and Industry [2003] UKHL 40 is applicable to the facts of this case. The Claimant is put to strict proof as to the relevance of the House of Lords decision.

Please refer to the above paragraph as Woolwich were in fact still trying to enforce this debt. As for the case, it is all about a non existent credit agreement where the defendant had to refund all payments made. As I stated initially you may wish to refer to case number XXXX for a more recent case, where Barclays (Monument) were trying to enforce an unenforceable agreement.

 

10. Therefore the Claimant claims all monies received by the Defendant or Equidebt Limited to the Account.

The Defendant denies that the Claimant is entitled to return of any monies collected from him either directly or via its agents, namely, Equidebt Limited

I would not expect you to say anything else as I understand you have to go through the motions.

 

Can I make this any better anyone?

 

Thanks,

 

Penfold

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I think you may have been trying to score too many points to get the main

one across.:D

And that occurs in paragraph 8. Tell them that the debt was transferred to an IVA

in 2005 and there is still an amount outstanding.

Therefore

1]they have committed a summary offence by failing to supply a copy of your original agreement. possibly leading to a conviction and a fine of up to £5000.

2]without the said copy the rest of the debt IS unenforceable

3]by misleading the Court they leave themselves open to a charge of Contempt of Court.

4]they will incur further legal fees going to Court to face a lost cause

In the light of these revelations, you will leave it up to their own good

judgement whether they take you to Court or come to a mutual agreement

to avoid any embarrassment on their part.

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I think you may have been trying to score too many points to get the main

one across.:D

 

 

Point taken...Thanks, I will leave it at that. I have Nat West on the same thing, but I actually have a letter from their Cheif exec confirming the debts are unenforceable...lovely...

 

Penfold

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Please refer to the above paragraph as Woolwich were in fact still trying to enforce this debt. As for the case, it is all about a non existent credit agreement where the defendant had to refund all payments made. As I stated initially you may wish to refer to case number XXXX for a more recent case, where Barclays (Monument) were trying to enforce an unenforceable agreement.

 

you also need to be careful about this as it was a pawnbroking agreement, i'm not sure the principles would apply to other credit agreements, although it would be interesting to see what happens in your case.

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you need to be careful becuase although overdrafts are CCA regulated, they are exempt from Part V of the act. This includes items such as s65. I'll try and do some homework if i get a spare minute.

 

Hi Sequenci,

 

I would appreciate the info/ help. Although I am still banking on the fact they will not want to go to Court. They will look very silly quoting incorrect info in their defence and with regards the Wilson case, I know what you mean, however, I thought I read within it something about payments from the credit company being returned due to the lact of a legal agreement? Maybe I am thinking of another case, but at least it is a case to try to push Woolwich with and make them insecure...I hope,

 

Penfold

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Hi,

 

I have just read a post from someone in June regarding an overdraft case in the name of Coutts v Sebastyen. How can I find out what the result was and what it was all about?

 

Anyone please?

 

Penfold

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