Did they give a specific calender date to remedy by and was it at least 14 days from you receiving the notice?

Maybe being picky here, but could be worth it as you can get good results on default notices.

Do you have a record of the date you received the DN?

The DN has to specify a date not less than 14 days from the date of service of the notice.

Assuming the DN was posted 1st class the day it was printed, they have to allow 2 working days for delivery. A working day is defined as Monday to Friday, excluding bank holidays.

If it was posted Friday, then sat/sun don't count, then 2 days means the date of service would be the Tuesday. Then you count 14 calendar days from there.

Does that make any difference? Apologies if you know all this, I'm enthusiastic about DN's

Sunflower99, that's brilliant. Thanks. Tipped your scales

Reclaimit09, Sunflower's post above should be a perfect next move for both of us

Surely you can't have "enforced consent"? If it is enforced then it is simply not consent.

Barclaycard.

They sent me T&C's only. They seem to think that this is a CCA. They had verbal diarrhoea when I told them T&C's that don't even have my name on are not a CCA. They've passed it to mercers...I ain't paying a penny til I see an enforceable CCA. Could be a long wait.

I'm thinking of a demand for contractual justification for the involvement of a 3rd party. Demanding a real contract (not just t&c's) proving any obligation to pay them anything, as well as proof of any obligation to deal with a third party.

I'm also thinking of writing my own T&C's! They won't like them! No claim either party is bound by them, no signatures, no name or address of contracting parties etc. If it's good enough for them, it's good enough for me.

Barclaycard sent me a snotty reply saying what they sent me is good enough. Before I could reply, I got a phone call and a letter from Mercers:-x

BC have still not supplied anything resembling an agreement, and won't get paid til they do.

I hate Mercers with a passion, they bullied and harrassed my 78 year old mother-in-law to the point that we thought the stress would drive her into an early grave (I'm not exaggerating, her health was suffering) Anyway, I'm not prepared to deal with these scumbags for any reason.

Any ideas on the best way to get rid Mercers, and who to complain to (and how) would be greatly appreciated.

I don't think the loans being from 08 means they are automatically enforceable, but it does mean if they are dodgy agreements they are not automatically unenforceable as the courts don't have to follow sec 127 anymore.

They also have electronic signatures. Does that make a difference?

If they cant' show me a CCA would that stop them (legally at least) enforcing the 'agreement' at least until they do?

I see you have changed banks thats a start, now reclaim the charges

 

if you have cca these loans have they been checked for enforceability?

 

Are the loans secured or unsecured?

 

are there any charges on the loans that can be claimed back?

 

from now on only ever deal in writing.

 

it may be easier to split the issues into seperate threads.

 

I personaly would not IVA or go bankrupt, but that is a decision only you can make

Thanks PGH,

I have CCA'd the loans and still not got replies. Should have sent special delivery

2 of the loans are from 2008. Do they need a CCA, or are they automatically enforceable?

The other loan has prescribed terms on one page and signature on another (it was printed from the internet - I still have my copy but CCA'd them anyway)

I've also made a complaint about non-receipt of CCA's.

All of it is unsecured and I don't own property, so they can't screw me over by making an unsecured loan into a secured one.

The overdraft is still stacking up charges, the question is when to start reclaiming?

I would argue that the agreement is a standard form, and your signature on page 5 doesn't prove you signed to agree the terms on page 1 as they could put anything on page 1.

Was the agreement double-sided?

It seems to have the signature on a separate page from the prescribed terms. Doesn't this make it unenforceable?

I've got 2 loans with electronic signatures from 2008. Haven't seen the 'agreements yet'

Are there any ways these can be beaten?

I know about dodgy DN's, but these might be ok. Any other possibilities?

Thanks sunflower, I've used the second of your letters.

and am now a bit bothered about the whole "credit cards dont have CCA's thing"

DCA's will say anything they can think of to convince you to pay. They lie in writing as well, but you get longer to think before you respond.

As long as the agreement was pre 2007, they need a correctly executed CCA to get an enforcement order. If they show you one - negotiate!

Thanks smouk & SP. I think I'll send this, and follow it up with some kind of "get lost" letter when they send me complete BS back.

Firstly, this matter will be dealt with in writing only. There will be no communication by any other means.

This account is in dispute, and will remain so until a valid agreement is received. The application form showing no prescribed terms supplied by your competitor Newman & Company is not a correctly executed agreement, and as such, is unenforceable. Newman gave up in the end because even they know the ‘agreement’ is unenforceable.

Without a correctly executed agreement there is no basis for legal action. The courts are prohibited by s127(3) of CCA1974 from enforcing the alleged agreement based on the documentation previously supplied.

The document required is a true and complete copy of the executed agreement that contains all of the prescribed terms, all other required terms and statutory notices and was signed by both the original creditor and myself as defined in section 61(1) of CCA 1974 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, a copy of that document should also have been sent.

Your client has failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, and failed to provide any of the other 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.

The default notice was also faulty, as it did not allow for postal service. This limits any potential claim Amex may have to the amount stated in the default notice itself, which is £146. This may also give rise to a counterclaim for unlawful recission of contract.

I would respectfully suggest that you pass this matter back to American Express with the recommendation that they locate a correctly formed agreement before they waste any more time on this. Of course, if a genuine agreement is located, negotiation would then be offered in good faith.

suggest you send the one on this forum (see templates) if you did not quote s77/79 of the cca as your basis for the request with a one poun p o and send recorded dly

Will do. Have raised this as a complaint. But what the hell. I'll send them a standard cca request as well.

My copy of the contract looks like the one linked from post number 4 of this thread:

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/170521-barclays-loan-help.html

Prescribed terms on one page, signature on the other. Main difference is I don't have PPI.

I'm thinking I can get rid of about 11k

was that a s78 cca request?

No, it was a form letter from *EDIT*

It does demand the signed document.

ska1664,

Did you get a default notice?

If so, can you post it. If they've screwed up the DN, you get away with a lot:D

Any views on my intended reply to AIC?

I have had long and detailed correspondence about the above referenced account with your competitor, Newman and Co. I am indeed surprised that they appear to have given up. It may be of benefit to you to ask American Express for copies of correspondence between me and Newman.

We appear to have established some clear facts, but one key question remains unanswered, and a clear response is needed from American Express on this issue. Maybe you will be able to help with this, as it is of particular importance.

The question I, and others, are awaiting a clear answer to is:

"I’m now aware that securitisation is American Express’s main funding mechanism for its loan book and it seems at least possible, therefore, that the alleged account referenced may have been so treated. Given that the alleged account, although aggregated for this purpose, necessarily links back to individuals it seems clear that basic information as to whether or not a given account forms part of a securitisation pool by having been sold to an SPV is essentially personal data.

However, I have previously not been made aware of any reference to transactions with third parties involving alleged accounts associated with me. That should therefore mean that the alleged account is not now and has not been part of any securitisation pool or otherwise traded with bodies outside the American Express group including but not limited to SPVs. Therefore, in line with the Pre action Protocols, I require confirmation that this is, or is not the case."

I have already seen their form letter which uses lots of words to not actually answer the above question:

"Your account is funded by American Express Services Europe Limited. We do not believe it is necessary to provide any further information as to the source of funding as it is irrelevant to the issue at hand. To suggest that we would not be entitled to recover debt accrued by you through your use of the card is simply wrong.

We are in no doubt as to the fact that the debt is genuinely owed by you.........provided you with documents necessary to evidence the debt. If you genuinely believe that the debt is not owed to us, we would ask you to provide details of the company to whom you believe the debt is owed. Clearly it cannot be the case that you have spent a significant amount of money on your credit card that has not been paid back, without their being a legal entity to which that money should be repaid."

Put simply, the question is: “Has this account been securitised or not?”

A simple and direct answer would be nice!

Notwithstanding the above, I seem to have clearly established by rather tedious dialogue with Newman & Co (they don’t seem to answer questions very well either) the following two points:

1. There is no valid consumer credit agreement in relation to this account. As such, it is completely unenforceable at law, by virtue of s127(3) of the consumer credit act 1974.

2. The default notice issued on 21st April 2009 was invalid as it did not allow time for postal service. As you know, this must be included in the notice itself, they can’t just wait a couple of extra days. This limits the maximum possible liability to the amount stated on the defective default notice £146, and even then, this amount only becomes payable if a valid CCA exists.

be careful of sending letters "without prejudice" if you want to refer to any part of them in court!!

Thanks diddydicky, I actually would want to use that. If they 'find' a valid CCA, I would want to prove that as I had already offered the £146 on the dodgy DN, there was no basis for them to sue me for the same amount.

Could some of those more experienced caggers than myself please take a look at the alleged agreement linked on post number 4.

Am I right about this?

It appears to be from Nov 2005.

The prescribed terms appear to all be on one page and the signatures on the other.

Am I correct in thinking this makes the 'agreement' completely unenforceable?

I'd really appreciate any input on this as I have one of these coming from Barclays, with no PPI. (never trusted it!)

Yes. Demanded "contract signed by, and therefore binding both parties"

And "the actual accounting" which would prove whether they actually lent me any real money or not. (Or did they just monetise my signature?)

Also, demanded their assurance that the "original instrument of indebtedness will be returned to me in its original form on final settlement"

I don't really know what that means, but wanted to find out, so I demanded it.

There is a form letter offering full settlement in immediate exchange for the original instrument of indebtedness in its original form. Apparently banks don't accept this offer.

i'm not sure that you can put someone to strict proof of a negative

Would putting them to strict proof of ownership of the debt be good enough to prove it hasn't been securitised?

You've taken my question out of context.. I was referring to using a notary public.

 

S.

Fair point, was looking for ideas to reduce their costs (dunno why..)

If they could prove their case, they should be able to reclaim those costs.

What I'm most interested in is whether we can use a notary to get a default judgement against them, hence the link to tpuc above.

http://www.tpuc.org/forum/viewtopic.php?f=4&t=3384

I CCA'd barclaycard and got T&C's only, one old and one new. They had a covering letter which wasn't an agreement, but one had credit limit, current balance and stuff. The T&C's don't even identify me.

I sent the standard dispute letter. "Your T&C's are not a contract"

They sent a form letter with so much BS on it, I barely know where to start in replying. Any thoughts, or form letters for this?

They said all this:

Reference: Section 78 of The Credit Consumer Act 1974

I write further to the letter whereby you note dissatisfaction to

the documents you received in relation to a request made under

Section 77/78 of the Consumer Credit Act 1974.

Firstly, credit cards are regulated under Section 78. Section

78(1) of the Act states that the creditor shall give the debtor a

copy of the executed agreement and a statement of account which is

practicable to refer. Regarding a statement of account which is

practicable to refer, the letters which we send in response to a

Section 78(1) request includes this information. To cover the

issue of executed agreement.

How does the Act define an "executed agreement"?

"Executed agreement" is defined in section 189 of the Act as, "a

document, signed by or on behalf of the parties, embodying the

terms of a regulated agreement ".

What do the rules say about providing a copy?

The Consumer Credit (Cancellation Notices and Copies of Documents)

Regulations 1983 ("the Regulations") made under the Act deal with

how we are to provide a "copy" of an agreement. These Regulations

provide that any copy of the agreement supplied to a debtor should

be a 'true' copy. Regulation 3(2) provides that a copy may omit

certain information, which allows you to be provided with a true

copy, not a complete copy.

What happens if the original agreement has been varied since it

was originally signed?

The Regulations also set out what should happen where the

agreement has been varied since it was signed. Regulation 7

provides creditors with a choice of including in the copy of the

executed agreement either a copy of the latest notice of variation

relating to each discrete term which has been varied, or an easily

legible statement of the terms varied. Regulation 7 does not

state that the copy of the agreement shall include a statement of

the original terms as well as a statement of the varied terms.

Regulation 7 allows us to provide you with a "true copy" which

sets out the terms and conditions current at the time of provision

of the copy.

Conclusions in relation to the document we have to provide

A "copy" of an agreement will satisfy the requirements even if the

signature box and/or the signatures are not included as clarified

by Regulation 3(2) of the Consumer Credit (Cancellation Notices

and Copies of Documents) Regulations 1983.

The definition of "executed agreement" refers to a document

embodying the terms of the regulated agreement. When this is read

with Regulation 7 - for agreements that have been varied - a copy

of the original agreement would not embody its terms. A copy of

the agreement as varied would embody its terms.

The issue of what is an executed agreement has been interpreted in

the High Court. It was held that an executed agreement begins as

the credit agreement which is sent to the cardholder when they

receive their credit card; therefore, establishing what is the

original executed agreement. When the agreement has been varied,

Regulation 7 mentioned above applies.

To summarise, if the agreement has not been varied, we must send

the original executed agreement; this would be the credit

agreement which is currently regulated. If the credit agreement

has been varied, we must send the current credit agreement as this

- will contain the terms of the regulated agreement. We have sent_

you this and the original executed agreement for reference.

To address any issue about our lack of compliance with Section 60

of the Consumer Credit Act 1974. Section 60 relates to the form

and content agreements. All Barclaycard credit agreements are in

compliance with this. You may state that the application form

which we provided you, for reference, when you made a request

under Section 78 does not adhere to Section 60. This is not a

complete copy of your application form, but rather an excerpt to

show you signed a contract with us. When you completed your

application form, the document would have been presented to you in

full, in a legible form, and would have adhered to the requirements under Section 60 of the Consumer Credit Act 1974.

I hope this letter has helped with your concerns about the

documents you have been supplied with under section 78 of the

Consumer Credit Act 1974. As our response fulfils the obligation

under Section 78 of the Consumer Credit Act 1974, you should carry

on paying the debt you have accrued on your account. We do not

class the account as in dispute, you have been supplied with the

relevant documentation under Section 78 of the Consumer Credit Act

1974, and we will carry on with collection services. If you send

us further correspondence questioning compliance with these areas

of law, we are not obliged to respond beyond the statutory

response we have already given you. We would require you to

provide comprehensive legal and documentary evidence to support

your claim to ascertain whether response is necessary.