Jump to content


  • Tweets

  • Posts

    • These are the photos of the signs. At the entrance there is a 7h free sign. On some bays there is a permit sign.  Also their official website is misleading as it implies all parking is free.  I can't be certain of the exact parking bay I was in that day, and there was no PCN ticket on my car and no other evidence was provided.  parking sign 2.pdf
    • Hi, In my last post I mentioned I had received an email from SS who were asking me to hand over the keys to my mother’s flat so they could pass them to the Law firm who have been appointed court of protection to access, secure and insure my mother’s property.  Feeling this, all quickly getting out of my hands I emailed ss requesting proof of this. I HAVEN’T HEARD BACK FROM SS.  Yesterday, I received an email (with attached court of protection order) from the Law Firm confirming this was correct (please see below a copy of this).  After reading the court of protection order I do have some concerns about it:   (a)   I only found out yesterday, the Law firm had been appointed by the court back in January.  Up until now, I have not received any notification regarding this.  (b)   Section 2   - States I am estranged from my mother.  This is NOT CORRECT    The only reason I stepped back from my mother was to protect myself from the guy (groomer) who had befriended her & was very aggressive towards me & because of my mother’s dementia she had become aggressive also.  I constantly tried to warned SS about this guy's manipulative behaviour towards my mother and his increasing aggressiveness towards me (as mentioned in previous posts).  Each time I was ignored.  Instead, SS encouraged his involvement with my mother – including him in her care plans and mental health assessments.   I was literally pushed out because I feared him and my mother’s increasing aggression towards me. Up until I stepped back, I had always looked after my mother and since her admission to the care home, I visit regularly.   .(c)    Sections -  4, 5 and 7  I am struggling to understand these as I don’t have a legal background.  I was wondering if there is anyone who might be able to explain what they mean.  It’s been a horrendous situation where I had to walk away from my mother at her most vulnerable because of; ss (not helping), scammer and groomer. I have no legal background, nor experience in highly manipulative people or an understanding of how the SS system operates, finding myself isolated, scared and powerless to the point I haven’t collected my personal belongings and items for my mother’s room in the care home.  Sadly, the court has only had heard one version of this story SS’s, and based their decision on that. My mother’s situation and the experience I have gone through could happen to anyone who has a vulnerable parent.    If anyone any thoughts on this much appreciated.  Thank you. ______________________________________________________  (Below is the Court of Protection Order)  COURT OF PROTECTION                                                                                                                                                                                   No xxx  MENTAL CAPACITY ACT 2005 In the matter of Name xxx ORDER Made by  Depty District Judge At xxx Made on xxx Issued on 18 January 2024  WHEREAS  1.     xxx Solicitors, Address xxx  ("Applicant”) has applied for an order under the Mental Capacity Act 2005.  2.     The Court notes (my mother) is said to be estranged from all her three children and only one, (me) has been notified.  3.     (Me) was previously appointed as Atorney for Property and Affairs for (my mother).  The Exhibity NAJ at (date) refers to (me) and all replacement Attorneys are now officially standing down.  4.     Pursuant to Rule 9.10 of the Court of Protection Rules 2017 and Practice Direction 9B the Applicant 2must seek to identify at least three persons who are likely to have an interest in being notified that an application has been issues.”  The children of (my mother), and any other appointed attorneys are likely to have an interest in the application, because of the nature of relationship to (my mother).  5.     The Court considers that the notification requirements are an important safeguard for the person in respect of whom an order is sought.  6.     The Court notes that it is said that the local authority no longer has access to (my mother’s) Property.  7.     Further information is required for the Court to determine the application.  IT IS ORDERED THAT  Within 28 days of the issue date this order, the Applicant shall file a form COP24 witness statement confirming that the other children of (my mother) and any replacement attorneys have been notified of the application and shall confirm their name, address, and date upon which those persons were notified.  If the Applicant wishes the Court to dispense with any further notification, they should file a COP9 and COP24 explaining, what steps (if any) have been taken to attempt notification and why notification should be dispensed with.   Pending the determination of the application to appoint a deputy for (my mother), the Applicant is authorised to take such steps as are proportionate and necessary to access, secure and insure the house and property of (my mother).   This order was made without a hearing and without notice.  Any person affected by this order may apply within 21 days of the date on which the order was served to have the order set aside or varied pursuant to Rule 13.4 of the Court of Protection Rules 2017 (“the Rules”).  Such application must be made on Form COP9 and in accordance with Part 10 Rules.              
    • Unless I've got an incorrect copy of the relevant regulation: The PCN is only deemed to have arrived two days after dispatch "unless the contrary is proved" in which case date of delivery does matter (not just date of posting) and I would like clarification of the required standard of proof. It seems perhaps this hasn't been tested. Since post is now barcoded for the Post Office's own tracking purposes perhaps there is some way I can get that evidence from the Post Office...
    • I would say You should accept it - I HIGHLY doubt you will  be able to claim for letters at trial ans they’re offering you that, which is higher monetary value than interest.   Also they raise a good point, getting interest at anything above 4% is lucky these days, yes judges give it, but rarily above 4%   Also you might find depending on the judge  you don’t get some costs if you take it all the way over £7.40 when court woukdnt award letters costs and thus meaning their award would be less than evris offer which was made    Up to you though but the wait will be 3-4mo for a trial date at least
    • Hi Folks, Been 162 days! Just by way of update. Today I received a text from Opos Ltd so no doubt Capquest are renting the debt out to anybody who fancies a nibble. Safe to say I will not be responding.
  • Recommended Topics

  • Our picks

    • If you are buying a used car – you need to read this survival guide.
      • 1 reply
    • Hello,

      On 15/1/24 booked appointment with Big Motoring World (BMW) to view a mini on 17/1/24 at 8pm at their Enfield dealership.  

      Car was dirty and test drive was two circuits of roundabout on entry to the showroom.  Was p/x my car and rushed by sales exec and a manager into buying the mini and a 3yr warranty that night, sale all wrapped up by 10pm.  They strongly advised me taking warranty out on car that age (2017) and confirmed it was honoured at over 500 UK registered garages.

      The next day, 18/1/24 noticed amber engine warning light on dashboard , immediately phoned BMW aftercare team to ask for it to be investigated asap at nearest garage to me. After 15 mins on hold was told only their 5 service centres across the UK can deal with car issues with earliest date for inspection in March ! Said I’m not happy with that given what sales team advised or driving car. Told an amber warning light only advisory so to drive with caution and call back when light goes red.

      I’m not happy to do this, drive the car or with the after care experience (a sign of further stresses to come) so want a refund and to return the car asap.

      Please can you advise what I need to do today to get this done. 
       

      Many thanks 
      • 81 replies
    • Housing Association property flooding. https://www.consumeractiongroup.co.uk/topic/438641-housing-association-property-flooding/&do=findComment&comment=5124299
      • 161 replies
    • We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
        • Like
  • Recommended Topics

Is This Barclaycrad CCA return enforceable?


nickt1976
style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 5800 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

hi all,

hope this is the correct place to ask this.

could somebody please take a look at this application form/agreement from barclaycard and tell me if it is, as i believe, just an application form or whether it is indeed a true credit agreement.

thanks in advance,

nick

 

lastscan.jpg - Image - Photobucket - Video and Image Hosting

Link to post
Share on other sites

  • Replies 92
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

thanks for your reply, thought so. I am constantly being phoned by barclaycard despite me sending an harassment letter. I am about to send a letter to them telling them I am no longer making payments as the agreement does not conform to s.60(1) and 61(1) of the CCA and unenforceable under s.127(3) of the same act, plus a s.10 is this correct? if not could you point me in the right direction please.

Thanks

nick

Link to post
Share on other sites

Hi Nick,

 

Sorry but I'm not sure of the relevant sections governing the CCA.

 

You will, however find good help and advice in the General Debt forum.

 

You may also find a read of this thread useful as it is similar to yours - http://www.consumeractiongroup.co.uk/forum/barclaycard/110700-orge-barclaycard-2.html#post1189323

 

You'll need to decide whether you want to reclaim unlawful chgs and settle the debt, or try and get the debt written off as it is unenforceable.

 

Slick

  • Haha 1

We could do with some help from you

                                                                PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

                                            Have we helped you ...?  Please Donate button to the Consumer Action Group

 

Please give something if you can. We all give our time free of charge but the site has bills to pay.

 

Thanks !:-)

Link to post
Share on other sites

Hi Nick,

 

That looks a bit like my form, as well!! :) Definitely unenforceable...

 

 

As Slick said, you need to decide whether you will pursue them for charges or write off the debt. I think s.10 is only for removing default notices, although I have no experience of this.

 

 

Will subscribe and keep an eye.

 

 

J

  • Haha 1
Link to post
Share on other sites

Hi slick132 and orge,

 

I am looking to wipe this debt. Sent off this letter(as described above, found on this forum- will post it if you want) today I received a monthly statement from B/card and a letter from Mercers (who incidentally tried to collect on this debt previously but they had no Cca) Default notice served under s.87(i) of Cca:confused:. What to do now? should I CCA Mercers again and write to B/card (copying Mercers) telling them again that they have only sent me an application form or any other advise would be much appreciated as I am sick of the phone calls now from Mercers:mad:. ooooh!, just realized,today I ain't had one... yet!! :)('touch wood') but there's time :(.

any help/suggestions much appreciated.

 

slick132 is your avatar a pic of your own dog?

Link to post
Share on other sites

Hi Nick,

 

Yes he's our very own dog - 3rd Birthday yesterday.

 

I'm asking someone to stop by and take a look for you and to advise on your best next move.

 

Be patient and help'll be here soon.

We could do with some help from you

                                                                PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

                                            Have we helped you ...?  Please Donate button to the Consumer Action Group

 

Please give something if you can. We all give our time free of charge but the site has bills to pay.

 

Thanks !:-)

Link to post
Share on other sites

Hi there,

 

from looking at the document you have posted it is TOTALLY UNENFORCABLE IMHO

 

there are none of the prescribed terms present as required by Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) which was amended by Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482)

 

basically, as you have already CCA'd them for this debt you do not need to send it again.

 

can you confirm who sent you the default notice? was it mercers or Barclaycard

 

i will post up a letter to send them to sort em out this evening, dont worry, as it stands we have a rock solid case here

 

 

regards

paul

  • Haha 1
Link to post
Share on other sites

Thanks slick132,

I've pm'd you, what do you think? re: dog.

 

Thanks pt2537

It was Mercers who sent the default notice today:(, after I sent a letter to B/card this week. I can post this letter up if you want to know what I sent. Thank you and I will await your letter to send them. I think I have a rock solid case,but you never know with any of these.

So far today I have had no calls from Mercers, :) I don't want to mess this up so thanks in advance for all your help.Spoke too soon, they have just rang must have read this........HELLO MERCERS....oh well, I thought I'd had a day without em calling. Harassment letter to you Monday.

nick

Link to post
Share on other sites

Nick,

 

dont worry mate, the default notice is completely irrelevant in this case, the default would be a requirement of section 87 Consumer Credit Act 1974 before they can take enforcement action of any sort, however, in this case they can blow it out their bottoms as they have a unenforcable agreement and therefore they cant do diddly squat as it stands.

 

ive just got in from shopping so bear with me, gotta do the house hold duties and get the kids sorted etc then i will post up a letter to send them:)

 

it will probably be around an hour may be a little longer but it wil be done by the end of the day

 

 

regards

paul

Link to post
Share on other sites

Hi Paul,

thanks a lot and much appreciated, you take your time, when your ready, I'm in no rush. Will be sending Monday anyway. You sound extremely busy and I know what it's like, shoppings a nightmare,:( even so near Christmas and with the kids

nick

Link to post
Share on other sites

Hi Nick

 

Is there any chance you could post the Default notice they sent you? i would like to see if it is complaint with the regulations , if its not its even more ammo to whack them with, it would allows us to state the default is invalid in the letter

 

im sorry ive took so long but ive been working on other things too, ive drafted around half of the letter but would like to add the default notice

 

regards

paul

 

PS if you do post the default then dont forget to remove your personal details

Link to post
Share on other sites

Hi Nick,

 

PM'd you re dog but have a look here for big pic - http://www.consumeractiongroup.co.uk/forum/bear-garden/117074-dogs-bear-garden-6.html#post1252878

We could do with some help from you

                                                                PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

                                            Have we helped you ...?  Please Donate button to the Consumer Action Group

 

Please give something if you can. We all give our time free of charge but the site has bills to pay.

 

Thanks !:-)

Link to post
Share on other sites

Hi Paul,

Good morning, hope your well:). Here is the link to the Default notice (personal details removed) mercers.jpg - Image - Photobucket - Video and Image Hosting

mercers2.jpg - Image - Photobucket - Video and Image Hosting

and thank you for your time, effort and knowledge.I very much appreciate your help and advice and people like you deserve all the praise you get. I also appreciate too that you are helping other people and don't worry as I've said 'no rush for this', as I am not sending it while Monday.

The phone went this morning:( Mercers at 09.01, must have me on speed dial:mad: anyway will await your advice/letter and hopefully get these off my back.

 

slick- will email you the pic re:dog, see what you think?

 

nick

Link to post
Share on other sites

Hi Nick,

 

Ok well, i have a few issues with what they have sent you, but i need to refer to the relevant regulations to make sure that when i slap them, i slap them with the right regs:)

 

i should have everything done by close of play today as im off to the footy, im a long suffering southampton fan you see:)

 

so once i get back i will finalise all the relevent buts and post up a cogent response to these idiots drawing their attention to the relevant legislation and case law that they need to read

 

regards

paul

Link to post
Share on other sites

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

 

Regulation 2(2)

 

Details of agreement

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

(1) The name and a postal address of the creditor or owner.

(2) The name and postal address of the debtor or hirer.

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

Action by the creditor or owner to be ineffective if breach remedied or compensation paid

4

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement that the provision for the

taking of any action by the creditor or owner such as is mentioned in paragraph 6 will be ineffective if the breach is duly

remedied or the compensation is duly paid in the following form--

"IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER

ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH".

Note:

This statement shall follow the specification under paragraph 3© or (d) of any action required to be taken.

Consequences of failure to comply with default notice

5

Where any action is specified under paragraph 3© or (d) as required to be taken, a statement indicating the consequences

of the failure by the debtor or hirer to comply with the default notice in the following form--

"IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE

FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]".

Notes:

1. This statement shall be followed by the specification under paragraph 6 of the further action intended to be taken by the

creditor or owner.

 

2. Creditor or owner to omit words in square brackets if there is no specification under paragraph 6(e) of any action

intended to be taken to enforce any security.

Action intended to be taken by creditor or owner

6

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or

(d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take

by reason of the breach by the debtor or hirer of the agreement--

(a) to terminate the agreement;

(b) to demand earlier payment of any sum;

© to recover possession of any goods or land;

(d) to treat any right conferred on the debtor or hirer by the agreement as terminated, restricted or deferred;

(e) to enforce any security;

(f) to enforce any provision of the agreement which becomes operative only on a breach of another provision of the

agreement as specified in the notice,

at any time on or after the date specified under paragraph 3© or (d), or, if no action is specified under that paragraph as

required to be taken, indicating the date, being a date [not less than fourteen days] after the date of service of the notice,

on or after which he intends to take any action indicated in this paragraph.

Retaking of protected hire-purchase etc, goods

[in the case of a hire-purchase or conditional sale agreement relating to goods,

(a) made on or after 19th May 1985, where the property in the goods remains in the creditor; or

(b) made before 19th May 1985, where the debtor has not himself put an end to the agreement by virtue of any right

vested in him and where the total amount payable under the agreement does not exceed £7,500,

a statement in the following form--]

"BUT IF YOU HAVE PAID AT LEAST ONE-THIRD OF THE TOTAL AMOUNT PAYABLE UNDER THE

AGREEMENT SET OUT BELOW (OR ANY INSTALLATION CHARGE PLUS ONE-THIRD OF THE REST OF

THE AMOUNT PAYABLE), THE CREDITOR MAY NOT TAKE BACK THE GOODS AGAINST YOUR

WISHES UNLESS HE GETS A COURT ORDER, (IN SCOTLAND, HE MAY NEED TO GET A COURT ORDER

AT ANY TIME.) IF HE DOES TAKE THEM WITHOUT YOUR CONSENT OR A COURT ORDER, YOU HAVE

THE RIGHT TO GET BACK ALL THE MONEY YOU HAVE PAID UNDER THE AGREEMENT SET OUT

BELOW".

Note:

This statement shall follow the specification under paragraph 6 of the further action intended to be taken by the creditor

or owner and be followed by--

(a) either

 

(i) the total amount payable under the agreement, or

(ii) where there is an installation charge, separately, the amount of the installation charge and the rest of the total

amount payable under the agreement; and

(b) the total amount that the debtor has paid to the creditor by the giving of the notice.

Requiring earlier payment of any sum

8

Where a sum of money is required to be paid under the notice,

(a) the amount of the sum before deducting the amount of any rebate on early settlement;

(b) where any rebate on early settlement is allowable under the agreement or by virtue of section 95 of the Act--

(i) the amount of the rebate allowable calculated on the assumption that early settlement takes place on the date

specified in the notice for earlier payment of the sum; and

(ii) the total amount to be paid after taking into account the amount of any rebate on early settlement, namely the

difference between the amount shown in paragraph (a) above and the amount shown in sub-paragraph (i).

[Ending the agreement

8A

Where the agreement is a hire-purchase or conditional sale agreement, a statement in the following form--

"You [may] [NOTE 1] have the right to end this agreement at any time before the final payment falls due.

Note that this right may be lost if you do not act before the date shown (after which we may take action).

If the date for final payment has not passed and you wish to end this agreement, you should write to the person to whom

you make your payments. [You will nee

d to pay [NOTE 2] if you wish to end this agreement by the da

te shown and we will be entitled to the return of the goods. You will also be liable for costs if you have not taken

reasonable care of the goods.] [NOTE 3].Note that if you end this agreement, this will not necessarily terminate any

insurance finance agreements that are linked to this agreement.NOTE 1: creditor to omit the word "may" in the case of a

hire purchase agreement.NOTE 2: creditor to insert the amount to be paid by the debtor calculated in accordance with the

provisions of sections 99(2) and 100 of the Act and on the assumption that the debtor terminates the agreement on the

date shown in this notice.NOTE 3: creditor to insert the passage in square brackets where the debtor's right to terminate

under section 99 of the Act subs

ists.".]Time order9A statement in the following form indicating that the debtor or hirer is entitled to apply under

section 129 of the Act in England and Wales to the county court, in Scotland to the sheriff co

[interest payable after a judgment

9A

Where an agreement makes provision for the charging of post-judgment interest in connection with a judgment sum, a

 

statement in the following form--

"You should be aware that if we take you to court and get a judgment against you requiring you to pay us the money you

owe us under the agreement, you may have to pay us both the amount of the judgment and interest under the agreement

on all the sums owed by you at the date of the judgment until you have paid these in full. This means that even if you pay

off the whole amount of the judgment, you may still have a further sum to pay.".]urt or in Northern Ireland to the High

Court or the county court for a time order--

"IF YOU HAVE DIFFICULTY IN PAYING ANY SUM OWING UNDER THE AGREEMENT OR TAKING ANY

OTHER ACTION REQUIRED BY THIS NOTICE, YOU CAN APPLY TO THE COURT WHICH MAY MAKE AN

ORDER ALLOWING YOU OR ANY SURETY MORE TIME".

General

10

A statement in the following form--

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE

YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR

NEAREST CITIZENS' ADVICE BUREAU".

[10A

A statement in the following form--

"This notice should include a copy of the current Office of Fair Trading information sheet on default. This contains

important information about your rights and where to go for support and advice. If it is not included, you should contact

us to get one.".]

11

A statement in the following form--

"IMPORTANT--YOU SHOULD READ THIS CAREFULLY".

 

 

that what the law says the default must look like, and the BLOCK CAPS must also appear on the default as its written, this one is seriously flawed, im gonna have fun with this

 

dont worry nick, they are sh!te out of luck with this

 

regards

paul

  • Haha 1
Link to post
Share on other sites

Hi Paul,

Thanks for your help and support. hope Southampton pull a win out of the bag for you, old Trafford faithful myself of 25+ years and that hasn't always been a rose garden despite what people think. I look forward to sending these packing as the daily phone calls start to wind you up (slightly) although you know they are in the wrong and that they are treading on dangerous ground.

nick

Link to post
Share on other sites

well,it would P1 but the default notice is flawed and therefore not legally compliant with the law. i prefer to raise all relevant facts as opposed to just merely saying well you dont have a cca agreement. however, this is my way of doing things due to the way ive been trained while undertaking my degree

 

i appreciate others prefer the short and sweet approach, i prefer to kick hard and long

 

regards

 

paul

  • Haha 1
Link to post
Share on other sites

well,it would P1 but the default notice is flawed and therefore not legally compliant with the law. i prefer to raise all relevant facts as opposed to just merely saying well you dont have a cca agreement. however, this is my way of doing things due to the way ive been trained while undertaking my degree

 

i appreciate others prefer the short and sweet approach, i prefer to kick hard and long

regards

 

paul

 

Nothing wrong with that at all !! :D

Link to post
Share on other sites

Hi Paul and P1,

 

all I want to do is make sure, down the line that they can't pull anything out of their hat and hit me with it, as I want them gone and gone for good which is why I want to be able to do this right.Will await your letter Paul.

Thanks

nick

Link to post
Share on other sites

LETTER BEFORE ACTION

DO NOT IGNORE THIS LETTER

XX/XX/2007

Dear Sirs,

Account no xxxxxxxxxxxxxx

Re: my request under the Consumer Credit Act 1974

 

 

I note that you are acting as agents to Barclaycard therefore I draw your attention to the facts below.

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

 

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

In addition to the above, I note you have recently sent me a Default Notice under S87 (1) Consumer Credit Act 1974. I am sure you are aware a Default Notice is needed before a creditor can terminate the agreement or demand repayment. However the default must be accurate and comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). The document purporting to be a Statutory Default Notice does not comply with the requirements of regulation 2(2) SI 1983/1561 and schedule 2 of the same document for the following reasons

 

Firstly, the document does not state the name and postal address of the creditor. I note that your address is present; you are not the creditor under this agreement. Also the document does not sufficiently state the nature of the breach and term of the agreement, which has been breached. Also the statutory terms, which are required to be capitalized, are not

 

For example

 

“IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH ”

 

Or

 

“IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]”.

 

However on your Default Notice these statements are shown in lower case and therefore not in compliance with the Consumer credit Act 1974 or the regulations referred to above

 

Also the regulations require the Default Notice to contain a statement in the following form—

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

This excerpt is taken from the SI 1983/1561 itself and clearly your copy of the Default Notice does not contain this required statement either. There is a body of case law, which has confirms that where a statutory default notice issued under section 87(1) not compliant with the Consumer Credit Act 1974 and the subsequent Regulations it does not allow a creditor to terminate the agreement or demand repayment etc. In addition your attention is drawn to the fact that Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful termination of contract which would not only prevent a court enforcing any alleged debt, but give me a counter claim for damages via the ruling in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Therefore you would be rather foolish to attempt to add any adverse data to my credit file while this account is subject to a Serious Dispute

As it stands, the document supplied by Barclaycard is not a valid credit agreement nor is it enforceable by any court

 

What I Require

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

 

Regards

 

 

 

 

 

Hi Nick,

 

this is my suggestion to send mercers

 

i have only just finished writing it so its probably best that i just revisit it in the morning just to check it over as im quite tired at the mo.

 

they may put up a fight but as it stands there is more than enough here to render the debt unenforceable in court and they will know it

 

i will look in tomorrow and make sure the letter reads right

 

regards

paul

Link to post
Share on other sites

Nice letter, Paul!! :)

 

 

They've sent me a carbon copy of Nick's default notice,*so I may have to "borrow" that one! ;)

 

 

I do wonder wtf Mercer's/BCard's legal team are doing to earn their keep?? Surely a 1st year law student would be embarrassed to make these kind of mistakes with agreements and other provisions of the Consumer Credit Act? It seems that most (all?) credit taken out with BCard until 98-99 (maybe later?) is unenforceable

 

 

Muppets.

*

J

P.S. I'd like to see that in the papers...

Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...