Bryan Carter & CO (Natwest Credit Card)

[Mister Twister]

I have three old credit card accounts that are all in dispute. I have decided to have a different thread for each creditor so I don't get confused.

 

MBNA Thread

http://www.consumeractiongroup.co.uk/forum/general-debt/128872-mbna-enforceable.html

 

Cabot Thread

http://www.consumeractiongroup.co.uk/forum/cabot/127281-cabot-returned-my-1-a.html

 

___________________________________

 

I sent a DCA request to Bryan Carter & Co which was recieved by them on the 15th January 2007.

 

2 days later I recieved the following reply.

 

 

 

I did not respond to the above letter since I did not want to speak to them and thought they could not enforce the debt unless they complied with my CCA request.

 

Today I recieved the following letter:

 

 

So they have not complied within 14 days of my request but are threatening court action instead. I know they will probably issue a small claim for part of the debt as they have done this before a few years ago. I got a CCJ but paid them immediately and applied ot the courts to have it removed from my credit file - which they did.

 

I am worried that because this has been to court before that I won't be able to dispute the debt.

 

I think the Natwest Credit Card was taken out around 1992 so I they might struggle to put their hands on the original Agreement or even an application form.

 

I think the next move is to write back. Any advice would be greatly appreciated.

[pt2537]

Hi there,

 

can i just confirm, this account that they are pursuing you for, is it subject to a CCJ? or was that on another account?

[Mister Twister]

A couple of years back Bryan Carter files a small claim against me for a small part of this debt.

 

I admitted to the claim in the response pack court forms (this was on the advice of the CCCS) I then immediately payed Bryan Carter and Co the £295 they were demanding plus court costs.

 

I recieved a copy of Judgement for Claimant. Because I had paid the amount immediately I applied to the courts to remove the CCJ which they did once I supplied a reciept to prove that I had in fact paid Bryan Carter Co 363.54

 

In the POC used by Bryan Carter & CO. They only claimed part of a debt but it does mention the full debt of $4727.92

[Mister Twister]

Just bumping my post in the hope I get some help on this.

 

Thanks.

[pt2537]

Hi there, sorry, ive been busy.

 

erm im a little confused, this account has already been subject to litigation and now they are chasing you for the rest?

 

that doesn't sound correct,they should have recovered the whole debt AFAIK,

 

was it this debt and did you pay the CCJ?

[pt2537]

in any case they should produce a compliant credit agreement for the account to have any legitimate right to take legal action

[Mister Twister]

Yes it was part of this debt. For some reason they only asked for missed payments plus court costs, not the whole amount.

 

I have a copy of the court forms and judgement if you would like me to post them here?

[NitrousOxide]

I understand what you are saying,

This the second time this crowd have been involved with this debt by any chance?

[Mister Twister]

Yes this is the second time.

[NitrousOxide]

PT is this correct?

35. Division of causes of action.

It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.

[Mister Twister]

If you are right then I think I need to post the POC they used as this contains the whole amount as well as the amount claimed.

 

[Mister Twister]

OK - We guessed this would happen!

 

Today I recieved a new claim from the courts for the whole amount owed £4039 thay have added solicitors costs and court fees so the total claim is for £4202.

 

There has been no communication from Bryan Carter since I CCA'd them and they have failed to provide me with a copy of the credit agreement which was requested by recorded post and signed for on the 15th January 2008.

 

I know they can't enforce this but I dont know how to respond to the claim, is there a template for this or could someone point me in the right direction?

 

Thanks in advance.

[steven4064]

Hi MT

 

What you need to do is to submit a defence. You have 14 days to acknowledge receipt of the claim and that you intend to defend it. Use form N210. This will give you 28 days from the date of service to put a defence together.

[Mister Twister]

I have now acknowledged the claim and stated 'I intend to defend all of the claim'.

 

The alleged debt is from a credit card taken out about 12 years ago and I know there is no credit agreement although they might be able to find an application form, but I doubt it.

 

They have failed to respond to by CCA request and only decided to make a claim as soon as I chased them for it! (Idiots)

 

Is there a standard defence I can use?

 

Should I be making a counter claim for the removal of the default on my credit file or just concentrate on getting this claim struck out first?

[steven4064]

If you are going to go for default removal then this should go as a counter claim.

 

There isn't a standard template for this but we can help you draw one up.

[steven4064]

First draft of a defence and counter claim:

IN THE XXXXXX COUNTY COURT

CLAIM NO: XXXXX

BETWEEN

 

 

BRYAN CARTER & COMPANY LIMITED

CLAIMANT

 

 

AND

 

 

 

MISTER TWISTER

DEFENDANT

 

 

 

 

 

 

DEFENCE AND COUNTER CLAIM

 

 

 

Background

 

1. The Defendant entered into an agreement (“the Agreement”) with National Westminster Bank Plc for the provision of a credit card number xxxxxxxxxxxxxxx (“the Account”) on or around date.

 

2. On or around date, National Westminster Bank Plc passed the Account to the Claimant for collection.

 

3. On date, the Claimant commenced court action for payment of the Account (Claim No: xxxxxxxx in the XXXXXX County Court). The judgement of the court was in favour of the Claimant and the Defendant consequently paid the Claimant the sum of £295 plus court costs in settlement of the claim.

 

4. On or around date, the Claimant entered a default marker against the Defendant’s credit file. This default marker has injured the Defendant in that, in consequence, he has not been able to avail himself of advantageous credit terms.

 

5. On 13 January 2008, the Defendant sent the Claimant a request pursuant to s78(1) of the Consumer Credit Act 1974 for a copy of the executed agreement applicable to the Account. The Claimant received this request on 15 January 2008 but has not complied with this request within the statutory period or at all.

 

6. On 29 January 2008, the Claimant issued a Final Notice for the Account and threatened court action if payment of the outstanding balance of £4039.26 was not received by 5 February 2008.

 

Defence

 

7. The Claimant has not complied with the Defendant's request under s78(1) of the Consumer Credit Act 1974 within the statutory period or at all. Consequently, the Claimant is not entitled to enforce the Agreement by virtue of s78(6) of the CCA 1974. Further, because a further calendar month has elapsed since the expiry of the statutory period, the Claimant has committed a summary offence under s78(6) of the CCA 1974.

 

8. Further, the Claimant has already received judgement in the County Court for this debt. Consequently, this action constitutes division of cause of action contrary to s35 of the County Courts Act 1984.

 

Counter claim

 

9. Since the Claimant cannot produce a copy of the Agreement, it cannot demonstrate that it has the right to process the Defendant’s personal data, in particular in placing a default marker against the Defendant’s credit file, contrary to the Data Protection Principles in the Data Protection Act 1998.

 

10. Further, since the debt has been the subject of an earlier court action and resolved thereby, the default is inaccurate contrary to the Data Protection Principles in the Data Protection Act 1998.

 

11. The claimant therefore requests and claims:

 

i) the court to use its powers under s142 of the Consumer Credit Act 1974 to determine the rights of the parties in this action;

 

ii) the court to issue an order under s14(1) of the Data Protection Act 1998 requiring the Claimant to remove the default marker from the Defendant’s credit file;

 

iii) compensation at the court's discretion pursuant to s13 of the Data Protection Act 1998; and

 

iv) court costs.

Any comments? Anyone?

[Mister Twister]

Thank you - excellent work Steven, especially since most people are having there Easter break just now while you guys are dishing out great advice..

 

My only question is this; should I actually admit that an agreement exists or should it be an alleged agreement? Could I argue that there is no CCA therefore no agreement and even if an agreement did exist it has already been subject to a claim?

 

I know this sounds as if I am contradicting myself but I remember the banks doing something similar in their defence to my charges claim.

[steven4064]

I thought about that myself and wasn't quite sure - I have asked some of my colleagues to have a look at my post above, so hopefully one of them might have an opinion.

 

It may be academic though as I suspec that s35 of the County Courts Act 1984 might actually be the 'killer' as far as thier case goes.

 

I have a couple of questions myself - presumambly you have all the details of the earlier claim (court, claim number)? When you talk about your charges claim, do you mean a calim on this same account? If so, could you post their defence, or at least the relevant bit about the agreement.

[pt2537]

Carters seem to do this all the time splitting the cause of action into two or more smaller claims. its about time someone made a complaint to the Law Society and the LCS as its completely out of order and as solicitors they should be fully aware of the law

[Mister Twister]

Just to confirm.

 

I have all the original paperwork from the previous claim they made. An edited copy is available on this thread.

 

The claim I made in relation to bank charges was on a different account.

 

I feel to make the defence more watertight we should use both arguments if we can, but I am sure someone here will have advice on that.

 

Also I am worried about being available to defend the claim as I am away in the US between 28th April and 22nd May. If I let the court know this will they take it into consideration when setting deadlines? I will obviously submit the defence before before the 28 days are up, but might not be around for the allocation questionaire. Could I stall things by making a CPR request or something similar to Bryan Carter? (Another tactic used by the banks when defending my claim).

 

I know I keep saying thanks - but I mean it.

[Mister Twister]

On the original claim form the POC contained the following:

 

 

FOR THE AVOIDANCE OF DOUBT IN MAKING THIS CLAIM FOR PART OF THE DEBT THE CLAIMANT DOES NOT WAIVE ANY RIGHTS AS TO THE BALANCE OF THE DEBT. WHICH THE DEFENDANT CONTINUES TO OWE TO THE CLAIMANT UNDER THE AGREEMENT. THE CLAIMANT RESERVES THE RIGHT TO MAKE A FURTHER CLAIM FOR SUCH SUMS OF THE DEBT AS REMAIN OUTSTANDING.

 

Does this throw a spanner in our works?

[pt2537]

County Courts Act 1984 (c. 28)

 

35. Division of causes of action.

 

 

It shall not be lawful for any plaintiff to divide any cause of action for the purpose of bringing two or more actions in one or more of the county courts.

 

id say not, in fact it is very damming on them as s35 above shows

[steven4064]

I agree and in fact,as I said earlier, I think the s35 part is the killer part of the defence in what I wrote earlier.

 

Coming back to the earlier question about not acknoweldging the debt and the 'alleged' agreement - I think that is not the right way to go with this one because of the fact there has already been the court case. That effectively means that the court will assume there was an agreement and, as PT an dI have both said, the previous case is a strong defense because of s35.

 

On ther matter of dates, the AQ has a section where you fill in dates when you are not available so that shold not be a problem.

[Mister Twister]

IS THIS LEGAL?

 

I have entered my defence and counter claim and have also completed and returned the AQ. I am now awaiting a hearing date.

 

Today I recieved the following letter from Bryan Carter & Co stating that they have a County Court Judgement against me! This is total fabrication. Have they commited a criminal offence?

 

I am out of the country from April 28th and will be away for a month. I would like to act on this but would have to write any letter toaday so help would be much appreciated.

 

[pt2537]

Right well, a complaint to the Solicitors Regulation authority is a must, this is outrageous

 

a letter to the court is a must tooooo

 

and one to these morons as well.

 

the letter to the SRA, i would point out the unlawful division of the claim contrary to s35 County Courts Act 1984 too