Walton v Barclaycard

[paulwlton]

No response from BC regarding my LBA. I will submit my POC into court next week.

 

Thanks to pt.

 

Paul

 

n the Rotherham County Court

Claim number

 

 

 

 

 

Between

Paul Walton - Claimant

 

and

 

 

Barclaycard plc- Defendant

 

 

Basis for claim

 

The Credit Agreement

 

 

 

1. On the 03/12/2007 The Claimant wrote to the Defendant requesting a true copy of the executed credit agreement pursuant to section 78(1) of the Consumer Credit Act 1974. The Defendant upon receipt of such request has a duty to supply the documentation within 12 working days as prescribed by Statutory Instrument 1983/1569 Regulation 2.

 

2. On the 12/12/2007 in response to the Claimants request I received a copy of an application form from the defendant (Attached to this claim marked exhibit A) on inspection the Claimant found the form supplied was illegible and therefore did not comply with regulation 2(1) of Statutory instrument 1983/1557 which states

 

2 Legibility of notices and copy documents and wording of prescribed Forms

 

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

 

3. Therefore it is averred that the Defendant has failed to discharge their obligations under section 78(1) of the Consumer Credit Act 1974 and as a result are not entitled by way of section 78 (6) of the Consumer Credit Act 1974 to enforce this agreement while their non compliance continues

 

4. Notwithstanding point 3, it is noted that the form claimed to be a valid credit agreement (exhibit A) does not contain any prescribed terms as laid out in Statutory instrument 1983/1553 (Consumer Credit (Agreements) Regulations 1983)

 

5. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

10. The terms laid out in point 5 terms do not appear to be contained within the agreement

 

Document Headed Barclaycard Conditions

 

6. In addition to the Application form supplied by the Defendant in response to the Claimants request there was a separate sheet entitled Barclaycard Conditions. There are certain required terms within this document; however this document does not appear to be linked to the Application form. In addition the Claimant submits that this does not comply with the Requirements of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) as the Regulation say that all the schedule one information should be contained "within the agreement" not on a separate document headed Terms and Conditions or in this case Barclaycard Conditions.

 

7. The Claimant also submits this document shows no relation to the application provided and there is no clear link between the application form (Exhibit A) and the Barclaycard conditions (Exhibit B) therefore the claimant puts the Defendant to strict proof that these Conditions of Use actually relate to this application form. In respect of points 6 and 7 I refer to the following cited from. Wilson & Anor v Hurstanger Ltd [2007] EWCA Civ 299 (04 April 2007)

 

 

33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

 

8. On the 07/01/2008 the Claimant wrote to defendant outlining several concerns with regards to the legibility of this application form and informing them that they had failed to comply with the requirements of the Consumer Credit Act 1974.

 

9. On the 11/01/2008 the Claimant received a reply from the Defendant (see attached marked Exhibit C). The Defendant stated (Quote)“ we aim to resolve matters by the 06/02/2008 “ The Defendant has not written since therefore has failed to address the Claimants concerns. Furthermore in a telephone call dated 15/02/2008 the defendant insisted that they have complied with the requirements of the Consumer Credit Act 1974

 

 

Enforcement of the Agreement

 

10. The courts attention is drawn to the fact that where an agreement does not have the prescribed terms as stated in point 4 it is not compliant with section 60(1) Consumer Credit Act 1974 and therefore not enforceable by s127 (3). The courts attention is also 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 and the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and Consumer Credit (Agreements) (Amendment) Regulations 2004 (SI2004/1482) the agreement cannot be enforced

 

11. With regards to the Authority cited in point 10, I refer to LORD NICHOLLS OF BIRKENHEAD in the House of Lords Wilson v First County Trust Ltd - [2003] All ER (D) 187 (Jul) paragraph 29

 

" The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order."

 

12. The Defendant is therefore put to strict proof that a document which is legible and Compliant with the Consumer Credit Act and subsequent Regulations made under the Act exists

 

 

 

The Default Notice

 

13. The Claimant submits that in addition to the credit agreement being irredeemably flawed, the default notice served under s87 (1) Consumer credit act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

14. Section 2 (5) and (6) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 sets out the following

 

(5) Where any statement is required to be in a form specified in a Schedule to these Regulations and is reproduced in the notice, then apart from any heading to the notice, trade names or names of parties to the agreement-

 

(a) the lettering in the statement shall be afforded more prominence (whether by capital letters, underlining, large or bold print or otherwise) than any other lettering in the notice; and

 

(b) where words are both shown in capital letters and underlined in any statement specified in a Schedule to these Regulations, they shall be afforded yet more prominence.

 

(6) The wording in any such statement shall be reproduced in the notice without any alteration or addition, and in relation to any statement to be contained in the notice the requirements of any note shall be complied with, except that the words "the creditor" may be replaced by the name of the creditor, by the expression by which he is referred to in the agreement or by an appropriate pronoun, and any consequential changes to pronouns and verbs may be used.

 

15. The default notice served by Mercers on behalf of the defendant did not contain the required statements in the required form for the following reasons

 

The notice failed to set out the name and a postal address of the creditor or owner as laid out in schedule 2 of the regulations, regulation 2(2) paragraph 2

 

The notice also failed to include the following statement

 

"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 as required by paragraph 4, in the Defendants version the statement is set out in lower case and therefore contrary to the regulations.

 

Furthermore the notice failed to set out the notice required by paragraph 5

 

"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]" again in the defendant’s version it is lowercase and not as prescribed

 

 

Finally the document does not 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".

 

16. It is noted that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the default notice is invalid and further enforcement action should not be taken until such time as a compliant notice is issued

 

17. For a creditor to be entitled to terminate a regulated credit agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the agreement, a creditor must serve a Default Notice under section 87(1) CCA 1974 which states

 

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,-

(a) to terminate the agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

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

 

(e)to enforce any security.

 

 

18. It should also be noted the opening part of section 88(1), which states

 

88. Contents and effect of default notice.

 

- (1) The default notice must be in the prescribed form....... The word must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue

 

 

19. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the court addressed in some detail the issue of the contents of a default notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the default notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the claimant to set out the default notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) should render it invalid

 

Misappropriation of funds and harassment

 

20 On the 21/12/2008 the Claimant received a letter from the Defendant to notify that they had exercised their legal right to offset arrears, and that the sum of £82.00 had been withdrawn from the Claimant’s Barclays bank account. It is the Claimant’s contention that the defendant has no legal right to take such monies without the claimant’s consent whilst remaining in default of a sec 78 request. Furthermore, the Defendant has continually harassed the Claimant by way of a barrage of threatening and intimidating telephone calls as well has sending out agents to the claimant’s property after it had been specifically requested that all correspondence should be put in writing.

 

 

 

21 The Claimant submits that this conduct amounts to unlawful harassment under section 40 of The Administration of Justice Act 1970. Furthermore, the Defendant's behavior is entirely vexatious and wholly unreasonable. In addition it is drawn to the courts attention that schedule 3, s11 of the Consumer Credit Act 2006 prevents s15 repealing s127 (3) of the 1974 Act for agreements made before s15 came into effect since the agreement is alleged to have commenced in 28/05 /01 the Consumer Credit Act 1974 is the relevant act in this case.

 

 

22 In respect of the defendant's unlawful charging regime. The Claimant challenged the said charges applied to the Claimant's account by way of unenforceable penalties. On the 4th of February 2008, the defendant refunded all charges including interest totaling £166.00, which was then credited to the Claimant’s account balance. This implies that the defendant is continuing to operate the account whilst in default, and that, therefore, this constitutes a payment to the account, which they are not entitled to.

 

 

Damage to the Claimant's Credit Reputation.

 

The authority on this issue is cited from Kpohraror v Woolwich Building Society [1996] 4 All ER 119; as follows

 

It is abundantly clear, in my judgment, that history has changed the social factors which moulded the rule in the nineteenth

century. It is not only a tradesman of whom it can be said that the refusal to meet his cheque is 'so obviously injurious to [his]

credit' that he should 'recover, without allegation of special damage, reasonable compensation for the injury done to his

credit' (see [1920] AC 102 at 112, [1918-19] All ER Rep 1035 at 1037 per Lord Birkenhead LC). The credit rating of

individuals is as important for their personal transactions, including mortgages and hire-purchase as well as banking facilities,

as it is for those who are engaged in trade, and it is notorious that central registers are now kept. I would have no hesitation in

holding that what is in effect a presumption of some damage arises in every case, in so far as this is a presumption of fact.

 

THE CLAIMANT CLAIMS.

 

 

The Claimant therefore claims against the Defendant in the terms outlined in these particulars of claim and seeks; Substantial damages from the Defendant to the value set by the court and for the legal reasons outlined in Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 and Kpohraror v Woolwich Building Society [1996] 4 All ER 119;

 

Including the sum of £166.00 including interest at 8% and accruing up until judgment

 

The sum of £82.00 including interest at 8% and accruing up until judgment.

 

The Claimant seeks a declaration from the honourable court to determine rights of both parties by virtue of sec 142 Consumer Credit Act 1974.

 

Additionally, the Claimant requests an order from the Court under s.14(1) of the Data Protection Act 1998, for the removal of any Default or Termination Notices and any other information relating to this agreement, that may cause prejudice or further damage, from the Defendants internal records and order the Defendant to cease from processing, or, where that processing is already taking place, order the cessation of such processing with third parties to the agreement, such as all credit reference agencies;

 

(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.

 

 

 

The Claimant further claims the Court fee of £75.

 

 

41.3. Costs, at the discretion of the Court

[ab123uk]

Good luck PaulWlton!

[car2403]

Looks good to me Paul. I was about to say that I don't think you need to quote the Act/regulations/precedant verbatim, which is the normal advice on this forum, but from my Barclays Default removal claim, (and the Judges clear misunderstanding of the creditors obligations) I think it's probably best to include it at this stage.

 

The issues surrounding the prescribed terms are clear and you've set your argument out well. (I can see the parts that Paul has input to, but we're all here to help each other)

 

The others Notice issues are the same.

 

I am concerned that you get a numpty Judge that wants nothing to do with the claim, that decides you DO owe what you owe and the creditor should be allowed to enforce anyway, regardless of these issues, (which is what seemed to be happening to me with Barclays!) but of course that would give you a legitimate right to appeal that decision if it did happen.

 

You might want to read my Barclays Default Removal thread, as it seems you want to make an Application (note, not a "claim") to have the debt declared unenforceable under s.142 CCA 1974. I made a claim for mine, along with Data Protection Act issues, but the Judge has given Barclays extra time to respond as he considers I've used the wrong process to start the case! (Luckily, I haven't had the claim thrown out - yet!)

 

car2403 -v- Barclays Bank (Default removal) - The Consumer Forums

[Dipply75]

Subbing, very useful POC details!

[uptoneck]

Did this case go to court? What was the outcome?

[paulwlton]

Did this case go to court? What was the outcome?

 

A deal was struck before it got to court. However, check out the link below, this one weent all the way.

 

Paul

 

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/166878-my-mrs-barclaycard.html