smt37 vs Morgan Stanley/Goldfish/Barclaycard ** ORDER TO PRODUCE CCA CPR31.16 WIN ***

[42man]

Changing title

[letshelp]

Excellent result, well done smt and of course, PT.

regards

[milly5]

Brilliant news smt! your account of what happened in Court was so uplifting,I am at the stage of barclays not responding to 2nd cpr letter and unsure what to do next. Your experience has encouraged me to carry on as I want closure,am fed up with daily phone calls and it seems going to court is definitly the way to go.

[meerkatsmimm]

Congrats SMT, we were all reading and waiting with baited breath to see how you got on - what a result!

 

And a big thank you must go out to PT, it took me 6 hours to read your CPR thread and I am very glad that I found CAG to be able to have this new information. As has been said previously, its wonderful to think that so many people will benefit from this new approach and force the CC companies into providing an agreement or writing the debt off.

 

Well done all!

[slick132]

MUFFINTOP; GARY68; MILLY5

 

If you post your queries on your own threads, you'll get answers there.

 

This is smt's thread and shouldn't be hijacked with everyone's CPR questions.

 

Thanks

[nancyspain]

Very well done smt:)

[count orlok]

congratulations, I've only been waiting 5 or so weeks for my CCA

[TwoTicky]

Great Result, have been watching and waiting with interest. Well done smt and pt.

 

Does this mean Barclayshark now have 21 days to provide the CCA?

[majorclanger100]

Very well done SMT and PT.

 

This has now given me the confidence to go down the same route with Cap One

 

[slick132]

Hi SMT,

 

When you get the court's order, please post it here so we see what the judge has actually ordered, timescale, etc.

 

Thanks

[cashins]

Excellent stuff!!

 

Don't you just love it when they fall on their backside when they just try and blag it in front of a judge who can recognise the difference between a well prepared case, (yours) and bullsh*t.

 

Looking at the comments regarding wrong agreements etc. being dished out, you have to wonder if there is a bit of a moral problem at BC. It seems too much to put down to plain 'shoddy' work and it may be that a fair number of their staff, don't really give a damn.

 

David

[izzitme101]

brilliant sutff smt, and all other contibutors, and pt

looks like i need to send a second cpr request now then

[Stressed150]

Congrats and well done xx

[davey77]

Lovely jubley!

[Red1983]

A very weldone SMT, and thanks so much for letting us know the details, also thank you so much PT for all of your hard work on your thread, I too have sent a CPR first letter to CRAP ONE, ages ago and got seven letters in one week all saying different things along with a default, so in a panic I started paying them again, however, I am now in the mood to send letter 2. I also cant quite see how anyone ould diss you PT, your work is outstanding, you dont have to be a brainiac, which I am Not to see that. Thanks so much.

 

Red

xxx

[Red1983]

Oh, and Subbing. Ta xxxx

[Alphageek]

What a sweet result for you SMT and PT both.

 

Well done!

[Having_A_Knightmare]

Fantastic News Well Done!!!

[Pab10]

Very well done smt & pt & others.

Made my day:)

[AA99]

Excellent news and Congratulations to all of you

[Fingers60]

Well done guys great work !

[smt37]

Hi SMT,

 

When you get the court's order, please post it here so we see what the judge has actually ordered, timescale, etc.

 

Thanks

 

I can tell you now that the order will be identical to PT's draft order. Barclays didn't have any objection to the wording, but the judge suggested to determine the costs there and then, so she wrote on my draft order the amount of the application of the hearing (£70). I assume it will be typed up as drafted and amended. The judge ordered another 21 days for disclosure.

 

To be honest, I think Sharkleycard will be panicking now. It seems there are many others that will follow the same route, so they will be undoubtedly annoyed at having spent £1,000 trying to claim costs and losing. If they had succeeded, then it would have put most people off.

 

Maybe they will find the agreement, maybe they won't. However, if they sent me one which looks anything like my namesake(s), then I know it doesn't contain the prescribed terms anyway, so I'm not too worried. If they find it, then I will continue with the existing payment arrangements I have with them.

 

I would say two more things:

 

1. I am still paying Barclaycard monthly, despite the outcome so far - i.e. showing willing to give them the benefit of doubt until they cannot produce the agreement.

 

2. I would have lost costs (£1,000) but for two reasons -

(a) They didn't follow the pre-action protocols in that they didn't disclose the documents requested and I could provide evidence of this and also evidence deliberate frustration; and

 

(b) Thay made an offer to disclose within another 21 days, avoiding court, but it meant me agreeing to vacate the hearing. The barrister didn't mention this, so I had to make it clear to the judge that the offer was conditional but I wanted the order. I didn't want to risk having to start the whole procedure again if after the 21 days, Sharkleycard came back and said that they couldn't find it and request another 21 days and so on. I said that I thought I had been very reasonable with them and had already offered them 2 lots of 21 days under the CPR requests and that was already following months of requests under s.78 of the 1974 Act.

Sharkleys sent me an e-mail two days before the hearing saying: "As Barclays offered to you the documents that you have requested in your application, and you have declined the offer, we will be seeking our costs against you.", followed by another e-mail the next day with a copy of what they had sent the court and this was the nerve shattering thing - it was a Schedule of Costs for an amount just under £1,000 . My debt to them was £3,000, so they seemed pretty convinced of a positive outcome.

 

 

So it's really important to be armed with proof that you have followed the protocols yourself and they have not, because it is that that will be considered by the judge when he/she considers an order for costs. If you mess this up, then you will be more reliant on the SES Contracting Limited case law and may end up trying to persuade the judge about not tilting the level playing field. Keep the judge's decision easy and prepare well for it. I didn't need to say anything about the case law other than what was already in the witness statement.

 

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_protocol.htm

 

 

One last thing: I thought they might suggest that I had not followed protocol 3.1(a) - i.e. the claimant not having provided sufficient information to the defendant. This crossed my mind because it was obvious that they had gotten into a mess with the takeover of the debts from Morgan Stanley and Goldfish, and might have suggested to the court that it should be me helping them find the agreement by providing them with, say, the address where I lived when I made the application or something else, so I prepared this in my notes for the hearing:

 

It is not unreasonable to expect the defendant, Barclaycard, a licensed consumer credit entity with 23.3m credit card customers globally and 29.2 million credit cards in issue to have a highly sophisticated and efficient filing and archiving system to fulfill its obligations under the Money Laundering Regulations 2007. Such regulations allow a financial institution to rely on the previous creditor to have undertaken the original due diligence on a debtor, but under para 17(1)(b) they are not permitted to rely on it. However, as I have already mentioned, on [date 1] and again on [date 2], I wrote to Barclaycard to let them know that I was not who they apparently thought I was. Since then, they have made no attempt to identify me or carry out any supplemental due diligence as required of them under para 7(1)(d): “…a relevant person must apply customer due diligence measures when he…doubts the veracity or adequacy of documents, data or information previously obtained for the purposes of identification or verification”.

 

In addition, para 19 (Record Keeping) requires the creditor to keep records, being a copy of, or references to, the evidence of the customer’s identity obtained, and the supporting records (consisting of the

original documents or copies

) in respect of a business relationship… which is the subject of customer due diligence measures or ongoing monitoring.

 

Therefore I have no doubt that Barclaycard would have these records. There is no reason for me to reasonably believe that they do not hold such information, following acquisition of the credit card business from Morgan Stanley/Goldfish, because this is their clear obligation.

 

If the defendant is claiming that I have intentionally withheld information in order to frustrate matters, I reject this claim and would suggest that he is also implicitly claiming that Barclaycard have not fulfilled their statutory obligations under the Money Laundering Regulations 2007, which has potential civil penalties and is also a criminal offence – in particular, not complying with the requirements in regulations 7(1) and 19(1), which apparently, have not been done.

As it happens, I didn't need it, but I hope this helps anyway.

 

SMT37

Edited April 23, 2009 by smt37
Added link to Practice Directions - Protocols on MoJ website

[louloujs]

SMT, just wanted to say congrats again and thanks for all this back-up information. You've helped me on a number of levels i.e. being prepared, following protocols and a shed load of determination to see it through to this point.

 

My CPR letters are going out next week. I probably would have held off indefinitely if you hadn't rightly achieved the success you did.

 

You and PT are my heroes of the month

 

LL

[slick132]

Hi SMT,

 

Noted re the order.

 

Thanks also for the useful additional info.

 

Your preparation was excellent. You were right to anticipate problems and have info ready in case, even though it wasn't necessary on the day.

 

Let's see how BC respond once they get the Disclosure Order.

[smt37]

Hi smt

great details again well done,

can you confirm please that barclaycard have never sent even a application form with your signature on it as a agreement to which they could pull out of the hat,or do they realise that wouldnt work without the prescribed terms,

what I mean is could they produce this application form as proof of the debt in front of the judge?

Gary

 

Barclaycard never managed to send me anything that was mine other than the card carrier. They sent me two application forms, but neither were mine.

 

Basically, if they produced an application form or card carrier or something else on the day, then that is what they are going to rely on in court when/if it goes to trial. It's the same for me now. They could start proceedings against me at any time, so I can choose to either ignore all future payment requests from them knowing that they are likely to produce the same 'agreement' in court if they seek an enforcement order against me, or I can make an application to the court seeking an injunction order under s.142(1) of the 1974 Act once the date of disclosure in the order has lapsed assuming I am comfortable that I can win the argument in a hearing.

 

Either way, it comes down to having a judge on the day that is not pro-banks, which I would imagine is a bit easier these days, but still a bit daunting to take the risk and face paying their costs if you lose.

 

I'm not aware of anyone that has got this far yet as a claimant. Most people are in court as a defendant and some win and some lose. Rankine is the most famous loser as a claimant, but he did it wrong. However, the judgement offered the solution - apply for an injunction.