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

[militantconsumer]

Assuming that Barclaycard fail to find smt's agreement in the next 21 days....

 

I cannot see the point in now incurring (or risking) significant legal costs, which PT estimated at £2k-£3k, just to obtain an injunction against the creditor.

 

Surely it's better just to sit back for 6 years until it becomes statute barred anyway. If they can't find it when the court tells them to find it, they're hardly likely to find it by accident in the future. They probably don't have it at all - perhaps they never had it in the case of the Goldfish cards.

 

And it's not like smt has to worry about DCAs - just show them a copy of the letter that Barclays will have to produce in the next 21 days - which will be telling the court and the debtor that they don't have the agreement. No DCA will want to bother pursuing somebody who holds such a letter (and who is obviously confident about the court process).

 

As for the credit file, if they don't have the agreement then they don't have proof of smt's consent to share data with the CRAs. So you can complain to the information commissioner about this, and if that doesn't work bring a small claims action under the Data Protection Act to have your file cleared up.

 

This just makes more sense to me than going down the injunction route, which is surely more difficult, more expensive and more risky.

 

Do please tell me if I have missed something.

[pt2537]

Assuming that Barclaycard fail to find smt's agreement in the next 21 days....

 

I cannot see the point in now incurring (or risking) significant legal costs, which PT estimated at £2k-£3k, just to obtain an injunction against the creditor.

 

Surely it's better just to sit back for 6 years until it becomes statute barred anyway. If they can't find it when the court tells them to find it, they're hardly likely to find it by accident in the future. They probably don't have it at all - perhaps they never had it in the case of the Goldfish cards.

 

And it's not like smt has to worry about DCAs - just show them a copy of the letter that Barclays will have to produce in the next 21 days - which will be telling the court and the debtor that they don't have the agreement. No DCA will want to bother pursuing somebody who holds such a letter (and who is obviously confident about the court process).

 

As for the credit file, if they don't have the agreement then they don't have proof of smt's consent to share data with the CRAs. So you can complain to the information commissioner about this, and if that doesn't work bring a small claims action under the Data Protection Act to have your file cleared up.

 

This just makes more sense to me than going down the injunction route, which is surely more difficult, more expensive and more risky.

 

Do please tell me if I have missed something.

it only costs you if you lose an injunction

 

if you win then the principle of costs dictates the other side pay your costs

 

the amount i said was for a lawyer to do the injunction not a layperson

 

the ICO is as helpful as a dose of the bubonic plague in these matters and their response nearly always favours the banks so the only way to deal effectively with their damage to your credit file is to have them restrained via a term of the injunction

 

 

The injunction is a part 8 procedure, its relatively straight forward as long as it is drafted properly and your evidence is put together correctly and the witness statement is drafted correctly

 

the evidence you will already have from the CPR 31.16 application so thats covered and as for the witness statement , well, thats not toooo much headache

[militantconsumer]

Thanks for clarifying, PT.

 

If smt (or another) finds it necessary to take this step, hopefully you will be around to point him in the right direction.

 

Then we will have the whole process available as a DIY guide on this site.

[pt2537]

Thanks for clarifying, PT.

 

If smt (or another) finds it necessary to take this step, hopefully you will be around to point him in the right direction.

 

Then we will have the whole process available as a DIY guide on this site.

i dont see no reason why not, although sadly id say from experience either they will not disclose anything leading to a trip back to court for an order or they will say "oooops sorry can find it, without any admission of liability we will write off the balance of the account"

 

however if we do get an injunction going then i will happily assist

[diddydicky]

i'll keep watching this threat pt and if any of mine get to that stage im happy to give an injuction a go just for the common good

[Duffers Mum]

God, I love this site! Well done on seeing things through, hope they write the debt off and also hope it teaches them a lesson, the great british public have had enough of these bully boys and are standing up to be counted!

 

PT

[smt37]

 

PT

 

I couldn't agree more!

[tendogs]

Well done smt37

[james_jnr]

Excellent thread, PT I have a Q for you;

 

What the difference between using CP31.16 instead of a full Subject Access Request? Is it just the cost or can you send the creditor a SAR and then go for a court order if they don't provide the documents in time?

[pt2537]

Excellent thread, PT I have a Q for you;

 

What the difference between using CP31.16 instead of a full Subject Access Request? Is it just the cost or can you send the creditor a SAR and then go for a court order if they don't provide the documents in time?

ok a Data Subject Access request does not give you the right to disclosure of the actual document where as an order under 31.16 does require them to disclose the exact documents (Certified copies) to you so if you wish to bring proceedings and believe that you have sufficient grounds but need the docs to provide the final bit of the jigsaw then 31.16 is the best route id say although you shoulld make sure you know what you are doing first;)

[roony]

Does Consumer Credit Act section 127 apply to secured mortgages too?

[FlyboyAgain]

Blimey... it sounds like its a lucky dip operation theyre running

 

Would love the press to get wind of this... personal info security is a big headline these days... one which Sharkleys could do without :-D:-D

 

It IS a lucky dip!! I know, as they have tried to palm me off with the form from one of my card and applied it to another!

[FlyboyAgain]

BTW, well done, smt37!

[Dipply75]

Oh well done!

 

Subbing x

[lexis200]

ok a Data Subject Access request does not give you the right to disclosure of the actual document where as an order under 31.16 does require them to disclose the exact documents (Certified copies) to you so if you wish to bring proceedings and believe that you have sufficient grounds but need the docs to provide the final bit of the jigsaw then 31.16 is the best route id say although you shoulld make sure you know what you are doing first;)

 

Hi pt

 

Any chance you could just clarify that bit please?

 

I only ask as I had a fiddle with the SAR request so that it specifically asked for copies of any and all original signed contracts and any related documents. However when OH's citi SAR came back they'd litererally typed up all the info from an application - not even sent a copy of a current one, it just looked like something done on Word.

 

They stated that they were only required to send the information included, not an actual copy (which I appreciate is allowed). But, I also thought that if you specifically request something rather than leaving it as a generalised point in the SAR that they needed to supply what you'd asked for?

 

Are they still ok to have denied me the actual copy as specifically requested? If so, am I just left with the CPR route (I have CCA'd, written, and then SAR'd already)?

 

Thanks very much

 

Lexis:)

[the_shadow]

I only ask as I had a fiddle with the SAR request so that it specifically asked for copies of any and all original signed contracts and any related documents. However when OH's citi SAR came back they'd litererally typed up all the info from an application - not even sent a copy of a current one, it just looked like something done on Word.

 

They stated that they were only required to send the information included, not an actual copy (which I appreciate is allowed). But, I also thought that if you specifically request something rather than leaving it as a generalised point in the SAR that they needed to supply what you'd asked for?

 

As per the CITI SAR, they are correct, they are allowed to re-type all the info from an application form and display that in a different format to you, as they have shown the data they hold on you that meets the requirements of the Data Protection Act.

 

Question you have to ask yourself is why would they bother to do this extra step unless they have something to hide.

 

S.

 

Edit: Just realised this is smt37's thread... Apologies for mini-hijack-answer

[Mr_Homer_J_Simpson]

i think that you are missing the point here

 

the document you have been supplied is improperly executed due to non compliance with s61 it seems, so the consequences of improper executed is set out within s65(1) which says the improperly executed agreement is enforceable only by order of the court

 

 

the courts powers are defined within s127 and 135.

 

so there is nothing stopping the creditor from making an application for an enforcement order

 

 

Sorry, can I just make sure I fully understand this. A 'dodgy' agreement i.e. missing prescribed terms which I would consider unenforcable, can be made enforcable by a Court Order ?

 

Does that not defeat the purpose of the CCA in the first place ?

[slick132]

Hi Mr HJS,

 

If you read this, you'll see what may happen if an agreement is not properly executed - http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements.html

[militantconsumer]

21...20...19...18...17...16...15...14...13...12...11...10...9...8...7...6...5...4...3...2...1....

 

Looking forward to hearing what the postman brings tomorrow, SMT!!!

[beachcomber60]

21...20...19...18...17...16...15...14...13...12...11...10...9...8...7...6...5...4...3...2...1....

 

Looking forward to hearing what the postman brings tomorrow, SMT!!!

 

Been watching this with great interest.

 

Fingers crossed for you SMT.

[the_shadow]

Wow was thinking on the way to work this morning that this must be coming up to the deadline... theyre leaving it late and risky of contempt of court:confused:

 

S.

[beachcomber60]

Wow was thinking on the way to work this morning that this must be coming up to the deadline... theyre leaving it late and risky of contempt of court:confused:

 

S.

 

 

Barclaycard + Contempt of Court =

[angel_1]

Hiya SMT37 and all

 

wishing you the best result for tomorrow cos that would then help you and us all that are following

 

fingers crossed

 

laters and have a sunny day angel x:)

[smt37]

So they left it to the last minute of course.

 

Tonight when I got home, there was an e-mail from Barclaysharks attaching a letter (original to follow).

 

The letter went along the lines of "I refer to the Order of the xxx County Court dated dd mmm yy following your application for pre-action disclosure. blah blah blah.... I can confirm that Barclaycard has in its possession the documents blah blah blah and they are enclosed.

 

My heart sank. It looked like they actually found it after all that.... THEN, when I checked it, I realised that the application form they sent was for when I opened a credit card with Morgan Stanley Dean Witter nearly 10 years ago. I paid off this account and it was settled around 2003/4 and closed. I subsequently took out another card with Morgan Stanley (not Dean Witter by this point) in or around 2005/6. It is the later account that is in dispute, not the original one which was settled in full.

 

So that's good news as they have still sent me the wrong agreement. But how the hell can I prove this now? My credit record on Credit Expert doesn't show anything about Morgan Stanley or Morgan Stanley Dean Witter. It only shows the account with Barclaysharks, which of course, only shows a few months of data, so now it's my word against theirs. They are saying that this account is the same one and I know for sure that they are not.

 

Does anyone know how I might go about identifying the relevant account numbers or historical data about accounts closed with an institution perhaps 6 years ago?

[the_shadow]

So they left it to the last minute of course.

 

Tonight when I got home, there was an e-mail from Barclaysharks attaching a letter (original to follow).

 

The letter went along the lines of "I refer to the Order of the xxx County Court dated dd mmm yy following your application for pre-action disclosure. blah blah blah.... I can confirm that Barclaycard has in its possession the documents blah blah blah and they are enclosed.

 

My heart sank. It looked like they actually found it after all that.... THEN, when I checked it, I realised that the application form they sent was for when I opened a credit card with Morgan Stanley Dean Witter nearly 10 years ago. I paid off this account and it was settled around 2003/4 and closed. I subsequently took out another card with Morgan Stanley (not Dean Witter by this point) in or around 2005/6. It is the later account that is in dispute, not the original one which was settled in full.

 

So that's good news as they have still sent me the wrong agreement. But how the hell can I prove this now? My credit record on Credit Expert doesn't show anything about Morgan Stanley or Morgan Stanley Dean Witter. It only shows the account with Barclaysharks, which of course, only shows a few months of data, so now it's my word against theirs. They are saying that this account is the same one and I know for sure that they are not.

 

Does anyone know how I might go about identifying the relevant account numbers or historical data about accounts closed with an institution perhaps 6 years ago?

 

Eeek! :eek: Not good news....

 

You could write to MS and ask for details of any accounts you held with them? Not sure if they'll respond though?

 

Dont suppose you have any really old receipts or bills paid with the other card number on it. Car bills etc. If you can prove a different card number which still falls with in the range of MSDW cards it could help.

 

S.

 

Edit: Forgot to ask does the application have prescribed terms on it?