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

[thunderstorm80]

It is hard to find a specialist solicitor to help you on these matters.

 

I was with a well knwon CMC who did not do anything even though the agreements are very obviously unenforceable. The solicitor they sent me to knew very little about consumer credit. They are currently denying not doing anything with my cases and the only reason I am letting them is because I am preparing two long complaints to regulatory authorities and I do not want them in my feet while I do that.

 

This is the only place where people can turn to for help. At the moment this is very much a DIY thing.

[smt37]

I've not done anything with this. At the moment, if I lose a case and cannot pay, then I'll get a CCJ and lose my job - not something I can afford to do!!!

 

However, next year, I am coming into some money. Those creditors who have a properly executed agreement with all the prescribed terms on will be paid in full immediately. Those that have been messing me about will get nothing and will be invited to take me to court to enforce payment. I can't be bothered at the moment in seeking an injunction. I would rather let them waste their time for a while and stringing them along. I'm confident on the phone with them now, so am happy to have some fun in the meantime and whilst they mess about trying to get me to pay a debt with no legal basis for doing so. I'll be sitting on the cash in an account somewhere earning me interest (albeit little interest right now).

[Stephan56]

I agree re the inability to find a specialist solicitor. I have contacted Solcitor's referral, friends who are solicitiors for recommendations and...nothing. When I speak to a few who sound - initially - like they have some knowledge, it quickly becomes apparrent I know a lot more than them. And all I have done is fight these DCAs etc for last few years and, luckily, read this forum! Maybe thre is just not enough money in it for solicitors to represent "debtors". You would think charities might actually provide legal advice - and bring key cases. Also, I am told, large law frims do provide pro bono help, via charities, but these solicitors do not necesarily know the sector (maybe construction solicitiors etc) and anyway, I think the big firms do not want to "**** off" large corporates - who could become clients some day.

 

On the point raised that a debt may "exist" but be "unenforceable" as no proper CCA etc, that is always the way I have understood it. And I have never understood why a DCA with an unenforceable agreement does not come to a quick F&F agreement - so at least they get something.

 

If there is no "agreement" then, I agree, why are they still processing your data (when there is no agreement allowing them to do so).

 

At the root of ALL these issues it seems to me is the distinction between an agreement that is enforceable and an agreement that is not. For me, it seems clear. An agreement is one that is enforceable at law. If an agreement is NOT enforceable at law then it is in fact NO AGREEMENT and anything that flows from that "agreement" (debt, right to process data etc) automatically "falls away" if the agreement is shown not to exist (as not enfoceable). The rule should be that AN AGREEMENT THAT IS NOT ENFORCEABLE AT LAW IS NOT AN AGREEMENT. The OFT guidelines should make this clear and proibit any collection activity in respect of such "agreements". That would be a simple and logical step and prevent the "massive abuse" of people by DCAs.

[FlyboyAgain]

Maybe thre is just not enough money in it for solicitors to represent "debtors". You would think charities might actually provide legal advice - and bring key cases. Also, I am told, large law frims do provide pro bono help, via charities, but these solicitors do not necesarily know the sector (maybe construction solicitiors etc) and anyway, I think the big firms do not want to "**** off" large corporates - who could become clients some day.

 

.

 

You may be right about the money aspect of bringing what would be seen as 'winable' cases, but I am more inclined to follow your train of thought towards the end the section of your quote above. Twice - once with my usual law firm and another with a large, Edinburgh financial firm - have I asked for help in tackling HBOS and have been ignored, with my local guy only getting in touch to say he'd been 'busy'.

 

As to charities offering legal advice? Well, CAB does, to a degree, but can you imagine the volume of people with personally debt that are on their books just now? Stalling creditors and instigating a Fin Stat or DMP is about as much as they can do.

[militantconsumer]

Those creditors who have a properly executed agreement with all the prescribed terms on will be paid in full immediately.

 

I think you could probably negotiate a full and final settlement for significantly less than 100% of the amount owed if you are in a position to pay immediately.

[freethemice]

Once it has gone to a dca they want it off the books as quickly as possible. In my dealing they would bit your hand off if you offered 60%. The place this falls down though is they will only mark your file as 'partially satisfied' and while they will ascertain they will not chase you for the balance there seems nothing legally stopping them selling the rest of the debt on.

If you are going for a full and final settlement would insist on this been marked as fully satisfied.

[smt37]

My point is... I'm a will pay. I borrowed the money and they lent it to me with proper legal documentation which they kept and promptly sent me copies of originals (signed) when I asked for them. Fair enough. I spent it, got into trouble, couldn't pay, and they were accommodating. The least I can do from a moral standpoint is pay back everything I borrowed - especially as they also froze the interest charges and have effectively given me an interest free loan for the last 3 years.

 

If the account has been passed to a DCA, or I have been treated unfairly, then that's a different story!

[freethemice]

My point is... I'm a will pay. I borrowed the money and they lent it to me with proper legal documentation which they kept and promptly sent me copies of originals (signed) when I asked for them. Fair enough. I spent it, got into trouble, couldn't pay, and they were accommodating. The least I can do from a moral standpoint is pay back everything I borrowed - especially as they also froze the interest charges and have effectively given me an interest free loan for the last 3 years.

 

If the account has been passed to a DCA, or I have been treated unfairly, then that's a different story!

 

Are Barclaycard still chasing you for this then even though they lost the case? Would suggest going down the data protection act route if you don't want the injunction. If they have no agreement then they have no right processing your data.

[AA99]

Still subbing.....

 

I can't agree enough with the posts about 'collective' disputing these CCA's and the DCA's. The so-called authoratitive bodies as we all know are more than useless. I strongly believe in power to the people. My own MP is very actively engaged in this aspect! However, whenever petitions are formed, not nearly enough people come forward. I also have just been rejected by a solicitor who reckons my agreement looks OK I shall continue to fight it on my own (with a little help from my fellow Caggers!)

 

Something that did occur to me was..... seeing as lawyers take years to become qualified, do they not also have a year/some time, to put their theories into practice? Would it be worth contacting lawyer-to-be students to see if any of them would be prepared to take on an issue such as forceable/unenforceable credit agreements? And what about dissing the No Win No Fee rubbish and offer Win Have 10% Fee :?

[Stephan56]

I agree with SMT37. If the debt is still with the original credior AND they have treated you fairly then, when/if you are in a position to pay, then I would do so.

 

In my case, out of ten creditors, the debt is only still with one of those - who I am paying off steadily. No interest and no hassle to increase payments. I have been paying for four years and it will take me anohter 3 to pay it off. So be it.

 

The other nine were sold to DCAs - and in all cases where it was agreed "no action" would be taken if I maintained my token payments - which I did. They did not adhere to the agreement and sold the debt.

 

And don't forget OC's factor in bad debts in pricing credits - so don't think they have not been compensated for the risk.

 

For me, any moral argument ends at that point. The OC has sold the debt and washed their hands off it - and taken a tax writeoff. The debt has been sold to a DCA for ten percent of the amount claimed. They never thought to approach me to ask me if I wanted to buy the debt for, say, 15%. If the OC reallly wanted to maximize their return/minimize their loss they could easily have done that. Many people could probabl borrow money at those levels from friends/family to settle/buy debts.

 

The DCA is purely a financial speculator. If they buy a debt for 10%, and I am in finanical difficulty, there is no way in the world I would pay them unless dragged - kicking and screaming - through the courts. If they on;t have proper documention, then tough. A risk they took when they bought the debt.

 

The bottom line is I have SOME feeling of moral obligation to an OC who keeps the debt and acts properly. FOr a DCA I have none and will fight them every inch of the way.

[Stephan56]

I forgot to add in my earlier ost that I have always understood that you need (i) the debt market SATISFIED or PAID in FULL and (ii) it has to show a 0 balance. That way, there is no balance to sell on.

 

I have also put in my proposed settlement letters that the DCA will indemnify me against any claims from others that may chase the debt. Maybe that is one reason why, so far, none have accepted my settlement proposals!

 

That said, DCAs have lots of "tricks" and you need to protect yourself. The flip side, is if they think you are "too clever" or they cannot play their "tricks" after you have thought you settled it, then they do not want to negotiate/settle.

[steve2577]

Fantastic, this is a fabulous account of events, very very helpful and i hope will assist others with standing up to the might of the financial institutions.

 

the injunction is the correct route to go, should you need any assistence then i will be happy to oblige in the drafting of the application:)

 

 

Hello

 

I am very new to all this and have been holding off for years I have 3 CC's with Barclaycard and have received the same old crap as everyone else for 2 of them ie blank contracts. But the third card one that was previously Dean Witter ie Morgan Stanley had a different response they mentioned CPR31.16 and said disclosure in certain limited circumstances which do not apply here and then went on about it is usual for the applicant to pay the costs ref CPR 48.1(2). why send all this now when it was only a couple of weeks ago I asked for information not even quoting CCA 1974 etc.

 

sorry to but in on the thread I am very new to all this is fact up until a few days ago didn't understand any of the jargon at all.

 

 

Steve:-)

[slick132]

Hi Steve2577,

 

Start a new thread in the BC forum for each of your a/c's.

 

You'll get further help there.

 

[patrickq1]

posted on wrong thread

Edited November 24, 2009 by patrickq1

[Bigdebtor]

My point is... I'm a will pay. I borrowed the money and they lent it to me with proper legal documentation which they kept and promptly sent me copies of originals (signed) when I asked for them. Fair enough. I spent it, got into trouble, couldn't pay, and they were accommodating. The least I can do from a moral standpoint is pay back everything I borrowed - especially as they also froze the interest charges and have effectively given me an interest free loan for the last 3 years.

 

If the account has been passed to a DCA, or I have been treated unfairly, then that's a different story!

 

SMT - well done so far. Your thread has made a thrilling Sunday evening read while the God Slot has been on TV. I presume you have already reclaimed all unfair charges and associated contractual interest before considering any full or short settlement figures - either with DCA's or the OC who has treated you "fairly"?

 

BDt

[Mr_Homer_J_Simpson]

The same thing happened to me- they sent me someone else application form.

 

I sued Barclaycard.

 

They wiped my alleged debt.

 

I am now debt free.

 

Silly Barclaycard buying accounts with no paperwork.

 

Hi, can I just ask. Did you sue them beccause they sent you someone else's agreement or over something else ?

 

I ask as they did the same to me recently, they sent me mine & another person.

 

Already complained to the ICO who aknowledged and logged the complaint against Barclaycard.

[hatesdebt]

Any updates on this...

 

..I was glued to it and seems to have come to an abrupt halt:???:

[smt37]

I was waiting until now.

 

Right now, I'm writing letters to the legitimate creditors to offer full and final settlements (they have been very fair to me). The rest I'm stopping payment and asking them to seek enforcement of the debt through the courts as I would prefer the courts to decide if the agreements are enforceable and if they decide that they are, I will be happy to settle the 'alleged' debt.

 

I'll start new threads for the others and will update all with Barclaycards response in due course.

[Bigdebtor]

SMT

 

Thanks for the update. Presumably you have taken into account the effect of all the unfair default charges and contractual interest charged to date before negotiating any F&F?

 

Also bear in mind their very high interst rates are claimed to be charged in order to "compensate" the OC's for the bad debts they "suffer". Therefore they have already factored in a % write off of your debt and claimed it in advance via hiogh interest charges - so you should certainly not be asked to pay more than (say) 50% - even by the fairer OC's. As for the bad ones - let them stew!

 

Below you will see the %F&F I got from various OC's and DCA's - without too much effort on my part. Other F&F threaads give similar info with other OC's. Hope this helps.

BD