Advice please - court papers received Barclays credit card/ ** CLAIM STRUCK OUT**

[Genelover]

Can anyone please help?! I'm running out of time! I'd be grateful for any snippets of advice, mainly about how to word my defence.

[Desperate Daniella]

Hi,

 

I've just hit the red triangle for you. I'm sure someone legal will respond soon. Hang in there.

 

DD

[the_shadow]

Hi Gene, you have to the 28th to file an amended defence so a while to go yet.

 

The default notice they sent with the amended POC's... was it exactly the same as the one you already had posession of?

 

S.

[Genelover]

Hi S,

 

Yes, it seems to be.

[the_shadow]

Ok as per the default notice, I dont think you've posted it up so can you ensure that

 

a) The date it was sent was a weekday

b) if sent first class allow 2 weekdays for service

c) Count calender 14 days from day AFTER service day

d) Day it lands on should be the day before date mentioned in the DN

 

As to the Defence, CCM has given you a starter in post #30, it needs amending now you have extra info and a section you could possibly add is:-

 

4. The Default Notice sent to the Defendant on xx/xx/xxxx and later supplied in relation to the CPR 31.14 request is from a company called “Mercers”. The Defendant notes that the actual Creditors name and address does not appear on the Default notice and thus the Default notice is therefore invalid as per section 2 of the [Consumer Credit (Enforcement, Default and Termination Notices 1983)] which states:-

 

(2).

 

(1) Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section 76(1) of the Act (which relates to the duty to give notice to the debtor or hirer (non-default cases) before taking certain action to enforce a term of an agreement) shall contain--

 

(a) a statement that the notice is served under section 76(1) of the Consumer Credit Act 1974;

(b) the information set out in paragraphs 1 to 5 of Schedule 1 to these Regulations; and

© statements in the form specified in paragraphs 6 to 8 of that Schedule.

 

As per (b) above paragraph 2 of Schedule 1 states:-

 

(2)

(1) The name and a postal address of the creditor or owner.

 

5. The Default notice clearly states “We are acting as agents for Barclaycard” and therefore confirms the defendants assertion that Mercers are neither Creditor or Owner of the said debt.

S.

[Genelover]

That's fantastic, thank you so much! DN was sent dated 4th July 08 which was a friday, and requesting payment by 21st July. Allowing two weekdays takes us to tuesday 8th July, then 14 more takes us to the 22nd. They were requesting payment by 21st. Not sure how relevant this is? Just one more question - since I submitted my last defence, have received a copy credit agreement showing no prescribed terms. Can I incorporate this into the defence? CCM's defence was blinding, but as of then no CCA (or anything purporting to be one!) had come to light!

[the_shadow]

That's fantastic, thank you so much! DN was sent dated 4th July 08 which was a friday, and requesting payment by 21st July. Allowing two weekdays takes us to tuesday 8th July, then 14 more takes us to the 22nd. They were requesting payment by 21st. Not sure how relevant this is? Just one more question - since I submitted my last defence, have received a copy credit agreement showing no prescribed terms. Can I incorporate this into the defence? CCM's defence was blinding, but as of then no CCA (or anything purporting to be one!) had come to light!

 

err no it gets better than that..

 

a) The date it was sent was a weekday You've stated Friday 4th July 08

b) if sent first class allow 2 weekdays for service, so deemed served Tuesday 8th July 08

c) Count calender 14 days from day AFTER service day.. 14 CLEAR days takes you up to Weds 23rd July

d) Day it lands on should be the day before date mentioned in the DN

 

S.

[the_shadow]

The defence HAS to be tweaked if you have now been given the CCA, you'll need to incorporate the DN being faulty on not just the date but the creditor's name and address also...

 

I think the Defence already had a bit in it about the prescribed terms not being on the application.

 

If you give it a stab and post it up then you'll get advice and comments....

 

Remember if it comes to court you'll be the one in front of the judge so you need to understand what's going in the defence and the best way to do that is to write it/amend it yourself.

 

S.

[Genelover]

Great advice S, I shall work on this over the weekend and post up.

 

Thank you, I'm really grateful

[Genelover]

Quick update - had a really busy weekend so phoned the courts today to see if I could get an extension. They said a new direction from the judge was in the post, basically saying that the claimant hadn't signed the POC and so the claim was being stayed until 1st October, and would be struck out if not received by then.

 

I'm surprised he's given them so long. Is this usual?

[Rhia]

Not sure that it's usual but your case has plenty of twists and turns. As outlined above the default issue is one strong line of defence the other is the application form.

Having seen a few of these Barclaycard don't have proper agreements. You need to take it apart.

Also go back to them again for those old statements - they will have them they just have this weird thing about not supplying anything over six years which is rowlocks as it has no lawful standing.

Do you also have any penalty charges etc you can go after?

[Genelover]

Thanks Rhia. Yep, plenty of penalty charges! Do I go after DCA for statements, or Barclaycard? Also, I'm not entirely sure what is meant by 'stayed'. Does it mean nothing else happens untill they come up with the goods?

[Rhia]

OK you need to send a Subject Access Request to Barclaycard and there should be a template of one here in the library.

 

Make sure you ask for a copy of the original agreement and the statements as part of this. They have 40 days to send this to you. Once you have the statements you can enter the charges and interest into one of the spreadsheets - also to be found here - a one-stop shop. Send this total off to Barclaycard and ask for them back.

They won't give them you without a fight and you may need to start your own court action against them for the refund or use the FOS if you don't want the hassle of court but that will take ages. Barclaycard will only offer you the difference between £12 and whatever they charged you so it if was £20 they will refund £8 and as it has been assigned they will say they will send it to the DCA.

Don't stand for either of these ploys.

 

But now for the good news. If the debt was defaulted and the total included penalty charges it renders it useless and it also means the assignment was incorrect and unlawful.

 

Add to this the stay means yes unless they can find the agreement no action will be taken. They can restart though but armed with all the info you now will have access to they can't win anyway even if it is the mst wondrously and properly executed agreement in the history of executed agreements.

[Genelover]

Thanks so much for your help, I'm onto it !

[Genelover]

A quick update - phoned the court yesterday as hadn't heard a thing.

 

Claim has been struck out!! Hurrah!

 

Wanted to thank everyone who has taken the time and effort to respond to this threat, I wouldn't have been able to do it with you. Really, very much appreciated.

 

What are the chances of them restarting the claim? And coud they sell it on?

[babybear39]

Make sure you get that in writing. Congratulations

 

Not sure if this would come under double jeopardy

 

They can sell it on all they want and you just send the new DCA a copy of the strike out order

[citizenB]

Congratulations. You should receive notification in writing from the court. Because of the postal dispute, I would phone them at least once a week to see if it has been posted out to you:) Even offer to go in and collect a copy if needs be.

 

To start another claim they will need the permission of the court and have all the documents they have previously been asked to supply and havent.

 

Should they sell it on to another DCA, then either send them a Copy of the strike out notice (if you have received it by then) or just give them the claim number and the date it was struck out.

 

 

Have amended your title to reflect your success and moved your thread to the success forums.

[Genelover]

Thanks:) The court said they wouldn't be sending it in writing becuase teh stay notice said it would be struck out if docs not received. Can I insist on having it in writing?

[babybear39]

Best to call the court and explain your concerns to them and ask for it in writing then.

[cerberusalert]

Well done.

[Genelover]

Thank you, and thank you so much for all your wonderful advice:D

[angel_1]

;)hiya fantastic news this is really a heart warming and informative thread

 

will refresh myself of lots of points especially the dn notice and the penalty arrears if included in mine

 

keep your pecker up and fab help from cag again and its wonderful and generous members

 

have a fun eve trick or treating lol

 

laters angel x

[the_shadow]

Well done GeneLover

 

S.

[Rhia]

Good effort. I would now go after them for the default charges and really turn the tables on them.

[AA99]

:d:d