MKDP & Barclaycard Claim Form***Strike Out***

[slick132]

Hi Shani,

 

Can you reply to my Q in para 1 of my post #70 above about the courts' Directions.

 

[Shanidev]

Hi slick132. I listed Directions Orders in 42, 56 and 58.

[slick132]

Thanks and noted.

 

Do you have notification of a final hearing date yet.

 

Or anything else received from the court since you filed your defence as per post #67.

 

[Shanidev]

Yes, this Thursday.

[slick132]

Hi Shani,

 

I wish you good luck at the hearing.

 

I'm sure you've been busy researching in preparation for the hearing but I thought I'd post the following that we had as a guide about improperly executed credit agreements :-

 

2. Agreements that are not properly executed

 

If an agreement is not properly executed as defined in section 61(1) of the Consumer Credit Act 1974 then Section 65 says that it can only be enforced by a court.

65.--(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

However, the Court's powers to enforce an agreement that is not properly executed and that was entered into before 2006 are limited by Section 127(3) of the Act.

127.--(1) In the case of an application for an enforcement order under--

(a) Section 65(1) (improperly executed agreements)....

 

(3) The court shall not make an enforcement order under Section 65(1) if Section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under Section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner)

This section says that an agreement that is not properly executed can only be enforced if it consists of a single document

 

a) signed by the debtor, and

 

b) has the prescribed terms

 

The prescribed terms for enforceability under s127(3) are given in Schedule 6of the Consumer Credit (Agreements) Regulations 1983:

 

For fixed sum loans (e.g. bank loans, hire purchase agreements) the agreement must contain:

 

- A term stating the amount of the credit

 

For running account agreements (e.g. credit cards) the agreement must contain:

 

- A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

 

In all cases, the agreement must contain:

 

- 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--

(a) number of repayments;

(b) amount of repayments;

© frequency and timing of repayments;

(d) dates of repayments;

(e) 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.

 

(For hire agreements, there are other details given in Schedules 3 and 4).

 

All running account credit agreements and agreements for fixed sum loans which fall within certain exemptions (Schedule 1 paragraph 9 - usually if either of the other relevant prescribed terms are missing) must also have

 

- A term stating the rate of any interesticon on the credit to be provided under the agreement

 

Thus, it is quite often the case that an agreement sent in response to a request under Section 77, 78 or 79 may fully comply with the (revised) requirements of those sections but not be enforceable. For example, a typical response from a credit card company consisting of a copy of an application form and a copy of recent Terms and Conditions would comply with Section 79 but would probably not be enforceable for one of several reasons:

 

a) no signatureicon (copy of unsigned application form)

 

b) no prescribed terms (interest rate, etc not on the form)

 

c) signature and prescribed terms not on one document (signed application form and recent Terms and Conditions).

 

It should be noted that some older MBNAicon application forms in particular do have the prescribed terms in a narrow column on one side. They are often headed "Credit Card Agreement Regulated by the Consumer Credit Act 1974" as well. Such forms should be checked very carefully as they may be properly executed. If not, they are probably enforceable by a court under Section 65.

 

Section 127(3) was repealed in the Consumer Credit Act 2006, which came into force in January 2007. Therefore, the enforceability of any agreement entered into after 2006 cannot be challenged by Section 127. This doesn't mean that such an agreement is necessarily enforceable but it does mean that its enforceability must be argued on its own merits.

 

[Shanidev]

Thanks Slick132. Just in time for me. At 4:30 at work today I was told we have Auditors coming tomorrow. So, I have only got tonight to work this out. Many thanks. Much appreciated.

[Shanidev]

Thank you everybody for all your help, advice and good wishes. I was at the court this morning. I won. The judge said I don't have to pay this. They have 30 days to lodge an appeal. Let's see which way the cookie crumbles.

 

Once again thank you for all the hard work. God Bless everyone on this forum.

[dx100uk]

yes!!!

 

dx

[AndyOrch]

Well done...update your thread when you receive the General Order Shanidev.

 

 

Regards

 

Andy

[Shanidev]

Received the Order in March but we were flooded out - still busy trying to get things sorted out with the house. Claim was ordered to be struck out on grounds that the Claimant did not attend and did not comply with the order.

 

Thanks to you all.

 

Shani

[slick132]

Excellent !!

 

[AndyOrch]

Thread title amended to reflect the result.

 

Regards

 

Andy

[citizenB]

Excellent news

[Shanidev]

Shocker this morning.

 

Received a letter this morning to say As judgement has been held in excess of a month, the are intending to apply for a charge against property. Should I ask them to clarify what judgment are they referring to. Can they ask for a charge on property when they lost the claim.

 

Thanks in advance

[dx100uk]

looks like everyone MKDP are trying to fleece got one of these today

 

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?430121-MKDP-Barclaycard-old-1996-goldfish-card-claim-form-received&p=4652861#post4652861

[slick132]

Hi Shanidev,

 

First off, I would contact the court to check that no such Judgement has been made, just in case something's happened that you don't know about.

 

Report back here and we'll suggest how to proceed with MKDP.

 

[citizenB]

shanidev, can you edit out the personal details of your letter and post it up for us to see. Although I think you need to do as slick advises and speak to the court first.

 

If there has been no judgment awarded outside of your knowledge, then I think MKDP either have a communication problem within their organisation or they are trying it on.

[Shanidev]

Sorry for delayed reply. We were moving house and didn't get round to connecting my PC or getting paperwork out of boxes. Just as well I didn't get round to doing anything because on Monday I received letter of apology from MKDP saying it has all been a mistake due to internal error.

 

Thanks to everyone on the forum.

[slick132]

Hi Shani,

 

If they didn't offer you any compensation for the stress and anxiety caused by their error, I would write to them asking that they make you a realistic offer, failing which you will make a formal complaint to the FOS.