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Help with Mercers please

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Hello,

 

I am looking for some advise on how to deal with Mercers.

 

Just to give you some background, I have been on a DMP since January 2005 first with the CCCS and now with Payplan.

 

Then in February this year our family business of which I was an employee had to stop trading, i continued working as was aware that once the co went into legal insolvency I would be able to claim for redundancy and unpaid work which would equate to 16 weeks pay. My last pay was at the end of Feb, my husband has just set up his own business and we have no guaranteed income until the end of July, even then we will not know how much he will be earning until the time.

 

So basically Payplan are aware and have advised me just to pay £1 per month to all creditors until my situation changes. I still do not know where i stand financially, it will probably be another couple of months before I am sorted and able to start making repayments to creditors again.

 

All other creditors have been fine, apart from Barclaycard who were ok for a couple of months, now I have Mercers ringing me weekly, I have two accounts with Barclaycard, every time they call i tell them the same thing, I have stopped answering their calls as I am so sick of repeating the same thing again and again. Payplan have told me not to promise them anything which is fine. We have also revised my income and expenditure this month which has been sent to all creditors. However today i have had a letter from them advising they will be sending out a doorstep collector.

 

Can anyone give me some advise on how to deal with this and whether or not i should be asking to see a CCA, the accounts were opened around 1998/1999 and I have always been making repayments.

 

I owe them approx £3000 in total, I owe in total to all creditors around £27k. So you can see it is only a small part of the problem !

 

Any suggestions would be greatly appreciated.

 

Thanks in advance

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Send them this CCA request. They have 12+2 days to provide it. Edit the letter to suit, do not sign it and send it recorded. Thanks to Cerberusalert for this fab letter.

 

Dear Sir/Madam

 

Re:- Account No: XXXXXXXX/Your Reference Number: XXXXXXX

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

You should also note that I will only discuss this matter in writing and should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you or any of your associates.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance. (Optional addition)

 

I look forward to hearing from you.

 

Yours faithfully **Edit to suit**

Print name do not sign

 

Also enclose this which should stop them phoning you.

- HARASSMENT WARNING -

WARNING; PROTECTION FROM HARASSMENT ACT 1997;

WARNING; COMMUNICATIONS ACT 2003. s127.

Telephone Number: {you’re Telephone Number}

Re: Harassment by telephone

 

Dear Sir/Madam.

 

I am writing in relation to telephone calls that I have received from your organisation, which I deem to be personally harassing. I have verbally requested that these calls stop, but I am still receiving calls. I now require the telephone number listed above to be completely removed from your systems.

 

I am in the view that your continued telephone calls put you in breach of the Protection of Harassment Act 1997.

 

This is a private telephone line, operated on a contract with the intention of receiving and making personal phone calls, I have not authorised any other member of my family to receive calls from your organisation using this PRIVATE TELEPHONE LINE.

 

By using this telephone number without my permission you are interfering with my ability to use my own private property for the duration of any call.

 

It is my right to require that this telephone line, which is licensed solely to me, is kept clear for my own personal calls.

 

It is consequently my view that you are committing the tort of interference with contract insofar as for the duration of each call you make to me without my permission, you are interfering with my contractual right to receive and make personal calls on my private telephone line.

 

Continued interference with my contractual rights in this manner may result in legal action.

 

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to the Office of Communications, Trading Standards and the Office of Fair Trading, meaning that you may be liable for a substantial fine.

 

Be advised that all telephone calls from your company will be recorded. (include this even if you do not have any recording equipment)

 

Yours faithfully,

 

Again edit to suit, don't sign and send recorded.


:cool::cool: Blondmusic :cool::cool:

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as above and you can send any credit cards, catelogues loans the same.

 

you never know might help reduce that 27K

 

ida x


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Thanks to you both.

 

I will get the letters sent off on Monday.

 

Fingers crossed being so old they wont have the cca.

 

Will post again in a couple of weeks if and when I get a response, for further advise !

 

Your help is invaluable.

 

Thanks :)

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Theres very little chance that Barclaycard will have an enforceable agreement from 1998, if they have not provided it within 14 days post again, there is a follow up letter, if they do, post up what they have sent for an assessment of it.


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Not a problem. I am happy to help wherever i can. I have not been on here for long but i have learned so much and i am learning more every day.


:cool::cool: Blondmusic :cool::cool:

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Hi everyone, just wanted to clarify, is it 12 +2 days from the date of posting that they have to respond to CCA request ? Thanks

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It's 12+ 2 days from when they signed for it.


If I have been helpful in any way, please tip my scales :lol:

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ok great thanks

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ok great thanks

 

So are the 14 days up?


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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No not yet, they signed for it on Friday so still a little while to wait. Fingers crossed !

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Post back when the time is up, with whatever you get, or if nothing still post, for further advice


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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i have a theory on barclays.

theyr pretty much the only ones that consistently refuse reduced payments, i suspect theyr on the brink.


question everything!

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It is on the brink. They're cutting staff. One of my relatives has just been handed her notice - I've said to her that I think she should whistleblow for a variety of reasons which I can't get into yet.

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Hi everyone, great news ! Am so pleased.

 

I have received two letters from Barclaycard today (one for each account). Both of which have only supplied terms and conditions. Would someone be able to advise me of the next course of action ?

 

Am struggling to get them on here as dont have a scanner at home, will try and scan later and post up but the letter (same for both accounts) is as follows.....

 

"Reference: SECTION 78 of the consumer credit act 1974

 

I write further to a letter requesting a copy of your executed agreement for the above account.

 

The information we must provide to you under the terms of Section 78 is prescribed by the Consumer Credit Act 1974 and by the Consumer Credit (Cancellation NOtices and Copies of Documents) Regulations 1983.

 

Under Section 78, we must supply you with a copy of your executed agreement and statement of account which is practicable to refer.

 

Please find enclosed a copy of your latest executed agreement. This is a statement of the terms of your agreement with us and incorporates any variations to the terms made since you entered into this agreement. However, the interest rates have been omitted and the fees and charges have been suspended and are no longer applicable due to the current status of your account.

 

As you account is now in a recovery program, further information relating to the current state of your account can be obtained directly from your Recovery Team or Debt Management Agency.

 

This completes our obligation to you under Section 78 of the Consumber Credit Act 1974."

 

Enclosed is terms & conditions for both accounts both slightly varying but neither have any reference to it being a consumer credit agreement, nor are there any signatures.

 

 

Thanks in advance

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Bump

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you can reply with:

 

Dear Sirs,

Account no xxxxxxxxxxxxxx

 

Re: my request under the Consumer Credit Act 1974

This account is in Dispute .

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a copy of terms and conditions which did not comply with the requirements of the Consumer Credit Act 1974.

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

127(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 situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

2.6 Examples of unfair practices are as follows:

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

I respectfully request a response to this letter in 14 days

 

I trust this out lines the situation

 

 

Ida x

  • Haha 1

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Heres another example of the same.

 

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

__________________


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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Thanks, should I wait until the original 12+2 days is up before sending? so they are out of time should they find a cca or just send it now ? The 12+2 would have been up next week friday.

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send them now, separately, by recorded, do not sign, just type your name.


Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

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ok great will get them off tomorrow, will keep u all posted, thanks for your help

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Hi everyone, posted these letters on Monday, but was wondering how long they have to respond to my second request if at all, does anyone know ? Thanks

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It's up to them, they can take as long as they like. However, while it is in dispute, which it is now, they cannot take any action to enforce the debt. 6 years from the last payment or written acknowledgement it will become Statute Barred.

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Ok thanks, should i stop paying them the £1 per month ? At the moment it is paid through payplan ?

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Absolutely you need to stop paying. It can't start the stat barred clock until you do.

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