NO NAME DEBT COLLECTOR (For Barclaycard) SOLD TO LOWELLS/RED/HAMPTONS - NOW MUCK HALL /MERITFORCE

[debt4get]

personally it looks unenforceable to me, no terms and conditions, no repayments, frequency, etc, and it certainly has not been signed by the originator. I am not saying palomino is incorrect, but if it were me I would certainly fight it on the grounds on unenforceability

[palomino]

As others have pointed out there are certainly grounds for disputing the matter.

My point was solely related to your claiming it was an application based solely on the heading. Apologies for confusion.

[alfwithhair]

So are we all of the same opinion here, barclaycard are still is default of my CCA request of 2007 by sending what they did in response

 

What about the invalid default

[teaboy2]

Hi sorry i not beable to get back on here since my last post, but yes the default notice is invalid. They should allow for 2 working days after date of posting if send first class to be deemed served and 4 workings days after date of postage for second class.

 

Basically if sent first class you would have received it on the 10th, the 7th and 8th are not working days and the 9th being the second day of postage leaving you with just 9 days out of 14 days so its invalid with out any doubt. So if thats the only default notice you received then barclays have unlawfully terminated the account.

 

So you got 2 choices, 1 write to the ombudsman including details of the unlawful termination due to the invalid default notice and how they have continued to persue you for the debt whilst still in default of your CCA request. 2, wait for them to take you to court which looks unlikely as they need a true copy of your original cca to enforce the debt in court, which i doubt they have so sounds like the debts unenforceble in court due to them not having a the CCA. So best bet is ombudsman or if you can afford it take them to court yourself. Choice is yours but if it was me id go with the ombudsman and refuse to make any payments and get the ombudsman to tell them to remove the Default they have registered on your credit file too

 

And yes they are still in default for not supplying a true copy of the original agreement, they can only releave themselves of the default when and only when they have fully complied with your CCA request.

[alfwithhair]

Thanks for that info teaboy. I will have a think about which steps to take.

I have seen the Leeds Losers off before on a Crap One account, so know there traits.

They can wait for me to decide what course of action I wish to pursue.

There bull crap letters are like water off a ducks back.

Will keep everyone posted with any updates

[DonkeyB]

First up, I would ask Lowells for copies of any default and termination notices applicable to the account. If they provide what you already have, they would be instantly aware that the DN is invalid. Well, they would be aware if the knew the law...

 

You may as well CCA Lowells now just to waste lots of their time and b*gger up their bottom line

[pumpytums]

Hi just read your thread,

how can Mercers issue a DN when they are a DCA, surely only the original company can issue one?

Or was it simply a oops on Barclaycard ie selling before a DN was issued and then getting the cheapest DCA to issue one to confuse you?

 

It comes to something when a DCA can't even allegedly fake a default notice correctly.

 

Pumpytums

[DonkeyB]

Mercers IS Barclaycard!

[pumpytums]

Mercers IS Barclaycard!

 

 

Sorry I didn't know that.

 

Shame they got their DN wrong. The assignment letters are very amusing you would think they would at least try to make things look legit, for the price of another envelope and stamp.

 

I have a similar situation (different company) mine was sold before the invalid dn was up shame that.

 

Pumpytums

[DonkeyB]

Pumpytums, that sounds like a typical MBNA cock-up!

[pumpytums]

Spot on.

 

Pumpytums

[the_shadow]

Mercers IS Barclaycard!

 

and this is where the DN falls down yet again

 

The original creditor's name and address is not on the default notice. Yes we all know that Barclays are mercers however it is not stated on the default that this is so and all documentation that Mercers use is intended to give the impression that its seperate from Barclays and hence I would argue they havent complied with the legislation on default notices due to this:-

Taken from Consumer Credit Enforcement Default and Termination Notices & Regulations 1983

 

Any notice to be given by a creditor or owner in relation to a regulated agreement to a debtor or hirer under section

87(1) of the Act (which relates to the necessity to serve a default notice on the debtor or hirer in accordance with section

88 before taking certain action by reason of any breach of the agreement by the debtor or hirer) shall contain--

 

(a) a statement that the notice is a default notice served under section 87(1) of the Consumer Credit Act 1974;

 

(b) the information set out in paragraphs 1 to 3, 6 and 8 of Schedule 2 to these Regulations; and

 

© statements in the form specified in paragraphs 4, 5, 7[, 8A] and 9 to 11 of that Schedule.

 

 

Parties to agreement

2

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

(2) The name and a postal address of the debtor or hirer.

Mercers state they are acting as agents according to the default notice, therefore the address of the creditor or the owner is not on that default notice.

 

S.

[DonkeyB]

I would agree with that Shadow, though I'm not sure we have the definitive ruling on it just yet. Anyone know if it's been tried in court?

[diddydicky]

on its own i suspect it would be de minimus since it is clear to any reasonable person who the original creditor is

 

however, taken in cumulation with the other faults in it it is useful extra ammunition

 

personally i would do nothing unless/until a court summons arrives on the doormat

[the_shadow]

on its own i suspect it would be de minimus since it is clear to any reasonable person who the original creditor is

 

however, taken in cumulation with the other faults in it it is useful extra ammunition

 

personally i would do nothing unless/until a court summons arrives on the doormat

 

Sorry but I would argue strongly against it being "de minimus".... the regulations are clear, the default notice must state who the creditor is... not some dummy company that is connected to the original creditor, it needs to state who the owner of the debt is as per the agreement that has been signed between the two parties.. if there is a change in company then IMHO a NOA should be issued.

 

Mercers is a dormant company albeit under Barclays control.........its a seperate legal entity and thus is not the owner of the debt IMVHO.

 

S.

[diddydicky]

it does state who the creditor is- the only thing missing is the address and i suspect that if this were the only fault in the DN (as i indicated) the judge would ask the defendant if he had been dealing with barclays previously and knew what their address was.

 

i suspect that the other side would have plenty of communications in their bundle to show that the defendent knew full well what barclays address was and i believe that MOST judges would take the same view as myself.

 

However i respect your opinion

 

we probably need to agree to disagree

[alfwithhair]

Well I am totally stumped now as to wether to reply the Leeds Losers or not. I have had dealing with them before for my sons Crap One account and also with one of my wife catalogue accounts, both time they have admitted defeat under similar curcumstances.

 

I think I may just wait to see if their next letter follows the same patten as the previous times.

 

As you all have said there are various sources of ammunition to consider here and the fact that this account has been floating about for the last 2 years without anyone taking any serious action would suggest that there is a problem with enforcement given the amount outstanding.

 

If a judgement could of been obtain without question, I am sure they would have gone for it by now.

 

The fact the Leeds Loser have now purchased it, (allegedly) would suggest to me that they are scraping the barrel.

 

Thanks for all your comments and advise. If anyone else feels their input would be valuble, then please feel free to add your two penneth.

 

The more info and suggestion I have to go on the better my eventual response will be.

 

Regards

Alf

[diddydicky]

please ignore the comments above- the fact is that teh DN is flawed in any event by not giving you sufficient time to remedy

 

as you say they do not seem to have the appetite for legal action

[the_shadow]

it does state who the creditor is- the only thing missing is the address and i suspect that if this were the only fault in the DN (as i indicated) the judge would ask the defendant if he had been dealing with barclays previously and knew what their address was.

 

i suspect that the other side would have plenty of communications in their bundle to show that the defendent knew full well what barclays address was and i believe that MOST judges would take the same view as myself.

 

However i respect your opinion

 

we probably need to agree to disagree

 

Statute is statute, laid down by parliament and is there to be followed, if a judge makes a judgment that goes against statute then it gives an instant appeal point and won that should be upheld imo.

 

The fact is that the regulations state what must be on a default notice, whilst the amount in dispute is a debatable point on the day, a missing prescribed term is not in my opinion more so than the allowable days for retification I would even say.

 

As you state later on, the fact they have not chased this harder speaks volumes to the point they know they are on shaky ground with this account.

 

S.

[teaboy2]

And that argument is exactly why its always better to stick to the more simple and straight forward legal points that can not be argued or lost on such technicalitys as what was being argued in this thread. and thats why i only mentioned the 14 day rule, such as in this case the full 14 days to remedy the default were not allowed for making the DN invalid.

 

both of you are correct in your arguements but merlins are NOT a seperate entity, they are now part of barclays plc. Which is why they are registered as a disolved company. So it would be the judges decision weather or not the use of merlins name and address could be considered as that of the creditors name and address in the same way that barclays customer service centre or credit mangment offices are, both of which may well be/or may not be run by companies that are part of barclays plc just like merlins is. get my point?

[alfwithhair]

Well have had a think about it and decided I wil write to the Leeds Losers once and once only.

Will keep it smple so they can understand (hopefully LOL)

Will just go on the disputed account with OC angle for now, keep the rest up my sleeve for another day.

So can I just check with you all the the points I am going to make are correct.

1/ B/Card are still in default of my original CCA request with what they have supplied?

2/ They have sold an account whilst in dispute (this is against OFT guidelines is it not) Is there any other legislation that this comes under?

3/ should I mention anything about the NOA, as it came from them not B/C

 

As I say, will keep the dodgy DN as a scud missle should they push any legal action

[teaboy2]

Well have had a think about it and decided I wil write to the Leeds Losers once and once only.

Will keep it smple so they can understand (hopefully LOL)

Will just go on the disputed account with OC angle for now, keep the rest up my sleeve for another day.

So can I just check with you all the the points I am going to make are correct.

1/ B/Card are still in default of my original CCA request with what they have supplied? Thats correct

2/ They have sold an account whilst in dispute (this is against OFT guidelines is it not) Is there any other legislation that this comes under? yes Breach of CCA section 78 ss 6 i believe i will check that though to make sure and let you know.

3/ should I mention anything about the NOA, as it came from them not B/C upto you but really what you there as it wont make any difference due to you having a invalid DN, so the debt will still be unenforcable regardless of notice of assignment.

 

As I say, will keep the dodgy DN as a scud missle should they push any legal action

 

Hope that helps, and as i say ill check the legislation part out to be certain but i believe that is the one or part off.

 

the following also apply Consumer Protection from Unfair Trading Regulations 2008 (CPUTR) ss.5(2), 3(b),6 and 7 As in the CCA request letter.

Also breach ofData Protection Act 1998 section 10

 

And is not enforcable whislt the creditor is still in Default of your CCA request made under section 78 of the consumer credit act 1974, and thefore no enforcement action is permitted under section 127 of the consumer credit act 1974.

 

others may wish to add to the above.

Edited December 18, 2009 by teaboy2

[diddydicky]

Statute is statute, laid down by parliament and is there to be followed, if a judge makes a judgment that goes against statute then it gives an instant appeal point and won that should be upheld imo.

 

The fact is that the regulations state what must be on a default notice, whilst the amount in dispute is a debatable point on the day, a missing prescribed term is not in my opinion more so than the allowable days for retification I would even say.

 

As you state later on, the fact they have not chased this harder speaks volumes to the point they know they are on shaky ground with this account.

 

S.

 

I take your point - and i was and am referring solely to a situation where the missing address of the OC is the ONLY defect with the DN

 

I am well aware (as i am aware of many other clear cut regulations that are not fully adhered to in court that the decision by the judge might well give rise to an appeal.)

 

I am also aware that many people would not then "chance" the appeal due to the costs and the judges know this

 

I am also not sure in this case that the appeal would succeed since IMO the judge (and appeal judge) would seek to establish , irrespective of what the regulations state, exactly what disadvantage or prejudice the omission of the OC's address would have caused the defendant,

 

As i see it, unless the omission resulted in the DN not giving the defendant a clear understanding of its purpose and the action he must take in response, there seems to be no prejudice or adverse consequences to the defendant.

 

The defendant could IMO only claim that he did not know where or who to pay the money to in order to remedy the default, but again i feel that he would be hard put to convince the court that he was unaware of the address of the OC

 

Unlike say section 127 (3) which in relation to certain agreements gives a judge no leeway, i believe that the test of what prejudice might be caused WOULD be applied in these circumstances and i personally would not risk an appeal on this one point alone

 

The more so since courts ARE clamping down on attempts to avoid debts based on "frivolous" arguments or technicalities

 

Only my laymans view of course

 

as i said i think we will have to agree to disagree on this one

[diddydicky]

Well have had a think about it and decided I wil write to the Leeds Losers once and once only.

Will keep it smple so they can understand (hopefully LOL)

Will just go on the disputed account with OC angle for now, keep the rest up my sleeve for another day.

So can I just check with you all the the points I am going to make are correct.

1/ B/Card are still in default of my original CCA request with what they have supplied?

2/ They have sold an account whilst in dispute (this is against OFT guidelines is it not) Is there any other legislation that this comes under?

3/ should I mention anything about the NOA, as it came from them not B/C

 

As I say, will keep the dodgy DN as a scud missle should they push any legal action

 

i would "slip in" to the letter (if you have not already done so) your "acceptance " of their unlawful rescission

[alfwithhair]

i would "slip in" to the letter (if you have not already done so) your "acceptance " of their unlawful rescission

 

who's has inlawfully resinded the agreement, would thant be Barclayshark?

and at what point, when Alliannce one send the formal demand for the full balance, or when it was allegidly sold to lowells?

Or is that information irelevant to the losers at the moment?