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    • Don't worry about the questions - that's what we're here for.   I'll try and flesh out the arguments and answer your questions at the same time.  Let's use "I" to refer to your mum as it's her WS.   1.  Sequence of events Describe briefly that the driver parked in the retail park and visited Citygate garage, thinking it was part of the retail park.  Upon return to the vehicle there was no windscreen ticket or indication of any infringement.  Later I received a PCN for parking in a restricted area, then various threatening letters, after a Letter Before Action which I replied to and finally a claim form.   2.  Locus standi VCS are not the landowner.  The contract they have provided is not with the landowner, it is with another company, it ran out in 2018, the company it is with went into liquidation in 2019, the contract cannot possibly be valid.   3.  No keeper liability VCS should be suing the driver, they have not established keeper liability under POFA (you know all about the 29-56 day stuff, quote it all from POFA).   (Yes!  Good find on their sign!  Include the sign and say VCS maintain they have images that can identify the driver and yet have not identified me as such).   (Yes, keep it vague as to who was driving, it's up to VCS to prove, not you.  They could easily have used POFA correctly but have complete contempt for the law so haven't).   4.  Planning permission VCS go to great pains in their WS to emphasise their signage, none of which I disagree with.  However I do not believe they have planning permission for these signs which is a criminal offence under Town and Country [Advertisements} regulations and means no contract could be formed.  I have requested proof of planning permission from VCS by means of a CPR request but they have not replied.  I have searched XXXXX council planning portal and I cannot find planning permission for the signs.  Their CoP incudes that they must obtain all legal permissions yet they have not done so (look up the bit on the IPC CoP):   (You can't prove a negative.  The work you've done here is more than enough.  They have to prove they have planning permission yet have not).   5.  Predatory practises These are forbidden by the CoP (again, look the section up) (a)  The driver did not find the Notice to Driver on their return to the car although it appears in VCS's photos.  As the car park is patrolled, it is unlikely that a member of the public removed it.  I believe the patrol officer photographed it and removed it.  This is a well-known tactic used by PPCs so that the motorist misses the chance to pay during the discounted period.  I enclose a statement by Mr XXXXX which confirms what i say. (b)  The driver visited Citygate garage which is a matter of metres away from the retail site, in fact the driver thought it to be part of the site.  The patrol officer could easily have mitigated the loss by informing the driver of their mistake, yet did not. (c)  The parking violation alleged was to have left the site, yet the PCN is for a completely different violation, parking in a restricted area.  The area was not restricted, there were no permits to show or payment to be made, it is a free public car park.  This error was made either out of incompetence or deliberately to confuse me and make it impossible to appeal.  In any case in their WS VCS are alleging a completely different breach of contract that that stated in their PCN and in all their previous correspondence I would point out that the patrol officer will not attend the hearing so I will not be able to cross examine him, and I am confident that neither will the WS author since from research I have carried out I have discovered that neither Ambreen Arshad nor Mohammed Wali (VCS's other paralegal) who always write the company's WSs ever attend hearings, presumably to avoid cross examination.  Its is especially easy to attend on-line hearings during the COVID pandemic as no travelling is involved.   6.  Unicorn Food Tax Easy, copy from Alaska 101
    • Good evening. thank you for the add. I have a problem with returning a Dell laptop within a 14 day cooling off period. I bought it online on the Dell uk website, and it was delivered to me on the 6th of September. I could not set it up because I was stuck at one of the steps (got the frozen screen and I could not get past it waiting for hours for something to happen). Then I contacted Dell Technical Support. I spent over 4 hours with their advisors on the phone and whatsapp and they could not help me to resolve this problem. So there seems to be a software( or hardware?) issue and I want to return it. I have tried to arrange a return thru the Dell website by picking the date, however, I did not receive any email confirmation of this and nobody showed up on the day. I phoned and emailed and they said I could not return it. Earlier this week I have contacted both their customer service and complaints emails with no success. They are not giving me their returns address. The guy in the 2nd email was trying to offer me a £130 off voucher but never got back to me with the returns address in the UK. I have used the Resolver  site yesterday to write another complaint quoting Dells own returns policy as well as the Comsumer Rights. My return window is running out. What can I do now?
    • FKofilee - thank you we got a fair deal if I am honest due to my daughters mental health issues it was better than I thought I would get because as was correctly pointed out to me as long as she is out of the toxic environment with a reference that is better than trying to prove bullying etc.    At least now we can move on.   To everyone, thank you for the comments about the reference think it was just the over protective Dad in me, I do not want any one to think ill of my daughter as her issues were caused by abusers who told her if she told me I would end up in prison not them which is something I will always feel guilty about as she suffered in silence. She knew I would have taught them that some people are capable of hitting back and may well not have stopped at simply giving them a taste of their own medicine. Unfortunately as a father of three girls I have found out the hard way I can not protect them from everything but we try to turn the page and move on.
    • Hi Dave, Hope you enjoyed the football and thanks for looking over the WS.   I have two questions:   1) Strategy - for my mum's car, considering 3 of us were insured on it before it was sold (me, mum, dad) do you think it's worth just playing the 'sue the driver not me' and evade whether she was there or not? And then say POFA wasn't fulfilled so can't be held liable at keeper. I wanted to point out in the WS they should be able to identify the driver considering they had a patrol officer and their privacy notice on their sign says:    'These images will include the recording of the vehicle number plate and may also include images of any person(s) associated with the vehicle. Images are collected for the purpose of identifying the driver or keeper responsible for any charge arising from failure to follow the contractual terms and conditions of the site.’   Obviously in practice they won't have taken images cos that would be a GDPR/privacy nightmare to store. But its their threat, so why not ask them to produce it?   Or should you think its best to to make the statement as you suggested and say they were there and keep it vague about who was driving, like the wording you used suggests?   2) Planning permission: I can't find anything in the portal, I emailed the council and they sent me a booklet about advertising and signs and asked which ones I meant. So I'll reply with pictures. But aside from hopefully the council replying saying they don't have permission - I don't know how else to prove that they didn't have planning permission.    Sorry I have so many questions - writing two WS's (even if they overlap) is a bit of an undertaking!          
    • Well Ambreen is mercifully less repetitive than Wally.  However, the "meat" of her WS comes down to the same thing.  "We put up lots & lots & lots & lots of signs and the driver walked off site".  I don't think you need two threads and I think fundamentally your two WSs can be the same based on the arguments in posts 101-105.   As you're going to state you think the attendant removed the windscreen ticket and also failed to mitigate your mistake, I'm thinking it might be worth your parents backing each other up.  They could each write a short statement saying that on that day they were with "the driver and the driver's party", that they all visited the Citygate garage together which was a matter of metres off site, and when they returned to the car there was no windscreen ticket.   Have they got any other proof of visiting the Citygate garage?  Did they phone before or make an appointment for example?    It also crossed my mind to briefly acknowledge you agree with Ambreen about the signage so that argument can be got rid of (she hasn't got much else).  Then I thought, even better, say you agree about the number of signs but that they were erected illegally and go on to the bit about planning permission.   Regarding LFI's point 48.  Not only will Ambreen not be in court (VCS's paralegals never, ever are) and therefore unavailable for cross examination, neither will the car park attendant who engaged in predatory practises.   When you have time post up a draft of your WS and we'll help to tweak where necessary.
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BARCLAYCARD-No CCa? Any action Group?


roygoodbeat
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  • 8 months later...

Recently received another copy of my application through Barclaycard. Then a letter of assignment saying it had been sold to Red. Ever since I have been receiving automated phone calls from Red, asking for me to call them. In addtion I have been getting weekly threat letters.

 

After my request that Barclays not pass on my phone number and after my notice asking them tio remove my number, why do Red insist on calling me and harrassing me. Ity seems that Barclaycard, mercesr, Calder, lowells, Red and any other muppet that my file is passed to feeel that they can keep calling despite my legal request.

 

As they have not produced all the required items under my orginal subject access request and compliance with my other requests, I last wrote to Barclaycard considering the account closed.

 

What position am I in if I make a full and final settlement based on the fact that they do not have all the correct paperwork to enforce anything, considering I have long since paid back the amount I borrowed and all they are trying to get is the interest, without a valid agreement.

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Hi RGB,

 

An interesting approach but I'm not sure it'll work the way you want.

 

If the a/c has been sold (as confirmed by the letter of Assignment), it has nothing to do with BC now.

 

Send Red a CCA request as this may shut them up for a while. If Red see that you're not a push-over, they may be more prepared to consider a F&F Settl't in due course.

 

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Does this mean I have to go through all the same old rubbish again with Red.

 

1) What does this mean in terms of agreements. If BC failed to produce the correct documents, and have outstanding items from the original SAR back i April 2009, does the new company have to abide by this?

2) I did write to BC stating unless they produced the info, it is deemed that they do not have the correct enforceable documentation and that I would consider the account closed. I have paid back the original amounts borrowed plus some interest and all they have sold on is unenforceable interest.

3) How can Red cal me constantly without my permission. BC, Mercers, Calder and co all ignored my request to remove my number and correspond in wrting only. I served them notice under the data protection act to remove my number. What gives Red the right to call my number?

4) The account was in dispute and never resolved.

5) What chances do ed have of enforing what is unenforceable through the courts (Or at least used to be?)

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Hi RGB,

 

The reality here is that what you think is right and/or fair is not the same as what BC or Red think.

 

Even if you complain to the FOS, they are unlikely to agree with you and will say that BC produced enough to comply with the CCA request and that BC had the right to sell the a/c to Red.

 

You can now tell Red that you'll pay nothing until you receive a copy of the executed credit agreement. See if that stalls them or enables them to discuss a F&F with you.

 

If Red try to take court action without the credit agreement, you should have a good chance of defending.

 

:wink:

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I will subject acces request them, however, what right do red have to keep caling myself. I have never given them permission so how did they obtain my number? If it was passed on by BC, then BC are in breach of my request to remove my telephone number. This has been requested on a number of occasions, even before this all started.

 

Surely if Red have been given this, they are in breach as it will say o any letters or info they have been given that I have requested this. Secondly, if they obtained my number from else where, surely they are breaking the data protection act.

 

In terms of BC, the reconsituted agreement does not match the application form they said was my agreement, therefore it surely is still in breach of my orginal request. I have had several t&c's from them, all of different dates. This must mean that what they provided is made up and therefore misleading.

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Hi RGB,

 

Will you SAR them or did you mean you'd send Red a CCA request ?

 

Looking at this objectively, your opinion that BC were wrong to sell the a/c and that Red should not be chasing for payments, is based on the assumption that the a/c is in dispute. But this argument may not be sustainable.

 

The issues you raise above would be valid if you were defending in court but, until that stage, you have your opinions and BC and Red have theirs.

 

:wink:

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I am going to sar them at first. This is mainly to see what they have on their logs as I am sure that they will send the same things bc have done. Which means they too do not have a valid agreement.

 

Its the fact I keep getting these prerecorded messages and texts. Surely it is against the law for them to harress me as I have never given red/ lowells the permission to call. I revoked this with bc, mercers and all the other debt agents they tried to throw at me.

 

The upsettiong thing is just when I am getting back on track, I start to get this rubbish again. From reading these forums recently, lenders and their solitiors are eroding the law and regs that they were meant to abide by.

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If you think Red are overstepping the mark in contacting you the way they are, use the harassment letters from the library.

 

Take the initial steps to warn them off and, if they continue to harass in ways that are unacceptable, then take further action.

 

The trouble is that you have to do this over and over, each time the debt is passed on. You can only hope that, now that BC have sold the debt, it won't continue to be passed around as much.

 

:wink:

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  • 2 weeks later...

Further to this, I have SAR requested them. In addition I gave them a section 10 notice to cease processing my data giving them 7 days to comply. Day 8 they broke it. I also received a letter yesterday.

 

1) It states that they will send everything within the 40 day period but only what they have on file. They stated that I will need to do the same to barclaycard as they will not have all the information.

 

2) They also wrote "We would advise you that upon purchaser of these accounts from Barclaycard, the default entries that have been recorded by them were then legally transferred into our name. We are able to process your data without your consent as from the point of purchase of these debts from Barclaycard, Lowell Portfolio 1 Ltd has become the data controller as defined by the data protection act in respect of this matter in place of them.

 

As the legal owner of the debt Lowell Portfolio I Ltd retains the right to process your personal data. Therefore we are unprepared to cease processing your date in respect of these debts on the basis this is required for the performance of a contract you are a party."

 

I have revoked permission for Barclaycard to call me and to remove my contact number from as early as 2008, before this all took place. I have asked for a written explanation for them calling me and how they got my telephone number, which they have not answered directly.

 

Any thoughts?

 

I also received a letter from Hamiltons who have threatened that they could go to court and apply for a ccj, which could lead to enforcment such as earnings attachment, bailiffs and securing the debt on my property.

 

Surely under the new OFT guidelines this could be classed as misleading as Barclaycard never produced a document that was a valid credit agreement enforceable and compliant under the 1974 the consumer credit act.

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So do Lowells now own the debt and Red are seeking payment as a DCA acting for Lowells ?

 

See what comes back in response to the SAR.

 

The situation regarding legal enforcement remains the same - without the credit agreement, you should be able to defend against court action.

 

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Lowell own the alleged debt.

 

If it the same as what Barclaycard did then they do not have an enforceable agreement. If this is the case and they ae threatening court action, surely they are in breach of the new OFT guildlines as they are knowingy making treats that they cannot carry out. (Using deceptive methods which is fraud in other legal situations)

 

As for them refusing to halt processing my data and continuing to call me, do I report them to the ICO? Again, if Barclaycard passed on my number after several requests for them to remove my number. and Lowell start using it knowingly that I have not given permission, are they breaking data protection laws and those of ofcom?

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Hi RGB,

 

Not sure if you're right on this.

 

There's nothing to stop them taking court action if they wish - that's their prerogative. Whether such action succeeds is, of course, up to the court.

 

Re the processing of your data and the continued use of your phone number, this hinges on whether they have the right to continue to seek payment without the original credit agreement. The bank and/or DCA will say that they have that right.

 

If you want to try the ICO anyway, there's no harm in trying.

 

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Barclaycard never produced a valid agreement, only areconstructed one. This never matched the three sets of terms and conditions they sent. Just before Lowell took over, BC finally sent a copy of theapplication form. None of the documentation, if used does not have all theprescribed terms and therefore unenforceablein a court of law.

 

I known that its their perogative that they can go to court however, reading the new OFt guidelines:

 

However, letters which refer to legal action would, inthe OFT's view, have the

potential to be perceived as a threat of legal action andtherefore could be an

unfair and oppressive business practice:

 

1) against someone who has a legitimate dispute with the original creditor

2) when information on the account may beincorrect and the account could not be pursued through the courts, for example if the debt is statute barred

 

Without this credit agreement conforming to the 1974 CCA act, point 2 surely applies.

 

In addition their letter is not clear when they stated that they would be instructing Hamtons International. The new code states:

 

The use of different trading styles by an organisation could potentially be

misleading if the organisation is not identified. Some debt collection agencies

(“DCAs”) use different trading styles to escalate debtsthrough the collection

cycle and some also use different trading styles or departmentsto differentiate

between the types of recovery activity which may takeplace. For example, if a

debtor has previously informed the DCA of severefinancial hardship, the debt

may be referred to a specialist „Financial Hardship‟unit.

 

However, whenever a trading style is used, the OFT hasmade it clear that they

see no legitimate purpose in failing to be transparentand therefore if the debt is

being escalated or transferred to a different departmentwithin the same

company and/or to a different company within the samegroup of companies (an

associated company under s.184 CCA74), the collection letter should make this

and the reason for that escalation or transfer, clear.

 

They did not make it clear that they were using a different trading style. This could be interesting for other dca's who act in the same manner.

 

My point with my phone number I revoked permission for BC to use it back in 2008, before I fell on hardtimes. The fact that they are still calling it and refusing not to call is in breach of the data protection act and can be deemed as harressment.

 

Over the years I have paid back everything I borrowed from BC and I am only, like most people wishing to have this dispute resolved. Without a valid agreement, they are not entitled to enforce the interest through the courts and should not keep threatening to go to court.

Finally I have noted that Lowells have conducted about 3 unrecorded credit searchs recently. Forgive me if I am wrong, but Lowells don't give credit and I have not given permission for them to conduct a credit search.

Edited by roygoodbeat
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Hi RGB,

 

I still don't agree with you.

 

If BC or any other bank or DCA believe they have a chance of getting a CCJ, even though they don't have the original executed credit agreement, they can take court action. It is then up to the judge to decide who should win. Hence, I don't agree that point (2) above would necessarily apply.

 

I do hope the business trading style Guidance helps cut down on the banks using multiple guises to pursue debts. Could this really be an end to BC morphing into Mercers, the Calders, etc, etc..........

 

Are Hamiltons contacting you as a legal firm of solicitors looking to take court action, or do you think they are just another DCA.

 

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  • 5 weeks later...

Hi

 

I have now subject access requested them.

 

They have two accounts. The first, orginally BC, they said that the agreement was enclosed, but was not. Same tactic BC used. Secondly did include a list of calls, but the majority of the times they called are missing on their list.

 

The second account, they included a Morgan Stanley Application form but not the agreement. The form they sent does not contain the prescribed terms. The call log here does not include all the text/ calls.

 

What should I do? In dispute letter plus request a copy of my credit agreement which complies with the 1974 act? Also to ask if they have the original copy??

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What should I do? In dispute letter plus request a copy of my credit agreement which complies with the 1974 act? Also to ask if they have the original copy??

 

Yes, you could do this.

 

If they have no copy of the credit agreement, that should reduce their chance of any success with a court claim.

 

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  • 5 weeks later...

If your Agreement was taken out prior to April 2007, the Bank is still required under Section 127(3) to produce the original, signed document.

This is not discretionary. Without it, the debt cannot be enforced in Court.

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