Gazab -v- BC Platinum a/c

[gazab41]

ok short update here had first demand calders same as the visa account battle in other post.

 

I sent same letter that had gone to mercers and calders for visa account and saterday 13th Feb I recived a new letter obviously a template however this one I thought a bit intresting because they actually quote OFT comments by a Ray Watson will post up latter as I must go to bed

[gazab41]

ok first of this letter was sent to mercers the same letter was also sent to calders after various demands posted earlier.

 

[Your letter posted 2nd class mail on the --/--/--, and giving me just 48 hours to respond, was received by me today. (Remove the bit in red if it was posted 1st class)

 

As the "inhouse" agents for BarclayCard, you should be well aware that this account is in dispute and has been since (date account went into dispute).

 

This is what the OFT has to say about misleading statements

 

"Misleading statements to debtors

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

May 2008

 

XXXXXXXXXX

 

Head of Credit Investigations and Enforcement, Office of Fair Trading"

 

Until, BarclayCard provides me with the document I have requested under the Consumer Credit Act 1974, I am unable to assess whether or not there is liablity owed by me.

 

I trust I have made my position clear.

 

/QUOTE]

 

I then recived the following demand from calders on the 1st Feb 2010

 

so again I sent the above letter to them the response this time is intresting at least it a final response now off to fos. any thoughts on letter bellow thanks

 

 

page 2

:!:thanks all also note the following points from earlier post

1. letter sent 22nd december states orig executed agreement has been sent to me. (not true only what has been posted above including terms and conditions for morgan stanley card with incorrect default charge for late or overlimit payments). and current agrement i.e(terms and conditions)

 

2. letter 24th November states Barclays only Legal obligation is to supply Terms and Condtions and as these supplied no longer in dispute.

 

3. Letter 8th October states Copy of executed agrement sent under seperate cover( only ever recived T/C)

Edited February 16, 2010 by gazab41
missed out useful bit

[citizenB]

Gaza,

 

I think you need to read the following thread

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

 

In it you will find the OFT contribution that B/Shark refers to .

 

I believe that Ray Watson also went on to say that the Creditor shouldnt mislead the debtor as to whether they do or dont hold a copy of the original document.

 

B/Shark may well have provided all they are obliged to under the CCA1974 s77/78 request. However, to proceed to litigation they would need the original document and not just the current T&Cs.

 

HTH.

[oilyrag]

Reinforced as well by HHJW's Summaries para 234 whereby he specifically states that the original is to be provided at each and every unilateral variation of the contract from the date of inception (even if the thing exists at all). His judgement IMVHO gives no latitude here for them to keep coming up with "reconstituted" paperwork i.e. forgeries!

 

regards

oilyrag.

[gazab41]

hi on weds got a text from csl no calls as yet today I recived the following still no executed cca

[gazab41]

[gazab41]

ok so as you can see need letter to send back to these people or pondlifes (delete as approiate) as you will see below they state they have sent orig executed agrement sent(never had this)

also state they only ever send t/c in another letter and even calder letter above asks for £120 not current amount being asked for I am so monies back unlawful charges so what now

 

. letter sent 22nd december states orig executed agreement has been sent to me. (not true only what has been posted above including terms and conditions for morgan stanley card with incorrect default charge for late or overlimit payments). and current agrement i.e(terms and conditions)

 

2. letter 24th November states Barclays only Legal obligation is to supply Terms and Condtions and as these supplied no longer in dispute.

 

3. Letter 8th October states Copy of executed agrement sent under seperate cover( only ever recived T/C)

[slick132]

Hi Gazab,

 

I see no need for you to reply to CSL, but it's your prerogative of course.

 

[gazab41]

hi all just looked at this again and am convinced Barclayshark have now unlawfully rescinded ac obviously they asked for £120 calders letter arrears orig dodgy default asked for £44.00 mercers

 

then imediate action notice shows outstanding balance at £"2383.33 dated 10/12/09.

 

then 48 hr notice asks for £2395.33 dated 29th december

 

Calders letter above asks for arrears of £120.42

 

CSL letter asks for £2407.33 again this includes lots of unfair charges with intrest should wipe total balance however i belive the whole account has been unlawfully rescinded by this last set of demands any advise should I just wait or should I send letter accepting unfair rescinsion thanks

[gazab41]

ok today recived the following anyhelp please in what i should do next the house i live in is not mine and girlfriend does not want anyone turning up unanounced thaks all.

 

Edited March 27, 2010 by gazab41

[slick132]

Have you read this - http://www.consumerforums.com/resources/templates-library/86-debt-collectors/591-dca-home-visit-if-you-receive-or-are-threatened-with-a-doorstep-visit-

 

[vint1954]

xxxxxxxxxxxxxxx

Power to Contact

Westmere Court

Westmere Drive

Crewe Business Park

CW1 6ZG

 

xxxxxxxxxxxxxx.

 

Dear xxxxxxxxxxxxxx,

 

I am receipt of your letter, dated xxxxxxxnd, your ref: xxxxxxxxxxx.

 

This account is in serious dispute with xxxxxxxxx, the details of which are none of your concern. You must however read the later paragraphs concerning home visits and data protection.

 

 

TAKE URGENT NOTE:

 

I DO NOT WISH TO RECEIVE ANY REPRESENTATIVE OF YOUR ORGANISATION, OR INDEED AN AGENT OR REPRESENTATIVE EMPLOYED BY ANY ORGANISATION THAT YOU ISSUE INSTRUCTIONS TO.

 

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 FOR DAMAGES FOR A TORT OF TRESSPASS AND ACTION WILL BE TAKEN, INCLUDING BUT NOT LIMITED TO , POLICE ATTENDANCE.

 

I also caution you here that should you ignore my request on this point, the actions of your representative(s) will happily be recorded either by CCTV or by telephone recording equipment – whichever is applicable. Accordingly I reserve the right to use any evidence of you or your representatives’ ignoring this request in connection with any actions that I choose to pursue, including media exposure.

 

Should it be your intention to disregard my wishes, and break your obligations, please be advised that the following rules also apply, as laid down by the OFT in respect of debt collection, and that you, as a holder of a consumer credit license, are obliged to follow:

 

The areas of the OFT guidance which applies to you in this instance are:

 

 

Debt collection visits

2.12 Examples of unfair practices are:

 

a. not making the purpose of any proposed visit clear, for example, merely stating that collectors or field agents will call is not sufficient

 

f. visiting or threatening to visit debtors without prior agreement when the debt is deadlocked or disputed

 

Deceptive and/or unfair methods

 

2.8 Examples of unfair practices are as follows:

 

k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any third parties and credit reference agencies.

 

Please confirm that you have complied with my request under section 10 of the Data Protection Act.

 

If Power 2 Contact process or continue to process my information, then you will be complicit in the current breaches under the Data protection act. I am sure that Power 2 Contact will be aware of the penalties and fines involved.

 

I do believe this makes my position clear and unambiguous.

 

 

Yours

[citizenB]

It always amuses me when they say they

 

"We have been instructed by our client to visit your address to collect the above debt"

 

They know they cannot do this without a court order. So how exactly do they intend to "collect"

 

Mug you ?

Break into your home and take your possessions ?

 

This is a blatant threat IMHO and they should be reported to the OFT.

Edited March 29, 2010 by citizenB
spelling

[vint1954]

Their response to the letter in post 62 will be, the situation you describe in Armstrong v Shepherd, only refers to that individual case, you cannot stop us from visiting you. We have a reply to that also.

 

You would think that they would learn the law surrounding their industry.

[gazab41]

OK first I got a response to letter from post 62 which was sent 2nd class post marked 31 March and arrived on Saterday 3rd April 09 oh look for the mistake (cap1)

Edited April 5, 2010 by gazab41
missing bit

[gazab41]

Also I recived the following special offer ?(junk) on Sat 3rd April as I am aware Barclaycard have unlawfully rescinded account on dodgy default and then formal demand should I just send CSL same letter sent to calders earlier and then the unlawful repudiation letter to barclaycard chears all.

 

[slick132]

Their left and right hands don't know what they're doing.

 

[vint1954]

You could reply in the following manner. Check it fits your circumstances.

 

Dear xxxxxxxx,

I am receipt of your letter, dated xxxxxxxxxx and note its contents.

Your letter states that your door step collection service is just to facilitate collection of monies outstanding. I would remind you that this account remains in serious dispute. I have obviously rejected this facility and I am in constant contact with the xxxxxxx by letter.

You also mention, Section 2.12, regarding adequate notice of the time and date of any visit.. You must also note that the OFT guidelines are just that and have no basis in law. The guidelines say that any person intending a door step visit needs to make an appointment. No such appointment will be forthcoming, so your statement is misleading in my opinion. I have detailed the rest of subsection 2.12 below. Please take note of subsection f below. I have also added section 2.8 for your benefit.

Debt collection visits

2.12 Examples of unfair practices are:

 

a. not making the purpose of any proposed visit clear, for example, merely stating that collectors or field agents will call is not sufficient

f. visiting or threatening to visit debtors without prior agreement when the debt is deadlocked or disputed

Cont:

Deceptive and/or unfair methods

2.8 Examples of unfair practices are as follows:

 

k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

 

You quote Armstrong v Sheppard as being dependant on each individual circumstance and refusal of access can only come from a court. You are wrong in this respect. I have the right to refuse access to my property and revoke licence under common law, to any individual or group, with very few exceptions. Your company and its agents, are not among those exceptions.

The law of trespass is quite clear and relevant extracts detailed below. Quite frankly, this is A level law and should come as no surprise to your company.

TRESPASS TO LAND

DEFINITION

Trespass to land occurs where a person directly enters upon another's land without permission, or remains upon the land, or places or projects any object upon the land.

This tort is actionable per se without the need to prove damage.

THE WAYS IN WHICH TRESPASS MAY OCCUR

1. Entering upon land

Walking onto land without permission, or refusing to leave when permission has been withdrawn, or throwing objects onto land are all example of trespass to land. For example, see Basely v Clarkson (1681) 3 Lev 37, below.

POSSESSION OF LAND

This tort developed to protect a person's possession of land, and so only a person who has exclusive possession of land may sue.

POSSESSION OF LAND

This tort developed to protect a person's possession of land, and so only a person who has exclusive possession of land may sue.

CONTINUING TRESPASS

A continuing trespass is a failure to remove an object (or the defendant in person) unlawfully placed on land. It will lead to a new cause of action each day for as long as it lasts (Holmes v Wilson and others (1839) 10 A&E 503; Konskier v Goodman Ltd [1928] 1 KB 421).

For example, in Holmes v Wilson and others (1839) the Ds built supports for a road on P's land. The Ds paid damages for the trespass, but were held liable again in a further action for failing to remove the buttresses.

Negligent entry: Example:

A negligent entry is possible and was considered in League Against Cruel Sports v Scott [1985] 2 All ER 489. The Ps owned 23 unfenced areas of land. Staghounds used to enter the land in pursuit of deer. The Ps sued the joint Masters of the Hounds for damages and sought an injunction against further trespasses. Park J issued an injunction in respect of one area restraining the defendants themselves, their servants or agents, or mounted followers, from causing or permitting hounds to enter or cross the property. Damages for six trespasses were awarded. The judge said:

"Where a master of staghounds takes out a pack of hounds and deliberately sets them in pursuit of a stag or hind knowing that there is a real risk that in the pursuit hounds may enter or cross prohibited land, the master will be liable for trespass if he intended to cause the hounds to enter such land or if by his failure to exercise proper control over them he causes them to enter such land."

Licence

A licence is a permission to enter land and may be express, implied or contractual. A dictionary definition is as follows:

"In land law, a licence is given by X to Y when X, the occupier of land, gives Y permission to perform an act which, in other circumstances, would be considered a trespass, e.g., where X allows Y to reside in X's house as a lodger. A bare licence is merely gratuitous permission. A licence may be coupled with an interest, as where X sells standing timber to Y on condition that Y is to sever the timber; in this case the sale implies the grant of a licence to Y to enter X's land. For contractual licence see Horrocks v Forray [1976] 1 WLR 230. See Somma v Hazelhurst [1978] 2 All ER 1011; Street v Mountford [1985] AC 809." (LB Curzon, Dictionary of Law, Fourth Edition).

If a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the licensee becomes a trespasser (Wood v Leadbitter (1845) 13 M&W 838; Hillen v ICI (Alkali) Ltd [1936] AC 65).

This account remains in serious dispute with the xxxxxxxxx the details of which are none of your companies concerns. You have been refused permission and licence to visit my property, in notice to your company on the xxxxxxxx and I expect your company and your agents to comply with my instructions.

Should it be your intention to disregard my wishes, and break your obligations, please be advised that the following rules also apply, as laid down by the OFT in respect of debt collection, and that you, as a holder of a consumer credit license, are obliged to follow:

I do believe this makes my position clear and unambiguous.

 

Yours faithfully

[citizenB]

Erm, the original creditor is Barclaycard, but they refer you to Capital One's Privacy statement

 

How bizarre is that

[Mr lex]

And the 'special deal' will because they can't back up their case in court

[gazab41]

OK recived this today still need to send unlawful rescinsion letter what do people think of this.

 

[slick132]

If you're going to use the Unlawful Rescission letter, now would be the time to do so.

 

Or just ignore CSL's snot-o-gram.

 

[vint1954]

If you're going to use the Unlawful Rescission letter, now would be the time to do so.

 

Or just ignore CSL's snot-o-gram.

 

Fully agree. Do it now.

[gazab41]

OK today I recived the following letter from CSL and as having issues with photobucket will type it in full.

 

Balance £2454.29

Offer of Settlement

Our client has advised us that in order to bring the above issue to a speedy conclusion, they are prepered to offer a substantial discount for an immediate lump sum payment.

Settlement amount £962.23

Settlement Date 29/06/10

 

If you are able to pay the above figure by the date required, it will be accepted as a full and final settlement of the debt and our client will right off the balance.

 

Failiure to receive your payment by this date, will render the offer being withdrawn and the full outstanding balance will be due.

 

As they have not supplied CCA and Calders had already terminated after dodgy default what should i do know belive they have not got CCA hence this offer.

[slick132]

Did you send them the Unlawful Rescission letter.

 

If so, I think you should stick to your guns and let them fester.