Can Mercers Issue Default Notices?

[middenmess]

87 Need for default notice

(1) Service of a notice on the debtor or hirer in accordance with section 88 (a “default notice”) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or...

 

Need to understand more about Default notices--have read a zillion threads and posts but would appreciate some opinions please.

 

Brief background Card obtained in 1993.I recovered my late charges dated to early this year from Barclaycard in July.

Failure to supply me with a true copy of my agreement despite several requests lead to me putting the account into dispute in early August and I stopped paying them.

Received demands and many phone calls but no agreement arrived; they continued to add late charges and then an over limit charge.

 

Last wrote by SD 14 days ago requesting agreement but no reply.

 

Today I received a Default Notice under section 87 from Mercers,pasted at bottom of post.The date to rectify by is spot on and I have omitted the OFT information section that was found beneath the sections that I have posted below.

 

Questions

 

a] As there is no section 87 in the 1974 CCA is this notice invalid.

 

b] I know that Mercers is a part of Barclaycard but are Mercers legally allowed to issue a D/N for my Barclaycard account using Mercers headed paper?

 

c] As section 1 of CCA 1974 includes the words .... of a regulated agreement,— is the D/N invalid as the existence of a regulated agreement has yet to be proven by supplying me with a copy of it?

d] If I fail to pay the requested sum they state that the following action may be taken..

'A debt collection agency will send a formal demand to you.This will ask for repayment of the whole balance'

Don't Barclaycard have to first terminate the alleged contract before instruction to collect the whole sum is made or does Section 87 [1] allow them to demand all before terminating?

 

e] As any future termination will include the most recent late charges and over limit fee and the interest on them ,will that invalidate the termination or since repaying the earlier late charges to me and by now calling them 'Default Charges' does this make a difference?

 

Advise or suggestions also as to what I should or shouldn't do next please.

[postggj]

Mercers Is Barclaycards Inhouse Dca

 

It Will Be Barclays That Issue The Default

[middenmess]

Mercers Is Barclaycards Inhouse Dca

 

It Will Be Barclays That Issue The Default

 

I know that Mercers are inhouse but the D/N posted above is on a Mercers headed letter with only the briefest mention of Barclays as in..

 

'We act as agents for Barclays PLC trading as Barclaycard'

 

Wouldn't Barclays have to issue a D/N using their own name with their trading address etc.shown?

 

Although the D/N I got from Halifax was invalid in other respects it was from Halifax on their headed letter and not from an in house agent!

[postggj]

Now This Is Interesting

 

Mercers Can Issue A Default Notice If The Account Has Been Assigned To Them

 

Well As Mercers Is Barclaycard, So No Assignment

 

My Opinion Is They Have Shot Them Self In The Foot Big Time But Await Confirmation

[middenmess]

Now This Is Interesting

 

Mercers Can Issue A Default Notice If The Account Has Been Assigned To Them

 

Well As Mercers Is Barclaycard, So No Assignment

 

My Opinion Is They Have Shot Them Self In The Foot Big Time But Await Confirmation

 

I thought it strange as well--their other statement about what may happen if I don't pay is also strange, I think.

 

I'll probably just wait out the 14 days and see what transpires as I'm confidant on several other points that they cannot enforce but the purchase of a 'Truecall' looms closer!

[postggj]

WORTH CHECKING THE DEFAULT NOTICE

 

 

 

Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

Quote:

SCHEDULE 2

FORM OF DEFAULT NOTICE BEFORE A CREDITOR OR OWNER CAN BECOME ENTITLED, BY REASON OF ANY BREACH BY THE

DEBTOR OR HIRER OF A REGULATED AGREEEMENT, TO TERMINATE THE AGREEMENT, DEMAND EARLIER PAYMENT OF ANY

SUM, RECOVER POSSESSION OF ANY GOODS OR LAND, TREAT ANY RIGHT CONFERRED ON THE DEBTOR OR HIRER BY THE

AGREEMENT AS TERMINATED, RESTRICTED OR DEFERRED OR ENFORCE ANY SECURITY

Regulation 2(2)

Details of agreement

 

1

A description of the agreement sufficient to identify it.

 

Parties to agreement

2

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

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

 

Details of breach of agreement and action required to remedy, or pay compensation for, the breach

3

A specification of:--

(a) the provision of the agreement alleged to have been breached; and

(b) the nature of the alleged breach of the agreement, specifying clearly the matters complained of; and either

© if the breach is capable of remedy, what action is required to remedy it and the date, being a date [not less than

fourteen days] after the date of service of the notice, before which that action is to be taken; or

(d) if the breach is not capable of remedy, the sum (if any) required to be paid as compensation for the breach and

the date, being a date [not less than fourteen days] after the date of service of the notice, before which it is to be paid.

 

relevant case law is this too...

 

DEFAULT NOTICE

 

The Need for a Default notice

Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.

It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant

Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)

Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974

Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119

__________________

[middenmess]

Everything appears compliant apart from..

 

Parties to agreement

2

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

 

Unless Mercers PO Box in Liverpool is also the address where we should send all our Barclay PLC correspondence to, then they would appear to have a real problem with this D/N.

 

And then there's also the other points I raised about it!

[Bill Shidding]

Hi Middenmess,

I have just checked through reams of DPA paper from BC.

 

I also received a DN from merciless on a BC without any CCA.

 

You should note that the DN states "we are acting as agents for".

 

I am 2 Years ahead of you, in my case they eventually issued a claim through HC, who bravely ran away after seeing the defence.

 

You can look forward to receiving an offer too good to miss ie. pay £500 and we will deduct a further £250 etc, in due course.

 

All the best

 

Bill

Edited November 20, 2009 by Bill Shidding

[middenmess]

You can look forward to receiving an offer too good to miss ie. pay £500 and we will deduct a further £250 etc, in due course.

 

LOL-can hardly wait.

So far I have....

partially illegible application

two different sets of T & C's for my 'agreement'

a number of irrelevant cut & paste letters

someone else's application

someone else's private references from a bank

awaiting 4 lots of complaints procedures requested from telephone callers

and not without surprise, an iffy D/N.

 

I keep saying that I'll look into the PPI aspect,multiple agreements and section 59 but I think that I have time on my side.

 

Bring it on.

[Bill Shidding]

So far (they) have....

partially illegible application

two different sets of T & C's for my 'agreement'

a number of irrelevant cut & paste letters

someone else's application

someone else's private references from a bank

awaiting 4 lots of complaints procedures requested from telephone callers

and not without surprise, an iffy D/N.

 

As merciless have stated that they are acting as "agents" on the DN, this should indicate that they are not the actual owners.

If I remember correctly, merciless are a non-trading company. No income, no accounts, no profit and no tax!

 

If only I knew then, what I know now!!

(Hi guest)

Bill

[middenmess]

Would this part of the CCA apply..

 

Action intended to be taken by creditor or owner

 

6

 

A clear and unambiguous statement by the creditor or owner indicating, if any action specified under paragraph 3© or (d) as required to be taken is not duly taken or if no such action is required to be taken, the action which he intends to take by reason of the breach by the debtor or hirer of the agreement—

 

To this part of the D/N that I posted at #1

 

'.......they may take further action against you.....'

 

unambiguous - admitting of no doubt or misunderstanding; having only one meaning or interpretation and leading to only one conclusion.

[Delfi101]

Ah, the lovely Merciless.

 

3 years ago I had some very unpleasant dealings with this lot of muppets. The endless phone calls, with a slightly hidden threatening agenda, became more than irritating. My personal record was 22 in a single day!

 

They send multiple threat-o-grams too - these come in birthday card sized envelopes addressed using Comic Sans font (apt really). Inside is a rather abrupt postcard printed in red ink threatening to eat your first born etc

 

They never acknowledged anything sent by post (recorded or SD) with the standard excuse being 'it must still be in the post room'.

 

Eventually they'll pass it on to a ****** DCA and then the fun begins. A 1993 agreement like yours is highly likely to be legally unenforceable. Mine was much later than that and, whilst the DCA tried it on hard, Sharklays were eventually forced to back down and drop the case against me.

 

Of course, that didn't stop them from attempting to pass it on to another DCA earlier this year. They soon buggered off when my solicitor rang them to inform them of their mistake Apparently 'apologetic' isn't sufficient to describe the grovelling.

 

All the best,

 

D

[middenmess]

The endless phone calls.....My personal record was 22 in a single day!

Wow!-That's a difficult total to beat!

 

I might have a chance to better that eventually as although I received a meagre 3 yesterday they were made during the 14 days to rectify the default period--bless 'em,they are probably practising for a later onslaught!

[Delfi101]

I took to asking them if they had a policy about abusive phone calls - they were phoning every day - the average reached 5-6 calls per day.

 

When they couldn't answer I just launched into total vulgar abuse - nothing angry - I eventually just calmly swore at them randomly until the phone was put down on me.

 

"Ah yes you've phoned the abuse line ... I have a special script for you."

 

Random 'naughty' words with no sentences. They're bullies and didn't know what to do - it's not in their script. Bunch of ****ing ****ers. They can **** the **** off the ****ing ****ards.

[middenmess]

Would I be right in saying that deep down you sometimes miss those intimate little chats:D

[Delfi101]

It would be absolutely fair to say that the feeling of triumph I got from defeating these parasites is worth every bit of effort and fight.

 

D

[beachcomber60]

Do I hold the record?

 

800 logged phone calls from Mercers

 

2 Default Notices for the same account within three months of each other

 

And still NO bl**dy enforcable cca - in fact NO cca at all

 

All whilst my complaint was & still is with the FOS & ICO.

 

Beachy

[middenmess]

Do I hold the record?

 

800 logged phone calls from Mercers

 

Worth starting a thread in the Bear Garden to establish your position at No.1:)

[middenmess]

Dated as 'X' they send me a D/N with 14 days to rectify the default and state that they are 'agents for Barclaycard'.

 

Then in today's post,dated as 'X+1' I receive an IMPORTANT NOTICE from them telling me that as they have been unable to contact me they will be instructing a local debt collector to visit me to collect payment.In this letter they are 'dealing with my account on behalf of Barclaycard'

 

Oooh scary:shock:

 

The D/N details a Balance and a specified amount [the arrears] due.

 

Today's scary letter details Outstanding balance with Payment due [same sum as the specified amount above]

 

Now am I wrong in thinking that you can only have an Outstanding balance on a running credit account if the account has been terminated or am I being somewhat pedantic about the terminology they have used?

[Delfi101]

I had the 'local debt collector' visit threat too. I sent them a note back saying that I would consider such a visit as aggravated trespass and, should it happen, would phone the police referring to a breach of the peace and then, if necessary, forcibly remove their agent from my property.

 

I also pointed out that any right of access to my property that they, or any of their agents, considered was theirs was formally rescinded.

 

Their response - well, guess They continued to phone and make similar threats by mail having completely ignored what I'd said.

 

They're a very loud laughable yappy dog with no teeth. They don't actually do anything themselves. Eventually they'll give up and pass the account on to a 'real' ****** DCA (Sharklays use a variety of these). At that point the threats get worse and then legal action may well commence. Then it will be 'game on' - if you're unlucky you may well get someone competent but I doubt it. In my case, and from everything that I've read on these boards, you'll get a fight against a bunch of idiots that bend and break all of the rules.

 

D

 

P.S I should have added that my fight ended up in the hands of Sharklays' main legal man (via Optimistic Legal Services - an incompetent bunch of clowns who were dumped in the latter part of the process) and he ended up giving up on their behalf. If you're looking in Adrian, good evening!

Edited November 21, 2009 by Delfi101

[beachcomber60]

Any views on this party piece

 

March DN from Mercers (on behalf of Barclays T/A Barclaycard)

 

May (from Barclaycard) Your account has been withdrawn - you must destroy your card

 

June 2nd Mercers DN received

 

All whilst account in dispute No CCA & complaints with ICO (missing statements) & FOS (Mis selling PPI)

 

Barclaycard admit mis selling PPI but wont refund ALL premiums & interest, FOS also uphold my complaint

 

Therefore not only is the DN non compliant it also states the wrong amount

[Delfi101]

I'd let them make the next move and counterclaim if they take it to court.

 

The important thing is to realise that you have time on your side - ALWAYS. The legal process has deadlines that you have to meet even though these scumbags almost never play by the rules. It is wise to 'play the game' and do everything meticulously.

 

These parasites play on the idea that things are very short term and that they can send in 'bailiffs' tomorrow. They're not and they can't.

 

You could be brave and initiate proceedings yourself I guess but at this stage a letter of complaint to Sharklays (sent SD or recorded) would be enough documentary evidence.

 

If you don't have a Notice of Assignment then make sure you send letters to the idiots making the threats AND the supposed creditor.

 

Keep absolutely everything (including envelopes). Do not ever deal with them over the phone - EVER. Document all contact made and keep a diary.

 

It may be worth you starting your own thread on this as it's a bit of a hijack of this one

 

D

Edited November 22, 2009 by Delfi101

[beachcomber60]

Thanks for your input

 

Firstly I DO NOT Hijack other CAG members threads & was not doing so to this one.

 

This thread is about Mercers dodgy default notices and I posted as to what they have done to me so others can see how they work, after all look at the thread title -yes Mercers have TWICE in my case - both non compliant!

 

I do have my own thread thanks - as I said I post here in response to the thread title, as it implies a discussion thread as to whether Mercers can issue DN's, I posted MY experience as part of that discussion.

 

My complaints are well advanced with the ICO & FOS and I do not fear Barclaycard making the first move, they WONT - they are on very dodgy ground & it is ME that is taking THEM to court!

[Delfi101]

And there's me trying to help ... sheesh ... some people!

[postggj]

knowledge is power

 

its all relevent