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    • I've had another look at their WS and as it definitely states that they are pursuing you as the keeper in point 19 they must lose their case because their PCN is not compliant with PoFA on two counts.  First is the fact that they must have a parking period and it is quite clear that entering and leaving the car park does not constitute a parking period since some of the time the motorist is either driving around looking for a parking spot then leaving the spot and driving to the exit. All that takes time so that is one fail. The other fail is in their wording when they are trying to transfer the liability of the alleged debt from the driver to the keeper. They are supposed to include at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)". That in itself makes it non compliant but the fact that they haven't got a parking period means they haven't met the applicable conditions.   Looking at their contract, the names of the signatories and their positions in their respective  companys have been redacted. You do need strict proof of who actually signed. There is no specific authorisation from the Client to allow Court action in pursuit of non payers. In section 11 which is like an addendum it states" the Company shall provide parking control" but doesn't state if that includes legal pursuit as well and it does not appear to be signed.   The entrance sign does not include the T&Cs so it is only an offer to treat  not  an offer of a contract. Their only appears to be one type of sign inside the car park which is unusual and a lot of the signage is in too small a print to be acceptable in Law as capable of forming a contract. The signage also includes unlawful demands for extra charges which makes the whole contract invalid.  PoFA 2012 made it quite clear that the maximum  amount claimed was the amount on the sign. This has been reinforced by the Private Parking Code of Practice which states that no extra charges can be made over the signage figure. Indeed a Government Minister is quoted as saying that the extra charges demanded by parking companies are "a rip off" yet they still include them. They are an abuse of process and should be subject to adding exemplary costs payable to the motorist to act as a deterrent to rogue car parking companies.   They have no planning permission for their signs and ANPR cameras which means that in addition to them being unlawful because of the extra charges they are also illegal because they have not been given permission to be there under  the Town and Country [Advertisements} Regulations  1969. They are supposed to comply with the Law and the IPC code of Conduct and they have done neither. The new Private Parking Code of Practice  draws attention to it as well  s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."   So it is not as if this is a secret-since it has been out since February 7th 2022 . You would have thought that as this Code was designed to root out the rogues in the industry that the parking industry would already have made adjustments to their activities in order to align themselves with the will of Parliament as proposed by Minister Neil O'Brien  who said   "The publication of this Code therefore marks the start of an adjustment period in which parking companies will be expected to follow as many of these new rules as possible."   Ignorance of the Law is no excuse but even Gladstones are surely aware that the extra charges are unlawful  it beggars belief that they can aver that they have told the truth on their WS.
    • Evening all,   I am looking for a little bit of advice, any would be appreciated. I am a bit hesitant in giving all the in's and out's as I am not sure of the forums procedures and I do not want to compromise my situation.   Basically as a result of a few issues in my life inflicted/self inflicted I ended up in a bad situation financially. A company brought a debt off a lender I had used and took me to court, I really mis-managed this and although I attended court with a case the verdict went against me. I accepted this but never heard anything back from them and admittedly as I was struggling didn't pro actively seek them out to make payment. So, on my Credit report I had a CCJ due to expire Sept. 2022, which I associated to that particular incident. Anyhow, I have recently received a Notice of Application for Attachment of earnings order, however, this is regarding a completely different debt/Court procedure to the one I participated in. The creditor, to my knowledge has never contacted me and until this week I have never received any correspondence to this case from the creditor or county court.    Basically, I was just after a bit of advice, on how to go about this. I am worried that if my employer is advised of the CCJ, it makes my position uncomfortable, maybe untenable which will only be negative to my situation.    So can I still contest this and possibly get it removed via the courts, can I delay it for 3 months to get it statue barred, do I pay the whole amount (to a company whom brought it at a pittance) or do pay it off and if so, can the figure be negotiated and how long would it affect me credit score?   I apologise for the number of questions, and appreciate any advice. My concern is the application ruining a very good job for me.   Thanks in advance
    • Thanks, I am worried because on the citizenship application they ask if I received warning, I am not sure if TFL warning this the same police warning or not?? 
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Barclaycard Default Removal Possible?


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I recently SAR 'ed BC and got a list of all the default charges applied to my account over the years that I had this card. I then sent them a letter asking for the charges back, and then a LBA of which they then caved in and refunded nearly £800 of charges off my balance of nearly £900.

 

I then paid the £100 to them in full and final settlement, and I have since had a letter confirming that this account is now a zero balance and fully settled.

 

My questions are,

 

As I owed £900 and this was made up of £800 of default charges, does this mean that the default is not actually a true reflection of my actual debt to BC?

 

Is there anything I can do to get this default or any late payment markers removed?

 

Thanks in advance.

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if you can PROVE the default was solely caused by their unlawful charges, then as they have refunded, then the default should be removed.

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Hi dx - Thanks for your reply.

 

How would I go about proving that though?

 

I have a list of the charges and dates etc that they sent me from the SAR - These are ones that they have refunded plus 8% interest.

 

Have you any pointers etc - If the account had never had those charges added in the first place, I would have been able to keep up with the repayments, it's just that when I actually looked at what my balance was made up of, ie charges, I lost the will to keep paying when times back then were harder.

 

I did ask them to remove the default, as part of negotiating on the phone, but they were adamant that the default was a true reflection of my account at that time.

 

Do you think it is worth fighting for?

 

I just wish I had taken this step of asking for the charges back a year or so ago, and then saved a years worth of hassle. It is such a huge relief knowing that you have wiped off so much debt, just from a couple of letters being sent back and forth.

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you need to look at when the default was put on and then what they are saying caused it.

if YOU did not make any transactions during that period then late/over limit charges must have put you over your agreed limit.

 

so if they have refunded them, thus the default is defective.

 

its worth a try.

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Hi dx

 

Thanks again. Unfortunately late last year I wrote to BC for a list of charges, and enclosed the £10 re this. What I didn't do was ask for a full and proper SAR - Is it by any chance doable asking BC to now provide this for the original £10 I paid?

 

I do not have a copy of the original default notice, and I was only made aware it had actually been issued when I spoke to BC on the phone to settle the last £100 the other week.

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if you can PROVE the default was solely caused by their unlawful charges, then as they have refunded, then the default should be removed.

 

dx

I would go slightly further than this, and say that the default was inaccurate if it included even ONE unlawful penalty charge.

 

So, if the amount specified in the DN to remedy the default situation included any penalty charges, you should complain to BC and the DCA which issued the DN.

 

Also, you can usually add weight to your complaint if the DN was issued by Mercers or Calders on behalf of Barclaycard. This, in itself will render the DN defective.

 

See here about default removal :-

 

The Consumer Forums - Challenge a default on a disputed account

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/

 

:)

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If you want to avoid spending a further £10 on a SAR, write to BC and say something like:-

 

Dear sir or madam,

 

Account no: xxxx xxxx

 

I refer to my SAR of xxdate.

 

I note that you have responded with a list of penalty charges which have now been refunded.

 

However, you did not send copies of the Default Notice, or any other information regarding the account.

 

Accordingly, would you please now send me the further information required within the next 14 days.

 

I have, of course, already paid the £10 fee with my original letter.

 

Yours faithfully,

 

Alternatively, if you want to save time, send a new SAR with the £10 fee using the template in the Bank Templates Library.

 

:)

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  • 1 month later...

I got a reply from BC today, as per Slick's letter above.

 

There are 2 Default Notices within the information they have sent.

 

1) Mercers, dated 3/07/2008 - Amount due £42.00 - Before 20/07/2008

2) Mercers, dated 06/02/2009 - Amount due £85.32 - Before 23/02/2009

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From what i can see, even if they were posted 1st class they are both a day short.

Also i dont think mercers can actually default you, it would have to be barclays, so i would say that both defaults are defective on the 2 points.

Somebody will correct me if i am wrong.lfb

Edited by littlefatbudha
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Hi LFB - Thanks for the input.

 

I spoke to Barclaycard today, as I wanted to find out why when the first default was sent, it was x amount, and then when the second one was sent it was y amount (higher) and on the formal demand it was z amount (even higher)

 

It would appear that BC have never terminated this account until July 2009 (or the date the formal demand according to the letters received was)

 

I told him that the default was done by Mercers, but he said it was on behalf of BC and so it was a valid one.

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Hi LDT,

 

Mercers rep is talking rubbish. A DN is faulty if it:-

 

1. Gives you insufficient time to remedy the default.

 

2. Includes any unlawful amounts - ie penalty charges.

 

3. Is not compliant with the very strict requirements set out in CCA1974. In this case, Mercers are not able to simply issue a DN on behalf of BC.

 

Did you read the material I linked in post #6 above.

 

Have you read about unlawful rescission, where the creditor or their agent demands repayment of the full sum and not just the a/c arrears, thereby terminating the credit agreement.

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Hi Slick

 

From your post, the DN is faulty on all 3 points then surely?

 

Did you read the material I linked in post #6 above.

 

Yes but I am unsure on how to proceed.

 

Have you read about unlawful rescission, where the creditor or their agent demands repayment of the full sum and not just the a/c arrears, thereby terminating the credit agreement.

 

Yes, but this does not apply from what I can see. I have since settled this account in full, once BC had refunded all the charges and interest. So the recission is not an arguement, unless I have missed a trick?

 

The thing is, Mercers say the DN on my CRA would say BC and not Mercers.

 

Is it possible you think to argue the removal of the DN now or would it be a waste of time?

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See here for a little encouragement. I know it's a different case to yours but you need to show BC and Mercers that you'll take them to task to get the Default removed - http://www.consumeractiongroup.co.uk/forum/gyms-health-clubs/262454-penny18-ashbourne-management-gym.html#post2978062

 

As your account is settled, you're right that unlawful rescission doesn't come into play.

 

You need to read up on default issues and, specifically, the way a default notice must be set out to comply with CCA1974.

 

I think you still have the right to get the Default removed but you will have to do some work beforehand.

 

Further reading:-

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/208663-tale-dodgy-dn-further.html#post1893767

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1837307

 

A couple of important cases to read about are RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney and Kpohraror v Woolwich Building Society.

 

When used correctly, these cases should put the fear of God into the DCA that filed the Default.

  • Haha 1

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See here for a little encouragement. I know it's a different case to yours but you need to show BC and Mercers that you'll take them to task to get the Default removed - http://www.consumeractiongroup.co.uk/forum/gyms-health-clubs/262454-penny18-ashbourne-management-gym.html#post2978062

 

As your account is settled, you're right that unlawful rescission doesn't come into play.

 

You need to read up on default issues and, specifically, the way a default notice must be set out to comply with CCA1974.

 

I think you still have the right to get the Default removed but you will have to do some work beforehand.

 

Further reading:-

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/208663-tale-dodgy-dn-further.html#post1893767

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/170345-tale-dodgy-dn.html#post1837307

 

A couple of important cases to read about are RICHARD DURKIN v. DGS RETAIL LIMITED+HFC BANK PLC, 26 March 2008, Sheriff J K Tierney and Kpohraror v Woolwich Building Society.

 

When used correctly, these cases should put the fear of God into the DCA that filed the Default.

 

Cheers Slick

 

That's some reading. :eek:

 

Absolutely no idea on how to approach this though, I may need Pinky on the case.

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OK - First draft, I couldn't sleep.

 

 

Account Number:

 

Ref: Default Notices Received in SAR from Barclaycard

 

Dear Sir / Madam

 

I received a response to my SAR from Barclaycard on 15th June 2010. I was surprised to see not one, but two different default notices, which have been printed on your letter headed paper. This is the first time that I have actually ever seen either of these default notices. I would like 'strict proof' as to the 'means of postage' and to the 'proof of postage', that you did indeed actually send these default notices on the dates that both default notices contain.

 

For absolute clarity, I have never received either default notice through the postal system, until seeing them in my SAR received by myself on 15th June 2010

 

If you cannot provide proof of postage for these default notices, having being sent by 'First Class', could you please confirm this to me in writing. In the absence of any proof of 'First Class' postage, both default notices would then be deemed as having actually being sent as 'Second Class' originally.

 

In the event of a default notice being sent 'First Class' then it is deemed served 'two days' after you have posted it. This does not include Weekends, or Bank Holidays.

 

In the event of a default notice being sent 'Second Class' then it is deemed served 'four days' after you posted it. This does not include Weekends, or Bank Holidays.

 

As you are aware, for a default notice to be a valid one, there are certain requirements, that the company that issues the said default notice, has to comply with. By not doing so it would immediately put you liable to a breach of the Consumer Credit Act 1974, in particular s.87(1) of said Act; I quote the relevant parts for your perusal:

 

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

 

* a statement saying the notice is a default notice served under section 87(1) of the 1974 Act

* a description of the agreement

* the name and address of both the debtor and the creditor

* details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

 

On both default notices, there are no actual address details for Barclaycard, only the name and address of 'Mercers Debt Collections Ltd'. On both default notices, it states that Mercers are acting as agents for Barclay's Bank PLC trading as Barclaycard. Therefore it is reasonable to conclude that Barclaycard did not infact, send nor did they issue, either default notice to myself. Again, there are no address details for Barclay's Bank PLC trading as Barclaycard.

 

The first default is dated, 3/07/2008 - If sent 'First Class' this would be deemed as being served on 7/07/2008 or if sent 'Second Class' this would be deemed served on 09/07/2008 - With an amount due of £xx.00 - The date of putting right this breach is 20/07/2008 - Therefore, even if you had sent the default notice, 'First Class' or 'Second Class', you did not give myself the full 14 days 'from the date you receive it to pay the arrears'

 

The second default is dated, 6/02/2009 - If sent 'First Class' this would be deemed as being served on 10/02/2009 or if sent 'Second Class' this would be deemed served on 12/02/2009 - With an amount due of £xx.00 - The date of putting right this breach is 23/02/2009 - Again, even if you had sent the default notice, 'First Class' or 'Second Class', you did not give myself the full 14 days 'from the date you receive it to pay the arrears'

 

A 'Formal Demand for Payment' was then issued by a different Collections and Legal Debt Recovery Agency dated, 3rd July 2009 This was for the full amount of my Barclaycard account balance. This was done after sending myself an 'inaccurate' default notice, and as such you did in fact 'unlawfully rescind' the agreement.

 

Furthermore the 'Formal Demand for Payment' included in the required amount, that was now due in full, a balance, that included charges for returned payments, as well as late payments. This as you probably already know, has the effect of making the amount that was asked for, i.e. the required amount that was now due in full, asked for by the third party collector 'inaccurate'.

 

Because of the charges and late payments, the amount asked for was not actually the 'true' amount that I allegedly owed. All of these charges have since been refunded, along with interest by Barclaycard. I enclose a copy of their letter that they have written to myself, informing me of their decision and the refunded amounts that they have since credited, to my 'now fully settled' Barclaycard account.

 

This means that you were in fact, only entitled to ask for, or to collect the arrears that were present, up until the time of termination, and not the full amount of the alleged debt.

 

For the sake of clarity, now that I have actually received copies of both default notices, it is crystal clear, that both are indeed 'inaccurate', I now accept your unlawful rescission.

 

As you are probably aware, 'Failure of a Default or Termination Notice to be accurate not only invalidates such Notice (Woodchester Lease Management Services Ltd v Swain & Co NLD 14 July 1998 ), but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt (Wilson v First County Trust Ltd [2003] UKHL 40, Wilson v Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson v Pawnbrokers [2005] EWCA Civ 147) but would also give the Claimant a claim for damages in the sum of £1,000 (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)'

 

It is clear to me that you have acted unlawfully by not issuing a fully compliant and correctly executed legal document. As both of the default notices are 'faulty' or 'inaccurate' to say the least.

 

I now request that you immediately do the following actions:

 

  • Remove any such defaults from my Credit Files within 21 days,
  • The Status of the account will change from “Defaulted” to “Settled”
  • The Current Balance will appear as £0.00
  • The Default / Delinquent Balance will be set to £0.00
  • There will be no date in the “Defaulted Date” field (as it will be removed)
  • There will be no date in the “Date Last Delinquent” field on the report
  • This will apply to all 3 Credit Reference Agencies, namely Experian, Equifax & Call Credit
  • Award myself damages in the sum of £1000

 

Failure to agree will result in more formal papers being sent, I shall also approach the FOS, the OFT and the ICO and ask for them to act on my behalf.

 

I look forward to your response within the next 21 days.

 

Yours faithfully,

 

 

 

enc:

Copy of Barclaycard letter re charges

Copy of both default notices

Copy of Formal Demand for Payment

 

Credit for some of the text used to CAG and MSE

Edited by letsdothis
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Second draft, any comments?

 

Account Number:

 

Ref: Default Notices Received in Subject access request from Barclaycard

 

Dear Sir / Madam

 

I received a response to my Subject access request from Barclaycard on 15th June 2010. I was surprised to see not one, but two different default notices, which have been printed on your letter headed paper. This is the first time that I have actually ever seen either of these default notices. I would like 'strict proof' as to the 'means of postage' and to the 'proof of postage', that you did indeed actually send these default notices on the dates that both default notices contain.

 

For absolute clarity, I have never received either default notice through the postal system, until receiving them in my Subject Access Request received by myself on 15th June 2010

 

If you cannot provide proof of postage for these default notices, having being sent by 'First Class', could you please confirm this to me in writing. In the absence of any proof of 'First Class' postage, both default notices would then be deemed as having actually being sent as 'Second Class' originally.

 

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

 

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

The first Default notice supplied by Mercers is dated Thursday 3rd July 2008, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Monday 7th July 2008, namely Monday 21st July 2008. The default notice clearly shows the remedy date of Sunday 20th July 2008

 

The second Default notice supplied by Mercers is dated Friday 6th February 2009, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Tuesday 10th February 2009, namely Tuesday 24th February 2009. The default notice clearly shows the remedy date of Monday 23rd February 2009

 

You should already be aware, for a default notice to be a valid one, there are certain requirements, that the company that issues the said default notice, has to comply with. By not doing so it would immediately put you liable to a breach of the Consumer Credit Act 1974, in particular s.87(1) of said Act; I quote the relevant parts for your perusal:

 

Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears. The default notice must contain all of the necessary information under the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 ('the 1983 Regulations'), which includes

 

* a statement saying the notice is a default notice served under section 87(1) of the 1974 Act

* a description of the agreement

* the name and address of both the debtor and the creditor

* details of the breach (i.e. late payment) and, if the breach can be remedied, the date by which it must be remedied or, if the breach is not capable of remedy, the amount required to be paid after the expiry of the specified date;

 

On both default notices, there are no actual address details for Barclaycard, only the name and address of 'Mercers Debt Collections Ltd'. On both default notices, it states that Mercers are acting as agents for Barclay's Bank PLC trading as Barclaycard. Therefore it is reasonable to conclude that Barclaycard did not infact, send nor did they infact issue, either default notice to myself. Again, there are no address details for Barclay's Bank PLC trading as Barclaycard on either default notice.

 

A 'Formal Demand for Payment' was then issued by a different Collections and Legal Debt Recovery Agency dated, 3rd July 2009 This was for the full amount of my Barclaycard account balance. This was done after sending myself an 'inaccurate' default notice, and as such you did in fact 'unlawfully rescind' the agreement.

 

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).

 

The 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 an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages as in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119. In this respect, I hereby claim from you damages in the sum of £1,000.

 

In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

Furthermore, the Arrears Total outlined in both default notices cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully. Therefore, the Arrears claimed on either default notice cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

All of these charges, along with interest, have since been credited to my now 'fully settled' Barclaycard Account. I enclose a copy of Barclaycard's letter that they have written to myself, informing me of their decision and the refunded amounts that they credited.

 

This means that you were in fact, only entitled to ask for, or to collect the arrears that were present, up until the time of termination, and not the full amount of the alleged debt.

 

For the sake of clarity, now that I have actually received copies of both default notices, it is crystal clear, that both are indeed 'inaccurate', I now accept your unlawful rescission.

 

An invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Creditor may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate.

 

Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the original creditor was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

It is clear to me that you have acted unlawfully by not issuing a fully compliant and correctly executed legal document. As both of the default notices are 'faulty' or 'inaccurate' to say the least.

 

I now request that you immediately do the following actions:

 

* Remove any such defaults from my Credit Files within 21 days,

* The Status of the account will change from “Defaulted” to “Settled”

* The Current Balance will appear as £0.00

* The Default / Delinquent Balance will be set to £0.00

* There will be no date in the “Defaulted Date” field (as it will be removed)

* There will be no date in the “Date Last Delinquent” field on the report

* This will apply to all 3 Credit Reference Agencies, namely experian, Equifax & Call Credit

 

Failure to agree will result in more formal papers being sent, I shall also approach the fos, the OFT and the Information Commissioner`s Office and ask for them to act on my behalf.

 

I look forward to your response within the next 21 days.

 

Yours faithfully,

 

 

 

enc:

Copy of Barclaycard letter re charges

Copy of both default notices

Copy of Formal Demand for Payment

Edited by letsdothis
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Hi LDT,

 

1. I don't think you should say, ".... a counter claim for damages in the sum of £1,000 (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)" You can claim what you like but their error does not give you a claim for a specific amount. You could reword it:-

 

".... a counter claim for damages as in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119. In this respect, I hereby claim from you damages in the sum of £1,000."

 

2. It is your prerogative to claim for the unlawful rescission, or not - I have no real experience of this subject. However, I think you are pushing your luck to seek a refund of the charges refunded to the a/c and the amounts paid by you to settle the a/c.

 

I would focus on using the Kpohraror case to keep them on the back foot but limit your actions to getting the defaults removed.

 

If you seek damages as per Kpohraror, damages for unlawful rescission PLUS the refund of penalty charges PLUS the the refund of the final a/c payments, you will be on a hiding to nothing.

 

Bear in mind also that BC are unlikely to pay you anything unless you take them to court. But if you demand the removal of the defaults with good reasons, you are more likely to succeed.

 

I hope others may comment. :)

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Hi LDT,

 

1. I don't think you should say, ".... a counter claim for damages in the sum of £1,000 (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)" You can claim what you like but their error does not give you a claim for a specific amount. You could reword it:-

 

".... a counter claim for damages as in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119. In this respect, I hereby claim from you damages in the sum of £1,000."

 

2. It is your prerogative to claim for the unlawful rescission, or not - I have no real experience of this subject. However, I think you are pushing your luck to seek a refund of the charges refunded to the a/c and the amounts paid by you to settle the a/c.

 

I would focus on using the Kpohraror case to keep them on the back foot but limit your actions to getting the defaults removed.

 

If you seek damages as per Kpohraror, damages for unlawful rescission PLUS the refund of penalty charges PLUS the the refund of the final a/c payments, you will be on a hiding to nothing.

 

Bear in mind also that BC are unlikely to pay you anything unless you take them to court. But if you demand the removal of the defaults with good reasons, you are more likely to succeed.

 

I hope others may comment. :)

 

Point taken. I would be happy to get the defaults removed tbh at the end of the day. I will amend the draft.

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Sorry if my post wasn't clear.

 

I'd still suggest they pay you damages in the sum of £1,000 as per the case of Kpohraror v Woolwich.

 

Send it and see how they respond.

 

:)

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Yes, as I said in my last post, send it now as I think it's fine.

 

No guessing how they'll respond - they usually ignore half of what is said to them in letters.

 

:)

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