Carter/EGG Claim Form **DISCONTINUED**

[vic synex]

I've had a trawl through the board but I cant seem to find a difinitive answer.

 

If a lender sends a default notice and the sum of the default includes, but is not entirely penalty charges, does this render it invalid?

 

TIA ;-)

[cashins]

If a lender sends a default notice and the sum of the default includes, but is not entirely penalty charges, does this render it invalid?

 

 

If a significant ammount, other wise a court could regard it as de minimus.

 

One or two charges on say a default of £300 -£400 probably would not derail it.

 

David

[diddydicky]

If a significant ammount, other wise a court could regard it as de minimus.

 

One or two charges on say a default of £300 -£400 probably would not derail it.

 

David

 

the length of the debt could also influence matters as if the balance on which they have been charging interest is inflated over the years with unlawful charges then the very basis on which they have calculated what is due and therefore the arrears could make the variation substantial

[vic synex]

Hi Guys, just sorting my paperwork out regarding a Barclaycard account which was originally Liverpool Victoria then Goldfish and now Barclaycard.

I sent a CCA request in April and just got their current T&Cs in response. Whilst this account was in default of my request, they passed the debt to Mercers who issued a Default Notice.

My question is does the DN have to come from the OC or at least have the OC's address on it? I know Mercers are Barclaycard in disguise but the account is now being dealt with by Credit Solutions who have no grasp of CCA legislation at all!

[dx100uk]

no they can issue a default themselves.

 

dx

[vic synex]

Thanks for that, I thought as much. They still haven't produced a copy of my agreement so I'm not too worried.

[cashins]

they passed the debt to Mercers who issued a Default Notice.

 

 

No worries there then!

 

On 2 B/card accounts I have, they have issued a total of 8 default notices. Not a single one complies with the law.

 

David

[slyspy]

that's beating mine.

 

on my 2 B/Card accounts there's only 6 defaults

 

all within a couple of weeks of each other.

[vic synex]

No worries there then!

 

On 2 B/card accounts I have, they have issued a total of 8 default notices. Not a single one complies with the law.

 

David

 

In which way do they not comply, if you don't mind me asking?

 

Mine seem pretty kosher

[postggj]

post up the default notice minus personel details

 

we will tell you then

[slyspy]

I've never received a DN from any of my 6 BC related ones, so I have no idea if they are legit or not.

 

all I know is I have a total of 6 defaults on my records, linked back to 2 cards (one barclaycard, one monument) which since Aug 2007 have been in dispute due to no CCA (defaults dated 2005), accounts due to be statue barred Dec 2010

[cashins]

In which way do they not comply, if you don't mind me asking?

 

 

Blimey, long story.

 

All of them have a least 2 flaws, one has 5.

 

Post them up (removing any identifying details, references etc) and we'll have a look.

 

David

[vic synex]

Ok, here it is in all it's glory

 

 

reverse

 

[citizenB]

http://www.consumeractiongroup.co.uk/forum/show-post/post-1910254.html

 

Originally Posted by 42man

 

quote the following from Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561)

 

 

 

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 andthe 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

 

The default notice above does not appear to be in the correct format. How was it delivered to you ?

[postggj]

for a start

the before date shown needs to be underlined

[vic synex]

Thanks Guys, some food for thought there!

 

It was sent first class but i didn't receive it until Monday 16 March

[cashins]

It was sent first class but i didn't receive it until Monday 16 March

 

Ok, they must give 14 days + you can take 2 days for 1st class post (excluding Sat 14th & Sun 15th March which in this case they forgot to allow for).

 

So:

 

1) The 29th March only gave you 13 days to rectify the breach. It's Invalid full stop.

 

Also:

 

2) The regs specify the statements shown on the notice and must be exact.

They do not include (or a surety).

 

3) Mercer give their own address. The regs demand that they give the name and address of the creditor, which is Barclays Plc and that is not Mercers.

 

4) Possible - They have defaulted you for a low arrears figure. Have you got a significant ammount of unlawful charges, (late payment , over limit etc.) If so that would give them a problem as well.

 

On the last, 2 of mine are an extreme case in that the unlawful charges were more than the arrears demanded. A significant ammount will give a problem though.

 

They did well with that one then!!

 

I am sure others can pick more holes in it.

 

David

[heliosfa]

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.

 

This is another reason why the Mercers DNs fail - they don't have the B-Card name & Postal address.

 

From this, and taking things completely literally, one could argue that unless Mercers have bought the debt (they are a dormant company... but are part of Barclays) then they should not be issuing a Default Notice and have no cause to.

 

Now, if it had been sold to Mercers, Barclays would have had to have sent you a Notice of Assignment. Also, they would not have been able to furnish a credit account (They are debt collectors and are a dormant company), so Barcclays would have terminated (Without issuing a Default Notice) in selling to Mercers.

 

H

[vic synex]

Guys, I recieved a letter from Carter yesterday dated 26 May but with a postmark of 28 May, advising me I would recieve a claim form within the next 48 hours. This claim form arrived today dated 27 May.

 

The debt is an Egg credit card taken out about 2002. I'd been paying it quite happily until they doubled the interest overnight. Having made every payment on time and never going over my limit I was slightly miffed by this and sent a S78 request for my CCA to read the small print.

 

Obviously Egg being Egg sent the request into default by asking for signatures etc, etc. Whilst in default I suspended payments until such time a copy of the agreement arrived. When it did arrive it was the bog standard CCA, with the limit wording as per test case (this Friday, I think).

 

I wrote to them explaing the defficiencies of their agreement and their reply was a letter stating they had terminated the account and it would now be passed to a DCA. I, to date, have recieved no Default Notice!

 

A few species of pond life have been in touch but normally disappear after being told about the unlawful recission.

 

This from Carter being the latest, can I ask you guys for some advice on what I should do now?

 

Many thanks in advance.

[2ltr16valve]

Can you put up what his Particulars of claim are ? (Poc)

 

What is he relying on ? as this is where he falls on his back side

 

No defualt notice, like to know how they terminated the account then.

 

BC is pretty easy to send packing, Send EVERYTHING to them SPECIAL DELIVERY, or they will say they did not get them !

 

[vic synex]

POC as follows;

 

THE CLAIMANT'S CLAIM IS FOR THE BALANCE DUE UNDER AN AGREEMENT WHICH IS NOW ALL DUE AND PAYABLE.

 

THE DEFENDANT AGREED TO PAY MONTHLY INSTALMENTS UNDER ACCOUNT NUMBER**************** BUT HAS FAILED TO DO SO.

 

AND THE CLAIMANT CLAIMS THE SUM OF £****.**

 

THE CLAIMANT ALSO CLAIMS INTEREST THEREON PURSUANT TO S.69 COUNTY COURT ACT 1984 LIMITED TO ONE YEAR TO THE DATE HEREOF AT THE RATE OF 8% PER ANNUM AMOUNTING TO 0.00

Edited June 2, 2010 by vic synex

[gh2008]

ok, you have got a nice open & shut case, no matter what happens this Friday.

 

Without a DN all they are entitled to demand are the legitimate arrears (i.e. missed payments etc less any unlawful charges & interest)

 

You need to send an Acknowledgement of Service in within 14 days.

 

I would SAR Egg ASAP - it will be a useful £10 spent.

 

Get that off and then the next step will be a CPR request to Mr Carter.

 

You cannot use a CPR31.14 or CPR18 as there are no documents referred to. However I have used a CPR 31.12 in the past to very good effect.

 

I will dig it out for you to get off the BC.

[vic synex]

Much appreciated, starting to get a bit worried by this

[GeoffreyAlby]

Much appreciated, starting to get a bit worried by this

 

I wouldnt worry their POC appears to be really wishy washy, they havent related it to anything!

 

 

Did you go down the Trevor Munn route with EGG before this "Carter" character got involved?

[42man]

Have a look here Vic - http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html