Need some advice - unenforceable BC and defaults/final demands

[sausagepie]

Hi

 

Hope someone can help me.

 

Have a BC from late 80s. I wanted to see the Agreement because I was getting a bit fed up with the %age increase, etc and so did a CCA. BC have never reported anything on my credit file as yet, not for the last 20 years.

 

I did a Section78 request around a year ago. BC first sent a 'reconstituted' agreement that had the wrong address on. When I pointed it out they sent a letter saying they weren't able to produce a copy of the Agreement and that they couldn't enforce the debt but that I still had to pay. They also noted that they had immediately suspended my account - at that point my payments were all up-to-date and I'd never been in arrears (other than the odd payment through the years that was a couple of days late).

 

That was about a year ago. Just after Christmas I had no more work (self employed) and started claiming benefits so stopped paying BC.

 

I received a letter from Merecers at weekend which was a default notice telling me to pay £1,000 by 14th July. It also said they would file a default on my credit file. I wrote a letter back to Merc they same day saying that the account was unenforceable and that there was no agreement for them to update my credit file.

 

Just got a letter from BC today which is a final demand for the full balance of £15k and that I have til Sunday (8th) to pay otherwise they're going to send a debt collector round to collect the money and they will also file a default on my credit fil.

 

I have a couple of questions;

1. Is it still the case that BCs inability to perform their obligations with regards to my S70 (or whatever it is) request means that they cannot enforce the debt to the point of getting a judgement against me?

2. Is there evidence that BC will go all the way to court to frighten me?

3. I think that BC have no right to send a Final Demand to pay the full balance 5 days before the default notice deadline. I think this is a cock-up on their behalf. Can I use this to my advantage in any way?

4. Does anyone have a copy of T&Cs and Agreement from 1987?

5. Am I right in thinking that, without a signed agreement, they have no right to update my credit file. Especially as they have NEVER updated it?

 

Thanks for any help you can give me.

Edited July 3, 2012 by sausagepie

[citizenB]

If you still have the letter where B/shark admit that it is unenforceable then they might find themselves on weak ground.

 

If they havent complied with your s78 request then they can do everything up to issue a court claim - but they should not be able to obtain a judgment against you.

 

It is my understanding that a default issued by Mercers (despite them being a trading name of Barclayshark) is worthless as they are NOT the Creditor.

 

They have by all accounts created a problem for themselves by demanding the full sum before the remedy date on the default notice has expired.

 

So yes, they have probably handed you a smoking gun..

 

Perhaps Barclayshark are just wanting some finances in order to repay their huge fine !!

 

I am sure others will pop in and offer their opinion later on .

[sausagepie]

Thanks for replying CitizenB. Yes, still have the letter.

[slick132]

Hi Sausagepie,

 

Can you confirm what BC said about "the debt not being enforceable, but you have to pay it anyway."

 

Depending on who they sell the a/c to, the new owner could take the matter to court. Without the credit agreement, such a claim should fail but it would depend on :-

 

1. How well you prepare your defence.

 

2. The judge on the day !

 

Any recent penalty charges can and should be reclaimed in full although they'll have little effect on the size of the debt.

Edited July 4, 2012 by slick132

[sausagepie]

Hi

 

So, it doesn't really matter what BC/Merc did, or that there is no Agreement - it can still be enforced in the judge lottery?

 

I actually have 2 letters, dated a day apart, from 2 different people.

 

They basically say the same thing.

"We are unable to provide a copy of the credit agreement you entered into. We accept that we are therefore prevented from enforcing our agreement with you while this state of affairs continues.

 

With immediate affect we have suspended your account. We have taken this action because in our view there is a significant risk that you will cease to make payments.

 

Not withstanding that we cannot currently enforce the agreement, our rights continue to exist under the agreement. You should therefore continue to pay the debt"

 

Does anyone have any opinion on the credit file?

[citizenB]

Does anyone have any opinion on the credit file?

 

I think you will find that they do have the right to update the Credit file to reflect the state of the account.

[slick132]

Hi Sausagepie,

 

Although BC and/or Mercers recognise that they would have problems getting a CCJ for this, there's a theoretical risk that the debt could be bought by a DCA who is willing to try their luck.

 

After all, the letters that you have only reflect BC's opinion about the debt. A DCA may have a different opinion.

 

As well as pursuing the debt by any means other than court, BC, Mercers and others may also report this as a debt to credit reference agencies.

[noomill060]

Well, they have no chance enforcing this through the courts, all they can do is hassle you and mark your credit record.

 

You could challenge this through the courts due to no agreement, so therefore they do not have your consent. At the same time you could ask for a declaration under CCA1974 s.140 from the court regarding the whole issue, possibly including harassment.

 

Depends how far you are prepared to take this, but you must be prepared to take any action you threaten, no point making empty threats.

[victoria_siempre]

Hi sausage

 

I’ve had similar experiences with BC except they insisted a recon CCA was fine then all the usual crap from Mercers including a defective DN. Interestingly BC refuse to mark the default on my CRF which is the subject of a formal complaint. The account is still with BC after 2 years although I’ve had all sorts of threats from all sorts of bandits (including one single doorstep from Snotcall early on who was actually a nice chap and I felt sorry for him).

 

I think their admission of no CCA places you in a strong position however I also think their actions are in large determined by whether you have significant equity for them to go after. All is very quiet on all fronts at the moment but I is skint and have no equity innit.

 

Good luck; I doubt our mite will affect Teflon Bob’s humble termination package.

 

love

 

vic

[noomill060]

" but I is skint and have no equity, innit."

 

an' maybe its cos you is a Cagger too, innit.

 

[sausagepie]

Thanks for the info everyone.

 

I've no problem taking them to court. Already done it with the charges, etc. And BC had to payout for SmEgg after I took SmEgg to court for £5k and won - had to go to FOS to get them to pay though, and to remove adverse stuff from my credit record. They wrote off the account in the end - think they couldn't be doing with the hassle we were giving them!

 

Not worried about housecalls - they'll get the sharp side of Mrs S's tongue - not a good place to be!

 

How sure are people that Default Notices have to come from the creditor? How sure are people that Merc are not deemed to be the creditor (as they are, in fact, BC)?

[slick132]

Mercers are simply one of BC's tame in-house DCA's. Calders are another. So the debt remains with BC and it is THEY who should issue the DN.

 

However, we have seen that faulty DN's cannot always be relied upon in court action, simply because judges are unaware of, or choose to ignore, the importance of the DN's accuracy.

 

In my view the DN issue should be regarded as secondary, compared to the admission of having no credit agreement.