Marlin - very old Egg credit card now BC, 2yrs to default drop off - starting threat-o-grams

[slick132]

Hi Optimiser and welcome to CAG

 

Please feel free to start your own thread about your case and give us a little background info if you want any advice.

 

[Shinysprite]

Right - letter received from Barclaycard today - NOT from Marlin (dated 14th March), as follows:

 

"Dear Shinysprite,

 

BARCLAYCARD SERVICES

ACCOUNT NUMBER: 4929 xxxx xxxx xxxx

 

Reference: Section 78 of the Consumer Credit Act 1974

 

I refer to your request for information.

 

The information we must provide to you under the terms of Section 78 of the Consumer Credit Act 1974 (the "Act") is prescribed by the Act and by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983. Section 78 of the Act provides that, where a creditor receives a Section 78 request, the creditor shall give the debtor a copy of the executed agreement (and any document referred to in it) and a statement of the account.

 

I enclose a reconstituted copy of your credit agreement [there was nothing enclosed with the letter]. A statement of your account is below:

 

The current credit limit on your account is £0.00

The current balance on your account today is £x

 

Due to the current status of your account, the full outstanding balance is now due.

 

We are currently unable to provide a copy of the terms of your credit agreement as varied in accordance with section 82(1) of the Act. We accept that we are therefore prevented from enforcing our agreement with you while this state of affairs continues.

 

Notwithstanding that we cannot currently enforce the agreement; our rights continue to exist under the agreement. You should therefore continue to pay the debt that has accrued on your account. We can and will continue to take any action short of enforcement, which includes reporting to credit reference agencies without also telling them that the agreement is currently unenforceable, demanding payment from you, issuing a default notice to you and instructing a third party to demand payment or otherwise seek to procure payment. We refer you to the case of Philip McGuffick v The Royal Bank of Scotland [2009] EWHC 2386 in which it was held that none of these steps constituted "enforcement" for this purpose.

 

Please note that the decision in Carey v HSBC [2009] EWHC 3417QB makes it clear that an unfair relationship cannot be said to have arisen between us as a result of the fact that we have not currently complied with section 78 of the Act. To the extent that you seek to allege that an unfair relationship has arisen, such allegations will be opposed.

 

This completes our obligations under Section 78 of the Act.

 

Yours Sincerely,

etc."

 

I assume this letter has crossed with my Failure To Comply letter to Marlin, given that it is dated 14th March, and am guessing that this means I should continue to do nothing? They mention reporting to credit reference agencies, issuing a default and instructing a third party to demand or otherwise procure payment, all of which they've already done, so I'm not sure there's anything for me to worry about here... anyone have any further advice on this? Also, the fact that there was no 'reconstituted agreement' enclosed means there is no further action required?

 

Thanks!

SS

[dx100uk]

correct!

 

dx

[slick132]

Hi SS,

 

So, until and unless BC can produce the original credit agreement, Marlin can ASK you to pay what was left owing on the a/c but they cannot take legal action through the courts.

 

If they take any such action, you can defend and have every chance of success.

 

[Shinysprite]

Thanks all - this is as I thought. I shall just wait and see what Marlin have up their sleeves - can't pretend I'll be surprised if I do receive a court summons from them, and am definitely ready to defend.

 

SS x

[Shinysprite]

Just a quick update - still all quiet on the Marlin front - no contact whatsoever, no letters, voicemails or anything since the above letter from Barclaycard, not even a reply to my Failure to Comply letter.

 

Am thinking that no news is good news, and that they are now just going to leave me alone as they can't enforce, and they know that I know this, however, because of what others have said about them going for judgement at old addresses, I'm ever so slightly anxious that radio silence means that this is what they are doing - preparing court papers anyway just to try their luck, to send to my old address (despite my not having lived there for nearly seven years!). There's no way for me to know if anything gets sent there, so am guessing that the only way I'll find out if this is the case is to keep an eye on my CRA files to see if a CCJ appears, and then fight it? Is that more difficult to do than defending in the first place if they go for judgement at my current address? There's still no update to my CRA files yet, either; Noddle and Equifax are still showing Barclaycard as the account owner, with status 'settled', and as previously stated, it's not even registered with Experian!

 

Am wary of getting complacent about this at this stage as I think it's still fairly early days but am still reasonably confident that not much more is likely to happen with it...

Edited April 6, 2013 by Shinysprite
Typo

[catquest]

I don't think a CCJ for a different address would show up on your CRA file.

Does your old address show up as a "Linked Address" ?

[Shinysprite]

Thanks, catquest - yes, on Noddle, my old address is linked, with Egg as the most recent source of link, and the last confirmed date showing as 31/3/08. My last TWO previous addresses are linked on my Equifax report (and it's nearly 12 years since I moved from the earlier of these two!). So, does this mean that Marlin could in fact go for judgement at one of these addresses?

[Shinysprite]

Just had a thought, though - presumably, if they tried to apply a CCJ to my credit file under a previous address and the CRA compared the addresses, they'd spot that it was wrong, wouldn't they, and then couldn't they refuse to apply it? Or does that not happen?? Also, is the fact that my last previous address was last confirmed five years ago enough to prevent them from trying to lodge a CCJ against that address?

 

Am I being paranoid??!!

 

SS x

[slick132]

Hi SS,

 

I think the Radio Silence is unnerving you and making you a bit paranoid.

 

In the unlikely event that a CCJ was obtained using an old address when the Claimant had your proper address, the judgement would be Set Aside on Application by you.

 

Take the "No News is Good News" approach until you hear more from Marlin.

 

Edited April 6, 2013 by slick132

[HP Mum]

Where is the failure to comply template ??

Marlin failed to respond to my CCA. It was signed for viz the PO and I have a printout from the PO website.

17 days after they should have responded I just got a Notice of Change of Agent letter - to Mortimer Clarke Solicitors.

 

I guess I need to write to Marlin and Mortimer C.

[dx100uk]

http://www.consumeractiongroup.co.uk/forum/content.php?436-Failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

[Shinysprite]

Hi SS,

 

I think the Radio Silence is unnerving you and making you a bit paranoid.

 

In the unlikely event that a CCJ was obtained using an old address when the Claimant had your proper address, the judgement would be Set Aside on Application by you.

 

Take the "No News is Good News" approach until you hear more from Marlin.

 

 

Hehe, thank you, Slick! I think you are right, and I'm just having a paranoid wobble! Just that based on previous experience, I tend to expect letters and phone calls every five minutes from these idiot DCAs, trying their luck, and that's what I'd sort of got used to - so to not hear anything is quite novel, and even quite refreshing!! "No news is good news" definitely seems the way to go...!

 

SS x

[slick132]

Hi SS,

 

Have Marlin "passed your case onto" Mortimer Clark, like HPMum's mentioned above ?

 

[Shinysprite]

Hi slick,

 

Having read that, I am wondering the same thing - nothing as yet, but I won't be at all surprised if Mortimer Clark are the next people I hear from... am guessing that if/when this does happen, the 'account in dispute' letter will be my best response...?

[ken100464]

MCL or Mortimer Clarke are Marlin.

 

Just next door desk letterhead to rent. Intended to increase the pressure on you as they are pretending its heading legal. They will take default judgements but the complicated stuff goes to Retsons.

[slick132]

Ahaa, thanks for that Ken.

 

That may leave some folk feeling a little less concerned about the supposed "escalation" to Mortimer Clark Solicitors.

 

[Shinysprite]

Hi SS,

 

Have Marlin "passed your case onto" Mortimer Clark, like HPMum's mentioned above ?

 

 

 

Still all quiet on the Marlin/Mortimer Clark front, Slick. Everything still crossed that this one's just going to slip away, but am taking nothing for granted...

[slick132]

Hi SS,

 

Good that you're taking nothing for granted - wait and see.

 

[Shinysprite]

Soooo.... I'm baaaa-aack!

 

MONTHS of silence on this

 

but I've just got in to find a letter from Marlin Capital Europe in my postbox

- it's a Statement of Account,

and the return address on the outside of the envelope is a PO Box in Huddersfield

- completely different address from all the other correspondence I've had from them.

 

It doesn't look like a demand for money

- there are no threats or anything contained in it,

no faux legalese,

it just says

 

'Following is a statement of your account from 05/02/2013 to 08/08/2013',

 

then an opening and closing balance (one and the same),

followed by a bit of blurb on the order in which they allocate payments,

then a section on dispute resolution at the bottom.

 

Am not particularly concerned about this, but am just wondering whether it's a good idea for me to send an 'Account in Dispute' letter, or should I just ignore it?

 

As ever, advice gratefully received!

SS x

[dx100uk]

as long a you've sent marlin the failure to comply letter already

then sit on it.

 

dx

[fletch70]

They have to send statements of account . In time they will give up and stop which hopefully means they admit defeat. Mint still send me an email every month saying my statement is available to view but I can't log in so I don't worry about it

[Shinysprite]

as long a you've sent marlin the failure to comply letter already

then sit on it.

 

dx

 

Thanks, dx - yes, FTC letter went off ages ago so will just file this and see if anything else comes my way from them...

[Shinysprite]

They have to send statements of account . In time they will give up and stop which hopefully means they admit defeat. Mint still send me an email every month saying my statement is available to view but I can't log in so I don't worry about it

 

Thanks, Fletch - this is the first time they've ever sent me a statement!! But so long as I don't need to do anything about it, I'm not bothered!

[HP Mum]

They sent the same to me today too.

 

Can you advise the date on your letter ?

Interestingly my letter is dated early August yet today is not early August !!