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    • I'm trying to work through this step-by-step as I read the story again. There was a dispute over a will in respect of your grandfather's house but the dispute was eventually abandoned and it seems that the house was apportioned to your mother and her brother who presumably were the only two children. The will was unsigned and so we could say that the house passed to the two of them under the rules of intestacy. You then decided to buy the house for £50,000 and presumably the money you paid was divided between your mother and your uncle – you are the owners of the house. This was in 1999. We talking about 30 years ago here and so in respect of most legal questions I would have thought that some limitation period applied. (However the issue of the trust has been raised – and this wouldn't be affected by limitation) However, presumably the house was bought at a proper value given the market at the time and any work that it needed doing. Presumably the house was properly conveyed. Although a lot of things have passed – including home improvements, tenancies et cetera, from the store you have told us, neither your parents nor your uncle have been involved in this at all. Now you have received a letter from your parents saying that the house is really theirs and that you have simply been holding it on trust for them and they now want it back. Is this a reasonable summary of what has happened?   Although you have written a fair bit about bills, tenancies, and that you have lived in your parents home for some of this 30 years, I'm not sure what relevance that has to the problem. I have to say that your explanation is very unclear. A bit rambling in fact. If you think that part of the story is relevant then maybe you'd like to express it all a little more clearly and say in what way you think it is relevant to the problem. You are much more familiar with the story then I am but I don't see that those factors are terribly important on the brief understanding that I have. if if any money is owed to your parents because of you having lived with them et cetera then it seems to me that that is a separate matter and has nothing to do with your ownership of the property. You say that you have received a letter from solicitors claiming first of all that there is a constructive trust or that you might be subject to a proprietary estoppel. In terms of the estoppel, that doctrine is only available in very particular circumstances and could not be used to attack you in any event. Estoppel, whether it is proprietary or promissory can only be used as a defence. So the question of estoppel in this situation is completely irrelevant, in my view, although I don't see any basis for one in any event. So what remains is the possibility of a constructive trust. It seems to me to be highly unlikely that there is such a trust and I think that the first question needs to be asked is on what basis they consider that there is a constructive trust. Secondly, of course, even if there was a constructive trust, on the basis of what you have told us, it wouldn't only be your mother who was the beneficiary, it would also be your uncle. Furthermore, if you were a constructive trustee then at the very least you would be entitled to recover all of the expenses that you had laid out over 30 years – including the cost of the property plus interest – less any financial benefit that you had accrued from renting it out and so forth. I'm not sure how good this analysis is. This is well out of my experience – but I would suggest that you consider it and see whether any of it rings true. I would also start making a very detailed account of all the money which you have spent over the years on the property and also a detailed account of all the benefits you have accrued from it. I would supply this to their solicitor that if you end up having to instruct your own lawyer then I'm sure that you may be asked for this if there is any suspicion that a constructive trust may exist. Frankly it sounds like a load of rubbish to me that we will be very interested if you will keep us up to date. So there you have it. No particular answers. Just a few unsupported and unqualified opinions    
    • Hello and welcome to CAG.   I agree with dx, hiring a lawyer is unlikely to help as most of them don't understand fare matters, so you end up paying for their learning curve.   Your idea about involving your GP is a good one, it sounds as if you need their input with how you're feeling. And if they would write a supporting letter that could help too. Hopefully your medical information will be through in time.   HB
    • In the very first claim thread it mentions contacting the claimant is encouraged by the court etc. I was thinking about contacting them and asking about a Tomlin order to put an end to all this, at least I'd be able to stop worrying and maybe get some sleep (currently 4.52am) 😴
    • Hi I'm looking for a bit of help to deal with a claim form from Hoist/ Cohen referencing an old Capital One account please. I have filled out the details below as requested and submitted an acknowledgement of service intending to defend.   In 2007 I sent a SAR and requested a copy of the original CCA from Cap One on this account.    In 2014 Lowells sent a claim form for the same account. I have a copy of a notice of allocation to the small claims track hearing and a copy of the front sheet of ack of service with intent to defend but I have no recollection of its outcome and there are no CCJs on my credit file.    Name of the Claimant Hoist Finance UK Holdings 2 Ltd   Date of issue – 5/11/2019   Date of issue 05/11/19 + 19 days = 24/11/2019 + 14 days to submit defence = 7/12/2019 (33 days in total)   Particulars of Claim This claim is for the sum of £294 arising from the Defendants breach of a regulated consumer credit agreement referenced Under no XXXXX. The defendant has failed to remedy the breach in accordance with a default notice issued pursuant to ss. 87(1) and 88 of the Consumer Credit Act 1974. The Claimant claims the sums due from the Defendant following the legal assignment of the agreement from Hoist Portfolio Holding 2 Ltd (EX CAPITAL ONE). Written notice of the assignment has been given. The Claimant claims 1. The sum of 294  2. Costs   What is the total value of the claim? £369   Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC I received a letter of claim & income / exp forms.   Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? yes   Did you inform the claimant of your change of address? Not sure claim is for Credit card   When did you enter into the original agreement 2003   Do you recall how you entered into the agreement not sure   Is the debt showing on your credit reference files yes, as closed   Has the claim been issued by the original creditor. Assigned   Were you aware the account had been assigned – did you receive a Notice of Assignment?  from HPH2 to HFUKH2L, I don't have anything from Cap One.   Did you receive a Default Notice from the original creditor? Yes (2007) Have you been receiving statutory notices headed “Notice of Sums in Arrears” or " Notice of Arrears "– at least once a year ? Not sure, I’ve had letters from Robinson Way.   Why did you cease payments? illness and inability to deal with my debts, I had no money no job and my mental health was in a terrible state.   date of your last payment? 07/2014 paid to Robinson Way   Was there a dispute with the original creditor that remains unresolved? No (PPI and bank charges refunded)   Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Yes   Do I send a CPR 31.14 next asking for the agreement, notice of assignment and the Default notice?   Thanks.
    • It states the charge as: 'did enter a compulsory ticket area without having with you a valid ticket. Contrary to Byelaw 17 (1) of the Transport for London Railway Bylaws Made under paragraph 26 of Schedule 11 to the Greater London Authority Act 1999 and confirmed under section 67 of the Transport Act 1962.'   Then a brief statement of facts that the pass did not belong to me, and that I had stated it was due to financial reasons. It then contains information about making my plea and then the statement of the revenue officer.   I am of course planning on pleading guilty before the cut off point and attending court (I'm hoping to be well enough to attend anyway). I'm just concerned about the consequences and if there is any point in trying to still reason with TfL now that court application costs are at least involved.   I have debated getting a solicitor solely because of what I've read on the internet and what it says about ruined job prospects, I know it's probably scare tactics to get me to hire someone but it is the driving fear behind everything at the moment. 
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pigrocks

Link and Barclay card debt - 6620000 blank CCA return **ACCOUNT CLOSED**

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Hi,

This is my first post here, so forgive me if I am covering old ground.

 

I have a Barclaycard debt of just over £1500,

that unfortunately went into default when I lost my job a few years back.

I had been paying BC an agreed amount of £22 per month ever since without any problems.

 

However, I recently received a letter from BC telling me that they had assigned the debt to Link Financial and that I should now make payments to them.

 

 

I haven't done anything so far, as I have read in various places that I shouldn't have to pay anyone other than the company I owed originally. Is this the case?

 

 

I have read about sending them three templated letters followed by an Estoppel notice - is this the correct course of action to take?

 

I also understand that they could have bought the debt at a greatly reduced cost

- should I offer something like £250 to try and settle the debt?

 

Or, is everything I've read false and I should just start to make payments to Link in the future?

 

I'm getting unbelievably frustrated with the worry of this,

but I don't want to pay anyone who's not entitled to it.

 

 

Surely if BC are prepared to take a far smaller amount to settle the debt,

they should offer this to the person owing the debt first?

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Hi,

This is my first post here, so forgive me if I am covering old ground.

 

I have a Barclaycard debt of just over £1500,

that unfortunately went into default when I lost my job a few years back.

I had been paying BC an agreed amount of £22 per month ever since without any problems.

 

However, I recently received a letter from BC telling me that they had assigned the debt to Link Financial and that I should now make payments to them

 

I haven't done anything so far, as I have read in various places that I shouldn't have to pay anyone other than the company I owed originally. Is this the case? - no

 

I have read about sending them three templated letters followed by an Estoppel notice - is this the correct course of action to take? no and stop reading stupid freeman of the land twaddle sites.

I also understand that they could have bought the debt at a greatly reduced cost

- should I offer something like £250 to try and settle the debt? - no

Or, is everything I've read false and I should just start to make payments to Link in the future? yes , no

I'm getting unbelievably frustrated with the worry of this,

but I don't want to pay anyone who's not entitled to it.- good idea

 

Surely if BC are prepared to take a far smaller amount to settle the debt,

they should offer this to the person owing the debt first?

 

 

well no that not what debt selling is all about

 

 

Link are a DCA

a DCA is NOT A BAILIFF

 

 

and have

NO SUCH LEGAL POWERS.

 

 

send them a CCA request


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hopefully nothing then they fail and you could stop paying if you are/were

 

 

go read other like threads too


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Thank you dx once again.

I sent the CCA last night, but this morning I've realised that I have made a mistake. There is a section in the letter template that you should only delete if you are sending to the original creditor. I misread this and deleted it. As Link are not the original creditor, have I made a critical error? Should I send it again with that paragraph reinstated?

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Won't hurt


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So, having sent the CCA on the 11th November, my recorded delivery was received and signed for on the 16th. It is now well over the 12 days in which I had to receive a response, and I have heard or received nothing.

Where do I stand now, and what, if anything, should my next move be?

Thank you in advance.

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Already answered that in post 4


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I appreciate that, I was just trying to ascertain if there is a next step to follow, or whether I sit back and do nothing.

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Sorry what next step??

Why do you think something else needs doing?

They have failed to prove they can legally demand money from you.

 

I know what I'd be doing if I'd been paying these no powers fleecers anything blindly for years as with any dca..ignore them till they comply!!!


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I don't know IF there is a next step.

Thats why I'm here - seeking (gratefully received) advice and assurances.

 

I have absolutely no intention of paying these people a single penny.

 

However, according to my Clearscore account, I now have a Link Financial account open.

 

If they have no legal right to demand money from me, then surely I have a right to have this account closed or removed from my file?

 

Would that not be a next step?

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sadly not

theres no remit for any removal just because the owner cannot provide paperwork.

though don't forget the account is removed from your file on the defaults 6th birthday regardless


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Hi.

Haven't heard anything from Link until last night.

 

I had a phone call from a withheld number, which I didn't answer.

 

 

A message was left by a young lady from Link asking me to call them.

 

Should I call them?

And should they even be calling me?

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Hi PR,

 

Stay OFF the phone, always !!

 

If no response has been made to your CCA request, you can ignore calls and letters.

 

Should they be calling you ? - probably not.

 

Does it matter ? - not really as long as you ignore them.

 

:-)


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if you can prove that it WAS link that used a withheld number to leave that message then you need to tell the FCA and the ICO.

 

 

DCA's were told in no uncertain terms last years that they were NOT to use withheld numbers ever!


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if you can prove that it WAS link that used a withheld number to leave that message then you need to tell the FCA and the ICO.

 

 

DCA's were told in no uncertain terms last years that they were NOT to use withheld numbers ever!

 

I've actually saved the voicemail message. The young lady gives her name, says she's from Link, and gives a phone number to be contacted on. The voicemail header information states that the call came from an unknown number. Proof enough?

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Hi

Yesterday, (2nd Feb)

 

I received a letter from Link in response to my CCA.

 

This is obviously well outside of the allowed time period.

 

What they have sent me is a covering letter suggesting that my request has been fulfilled and their obligations are now fulfilled.

 

Accompanying this is a photocopied letter from Barclaycard, dated 19th January, and several photocopied pages of an agreement between myself and Barclays, although NOT signed by me; and a 'statement of account' from Link demanding full payment.

 

Have they provided enough evidence to show that I should be paying them anything?

What should I do next?

 

Thanks in advance

 

, the payment agreement with Barclaycard started in summer 2012 after I lost my job at the time.

They passed the debt on to Link late last year, which is when I started looking for advice here.

 

However any credit agreement with Barclaycard would have started when I initially got the credit card, would it not? I would need to look that date up unfortunately.

Link 02.02.17 .pdf

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Any chance you can condense them to one pdf file


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

:D

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And in that response, i can see t&c's but no app form. Not even a reconstituted one.


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

:D

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What is the age of this agreement pigrocks ?

 

Regards

 

Andy


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what year did you take out the agreement...I dont need links .


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No not the payment agreement....what year do you apply for this credit card ?


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No not the payment agreement....what year do you apply for this credit card ?

 

I opened this account in July 2009.

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I opened this account in July 2009.

 

Thank you...I just wondered if your agreement was pre 2007.;..as its not then they are fully entitled to satisfy your section 78 request with a reconstituted version of the agreement.

 

But even then there are certain requirements that must be followed to legally satisfy said request.

 

Preliminary issues

 

The preliminary issues determined by the judge in the case were:

 

Issue 1

 

When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:

 

When providing a copy of an executed agreement in response to a request under section 78(1) of the Act:

 

a. must a creditor provide a photocopy (or other form of complete copy) of the original agreement that was signed by the debtor or at least provide a copy which is derived directly from the original agreement or complete copy thereof? or

b. can a creditor provide a document which is a reconstitution of the original agreement which may be from sources other than the actual signed agreement itself?

 

It was held that a creditor can satisfy its duty under section 78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

The judge accepted that as a matter of law, section 78 does not itself require any particular explanation as to how the copy was made. However, as a matter of good practice and so as not to mislead the debtor, it is desirable that the creditor should explain that it is providing a reconstituted as opposed to a physical copy of the executed agreement. This will also explain why the copy might otherwise look a little odd. The creditor can also explain in the letter that this procedure is satisfactory under the Act.

 

The judge also provided that the following information needs to be included in the reconstituted copy agreement (assuming of course that it was present in the original):

 

1. Heading: Credit Agreement regulated by the Consumer Credit Act 1974

2. Name and address of the debtor

3. Name and address of the creditor

4. Cancellation clause applicable to the executed agreement.

 

All of the above may be provided on a sheet which is separate from the full statement of terms and conditions which also forms part of the reconstituted agreement. The creditor may, however, decide to reconstitute the agreement in a different way so that, for example, the information above is populated electronically onto the same sheet as that which sets out the terms and conditions, or some of them. The judge stated that he did not intend to prescribe the precise form of the reconstituted agreement. The key point is what information it should contain, subject to the point that its format should not be such as to mislead the debtor as to what he agreed to.

 

The judge also considered whether a statement like the one appearing in the reconstructed application form inCarey referring to the agreement to the terms and conditions "attached" needs to be included in the reconstituted copy. Alternatively if the application form had said "I agree to the terms overleaf", should that statement be included. The judge held that this aspect of the form is not necessary for the purpose of the section 78 copy, although there is nothing to stop a bank from putting it in or indeed from furnishing a copy of the type of application form or signature page that the debtor would have signed, as some banks have done.

 

The statement referring to terms and conditions is not itself prescribed information and the supply of the terms and conditions which were applicable at the time will tell the debtor what he needs to know in terms of the content of what he signed up to, including the presence (or otherwise) of the prescribed terms.

 

In practical terms what this is likely to mean is that if the creditor chooses to use as the section 78 copy the section 63 copy, which would have been provided to that particular debtor at the time following execution of the agreement, this will be sufficient provided that the information referred to above is supplied. This exercise is not a mere formality. The creditor will need to check carefully that the details of the debtor at the time are correct and that those are the particular terms (including prescribed terms) that he/she agreed to. This is to ensure that it is an honest and accurate copy.

 

Must a creditor provide a document which would comply (if signed) with the requirements of the Consumer Credit (Agreements) Regulations 1983 (Regulations) as to form, as at the date the agreement was made in order to comply with section 78?

 

A creditor need not, in complying with section 78, provide a document which would comply (if signed) with the requirements of the Regulations as to form, as at the date the agreement was made.

Must the copy provided under section 78 include the debtor's name and address as at the date when the agreement was made, and if so in what form?

 

The section 78 copy must contain the name and address of the debtor as it was at the time of the execution of the agreement. But the creditor can provide the name and address from whatever source it has of those details. It does not have to take them from the executed agreement itself.

 

Issue 2

 

If an agreement has been varied by the creditor under a unilateral power of variation, is a copy of the executed agreement as varied, a sufficient copy for the purposes of section 78(1), or must the creditor provide a copy of the original agreement as well?

 

If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

 

Issue 3

 

Does a creditor's breach of section 78(1) of itself give rise to an unfair relationship within the meaning of section 140A of the Act?

If a creditor is in breach of section 78 this does not of itself give rise to an unfair relationship within the meaning of section 140A.

 

Issue 4

 

If there is a breach of section 78(1), is that sufficient without more to make a declaration to that effect appropriate, in particular:

 

a. where the creditor admits the breach but did not admit it before the issue of proceedings?

b. where the creditor denies or does not admit the breach?

 

A court has jurisdiction to declare whether in a particular case there has been a breach of section 78. Whether it will be appropriate to grant such a declaration depends on the circumstances of that case. If there are proceedings on foot and within them the creditor formally admits non-compliance with section 78, there is no point in maintaining the proceedings just to obtain a declaration to that effect.

 

Issue 5

 

Does the document signed by the debtor contain the prescribed terms for the purposes of section 61 and/or section 127(3) if:

 

a. they are on a sheet which is referred to on the piece of paper that was signed by the debtor; or

b. that sheet is attached to the piece of paper signed by the debtor; or

c. that sheet is separate from but was supplied with the piece of paper signed by the debtor?

 

The judge held that in assessing whether prescribed terms are "contained" in an executed agreement the following principles are relevant:

 

• it is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the prescribed terms without a copy of those terms being supplied to the debtor at the point of signature

• a document need not be a single piece of paper

• whether several pieces of paper constitute one document is a question of substance not form. In particular a physical connection between several pieces of paper is not necessary in order for them to constitute one document

• a physical connection (or one or more physical connections) between several pieces of paper does not necessarily constitute them as one document

• where the debtor's signature and the prescribed terms appear on separate pieces of paper, the questions of whether those pieces of paper together constitute one document is a question of substance and not form.

 

He added that he would not seek to answer the questions in issue 5 in their current state because the scenarios postulated all require some further elaboration before a simple "yes" or "no" answer can be given.

 

Issue 6

 

If it were not established, at trial, that there was a document signed by the debtor containing the prescribed terms, would that of itself entail an unfair relationship?

 

The judge held that the answer to the question was no.

 

The applications

 

The second matter in Carey (which consisted of a number of cases heard together) was the application by two of the defendant banks to dismiss certain claims brought against them.

The judge held that claims that there was an unfair relationship and an improperly executed agreement in Adris v The Royal Bank of Scotland Plc should be struck out or dismissed. The claim that there was an improperly executed agreement in Yunis v Barclays Bank Plc should also be struck out or dismissed. The absence of any positive pleaded case or evidence as to the circumstances of the making of the agreement by the debtor concerned was fatal to the claims. The absence of any positive plea or evidence as to particular facts relied upon in support of the unfair relationship claim, other than failure to provide a section 78 copy, was fatal to that claim.

Comment

 

This is a helpful judgment for lenders which provides some much needed guidance that will narrow or eliminate the issues arising in the hundreds of other similar claims issued in county courts around the country, many of which have been stayed pending the outcome of this judgment.

 

On a practical level, given the number of requests received, lenders will particularly welcome the finding that a creditor can satisfy its duty under section 78 of the Act by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself. The real impact here is that it will deter borrowers arguments that the agreement is unenforceable without a copy of the original signed agreement.

 

In light of this decision, and as acknowledged by the judge, it now seems likely that the number of challenges about section 78 copies will diminish significantly because:

 

• it should now be clear what will count and not count as a section 78 copy.

• of the decision in Phillip McGuffick v The Royal Bank of Scotland Plc (see our alert Does non-compliance with section 77(1) extinguish a creditor's rights?: Phillip McGuffick -v- The Royal Bank of Scotland Plc for an analysis of this case) to the effect that a section 78 breach does not remove any underlying liability from the debtor and does not stop the creditor from referring the debtor's debt to a Credit Reference Agency. Many of the cases had been started before McGuffick had been decided.

 

• a section 78 breach does not necessarily generate an unfair relationship.

• absent any positive allegation of improper execution, a claim to that effect based solely on the absence of or defect in a section 78 copy will not succeed.

• the cases tend to show that given time, creditors are usually able to supply a conforming section 78 copy even if not within the prescribed 12 working days. Provided that the creditor makes it clear that it accepts that the agreement is unenforceable pending compliance with section 78, there is nothing further which the debtor needs to do at that time.

 

Regards

 

Andy


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Thank you Andy for your response.

 

So,

if I am understanding everything correctly,

what they have sent me is absolutely fine and they have fulfilled their obligation to my request?

 

If that is the case, where do I stand now?

Do I have to start paying them?

 

Your last line states:

 

 

"Provided that the creditor makes it clear that it accepts that the agreement is unenforceable pending compliance with section 78, there is nothing further which the debtor needs to do at that time."

 

Does this apply to me?

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