Mercers-Barclaycard claimform - faulty DN **WON**

[paulwlton]

Hi,

 

 

I will be able to once I dig it out and scan it!

 

 

Jeff.

 

Start digging mate.

[Jeff2000]

Hi,

 

 

Well I've had a good dig about and I can't find any default notice

anywhere! It's definately not in amongst all my other Barclaycard stuff!

 

I shall have another good look tomorrow just to make sure!

 

 

 

Regards, Jeff.

[Jeff2000]

Hi everyone,

 

 

Well, I've found it at last.

 

It was in the Mercer's pile and not the Barclaycard pile!

 

 

Anyway, here it is:

 

 

 

 

 

 

 

 

 

 

 

 

Any questions, just ask!

 

 

Regards, Jeff.

[robcag]

To my non-expert eye it doesn't look like it is of the correct format to be a proper default notice.

 

It might be worth you revealing the date of issue and the date you had to rectify the default situation by, because if they haven't allowed 14 clear days then that is also something else which would invalidate the default notice (as pt2537 noticed on one of mine recently ).

 

Rob

[paulwlton]

The default notice does not conform with the regs. The name and postal address of the creditor is required, Mercers are not the creditors.

 

I will post a nice letter for you to send.

 

Paul

[pt2537]

Also the lettering is not in the prescribed form under regulation 2 (2)of the Consumer Credit (Enforcement, Default and Termination Notices)

Regulations 1983 (SI 1983/1561)

[citizenB]

I have received 2 of these this morning am subscribing to your thread in interest

[paulwlton]

Alter to suite. Send a copy

Mercers Debt Collections Ltd

PO Box 55

Liverpool

L32 8XX

DO NOT IGNORE THIS LETTER

07/01/2008

 

 

Dear Sirs,

 

Account no: **********

 

Re: my request under the Consumer Credit Act 1974

 

 

 

 

I note that you are acting as agents to Barclaycard therefore I draw your attention to the facts below.

 

This account is in Dispute.

 

In October 2006 and again On ********* I wrote to Barclaycard requesting that they supply me with a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

 

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

In addition to the above, I note you sent me a Default Notice under S87 (1) Consumer Credit Act 1974 dated 24/08/2007. I am sure you are aware a Default Notice is needed before a creditor can terminate the agreement or demand repayment. However the default must be accurate and comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561). The document purporting to be a Statutory Default Notice does not comply with the requirements of regulation 2(2) SI 1983/1561 and schedule 2 of the same document for the following reasons

 

Firstly; the document does not state the name and postal address of the creditor. I note that your address is present; you are not the creditor under this agreement. Also the document does not sufficiently state the nature of the breach and term of the agreement, which has been breached. Also the statutory terms, which are required to be capitalized, are not

 

For example

 

“IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH ”

 

Or

 

“IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU [OR A SURETY]”.

 

However on your Default Notice these statements are shown in lower case and therefore not in compliance with the Consumer credit Act 1974 or the regulations referred to above

 

Also the regulations require the Default Notice to contain a statement in the following form—

 

"IF YOU ARE NOT SURE WHAT TO DO, YOU SHOULD GET HELP AS SOON AS POSSIBLE. FOR EXAMPLE YOU SHOULD CONTACT A SOLICITOR, YOUR LOCAL TRADING STANDARDS DEPARTMENT OR YOUR NEAREST CITIZENS' ADVICE BUREAU".

 

This excerpt is taken from the SI 1983/1561 itself and clearly your copy of the Default Notice does not contain this required statement either. There is a body of case law, which has confirms that where a statutory default notice issued under section 87(1) not compliant with the Consumer Credit Act 1974 and the subsequent Regulations it does not allow a creditor to terminate the agreement or demand repayment etc. In addition your attention is drawn to the fact that 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 termination of contract which would not only prevent a court enforcing any alleged debt, but give me a counter claim for damages via the ruling in the case of Kpohraror v Woolwich Building Society [1996] 4 All ER 119

 

Therefore you would be rather foolish to attempt to add any adverse data to my credit file while this account is subject to a Serious Dispute

As it stands, the document supplied by Barclaycard is not a valid credit agreement nor is it enforceable by any court

 

 

What I Require

 

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages.

 

In addition to the foregoing £82.00 was taken from my Barclays current account on the 21/12/2007 to offset arrears. I will give you 7 days to replace this amount otherwise I will start a claim in the County Court.

 

 

I respectfully request a response to this letter in 7 days

 

 

Yours Sincerely

 

 

 

Copy sent to Barclaycard

[Duffers Mum]

How interesting! I too received a Default Notice from Mercers last year, I didn't realise it was not in the correct format, does that mean that it shouldn't be registered on my credit file?

 

Jeff - I reported Barclaycard to TS in Northampton last year, they are currently looking into things for me, I haven't heard anything for ages from either Barclaycard or Mercers, might be worth you doing the same. Its certainly given me some much needed breathing space. The documents they have sent you look almost identical to those they sent me (I've had 6 sets of T&C's now!)

 

Good luck

[Jeff2000]

Hello all,

 

 

Many thanks for your support and assistance.

 

Paul, I shall send a copy of your letter to Mercers but do you think I should also send a copy to the solicitors that have started the claim?

 

Also, in the meantime I guess I should be acknowledging the claim within the allotted time?

 

Rob, the date of issue was 19/09 and the the date to rectify the default was 06/10, however the notice was actually delivered on 25/09. In the POC the solicitors statement states that the default notice was served on 19/09!

 

 

Regards, Jeff.

[pt2537]

Crikey, i recognize that letter:).

 

can i ask who the claimant is in this action please Jeff? is it Barclay card, mercers or another?

 

regards

paul

[Jeff2000]

Hello Paul,

 

 

The claimant is Barclaycard.

 

The solicitors representing them are Optima Legal Services Ltd.

 

Hope this helps.

 

 

Jeff.

[paulwlton]

Crikey, i recognize that letter:).

 

can i ask who the claimant is in this action please Jeff? is it Barclay card, mercers or another?

 

regards

paul

 

Is it one of yours?

[Jeff2000]

The default notice does not conform with the regs. The name and postal address of the creditor is required, Mercers are not the creditors.

 

I will post a nice letter for you to send.

 

Paul

 

 

Hi,

 

 

Thanks for that Paul.

 

I've sent a version of that letter to Barclaycard.

Also sent a copy to their solicitors.

 

 

 

Regards, Jeff.

[pt2537]

Hello Paul,

 

 

The claimant is Barclaycard.

 

The solicitors representing them are Optima Legal Services Ltd.

 

Hope this helps.

 

 

Jeff.

 

Thanks for that Jeff, i just wanted to check, thats all.

 

ive seen cases where claims have been issued by companies who do not hold the legal right of action.

 

it would appear in this case that does not apply as Barclay card would be entitled to sue for this debt.

 

oh well, not to worry

[citizenB]

subscribing.. Mercers want to be my penpal as well LOL x

[Jeff2000]

Thanks for that Jeff, i just wanted to check, thats all.

 

ive seen cases where claims have been issued by companies who do not hold the legal right of action.

 

it would appear in this case that does not apply as Barclay card would be entitled to sue for this debt.

 

oh well, not to worry

 

 

Hi pt,

 

 

Just had another look and the claimant is Barclays Bank plc.

 

I don,t suppose that makes any difference?

 

 

Regards, Jeff.

[Jeff2000]

Hello all,

 

 

OK, tomorrow is the deadline to acknowledge the claim.

 

So I have a couple of questions that I would like answering. (For reassurance really, as I think I already know the answers).

 

I am assuming that I will be counterclaiming. There are a number of charges and interest on those charges. This is important as it will bring the total of their claim well below £5000. Or am I on the wrong track?

 

I have also been contemplating claiming back the PPI. What do you think?

 

Or, do I forget the charges for now and concentrate defending on the basis of unenforceability?

 

As usual, all comments and suggestions will be appreciated!

 

 

Regards, Jeff.

[SURFBOY]

subscribing , i am a barclycard/mercers customer also.

I will no doubt be going through the same as you all soon .

i will start my own thread.

[Jeff2000]

Hi all,

 

 

Just been on MCOL and succesfully acknowledged the claim.

 

Might need a bit of help formulating my defence and counterclaim!

 

 

Thanks in advance.

 

Jeff.

[slick132]

Hi Jeff,

 

This has been moved into BC forum, prob as a result of the site shuffling at the w/e.

 

Where was this thread before and do you want it moved back there.

 

I'll ask one of the team to advise on a suitable Defence response.

 

Slick

[paulwlton]

I think we can put up a decent defence and counterclaim.

 

I just thought i'd mention i've just kicked BC and their side kicks A....

 

Paul

 

1.On the ( insert date), the defendant signed an Application Form for a credit card facility to be provided by the Claimant. (Exhibit 1)

 

2.Provision of this credit facility was Dependant upon a satisfactory credit record being obtained by the Defendant from one or more Credit Reference Agencies, and upon other lending decision criteria. The Application Form was therefore a pre-contractual agreement to enter into a prospective full regulated credit agreement with the Defendant in the event that the Claimant's application was successful.

 

3.The Application Form contained a clause which included the following statement -

 

 

'I have read the terms and conditions setting out the agreement with Capital One and in the event that my application is accepted, I agree to be bound by these terms and conditions'. As such, it purported to bind the Claimant to the terms and conditions of any prospective credit agreement with the Defendant.

 

4.Section 59 (1) of the Consumer Credit Act 1974 states that 'An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.'. The defendant therefore contends that this pre-contractual document, not being a regulated credit agreement in itself, and insofar as it purports to bind the defendant to the terms of an actual prospective regulated credit agreement, is void and of no effect.

 

5.The defendant’s application for credit was successful and a line of credit was provided.

However, no subsequent regulated credit agreement, fully setting out the proposed terms and conditions and containing all the terms, information and statutory statements as prescribed by the Consumer Credit Act, was ever provided by the claimant for the defendant to sign and agree to. The credit facility was therefore given with no agreement made for repayment.

 

6.From the date that the Application Form was signed, until on or around (insert date), the defendant was labouring under a mistaken belief that there existed between myself and the claimant a valid regulated credit agreement and that I had a legal obligation to repay the credit provided, whereas in fact no such document existed. In these circumstances, it might be argued that the Defendant has a common-law remedy against the Claimant, in that an ordinary indebtedness exists which entitles the claimant to retain the monies already paid by the Claimant, and to sue for the balance deemed to be outstanding. However, legal precedent makes clear that credit arrangements of this nature must be set down and governed by a regulated credit agreement that conforms to the exact requirements of the Consumer Credit Act. Where such an agreement is found to be improperly executed, the lender is at risk of having the terms of the agreement amended in favour of the borrower, as compensation for any prejudice caused. In a case where the agreement is found to be wholly unenforceable, the lender loses all his rights under the agreement in accordance with the policy aims of the legislation, and furthermore is denied recourse to any common-law remedy in respect of the money lent. Wilson v Secretary of State for Trade and Industry [[2003] UKHL 40 ].

 

7.In this case, it is not that there is a regulated agreement, but one that is improperly executed and subsequently unenforceable, it is that the claimant has failed to provide a regulated agreement at all, and therefore has not complied in any way with the legislative requirements. To nevertheless permit the defendant to retain monies paid to him, or to allow enforcement of the balance claimed to be outstanding would be wholly contrary to the policy aims of the legislation and would entirely negate it's effect.

 

8.If it is found that the Application Form does constitute a valid agreement to repay any monies subsequently lent to thedefendant, it is alternatively contended that the document does not conform to the requirements of the Consumer Credit Act, in that it contains no terms or conditions or other statutory statements and is consequently improperly executed and wholly unenforceable by virtue of Section 127(3) of the Act.

In that event, the defendant will contend that any monies already paid to the Defendant were as a result of a mistaken belief in her legal obligation to pay, and that there was in fact no such obligation, as per Lord Hoffmann in Dymond v Lovell (HL - 11 May 2000): 'Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay. This meant that Parliament contemplated that he might be enriched and I do not see how it is open to the court to say that this consequence is unjust and should be reversed by a remedy at common law'.

 

9Further, even if the claimant is found to be entitled to retain the monies he has already received, this sum included interest and other charges, the terms of which were not set out in the prescribed manner in a regulated credit agreement, and therefore were not agreed to by the defendant. The only document signed by the defendant contains no terms whatsoever, and therefore the Defendant had no mandate to apply such terms. The defendant therefore contends that in this event I would be entitled to a refund of all such interest and charges.

 

10.The claimant has indicated that a record of the credit status in respect of this account has been provided to one or more Credit Reference Agencies, and on( insert date), after the date of issue of this claim, the claimant served on the defendant a Notice of Default under the Consumer Credit Act (Exhibit 2). The Claimant claims that by reason of the facts of this claim, there has been no such default in respect of any alleged terms of a purported credit agreement and that consequently any adverse information provided to any third party is incorrect, unfounded and detrimental to the defendant’s future credit prospects. The defendant therefore requests the erasure of any record of this nature.

The defendant therefore claims:

 

1. The refund of all sums paid to the claimant to date.

1. 2. Or in the alternative, the defendant claims the refund of all interest and other charges paid
   to date.
   3. The removal of any adverse information provided to, and included in, the records of any
   third party.
    
   4. In the event that a regulated credit agreement is found to exist, the defendant claims a
   declaration of the court that the agreement is improperly executed and unenforceable
   against her.

1. The Claimant further claims interest under Section 69 of the County Court Act 1984 at the rate of 8% from the date of each payment made to the claimant , currently (insert figure)and continuing at the same rate until payment or the date of judgment.
   The Claimant believes that the facts stated in these Particulars of Claim are true.
    
   Signed............................................ .......(defendant)
   
2. 
   Dated(insert date).

You could also insert

 

In the event that this honourable court should deem the purported agreement enforceable, but would disallow any such refund of monies paid, the defendant would respectfully request that all charges and interest accrued thereon (as per Exhibit C) applied to the account in dispute, are refunded in full - as there are no provisions within any documents supplied by the claimant to be applied.

Further, and in the event that this purported agreement is granted enforceable under this courts' jurisdiction, the defendant would respectfully ask that the Default Notice served by the Claimant (it is believed this has been issued vexatiously and retaliatory to this ongoing dispute), be rendered void and inoperable.

Any such amount claimed to be in default by the claimant , is;

1) Issued in breach of section 88 'where a valid regulated agreement must exist for issue of said default notice'

2) Any such amount claimed to be in default, has been placed in written and continued dispute since the defendant’s' letter of xx/xx/xx (Exhibit D)

3) Whilst in dispute, a Creditor may not enforce any such agreement

4) Any such amount shown as in default, contains penalty charges and interest on same, making the material breach of s87(1) unwarranted and a counter claim for compensation as per Woodchester v Swayne.

[tomterm8]

I thought with a credit card, the agreement becomes executed for the purposes of s59(1) when you first use the credit card?

 

under s59(1) an agreement is void to the extent it binds you to enter a future credit agreement, however under s66 (Aceptance of Credit-tokens) you become liable for the agreement when you sign the card or use it for the first time.

 

At that point, the agreement would no longer be a prospective agreement.

 

the s127 argument have merit, and I think should be given greater emphaisis.

 

66.

Acceptance of credit-tokens.

— (1) The debtor shall not be liable under a credit-token agreement for use made of the credit-token by any person unless the debtor had previously accepted the credit-token, or the use constituted an acceptance of it by him.

 

(2) The debtor accepts a credit-token when—

(a)

it is signed, or

 

(b)

a receipt for it is signed, or

 

©

it is first used,

 

 

either by the debtor himself or by a person who, pursuant to the agreement, is authorised by him to use it.

[paulwlton]

I thought with a credit card, the agreement becomes executed for the purposes of s59(1) when you first use the credit card?

 

under s59(1) an agreement is void to the extent it binds you to enter a future credit agreement, however under s66 (Aceptance of Credit-tokens) you become liable for the agreement when you sign the card or use it for the first time.

 

At that point, the agreement would no longer be a prospective agreement.

 

But sec 59 has already been breached because it's pre-contractual and is binding on you to enter a future credit agreement, so the agreement is void

[tomterm8]

the effect of s59 is that the agreement is void only to the extent that it binds you to enter into a prospective credit agreement . So until you chose to enter the agreement, you can back away at any point.

 

But you did chose to enter the agreement.