CCA's and Dave against the world !!!

[davefirewalker]

Ok guys...an update

 

regarding the monument / barclaycard account where i'm going after unenforceability and the return of interest wrongly taken (agreement posted on page 2 of this thread).......... just received this morning (sat 24) An offer from Barclays legal.

 

"blah blah blah......

 

while not admitting anything, it may be in the best interest of us both to come to a settlement"

 

more blah blah

 

"So in full and final settlement of this matter we will reduce the amount you owe by £1000........"

 

usual blah about "without admission of liability"...then it goes on to say

 

"For avoidance of doubt the remaining balance of the debt would be due and payable"

 

that does not come anywhere near what I am claiming, but I can smell the fear.

 

I think they realise they are in deep sh*t and want to come to an arrangement without giving too much away, hoping that I dont know anything about th CCA1974.

 

I am already typing my reply

 

Dave

[car2403]

Well, any lesser mortal may have been sucked in to that one, Dave

 

Are you planning on writing one of your trademarked/copyrighted responses to them? I can't wait to read it if you are...

[ukaviator]

I can't wait for the reply either . . .

 

Looks like they are taking notice . .

[davefirewalker]

Well, any lesser mortal may have been sucked in to that one, Dave

 

Are you planning on writing one of your trademarked/copyrighted responses to them? I can't wait to read it if you are...

 

Oh yes......

 

Dave

[banker_rhymes_with]

Hello Dave!

 

I am already typing my reply

 

Blimey, that won't take you long!

 

Dear Barclaycardshark,

 

No Deal.

 

Love,

Dave

 

Cheers,

BRW

[paulwlton]

Methinks they're starting to wobble.

[davefirewalker]

Not one of my sarcastic specials......but I think it makes a point

 

first draft.........

 

Barclays Legal and Compliance

 

Dear Mr.............

 

I am in receipt of your letter of the 22nd May ref ***** the contents of which are noted.

 

Thank you for your offer to reduce the amount owed by £1000, but this is not acceptable.

 

You say in your letter that “Barclaycard will seek an order from the court under the Consumer credit act for its validation and /or permision to enforce it. It does not follow that the debt you refer to, is not recoverable nor does it mean that the debt is not owed.”

 

I should like to know what part of the CCA1974 you would be relying on to enforce this debt ? and how you would reconcile this with the total lack of any prescribed terms?

 

I have never denied that the debt exists, that is obvious. However in not complying with the consumer credit act the agreement is improperly executed and ultimately unenforceable. I'm sure that I dont have to hand hold you and walk you through the Consumer Credit Act 1974. I think we both know the effects of sections 60 - 65 and 127 especially 127(3)

 

The net result of the improper execution is that you would not be allowed to charge interest on any money loaned this is the crux of my claim, however the total lack of any PRESCRIBED TERMS would lead to the agreement becoming unenforceable as well. I suggest that you read the judgement of Wilson and others v. Secretary of State for Trade and Industry (Appellant) [2003] UKHL 40.

 

Also recent judgements in the high courts have allowed the reclaiming of money paid in mistake and the charging of compound interest for the time value of money lost.

 

I understand that you have been told to defend this and it is your job to put as good a case as possible and to protect your clients /employers interests, however I feel that this is already a lost cause. Any attempt to continue with this would be wasting the courts time and would ultimately end up costing you more.

 

I believe that if the “boot was on the other foot” you would use every and any legal (and some not so) methods to regain your money including bankruptcy and forced sale of my home without regard to mine or my families welfare. Large institutuions like yours have been shown time and time again to use the heavy hand of the law for their own ends. I have already suffered stress and and harrassment from your company. With this in mind it is my intention to use the law to ensure that I get what is due.

 

I would hope that you see the futility of carrying this on and come to a negotiated reasonable settlement. Should this end up in court, any win on my part would of course be published for the world to see

 

I hope to hear from you by return

 

davefirewalker

Edited May 25, 2008 by davefirewalker

[speedtrip]

well its scares me

[42man]

Great Dave !! watching with interest....(compounded !!)

[stripper]

Keep going Dave.

[WormHasTurned]

Dave, I've copied and pasted it - might just come in handy - good luck!

[hellhasnofury]

Hello Dave,

 

See how you inspire us all:D

 

I have now pulled my finger out of my ?????? and taken your lead:D

 

Check out this thread if you have time:D

 

On-going saga with creditor ge

[davefirewalker]

Just fired the opening shots at AMEX

 

this was a card that I had, and only used rarely......they took it off me for no real reason. Ive had the charges back and paid up in full and this card now has a zero balance.........but the cca was a load of cr*p (SEE POST 68 )

 

so

 

Dear Sirs,

 

Some time ago after you withdrew my credit facility without explanation I made a claim in relation to unfair charges to my credit card, which you settled after some negotiation. However in the process of examining the documents supplied as part of my data protection act and consumer credit act requests, I have come across some disturbing facts.

 

The supposed credit agreement sent as part of my requests does not fulfil your obligations as far as the Consumer Credit Act 1974 (the 1974 act) goes, in that it does not comply with the 1974 act or the Consumer Credit Act (Agreements) regulations 1983 (the 1983 act). In fact a portion of it is missing!

 

I would suggest that you study the 1983 act very closely as it lays down the format and content of a properly regulated agreement. The agreement sent to me does not comply in MANY respects including (but not limited to)

 

1 NO interest rate,

2 NO repayment schedule,

3 NO credit limit.

 

These are prescribed terms as laid out in schedule 6 of the 1983 act

 

Further there is

 

4 NO creditors address

5 No default charges,

6 No statements of protection

 

These are required terms as laid out in schedule 1 of the 1983 act

 

this list is not exhaustive by any means, but it shows the lack of legalities.

 

This being the case the “Agreement” is and was improperly executed and unenforceable from day 1. As such It is my belief that you would not in law be able to charge interest to the account, and that any interest paid to you by me was paid in the mistaken belief that you were legally entitled to charge it by having a properly regulated agreement. This is apparently not so!

 

It is now my intention to start litigation for the return of interest wrongly charged and taken

 

I will start by unilaterally declaring the “agreement “ improperly executed and unenforceable, as it does not contain ANY of the prescribed terms laid down by the consumer credit act. Should this get as far as court the judge would be precluded from making any other judgement due to Section 127(3) of the consumer credit act.1974. and would be forced to declare it unenforceable. Please be note that I am aware of my rights, and intend to fight this to the end.

 

Recent cases in the high courts have laid down precedents regarding unenforceable agreements and money paid in mistake. For reference I would suggest that you look up the various case precedents in Sempra metals v Inland revenue and Wilson v First county Trust.

 

I have calculated the interest that you charged me to be about £730 please see enclosed schedule of charges

 

I have decided to apply your standard interest rates that were in force during the lifetime of the account of 1.4%, 1.45%, and 1.2% monthly, compounded at an equivalent daily rate to compensate me for the time value of the money while it has been in your possession. I have used the formula (((1+rate)^days)x amount) to calculate the amount of interest from the date of each charge

 

The total of this compounded interest charge to be about £1,800 giving a total claim in excess of £2,500

 

I expect a cheque by return to the value of £2,500 + and will then consider this matter closed, if not I expect we will have a day in court very shortly.

 

Please note that the amount is compounding daily and the longer you take to resolve this the more the final cost will be.

 

Failing a reasonable response from yourselves within 14 days I will have no alternative but to start litigation. As there is no defence, I expect that this will prove most costly for you in that case

.....................

 

edited on advice that amounts were too specific and may give clues to identity

 

rgds to all

 

Dave

Edited May 29, 2008 by davefirewalker

[Alphageek]

Hope they cave in for you Dave. Can't see it though without a fight.

[davefirewalker]

Hope they cave in for you Dave. Can't see it though without a fight.

 

What possible defence could they put in, they have no valid CCA.....??

 

beats me

 

Dave

[stripper]

Keep us all posted Dave,you are a real Trooper!

[davefirewalker]

Just a small update

nothing as yet from Barclaycard (x3) (ex morgan stanley and ex monument charges and interest)

nothing as yet from Amex (just got confirmation of delivery)

confirmation of dsar request from NatWest

reply from rbos to my last letter, dsar request must have passed it in the post

 

in my ongoing saga with RBS,

 

just to delay things and to keep it bubbling along nicely and to get all the info I need for a right go at them, Ive also sent them a DSAR......along with one to Nastywest, who have been recently hammering me with charges. Ive told them I want FULL disclosure.

 

as regards the RBOS we are in the middle of a bit of a fight regarding missold PPI on a loan which they defaulted me on. It possibly would not have defaulted and I may have been able to keep up the payments had it not been for the extra amount for the PPI. of course the default notice contains amounts due to charges and penalties etc....we'll take that as it comes if we get near to court.........Also they have my wifes name on the default ? the loan was in my name only ???

 

now then heres a funny thing...they havent closed my account as such but I cant use it. it is only open to accept payments in . (just as well that I had a parachute one with nastywest)

 

looks like I'll have to get another parachute if I'm going to have a go at nastywest as well.

 

rgds to all

 

Dave

Edited June 3, 2008 by davefirewalker

[paulwlton]

It would appear that the default notice is worthless then, as under the regs the creditor and the borrowers name must be stated.... Oh dear.

[davefirewalker]

UPDATE.......... :)

 

Barclays have just replied to my letter demanding return of interest

 

guess what case they are quoting ??? and gave me a copy of.............

 

 

 

 

 

 

Basil Rankine v American express (and others)

 

I dont think its the one they first made...the date of this one is 16 may 2008

must read fully and see what they are getting at

 

as soon as i can I will scan it and post it ....if anyone is interested

 

rgds

[pt2537]

Dave,

 

I would be grateful if you could pass me a copy of that ruling. it would be very very useful

 

i will PM you my email address if you would be so kind

 

Regards

paul

[davefirewalker]

Dave,

 

I would be grateful if you could pass me a copy of that ruling. it would be very very useful

 

i will PM you my email address if you would be so kind

 

Regards

paul

 

 

No problems.....

 

but just noticed that it is not the original case.....this one was heard in 16 may 2008

 

it looks like they got busted and were refused leave to appeal

 

Dave

[pt2537]

cool, the judgment may hold something of use though as although they got hammered, it may give some idea of the arguments employed and counter arguments

 

its surprising how many cases where the person lost actually contain information that gives a strong argument

[mcuth]

as soon as i can I will scan it and post it ....if anyone is interested

 

Definitely interested Dave :)

 

Cheers

Michael

[davefirewalker]

Just had a quick look through it.....it seems as though the rankines were a pair of tw*ts......they were pushing it too far.

 

doesn't on first glance see to affect my claim which is substanstialy different, and has the added advantage of absolutely NO prescribed terms

 

I'll scan it tonight sometime and get it up for everyone to see

 

Dave

[sutherland]

By the way, there was a thread about the Rankines earlier this year with links to a BBC News video of them drinking champagne: http://www.consumeractiongroup.co.uk/forum/bank-charges-consumer-issues/127424-bbc-midlands-credit-card.html