CCA received - enforceable? First one - help please!

[exchange]

One thing diddydicky, the fact that I admit the debt creates a problem if I acknowledge this in any way in writing as I understand the statute barring clock would be from either a payment or acknowledgement of the debt in writing. A fine line to tread it seems!

[exchange]

Statutory arrears notice from this lot arrived but nothing more threatening yet.

[lilly white]

just looking it seams ok, which is good

 

EX where is the cca i would like to look at it again is this still the same one,

 

 

i must away now keep us posted

[diddydicky]

One thing diddydicky, the fact that I admit the debt creates a problem if I acknowledge this in any way in writing as I understand the statute barring clock would be from either a payment or acknowledgement of the debt in writing. A fine line to tread it seems!

 

always best to say nothing at all if the deadline is near, however writing and denying a debt does not set the clock back.

[exchange]

[ATTACH]6980[/ATTACH]

 

[ATTACH]6981[/ATTACH]

 

[ATTACH]6982[/ATTACH]

 

Hi all

 

I have sent 5 CCA requests and received the first today within the time scale of 12+2 days. Letter, application, T&C's from the time and current T&C's attached. They sent a statement as well which I have not attached.

 

This card was applied for by my wife but an additional card was requested for me, she signed the attached application but I did not.

 

T&C's supposedly from the time show £15 as penalty charges. Does anybody know if this was correct for M&S in 2005?

 

There is no credit limit stated anywhere.

 

I thought the prescribed terms should be in the 4 corners of the agreement or on a linked document. The application refers to sections 8 and 16 of the Terms and Conditions so is this a sufficient 'link' to satisfy the CCAct.

 

All views and any help appreciated.

 

Thanks in advance.

 

Hi lily white, here is the paperwork sent to me in response to my CCA request.

[exchange]

Thanks diddydicky, understood but you have to be careful with the wording presumably?

[lilly white]

have a read they won in court

 

 

1 I, make this statement as my defence to the Claimant’s vague particulars of claim dated 27 October 2008. The Defendant respectfully seeks the courts permission upon clarification of the claimant’s case and disclosure of the necessary documents to amend this defence if required.

 

2 On the 19th May 2005, the Defendant signed an Application Form for a credit card facility to be provided by Claimant. (Exhibit 1)

 

3 Provision of this credit facility was dependant upon a satisfactory credit record being obtained by the Claimant 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 Claimant in the event that the Defendant’s application was successful.

 

4 The Application Form contained a clause, which included the following statement -

'Please issue me with an additional Barclaycard for use on the account(s) to which this application relates. I accept to be bound by the Barclaycard Conditions of use'. As such, the application purports to bind the Defendant to the terms and conditions of any prospective credit agreement with the Claimant.

 

5 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.

 

6 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.

 

7 I refer in this section to the alleged agreement exhibit A.

 

8 In respect of that which is denied, if the court should decide that the said agreement is not void by virtue of s59 (1):

 

9 it is respectfully submitted that the agreement is improperly executed because it is not in the prescribed format set out under The Consumer Credit (Agreements) Regulations 1983. The agreement was entered into before section 15 of the Consumer Credit Act 2006 came into force. Therefore, by way of schedule 3, s11 of the consumer credit act 2006, those sections otherwise repealed by the Consumer Credit Act 2006 section 15 remain in force.

 

10 Consequently, the court is precluded from issuing an enforcement order by way of s. 127 of the Consumer Credit Act 1974, since the document does not contain all the prescribed terms defined in the Consumer Credit (Agreements) Regulations 1983, these being defined by Reg 6(1) as being specified in Sch 6 to the Agreements Regulations for the purposes of s61 (1)(a) and s127 (3). (The omitted terms including Credit Limit, Rate of interest, and Payment terms under the Consumer Credit (Agreements) Regulations 1983 schedule 6.

 

11 Furthermore, the Defendant disputes the balance of the account, as during the period in which the account was operating The Claimant debited charges to the account in respect of purported breaches of contract on the part of the Defendant and also charged interest on the charges once applied. The Defendant understands that the Claimant will contend that the charges were debited in accordance with the terms of the contract between the Claimant and the Defendant and accordingly puts the Claimant to strict proof of such terms existence. The Defendant contends:

 

a) No such contractual provision exists to allow Claimant to levy such charges;

 

b) Where there is a contractual provision that permits the Claimant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach and are not a genuine pre-estimate of cost incurred by the Claimant; exceed any alleged actual loss to the Claimant in respect of any breaches of contract on the part of the Defendant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Claimant, which exercises the contractual term in respect of such charges with a view to profit; and

 

c) Accordingly the Defendant puts the Claimant to strict proof that every charge made to the account was valid and lawful.

 

d) The Defendant has not been furnished with the requisite default notice in order for the Claimant to terminate the alleged agreement.

 

 

e) And in any event, the Defendant avers that any Default or Termination Notice sent would have included penalty charges, invalidating that Notice as per Woodchester v lease.

 

f) The Claimant contends that they have a claim to monies under an agreement between the defendant and the original creditor, the defendant seeks clarification of this fact and proof of legal assignment as required by Law of Property Act 1925

 

 

12 Accordingly, the Defendant puts the Claimant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

 

13 Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;

 

a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or

b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 10(e) of this

Statement.

 

14 The claimant respectfully requests that the court use its powers under section 141 of the consumer credit act to determine the rights of the parties.

 

 

15 For the reasons set out in this Defence, the Defendant’s position is that the Claimant’s Claim has no real prospect of success and discloses no reasonable grounds for it to be brought. The Defendant reserves the right to seek costs against the Claimant on the basis that such conduct is unreasonable and/or vexatious in bringing and/or pursuing this claim should the matter proceed to a full assessment.

[exchange]

Like it lilly white and contents noted. Thanks

[exchange]

Termination 1.pdf

 

Termination 2.pdf

 

Attached latest 'FINAL DEMAND' from M&S. I say latest because they sent the same letter back in June!

This is after two DN's giving 14 days to pay so invalid and sending someones else's info included in my SAR request.

A 48 hour deadline is tricky when the letter is 9 days old, mind you they don' say when the 48 hours started.

[exchange]

Anonymous calls now and again have prompted me to reply to them again.

Have to wait and see what they decide to do about there various mistakes.

[exchange]

Two letters received form Collect Direct today, both sent second class to a foreign country, idiots!

I am writing back to them pointing out their incompetence and copying M&S in on the letter.

They have threatened sending a 'personal representative'. Will they send him/her by second class post too?!

[exchange]

Seems from reading around the relevant threads that M&S don't like court action, but interested to know when the statute bar clock starts from as 6 years might seem a long time but may well be relevant one day. Is it from the last payment made?

[cerberusalert]

Is it from the last payment made?

Yes

[exchange]

Thanks!

[diddydicky]

admitting the debt in writing would also re start the clock!

[exchange]

Thanks dd.

[exchange]

Wrote to Collect Direct telling them account in dispute, never heard of them so why would I pay money to them, etc. and also stated that all communication must be in writing.

They have called to my home number twice today with a blocked number and left a message to call back.

Are they part of M&S and if not should I have not had a Notice of Assignment?

[diddydicky]

Hi lily white, here is the paperwork sent to me in response to my CCA request.

 

5/ "We will determine the credit limit from time to time"

 

 

IS

 

the credit limit - so it complies in this respect

[exchange]

Hi dd, but what about the rest?

[diddydicky]

were you making any payments to them BEFORE the first termination notice (formal demand)?

 

if so did you stop making these payments after receiving it?

[exchange]

No payments made since putting the account in dispute.

[diddydicky]

then the second DN was of no effect since they had terminated the agreement unlawfully

 

but i would suggest keeping that under your hat until the confrm WHICH DN they are relying on - it is not strictly necessary but the more cock ups the better

[exchange]

Thanks dd, they are a useless lot! How can they not understand that asking for payment within 14 days of the date of the DN is outside the rules?

Beyond belief really!

[diddydicky]

Thanks dd, they are a useless lot! How can they not understand that asking for payment within 14 days of the date of the DN is outside the rules?

Beyond belief really!

 

the reason is that they are not issued manually,

 

they press a tit on the computer to tell it to issue a DN and it does what it is told- it automatically adds 14 or 17 or 28 days- whatever it has been programmed to do, to the date and bingo- there is your compliance date.- the computer does not know about weekends and bank holidays, and it doesnt know that some dick head is going to put it in the second class post or use an outside mail delivery company!!

 

it does not print an office copy, instead it records in the comms log the details of the date it was sent and the amounts

 

Thus when you later challenge them they are totaly oblivious to the mistake

 

Bless!!

[lilly white]

ex have they now ended the agreedment if so there is no agreedment.

 

 

 

please read this.

 

 

 

1. It is denied that the matters pleaded in the Particulars of Claim actually disclose any cause of action. In particular:-

 

 

a) It is denied that that the Defendant can have liability to "pay" the Claimant sums of money simply on account of "requests for payment" in relation to a xxxxxxxxxxxxx- the only matters pleaded.

 

 

No cause of action known to English Law exists on the basis of such "requests for payment" (whether repeated or not).

 

 

 

b) Neither the Claimant being xxxxxxx which it appears (on the face of the Particulars, although due to their vagueness it is hard to know) to be being alleged were due

 

 

c) In any event, it is denied that the Defendant has had liability to pay - whomever that may be - any sum whatsoever.

 

2. It is expressly denied the Defendant is liable to pay any money pursuant to contract or otherwise to the Claimant.

 

3. Without prejudice to the above contentions, the Defendant asserts that in particular, given that the original of the liability is said to be a credit card given by xxxxxxxxxxxxxx (which is a person / entity / company not known to the Defendant), it will be the case, taking into account the amount of the liability, that the transaction and the underlying agreement (if any) between xxxxxxxxx and the Claimant would be regulated by the terms of the Consumer Credit Act 1974.

 

4. It is the express contention of the Defendant - again without prejudice to the contention that there is in fact no agreement - that any such agreement as exists does not comply with the Act. It is impossible to plead further in the absence of a pleading by the Claimant as to what the agreement was and what its terms were and the Defendant reserves the right further to plead Particulars of failure to comply in the event that the Claimant amends it Particulars of Claim to allege the agreement