2012 Mercers default notice for BC debt - is it valid?

[FORMISTER]

Hi guys, long time since i used to post on here with the HFO fan club.

 

However, a friend of mine has a few problems with old credit card debt, Barclays being one of them.

 

As i haven't advised for a long time, i thought i would ask everyones opinion in case my memory doesn't serve me well, or things have changed

 

So Ok.

 

Mercers default notice is dated 27th of September 2012

And states payment of £**** must be made so that it reaches Barclaycard before 14th October 2012

 

Is this within or outside the limit?

 

Cheers

[dx100uk]

14 calendar days and the date format must be DD/MM/YYYY

 

 

just be aware many mercers DN were invalid for that period.

[FORMISTER]

Hi DX,

 

My confusion was over the date of service , assuming that it was first class.

 

 

Is it Thursday 27th on the letter, then Friday 28 and Monday1st for postage , then service is 14 days from the Tuesday 2nd? That being 15th October?

 

Also the default notice says before 14th of october, which would be the 13th , right? And date format is 14 October 2012 not 14 10 2012

 

So i believe its invalid, but would appreciate someone elses opinion

[dx100uk]

as long as the DN does not simply say xx days from the date of this letter its OK

 

 

however

as you point out they have not given enough days to remedy it.

 

 

theres a very long thread on mercers and invalid defaults here somewhere.

 

 

dx

[FORMISTER]

Ok thanks DX, i shall try and seek it out

[slick132]

Site Team member Andyorch has suggested in the past that Mercers were authorised to issue DN's on BC's behalf.

 

DN date compliance may be an issue but that may not be enough alone to question the enforceability of the a/c.

 

Are there other reasons to question the a/c's enforceability.

 

[FORMISTER]

Hi Slick,

 

I only picked his bundle of goodies up this evening.

 

Will CCA the DCA for him. Looking at what he has given me, the Barclaycard is from around 2003 if not earlier. So hoping maybe it was a Priority application form or other unenforceable agreement.

 

So are you saying that not being given enough time to remedy the account is no longer sufficient to invalidate a default notice?

[slick132]

The age of the a/c means they should need the original credit agreement but it's just not that simple these days.

 

Do you know if payments to the a/c have been made recently. If not, when was it last paid towards.

 

[FORMISTER]

Looking at it , it is about 14 months from being SB'd, last payment about oct 2010

[slick132]

Ah, so SB is not so far away.

 

Let us know if anything further comes to light when you've been through the papers.

 

[FORMISTER]

Yes will do slick, in the mean time I am going to CCA request for him.

 

At the moment he is receiving letter from MKDP & MK Rapid Recoveries

 

I also have a bundle of his MBNA credit card documents to go through, looks like CAPQuest and Arrow Global are the DCA's in question in this case

[FORMISTER]

Hi Guys, despite sending MKDP a CCA request, MKDP have sent my friend a "Notice Of Intended Legal Action"

 

As you failed to respond to previous correspondence or a free a p[ayment plan we have instructed Keynes Collections to collect the outstanding balance on our behalf.

 

You had an agreement with Barclaycard which was assigned to MKDP LLP. under the agreement the balance was to be repaid but you defaulted, breaching the agreement which has now been terminated.

the full amount is now due and you are required to pay the outstanding balance to MKDP

 

"This letter constitues a formal demand for payment" of £****** and is made in accordance with the Practice Direction- Pre-Action Conduct of the Civil Procedure rules. Your attention is drawn to paragraph 4 of Annex A of the Practice Direction concerning the Cours power to impose sanctions for the failure to comply with the practice direction.

 

this letter requires your immediate attention. Unless full payment, or a suitable plan is agreed within 14 days of this letter, legal action to recover this debt MAY be taken against you without further warning

 

and it goes on...

 

Any comments? This was sent about 5/6 days after the CCA request was made.

[dx100uk]

They know you are on to them

 

Willy waving

 

Next bloke next desk diff coloured skirt

 

DX

[FORMISTER]

That's what I thought DX, but being a few years since I used to regularly posted on here I want to run everything past for opinion, as I imagine things have moved on and changed since then.

[mikeymack2002]

Since this is a very old account maybe consider a SAR as well to see if there are any fees and the such to reclaim. This cost a tenner and goes to the OC. It may pay you to get this off asap. Then reclaim all of those fees too....

[FORMISTER]

Hi Mikey,

 

Oddly enough my friend is the only person who I know who has kept every statement and letter from a credit card ever, so I already have all that info.

 

I already have issue with the default notice, as it gave him 13 days to remedy.

 

I used to advise on here until a few years ago (particularly on HFO threads), but I am running this through CAG in case various things have changed since then. Also , this forum always worked best when many keen eyes are running over the details together.

 

If you want to know any other details, just ask. The only thing he doesn't have is the original CCA. I am guessing (or hoping as much) that it may of been a priority application form and not a CCA, the time period fits with this.

 

We shall see when they comply with his CCA request

[mikeymack2002]

A CCA as you know is a must get it off then update

[FORMISTER]

Hi Mickey, as per my post yesterday, they were sent a CCA request several days before they sent there latest letter.

 

As I said, I used to advise on here so I am pretty clued up on procedure . What I am not up to speed with is any Test cases that may of changed the landscape since then and how judgements may have changed or relevance of evidence.

[slick132]

Hi Formister,

 

If you have all the a/c statements, have you listed all penalty charges added to the a/c. If these are reclaimed with compound restitutionary interest, it can add up to a tidy sum.

 

Have you checked the a/c for PPI too.

 

[FORMISTER]

Hi Slick,

 

No, not yet.

 

Been busy suing someone , which i won on Friday, plus costs.

 

My friend gave me a stack of statements going back to 2004, so i guess I will still ploughing through them.

 

He also gave me another card, in the same situation. probably about 18 months from being SB. Although the heat is not on that one at the moment, he had a negative income and had been supplying them with a I&E every few months for the past two years.

 

Will get on the aforementioned and let you know.

[FORMISTER]

Ok, my mate got his reply to his CCA request today.

 

Nice letter from barclaycard to go with it.

 

Basically it is a reconstituted agreement. And i say agreement in the loosest of terms.

 

It is a set of Barclaycard T&C's which is apparently a copy of his agreement to keep. Clearly missing anywhere to sign and date, any credit limit.

 

this is accompanied by another set of T&C's , from a later date when they claim they varied the agreement.

 

Sitting on the front of these is a A4 sheet of paper with his name and address on and a right to cancel notice in a box. it looks like it has just been run off someones PC and is devoid of any origin from what or whom it could of come from.

 

Looks like the DCA may of ran this page off them selves

 

In my past experience it looks like this may of come from a priority application form and not a signed agreement.

Edited June 30, 2015 by FORMISTER
add more info

[dx100uk]

if he took it out prior to Apr 2007

they will need the signed agreement to enforce it

 

 

dx

[slick132]

Hi Formister,

 

You said earlier that YF has statements going back to 2004, so the a/c is obviously pre-2007.

 

Accordingly, the creditor needs the original credit agreement to take effective enforcement action. Without this, any court action should be easier to defend.

 

[FORMISTER]

Thanks DX, I thought as much, but as i haven't been doing this for a few years, i wanted to check with you guys, so i don't give the wrong advice to him.

 

If the default notice is wrong and only gave him13 days, can we get the default removed?

[FORMISTER]

Thanks also Slick for your help