Court Claim - MKDP / Barclaycard - 1-12-2014

[Galina]

Received a claim? Yes
Issue Date: 1-12-2014
Amount approx: £3,716.09
Claimant: MKDP
Solicitor: MKDP
Original Credit: Barclaycard

Particulars of Claim:
The Claimant claims the sum of £3,716.09 being monies due from the Defendant to the Claimant under a regulated agreement originally between the Defendant and Barclaycard. The Defendant's account number was 5301272390577005 and was assigned to the Claimant on 11/10/2013, notice of this has been provided to the Defendant. The Defendant has failed to make payments in accordance with the terms of the agreement and a default notice has been served pursuant to the Consumer Credit Act 1974. The Claimant claims the sum of £3,716.09 and costs. The Claimant has complied, as far as necessary, with the pre-action coduct practice direction.

Stat Barred? No

Have sent: Acknowledged the Claim, Sent a CCA request

Other Info:
I am disputing the debt on the grounds that the original credit card provider did not comply with the requirements of the Consumer Credit Act 1974. The Claimant has failed to provide the original signed copy of the Credit Agreement. I believe that I never signed such an Agreement, and that the details of terms and conditions were never explained to me. In response to numerous requests for a copy of the original signed agreement, the Claimant sent me a copy of the "reconstituted" credit agreement. They are basing their claim on a precedent where a court judgment was served in favour of a claimant on the basis of a reconstituted credit agreement. However, I cannot be sure that the reconstituted agreement is the original agreement. There may have been other violations of the code of practice too.

I had 3 other credit cards in my possession, of which I informed the credit card provider during the telephone conversation. The credit card provider did not check whether I could afford to make repayments for any future debts. The credit card limit may have been raised without verifying whether my circumstances have changed.

My biggest question is - do I stand a chance of winning the case? Is there anything else I need to do to maximise my chances? The court hearing is on 3 June 2015, which is in about 2 weeks. Does it make sense approaching MKDP with an offer of £1 temporary repayments before the court, or should I continue disputing the case? Many thanks in advance for your help.

[nemesis45]

Re: Court Claim - MKDP / Barclaycard - 1-12-2014

Hi Welcome to LB

This claim was issued more than 6 months ago, so at what stage is the claim now? Is it currently stayed?

A reconstituted agreement must have:

1. Your name and address as it was at the time the account was opened.
2. The claimants name and address.
3. The Ts & C's in force when the account was opened.
4. The T's & C's in force when the account was closed.
5. Any material amendments made during the life of the agreement.
6. Any other documents mentioned in the Ts & Cs.

Any claims of mis selling or inappropriate lending should have been
taken up with the creditor directly much earlier.

The case law on this and recon agreements stands firm.

If no agreement was signed, how was the account opened and a credit card issued for your use?
In what way has the original creditor failed to comply with CCA 1974 (as amended)??

When was this " telephone conversation" and why were you telling the creditor about other cards?
A credit card application would have been subject to the usual credit reference checks.

As I understand matters if a reconstituted agreement is produced the creditor is confirming
that it is a " true" copy of the original this does not have to have signatures.

To which code of practice do you refer?

My guess is the claimant would suggest that you did not have to take advantage of any credit limit increases, this together with a compliant recon and evidence of use of the credit facility a judge would have difficulty in denying judgement.

You can defend the claim on the grounds that you do not believe the recon agreement to be correct, but what do you have to back this up??
nem

[Galina]

Re: Court Claim - MKDP / Barclaycard - 1-12-2014

Hi Nem,

Thank you for taking time to reply to my question. As far as I remember, the application was done over the telephone. I would have told the creditor about the other cards because I would be asked I believe. It happened some time ago though, so I cannot be sure if it was the case. I know that my financial circumstances were never verified. My main defense is that the agreement was never signed, so what MKDP have sent may not be the copy of the original agreement. Is it my responsibility to prove that the reconstituted agreement is not the copy of the original, or is it up the the Claimant to prove that it is indeed the copy of the original agreement? Does the burden of proof always lie with the defendant in such cases? As for taking issues of inappropriate lending with the card provider earlier, is there a time limit on it? In terms of the code of conduct, I meant the CCA 1974 which would require responsible lending and establishing a fair relationship with the customer by ensuring that the customer can afford to service the debt.

My question is - do I stand a chance of winning the case in the court based on the information provided, or should I approach the lender now with an offer of minimum repayment? I have run my finances with a debt advisor, and they estimated that I can only offer £1 per month repayments at the moment. Should I proceed with the court and risk accruing more debt, or approach the lender asap with the offer of minimal repayments? I have 3 other cards, and another creditor has just written to me. I am not sure what is the best course of action for me to take, so would be grateful for advice.

Kind regards,

Galina

[nemesis45]

Re: Court Claim - MKDP / Barclaycard - 1-12-2014

Hi Galina,
A telephone application is treated much the same a an online application, the app is filled in by the card providers phone rep and a copy of the agreement is posted to the applicant, when the card is issued a set of T's and C's in the form of a booklet is provided at that point.

Indeed it is for the claimant to prove the validity of the recon agreement, affirmation of the "true " copy status of the recon will appear in the claimants " statement" of truth.

Does the recon comply with the information I posted earlier.

nem

[Galina]

Re: Court Claim - MKDP / Barclaycard - 1-12-2014

Hi Nem,

The original agreement was with Morgan Stanley. The business was later sold to Barclaycard, I have received 2 sets of Terms and Conditions - Morgan Stanley's and Barclaycard's. I would say that the print on the Barclaycard T&Cs is so small, that it is impossible to read - don't know if it can be used in my favour. Both documents were supplied to MKDP by Barclaycard, with my name and address on the front cover page. There are no other documents related to any material amendments made during the life time of the account. There are several copy statements starting from November 2012 (I stopped making monthly repayments in July 2012). This is all I have. Do the T&C's constitute the Credit Agreement, or should there be anything else as well in it?

Many thanks!

Galina

P.S. Sorry, just wanted to add this to my letter:

The cover letter from Barclaycard states: "I enclose a reconstituted copy of your credit agreement together with a copy of the terms of your credit agreement as varied in accordance with the section 82(1) of the Act (CCA 1974). This is a statement of the terms of your agreement with us and incorporates any variations to the terms made since you entered into this agreement. However, the interest rates, fees and charges set out in the agreement may differ from those we have discussed with you, due to current status of your account. "

So since it "incorporates variations to the terms made" since I entered into the agreement, with no indication of what the variations are, can I argue that it is not the original agreement, but an updated version? I cannot remember being made aware of any variations.

They also state that the money due on the account is £3,901.09. However, MKDP is stating in their claim that the amount they are seeking is £3,716.09 plus court expenses, so there is a discrepancy there.

Thank you for your time and help!

Galina

[nemesis45]

Re: Court Claim - MKDP / Barclaycard - 1-12-2014

I have to say Galina ( this is without seeing the documents) that it would appear that the recon is
compliant.

The " variations" are the result of the BC " take over" of the MS brand. These " variations" are the " new" Braclaycard T's & C's. I think you will find, as said this opinion is without seeing the documents.

nem

[Galina]

Re: Court Claim - MKDP / Barclaycard - 1-12-2014

I have to say Galina ( this is without seeing the documents) that it would appear that the recon is
compliant.

The " variations" are the result of the BC " take over" of the MS brand. These " variations" are the " new" Braclaycard T's & C's. I think you will find, as said this opinion is without seeing the documents.

nem

Thank you Nem.