Kafka - v - MKDP (Barclaycard)

[Kafka]

I don't think I've posted before about this account, but thought it useful to start a thread of what's cooking. Basically it was a Barclaycard started in 2000 and after the bank charges movement started I reclaimed charges in about 2007/8. More charges were added some time later.

July 2012 - I wrote to Barclaycard stating that nothing was left owing due to the charges added.

Sept 2012 - they refused to accept that nothing was left owing.

30 Sept 2012 - I sent LBA threatening legal action, but didn't follow this up.

5 Nov 2012 - Default Notice sent by Mercers.

2012-14 - correspondence from various jokers including Mercers, Allied International, Raven, all given the Foxtrot Oscar treatment.

22 May 2013 - default registered according to Experian.

15 May 2014 - MKDP write saying they are the new owner. They also send a fake Notice of Assignment (same date) on Barclaycard-headed paper pretending it has come from Barclaycard.

- - - Updated - - -

I want to get the default of the credit report, so sent this letter recently to MKDP.

27 July 2015



Dear Sir/Madam

Account no.
Your ref:

I refer you to the attached correspondence regarding this account and draw your attention to the following facts:

1. I owe nothing on this account, owing to the unlawful penalty charges applied by Barclaycard, which exceed the amount you claim exists.
2. A request for refunding the charges was sent to Barclaycard on 30 July 2012, but they refused to refund on 21 September 2012.
3. A Letter Before Action was issued to Barclaycard on 30 September 2012, but to date I have not commenced legal action for recovery.
4. You claim that the account was assigned to you by letter of 15 May 2014, yet no valid Notice of Assignment was ever sent by Barclaycard. The only attempt at a Notice of Assignment was sent by yourselves on Barclaycard-headed paper and purporting to have come from them.
5. Despite the lack of valid assignment, I note that in your letter of 15 May 2014 you accept the duties as the data controller for the account, and my credit file with Experian confirms this.
6. Given the facts above, I therefore hold you responsible for filing false information with the credit reference agencies.
7. If you did purchase this account from Barclaycard, then they sold this to you in the full knowledge that no debt exists and that legal action for recovery was pending.
8. The default date recorded by yourselves is 22 May 2015 and by that date the unlawful charges applied to the account exceeded the figure of Ł343, even without interest added.

The registered default is unlawful and must be removed from all of my credit files. I now require written confirmation from you that this has been done and that the issues over this account are closed.

If I do not hear confirmation of this within 30 days of the receipt of this letter than you will leave me no alternative but to commence legal action, which is likely to include the following within the claim:
• Removal of the unlawful default.
• Full refund of the unlawful penalty charges that currently total Ł360 (less the Ł343).
• Interest on the charges from inception, either at standard or contractual rate of interest.
• All of my legal and other costs.
• Costs for my time.
• Damages in regard to filing false data on my credit file.


I look forward to hearing from you.

Yours faithfully

- - - Updated - - -

Today I received this reply.

[FlamingParrot]

Re: Kafka - v - MKDP (Barclaycard)

Hi Kafka

Good to see you back.

Is this not statute barred yet? When did you actually stop paying it?

I know someone who had two claims from MKDP for Barclaycards last year, one went to court in May and MKDP LOST! :whoo: :whoo: :whoo:

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

My chief argument re the default is that the charges applied were greater than the default amount on the day it was defaulted, so in other words it was defaulted entirely for penalty charges. What is also interesting is that Barclaycard sold it on knowing that nothing was owing and despite having been served with a Letter Before Action.

I now plan to issue a LBA as advised in my earlier letter to them, prior to filing at court.

- - - Updated - - -

Without checking the papers I'm guessing that the last payment was perhaps 2012, when I realised that nothing was left owing. Limitation isn't really my concern here because its me bringing the action and I wouldn't want the claim to be out of time.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Here is a first draft of the letter before action, for comment.

Dear Sir/Madam

Letter Before Action

Account no.
Your ref:

I am writing following your letter of 4th August, where you have refused to remove the unlawful default from my credit files. This Letter Before Action is your final opportunity to settle the matter before I file at Court.
As I have already informed you in my letter of 27th July, at the time the default was registered (22nd May 2013) the unlawful charges added to the account exceeded the defaulted amount, even without interest being added.

There are at least four reasons for these charges being invalid:
1. They are penalties for breach of contract at common law because they exceed any actual costs and are profit generating.
2. They breach the Unfair Terms of Consumer Contract Regulations, which provide statutory protection for consumers from exploitation of this type with regulated credit agreements.
3. They breach the Office of Fair Trading’s 2006 findings that such charges are unfair penalties. As a result of that report, all banks were then instructed to recalibrate their default charges to represent actual costs. In practice, all banks lowered their charges to the Ł12 ‘threshold for action’ set by the OFT, but never recalibrated them to actual costs as they were clearly instructed to do.
4. They breached the (then) Financial Services Authority’s industry guidelines on treating customers fairly.

Whilst I appreciate that your organisation did not apply the charges or file the default, you have claimed to be the owner of this account and accept that you are now the data controller, responsible for registering credit information. By refusing to remove the default you now leave me no option but to take legal action for redress.

My targets to resolve this issue:
1. Removal of the unlawful default and any negative data recorded with all of the credit reference agencies.
2. Refund of the penalty charges applied to the account on the dates stated in the attached spreadsheet (Ł360).
3. Interest on all of the charges from the dates of application. This currently stands at Ł264.77 at the Barclaycard contemporary rate of contractual interest.

I now require settlement of my demands in full. If you do not comply fully within 14 days from receipt of this letter then I shall begin a claim against you for the removal of the default, the full amount of charges plus interest and my costs, without further notice.
Yours faithfully


Encl: spreadsheet showing charges and interest.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Just bumping this up to see if anyone has any comments on the LBA, because I want to get it off.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

The LBA went off (with just a few tweaks) and was signed for yesterday.
They still think I owe them Ł343 when in fact I'm suing them for Ł624. :ymca:

Do you think they'll respond to this or wait till the claim arrives?

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

I have just received their response to the LBA and its effectively a reiteration of all the comments in the last letter. :blah:

This is a final response and so I will be drafting the particulars of claim over the coming days. Will post up for comment. layball:

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Just looking at the claim details for this.

The argument for default removal is that the penalty charges added to the account before the date of default exceeded the amount of the default. I recall that that is grounds for removal, but that's from years ago. Can anyone advise on case law or legislation for this please, before I spend a long time searching?
Thanks
:confused2:

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

I have a POC ready to submit for this and I'm just waiting to see if there are any other comments as its been a quiet thread.

I was advised to hold this claim back until the outcome of Beavis and Butthead in the Supreme Court, but I don't see why.

I have a DCA on the rack here and plan to take them down for removal of an unlawful default, refund of penalty charges applied by the OC and contractual interest on these. There's a number of important issues here that I'd like to get on with.

Any thoughts, or shall I just get on with it?

[nemesis45]

Re: Kafka - v - MKDP (Barclaycard)

Just looking at the claim details for this.

The argument for default removal is that the penalty charges added to the account before the date of default exceeded the amount of the default. I recall that that is grounds for removal, but that's from years ago. Can anyone advise on case law or legislation for this please, before I spend a long time searching?
Thanks
:confused2:

The ICO Technical Guidance on Defaults says, " If a default sum is made up solely of charges without which (charges) the account would not have (been) defaulted no default should be placed"

Is this what you were thinking about?

nem

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Yes it is - thanks.
I've never had a default before that I could challenge because it consisted entirely of penalty charges, so I'm keen to pursue this one.

[nemesis45]

Re: Kafka - v - MKDP (Barclaycard)

Yes it is - thanks.
I've never had a default before that I could challenge because it consisted entirely of penalty charges, so I'm keen to pursue this one.

One has to understand ( and this has been stated by one company) that the ICO document is just guidance and we wont follow it) but MKDP's knowledge of Guidance/regulation and legislation always seems " patchy" to say the least.

It is most certainly applicable to a case such as yours, the is a thought in my mind on this document I cannot recall at present If it has retrospective effect.

I can probably find out for sure on Monday, so when exactly was the default recorded.

nem

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

DN sent 5 Nov 2012, but default not registered until 22 May 2013. Another fault with this.

The main issue is that the charges before the default were more than the amount of default. I've always known about this, but never had a claim where it applied.

[mystery1]

Re: Kafka - v - MKDP (Barclaycard)

Depending on the supreme court ruling in Makdessi/Beavis you may find the penalty argument easier/harder and in either case may have to amend your statement of case or indeed have hardly any case at all. Amendments are a pain and potentially costly.

With the process being so slow you'll never be finished before the result.

M1

[Mr $quandaŁot]

Re: Kafka - v - MKDP (Barclaycard)

Make sure you actually take legal action as otherwise those bastards will never learn!