Kafka - v - MKDP (Barclaycard)

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Kafka
I didn't mean to offend but you did ask for input. You say that these are the POC that will be the start of the journey. I was always under the impression that the detail came later in witness statements.
No offence taken - I'm glad to have the comments.

If I may ask you a question, If I ask FP to send a letter for me and dictate the contents has it been sent from me or FP , I would think it's a spurious technicality especially when the law doesn't require me to send the letter just to make sure it is sent.
The issue of assignment is important here because both MKPD and BC are registering data and default. I accept that MKPD are classed as the owners otherwise I wouldn't be dealing with them, but if the debt was properly assigned BC never stopped treating it as if they still own it. This is a problem with fabricated NoA sent by debt collectors themselves. I once had a small debt in dispute with Scottish Power that I settled at discount with one DCA. I then had 3 DCAs all writing to me claiming it had been assigned to them (although it had been settled), when now the data registration was still only done by the OC that apparently never sold it. You simply can't trust DCAs when they claim to be the assignee, when you never had notification from the OC that it had been assigned formally. A court might accept that an account has been properly assigned with a cobbled NoA from a DCA, but its a very unsatisfactory situation when they lie about this so often.
In this case no formal notification was ever sent by BC, despite the claims of MKPD that that was done. I do not know whether BC still claim to own the account, I only know that they are still registering data as if they do,

I take your point about fold etc however to play devils advocate , without knowing the procedures of the printers i.e. do the codes refer to particular printers etc it is still an arguable point. They may have several lines running, one printing out MKDP, another B/C another RW etc etc. You may well be right but I still am not sure if it is not just smoke and mirrors .
I once helped someone with a claim from Cabot where they sent one of these fake NoA on headed paper, but the signature credit was for a different bank. Despite pointing this farcical issue out, they still insisted that the assignment process had been properly followed.

It is law that when a debt is sold they take on rights and responsibilities but..have you taken any legal advice as to who is to blame for the fees. It might be 2 separate claims.
See my reply to FP on this. I will look into reclaiming the fees from BC, but I don't think they are now the owners and they have sold on all rights and duties. If we accept that they are now the legal owners then why should they deal with this when it's no longer their responsibility? I don't know how they would react.

I am not sure I fully understand how they took money off you when you say the charges are £360 and the balance when you stopped paying was c £360
I stopped paying when the balance of the account consisted entirely of charges and wrote to tell them this, but they continued to apply charges.

The unlawful/illegal argument has always caused me problems. I know OTR they are or were always claiming that any bank charges were unlawful and should be claimed back but I never saw anyone do it . When were the charges applied as could the L.A. come into play on their part i.e 6 years from the cause of action i.e the last charge?
This is a regulated account so quite different from bank charges. They are unlawful and reclaimable for all of the reasons I have explained in the POC.
There is no Limitation issue here. All charges were applied with the last 6 years.

I truly wish you well, should you win and I hope you do then I would imagine that MKDP who have deep pockets will appeal and appeal . Unless of course you would settle out of court .
I don't know how a DCA would react to a claim like this. I did offer to settle just for default removal but they are adamant that they won't do that. The only reason I included the charges reclaim was because they were forcing me to take legal action. My guess if that they think I'm bluffing about filing at court and I don't know how they would react.

If it were me i would settle with a write off and removal of default

.....

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

The process of reporting defaults to CRA's is progressively changing with the ICO looking towards showing
a running report on the conduct of an account, in the past it was practice for the original creditor to remove the original
CRA entry and for the debt purchaser to replace it with their entry the default date remaining the same. Now it is reasonable for both entries to show the OC's entry being marked settled at the date the debt was purchased.
SO you have two records 1 settled one live. Not two live ones.

Even so the entity to challenge for removal of the defaults is the OC.

Why do you consider there is no debt? The NOS's are correct.
Your argument as the charges, am I right in thinking you challenge this on the ICO's guidance that " If a default sum is made up of charges without which the account would not have been defaulted, no default should be placed" the you need to check the date the guidance was issued as it is not retrospective. In any event your case is with Barclays not MKDP.

I asked for the basis for this issue of not defaulting purely on charges because I couldn't remember. This isn't something that only came in with the recent guidance though as I recall this was the case years ago. Unfortunately it never applied to me so I never needed to frame an argument.

[nemesis45]

Re: Kafka - v - MKDP (Barclaycard)

I asked for the basis for this issue of not defaulting purely on charges because I couldn't remember. This isn't something that only came in with the recent guidance though as I recall this was the case years ago. Unfortunately it never applied to me so I never needed to frame an argument.

I don't have the guidance where I am at present but I think it came in to force as recently a 2013 it had been published previously in draft proposals for amendments to DPA 1998 and was picked up by some as being current around 2012 I think.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

I don't have the guidance where I am at present but I think it came in to force as recently a 2013 it had been published previously in draft proposals for amendments to DPA 1998 and was picked up by some as being current around 2012 I think.

I'm going back with memory way before that to about 2008 or so. Although I never used the argument myself it was then accepted knowledge in the movement that a default could be challenged if it consisted of charges before the default date that amounted to more than the defaulted amount. I wish I could find something from back then but I haven't so far!

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Here is Nattie/leclerc on the subject in 2009 saying that they have to refund the default in this situation.

http://forums.moneysavingexpert.com/....php?t=1700063

[Berniethebolt]

Re: Kafka - v - MKDP (Barclaycard)

Just a quick question to clarify.
The default with BC shows as settled? The default with mkdp shows as active but with the same default date as BC. Yes or no?
As for the default charges are they for £12. If higher I take your point if not I have not heard of a reclaim through the courts. All creditors would fight that tooth and nail.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Just a quick question to clarify.
The default with BC shows as settled? The default with mkdp shows as active but with the same default date as BC. Yes or no?
As for the default charges are they for £12. If higher I take your point if not I have not heard of a reclaim through the courts. All creditors would fight that tooth and nail.

Yes, looking at it in detail the BC entry shows the same default details but marked as satisfied with 0 balance.
The charges were all £12 because they came long after the OFT's 2006 report. I have won charges from BC and others for these £12 charges, where they settled rather than go into court.

[FlamingParrot]

Re: Kafka - v - MKDP (Barclaycard)

Yes, looking at it in detail the BC entry shows the same default details but marked as satisfied with 0 balance.
The charges were all £12 because they came long after the OFT's 2006 report. I have won charges from BC and others for these £12 charges, where they settled rather than go into court.

That just means MKDP 'satisfied' it by buying the debt from Barclays so the entries should be OK. The main point is the original default date, which shouldn't be as long as six months after the DN was issued. :mmph:

[FlamingParrot]

Re: Kafka - v - MKDP (Barclaycard)

I'm going back with memory way before that to about 2008 or so. Although I never used the argument myself it was then accepted knowledge in the movement that a default could be challenged if it consisted of charges before the default date that amounted to more than the defaulted amount. I wish I could find something from back then but I haven't so far!

That's in the new principles but not sure whether it was in force at the time you defaulted:

A default should not be filed:

• If you make a payment, in time, that fully meets the terms set out in thedefault notice
• If jointly with the lender an agreement is reached for an arrangement and youkeep to the terms of that arrangement
• If the amount outstanding is solely made up of fees or charges

[MENTION=1508]Nibbler[/MENTION] may have a copy of the old version of that document. ray:

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

That's in the new principles but not sure whether it was in force at the time you defaulted:


[MENTION=1508]Nibbler[/MENTION] may have a copy of the old version of that document. ray:

See my comments in #34 and #35 about this. I've been looking for details of cases of this from some years ago when it was accepted practice that you could challenge defaults that were only based on charges. Clearly the principle is right, but I was looking for more solid evidence or examples to base a claim on.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Found this 2011 article at MSE based on the ICO's 2007 guidance, but on inspection it looks as if the old thread was updated for the 2014 revised guidance.

http://forums.moneysavingexpert.com/....php?t=3172602

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Here is the 2007 guidance, but it doesn't appear to mention charges.

http://webarchive.nationalarchives.g...3%20%20doc.pdf

[nemesis45]

Re: Kafka - v - MKDP (Barclaycard)

I'm going back with memory way before that to about 2008 or so. Although I never used the argument myself it was then accepted knowledge in the movement that a default could be challenged if it consisted of charges before the default date that amounted to more than the defaulted amount. I wish I could find something from back then but I haven't so far!

I'm home now and will find the hard copy a little later.

[FlamingParrot]

Re: Kafka - v - MKDP (Barclaycard)

Found this 2011 article at MSE based on the ICO's 2007 guidance, but on inspection it looks as if the old thread was updated for the 2014 revised guidance.

http://forums.moneysavingexpert.com/....php?t=3172602

If you look at the bottom of that post, you'll find:

Last edited by fermi; 04-07-2015 at 9:24 AM.

Like the CCA request template letters on here that have a post date of 2007 but you'll find the same strapline saying they were edited last year.

I still think [MENTION=1508]Nibbler[/MENTION] is your best bet. :thumb:

[Nibbler]

Re: Kafka - v - MKDP (Barclaycard)

I'm going back with memory way before that to about 2008 or so. Although I never used the argument myself it was then accepted knowledge in the movement that a default could be challenged if it consisted of charges before the default date that amounted to more than the defaulted amount. I wish I could find something from back then but I haven't so far!

I recall reading that. Not sure where though just this minute.