Kafka - v - MKDP (Barclaycard)

[nemesis45]

Re: Kafka - v - MKDP (Barclaycard)

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

The updated guidance was issued Jan 2014, the proposals were published 2011/2012 the section regarding default sums made up solely of charges without which an account would not have default came into use in 2014.
Prior to the 2014 guidance there were more ways to challenge defaults as being unfair.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Just for information, I also checked the dates regarding the default process.

12 July 2012 - Last payment made
30 July 2012 - I wrote to explain that I would not be making any more payments when I realised that the remaining balance consisted entirely of charges
5 Nov 2012 - DN issued
5 March 2013 - last charges applied
22 May 2013 - Default registered

The relationship terminated in July 2012, but they did not issue a DN for another 3-4 months. The default wasn't registered until a little over 6 months after the DN.

[Berniethebolt]

Re: Kafka - v - MKDP (Barclaycard)

I'll be honest , this is the first time I have heard of someone sucessfully reclaiming the £12 default charges and I might be interested in finding out how to do it . I'm happy to start a new thread

- - - Updated - - -

Just for information, I also checked the dates regarding the default process.

12 July 2012 - Last payment made
30 July 2012 - I wrote to explain that I would not be making any more payments when I realised that the remaining balance consisted entirely of charges
5 Nov 2012 - DN issued
5 March 2013 - last charges applied
22 May 2013 - Default registered

The relationship terminated in July 2012, but they did not issue a DN for another 3-4 months. The default wasn't registered until a little over 6 months after the DN.

When you say the relationship terminated what do you mean?
I know its slightly different but in BMW v Hart the both sides had to agree before it was valid

[nemesis45]

Re: Kafka - v - MKDP (Barclaycard)

Just for information, I also checked the dates regarding the default process.

12 July 2012 - Last payment made
30 July 2012 - I wrote to explain that I would not be making any more payments when I realised that the remaining balance consisted entirely of charges
5 Nov 2012 - DN issued
5 March 2013 - last charges applied
22 May 2013 - Default registered

The relationship terminated in July 2012, but they did not issue a DN for another 3-4 months. The default wasn't registered until a little over 6 months after the DN.

It must be remembered that the placing / registering a default is governed by the creditor in house practices and the ICO's statements are just guidance as many creditors have stated in the past and no doubt still do.
Personally I don't think there is much mileage in pursuing the point.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

An update on this today.

I've also been pursuing Barclaycard and they have acknowledged but have yet to respond.

Now I have received a 'Notice of Assignment' from Hoist Portfolio/Robinson Way, claiming that the account was assigned to them by MKDP on 21 September. It seems that MKDP have thrown in the towel and sold it on as a turkey, just as Barclaycard did to them.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

As in the post above, MKDP have just left the building under threat of legal action, but I have also been pursuing Barclaycard, who registered the default and still notify that on the credit file.

Today I received a long and polite letter from Barclaycard that I will summarise.

1) They apologised for the delay and for keeping sending letters to a previous address that is now a void property. As an apology, they sent a £100 cheque split across those two failings. RESULT tortghost

2) As a gesture of goodwill they have also refunded 17 x £12 for overlimit fees, although there are only 14 of those and the rest are for late payment. They also say they have arranged for MKDP to alter the balance, although MKDP are no longer the owner. This still leaves about £180 of charges applied to the account.

3) They say that the default "is correct", even though it consists entirely of charges added before the default date. They acknowledge that I did notify them that I would be making no more payments when the balance consisted only of charges, but disregard that for their processes.

4) Quote:
"I note your comment about receiving a Default Notice letter from Mercers Debt Collection Limited (Mercers). Mercers were a non-trading company within the barclaycard group. Until July 2014 the Mercers brand was used to issue Default Notices and to collect debts on behalf of Barclaycard. The Default Notice was sent correctly and it isn't until a Formal Demand letter is sent, that we register a Default on your credit file."

I would be grateful for any comments on this, particularly the last item.

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Just an update on this.

Robinson Way have now been chasing this on behalf of HPH2 Ltd, even though it had supposedly been assigned earlier to MKDP. I told them to sod off and they write occasionally saying they are still looking in to it.

I recently filed a LBA on Barclaycard, for the removal of the default and negative data, plus informing whoever owns it to remove it also. Today I received mail from TLT Solicitors of Bristal, asking for a further 28 days, which I have agreed,

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

I served an LBA on Barclaycard for default removal and just as the time was up I was contacted by a solicitor acting for them requesting more time. I agreed to this and they have recently asked for a few more days so they can provide a "substantive response". i get the feeling they won't remove the default and will twaddle on again, but we must see.

[charitynjw]

Re: Kafka - v - MKDP (Barclaycard)

I served an LBA on Barclaycard for default removal and just as the time was up I was contacted by a solicitor acting for them requesting more time. I agreed to this and they have recently asked for a few more days so they can provide a "substantive response". i get the feeling they won't remove the default and will twaddle on again, but we must see.

H Kafka

Your LBA - what 'authorities' do you point to to force the removal? See........

http://www.legislation.gov.uk/ukpga/1998/29/section/10

https://consumercreditlitigationandd...-for-the-case/

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Thank you for this.
I am aware of the Grace case and the long deliberations here before that ruling.

In this case it has been going on for about 3 years and in fact I did issue an LBA some time ago that I did not follow through owing to other issues. This is not a case of enforceability. It rests on the fact that I stopped paying anything when I realised that the outstending balance was entirly made up of penalty charges, and I wrote to inform them that all payments would end. They carried on regardless and added more charges, eventually registering the default a year or so after they should have.

I had reclaimed charges some years earlier too and pointed this out. When I complained last year they actually refunded all of the one set of charges - without explanation - and gave me £50 for the delays in responding, but adamantly refused to remove the default. For this reason I hit with the legality of the charges and the fact that the whole amount is entirely charges, in contravention to the ICO's guidelines. I have no idea what the "substantive response" is that their solicitor has been working on for nearly 2 months!

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Hello shipmates

The solicitors have now sent a very long and detailed response to my LBA.
Basically its all the usual denial and how the charges are legit and its all my fault, so they were right to default the account. They have refused to remove the default and the arrears markers and to zero the balance. They have used the usual threats of the problems of taking this to court and suggested possible costs against me. No surprises there then, but they have gone to extraordinary lengths on this one, presumably to avoid a precedent for removing a default. They have also "invited" me to write confirming that I won't be proceeding.

1) The key point of my claim is that at the time the default was registered, the entire balance was made up of charges. They denied they had breached the DPA but ignored that fact without comment, so its clearly one they have no answer to.

2) They accept that Mercers is a "wholly-owned subsidiary" of Barclaycard, and insist that that gives them the right to issue Default Notices on behalf of BC.

3) They ignored the fact that I wrote to them pointing out that I wrote long before the default stating that as all the outstanding amount was charges I wouldn't be making any more payments.

4) They denied circulating my data to "a host of different organisations" even though there have been 6 (I think) DCAs involved over the years. They still refer to it having been assigned to MKDP - who also reported it to the CRAs - and don't seem to be aware that MKDP re-assigned it some months ago when I started threatening them with legal action. I think its Hoist Portfolio now and Robinson Way are writing to me.

5) I will have to go through the file now to check all this, but some years ago they did refund charges without a fight and I can refer to that as well.

I don't think I ever sent an SAR, so will look at whether that might help, or even piss them off a bit more.

[nemesis45]

Re: Kafka - v - MKDP (Barclaycard)

Barclays has already admitted Mercers " DN's!" are not valid.

The ICO guidance states that if a default balance is made up entirely of charges without which ( charges) the account would not have been defaulted No Default Should Be Placed.

nem

[Kafka]

Re: Kafka - v - MKDP (Barclaycard)

Do you have a link for the former point please? I recall the issue but don't have details.

The second point is the key one in this whole case and I quoted the ICO's clear guidance on this in the LBA. Their only reference to the DPA was with regard to my complaint about circulating data, so clearly they don't have an answer to that central point.

[nemesis45]

Re: Kafka - v - MKDP (Barclaycard)

Do you have a link for the former point please? I recall the issue but don't have details.

The second point is the key one in this whole case and I quoted the ICO's clear guidance on this in the LBA. Their only reference to the DPA was with regard to my complaint about circulating data, so clearly they don't have an answer to that central point.

It was on LB last year I'll try to find it for you.

nem

[charitynjw]

Re: Kafka - v - MKDP (Barclaycard)

It was on LB last year I'll try to find it for you.

nem

Do you have a link for the former point please? I recall the issue but don't have details.

The second point is the key one in this whole case and I quoted the ICO's clear guidance on this in the LBA. Their only reference to the DPA was with regard to my complaint about circulating data, so clearly they don't have an answer to that central point.

Hi nem & Kafka

Only the creditor/owner can issue a CCA-compliant default.

http://www.johnpughschambers.co.uk/C...ons%201983.pdf