default notice by agent of Barclaycard

[bonklebrain]

Hi Everyone,
This is my first post. I've got a hearing tomorrow as MKDP are taking me to court over an alleged debt assigned from Barclaycard. In their witness statement they have included a copy of the default notice and it's from Mercers who say at the start of the letter "we act as agents from Barclays bank PLC trading as Barclaycard"
My question is can this be classed as legitimate if it comes from an agent instead of Barclaycard themselves. On MKDP'S witness statement they say that the default notice was sent by the original lender. I know it's short notice to ask this question but It's only just occurred to me. I've looked at s87 of the CCA 1974 but it dosen't seem clear on this.

Regards, Bonklebrain.

[Wombats]

Re: default notice by agent of Barclaycard

My understanding (which may well be wrong) is that the original creditor issues the DN, and only the original creditor.

Default Notices
Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears.

Nowhere I can see does it refer to an agent issuing a DN.

[bonklebrain]

Re: default notice by agent of Barclaycard

Thanks for that Wombats,

Are Mercers and Barclaycard just the same company? Or does "agent" have a legal definition that allows them to do this? I want to raise this at the hearing but am afraid the other side may shoot it down straight away.

Regards, Bonklebrain.

[FlamingParrot]

Re: default notice by agent of Barclaycard

Hi Everyone,
This is my first post. I've got a hearing tomorrow as MKDP are taking me to court over an alleged debt assigned from Barclaycard. In their witness statement they have included a copy of the default notice and it's from Mercers who say at the start of the letter "we act as agents from Barclays bank PLC trading as Barclaycard"
My question is can this be classed as legitimate if it comes from an agent instead of Barclaycard themselves. On MKDP'S witness statement they say that the default notice was sent by the original lender. I know it's short notice to ask this question but It's only just occurred to me. I've looked at s87 of the CCA 1974 but it dosen't seem clear on this.

My understanding (which may well be wrong) is that the original creditor issues the DN, and only the original creditor.

Default Notices
Section 87(1) of the 1974 Act allows the creditor to send you a default notice giving you fourteen days from the date you receive it to pay the arrears.

Nowhere I can see does it refer to an agent issuing a DN.

Your understanding is correct, since the creditor wouldn't have assigned the debt until they had defaulted you. Having said that, Mercers are part of Barclays, they are not external agents.

[FlamingParrot]

Re: default notice by agent of Barclaycard

Are Mercers and Barclaycard just the same company? Or does "agent" have a legal definition that allows them to do this? I want to raise this at the hearing but am afraid the other side may shoot it down straight away.

Mercers are a dormant, non-trading company. That information is available on the Companies House website so I guess you could argue the point that the DN you were supplied with wasn't issued by Barclays themselves, after all you're not meant to have read all these sites where Mercers and Barcraps are discussed.

Is there anything else of significance, such as the date on that DN not corresponding to when you'd missed a few payments? How much time does it give you to get up to date with payments and is it asking just for the arrears at that point?

[Wombats]

Re: default notice by agent of Barclaycard

A couple of reads:

http://www.telegraph.co.uk/finance/p...t-letters.html

especially this:

"A Barclaycard spokesman confirmed Mercers Debt Collections Limited had previously managed some collections work on behalf of Barclaycard. He said all debt collections are now carried out under the Barclaycard name, following a decision taken in April.
The spokesman said of Mercers Debt Collections: "It was made clear to customers that they were a company within the Barclays Group and collecting on our behalf.
"Mercers Debt Collections Limited was set up to manage more serious arrears and is in the process of being wound down. The employees have transferred to handling these accounts under the Barclaycard name instead." "


and this:

http://www.consumeractiongroup.co.uk...efault-Notices

[bonklebrain]

Re: default notice by agent of Barclaycard

Hi Everyone,

Thanks to you all for the advice you posted for me last night/this morning. I really appreciate it Guys. Unfortunately I lost the hearing. When I tried to present the challenge to the DN the judge ruled that I couldn't as I had not raised this in my defence or witness statement. So despite the fact that the document didn't comply with CCR 1983 schedule 2 reg 2 (2) 1 in that "the name and postal address of the CREDITOR or OWNER. should appear on the DN I couldn't use it.

I'm getting my head round this at the mo, so that's all for now.

Regards, Bonklebrain.

[Wombats]

Re: default notice by agent of Barclaycard

Hey, well done for giving it your best shot. It takes a lot of guts to go in and fight your corner as you did, I'm not sure I could do it.

Is there any chance of appeal or set aside? I'm not good on court things so wouldn't know. If you do get another chance, get on here early on and people will help you build the best case you can. :beagle:

[FlamingParrot]

Re: default notice by agent of Barclaycard

Hey, well done for giving it your best shot. It takes a lot of guts to go in and fight your corner as you did, I'm not sure I could do it.

Is there any chance of appeal or set aside? I'm not good on court things so wouldn't know. If you do get another chance, get on here early on and people will help you build the best case you can. :beagle:

Set aside wouldn't apply here since the OP was present at the hearing, it wasn't a default judgment made in his absence.

It may be possible to appeal but the OP would have to show the judge made a mistake on a point of law. Without further information, it's hard to tell whether there would be grounds for appeal. IMHO the technicality with regards to the name on DN was probably not enough to win the case in itself, there have been cases won on the basis of a defective DN but the ones I know have referred to either not giving enough time to remedy the breach or demanding the wrong amount on the DN.

It would be very interesting to see if there are any cases won on the basis of issues such as those raised here.

[skilganon]

Re: default notice by agent of Barclaycard

Hi FP and Wombats,

i know the OP, and spoke to them 2 days before the hearing, i also spoke to them the night after the hearing ( both times on the telephone )

i do know quite a bit about this case, although i am no expert, i do feel there has been a major injustice here and that the judge was biased in favour of the claimant.

The agreement provided was a copy of a 1997 application form, when the claimant issued the claim no documents had been provided, no documents had been provided when the defendant submitted their defence. ( i do not know the contents of the defence )

what i do know is that the defendant submitted his WS on time, however the claimant filed theirs 8 days late! and clearly read, digested and replied to the defendants WS.

the judge chose to ignore this!

the defendant had good arguments for the hearing and a witness statement with documents to back this up.

the judge refused to allow him the use of his WS, or his documents because he hadnt mentioned these things in his defence!

the defendant argued that he did not have any documents to refer to when the defence was submitted,

the judge ignored this.

the judge did uphold that they had not followed pre action protocol, but chose to ignore it!

the faulty notice of assignment was dismissed by the judge stating " assignment is a trivial issue" !!!

he also stated their was no law to produce the deed of assignment, the defendant argued his case quoting lord denning,

the judge said that it was not law and only his opinion !!!! ( i wish lord denning were still alive to comment on that one !!!! )

there is more but i dont want to make this post too long

i will end with the most worrying part of all, :

the defendant put up a very good fight, quoting points of law and the CCA act, the judge ignored them all, the defendant continued to point out the law again ignored the most worrying part came at the end when the judge stated

I dont have to hold the claimant to strict proof in small claims track hearings, that level of evidence is not required, i will make a judgement on the balance of probability!!!!!!

with judges like this on the circuit it is no wonder DCA's lie, decieve, produce fake documents and make false claims when they dont even have to produce lawful, legible documents.

:mad2::mad2::mad2::mad2::mad2::mad2:

rant over,

would really appreciate input from you guys on this one