Advice needed please. Egg/Barclays marlin dca.

[LANEY83]

Hi everyone. Newbie here and first I must say what a superb forum!
Ok, I had a debt from 2006 with egg which was then transferred to Barclays. I hadn't heard anything about this debt for years then out of know where a letter from marlin finance landed on my mat demanding money. I followed advice on this site and sent a cca request, also requesting a statement of account. I didn't hear anything for probably 2 months but they have now sent me a statement of account which just has what I owe on it and nothing else. It only dates back to the 5/2/13!? They also sent me a copy of the online application form, but it is only that a application form. There is no agreement, terms and conditions or anything. It has the look like its been cobbled together but I'm no expert. What should I do now? Is what they've sent me sufficient for what I requested? Thank you so much in advance for any advice.

regards

matt

[strong123]

Re: Advice needed please. Egg/Barclays marlin dca.

Hi everyone. Newbie here and first I must say what a superb forum!
Ok, I had a debt from 2006 with egg which was then transferred to Barclays. I hadn't heard anything about this debt for years then out of know where a letter from marlin finance landed on my mat demanding money. I followed advice on this site and sent a cca request, also requesting a statement of account. I didn't hear anything for probably 2 months but they have now sent me a statement of account which just has what I owe on it and nothing else. It only dates back to the 5/2/13!? They also sent me a copy of the online application form, but it is only that a application form. There is no agreement, terms and conditions or anything. It has the look like its been cobbled together but I'm no expert. What should I do now? Is what they've sent me sufficient for what I requested? Thank you so much in advance for any advice.

regards

matt

Hi and welcome,
I'm no expert, but I don't think so. There all amazing bunch on here that will be able to advise you better. I'm sure someone will be along soon

[labman]

Re: Advice needed please. Egg/Barclays marlin dca.

I would send them this:

[Address]

[Date]

Dear Sir,

Your Ref: abcd1234

On dd/mm/yyyy I wrote requesting that you supply me a true copy of the executed credit agreement for the above account. In response to this request I was supplied a document, a copy of which is attached, which did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974), primarily as you sent an application form, which for the avoidance of doubt does not comply with current CCA legislation. I would like a photocopy of the actual agreement. I appreciate and understand the provision of the recent Carey v HSBC case that stipulates a reconstituted agreement can be provided. It can, however I am disputing the actual existence of such an original which means the Carey case is irrelevant, as without one the account would still be deemed unenforceable.

Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a reconstitution could be submitted only to satisfy your s.78 request. If you do not have an original then a reconstitution cannot be produced.

In MBNA v McCullagh; the judge ruled:

"The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement". This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"

In light of the above, I do not think it is a lot to ask for you to simply go and fetch the original agreement, photocopy it and post it to me. The only reason that I can presume you would avoid such a simple process is if you never had a copy of the original agreement, in which case may I remind you that OFT Guidance clearly states that lenders would be acting unfairly, and potentially in breach of their consumer credit licences, if they misled borrowers by:
· hiding or disguising the fact that there was never a proper signed agreement in the first place
· providing only a copy of the current terms and conditions, not the original ones

Similarly, in line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated the following:

Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

· a copy of their agreement
· copies of some of the other documents mentioned in their agreement
· a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:
· make the debtor pay the debt before they're supposed to
· get a court judgment against the debtor

In order to be able to assess my position effectively, I require a "true copy" of the actual agreement that apparently exists, and I therefore ask you to comply with my request. I am willing to pay any reasonable charge that you feel is necessary, in order to provide a copy of the “actual” credit agreement.

In considering my request, I ask that you take a common sense approach and do not hold to the line that you have provided all that is expected of you nor the recent test case in Manchester, namely, and to be known as: Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009). I also require that you clarify your position on this point as failure to do so, even by omission or lack of a response, will be regarded as an attempt to deliberately misrepresent or conceal the legal position regarding this matter to which an appropriate complaint will be made to the OFT.

I make this request in good faith, and I feel it a ridiculous notion not to provide this document because you simply do not have to. I feel that would take advantage of your position and such an approach from your business would not be in the best interests of a healthy business/client relationship.

In light of the above, I consider this account to be unenforceable until such time you properly comply with my original s.78 request and send a photocopy of the original purported document, if it exists. If it does not, then you must confirm this to me in line with your licensing guidance, as detailed above.

For clarification, the document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974, plus you did send an application form. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).
This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced. As this account is clearly unenforceable, I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place; irrespective, unless you do supply a copy of the original agreement I will not correspond with you again and any threats will be averred and unlawful and vexatious with a counter-claim forthcoming.

Yours faithfully,

[IMG]file:///C:\Users\Home\AppData\Local\Temp\msohtmlclip1\01\c lip_image001.jpg[/IMG]

Print Name

In the bit at the end above Print Name I insert the attached to protect my signature.

[LANEY83]

Re: Advice needed please. Egg/Barclays marlin dca.

Thank you so much for the excellent reply. I shall follow your advice and hopefully get all this sorted once and for all! Thank you again, what a superb forum.

regards

matt