Marlin trying to use the Rankine case- I think

[pookeymonkey]

Hi,

I recieved this from Marlin on Friday in response to me sending them a letter informing them the account was in dispute with HFC and should not have been passed to them.

 

http://i237.photobucket.com/albums/ff266/pookeymonkey/marlinhfcletter1.jpg

 

http://i237.photobucket.com/albums/ff266/pookeymonkey/marlinhfcletter2.jpg

 

I presume the High Court case they refer to is the Rankine case. One thing I cant work out is does the Rankine judgement refer to CCA requests before or after an account is terminated? Surely if a request is sent before termination the obligation to supply a copy of the agreement stands, otherwise a creditor simply has to terminate an agreement to relieve themselves of any obligation. My credit agreement was certainly not terminated in March 2007 as they state,as I was still recieving statements and 3 default notices (threatening to terminate the account) well after this date and even after my CCA request in September 2007.

 

Furthermore, as the credit agreement contains the data protection statement that allows the processing of my data. So even if they dont have to produce a copy of the credit agreement, without it, am I right in thinking, they can not process my data?

 

I just wanted to check before I reply to them, or do you think it would be better to go straight to the FOS now.

 

I would also be grateful of any advice as to wether this letter breaches the CPUT regs, as I believe it is an attempt to pressurise or coerce me into paying.

 

Many thanks,

 

Pookey

[pookeymonkey]

PS.

Has anyone heard of or dealt with Potomac Recoveries, as I cant find anything about them and unfortunately the Companies House website is down this weekend?

 

Pookey

[banker_rhymes_with]

Hello Pookeymonkey!

 

Perhaps it may be worth sending HFC a S.A.R - (Subject Access Request) along with the £10 Statutory Fee to see what that turns up, i.e. an Agreement and details of how HFC Assigned the Debt to Marlin.

 

I'd probably also send Marlin their very own CCA Request and £1 Postal Order, as the alleged Account sounds like is was and is in Dispute with HFC, so for Marlin to try to Enforce, they must have that Agreement. It must be the Original too, properly executed, and not some crabby copy.

 

No Original Agreement = No Enforceable Debt.

 

Failure to respond to that Statutory Request lands them straight into hot water with the 2008 CPUT Regulations if they continue to make Demands for Payment after the 12+2 Working Days.

 

Who knows what "Recent High Court Judgement" they are referring to! It sounds like the Rankine Judgement but, they didn't say, did they!

 

It's not your job to read their minds. They could be making it up and wholly unaware of Rankine, not that Rankine bad law Judgement changes the core issues anyway.

 

I'd just play this by the book, stick to your guns that the alleged Account is firmly in Dispute with HFC, and just for good measure, send Marlin a CCA Request anyway, to make sure they are forced into a corner by the 2008 CPUT Regulations.

 

And don't forget to keep it all in Writing, and Log/Record any Telephone Calls these people do make.

 

I hope this helps.

 

Cheers,

BRW

[pt2537]

i would write to them and ask them to clarify the case they are refering to

 

ask for case name or citation so that you can search and obtain a copy of the judgment so that you can see the law they are quoting as their comments are particularly vague

 

thats what i would do, see what they have to say for themselves

 

i mean a "High Court Case" could mean anything, which High Court for starters, the Ugandan one or the Australian one or maybe they mean the Royal Courts of Justice in the Strand or maybe Birmingham High Court. you see the issues;)

[PriorityOne]

There's actually no need to send another CCA... as the account's still in dispute from the first one and Marlin have kindly acknowledged that they don't have it.

 

This just sounds like a very poor attempt to get round the issue and needs a good letter back (by rec. delivery)... drawing their attention to CCA, 1974 sec 127 (3)... and how without a signed CCA that includes all the prescribed terms, a judge would be prevented from re-enforcing a document that (by their own admission) they're unable to provide to the court. As such, any legal action they may be contemplating will be vigorously defended, but also treated as both unlawful and vexatious and reported to the relevant authorities without further notice.

 

If they're talking about legal action, then HFC must have sold this one to them when they were unable to comply themselves.... so it looks like they're just trying it on with you.

 

[banker_rhymes_with]

I do agree the CCA to Marlin should not be required in this case. But, given the 2008 CPUT Regulations, I find it helps to put DCAs firmly on their back foot if they get their very own CCA from the moment they pop up to have a toot.

 

For me, at least, that's £1 well spent. If nothing else, it helps to concentrate their minds and can stop a lot of DCA ping pong via Letter.

 

In my case, two DCAs, so far, have handed alleged Debts straight back to the OC on being handed their own CCA Request. Neither wanted to press the point after that.

 

But, fully agreed, there are several ways to tackle this, as outlined above.

 

Cheers,

BRW

[pookeymonkey]

Hi,

thanks for all the quick replies.

 

I have put together a letter for Marlin and would welcome any advice as to any changes.

 

http://i237.photobucket.com/albums/ff266/pookeymonkey/replytomarlin1.jpg

 

http://i237.photobucket.com/albums/ff266/pookeymonkey/replytomarlin2.jpg

 

I have also copied the response from HFC to my original CCA request.

 

http://i237.photobucket.com/albums/ff266/pookeymonkey/HFCCCAreply.jpg

 

My feeling is as my original request was acknowledged and is still in default I do not need to send a new request.

 

I have had dealings with Marlin before and am well aware of their underhand tactics. Last time they produced an illegible application form with almost no prescribed terms and tried to take me to court. This was discontinued due to an 'error' on their court papers.

 

Many thanks

 

Pookey

[banker_rhymes_with]

Hello Pookey!

 

Letter looks very good. But others may comment.

 

My feeling is as my original request was acknowledged and is still in default I do not need to send a new request.

 

I can understand that and do agree. My own feeling is by hitting them with a CCA Request, after 12+2 Days if they fail to come up with the errant Agreement, then they have to back off.

 

If they ask you for Payment after that, then 2008 CPUT kicks in, and you have a very clear complaint against them. Take the fight back to them as it were.

 

Sorry to labour the point. It's a Belt and Braces suggestion in effect, rather than something that you must do.

 

Cheers,

BRW

[PriorityOne]

That's just a standard letter from HFC... no worries.

 

There are a few changes I would like to make to your letter though... back in a bit.

[PriorityOne]

Sorry.... I can't copy/paste from Photobucket. Never mind. You need to change the para on the 2nd page about when it was received by HFC. A CCA is a valid legal request and it makes no difference when it's received. Don't give then any room to manouvre on this at all.... not that they can anyway really.

 

You also need to state precisely when the CCA request was sent/received by HFC.... so that they know that you know what you're talking about.

 

I would also remove the part that says you're pleased they can't find it. I know that you are... and they probably know it too.... but you don't have to tell them quite like that... lol.

 

[banker_rhymes_with]

I would also remove the part that says you're pleased they can't find it. I know that you are... and they probably know it too.... but you don't have to tell them quite like that... lol.

 

Yes, probably better not to use pleased.

 

Better to say you are:

 

...absolutely delighted and wish to thank them muchly for making your Christmas come early!

 

 

Cheers,

BRW

[PriorityOne]

LMAO !! :grin:

[Lula]

bad asses lol !

[pookeymonkey]

Hi,

 

thanks so much for your help and advice, the letter to Marlin has been ammended and is off to Worthing this morning.

 

I look forward to their reply!!!

 

Thanks again,

 

Pookey

[citizenB]

Hi,

 

thanks so much for your help and advice, the letter to Marlin has been ammended and is off to Worthing this morning.

 

I look forward to their reply!!!

 

Thanks again,

 

Pookey

 

Oh yes, so do we :D

[tendogs]

Subbing

[B3rty]

Typical Marlin...I expect their paralegal has a very limited knowledge and is using this because its doing the rounds...

 

Great thread here and davefirewalker has pointed out errors in the judgements where the judge quoted the wrong parts of the Act..which should unpick their argument and get you back on track for a 127(3) legal argument using Wilson and Hurstanger

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/147432-high-court-judgement-rankines.html

 

[quoteHi everyone...

 

just had some posts on my thread which I thought would be more appropriate here so with the posters permission I have cut and pasted

 

Credit to Macie for what looks like a well thought out comment on this case

 

I think there may be some purposeful misinterpretation of the Rankine judgment. ( text version here - News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited ).

 

At para 28 it states in relation to "Issue 5 True Copies

 

A credit card issuer is required to provide three copies of agreement to a borrower. The first copy (which is set out as an application form) is signed by the borrower and sent to the lender. The borrower is given, with this application copy, a copy to keep (in accordance with the requirements of section 62 of the Act. This is the requirement to provide a copy of the unexecuted agreement (unexecuted because at that stage it has not been accepted or signed by the lender). When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy. The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures."

 

 

I think the application copy, the unexecuted copy and the executed copy must all contain the "prescribed terms" and the same text, but, that the layout of the three types of copy can be different

 

Nothing in the Rankine judgment says that the text can be substantially different between the three types of copies. This is the only way that Judge Brown's judgment can be reconciled with Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299.

 

The word "copies" suggests that the three copy documents have to be, at least textually, the same.

 

So if the prescribed terms are not in the "application copy" they cannot be, by definition, be in the subsequent "unexecuted copy" or "executed copy" if the three are indeed to be considered "copies".

 

If the text contained in the "executed", "card carrier", which is unsigned, doesn't textually match the "application copy" then the one is not a copy of the other.

 

This is not the way the banks have interpreted these paragraphs and I think the banks are purposefully misleading their opponents in this regard.

 

At para 28 of the Rankine judgment the judge states "When the agreement is executed a credit card is sent out, and usually this is attached to the “card carrier” copy of the agreement. This copy has to be sent to the borrower by virtue of section 63(4) of the Act and this is the executed copy. The requirement for such documents to be “true copies” is set out in regulation 3(1) of the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983. Regulation 3(2) provides that the lender can omit from this document any signature and/or signature box, so although the card carrier is the executed copy, it does not have to (and invariably will not) bear the parties signatures."

 

Well it appears that this paragraph of the judgment is just plain wrong!

 

It seems that Judge Brown may have been a bit confused. "The Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983" doesn't have a section 3(1) or 3(2). The judge may have meant "the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983" which does have a regulation 3(1) and 3(2).

 

I would guess, precision is everything if para 28 is to be used as any kind of precedent in other cases.

 

This also goes to show how complex the legislation is, even for a professional.

 

If your lender sites the Rankine judgment in relation to "true copies" I am fairly sure that it is easy to show the judgment is wrong simply based upon the legislation.

 

Moving on in the Rankine judgment

 

Issue 9 Declaration of Un enforceability.......In the Tesco case, the Court has the residual discretionary power under Section 127 of the CCA to order enforcement notwithstanding any technical breaches of the Act or Regulations. For the reasons above, the Court does not consider it necessary to invoke these powers but for the avoidance of any doubt it would have no hesitation in doing so if required in this case. The benefits have all been to the advantage of the Rankines, their personal lives and even their business interests and there is no prejudice to them apart from those entirely brought upon themselves by their deliberate actions.

 

This may not mean what some people think it means. A "technical breach" is a minor breach on a technicality not a fundamental breach like missing prescribed terms.

 

TECHNICAL BREACH = An immaterial breach of contract is a trivial breach of contract and does not invalidate the contract. For example, assume a service contract for pest control provides that the service is to be performed on the first Thursday of each month. Contrary to the contract, the service person arrives on a Wednesday. This act is a technical breach of the contract but it is immaterial, unless for some reason the service needed to be done on Thursday as opposed to any other day.

 

The use of "technical breach" is used in this House of Lords judgment

Alfred McAlpine Construction Limited v. Panatown Limited [2000] UKHL 43; [2000] 4 All ER 97; [2000] 3 WLR 946 (27th July, 2000)

 

]

[smt37]

Marlins letter is simply a joke and is technically incorrect.

 

The simple fact is that as you believe that the original creditor has lost/mislaid/never had any agreement with your signature on, the debt is in dispute - and you have told them this. They are confused - not difficult with the particularly small size of their brains.

 

Whether or not they supply a copy now is irrelevant. To enforce the debt, they must provide a signed copy in court. You must report them to the FOS, OFT and your local TS, and if you're confident enough, invite them to apply for a court order.

 

When exactly was the account formally terminated? This should have been stated in the Default Notice that was presumably served correctly upon you...

[sillygirl1]

i mean a "High Court Case" could mean anything, which High Court for starters, the Ugandan one or the Australian one or maybe they mean the Royal Courts of Justice in the Strand or maybe Birmingham High Court. you see the issues;)

 

I go past the Royal Courts of Justice a couple of times a week on the bus, very impressive place, if anyone needs any paperwork from there I might be able to collect it for them...

 

As has been stated 'a High Court Case' quoted on its own is about as much use as stating 'Data Protection Act' without really going into any further detail.