Debt legal advice - credit card agreement

avah1982

Hi all

Quick details - Barclaycard debt, £5000, live in Scotland

I had a Barclaycard which was opened in 2008. Due to illness and redundancy I defaulted on the account and it was subsequently sold to Link Financial.

I just want to note that I am not trying to get out of repayment my debt but I want to make sure I am being treated fairly regarding legal matters.

In June 2015, I received an Initial Writ from the local court for this debt. I filled in the income and expenditure, admitted the debt and offered a repayment amount. The offer was rejected by Link and a time to pay hearing was the next step.

I did not receive an invite to the time to pay hearing and a Decree was issued in my absence.

The first I knew about the Decree being granted was when I received a charge for payment in August 2015. The Decree had been granted with payment in full forthwith - no payment arrangement had been agreed by the court even though they were in receipt of my full income and expenditure details.

In addition, Link had been granted an Inhibition order on my house, even thought this was not mentioned in the initial writ. This means I cannot sell my house without the debt being repaid out of the equity. It also gives Link the ability to take further recovery action and I could be forced to sell my house to repay the debt.

When I received the charge for payment, I again offered a monthly repayment amount which would have the debt repaid in full plus interest and court charges within 24 months. I felt this was reasonable. I awaited a response from Link regarding my proposed payment but their solicitor went bust and I have had to wait till they appointed a new solicitor to take their place.

Yesterday, I finally received a response stating that they do not accept my offer of repayment and they enclosed another income and expenditure form asking me to confirm my current situation and propose a new, more agreeable repayment amount. They stated that if I do not respond within 7 days they will consider further recovery action.

I feel this is extremely unfair given I have offered to repay in full within 2 years. I am seriously worried about losing my house over a credit card debt, which I am willing to pay. I'm also terrified that they may try to enter my home and take my possessions to pay the debt.

My anger at the situation has led me to dig out the credit card terms and conditions which I requested as part of a CCA request. I have noted that the original terms and conditions, which I must have signed when I opened the account (although the copy they sent isn't signed) do not state that they could take legal action against me for non-payment of the debt. In addition there is no mention of them being able to secure the debt against my home.

Under the Missing Payments section it only states:

Missing payments could have serious consequences and make obtaining credit more difficult.

They also state under General Terms:

The terms of this agreement, and our dealings with you with a view to entering into this agreement, are governed by English law and subject to the exclusive jurisdiction of the English courts.

My questions therefore are:

1) Can they take legal action to recover a debt when the terms and conditions do not state that legal action can be taken? Can they secure a debt on my home when this is not mentioned as a possibility?

2) If an agreement is governed by English law how can the debt be recovered through the Scottish court system?

3) Given this information, do you think I have a case for getting the decree and inhibition removed? If so, how would I go about doing this?

As I’ve said, I do not want to run away from my debt but I do want to ensure they are taking the correct legal steps and that I’m not being disadvantaged by unlawful legal pressures. I feel that they are trying to make me pay more than I can afford and simply want to take my house.

Any advice would be welcomed.

thanks

sourcrates

Hi,

A creditor is able to take legal action after a certain amount of payments have been missed.
This is called the "cause of action date", that is the law of the land, despite what your agreement may or may not say, I think in Scotland it's referred to as "diligence".

As they have a decree registered against you, the creditor is now able to obtain a charging order straight away, without further refferal to the court, (recent law change), however, an order for sale is very rare, so I would not panic too much on that score.

They don't have to provide a signed agreement, a reconstituted copy is sufficient.

I don't think the creditor has done too much wrong, bit obstinate for not accepting your payment offer yes, but I would just stick to my guns and offer what you can afford.