Thread: RoyalNelly v Barclycard

Hi RoyalNelly,

Welcome to the Barclaycard Forum - we don't often see royalty here so are duly honoured.

I'll ask for an opinion from the Site Team as I'm not sure about the 3rd document you've posted.

Someone will be along to advise on this but please be patient.

Roughly what do you owe BC in total and have you worked out how much you could reclaim in unlawful penalty chgs.

In what year did you apply for the account.

Slick

Well if that's what they think passes for a signed executed credit argeement now they are seriously mistaken.
ZERO prescribed terms and what there is is laughable in the extreme.

The attached T&C are completely meaningless as they could apply to anything.
So over all, would make a good plain, but that's it.

As this was applied for in 93 then there's a clear case for SI1983/1553 whereby the prescribed terms MUST be contained within the signature document and NOT as a seperate sheet titled T&C, or similar.

This get's a bit heavy on the legal front, but here it is.

Oh deary me.
B'card strike out again and here's why:

This is taken from another thread;

Originally Posted by Curlyben

Under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a seperate sheet headed T&C or similar ISN'T acceptable.

SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6)

This applies to all agreements pre May 2005.
So basically this is unenforceable, under 127(3).

Just to add to my comments re terms witin signature doc.
This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated
consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting
the provisions of the two schedules the Judge said

33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the
agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and
backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be
orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.
As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and
the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which
are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the
minimum terms) are to be found in Schedule 1.

As the CCA is unenforceable you CANNOT pursue charges on the account as this would be seen as unjust enrichment.

Now if they continue to demand payment after the 12+month expires a report to Trading Standards would be in order.

Hi RNelly,

You now have 2 choices as the debt is unenforceable in law, based on the documents provided so far:-

1) Continue to pay off the debt without them adding further interest or charges, but at a rate which suits you. You can also reclaim penalty chgs on the a/c to reduce the debt.

2) Demand that they reduce the balance to zero and close the matter.

If any defaults have been made against you in respect of this a/c, you can apply to have them removed from your Credit Records.

And, if they make any further demands of you about this a/c without producing the PROPER Credit Agreement, you can report them to Trading Standards and the fos.

Let us know how you want to proceed and we can help with the nec'y letters.

Hi Nelly,

As they've responded to your SAR, can you now confirm roughly the total owing on your card and the amount of unlawful chgs included in that total.

You can write to Mercers now to confirm that, as BC have failed to produce the nec'y doc'ts in response to your CCA request, the a/c is In Dispute.

I'll come back with a suitable letter to send to Mercers and copy to BC.

Hi Nelly,

Use this letter, carefully adapted to suit your case - eg where it says, "these limit have expaired", change to, "Your time to comply full expires on xxth May."

Send the original to BC by Rec'd Del'y and copy to Mercers.

Account In Dispute

Ref:

Dear Sir/Madam

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

On **DATE** a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

If that request is not satisfied after a further 30 calendar days you commit a summary criminal offence.

These limits have expired.

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

And

(b) If the default continues for one month he commits an offence.

Therefore this account has become unenforceable at law.

You have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

It is not sufficient to simply state that you have a ‘legal right’. You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

Should you not respond within 14 days I expect that this means you agree to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY
Action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.


I reserve the right to report your actions to any such regulatory authorities as I see fit.
You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

Despite my letter regarding ANY communication from your company, which stated that I require ALL communications in writing, your telephone calls continue.

This behaviour constitutes harassment; the letters stated quite clearly to you that I require ALL communications in writing for future use. Do not telephone me again - remove any telephone numbers you hold for me from your systems.

Your telephone calls are in breach of the Office of Fair Trading guidelines. If you continue with them after the receipt of this letter an official complaint, together with a log recording the times and frequency of the calls will be passed both to that office and to the Trading Standards office. For your information note that ALL telephone calls are taped.

This type of debt collection method is contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient. Your methods will not be tolerated. A formal complaint, containing copies of all correspondence including yours, has now been submitted to the relevant authorities. This will be relevant to questions of your fitness to hold a licence under the Consumer Credit Act, whether or not it results in a prosecution.

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

HOWEVER, CALLS WILL TRIGGER COMPLAINTS TO THE REGULATORY BODIES.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully
BLAH

If you're willing and able to honour the debt, you should follow the reclaim process listing all the chgs and claim CI. Send BC a Prelim ltr, then lba 14 days later.

Once the reclaim has been quantified and agreed, you can offer to repay the balance without further interest or chgs be added.

Keep us informed.

Hi Nelly,

You should now make complaints to the fos and Trading Standards (Northampton or your local office), on the basis that they are continuing to harass when you have clearly pointed out to them why their response to your CCA request leaves the debt legally unenforceable.

Have you put your charges reclaim on a formal footing yet, i.e. sent off Prelim or lba letters.

How you respond to BC/Mercers is up to you. If this is troubling you badly, you can continue to send them letters (which they'll continue to ignore). If you're not that bothered, let them carry on blowing hot air until you have the reclaim sorted.

The default can be dealt with when hammering out a final deal with them.