Thread: My Mum Vs. Monument/ Barclaycard - Blank envelope in response to CCA request

Hi MKM,

Don't waste any time arguing with BC about whether they've fulfilled their obligations by sending you (or NOT sending you) their T&C's.

They won't agree the a/c is in dispute or that it's unenforceable. Watch SMT's thread to see how BC respond to the court's order to produce the crdit agreement.

In the meantime, send off the first CPR letter - it'll cost you nowt !!

Originally Posted by meerkatsmimm

Should I still ask them to consider writing off the debt as well?

Personally, I wouldn't bother as they've no reason to write it off and I wouldn't want to give them the satisfaction of saying "NO".

Have you tried having CCCS or CAB write to them asking for them to accept token payments.

Or, see letters A to G in this section, which you could try yourself - http://www.consumeractiongroup.co.uk...templates.html

Hi All,

BC now in default of CPR 31.16 letter one, SAR and CCA response to this account. Nothing more received from them since the letter mid-April.

Here it is, for what its worth - has anyone had this as well?

Next move is CPR 31.16 letter 2, SAR non-compliance and onwards to court!

Thanks, meerkat x

Have a look at Bradley's thread. http://www.consumeractiongroup.co.uk...ml#post2187860

If it's right, you could try complaining to the fos about BC's failure to supply the credit agreement. It may take several weeks but still sounds like a good solution if it works.

Thanks Slick,

Sounds like a similar thing alright. My own case is similar as well, only they keep telling me that they have provided under S.78. However, as per your advice of the past, they are currently in default of not only my mothers CPR 31.16, but also mine and my hubbys, and all 3 SAR's.

Makes you wonder what they have got to hide....

fos sounds like a way forward now they are further in default, certainly cant do any harm.

Thanks,

meerkat x

Hi MKM,

On a technical point, BC may have failed to respond to your reasonable CPR 31.16 request, but there's no DEFAULT situation. They just haven't replied.

This is different to a CCA request, where they ARE in default if they fail to supply the required documents within the time prescribed. And even here, there's ongoing debate.............

You'll say they're in default for failing to supply the credit agreement.

They'll say they've complied by sending a set of a/c T&C's and a statement about your a/c.

Yes but thats the thing Slick, aside from the envelope and the 1 page letter above, there was nothing else enclosed. No T&C's and no statement of account.

It was a monument account originally, so BC T&C's would not apply regardless.

I thought them not replying within 21 days to a CPR was them being in default of that same request?

I also thought them not replying to a SAR within 40 days was non-compliance?

Can you confirm then that failure to supply under CPR 31.16 never causes there to be a default situation?

Thats important information that I was not aware of from my reading.

Thanks,

meerkat x

I thought them not replying within 21 days to a CPR was them being in default of that same request?

They have just failed to reply to your letter, but this is not a default situation as with failure to respond properly to a CCA request. Of course, in this case, if they failed to even enclose the T&C's, they ARE in default under the CCA1974.

I also thought them not replying to a Subject access request within 40 days was non-compliance?

Yes and you can take court action to seek an order for them to comply. Or you can ask the ICO to seek BC's compliance.

But the fos complaint has to be worth a shot, and is free.

She not in a position to continue paying these people, but mentally she is not healthy enough to take the abuse they inevitably will give her for not paying.

Hence why we have tried to get this information sorted before she defaults on payments.

If the fos is involved are they likely to listen and comply or will they simply state they have done, whether or not they included anything in the letter for S.78 request?

Its our word against theres about the CCA, because they could argue that they did enclose T&C's - how else can we prove they didnt?

Im still not sure why they arent in default of the CPR request - what is the difference between failure to supply and default? (sorry for sounding dumb, but it obviously is different and I just dont understand in what way)

I had thought, failing to supply under the CPR 31.16 is usually a certain road to court for any creditors, and thus any judges would view there failure to supply as non-compliance and then request the same, with original documents forming part of the case. So it is in their interests to supply if they have them is it not?

I assume under CCA it isnt a default situation?

Thanks slick,

meerkat x

My complaint to the fos would be that BC have failed to supply a true copy of the credit agreement as requested in the CCA request.

Whether they supplied a set of T&C's or not, is irrelevant.

Im still not sure why they arent in default of the CPR request - what is the difference between failure to supply and default? (sorry for sounding dumb, but it obviously is different and I just dont understand in what way)

Perhaps we're getting bogged down with semantics here.

Failure to comply with a CCA request within the prescribed time has specific consequences - ie, the Creditor can't take action to collect, can't pass on the debt to a DCA, can't register negative data on your CRA, etc. These regulations are set out in the Consumer Credit Act.

Failure to respond to your CPR letter has no such consequences. You could say the a/c is in dispute, but even that is questionable, without a credit agreement document to check. So you go to court and ask for the doc't under CPR 31.16.

Anyway, try a complaint to the FOS and see if they are interested.

You could also complain to the ICO that they've failed to supply the credit agreement as required by your SAR made under the Data Protection Act.

Hi Folks,

Another update with this one.

Well finally BC have sent the SAR out for this account, long overdue. We didnt take any further action because to be honest we have been handling my mums accounts as she has had to stop paying as she can no longer afford the payments and it has caused her much upset and stress.

The BC SAR is worthless: around 30 pages of statements from the time they took over the account from Monument and a 1 page document with 4 or 5 late charges from 2003 with a different credit card number on it. We assume that to be her old monument number but it could be anybodies for all we know as there is no name or any other information connecting it to my mum.

The covering letter makes it very clear that this information is all that BC hold, so yet again there is no agreement - never mind an enforceable one!

I should also say that in response to the CPR letter 2 (well I would assume its a response to it, although they keep refering to 'your request under S.78 CCA 1974 - which we clearly arent) they sent the standard 3 page template fob-off letter that everyone has been getting.

What now?

We are going to try and set up some kind of DMP for my mum but I really wonder if its wise to be doing this, especially as BC have admitted to having no further information on her account?

They are nearly 3 months in default of the CCA request and now the SAR has shown they have nothing either.

Is this a case if we were now to issue them with a lba, giving them 7 days to produce the agreement or £zero the balance on the account, that they would go back to monument and try and find an enforceable agreement/application?

Are they not legally obliged to have done that for her SAR request and would stating that they hold no more info, then finding it, not prove they failed to comply with the SAR and put them in deep waters?

I dont think she has many penalty charges to be able to claim (havent seen the document as yet though), but its very clear they started to add this 'payment break' insurance from the first statement and without provication or request from my mum - she never remembers asking for it, and they have nothing in the SAR supporting a request for it, or it even being sold during a phone call/letter response. This could never apply to my mum because she is retired, and if she had been qualified for this, they would have known she was ineligible.

Should we start a re-claim on this with compound interest and 8%?

Should we give them a LBA and 7 days to fulfill specifics missing in the SAR?

Or should we hit them up with the LBA on the account asking them to put the balance to zero otherwise we will take this to court under CPR rules?

Or anything else such as slick's idea to contact fos with a complaint?

Thanks as always,

meerkat x

Hi MKM,

Re Pay't Break Ins'ce, reclaim it in full plus interest. I doubt they'll agree to pay Contractual Int't but it's gotta be worth a try. Do this separately.

They NEVER send out the agreement in response to a SAR. But I'd personally write and say:-

In view of your comment that "This is all we hold for you.", I assume you have no credit agreement to send to me, or it would have been sent in response to my SAR.

Please confirm that you hold no credit agreement, or send it to me within 14 days as required by the SAR which I made to you.

Add up all the penalty charges and see what they come to.

It's up to you if you want to pursue the CPR route and make your formal application to court, or wait and see how others get on.

Hi Slick,

Thanks for the reply.

As she has stopped paying the calls have started and I do not know what to do for the best in terms of her next move.

Should we set up the dmp and include them, and if so can she still challenge them for unenforceablility?

Or should we set up the dmp without them and then go after them?

We will do the re-claim, but after much reading, im now seeing more and more threads saying your cant reclaim charges and then say the account isnt enforceable.

I had thought since this was more of my mums money being taken, for unlawful charges, its neither here nor there if we are claiming it back. They have had this money, plus contractual interest for years. And the payment break insurance was never asked for, so surely asking for this money back which was unlawfully taken by BC cant be confused with whether or not the account is enforceable?

I mean, they have no CA as yet, and admitted that is all they hold for her, so we should assume the agreement (if any existed) was at % interest, and having totted up all money spent and the years of repayments plus interest, they now owe her money.

Thats if a DJ argues she had the money and spent it. We can argue they had the money from her and no agreement means the money should be classed as a 0% interest gift/loan and modern BC T&C's arent applicable to a Monument card from 2002.

Am I wide off the mark?

Its just in our own instances some of our creditors have sent T&C's in response to CCA requests, and our only way to put these accounts in dispute is to hit them up with the unlawful charges claim or PPI re-claim. How else can such accounts be put in dispute, especially when the creditors continue to argue there is no dispute as far as they are concerned?

Sorry for rambling, BC offered us a refund of charges on one of our accounts and its about 3% of the balance owed, so im panicing now that having read threads today stating you can only have a reclaim or unenforceable agreement, that we have burnt our bridges....

Help Slick!

thanks,

meerkat x

im now seeing more and more threads saying your cant reclaim charges and then say the account isnt enforceable.

Personally, I don't see that the two matters are linked. Reclaim the unlawful penalty charges and insist they are repaid to you direct. Issue court proceedings if they refuse.

BC will want to set any refund against the a/c balance but you don't have to agree to this.

Reclaiming charges does not affect whether they have an enforceable credit agreement or not and you have not burned any bridges.

Deal with the Pay't Break Ins'ce separately - ie not as part of the charges reclaim.