Written by John Kruse, one of the leading experts on Bailiff Law, this consumer friendly guide is essential reading for anyone who comes into contact with a bailiff.
The book is easy to understand and clearly explains the rights
a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
I have decided to create new thread as I have 3 issues with Barclaycard and thought it might be easier to track individually.
Formal Notice Sent (I know CCCA should have been CCA)
23rd November 2009
NOTICE OF FORMAL REQUEST
REF:
Dear Kimberley,
Re Agreement: xxxxxxxxxxxxxxxx
On the 29th October 2009 I sent a letter requesting information regarding the above agreement.
Your reply to my request was totally unsatisfactory in that you failed to supply me with any of the information I asked for which was that you send me, or make provision for me to see the lawful bilateral contract, signed by both parties in which my wet signature is within the four corners of the original document and not apart from it therefore. I am now making a formal request pursuant to sections 77/78 of the CCCA 1974.
I require you to provide me with a true copy of any agreement you deem to be mine together with any other documentation the Consumer Credit Act 1974 requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (12 + 2 days).
If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove any incorrect entries from your systems.
I enclose a postal order in the sum of £1.00, which is the statutory fee. Note these funds are not to be used for any other purpose.
As you did not comply with my initial request for information dated 29th Oct 2009 I now consider this matter to be in DISPUTE and you should be aware that a creditor is not permitted to take ANY action whilst it remains in dispute.
The lack of a compliant credit agreement is a very clear dispute and as such the following applies.
* may not demand any payment on the agreement, nor am I obliged to offer any payment to you. * may not add further interest or any charges to the agreement. * may not pass the details of the agreement to a third party. * may not register any information in respect of the agreement with any credit reference agency. * may not issue a default notice related to the agreement.
Then I sent this letter 15th Dec
I refer to your letter dated 27th Nov 2009 where instead of answering to my legally submitted s.77/s.78 application you have tried to give me a lecture in what your bank believes is how the Law should be interpreted.
I regret to note the attitude that your bank has developed and I also regret to note that you have not complied with my s.77/s.78 application.
Due to this fact, please note that I am now placing the account into dispute. Furthermore, I draw to your attention that I have now written to the Financial Ombudsman Services to ask for their assistance. Said assistance is to write to you and tell you that you are bound by Law to answer properly to a formal s.77/s.78 CCA request. I presume you do know that a s.77/s.78 application is for a true copy of a signed agreement and it does not mean you can send whatever you want claiming you have a right not to comply with the Law.
Once I receive word from the Financial Ombudsman Services I will understand that about the same time you should have also heard from them. This being the case, I will be writing to you to give you 7 days to comply with my application. You are to note that should your bank then not send me a true copy of a duly executed copy of the agreement, I will then put it on record that not only will the account stay in dispute but also your bank will have gone into default.
Dispute with Barclaycard - A/c No xxxxxxxxxxxxxxxxxxxxxx
I sent a CCA request to Barclaycard on 23rd Nov 2009 asking for a copy of the executed credit agreement for the above account and enclosed the £1 fee. I am entitled to this by virtue of s.78 Consumer Credit Act 1974.
They replied by sending me a set of terms and conditions (not specifically relating to me, or the account) saying this is all they are required to do. They do not consider the account to be in dispute and will continue with collection proceedings.
They say they are not obliged to communicate further unless I produce legal arguments to back up my assertion that I am entitled to sight of the agreement.
Would you please intervene on my behalf, by contacting Barclaycard to ask that they send me a copy of the signed executed credit agreement, to which I am entitled.
I enclose copies of relevant letters and documents for your perusal.
Your efforts in this matter will be greatly appreciated.
Yours faithfully
Copy of Letter received by Barclaycard ref Final Response
I received a response from Barclaycard that included the original agreement (Morgan Stanley) which to me has very few if any of the prescribed terms on it.
Your consumer credit and consumer hire rights explained
Under the Consumer Credit Act 1974 you have the right to request certain
information about your credit or hire agreement, from the lender or owner, for a
fee of £1.
If you do want this information about your agreement, including terms and
conditions and an account statement, you can request this from the lender (or
owner, in the case of hire agreements). To do this you must apply in writing and
pay the fee. What information can you request and what should you expect to receive?
You can ask for a copy of your original contract and for information on the
current state of your account. You can ask for this whether you have a fixed
term loan, a running account loan such as a credit card, or a hire agreement.
The lender needs to provide you with an accurate
copy of your contract. The
copy they send you does not have to be the original document, or a photocopy
of the one that you signed, and it can be recreated by the lender, but it should
a: Was that sent by at least recorded mail?
b: Any reply from the FOS?
Letter to the bank dated 15th December was that sent at least by recorded mail?
3 Questions to answer.
Every Letter has been sent recorded?
Received letter from FOS (15th Jan) confirming they have written to Barclays to let them know I have complained and returned to me a complaint form plus the paperwork I gave them when registering my complaint (which they want back if I continue to complain). They said in a covering letter that I should receive a Final response from Barclaycard within 8 weeks and if I then feel they have not put things right to continue with my complaint.
I received Final response from Barclaycard on 20th Jan (see link below page 2)
I asked for a copy of my agreement 29th Oct 2009 (informal)
I then wrote officially using s.78 application on 23rd Nov they replied with no agreement and Morgan Stanley T&C's on the 27th Nov
I then placed the account in Dispute 15th Dec and informed them I had written to FOS
15th Dec 2009
Dear Sirs
Your reference:
My reference: Account now placed in dispute
I refer to your letter dated 27th Nov 2009 where instead of answering to my legally submitted s.77/s.78 application you have tried to give me a lecture in what your bank believes is how the Law should be interpreted.
I regret to note the attitude that your bank has developed and I also regret to note that you have not complied with my s.77/s.78 application.
Due to this fact, please note that I am now placing the account into dispute. Furthermore, I draw to your attention that I have now written to the Financial Ombudsman Services to ask for their assistance. Said assistance is to write to you and tell you that you are bound by Law to answer properly to a formal s.77/s.78 CCA request. I presume you do know that a s.77/s.78 application is for a true copy of a signed agreement and it does not mean you can send whatever you want claiming you have a right not to comply with the Law.
Once I receive word from the Financial Ombudsman Services I will understand that about the same time you should have also heard from them. This being the case, I will be writing to you to give you 7 days to comply with my application. You are to note that should your bank then not send me a true copy of a duly executed copy of the agreement, I will then put it on record that not only will the account stay in dispute but also your bank will have gone into default.
I wrote to FOS 16th Dec
Reply from FOS with Complaint application form 15th Jan
Reply from Barclaycard 20th Jan Final Response including a copy Morgan Stanley agreement and Barclaycard T&C's
If you were to put something like that in front of a Judge you will have him confused.
To see if understood correctly, you wrote to the fos. The FOS wrote back saying they wanted a final responce from the bank before they can become involved and sent you a complaint form to fill in.
Did you get final response from the bank? Or did you just stop filling in the forms because you got the copy of the agreement (even though contesting its validity).
If you were to put something like that in front of a Judge you will have him confused.
To see if understood correctly, you wrote to the fos. The FOS wrote back saying they wanted a final responce from the bank before they can become involved and sent you a complaint form to fill in.
Did you get final response from the bank? Or did you just stop filling in the forms because you got the copy of the agreement (even though contesting its validity).
The agreement is the same as I received back to my SAR, notice the big blank square on the bottom left hand side, no idea whats behind it but they dont want to show it for some reason?
As to complaining to the fos, wont do you much good I'm afraid... you asked for your agreement, your application is what they have sent which tbh surpasses what they have to send for a s77/s78 request nowdays.
You say its unenforceable and I'd support that if this is all they have at present as no terms and conditions specifically the prescribed terms to go with this signature doc.... however the FOS will state you have had the money, pay up now.
IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.
That is the one that seems to be missing from most of these MSDW applications. As Shadow says, they absolutely don't want to show this one.
DD
On my copy the legibility is so bad I've not got the headings If I look at Steves tho it looks like it is number 4 yes, just after the personal financial stuff.
IMPORTANT: Please take my advice in the spirit it is given and on the basis that I am expressing my opinion, These opinions are not endorsed by CAG in anyway and are offered informally without prejudice or warranty of any kind. These opinions are solely based upon the knowledge I've gained from this fantastic site and life in general. I have NO legal training.
I think it's quite clear that most (all??) of these application forms are cut and paste jobs. I have never found one, on many threads, which reveals Q4.
I have nine questions, but Chris (on another thread) has 11.
Obviously they weren't producing two different forms, one with nine questions and one with 11 - and in any case, how would they know which one to send? I know! I expect they had a clairvoyant on the staff predicting who was going to want PPI, and who wouldn't.
PPI was relevent to him, so it's included in his C&P. Not relevant to me so when they were cutting and pasting mine they didn't put it in.
I think it's quite clear that most (all??) of these application forms are cut and paste jobs. I have never found one, on many threads, which reveals Q4.
I have nine questions, but Chris (on another thread) has 11.
Obviously they weren't producing two different forms, one with nine questions and one with 11 - and in any case, how would they know which one to send? I know! I expect they had a clairvoyant on the staff predicting who was going to want PPI, and who wouldn't.
PPI was relevent to him, so it's included in his C&P. Not relevant to me so when they were cutting and pasting mine they didn't put it in.
Honestly, you couldn't make it up.
DD
Simple. You send a copy of what you got to Chris and Chris sends a copy of his to you. THEN, IF it goes to Court you can put in your defence what you have just said i.e. cannot be 9 and 11 questions. So which is correct and why the difference. Then let them answer.
Do NOT forget, you will be the Lip. It will get transferred to your local county court. The creditor may be miles away from where you live so they have to appoint a local firm to represent them. That solicitor is only going to receive a briefing. You know the full story. He does not. Put him in dispute.
As to Chris (sorry DD) he is actually in a better position as if he receives a DN then he can contest it on the PPI charges (for a start) as being unlawful and therefore a faulty DN.
You can attach (for the benefit of the Judge) a copy of the form they sent you. Then in court just pick up "Chris's" form and refer to item 10 and item 11. When the Judge says something like "I do not have item 10 and item 11" just reply "Sorry Judge, I picked up a copy I had been sent by a friend to compare it with my copy. Now maybe our friend representing the Claimant can explain why there are two different forms".
At the moment every time I get a letter I just ask where Q4 is. Got the third letter from one DCA enclosing the usual, Q4 missing, copy of the application, so rather than writing I just scribbled, "Where is Q4 which you have blanked out?", or something like that and haven't heard anything for months.
The question really is............ has the agreement been modified? i.e. If it says Q4 BUT it does not give the question and it has been covered up then...........
wait for it...................
wait a bit more..................... ......
The agreement has been modified and to modify an agreement both parties have to sign and agree to that modification. (Which is why for a running credit (a credit card)) they have to send you advance notice and you can refuse the new terms and cancel the agreement. (Although they know that if you owe a fair amount of money you will not do this).
Any agreement that has been modified without explicit authority from both parties to that agreement becomes null and void.
So.......... next time they write to you put that to them. Tell them that as the agreement had been modified, you have queried what the modification was, ask them for a copy of your authority for the modification authorising it and if they cannot supply then there is no agreement as it is null and void.
The fos will say BC have sent you the copy agreement (which is more than they do for most cases !!) and it is not for them (FOS) to comment on the enforceability of the document.
Any help and advice is offered in good faith, based solely on my own knowledge and on experience gathered from this site. I am not qualified to offer legal or financial advice, which you should seek from an expert before making any important decisions. My opinions are therefore offered without liability.
The fos will say BC have sent you the copy agreement (which is more than they do for most cases !!) and it is not for them (FOS) to comment on the enforceability of the document.
Hi Slick
My issue here is they sent the agreement yes but also sent Barclaycard T&C's and said here is your agreement (Morgan Stanley and here are the T&C's that go with it which were Barclaycards T&C's).
Slick as a team member if you had our individual emails maybe we could send our copies to you and you could forward them to the others that way we dont get each others email addresses just in case people are not willing to do this?
Also it might be worth checking we all have the same T&C relating to Morgan Stanley (we have to co-ordinate in some way)
To be honest seeing how they have recently sent the information, I would suggest you write them a letter.
In that letter you state that you are not happy with the information that you have received and will be inquiring into it.
Until such time as you decide to write back to them with any findings you make as to the integrity of what they have sent you, you will be making the payments on the accout but that they will be made under protest. Furthermore, should you find that what they have sent you is incorrect information then you reserve the right to claim said payments back.
At the moment you have too may files open. Personally, I would get most of them finished with and THEN take on something new.
To be honest seeing how they have recently sent the information, I would suggest you write them a letter.
In that letter you state that you are not happy with the information that you have received and will be inquiring into it.
Until such time as you decide to write back to them with any findings you make as to the integrity of what they have sent you, you will be making the payments on the accout but that they will be made under protest. Furthermore, should you find that what they have sent you is incorrect information then you reserve the right to claim said payments back.
At the moment you have too may files open. Personally, I would get most of them finished with and THEN take on something new.
I dont have an issue with doing this but wont all the others want the same treatment. I actually think this one would be a good starting point to go to court over £1,400 the lowest one of all. Whereas some of the others Capital £17k Citicards (£13k yet to post the thread) MBNA £15K and this one is the only one (I think) below £5k.
Dont worry I am actually getting to grips with it now.
The last few days has been a bit like a Sunami with the mail thats arrived.
6 cases for my partner have flooded in and I am trying to get the CMC looking after it off their arse and doing something.
Steve
I dont have an issue with doing this but wont all the others want the same treatment.
How come? They are different banks.
Originally Posted by steve2577
I actually think this one would be a good starting point to go to court over £1,400 the lowest one of all.
See note below
Originally Posted by steve2577
6 cases for my partner have flooded in and I am trying to get the CMC looking after it off their arse and doing something.
Steve
Idea! If I had a missus here, and I wanted to have a test case, I would use one of hers. What can happen? If I lose and she "kicks off" no problem. As they say "Women are like cars. If one gets written off you can always get another".
And that was written in humour and not intended as advise. ROFL.
Steve v Barclaycard (Ex Morgan Stanley)
is within the four corners of the original document and not apart from it therefore. I am now making a formal request pursuant to sections 77/78 of the CCCA 1974.
Reply With Quote
Originally Posted by nick20045
If I look at Steves tho it looks like it is number 4 yes, just after the personal financial stuff.
