Hi chaps.

Yes, another problem! Hope someone can give me some idea of how I should approach this?

I've been having financial problems for several years, basically since I had to move from Milton Keynes to Norfolk to look after my Mum. I won't go into details but I've been on reduced rate Income Support since August last year and on the lower rate of £60.50 for the year previous to that. Due to my low income status I couldn't afford to repay my Barclaycard debt. So, I wrote to them several times to explain that I had no money, but I was willing to pay a token sum. I think I offered £10 a month or something around that amount. Anyway, after my sending them several letters and getting either generic responses threaterning legal action or no response at all they stopped sending me my statements. Then several weeks passed by with no communications. I sent another letter asking what was going on and had no response. This was about this time of year in 2007. I've heard nothing from them and received no statements since, so I assumed they'd just dropped it.

Suddenly, this morning I got a letter saying "As you have not complied with the recent Defualt Notice, the outstanding balance shown above, is now due in full and we demand you pay this amount to us immediately" Ooh, get you with your demands!

Firstly, as I've said, I haven't heard diddly squat from them in two years, let alone any Default Notices! I've not changed address or landline phone number and I've not tried to avoid the debt.

Secondly, because they've not bothered to contact me for two years, they've been adding interest to this bill, so it's considerably more than my debt of two years ago. I'm not sure of exact figures as I haven't yet gone over all the paperwork.

There's another line at the bottom of the letter that says, "If payment is not made or agreement reached by 3 September 2009, a Debt Collector may call upon you for repayment or legal proceedings may be taken against you in the County Court". The letter's dated 27th August 2009 and I received it today, which means they need to hear from me by tomorrow! Fat chance!

I'm not worried about going to Court as I've been there and done that and I was told I had to pay £12 a month due to my being on Income Support, so if Barclaycard want to go down that route that's fine, but I don't want a collector turning up at the door. I know this is unlikely as I've been threaterned with this in the past and no-one turned up. But this is not my house; it's my Mum's and if I tell her she'll worry about it and I don't want that!

So, what would be the best thing to do? I'm thinking of writing to them asking why they stopped communicating with me in 2007, why they stopped sending statements at the same time, where this alleged "Default Notice" is because I've not had one and why they've left it two years before deciding they want to reopen communications!

I'm really quite frustrated by this letter as I tried my best to sort it out two years ago and it was they who stopped responding! Also, after the profits Barclays posted a few weeks ago I don't see why I should pay almost £3000., most of which is interest racked up over the two years they ignored me!

Edit: Just dug out the letters and the last one was from CapQuest Debt Recovery dated 29th January 2008, stating that they (CapQuest) had agreed to my payment arrangement and a notification was being sent seperately. I never got one. According to this letter my dealings were with CapQuest and I should not contact Barclaycard. My last statement from Barclaycard was 17th August 2007.

Hi Fenris,

Can you confirm who has written saying you've ignored their Default Notice.

Once we know that, we can decide how best to d/w this.

Hi slick. This letter is from Barclaycard themselves.

Hi Fenris.

Good. So it looks like BC still own the debt.

You need to send a SAR and also say to BC that you have rec'd nothing about this a/c since Jan 2008 when Capquest said they'd write confirming the rep't programme, but never did.

Send BC a SAR with the £10 fee - http://www.consumerforums.com/resources/templates-library/48-bank-templates/110--data-protection-act-1998-subject-access-request-

This should get you statements so you can reclaim any penalty charges or PPI (if it's been mis-sold). It will also show produce any Default Notices or Notice of Assignment.

Thanks slick.

I've got all my statements going back to 17th August 2000. I got these in 2006 when I reclaimed all the over limit charges etc. I didn't buy PPI.

So I just need to ask for this Subject Access Request then and not be any more specific? Is there anything I should be doing while I'm waiting for them to get back to me?

Ahaaa,

So you were an early starter, reclaiming back in 2006.

No you don't need to be specific, but you can mention that you require sight of your credit agreement for the a/c (if they send this, it'll be a first!).

The SAR will show if there have been any charges added to the a/c since you last reclaimed.

OK, will get on with that then. Just going back through my statements now seeing what's been charged since I reclaimed in 2006. So I'll have to wait and see, but it doesn't look like they've added any charges or interest since my last letter in 2008. They're asking for the same amount now as they were then, so my original assumption (above) that they've been charging interest for two years is incorrect.

Guess we'll wait and see!

Flamin' typical though; won my IS Tribunal yesterday, so had the first good nights sleep in years, only to wake up to this letter! Oh well, time to get the Valerian out again...

Edit: OK, what I've done is go back over the statements I have that go back to August 2000 up to and including the last statemenet in August 2007. I've listed everything I've bought, who it was from and how much it cost. Totaled up it comes to £5026.88.

Then I wrote down and totaled all the money I'd repaid. This comes to £7862.00.

Then I totaled up all the Over Credit Fees and Late Payment fees for the same period. These come to £611.00 of which Barclaycard repaid me £256 in August 2006.

So, if I add the unlawful fees to what I've paid Barclaycard over the abovementioned period I've paid them £3039.12 just in interest! You don't realise how much it is until you sit down and sort it out do you?

Now, I'm not sure how much I owed on the card prior to August 2000, so I'll have to get those statements from BC. But if they think I'm paying them over three grand in interest after they've lined their pockets so well over the last 6 months, they've got another think coming! I'll pay for what I owe, but it was their fees that got me into trouble in the first place.

OK, my SAR is going off in the post tomorrow. I've just been having a browse around t'internet and I keep comming across things like this:

The Consumer Credit Act s.127 says that if there is no agreement then the debt cannot be enforced by a court.

So, does this mean that if Barclaycard aren't forthcoming with my original agreement from way back in 1999 I'm under no obligation to pay this money? I mean, it's not like I'm trying to get out of paying what I've borrowed; I've paid it, plus over three grand in interest! So, basically, the money they're now asking for is just interest. (That statement assumes that the year I don't have statements for was a quiet one and I didn't buy much on the darn thing! ) Only, they want almost another three grand and there's no way I can get my hands on that, so it'll be a repayment of £10 a month for the foreseable future, which means I won't even be paying off the interest on the interest!

Hi Fenris,

Have a read of the Consumer Credits Agreement Tutorial at Link No5 in my signature below.

The only way to get back from them anything like what they have taken from you over the years, you need to claim interest in restitution at their Contractual Rate.

This is also mentioned in the Tuitorial and could make a serious dent in what you owe BC.

That's a very interesting read slick! Not much I can do until BC send a copy of the agreement though.

It's a funny thing, I've been trying to remember how I applied for the card. I remember it was sometime in '99 when I had a good job. And I know the incentive was a Philips mobile phone! But do you know, I can't for the life of me remember what the form looked like.

I used to work in H. Samuel years ago and we sometimes did credit agreements for large purchases. They were on the large pads with three copy pages, similar to the scanned ones in that link. I can remember them from around '96. But when I think about the BC agreement all I can remember is a small, fold out application form. But it's been over 10 years and memory plays all kinds of tricks! So I guess I'll have to wait it out and see if they send a copy. Had a browse around MSE yesterday and some people have gotten copies of their agreements, so we'll see.

Just been having a proper look at the link you provided slick and the following image looks very familiar:

Obviously it would be a BC agreement, but the layout seems to ring a bell.

Also, I just wondered if BC send me a copy of the agreement, but it does not have my signature (i.e they've just send a blank copy from some time in '99 to comply with my request) does this mean it's unenforcable? Or does it mean I have to push them further for a copy of the actual agreement I signed, with my signature clearly shown? Little confusing this whole thing!

And, you also said about getting money back from BC. I'm not sure how you mean? Is this in relation to the unfair charges, because there weren't really that many! Or do you mean I have some kind of right to claim back some of the money I paid in interest if the application wasn't properly executed? Sorry for the ignorance!

Hi Fenris,

If BC send you a copy of YOUR actual credit agreement (which is rare in itself) and it doesn't have your signature on it, then it would not be enforceable by a court.

The problem is that they are NOT sending out actual agreements - only blank versions, or just copies of their T&C's.

As regards reclaiming penalty charges, you can, and should, reclaim them. You can also claim interest in restitution (on those charges) if you're up for a fight.

You can't claim back capital or interest charged by them on purchases made in the normal running of the a/c.

The problem is that they are NOT sending out actual agreements - only blank versions, or just copies of their T&C's.

So what happens in this case then? Should I press them for mine? Or does the mere fact they can't produce it mean it's unenforcable?

As regards reclaiming penalty charges, you can, and should, reclaim them. You can also claim interest in restitution (on those charges) if you're up for a fight.

I did claim in 2006 and they refunded me £256, but I did not apply interest at the time. I'll have a look in to the restitution thing. At a quick glance it looks quite complex! I'm assuming this can only go back 6 years?

You can't claim back capital or interest charged by them on purchases made in the normal running of the a/c.

I thought not. I was just a little confused by all the terms!

As always, thanks for your help slick, it's much appreciated.

Should I press them for mine? Or does the mere fact they can't produce it mean it's unenforcable?

This is the major problem we are facing with BC and other banks. You can press all you like but they continue to avoid producing Credit Agreements.

Or does the mere fact they can't produce it mean it's unenforcable?

Not at all. They don't usually say the CAN'T produce the agreement. They say they DON'T HAVE to, and that they fulfil their obligations under CCA1974 by producing a statement of account and the latest T&C's.

I did claim in 2006 and they refunded me £256

In which case, you'd be on dodgy ground going back to reclaim higher interest now. This should be claimed from the outset.

I'm assuming this can only go back 6 years?

You can claim back further, arguing that s.32 on the Limitation Act 1980 applies and that you only became aware of the unlawful nature of the bank's charges in 2006.

However, you will have difficulty in getting BC to provide any earlier data if you don't have your old statements. Also, BC didn't make penalty charges as often back then. See here - http://www.consumeractiongroup.co.uk/forum/barclaycard/151305-barclaycard-charging-earlier-than.html

Well, surprise surprise Barclaycard managed to completely ignore my SAR and sent me copies of my last 6 years statements, which I already have becuase I asked for them in 2006! Wonderful! Their covering letter says:

Further to your request for personal information held by Barclaycard, please find enclosed a copy of the card statements you have requested.

Well, they clearly didn't read the letter I sent them! So, should I just send another letter asking for the information I originally asked for? Are they stalling for some reason? Is there some kind of deadline they have to meet if I ask them again for the information? I don't have to give them another 40 days do I? I thought 14 days should cover it.

See here about getting a proper reply to your SAR. Articles 81, 19 and 20 - The Consumer Forums - Bank charges templates (consumer) If the data is still available on Microfiche, they must provide it.

When they repaid the £256 re penalty charges, did they repay the full amount you were reclaiming at the time.

They had a habit of repaying only the difference between what they charged at the time (£20) and the limit the OFT put on such charges (£12). Check this out to ensure the refunded all charges in full !

Thanks again Slick; as always your advice is appreciated.

Have today written to Barclaycard using the template on the page you linked to. They have 12 more days left so we shall see if they can pull their collective fingers out in time! Will update as and when I have news.

Interesting development in my fight with Barclaycard. Received a letter today saying that, as of 27-08-09 my debt has been sold to a company called Lowell. This seems slightly odd as it was Barclaycard themselves who sent the letter I received on 2nd September and there was no reference to a Lowell then.

Can someone let me know where this leaves me now? I sent my second SAR to Barclaycard last week, again asking for all information held, including a copy of the original credit agreement I signed. Does this development mean that I can no longer refuse to pay any outstanding money on the grounds of the original agreement being unenforcable?

And I'm assuming this also means I can't claim back any unfair charges now?

Edit: Just looked back over the letters from Barclaycard. The letter I received on 2nd September was dated 27th August 2009. Now, there was no reference to Barclaycard selling my debt on to Lowells in that letter, yet in the letter received today, Barclaycard tell me this debt was sold to Lowells on 27th August 2009! Eh?

Is it just me who gets the feeling Barclaycard got my SAR and suddenly realised they couldn't produce the information requested and have thought, "Hang on, we're not going to win this so let's sell it off and backdate it so it looks like we sold it off just before we sent that Final Demand letter!"? Because it's mighty strange if you ask me!

Hi Fenris,

As soon as Lowells contact you, send this:-

Dear xxxxx

Your Ref xxxxxx

I do not acknowledge any debt to your company or to any company you claim to represent.

A request for my Consumer Credit Agreement (Consumer Credit Act, 1974) was received by xxxxxxx (name of company) on xx/xx/xx. Since they are now in serious fault of a legal request, I can only assume that xxxxxxx have either failed to inform you before supplying instructions to contact me or, have failed to inform you you before your purchase of this account; in which case, they would not be your clients in the sense that you imply. I therefore suggest that you liase with xxxxxxx before contacting me again.

In the meantime, please be aware that no action can be taken against a disputed account and this includes the following :

You/your "client" may not demand any payment on the account, nor am I obliged to offer any payment to you.

You/your "client may not add any further interest or charges to the account.

You/your client may not pass the account to any third party.

You/your "client" may not register any information in respect of the account with any of the credit reference agencies.

You/your "client" may not issue a default notice related to the account.

In addition, please be awre that your recent telephone calls (delete if N/A) and letter to my home could, under the Administration of Justice Act 1970 section 40, be construed as unlawful harrassment in the absence of such an Agreement. As you claim in your letter to have been "instructed" by xxxxxxx, please note that any court claim regarding harrassment would be brought against both xxxxxxx and yourselves should this be necessary; since you would be complicit in this action (delete if N/A).

You may therefore consider this letter a statutory notice under Section 10 of the Data Protection Act 1998 to cease processing any data in relation to this account with immediate effect. This means that you must remove all information regarding this account from your own internal records and from any records with any credit reference agencies. Should you refuse to comply, you must within 14 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.

I look forward to a favourable response within 14 days of the date of this letter, informing me that on this occasion you have made a genuine mistake and that you files are now closed. Failure to respond favourably however, will result in me reporting this matter to the FOS, Trading Standards, The Office of Fair Trading and any other authorities as I see fit.

I look forward to your reply in due course.

Yours faithfully,

Hi Slick,

There was a letter from Barclaycard saying they had sold the debt to Lowells and in the same envelope there was a letter from Lowells saying they had bought the debt! Very odd.

Thanks again, I'll get the above letter sent off tomorow.

Another update. I received, this morning, another letter from Barclaycard in reply to my letter of 1st October asking them to comply with the SAR and informing them that they had 12 more days. They say:

Data that is held on you by our different business areas is often released at different times as part of your SAR. In this case, although statements have been sent to you on 28/09/2009*, we have not yet issued our full response. You can therefore expect to receive all data we hold in relation to your account shortly.

 

I hope this resolves your query and would like to thank you for contacting us.

*These statements are not complete; they have gone back 6 years from the date of my initial SAR.

And no, it does not "resolve my query"!

So, I know I have to now send Template 2 from the Consumer Forums site, but do I give them 7 days from the date I write the letter (tomorrow now, so that's 7 days from 15th October 2009) or from the date the 40 day period expired? That would then be 7 days from the 12th October 2009?

Ta!

P.S I meant to ask if I can still persue Barclaycard for the charges? I'd like to claim back the money I paid for the SAR also.

Hi Fenris,

Give them 7 days from the date of the latest letter.

Yes, you can reclaim all penalty charges added to the a/c. If you just ask for them back, they'll agree and set them against the a/c balance.

However, if you claim interest in Restitution at BC's contractual rate, they'll refuse and credit your a/c with the refund of charges, which you'll reject with the appropriate Rejection Letter.

You'll have to file a court claim to get the higher interest but it's normally well worth doing because of the amounts involved.

Include the cost of your SAR too if you want.

Hi Slick,

I did have a look into the Restitution post a few weeks back, but couldn't make head nor tail of it to be honest. And, if they're going to just deduct it from the total "owed" there's not much point in it if they fail to supply the info I want is there?

Cheers,

Fenris.

My point is:-

If you claim int't in restitution, you'll have to file a court claim and can insist any money is paid to you direct.

Sorry if I didn't make this clear.

Oh, right, I see what you're saying now! It still looks complicated, but I'll see if I can get my tired brain around it.

I got a letter from Lowells today:

We thank you for your recent letter and appologise for any delay in replying.

 

Your comments have been noted and we have today (letter dated 13th October) queried these with Barclaycard.

 

We will advise you of their response upon receipt.

 

In view of the above and in accordance with Schedule 2, paragraph 2(a) of the act that deals with any request under section 10, Lowell Portfolio 1 Ltd or Lowell Financial Ltd are not prepared to cease processing your data in respect of the debt claimed from Barclaycard on the babsis this is required for the performance of said contract to which you are party.

 

We trust this letter clarifies our possition in this matter.

Translation? I don't know, it might as well be Klingon! But I'm guessing they're not going to adhere to the rules, cheaky little monkies that they are. So, is there another letter I should be sending the little darlings, or should I go straight to FOS etc.?