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Everything posted by financialdunce

  1. Thanks for the reply. Do you have a reference for any of the rulings? I understood that once the case is in dispute they cannot share any information with a third party, including CRAs.
  2. I need some advice on a long running dispute with Barclaycard. In early August 2008 I requested documents from Barclaycard under the 1974 CCA. When they failed to produce the documents I notified them that the account was under dispute, and no payments would be made until they produced the documents. Despite repeated requests they failed to do so, instead claiming that I had defaulted, and handed the case to a series of debt collection agencies. Each time I was approached by an agency I informed them of the facts, they replied saying that they would no longer deal with the matter, and handed it back to Barclaycard. Now I’ve received a letter from Barclaycard that contains the following: “As previously explained, one of our obligations as a lender, is to share default information about our customers with Credit Reference Agencies when a formal demand for payment is made and the account is then closed. During an internal processing error on our part, the updating of your Barclaycard Credit Reference record within your credit file hasn’t happened. To correct this, and to bring your credit file up-to-date, we are now passing a default record for your Barclaycard account to the Credit Reference Agencies.” It’s my understanding that since the account is already under dispute Barclaycard cannot pass a default record to the CRAs: am I correct? And if so can anyone point me to the exact legal wording that forbids them doing this, and also tell me which authorities I should report them to if they proceed. Many thanks in advance for any advice.
  3. We're past that stage. Barclays, Mercers & Calders have all received recorded delivery letters on several occasions stating that the account is in dispute, advising them of what they may not do under the CCA, and warning them of the appropriate laws in response to various threats. They've failed to follow through on the threats on every occasion, simply bleating that they don't accept that they account is under dispute. My response to that has been "fine: show up in court with the paperwork." Frankly, that sounds like really bad advice. Everything I've read here and elsewhere, the advice I've had from CAB & CCCS and my own common sense says that you never speak to these people on the phone. Everything in writing, and keep good records. That's what I've done so far, and it's worked. That's the sort of stuff I'm trying to find out. I'm actually very relaxed about the proposed sale. It was worded as a threat, but in effect it's a white flag: an admission that they've got nowhere so they're selling the problem to someone else. I'm simply trying to decide two things: 1. By selling it do they potentially get themselves in trouble. 2. If so, should I warn them in advance, or just let them go ahead and shop them to the authorities afterwards. I realise the OFT guidelines aren't law, but I've already used them apparently successfully so I only half agree with Angry Cat about the lack of protection for the consumer. Yes, the balance of power is weighted in favour of the banks etc - surprise - but even in my limited experience there is plenty that can be used to slap them down. Blimey! Respect! Remind me never to lend you a fiver! :D Thanks for all the advice: any more welcome.
  4. Does anyone know for sure what the legal situation is regarding the sale of an account to a DCA? A year ago I CCA’d Barclays, they failed to deliver, I told them they were in default of the CCA and the account would remain in dispute until they produce the correct paperwork, and they could go spin. We all went down the Mercers/Calder road, threats were exchanged, I offered to meet them in court. Silence. Calder have now written giving notice that Barclays intend to sell the account; fine by me. But it does beg two questions. Firstly, Barclays are clearly flogging the account because they have no paperwork and know they therefore would lose in court. So in selling it they know they’re shafting the buyer, who will be in the same position. I’ve no sympathy with either of them, but it seems to me that in selling something that’s not fit for purpose Barclays are guilty of rather sharp practice. Secondly, under the terms of the CCA, a creditor cannot disclose details of a disputed account to a third party. But if they sell the account to a third party that is exactly what Barclays will be doing. So is such a sale even legal? I imagine it is, but if anyone can prove otherwise I’d just love to know.
  5. Sorry, but I still don't get it. If the prescribed terms are included, which apparently they are, and the CC Regulations 1983 allow the omission of signatures, why would they then have to produce the signatures in court?
  6. Thanks, but I don't quite follow. The BC letter specifies that certain details can be omitted from a CCA copy, including signatures, and still fulfill the request. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, which they quote, seems to me to support their position. So how is it not enforceable?
  7. Here you are then: enjoy! I CCA’d 3 accounts. Barclaycard eventually responded with 2 letters containing the attached docs “Barclaycard CCA 1 front”, Barclaycard CCA 1 back” & Barclaycard CCA 2”. That’s it. I can’t even tell from the docs which accounts they refer to. There’s no ID anywhere, date, nothing: they look to me like they were just pulled from a drawer somewhere. I wrote back stating plainly that I simply don’t believe the documents are genuine, and certainly don’t fulfill a CCA request. Barclaycard responded with a 2 page letter I’ve scanned and attached as “Barclaycard 1” & “Barclaycard 2”; I’ve deleted the first paragraph, which is not relevant to this issue. The letter reads to me like smoke and mirrors designed to deceive, and I don’t believe a word of it, but I’d very much like someone more knowledgeable to to pick through it so I can produce a coherent response. Assuming Barclaycard’s letter is as misleading as I suspect, I’d also welcome any advice on how to proceed. I’m not feeling generous. It took many letters from me just to get this response, and Barclaycard are way over the 12 + 30 day limit for a CCA, so if they’re lying I’m quite happy to report them to as many authorities as possible, and if necessary go to court. All advice very welcome. Barclaycard CCA 1 front.pdf Barclaycard CCA 1 back.pdf Barclaycard CCA 2.pdf barclaycard 1.pdf barclaycard 2.pdf
  8. Thought so. Pity. But presumably that also means the whole "+ 30 days" business no longer has any meaning: after all the 30 days was the period before which failure to comply became criminal. The only period that can matter now is the 12 days to respond to the request before the DCA is in default. Thanks again.
  9. My understanding is that a creditor/DCA has 12 days to respond to a CCA request, after which they are in default. If they fail to respond after a further 30 days they commit a criminal offence. But is that still true? I know it used to be, but I have a vague memory that the law changed a year or so ago. I read elsewhere on the forums of Hillesden DCA failing to produce an agreement under the CCA and simply writing every 21 days saying that they were still looking for the paperwork. They surely couldn't get away with that if failure to comply is still a criminal offence. So does anyone have a definitive answer? Can failure to respond lead to criminal proceedings? Anyone got any examples of that happening? Many thanks.
  10. I’m arguing with Barclaycard about their response to my CCA request. I believe the documents they sent me don’t come near to fulfilling their legal obligations and I’ve told them so. They’ve responded with a rather confusing point by point breakdown in support of their position that they have complied. I’d very much like to post the correspondence here to get some informed opinions on their position and how I should proceed, but it’s 5 pages total attachments: should I go ahead or is that too much? Apart from my own interest, the docs and opinions may be helpful for others trying to decide whether a creditor has or has not complied with the CCA, what arguments the creditor may use to support their case, and whether those arguments are spurious.
  11. Am I right in thinking I can report creditors/DCAs to the Trading Standards office if they fail to produce either a CCA or SAR after the legal length of time? If so, does anyone know the address to which I should file the report? And are there any template letters available anywhere? Many thanks.
  12. I'm afraid I'm a bit out of my depth here. Can anyone enlighten me on the differences between fast track and multi-track, and what the practical implications are? Many thanks.
  13. Oh dear. In that case, given the figure is over 5k, what's the worst case in that situation? And what's "multitrack"? Thanks again.
  14. MBNA is 14k, A&L is 3k. Since MBNA administer both, and have admitted they don't have paperwork for either, it's not clear whether there would be separate court cases. But since these are technically separate accounts I assume any court actions would also be separate.
  15. I agree with all of that: it seems to me that MBNA have screwed themselves by not bothering to take care of the paperwork. I’m just posting here to check my facts so I can handle this properly: better to get tripped up here than in court if it goes that far. So here’s another question. If I tell MBNA to get lost and they go to court, what’s the absolute worst that can happen?
  16. Perhaps this extra information will help. There are 2 MBNA administered accounts in question; 1 is MBNA and the other is A&L, but administered by MBNA. I applied for both a S.A.R - (Subject Access Request) and a CCA on both accounts. Their covering letter in reply to the SAR said: “Unfortunately due to archive retrieval issues we have been unable to retrieve a copy of the original application form for account XXX. Alliance & Leicester have been unable to provide this information, please accept my apologies for any inconvenience caused.” Their reply to the CCA request said: “In accordance with section 78 of the CCA of 1974, I enclose copies of the credit card agreements, including applicable terms and conditions, and statement of accounts. We are sorry we have not been able to send you a photocopy of the originals, but hope that you will find the enclosed copies clear to read and sufficient for your purposes.” None of the documents they’ve sent include any signatures. In act the CCA agreements they sent don’t even contain my name, they are simply a stock agreement with Terms and Conditions: is that what you mean by “prescribed terms” and “compliant copy”? However I have no idea when these agreements date from. I suspect that they are simply MBNA’s current T&Cs, but surely the whole point is that they need to produce the T&Cs in force at the time of the credit card agreement? If that’s true then the T&Cs they sent me should be irrelevant. Their most recent letter, part of which I quoted at the start of this thread, says: “I can confirm that we have provided you with all the necessary information we need to provide you with in accordance with s.78 of the CCA, and there are no further documents from your letter which we are required to provide you with to confirm that you have entered into and owe money under valid and enforceable credit card agreements.” From all of the above it seems to me they simply don’t have the necessary paperwork. Not only that, but they’ve admitted this in writing, so I think it would be difficult for them to suddenly produce the missing agreements in court. What concerns me most is Mr Shed’s assertion: “I know it is the case that they CAN omit signatures.” CCA s.78 is very clear [thanks for the link] and there would surely have to be exceptional circumstances for a court to over-ride that, otherwise the clause serves no purpose. Anyone know of any instances where a court has over-ridden s.78, and what the circumstances were? Thanks again for everyone’s help.
  17. I recently CCA’d MBNA and although they provided some documentation for my accounts, they have failed to provide the original signed agreements. In their covering letter they wrote: “It may be helpful to explain that we are not required to serve a copy of the credit agreement which includes signatures, as the law expressly permits lenders to omit signatures from copies of all credit agreements.” This appears to be contrary to everything I have read here. Can anyone refer me to the clause or clauses in the CCA that state that for a debt to be enforceable the lender must have signed copies of the agreements? And does anyone have any idea what law MBNA claim “expressly permits lenders to omit signatures from copies of all credit agreements”? Many thanks in advance.
  18. My complaint will center on the fact that I’m self-employed, MBNA were aware of that, yet they sold a policy that they knew was inappropriate for the self-employed. But the other interesting point is that the FOS will consider complaints where the selling took place over 6 years ago. MBNA took pleasure in telling me that the sale was too old so I could get lost, but that’s not necessarily the case.
  19. Thanks everyone for all your advice. It’s an interesting situation, and I agree that my CCCS DMP complicates the situation somewhat. To be honest, CCCS have been a big help during a difficult period, so I don’t want to mess them about. But I seem to be moving toward a situation where I may be able to raise enough money to cover most of my debts, meaning that if even if I can’t pay them off entirely I ought to be able to negotiate reduced settlements. And obviously if the HSBC account is unenforceable that will help me deal with the others, so I’ve got a pretty good incentive to fight it out with MCS. I think my best approach may be to follow Scarlet Pimpernel and simply remove HSBC/MCS from my DMP and deal with them separately. One question SP: when you had CCCS stop payment to HSBC did you specify to CCCS why you wanted HSBC removed from the schedule? Or did the CCCS not care why? Thanks again everyone.
  20. I’m on a Debt Management Plan administered by the CCCS, but as I wrote recently I’ve sent S.A.R - (Subject Access Request) and CCA requests to all my creditors. The info has been dribbling in, although I’m having to prod the creditors pretty hard to get some of it, and it’s interesting to see how hard some of them try not to comply. But today I received an interesting letter from Metropolitan Collection Services, who are handling an HSBC credit card account. The letter was in reply to my reminder that they hadn’t replied to my CCA request, and that under the act they could not pursue any alleged debt until they comply with the request. They wrote: “With reference to your letter and the requested Credit Agreement, we are unable to produce a copy of this. This is due to the fact that the Credit Card was opened in 1996 and as our client is not required to keep documents that are older than 6 years, they no longer hold a copy. Therefore we now require a full income and expenditure breakdown incorporating all other creditors. Would you please submit this by return. We trust this clarifies matters.” I’m interested in two things from this letter. Firstly, they admit they don’t have any of the original paperwork, and try to justify this with the age of the account. I’m sorely tempted to write back saying that since they don’t have the paperwork they can’t have any money: it’s not my problem that they or their client don’t maintain their files. I have read that legally that is the situation: but is that “really” true? I find it pretty incredible that banks would risk losing the ability to collect on debts by not bothering to keep original contracts on file, and if they don’t have the contract they surely must be able to enforce the debt some way. It’s a large sum of money, so I can’t see them giving up without a fight. I’m happy to slug it out with them, but I’d like to have some idea what the chance of success is, rather than just blunder in and make things worse. So can anybody point me to the legal chapter and verse stating that a creditor can’t enforce a debt in this situation? Anyone had a similar experience, especially with Metropolitan or HSBC? The second interesting point is their request for an income and expenditure breakdown. They try to make a connection between their lack of paperwork and needing to see mine, but of course there is no logical connection: they’re completely different matters. I’m quite happy to send the I&E breakdown, but the thing is Metropolitan already have a copy of that from the CCCS, so why would they want it again? Any advice welcome, and thanks in advance.
  21. Thanks for the bump! It reminded me to keep looking for the info and I found it on the FSA site. I've tried posting the link, but the system here won't let me, so here's the relevant text: "The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service: (1) more than six months after the date on which the respondent sent the complainant its final response; or (2) more than: (a) six years after the event complained of; or (if later) (b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint;" In other words, if you become aware of the mis-selling in September 2008 the Ombudsman will consider a complaint any time up to September 2011, irrespective of how long ago the sale actually took place. Oddly MBNA forgot to mention that, so I'm referring the mis-selling to the Ombudsman.
  22. I’m pursuing MBNA concerning what I regard as the mis-selling of PPI going back many years. As a self-employed person, and they are aware of this, it has become clear that I am not covered under the policies they have been claiming premiums for. They have responded to my letter demanding repayment of premiums with every excuse they could find, finishing by saying that this their final response, and noting that my complaint relates to a period outside of the time-limits for referral to the Financial Ombudsman Service. But I believe that not to be the whole truth. I seem to have read somewhere that the FSO will investigate claims where the claimant has become aware of the mis-selling within the last 3 years, as in my case, regardless of when the actual mis-selling occurred. Is this true? If so it seems to me my next step should be to inform MBNA that since their response is unsatisfactory and misleading I am referring the matter to the FSO immediately. Thanks in advance for any advice.
  23. I recently sent both CCA and S.A.R - (Subject Access Request) requests to all my creditors, and have started to receive their replies. While some appear to have complied fully, others I think have not, and I am considering my next step. Specifically: Barclays have responded to my SAR by sending only copy statements going back 5 years with a cover letter stating “this information we have enclosed relating to this account is all that we hold”. Frankly I don’t believe them, not least because I have other documents on file from them that they have not included: if I have these then it’s logical that they should also have them and should have produced them under the terms of the Data Protection Act. My SAR used templates from here and was comprehensive and specific. My inclination is to reply to Barclays pointing out that their response is incomplete and that they have the remainder of the 40 day limit from my original request to provide the rest of the documents before I take further action. Does this seem like the best way to proceed? So far as the CCAs are concerned, most have been ignored. MBNA have responded, but again I regard their reply as incomplete. They state “ We are sorry we have not been able to send you a photocopy of the originals, but hope that you will find the enclosed copies clear to read and sufficient for your purposes.” I thought the whole point of a CCA was so consumers can see the ORIGINAL contract they agreed to: since I have no way of knowing if the T&Cs they have sent are the ones applicable when I opened the account many years ago, it seems to me that they are not complying with my request. I’m thinking of writing to MBNA and the other non responders pointing out that they are now outside the legal 14 day limit to respond, but that I am prepared to wait a further 7 days, and that if they have not complied by that time I will make no further payments of alleged debts until they do comply. Does this seem like the best approach? Thanks in advance for all advice.
  24. I’m preparing to send CCA and S.A.R - (Subject Access Request) requests to all my creditors, but I have a few questions to help me do this as accurately as possible: • Since the CCA and SAR are unrelated I assume I should keep them completely separate in any correspondence. That is, send one letter to Creditor X containing a CCA request and payment, and another letter to Creditor X containing an SAR request and payment. Correct? • I should send the SAR requests to the original creditor. But which department and address? Banks/CC companies often have different addresses for different departments, and sending to the wrong one gives them an excuse to delay compliance. Is it best to send to the head office? • If I have several accounts with one creditor [for example a current account and a credit card], am I right that they only need one SAR? • I should send the CCA requests to whoever is currently collecting the debt, so if this is a DCA the request should go to them rather than the original creditor. Correct? • I’ve looked all over the site and found a template for CCA, but not SAR. Is there one available? • I was going to write cheques in payment for all of these. However I’ve noticed several posters say that I should only pay by postal order, and should not sign the covering letters, so as to ensure the recipients don’t have a copy of my signature. The only reason I can think for this advice is the possibility that the creditor might use my signature to forge any missing documents from their files. Is there any evidence of this ever having occurred? It seems unlikely to me since it would be a serious criminal offence and there would be considerable risk to the forger. Thanks in advance for all your advice.
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