gizmotesla
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Everything posted by gizmotesla
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If they wanted to be fair they could offer remedy by reversing their decision, if they were reasonable they might apologize for the inconvenience, if they were as nice, friendly and informal as their computer letter tries to portray, they could send a small gift of flowers.
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I've lost use of a years held good history 7K facility to draw on credit. IMO, probably their bulk letters automatically target customers that they perceive as unprofitable with highish limits, with the intention to catch some of them out. Then they blame the customer and hide behind the rules of the agreement so as not to put it right. Maybe been standard practice since 2008, but I wasn't aware until this, but probably fos is used to it.
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Since their computer letter doesn't reference any Act, agreement, contract or law, I can only assume it's a rather tricky letter intended to confuse and cause loss to me.
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What if the note was lost in the post? I wasn't looking for a democratic consensus. Sometimes answers are outside the box.
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Oops, I almost forgot. They didn't use the word "agreement" even once in the note (must be taboo like for the FOS:-)).
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Thanks for looking at the legal stuff. Firstly, I think there is some significance in the form that the note took, and it's computer generated appearance, visually informal in the standard barclays blue headings used for promotions and t&c updates. Unfortunately, like most probably, I receive quite a few similar looking type unsolicited letters regularly, such that I have become a bit jaded in dealing with them, and most of them either go in the bin, or put to one side for filing. If I'm travelling, my mum will also go through them and alert me if anything looks important. There was nothing visually about the note that communicated serious, irreversible or contract terminating intent. I had no reason to expect that they would consider or suggest such an unusual course of action. There were no big changes in my card usage, or in my circumstances. I thought perhaps it might be about the expiry and issue of the new card in the following year, so not that urgent. Secondly, on closer examination, the wording chosen is such that the intent, reason and purpose are far from clear and unambiguous from a legal standpoint. It starts with a question if I want to keep my account open, gives their subjective opinion that I might not need it, and then offers to close the account for me if I do nothing. I can assure you that from a contractual point of view, that is likely to be legally problematic. For example, which party closed the account? No full date, no postal address, no appropriate warnings about irreversible loss, no markings as IMPORTANT, no means of tracking receipt, no follow up call, no second and final warning. In my opinion, on balance of reasoning, they did not act in a very fair, clear and not misleading manner, and not appropriate for making subjective assumptions and taking decisive and irreversible action. I know that anyone can take any of the above points and try to argue the contrary, but my point would be that we shouldn't have to.
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For me, there are a few reasons that give me cause for concern about my experience which make it worthwhile to pursue; 1. The refusal by the FOS to investigate or even acknowledge any of the legal aspects or implications of the whole story is fairly alarming. Would you believe that they managed to carry out their entire investigation procedure without ever using the word "agreement"? Their clumsy cover up and whitewash would be funny, but for; 2. I drive on the continent a lot, and require the large credit facility for peace of mind, if needed in case of accident, breakdown or other unforeseen emergency. I know I would have options and flexibility to deal with unforeseen problems if I can make payments, even largish ones as necessary, quickly and on the spot. My use is in the ability to draw on credit for emergencies, not for everyday purchases, and this has been my usage pattern for years. 3. My confidence in the legal system to investigate and remedy what appears to me to be a case of negligence to take into consideration the interests of the customer, and not effectively communicating information in the appropriate manner when making important irreversible decisions. http://www.legislation.gov.uk/ukpga/2006/14/crossheading/unfair-relationships 140A 1(a),(b) & © discusses the determination of unfair relationships within the context of how the creditor has exercised or enforced his rights under the agreement. I don't share your view that Barclaycard has done nothing wrong here, or the other views that they can do anything they like. Perhaps I'm wrong, but although I am new to this forum, I hope we can hold different beliefs and opinions, and still exchange useful information.
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I'm not so confident that the bank can legitimately revoke it without giving objectively justified reasons because the physical plastic card is their property, although they would perhaps like to portray such invincibility, and they do indeed sometimes operate with such attitude, and it's true that the FOS may turn a blind eye as they did in my case. I'm still hopeful we're not so lawless, at least in the courts if not in financial sector, and that the card agreement has a meaningful purpose, specifically CCA 1974 section 98 4(b) & ©. My physical paper money also is not my property, but I hope to still have some rights and claims to be using it.
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The consumer credit act 1974 is an implied term of the agreement (ie effectively part of the t&c's) to which Barclaycard is a party. Section 98A covers the issue of a termination notice in this way; legislation.gov.uk/ukpga/1974/39/section/98A 98A Termination etc of open-end consumer credit agreements (4)Where a regulated open-end consumer credit agreement, other than an excluded agreement, provides for termination or suspension by the creditor of the debtor's right to draw on credit— (a)to terminate or suspend the right to draw on credit the creditor must serve a notice on the debtor before the termination or suspension or, if that is not practicable, immediately afterwards, (b)the notice must give reasons for the termination or suspension, and ©the reasons must be objectively justified. .... (6)An objectively justified reason under subsection (4)© may, for example, relate to— (a)the unauthorised or fraudulent use of credit, or (b)a significantly increased risk of the debtor being unable to fulfil his obligation to repay the credit. IMHO, since Barclaycard are claiming that the computer generated note is the termination notice (which I dispute in any case), they appear to have violated terms 4(b) and 4© because they haven't given objectively justified reasons. The reason given for closing the account is ostensibly that they thought I no longer needed it, which is no more objectively justified than if I take your property because I thought you no longer needed it. By the way, their choice of wording is interesting; "That is why on 9 April 2014 we'll close your Barclaycard Classic account for you." implying that they act on my behalf and that it is my decision to close it. I appreciate that in these times the law means little to the banks and their regulators (libor, euribor, fx, price fixing scandals...) but, IMHO, Barclaycard should be encouraged to operate more in line with the terms of the agreement, even if it is inconvenient for them to do so.
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I don't agree with your interpretation that the account is the agreement. My interpretation is that the agreement is the contractual relationship with associated obligations for both parties arising from the t&c's together with the implied terms of cca 1974 (&2006 section 140a unfair relationships) and COBS, whereas the account (or accounting) is the processing and recording of transactions under the agreement. Another example of their distinction could be when an account is blocked or suspended, but the agreement is still in effect.
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1. Their computer generated note says they'll close the account automatically unless I say otherwise, but no statement about ending the agreement. 2. Their final response states they issued a notice to end the agreement under its t&c's. IMHO, there are legal/contractual ramifications in the inconsistency of the two statements from the bank, and I dispute statement no.2 and also not sure it would hold up in court under scrutiny. Closing the account is not equivalent to ending the agreement from a contractual standpoint. For example, they could reopen the account under the original agreement, if still in effect. I'd be interested in a legal opinion from someone with that background or experience. Adjudicator, ombudsman and senior manager refused to notice or venture to comment about it in their responses,
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It is conditional, because I could have kept the card open if I told them otherwise, and the credit limit would have been retained. I was out of the country, but my mum was checking mail and it looks like a junk mail offer. Date of fos decision was 30th Sept 2015. I would like my card re-opened with £7000 credit limit as it was before their kind offer.
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I would say that from a legal perspective it is not so clear or unambiguous because; 1. It is a conditional offer, not a notice of their intent. 2. It offers to close the account on my behalf, but does not state that it will end the agreement. The point I am making is that their note doesn't seem to be a legally valid notice to end the agreement under cca 1974, with objective reasons. There are also other important omissions like no return address, no full date, no warnings that I would irreversibly lose credit limit, that I would have to re-apply for a new card, ie witholding important info.
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I accept that the t&c's allow them to terminate. I am questioning their claim to have issued a notice ending the agreement, because their note doesn't clearly or unambiguously state so.
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This is what Barclaycard wrote in their final response about the t&c's; "May I advise the decision to close your account was not taken lightly and is not a reflection of your credit worthiness. However, your account had not been used since 2010 and we took this to mean you no longer wished to have the facility. The terms and conditions of the Barclaycard agreement state that 'either of us can end the agreement by written notice to the other. Unless there are exceptional circumstances, we will give you 30 days notice before we end this agreement'. I appreciate you were out of the country when this notice was issued, but the account cannot be reopened." They are implying that they have terminated the non-default agreement with the automatically generated note I quoted above. I maintain that note is defective as a termination notice under the CCA and COBS, and unfair relationship rules. Perhaps the account was unprofitable for them, or they perceived it as risky, but don't they also have to act according to the contract too?
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Yes they can close the account, but interestingly they claimed to have issued a notice ending the agreement in accordance with the t&c's as well, claiming that the automatic note generated by their computer is a valid termination notice, and the fos apparently turns a blind eye.
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I have had visa card for decades with largish credit limit of around £7000, very light usage, and always paid in full before pbd. The latest Card was issued in 2010 and I did not use it for any purchases but kept it for emergencies only, and was due for renewal at the end of July 2014. However, sometime in Feb 2014 they sent this surprise automatically generated note; “Would you like to keep your Barclaycard account open? We've noticed you haven't used your Barclaycard Classic card for a while and thought your account may longer be needed. That is why on 9 April 2014 we'll close your Barclaycard Classic account for you. This means any credit cards associated with this account will be cancelled unless you tell us otherwise. Don't worry, the other Barclaycard accounts you hold with us won't be affected.” The letter was sent by normal post, dated just “February 2014” and I ignored it because it looked like junk mail. When I found out in July that the card had been cancelled, BC at first verbally said they couldn't reopen the card with original credit limit because I did not appear on the electoral register, then in their final response they changed their story and said that they had issued a notice ending the agreement under the terms and conditions, and that my creditworthiness was not an issue. The FOS just lied about the whole thing in their non-investigation whitewash which I didn't accept. My new visa card has a mighty credit limit of £260! What are the legal viewpoints, breach of contract because no valid termination notice or something else, unfair relationship?
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