The Story so far......more help please!!

[pink22]

To start with I wish to thank you on behalf of me and my family for all the help we have had from this forum -

 

Now the debt bit.......

 

I found out over a year ago now about debts - unsecured concerning my Dad. My sister and I decided to tackle this issue. Since then we have settled many of the debts and have agreed to repayments fro some others. Heres the problem though - which I hope you will all be able to help me with

Ok here goes!!! (deep breath)

 

My Father had 2 cards with Barclaycard. One normal one Gold.

We send off - both recorded delievery an SAR and CCA request to both seperatly.

 

These debts were then passed onto Mercers. Pains in the neck - but we continued on -we were strong - didnt answer the phone - sent letters back asking for proof....and so on.

 

Mercers then passed one onto RMA and another company (which we have heard from only twice)

Bearing in mind we are still waiting for something - anything so we could repay....or a reply to our CCA Request.

 

Anyway - we decided that as we were having no response except for more default threats......we stopped paying the token payemnts. As we have had NO statements of the account either.

 

We have heard nothing from either company for months now.

Then.......this came this morning.......

 

 

Morrcroft Debt Recovery Limited

-Pre-Court Division.

 

Dated 24/11/07

A moorcroft Reference

A Client Reference.

 

Dear Mr XXXXXXXX

 

We have been instructed by BARCLAYCARD

To collect your overdue debt of £9790.80

 

It is a legal requirement to send a notice of INTENDED LITIGATION before legal proceedings in the County Court are issued. This letter fulfilld this requirement even if it is not actually read by you.

 

(explanation about payments)

 

We would draw to your attention that if Judgement and an order for repayment in full is obtained and remains unpaid enforement of debt may be sought by one of more of the following procedures.

 

1) Waarant of execution by baliffs against any goods owned.

 

2)Application for atachment of earnings order with your present or future employer.

 

3) Application for a charging order to any property you may own or are purchasing under a mortgage.

 

Thens its signed.

 

They have given us till 10am on 1/12/07.

 

Merry Christmas.........

 

What i have started this thread for is really to help me clarify what this really means and what I can do?

 

Perhaos a letter to them with the info of whenthe CCA was sent?

 

Not sure now - i'm feeling ok about it - my Mother on the other hand is worried again - and I ahve decided enough is enough.

 

Your generous and wonderful help would be a God send to me and my family.

 

So please please please help.........

 

What shall i do now?

 

I shall keep you updated.

[surprise]

This is one of Moorcroft's standard letters. You need one of Curlyben's bog off letters considering that Barclaycard have not come up with an agreement. Will try and find a suitable one for you. I had the same with Barclaycard the agreement they sent me or should I say application form is unenforceable so they have gone quiet at the moment.

[Curlyben]

As if by magic CB appears.

 

While B'card are in default of your CCA NO other DCA can make requests for payment as this debt is in default.

 

Edit as needed

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

*- Delete as needed

Enjoy

[pt2537]

 

 

Dear Sirs,

 

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated **********, the contents of which are noted

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested ********supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date ******** have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or *******, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as ********* become compliant with my request. As ****** are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

I trust this out lines the situation

 

Regards

 

 

there you go, that should shut them up

[surprise]

CB - radar working well!

[pt2537]

yeah the bu**er beat me too it again

[pink22]

WOW.......you guys are fab........shall get straight on to this now

You have made me feel better.

 

Many Thanks.

 

I shall likely be back when the other DCA wants some money from the other Barclay card.

 

My Thanks again.

[Curlyben]

Just send them the same letter.

After all your dispute is with B'card and as such the DCA CANNOT pursue for payment.

[Lula]

well if you have already CCA'd them and they havnt replied then send the same letter again

[pt2537]

WOW.......you guys are fab........shall get straight on to this now

You have made me feel better.

 

Many Thanks.

 

I shall likely be back when the other DCA wants some money from the other Barclay card.

 

My Thanks again.

 

youre welcome,

 

if you need any help just shout and we will see what we can do, curlyben will probably beat me to it and answer

[Lula]

LOL Curley, SNAP

[Lula]

Roflmao

[pink22]

lol!

 

Thanks

[pink22]

Just a quick update.

 

Since sending that letter and ignoring one phone call - everything has gone quite - AGAIN.

 

Waiting for the next tactic now.

 

Thanks again for all your help - you made Christmas relatively peaceful.

Just waiting to see what happens next.

[pt2537]

oh well, enjoy the peace and quiet

 

let us know as soon as anything happens

[pink22]

Hi everyone.

 

I'm back with an update. On Friday received a v strange letter from moorcroft saying they had been back to Barclaybard about our dispute.

 

They then quote some strange figures about late payment etc anyway they have removed something like £200 from the money we owe. I have no idea what this is about. Anyway it goes on about contacting them to agree a payment amount.

 

Is it now worth me sending them our budget sheet to attempt a payment plan or do I continue to not pay them due to Barclaycard being in default of the CCA.

 

Then on saturday there standard letter I have quoated at the beginning of this thread arives for my Dads other barclaycard. I am going to send the same letter back for this one but what do you think about the one they have credited money back for. It is really wierd.

 

Any advice would be appreciated

 

Thanks

[B3rty]

You have put the account is dispute and do not need do anything until they produce the CCA.

 

The letter provided by Paul asked for charges to be removed and all collections to stop until they produced the CCA.....they have done part of that but not the whole.....So they accept the consequences......why not report them to their local TS?

[Curlyben]

Until B'clays comply with your CCA request, Moorcroft can whistle.

 

To keep them occupied throw this at them.

 

Formal Complaint

Letter Before Action

 

 

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

May I draw you attention to my letter of XX/xx/xx in which I clearly out lined my position concerning this matter. I enclose a copy for your perusal and ease of reference.

 

**CREDITOR** has failed in my lawful request under the Consumer Credit Act 1974 section 78(1) and subsequent Statutory Instruments.

I formally advise you that since **CREDITOR** has failed to comply with the terms of the Consumer Credit Act that as from **DATE** they are in legal default on this alleged agreement. This default means that the alleged agreement from this date is totally unenforceable. **CREDITOR** may not apply any charges, cannot issue defaults, cannot sell or assign the alleged debt or cannot invoke any clause within the alleged agreement.

 

Furthermore you should be aware that a creditor is not permitted to take ANY Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* may not demand any payment on the account, nor am I obliged to offer any payment to you.

* may not add further interest or any charges to the account.

* may not pass the account to a third party.

* may not register any information in respect of the account with any credit reference agency.

* may not issue a default notice related to the account.

 

Therefore this account has become unenforceable at law.

 

As **CREDITOR** have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

The mere fact that they have passed this account to you while it is in dispute and default is also in breach of the Data Protection Act 1998.

 

After taking advice, I am of the opinion that your continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I await your rapid response.

 

Yours Faithfully,

[pink22]

Thank you

 

Have got those letters printed ready to go. I am so glad this site is here I dont know where we would be if it wasnt

 

thanks again I will keep you up to date:)

[pink22]

Hello,

 

I think I am a bit stuck now.

 

I sent my letters of as I said this is what has happended.

 

Letter from Moorcroft re: complaint. saying needs to discuss with client Barclaycard and have placed the account on hold.

 

this letter has been received from Barclaycard.

 

Dear Mr * ***************

 

Ref: SECTION 78 Consumer Credit Act 1974

barclaycard Account

Mastercard Account

 

I write further to your letter dated 27/11/07. The contents of which have been noted.

 

Your account was opened in 1970. The CCA 1974 regulates only credit agreements for running credit entered into on or after 01/04/77. Agreements entered into before this date remains unregulated under the act, irrespective of any subsequent variations to the terms. Section 78 of the act which requires the creditor to provide a copy of the executed agreement at the debtors written request upon payment of £1 applies only to "regulated agreement".

 

As your agreement dates from 1970 it is not a regulated agreement for the purposes of the consumer credit act 1974. therefore, the right to obtain a copy agreement under section 78 does not apply to your credit agreement.

 

However nothwithstanding the above, if you require a copy of the Barclaycard Terms & conditions applicable to at a particular time prior to termination of your account, do let me know and I would be pleased to provide a copy.

 

Nevertheless please find the following info enclosed for both accts.

 

Barclaycard ACCT

= A copy of your opening Barclaycard application signed by both parties

= the balance on your account at the time of termination and amount referred to debt collection agency was £9,790.80

 

Mastercard ACCT

= A copy of opening application incorporating the credit agreement signed by both parties

=A copy of Barclaycard conditions applicable at time accnt was opened

=the balance on your account at the time of terination and refered to debt collection agency was £5,886.96

 

With regards to the earlier letter dated 16/04/07 (which incidentally was not received until sometime later) and according to our records a reply was sent to you with the documents on the 05/07/07. However in viw of the fact you do not appear to have received this, under section 78 i have requested the intrest charges on your purchases and late payments and over limit charges on both accounts be refunded to your account covering April to june 07. I understand there have been no further chargesto your account since june 07 and therefore the amount reflects the total purchase intrest charges and late payment fees applied to both your accounts at the time.

 

For the visa refunded = £240.15

for the mastercard= £101.91

 

I trust the above is sufficeint for you purpose. However if you require any further assistance please let me know.

 

 

 

Do you think i stand much chance with moor croft agreeing a payment plan. the thing that really annoys me if 1.5 years ago when this started Barclaycard had accepted my offers they would have had some money back now bloody idiots.

 

what do you reckon????

[Curlyben]

Interesting letter from B'card there.

Now where these cards really opened that far back, nearly 40 years ago ???

[pink22]

Hi Curlyben,

 

Sorry for not replying sooner my Mom had hidden the info away and I wanted to check it before I replied.

the info they have sent though is:

 

Mastercard - A photocopy of a credit agreement signed by my dad and someone else dated 1990. So they have provided that one.

 

The other one is a barclaycard application from when my dad was living with his mom and dad! dated 1970.

 

I think we are stuck now. Do you think that moorcroft will accept reduced offer how should I play this.

 

Thanks:(

[sillygirl1]

If they've produced a document from 1970 it is WELL AND TRULY statute barred. You should NOT make any offer to Moorcroft other than a "Get lost (or go forth and do not multiply" as clearly they have no real documentation to enforce this debt. Without the terms and conditions how can they justify chasing a debt from so long ago?

[pink22]

Sorry, I dont get it.

 

Where do we stand if they have produced the credit agreement for the other account I will have to offer something on that wont i?

 

With the one going to 1970 they are saying the act didnt come in until after that date therefore we are not covered by it.

 

I really dont know where I stand can anyone advise?

 

Thanks

[Patma]

hI pink22,

I can't advise you about whether your card is covered by the CCA 1974 or not, but something else occurs to me. Have you sent an SAR to Barclaycard asking for everything they hold on you?

The reason I ask is that I have 3 acounts with Barclaycard which go back to the mid 1980s and I recently sent off an SAR.

I was amazed to discover that all 3 accounts were written off last April and no-one told me. Not only did they not tell me, but they started hassling me for full settlements.

I sent off CCA requests and got back 2 application forms which did not contain the prescribed terms etc. For one of the accounts, nothing was forthcoming and I then discovered they'd written that account off again (Don't ask how could they write it off twice because I haven't a clue LOL)

This time the memo stated that I must never be contacted about the debt again, it must never be sold and my details must be removed from the CRA with regard to that account.

The moral of this story is that sending an SAR can have surprising results.

I was told earlier on another thread that some companies have a policy of writing off all debts when they reach a certain age.