RoyalNelly v Barclycard

[RoyalNelly]

Hi All

 

Would apprecaite your help and comments with my situation, I have found myself unable to meet my monthly payment with Barclaycard and wrote to them with a pro rata offer. Their response was just to bombard me with calls and letters, so enough being enough I decided to CCA and S.A.R - (Subject Access Request) them.

 

They have responded to my CCA request as follows:

 

Letter in response:

http://i299.photobucket.com/albums/mm291/royalnelly/Barclaycard/responsetocaa.jpg

 

Application Form:

http://i299.photobucket.com/albums/mm291/royalnelly/Barclaycard/application.gif

 

Alleged Executed Agreement:

http://i299.photobucket.com/albums/mm291/royalnelly/Barclaycard/allegedexecutedagreement1.gif

http://i299.photobucket.com/albums/mm291/royalnelly/Barclaycard/allegedexecutedagreement2.gif

 

I would appreciate any thoughts as to wheter they have a properly executed enforcable agreement, I think not as they clearly have only an application form and a pro forma agreement, there is nothing, in my view, that could possibly connect the two together.

 

What do consider should be my next step to be? should i await the response to the sar? I would appreciate your advise and expertise.

 

Thanks, in advance, for your help with this.

 

RN

[slick132]

Hi RoyalNelly,

 

Welcome to the Barclaycard Forum - we don't often see royalty here so are duly honoured.

 

I'll ask for an opinion from the Site Team as I'm not sure about the 3rd document you've posted.

 

Someone will be along to advise on this but please be patient.

 

Roughly what do you owe BC in total and have you worked out how much you could reclaim in unlawful penalty chgs.

 

In what year did you apply for the account.

 

Slick

[RoyalNelly]

Hi slick thanks for the response

 

Account was opened in '93

 

I owe just short of £2k but i'm sure that there are a shed load of charges, can't be exact at this stage as they have'nt yet responded to my SAR and stupidly I have'nt kept my statements,.

 

Will keep you updated.

 

Thanks again

 

RN

[Curlyben]

Well if that's what they think passes for a signed executed credit argeement now they are seriously mistaken.

ZERO prescribed terms and what there is is laughable in the extreme.

 

The attached T&C are completely meaningless as they could apply to anything.

So over all, would make a good plain, but that's it.

 

As this was applied for in 93 then there's a clear case for SI1983/1553 whereby the prescribed terms MUST be contained within the signature document and NOT as a seperate sheet titled T&C, or similar.

 

This get's a bit heavy on the legal front, but here it is.

 

Oh deary me.

B'card strike out again and here's why:

 

This is taken from another thread;

Under SI 1983/1553 the prescribed terms MUST be within the signature document to be valid, having them on a seperate sheet headed T&C or similar ISN'T acceptable.

SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms MUST be within the signature document. (Column 2 schedule 6)

This applies to all agreements pre May 2005.

So basically this is unenforceable, under 127(3).

 

Just to add to my comments re terms witin signature doc.

This was covered off in Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting

the provisions of the two schedules the Judge said

33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the

agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and

backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be

orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated.

As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and

the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1.

[RoyalNelly]

Curlyben

 

Thank you very much for taking the time to look at this and for the information and confirmation provided. I guess my next question is as to how to proceed with this, should I write to them now or after the 12+2 + Month has expired. I assume I could stop paying this now until they come up with a properly executed agreement (may be a long wait though:grin: )

 

I guess I also need to await the sar response to see if the total charges exceed the current balance on the account and then consider persueing them down that route.

 

Your thoughts on how to proceed would be apprecaited.

 

Many Thanks

RN

[Curlyben]

As the CCA is unenforceable you CANNOT pursue charges on the account as this would be seen as unjust enrichment.

 

Now if they continue to demand payment after the 12+month expires a report to Trading Standards would be in order.

[slick132]

Hi RNelly,

 

You now have 2 choices as the debt is unenforceable in law, based on the documents provided so far:-

 

1) Continue to pay off the debt without them adding further interest or charges, but at a rate which suits you. You can also reclaim penalty chgs on the a/c to reduce the debt.

 

2) Demand that they reduce the balance to zero and close the matter.

 

If any defaults have been made against you in respect of this a/c, you can apply to have them removed from your Credit Records.

 

And, if they make any further demands of you about this a/c without producing the PROPER Credit Agreement, you can report them to Trading Standards and the FOS.

 

Let us know how you want to proceed and we can help with the nec'y letters.

[RoyalNelly]

Have now had what Barclaycard consider an appropriate response to my SAR request.

 

 

I have also recieved the following Default Notice from Mercers.

 

 

 

I would apprecaite some advice/info as what should be my next response, Is the Default notice valid and correctly formed, can they default the account if thay have not sent a valid agreement, the 12+2+1 month will be up on the 2hnd May. Should I wait until then before responding or is there a letter that should be sent to B/C and or Mercers now, if so can someone please point me in the direction of a template I can use to base my response.

 

Once again many thanks for your help.

 

RN

[slick132]

Hi Nelly,

 

As they've responded to your SAR, can you now confirm roughly the total owing on your card and the amount of unlawful chgs included in that total.

 

You can write to Mercers now to confirm that, as BC have failed to produce the nec'y doc'ts in response to your CCA request, the a/c is In Dispute.

 

I'll come back with a suitable letter to send to Mercers and copy to BC.

[RoyalNelly]

Thanks Slick

 

There is a balance of about 1.9k o/s, total charges on the statement come to about 0.8k so i worked out that if i claimed for charges and compound interest on the charges it would leave a balance remaining of about 0.6k.

 

I guess the biggest concern that I have is that I would like to avoid the default if possible. Giving Barclaycard some grief back would also be a bit of an added bonus!!

 

RN

[slick132]

Hi Nelly,

 

Use this letter, carefully adapted to suit your case - eg where it says, "these limit have expaired", change to, "Your time to comply full expires on xxth May."

 

Send the original to BC by Rec'd Del'y and copy to Mercers.

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

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

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On **DATE** a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

 

If that request is not satisfied after a further 30 calendar days you commit a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor 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.

 

Therefore this account has become unenforceable at law.

 

You 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.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 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.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

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.

 

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

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

* You may not pass the account to a third party.

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

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

 

 

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.

 

Despite my letter regarding ANY communication from your company, which stated that I require ALL communications in writing, your telephone calls continue.

 

This behaviour constitutes harassment; the letters stated quite clearly to you that I require ALL communications in writing for future use. Do not telephone me again - remove any telephone numbers you hold for me from your systems.

 

Your telephone calls are in breach of the Office of Fair Trading guidelines. If you continue with them after the receipt of this letter an official complaint, together with a log recording the times and frequency of the calls will be passed both to that office and to the Trading Standards office. For your information note that ALL telephone calls are taped.

 

This type of debt collection method is contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient. Your methods will not be tolerated. A formal complaint, containing copies of all correspondence including yours, has now been submitted to the relevant authorities. This will be relevant to questions of your fitness to hold a licence under the Consumer Credit Act, whether or not it results in a prosecution.

 

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

 

HOWEVER, CALLS WILL TRIGGER COMPLAINTS TO THE REGULATORY BODIES.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

[slick132]

If you're willing and able to honour the debt, you should follow the reclaim process listing all the chgs and claim CI. Send BC a Prelim ltr, then LBA 14 days later.

 

Once the reclaim has been quantified and agreed, you can offer to repay the balance without further interest or chgs be added.

 

Keep us informed.

[RoyalNelly]

A quick update, I have sent a slightly ammended copy of the above letter to B/C & Mercers, this was signed for yesterday (14/4).

 

Recieved a letter from Mercers today (dated 11/4) saying that they are insructig a local debt collector to visit.

 

So have sent the letter back stating no wish to make an appointment with them and that is only an implied license under english law etc etc.

 

So lets see what the next installment will be...any guesses?

 

Thanks

RN

[RoyalNelly]

Rec'd This:

 

"Final Response

 

I understand that you are unhappy that you have recieved a letter from Mercers informing you of our right to arrange a doorstop call. You state under English Common Law we are unable to visit your property without your expressed paermission.

 

I would like to take this opportunity to inform you that we diagree with your legal analysis. It is our legal right to arrange this if we have exhausted all attempts to request repayment of your account."

 

They then go on to say they have nothing further to add on this matter or the matter of the account being in dispute and I should contact the FO.

 

Any thoughts on my next step with this?

 

RN

[slick132]

Hi Nelly,

 

You should now make complaints to the FOS and Trading Standards (Northampton or your local office), on the basis that they are continuing to harass when you have clearly pointed out to them why their response to your CCA request leaves the debt legally unenforceable.

 

Have you put your charges reclaim on a formal footing yet, i.e. sent off Prelim or LBA letters.

 

How you respond to BC/Mercers is up to you. If this is troubling you badly, you can continue to send them letters (which they'll continue to ignore). If you're not that bothered, let them carry on blowing hot air until you have the reclaim sorted.

 

The default can be dealt with when hammering out a final deal with them.