MTB v Barclaycard now 1st Credit *** 50% F&F Settl't Agreed ***

[alamand]

Hi Everyone.

April 07 Data protection(agreement) requested.

 

May 07 SAR request sent.

Received statements but no credit agreement received.

 

July 07 sent letter telling them they had committed a criminal offence, received letter back saying that they were sorry for delay but would send as soon as possible.

 

November 07 received letter from Mercers Debt Agency asking for payment, replied saying account was in dispute.Not heard from them again.

 

December 07 received letter from Barclaycard saying they had sent Credit agreement on 10 August 07 (never received it ), I replied asking them to send it again recorded delivery as I had paid the £1 fee.

 

Today received Formal demand for payment from Barclaycard. It says I have not complied with a recent Default notice, but I have not received a Default notice nor have they sent the Credit agreement as well.

 

Can anybody please advise as to which letter to send next.

 

Thanks

Alamand

[PossVox]

Hi,

 

Looks like the DCAs involved passed it back to Barclayshark.

 

If it were me, I would write direct to Barclayshark outlining your correspondence with all so far.

 

PV

[alamand]

Hi all

Would this letter be OK?

 

Barclaycard

PO Box 5402

Northampton

NN4 1ZR

ACCOUNT IN DISPUTE

Account No

Dear Sir/Madam

Thank you for your letter dated , the contents of which I have noted.

In your letter you refer to a “recent Default Notice” that I have not responded to, regarding the above account. I have not received this Default Notice by yourselves, and as a result, I cannot respond to it.

May I bring to your attention, that I have still not received a true signed copy of the credit agreement that exists in relation to the above account. This request was made under Sections 77/78 of the Consumer Credit Act 1974.

This request was made on the xxxx and the payment of £1 by cheque, was cashed on the xxxxx . You were reminded on the xxxx and xxxx that you had failed to send me this agreement.

The failure to send this agreement clearly put the above account in dispute and you committed a criminal offence. As you are aware, until you send me this agreement, the Consumer Credit Act states:

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

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

You may not pass this account to any third party.

You may not register any information in respect of this account with any of the credit reference agencies.

You may not issue a default notice related to this account.

Can I bring to your attention the letter and Default Notice received from Mercers debt collections ltd on xxxx . The action of passing this account to Mercers is a clear disregard of the Consumer Credit Act and illegal. It is also unlawful for Mercers or yourselves to issue a Default Notice whilst an account is in clear dispute.

I then reminded you on the xxxx , following your letter dated xxxx in which you state that you “sent the agreement on the xxxx “,that I had not received this credit agreement and to avoid any delays in resolving this matter, that you post the agreement by Royal Mail signed for delivery.

I now require you to send the credit agreement within 14 days. Failure to send this agreement is a criminal offence and utter contempt of the Consumer Credit Act. All actions will be vigorously defended in a court of law.

Failure to send this agreement will leave me no alternative but to report this matter to the head of your company, Antony Jenkins, about the failings and criminal actions of his company.

1. Failure to send credit agreement. Criminal offence.

2. Passing account to third party (Mercers and Credit Reference Agencies).Disregard of CCA and OFT debt collection guidelines.

3. Issuing Default Notice. Disregard of CCA.

4. Not ceased collection activity. Disregard of CCA and OFT debt collection guidelines.

5. Accruing interest. Disregard of CCA.

6. Threat of court action. Disregard of CCA and OFT debt collection guidelines.

Report Mr Jenkins and his company to Trading Standards, the Office of Fair Trading and the Financial Ombudsman. The OFT and FO clearly state that a dispute should be resolved within 8 weeks.

I hope this clarifies the situation.

Yours Sincerely

xxxxx

Thanks

Alamand

[alamand]

Can anybody please advise or even better has Curlyben or Rory got a better worded letter ?

Thanks

Alamand

[lickthewallfatboy]

Curlyben's letter-

 

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

[alamand]

Thanks.

I knew Curlyben would have one. i just couldnt find it.

Many many thanks.

Alamand

[alamand]

Hi guys

 

Just to update.

 

Barclaycard still saying they sent agreement in August 07, but I havn't received it.

 

Sold debt to 1ST Credit.

Wrote and told them the account was in dispute.

 

1ST Credit replied by saying, they have written to their client Barclaycard ( first letter they sent, they told me they had bought the debt and not to contact Barclaycard. Now they are saying they are acting on behalf of Barclaycard )

 

Will wait and see what happens next

 

Alamand

[alamand]

Hi Guys

 

Well 1st Credit have sent me this letter today.

 

 

Their last letter said they were going to contact Barclaycard regarding the credit agreement. Obviously they havn't sent 1st Credit the agreement, because they havn't sent a copy to me, but they are continuing to harass for payment.

 

Both Barclaycard and 1st Credit have failed to send an agreement, but Barclaycard say they sent it in August last year. I have not received the agreement and have asked them to send it again but they havn't.

 

I am trying to construct a letter to 1st Credit but for some reason the link to the OFT guidelines, is blank. Any ideas how to get it up on screen guys.

 

Am I right in that they cannot take me to court without

1, the credit agreement

2, notice of assignment

 

I did receive a Default Notice in nov 07 from Mercers, I wrote back saying the account was in dispute.Barclaycard replied saying they sent the agreement in aug 07 (I didn't receive it ) and that I should pay or they would pass acc on to a debt collector or take me to court. I sent letter asking for them to send it again.

 

They replied saying they had assigned acc to 1st Credit.

 

I need a letter saying that 1st Credit hav'nt followed the OFT Giudelines and is there a link to what is required before they can take me to court, I am sure I have seen somewhere, a step by step guide to what they should and cant do., but its like trying to find a needle in a haystack.

 

I just wondered if someone could nudge me in the right direction please.

 

Thanks

Alamand

[alamand]

Hi Guys

 

Would this letter be OK?

 

 

Dear Sir/Madam

Re:- Your Ref. xxxxxxxx

I refer to your recent letter the contents of which are noted.

 

You will be aware that, as members of the CSA, you are required to comply with the Office of Fair Trading Guidelines on Debt Collection. I would therefore be obliged if you would provide me with an explanation as to why you are attempting to collect on an alleged debt which was disputed with xxxxxxx prior to your first contact with me, and has yet to be resolved.

 

Since this is considered an unfair practice and contrary to the OFT guidelines, you should consider this letter as a formal complaint, and provide me with a copy of your complaint resolution procedure. I also require you to confirm that you will now comply with the OFT guidelines and not attempt any further collection activity whilst the dispute is unresolved.

 

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

2.2b. Leaving out or presenting in such a way that it creates a false or misleading impression or exploits debtors’ lack of knowledge

2.4b. Falsely implying or stating that action can or will be taken when it legally cannot, for example, “applying for an Order of Sale, on my property”

 

2.6h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

I also require you to supply the following documentation:

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit) - your obligation also extends to providing a statement of account. Please find enclosed a copy of my original request under the Consumer Credit Act to your Client xxxxx dated xx xx 2007.

 

2. A signed true copy of the deed of assignment of the above referenced agreement that you allege exists.

 

3. You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

 

Non-compliance with my request is a criminal offence under the above Act.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

 

 

Should you fail to provide me with the required undertaking within 7 days, I shall report your breach of the OFT guidelines to Trading Standards and the CSA and also lodge a formal complaint with the Financial Ombudsman Service.

 

Alamand

[alamand]

Hi guys

 

Just wondered if anybody has had chance to look if the letter is an appropiate response to the letter above that I have received.

 

Another thing I have noticed, is that the letter I received from Barclaycard, saying that they have assigned my debt to 1st Credit, has the same barcode on it that 1st Credit use on their letters (other correspondence from Barclaycard doesn't have a barcode, but 1st credit has a barcode on all letters), the barcode is my reference number for 1st Credit, and my name and address is written the exact same way (on other Barclaycard letters it is written a different way), and also all previous letters from Barclaycard have come from Northampton,this one has come from Liverpool.

 

It maybe me, but it seems like 1st Credit sent the Notice of assignment, not Barclaycard.

 

Any ideas guys, it looks very strange.

 

Alamand

[creditcardmug]

The letter in post 8 is a scare tactic, make them prove they have a valid executed agreement, i.e. by saying you have asked the OC for it, and have not recieved it, or sending a CCA request to the DCA.

Dont rely too heavily on the threats of reporting them to the authorities, they have no teeth and the DCAs know it.

[Freewilling]

Creditcardmug is right in saying that the authorities have no teeth, numerous times i have gotten involved with DCA and they seem to relish people complaining to the authorities.

Your point about first credit sending the letter as though it was from barclaycard is probably worth further investigation as this is not unheard of. i have had bank of scotland allegedly send me a letter that was from a debt collector threathning legal action but it was not for the full amount owed and it had BOS contact details on it. To cut a long story short i got in touch with the DCA in question and they said that they did not have my file on their systems. Hope that helps

P.S. The letter looks good.

[alamand]

Thanks Creditcard mug and Freewilling.

 

Will send letter tomorrow.

 

Freewilling, I am also in court with Halifax(RBOS) and have just noticed the application form they are taking me to court with, has a different account number on it. It seems something is wrong with that one as well.

You would think that these guys would try and get their paperwork straight. If it wasn't for this site, I think I would have had a nervous break down by now.

 

Big thanks guys

[Freewilling]

I think that is the general idea behind their reasoning they are all about makin False Evidence Appear Real. if you need help with the halifax i believe this is the place to ask for it. Hope that helps

[alamand]

Cheers Freewilling

 

I agree, I have 4 debts left out of nine(F&F offers accepted on 4, 1 wrote off), 3 of which have all done something shifty with the paperwork and something wrong with credit agreements.

So I am fighting. I have started threads with them all.

Been struggling for 20 years, just starting to turn the corner, so in for a penny, in for a pound, as they say.

 

Alamand

[Patma]

Alamand, I have had a long haul against Barclaycard for three accounts and SAR'd them. In my case they didn't provide everything they had on me, which they are obliged to do. I suggest you check through what you got in response to your SAR and if every bit of info they hold on you isn't there, which I would be willing to bet is the case, you could have them for that. I might be wrong, but I would have thought they should have included your original CCA (if they have one) as part of your request for one thing.

I was being hassled by them big time till I sent them a stiff letter in April as a formal complaint and since then, I haven't had a peep out of them except for short notes telling me they're still investigating my complaint.

All the best, Patma

[slick132]

Hi Alamand,

 

I disagree about not reporting the matter. TS and the OFT may not scare the DCA's but I understand a complaint to the FOS costs the DCA who are investigated.

 

Also, complaints will stack up and show that some DCA's are worse than others, hopefully prompting investigation of the worst offenders.

 

Also, when replying to the DCA, mention that they are in breach of the OFT Debt Coll'n Guidelines Sections 2.8(i) and 2.8(k) as well.

[alamand]

Hi Patma

 

All I received from SAR, were the cc statements, nothing else. But I think I only asked for the statements and any manual intervention and I only received them after I reported them to the FOS.

I did not receive the credit agreement from the CCA request. They wrote and told me they sent it Aug 07, and I wrote back saying that I hadn't received it and suggested they send it again, recorded delivery.

Still received nothing, but they still insist they sent it in Aug, but they won't send another.

 

I will send the letter above and see if 1st Credit can get their hands on the agreement.

 

Do you think I should send another £1.

 

Alamand

[alamand]

Thanks Slick132

 

I will put 2.8i and 2.8k in the letter.

 

Should I report them after they have responded to this letter or now, because in the letter I have put "consider this a formal complaint and I want their complaints procedure"

 

And should I pay the £1 for the cca, even though I have paid Barclaycard.

 

I am definately going to report them, but should I let them respond to the above letter and see their response to my official complaint.

 

Thanks

Alamand

[slick132]

Send off the dedicated CCA request letter Letter N with the £1.00 fee.

 

Wait for their response and, depending on what you get back and the level of pressure from the DCA, then complain as nec'y to OFT and FOS at least.

[Patma]

If it were me, I think I'd send another £ just to settle the matter. Barclays seem to like claiming they've sent something when they haven't, they did that trick with me, saying they'd sent default notices when they hadn't.

If you sent the template letter for your SAR, I think they should have sent absolutely everything they have on you. Patma

[alamand]

Thanks Slick132 and Patma

 

Will send the £1

 

Alamand

[Freewilling]

A default notice and a default are two different things i believe, and in my case i have refused to send any of the creditors or DCA any money and no-one seems to have called me on it. IMO i think that it is to register a recent payment, to reset the timer on a statute bared debt. bust as i say it is my opinoin. Could someone validate my first statement please correct or incorrect.

[slick132]

Sorry I didn't link the letter last night - http://www.consumeractiongroup.co.uk/forum/debt-bailiffs-advice/20758-creditors-dcas-letter-templates.html

 

[alamand]

Hi everyone

 

This is 1st Credit's response to my letter above.

 

 

Its states that Barclaycard sent me a copy of the agreement on xx/xx/xx and again on xx/xx/xx, (never received) but I have a 2 seperate letters from Barclaycard saying they sent the agreement on a completly different date, which they actually didn't send it to me at all, so I still havn't got an agreement from anybody.

 

The first contact from 1st Credit advised me that they had been assigned the debt from Barclaycard and that they owned the debt and any payment should be made to them and not Barclaycard.

 

I then receved a letter from Barclaycard with their logo on it but with 1st Credits barcode on it ( so I think 1st Credit sent it and put Barclaycards logo it, as Barclaycard do not put barcodes on their letters) saying they had assigned the debt to 1st Credit.

 

After my initial letter to 1st Credit stating that the account was in dispute, 1st