Barclaycard/Mercers Dept Collectors

[citizenB]

Sheesh, Gazza. Just sending the terms and conditions.. current ones at that, is not acceptable. When was this account opened ?

 

Also in the letter prior to this one. They say they will only accept reduced payments via a Debt counselling agency. They are well aware that a debt counselling agency is unlikely to act on your behalf while you are on benefits and only able to pay a token payment.

 

I think you need somone who has better letter writing skills than me to help you out with this one.

[42man]

A blank agreement !!! Have they sent you the current terms as opposed to the terms when you took out the card ??

[42man]

If indeed they haven't sent the correct terms (which should be from when you opened the account) then send them this...

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[Gazza112]

Hi CitizenB

 

Yes, i think there just trying to wind me up:D.

There trying to use the confused affect:eek: with this CCA.

 

Gaz

[citizenB]

Well now, if they confuse you too much.. then you will be unable to deal with their stupid letters. 42man has drafted you a particularly impressive letter.

[Gazza112]

Hi 42man

 

Probably around 5-6 years ago when i took this card out.

No, they nether sent my original agreement or Term & Conditions out.

Once again thanks for your info and input to my thread 42man

 

Gaz

[Gazza112]

Hi CitizenB

 

Yes, and its only Monday:confused::D

[citizenB]

Hi CitizenB

 

Yes, and its only Monday:confused::D

 

Lets hope you dont get any more between now and Friday then

[tosh1]

subbing

[Gazza112]

Hi

 

Received this letter from Barclay's, think there getting a bit confused.

 

 

Gaz

[banker_rhymes_with]

Hello Gazza112!

 

This is standard banking nonsense, as they will often send out some grovelling Letter to say how they are sorry about your Complaint and will get back to you. Next letter won't arrive, but something nastier probably will.

 

Meanwhile, back at the Ranch, their other bankers will be busy as beavers beavering away working out how to nail you, and/or passing you on to the banker across the desk whose turn it is to be called Mercers that day. Or, they may even pass you over to any one of the many DCAs the Galactic Empire Barclays like to use, ScotCall etc.

 

The above Letter is not really for your benefit, it's just token bumf to make them look good when FOS or a Judge peer at the bundle of Letters associated with your case.

 

I think they just send these out at random to look good, but usually only at the start while they are scrabbling around trying to find things. Once they have caught their stride, they won't send any more polite letters.

 

Cheers,

BRW

Edited November 21, 2008 by banker_rhymes_with
Typo!

[Gazza112]

Hi Banker Rhymes

 

Yes, they've already sent it to mercers who sent it to Power2contact who paid a visit to my house. after a couple of letters to mercers and Power2contact it seems its gone back to Barclays.

 

Gaz

[Gazza112]

Hi All

 

Sorry not been on in a why, not been able to get internet but back on line now.

Just to get you updated on what's been going on with Barclay's.

Had a nice phone call from Barclay's i know what your going to say don't speak to them on the phone but caught me off guard. Anyway confersation goes i owe this money and that they will sell it on to a third party. They can't accept £1 i'm paying them at the moment but will settle for £5 but i neet to contact there department for that. They also said they will keep phoning to find out if things have changed.

Anyway with the phone call i received a couple of letters since i was on the forum, one's about my CCA i asked for.

Here's the letters i received from Barclay's, just need a bit of advice on the CCA letter what should i do next.

 

 

 

The following letter was from the CCA i asked for.

 

 

 

 

 

 

Gaz

[tosh1]

Hi Gazza

 

I sent the letter below - As i received the exact letter from BC

 

 

Dear Sirs

 

Account number

 

I write with regards to the above account with your organisation.

 

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

obviously if the agreement is improperly executed i would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which i have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and would ask for a response by 21/01/09

 

Regards

 

 

 

xxxxxxxxxxx

[tosh1]

Hi Gaz

 

there is a thread that you shold read. I think everyone from BC are receiving a similar letter.

 

heres the link -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

Tosh1

Edited January 9, 2009 by tosh1

[Gazza112]

Hi Tosh

 

Thanks for coming to my thread and the info you supplied.

I looked at the link you gave me very interesting reading, looks like i need to send the same letter you put up to Barclay's.

 

Gaz

[42man]

You could send this one !!

 

Thank you for your response to my request under the Consumer Credit Act section 78.

 

I am pleased to see that you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any prescribed terms and my signature means that a court would be prevented from enforcing it under s127(3)"

You had until (date here) to provide me with the true copy I requested. After that date you entered into default of my request and I am therefore advising that the matter is now in dispute . Whilst the matter is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else.

 

Please note you may also consider this letter 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 including any defaults. 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 fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[Gazza112]

Hi 42man

 

Thanks for the info and imput, i'll get that letter out to them tomorrow.

I also received a simular letter from Halifax today, so probably send one to them as well.

 

Gaz

[citizenB]

You may also find the following post by angry cat of interest. Note the last bit:D

 

7(1) Where an agreement has been varied in accordance with section 82(1) of the Act, EVERY COPY OF THE EXECUTED AGREEMENT given to a debtor, hirer or surety under any provision of the Act other than section 85(1) SHALL INCLUDE either-

 

a) an easily legible copy of the latest notice of variation given in accordance with section 82(1) of the Act relating to each discrete term of the agreement which has been varied;

 

or

 

b) an easily legible statement of the terms of the agreement as varied in accordance with section 82(1) of the Act.

 

Regulation 7 refers to a copy of the executed agreement and that sub sections a) or b) are in addition to this AND NOT ANY ALTERNATIVE TO SENDING THE ACTUAL EXECUTED AGREEMENT.

 

AC

[Gazza112]

Hi CitizenB

 

Ok, if for instance i go down the CPR 31.16 route, do i have to send them another £1 for sending me the information.

Other than that i'll send 42car's letter which he kindly put up for me to send them.

 

Gaz

[citizenB]

Nope, no money should change hands for the CPR 31.16.

[Gazza112]

Hi CitizenB and all

 

Ok seems Barclaycard's sold my account on, as Barclay's not going to send anymore statements through to me. Credit Solutions seem to taken up this account know. What would be the next plan of action with this company, at the moment in the last two days i've received 1 text message, 1 recorded message on my main line phone yesterday. Received 1 phone call to day which i answered but made out i was someone else.

Here's the letter i received from this company today.

 

 

Gaz

[bazaar]

Hi Gaz

How about something like this:D

 

Dear Sir or Madam,

 

I must admit that I am rather bemused as to why this account has been passed to you, as it is in dispute with ***DCA*** and has been since ***Date***

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

 

 

As ***DCA*** is now in default of my Consumer Credit Act request, Office of Fair Trading Collection Guidelines and 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. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

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

 

If ***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.

 

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

 

I would appreciate your due diligence in this matter.

 

Yours faithfully

[bazaar]

Also, if you look at their letter they state 'It is Barclaycards policy to pass on details to to CRA's when WE send you a formal demand'

Now who are they really??

Could be another front from the weazels at the Mercers desk

[Gazza112]

Hi Bazaar

 

Thanks for your reply and info.

That letter you put up looks preaty impressive, i'll get that copied and get that into the post to them. As you said they could be an offset of Mercers, but as CitizenB said to me they did win an a award in 2007 for best DCA. So i must be honoured to have them on my case lol.

 

Gaz