Barclaycard/Mercers - Getting Started

[Mockenrue]

Hi Mockenrue,

 

Get straight on with reclaiming the charges. The sooner you do this, the sooner they'll refund the charges to you a/c and reduce the balance.

 

It'll will also put the a/c "In Dispute" which will give you more protection from the OFT Debt Collection Guidelines. This will be useful in getting BC and their DCA's to back off (or at least slow down). It should also stop BC and/or Mercers selling the debt on to more aggressive DCA's.

 

Fire off the Prelim Letter if you're happy with your Scedule of Charges.

 

Thanks slick, I was going to get straight onto it but after reading countless threads elsewhere on here I was under the impression that the accepted wisdom is that you cannot go down the CCA route and reclaim charges at the same time - am I mistaken?

[Mockenrue]

I sent them the doorstep 'bog off' letter last week and the telephone harassment letter this week, however today I have received this (dated the 26th and sent 2nd class!):

 

 

Should this be taken seriously or is it just another automated threatogram?

 

:evil:

[banker_rhymes_with]

Hello Mockenrue!

 

Should this be taken seriously or is it just another automated threatogram?

 

File it under Harassment!

 

But keep the Envelope to prove it was Posted 2nd Class, as this will all add to the strength of any Harassment Counter-Claim you may need to fire at them later on.

 

Cheers,

BRW

[slick132]

The reason I said get on with the claim is that you said in post #1 :-

 

I'm not trying to avoid the debt but as I've seen in a lot of other cases my arrears situation hasn't exactly been helped by the interest and charges applied to my account over the years and I wish to claim them back.

I took this to mean you're not trying to evade the debt and are willing to honour it, so reducing the debt makes sense.

 

If no Credit Agreement is produced, you can repay the debt at a rate that suits you and get any Default markers removed.

 

Some peeps see the "No CA" scenario as a way of ditching the debt entirely, in which case, reclaiming the charges is irrelevant.

[slick132]

Letter to Mercers,

 

Dear Sir or Madam,

 

A/c no. xxxxxxxxxxxx

 

Regarding your letter of 26th September, you should be aware that BC were sent a formal request for the relevant Credit Agreement on 15th September and have, so far, failed to respond.

 

Accordingly, any further action or contact from you will be in breach of the OFT Guidelines on Debt Collection and will result in complaints being made to Trading Standards and the OFT.

 

Yours faithfully,

[Mockenrue]

Thanks If no valid Credit Agreement exists then I would of course make the most of such a situation if possible, be it a write-off or an opportunity to offer them a F&F or, as you say, "repay the debt at a rate that suits [me] and get any Default markers removed" (the most likely in that scenario I would imagine). I also see the 'no CCA' thing as something which would go in my favour should they decide to take me to Court.

 

The claiming back of charges is something I intend to pursue with most if not all of my creditors, and in this particular case a successful claim would reduce my balance to its pre-default amount.

 

I've just checked my latest statement (also received today) and the £1 I included as the CCA fee has been credited to my account. Grrr!

[slick132]

Add a para to the ltr to Mercers:-

 

"My latest BC statement shows a credit of £1 on xxxxdate. I believe this is the payment which I sent with my Credit Agreement request. If this causes any delay in you or BC sending me the Credit Agreement to which I'm entitled, this will be further cause for complaint to TS and the FOS."

[Mockenrue]

Cheers. Letter will be sent tomorrow.

[banker_rhymes_with]

Hello Mockenrue!

 

Possibly too late now to catch you before sending the Letter, but my advice is to always refer to any such deposits as Gifts.

 

It does prove they received your CCA Request but, equally, you do not want that Statutory Fee to be regarded as a Payment you have made towards the alleged Debt.

 

Otherwise, this may re-set the Statute Barred time limit clock again each time such a fee is added as a Payment from you. Not that it will come to this in your case, but just say this dragged on for 6 years, then if no Payment from you in that time, and no other issues such as a Court Judgement against you, then the alleged Debt will become Statute Barred.

 

The fee you Paid was a Statutory Fee for a specific purpose, namely to obtain a true copy of your properly executed Regulated Credit Agreement. It was not a Payment towards any alleged Debt you owe.

 

What they do with that fee is up to them, but adding it towards your alleged Debt is actually a sneaky little trick to try and push the Statute Barred issue further into the future.

 

Thus, always call such Deposits by Creditors as Gifts, and whenever sending such Statutory Fees, make it clear that the Payment is not a Payment towards any Debt.

 

This divorces your Statutory Fee from their Deposit. But the fact they have Deposited the Fee, nevertheless proves on the balance of probabilities that they did receive the fee.

 

It's getting close to Christmas, so you can call their Deposit an early Christmas Present if you so wish. How jolly decent of them.

 

Cheers,

BRW

[tosh1]

Hi Mockenrue

 

This might help -

 

Whenever I send a letter to Mercers I have started to send an exact copy of the letter to Barclaycard as well asking them to forward it on to Mercers in the off chance that they don't receive them.

[Mockenrue]

Hi Guys

 

No, it's not too late - I've taken on board both your suggestions and incorporated them with slick132's into my letter.

 

Cheers

[slick132]

BRW,

 

Yes the £1 paid to the a/c is a sneaky trick.

 

In other cases, as you say, this could have serious consequences if a debt was close to or beyond 6 years with no payments. But, in Mock's case where a payment has been made within the last month or 2, it's not a problem.

 

Don't think their £1 contribution to Christmas will make stretch very far though.

[tosh1]

Hi Mockenrue

 

I also sent my cca request on the 15th September and I have still not received the cca. I have in the mean time sent token payments to them and was wondering if you have received any other sort of responce from them.

[slick132]

Hi Tosh,

 

If yours is a BC case, you could start a thread for it here so peeps can advise if required.

 

[Mockenrue]

Well, they've finally replied to my CCA request (sorry tosh1 I missed your post of 11/10). I got a covering letter and one double sided sheet entitled 'Barlaycard Conditions'. Here they are:

 

 

No signatures anywhere, no nothing. Then a couple of days later I received a second double sided sheet, also entitled 'Barclaycard Conditions' under separate cover (as stated in their covering letter):

 

 

Now I'm no expert but nothing they've sent me seems even remotely valid. Any input is, as usual, very gratefully received.

[slick132]

Hi MR,

 

Adapt this as necessary to reflect your own case.

 

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 a copy of 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 cancellable 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

[Mockenrue]

Outstanding, thank you very much slick

 

A version of that will be on its way to them on Monday.