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Hello! Newbie in need of LOTS of advice :)


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Just about to send my "you have failed to respond" letter, when in the post this morning I received a printed copy of Barclaycards standard T&C's with a cover letter saying "as requested".

 

In no doubt that they do not have a signed copy of my credit agreement, so I'll get my letter off today and start looking into claiming back all the PPI and late charges I've paid on it, etc.

 

Question as before though - if they don't have a signed CA, can I not claim back all the interest they've added? Surely if I haven't signed an agreement they can't add interest I haven't agreed to pay?

 

Any thoughts?

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Hi Sam,

 

There's a letter that's appropriate for this. Adapt to suit:-

 

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

The PPI should be addressed, perhaps with reference to the date you became self employed.

 

You don't know yet whether they have a valid Credit Agreement. If you have all the statements for the a/c, you can add up all the penalty chgs on the a/c and get the balance reduced in respect of these.

 

If they DON'T have a valid CA, they must stop adding chgs and interest to the a/c and you can repay it at a rate that suits you.

 

You can't, however, seek repayment yourself - any refund will be used to reduce the a/c balance.

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  • 3 weeks later...

Today received a letter from RMA (dated 13/11/08!!) saying THEY are now acting as agents for Barclaycard and are demanding immediate payment, etc.

 

This account went into default on 13/10/08 when Barclaycard failed to produce my signed CCA.

 

I thought they were not allowed to pass on or sell this debt to a third party?

 

It's also been another 40 days (inc weekends) since they failed to produce my CCA. Is this not now an offence? :eek:

 

Should I write to RMA saying P@#! off, you've bought a non enforceable debt! ? Should I also ask WHEN they bought it and how much for (usually between 7 - 20% isn't it)?

 

Should I also write to Barclaycard stating that they have commited an offence and report them to the FSA, etc?

 

What's my next step? :confused:

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Hi Samcam,

 

Take a browse through this letter and amend to suit your RMA letter but I found it worked for me good luck.

RMA Reference:

 

(Scouser9)

DEAR SIRS

To Whom it may concern

 

Please be aware that I do not acknowledge this debt to your company, and therefore require you to supply the following documentation before I will correspond further.

 

Firstly, you must supply me with a true copy of the agreement you refer to in this matter. This is my right under the legislation contained within section 77 (1) and section 78 (1) of the Consumer Credit Act 1974 - your obligation also extends to providing a statement of account. I enclose a £1 POSTAL ORDER in payment of the statutory fee.

I also require that you supply a signed true copy of the deed of assignment of the above referenced agreement within 12 working days

 

You are reminded that you are obliged to supply these documents, whether you are the original creditor or not, under section 189 of the CCA 1974.

 

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. In the meantime please be aware that I consider this matter to be “IN DISPUTE"

I now require all further correspondence from your company to be made in writing only. Be advised that any telephone calls from your company will be recorded.

 

Yours faithfully[/font]

 

Hope this helps

Regards

Mike

Edited by scouser9
spelling

Keep claiming the right

 

Mikey

 

If you find that I have helped in anyway please click on the scales to left of the screen- Thank you

 

Advice & opinions of Scouser9 are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

 

 

50% Of claim offered by The Halifax 09/12/2006

LBA letter sent 11/12/2006

Refusal in part of Payment sent 12/12/2006

Halifax settled with £4200 agreed amount 27/12/2006

Survey Submitted and Donation Made 02/01/2007

PPI Claim Sent To Halifax 25/11/2008

PPI Claim Halifax Won 31/12/2008

PPI Claim Sent To Carcraft 22/12/2008

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You will probably find that RMA cannot produce because Barcleycard could'nt

 

Regards

Mike

Keep claiming the right

 

Mikey

 

If you find that I have helped in anyway please click on the scales to left of the screen- Thank you

 

Advice & opinions of Scouser9 are offered informally, without any assumption of liability. Use your own judgment. Seek advice of a qualified and insured professional if you have any doubts.

 

 

50% Of claim offered by The Halifax 09/12/2006

LBA letter sent 11/12/2006

Refusal in part of Payment sent 12/12/2006

Halifax settled with £4200 agreed amount 27/12/2006

Survey Submitted and Donation Made 02/01/2007

PPI Claim Sent To Halifax 25/11/2008

PPI Claim Halifax Won 31/12/2008

PPI Claim Sent To Carcraft 22/12/2008

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Thanks Mike, I'll sort this out now.

 

I assume that "deed of assignment" is the contract that would state when they bought the debt from Barclaycard, etc and for how much?

I was under the impression that Barclaycard are not allowed to sell the debt or pass it on because it's in dispute. Is that not right?

 

If it is, should I be reporting them to someone? FSA, etc?

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Hi Sam,

 

This may be more suitable given the circumstances :-

 

Dear Sir or Madam,

ACCOUNT IN DISPUTE - Account number: XXXX XXXX XXXX XXXX

 

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.

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 have breached and 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 and, under s127, this constitutes a complete defence at law.

 

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.

 

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

 

I would appreciate your due diligence in this matter and look forward to hearing from you in writing.

Yours faithfully,

Report the matter to Trading Standards and the FOS (who will charge to investigate).

 

Forget about how much the debt was bought or sold for as it sounds as if BC still own it anyway. This is just their way of pursuing the matter with their cronies.

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Report the matter to Trading Standards and the FOS (who will charge to investigate).

 

 

Erm, but I don't have any money! That's why I'm in this mess:) How much does the FOS charge me?

 

Also, is it MY local Trading Standards I have to complain to, or theirs? And what exactly will TS or FOS do?

 

EDIT

----

Just went on the FOS website and it states in the FAQ's "The ombudsman service is a free and informal alternative to going to court."

 

So ... where is the charge coming from?

Edited by samcam
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Hi Sam,

 

The FOS will charge the creditor (I think it's £450) if they have to investigate a complaint.

 

They don't charge you !! :)

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  • 4 weeks later...

Hi All,

 

I sent off my SARs letter with fee to Barclaycard at the beginning of November and just received this back:-

 

barclaycard0001.jpg

 

http://www.campbellphotographic.co.uk/images/barclaycard0001.jpg

 

They sent me all statements for exactly six years back from the date of my letter.

 

Are they right in saying a) they don't have to provide anything on microfilm? and b) should I have got anything else from them (i.e. copy of any and all letters they have sent me over the years, signed CCA, T&C's, etc)?

 

My signed CCA is still outstanding, but they are now saying they don't have to give it to me. Today I received this letter also:-

 

barclaycard0002.jpg

http://www.campbellphotographic.co.uk/images/barclaycard0002.jpg

 

I don't know what they mean by "altered". If they mean something as simple as changing the interest rates, then surely we're all in for it!

 

Don't they still have to provide my signed CCA, or am I up the creek without a paddle?

 

REALLY worried now, so hope to get some replies.

 

Cheers,

Ross

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Hi Sam,

 

Running back through your thread, I can only see that they've sent you a set of T&C's in response to your CCA request.

 

Can you post whatever you rec'd so it can be checked over.

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In all cases, immediately after receiving the above, I sent a return letter (recorded) stating that these did not constitute true copies of my CCA (no signatures or dates) and that I considered the aledged debt to remain in dispute until they provided such.

 

But they are now they are saying the law says they don't have to provide anything with my signature on and they've provided everything as legally required, they do not consider the debt in dispute and they are starting collection again.

 

Where do I stand?

 

Just what I wanted for XMAS:(

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They've sent you nothing but T&C's, nothing signed by you and not even an Application Form.

 

So I can't see they have sent you anything which remotely resembles a Credit Agreement.

 

In which case they should not be demanding pay't, or anything else on this a/c. When was the a/c sold to the present DCA.

We could do with some help from you

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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.

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Hi Slick,

 

Exactly my point. They have never supplied a copy of a signed CCA, but they are now saying they don't have to!

 

They say if they have changed even just one of the terms in the T&C's they can provide a copy of the New T&C's and this is acceptable.

 

I thought that regardless of everything else, they have to provide a copy of the original signed agreement to prove I agreed to the original credit agreement, regardless of what has changed since.

 

I'm really worried now, because it sounds as if I don't have a leg to stand on - but this can't possibly be right!

 

Really hope someone out there has an understanding of this.

 

 

Cheers

 

 

PS

Mercers had the account since June 2008. Account officially went into dispute on October 13th when they failed to provide my CCA - and then it was passed to RMA a month later on 11th November ( I sent a letter to both RMA and Barclaycard explaining that they were in breach of the CCA and Data Protection Act for that).

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Hi 42man,

 

What do sections 60, 61 & 65 refer to? Is this about needing to have my signature?

 

I wouldn't be able to state when the agreement was executed, because I can't remember how long I've had the card (at least 12 years I think - memory like a ... erm .... one of those things with holes in ... can't remember what they're called ....).

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Hi SamCam

Well they can satisfy the CCA by providing what they did. BUT, it's not quite what you asked for, so the next step is to put the account into dispute because of their failure to provide what you actually asked for legally. You're then under no obligation to pay them anything. The letter by 42Man states this quite well.

They haven't come up with the 'real' agreement most likely because it now doesn't exist. If its a microfiche copy its probably a very poor one.

They are putting the frighteners on you in the vain hope you'll fold.

If you go by 42Mans letter and the timescale within, wait the 21 days, if they dont comply, certainly report them to FOS etc. because of their tactics.

You'll have to wait and see what the cretins want to do after that because, if they want to take you to court, they now know you know a little more than they would like, this could be a problem for them.:D

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