Uptoneck vs BC (Mastercard)

[uptoneck]

This is a sister thread to: http://www.consumeractiongroup.co.uk/forum/barclaycard/164727-uptoneck-barclaycard-what-should.html#post1771226

 

I've been having an ongoing issue with Barclaycard for some months now. We seem to have reached an impasse, and I'm not sure what to do next.

 

Admittedly this post is rather long, but please bear with me. I seem to be getting the run around from BC. I've posted bits and pieces of this elsewhere on the forum, but feel I should bring things together on my own thread. Any input and advice from fellow CAG members would be much appreciated.

 

I started a new business last year, and (long story short) it's not been doing as well as I had hoped. Most of my creditors have agreed to let me make token payments of £1 until I can get things sorted out. Even Crapital 1 reluctantly agreed after some haggling. The sole exception is Barclaycard -- which on the face of it seems pretty stupid as I have banked with Barclays for 23 years, so they know my financial position (skint) better than anyone.

 

I have a Barclaycard Visa and a Mastercard. I've had the Mastercard since 1992 when my Assent card was discontinued.

 

After a continued period of abusive phone calls from Barclaycard and Mercers -- including one from a very rude woman who said "We won't accept a penny less than the minimum payment and arrears ..." and went on to make all sorts of thinly veiled threats which I won't repeat here -- I discovered this forum and decided to fight back.

 

Mercers sent me the usual default notices -- which I now know from this forum are rubbish.

The timeline of events since then is as follows:

 

15/15/08 I did a CCA on both accounts

 

15/5/08 I wrote to Mercers informing them that I had requested my CCA on both accounts and that all collection activity must be suspended.

 

16/5/08 Answered phone call from Mercers. Told their bod that the accounts are in dispute and that "it would be inappropriate of me to enter into any dialogue with you today, except to say that all communication should be in writing from now on." I also sent them a letter to this effect incorporating the "doorstep call" letter from the forum.

 

30/5/08 Received letter from Barclaycard in response to my CCA request telling me that they're dealing with my enquiry, but are unable to give a full reply at the moment.

 

5/6/08 Received a letter from ScotCall saying Mercers has passed the account on to them, that I should telephone them to pay the balance by debit card immediately or they will arrange a "doorstep call". I write back to say the accounts are in dispute, and include text from the doorstep call letter from the forum.

 

7/6/08 Received another letter from BC saying they're sorry to hear I'm dissatisfied with the level of service I've received from them and that "...the provision of a high level of service is important to Barclaycard"!

 

10/6/08 CCA finally arrived. This is what they sent me. (yes, really). They also sent me what I assume is a copy of the latest terms and conditions.

 

 

 

It looks like pants to me, but I'd value a second opinion from someone who knows about enforceability.

 

16/6/08 Wrote to Mercers to complain about the number of telephone calls. Use telephone harassment letter template from the forum.

 

Not that Mercers took any notice. In fact, I've had so many phone calls from them (up to 6 a day at one point) that I've had to buy a new answering machine as they've literally worn the old one out!

 

18/6/08 Wrote to BC stating that I've now had time to study my application form carefully, and pointing out that as they've sent me a "Notice of Variation, effective 7 days from receipt" they cannot possibly be the terms and conditions that were in force when I applied.

 

23/6/08 Got the following "Final Response" letter from BC. It's so riddled with inaccuracies, I figured they must be getting me confused with someone else.

 

 

 

 

Wrote back pointing out all that they've got wrong , and restating what I really asked for.

 

28/6/08 Got the following letter from Power 2 Contact. My last letter to Mercers was signed for on the 17th, so this is utter rubbish.

 

24th June 2008

 

Dear Mr Uptoneck

 

P2C Reference: XXXXXXXXXX

Client Reference: XXXXXXXXXX

 

IMPORTANT NOTICE

 

Mercer Debt Collection has engaged power2contact Ltd, a specialist customer contact company, with many years experience of contacting hard to locate parties, to act on its behalf in relation to accounts such as yours where it has lost contact with cardholders.

 

We at power2contact Limited understand how easy it is to lose contact and we want to work with you, to help rebuild your relationship with Barclaycard

 

Mercer Debt Collection records indicate that they have had no recent contact with you and request that you call them on 0870 410 0389 immediately.

 

In the event that you fail to contact Mercer Debt Collection within 72 hours, we will instruct one of our Contact Managers to visit you at the above address to discuss, and hopefully resolve this matter with you.

Please telephone Mercer Debt Collection urgently on 0870 410 0389

 

Yours sincerely,

 

S. Grocott

For and on behalf of power2contact Limited

 

8/7/08 Doorstep call from someone representing Mercers. Sent him packing, but it could have been very embarrassing. Fired off a letter of complaint to Mercers restating that the accounts are in dispute, and I'm not obliged to make any payments until the dispute is settled.

 

12/7/08 Received a "48 Hour Notice" from Mercers (dated yesterday). Fired off a b****r off letter to hand to their rep so there's no discussion at the doorstep, but he never turned up.

 

19/7/08 Received the following letter from BC. I've edited the text slightly as it is quite specific and I don't want to give away my identity to the MIB. It reads like total c**p to me!

 

 

Dear Mr Uptoneck,

 

Reference: SECTION 78 of the Consumer Credit Act 1974

 

Barclaycard Account Number: XXXXXXXXXXXXXXXXXXXXXXx

 

I write further to your letter dated XXrd June 2008.

 

Firstly, please accept my apologies for the delay in responding to your letter.

I have noted the issues you feel are in contention and I have reviewed what has been sent to you. However, I deem this to be sufficient for the bank to have fulfilled its obligations under Section 78 of the Consumer Credit Act 1974.

 

Credit card agreements are regulated by Section 78 of the Consumer Credit Act 1974. Section 78 of this Act clearly determines a creditor only need supply a debtor a copy of the executed agreement, and a signed statement showing information which is practicable to refer.

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 deal with how we are to provide a copy of an executed agreement. Regulation 7, shows that where an agreement has been varied, as in your case, a debtor shall include a copy of the latest variation of terms. Regulation 7 does not state that the copy shall include a statement of the original terms as well as a statement of the varied terms. Therefore, Regulation 7 allows us to provide you with a copy of the executed agreement containing the terms and conditions current at the time of supplying the copy.

 

Regarding a signed statement showing information which is practicable to refer, the letter you received with your executed agreement, dated 7th June 2008 fulfils this obligation. This confirms that what we have supplied you, fulfils the Bank's obligation under Section 78.

 

In your letter you state you have not been supplied with the requisite documents that section 78 entitles you to. I disagree with this. What has been sent to you is a clear copy of the executed agreement. Within this document the relevant conditions which are regulated by the consumer credit agreement are included. Further to this, you have also been provided with a copy of your application form [my italics]. This shows your signature and your personal information. All documents, other than the executed agreement were given to you for your convenience - Section 78 of the Consumer Credit Act 1974 only requires us to provide you with the information stated above.

 

 

Regarding your application form, you state that it does not adhere to the prescribed form set by the Consumer Credit Act 1974. Regulation 3(2)(a) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, shows that when providing copy documents, any information included in an executed agreement can be omitted from other copy documents. This demonstrates that your copy application form need not contain all the elements contained within the executed agreement.

 

You should carry on paying the debt you have accrued on your account. We do not class the account as "in dispute", you have been supplied with the relevant documentation under Section 78 of the Consumer Credit Act 1974, and we will carry on with collection services.

 

I hope this letter has helped with your concerns about the documents you have been supplied with under section 78 of the Consumer Credit Act 1974.

 

 

Yours sincerely,

 

 

 

Surely if the 1983 Regs state that anything can be omitted from copy documents, then BC could satisfy its obligations by sending me a blank sheet of paper --- which would be contrary to the spirit of not the letter of the Act.

 

20/7/08 Received exactly the same letter from BC as I received on 30th May, only with a different date! Obviously the same one they send out to everyone.

 

30/7/08 Received another "Final Response" letter from BC. Word for word the same as the one they sent me on 23rd June! Only the dates are different. Fired off a letter to BC enclosing a copy of the former, and telling BC that if they think I'm going to be fobbed off they can think again.

 

2/8/08 After tracking down a copy of the 1983 regulations, I sent a letter to BC stating that it is my contention that Regulation 7 requires BC to send me a copy of the varied terms, but doesn't say they can substitute it for the original terms and conditions. Also point out that they refer to the document sent in response to my CCA request as an "Application Form" and point out why I don't agree with their opinion that it conforms to the 1974 Act and 1983 Regs. Tell them I still regard the account as being in dispute.

 

13/8/08 8/8/08 Received a letter from Mercers demanding I pay my balance in full, and listing all sorts of consequences if I don't pay up within 7 days -- including sending in the bailiffs. I know they can't do that without a court order, so don't bother to reply. In the same post I received the following from BC:

 

 

8th September 2008

 

Reference: SECTION 78 of the Consumer Credit Act 1974

 

Barclaycard Account Number: XXXXXXXXXX

 

 

Dear Mr Uptoneck,

 

Thank you for your letter dated 2nd August 2008.

 

1 am sorry to here of your dissatisfaction with regard to the documents that were sent to you under the notion of section 78 of the Consumer Credit Act 1974.

 

To address the issues you raise in your letter of 2nd August 2008. Firstly, you raise Regulation 7 of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983. Regulation 7 provides creditors a choice of including in the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied.

 

Regulation 7 does not state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Therefore, Barclaycard has fulfilled its obligation by providing the terms and conditions current at the time of the provision of the copy.

 

Secondly, you dispute the conformity of your application form. In my letter dated 17th July 2008, I stated that it was not necessary to send you the application form under the premise of section 78; it was given for reference. Further, I mentioned Regulation 3(2)(a) of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983. This shows that when providing copy documents, any information included in an executed agreement can be omitted from other copy documents. Therefore, your copy application form need not contain all the elements contained within the executed agreement.

 

To conclude, Barclaycard has fulfilled its duty under the principle of section 78 of the Consumer Credit Act 1974. You should continue to pay the debt you accrued as collection activities will continue on your accounts.

 

 

Yours sincerely,

 

15/8/08. Sent letters to Mercers based on the excellent letter posted here.

http://www.consumeractiongroup.co.uk/forum/legal-issues/123005-application-form-barclaycard-no-2.html#post1309513

 

16/8/08 Another settle Mastercard in full or we'll send the boys round letter from Mercers. Ready for them this time, but no-one shows up.

 

10/9/08 Received the following from BC. This doesn't seem to be getting anywhere!

 

 

Barclaycard Account Number: XXXXXXXXXX

 

Final Response

 

Dear Mr Uptoneck,

 

I write further to your recent correspondence, details of which have been passed to me so I can clarify Barclaycard's position.

 

I would like to confirm I have today spoken to Mercers, as they are indeed dealing with your account at the moment. They have confirmed prior to a doorstep collector calling at your property they would issue a letter to advise this action would be taken. However, they have also advised this would only take place if there was no arrangement in place on a customers account or if there has been no contact from a customer regarding their account. It is our legal right to enforce this, however, I would like to point out they are simply there to try to gain an arrangement for payments to your account and not to enter your property.

 

With regard to your request for documents under Section 78 of the Consumer Credit Act I see from our records that a Final Response was issued to you on the 21 st July 2008 and this clearly stated the Bank's position. Whilst I am sorry that you remain dissatisfied, we have nothing further to add.

 

As previously advised, you may be able to refer your complaint to the Financial Ombudsman Service. Please note that you have six months from the date of the Final Response letter to refer to the Financial Ombudsman Service for investigation.

 

I enclose a further copy of the Financial Ombudsman Service's "Explanatory Leaflet" for your information.

 

Yours sincerely

 

Customer Relationship Manager

 

Enc: Financial Ombudsman Service -- "Explanatory Leaflet".

 

22/9/08 Received another missive from Mercers demanding I settle my Mastercard in full or they "may pass your account to a solicitor who may issue a legal proceedings against you or a local representative who may call at your home". I reply right away referring them to my letter of 15th August and state that I have nothing further to add.

 

17/10/08. Received the following. They've also been phoning me twice a day and (a new tactic) sending text messages to my mobile phone.

 

 

This all seems to be going nowhere, and I'm at a loss as to what to do next.

 

Any suggestions would be much appreciated.

[uptoneck]

A new development. Received this in the post today:

 

 

Dear Mr Uptoneck,

 

Reference: SECTION 78 of the Consumer Credit Act 1974

Barclaycard MasterCard Account Number: XXXXXXXXXXXXX

 

Firstly, please accept my apologies for the delay in response and for the inconvenience this may have caused.

 

I write further to your letter and the enclosed £1.00 fee requesting a copy of your executed agreement for the above account.

 

Please find the following documents enclosed:

 

A copy of your original Barclaycard Credit Agreement at the time you opened your account.

 

As your account has been sold, further information relating to the current state of your account can be obtained directly from your Debt Management Agency.

 

The information we must provide to you under the terms of Section 78 is prescribed by the Consumer Credit Act 1974 and by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

This completes our obligation to you under Section 78 of the Consumer Credit Act 1974.

 

Yours sincerely

 

 

At first I thought:This rather pulls the rug out from under the haven't supplied the complete agreement argument, but upon closer inspection, this obviously isn't a copy of the reverse of my application form, so I don't think it gets them anywhere.

 

One thing does bother me: They state that the account has been sold. Can they do this while it is still in dispute? Aren't they supposed to tell me if the alleged debt has been sold, and to whom? How do I find out? The missive from CSL says they are acting for Barclaycard.

 

Very confused.

Edited October 21, 2008 by uptoneck
More info added

[slick132]

You could write back and say:-

Dear Sir or madam,

 

A/c no blah blah

 

I am confused by the comments in your letter of blah.

 

1) I have received no Notice of Assignment in relation to the alleged debt.

 

2) I would not expect to receive a NoA, as the a/c is in dispute.

 

3) You have yet to provide with with an enforceable Credit Agreement in response to my request.

 

I would appreciate your early response and, in the meantime, please ensure I receive no phone calls about this matter. All contact must be in writing.

 

Yours faithfully,

[uptoneck]

Thanks for that. Will get something off to them right away. I didn't think they were allowed to simply sell the (alleged) debt on without telling me. I wasn't sure what the technical term was.

 

The more I read the letter, the deeper it seems BC are driving themselves into the excrement:

 

1) If they've sold the debt on without telling me, it's a big no-no.

2) If they've sold the debt on while it's in dispute, that's got to be illegal.

3) They're tacitly admitting the account has been in dispute and that BC have committed an offence, because they acknowledge a delay in sending me what they think satisfies my CCA request (even though it doesn't). That means they cannot deny all the phone calls from Mercers etc. are unlawful, as are all the charges and interest.

 

I feel a massive counterclaim coming on should they be stupid enough to try and take this one to court. It's going to cause them more inconvenience than it does me.

[slick132]

Hi UTN,

 

that's got to be illegal

Not illegal but unlawful I think.

 

they cannot deny all the phone calls from Mercers etc. are unlawful

In this case, I don't think this is unlawful but is clearly against the OFT Debt Collection Guidelines, in which case, they can be reported to the FOS.

 

See how you get on with the letter first.

[uptoneck]

I stand corrected! .

 

Letter as suggested going out today.

[uptoneck]

Quick update...

 

Received another missive from BC today.

 

The thing is...

 

Other than the date, it's word for word identical to the one they sent me in post number 2. They also enclose another copy of the terms and conditions, which appears to be slightly different to the ones sent earlier (it includes a bit about "Your right to cancel" which is omitted from the earlier one).

 

 

Looks like I'm going to have to re-send my last letter to them. This could go back and forth like a game of tennis.

 

Not a lot else to report. Still getting around 4 phone calls a day from CSL on my landline and my mobile. Answered one on my mobile as I didn't recognise the incoming number. Asked the divvy sounding bird on the other end who was calling, and she told me it was "[her name] from Credit Solutions, about your Barclaycard." Didn't bother asking any of the security questions. Tisk, tisk! Told her that the accounts were in dispute and that I had written to her office about it, and that my letter also said I would only communicate with them in writing, and would not discuss the matter on the telephone or the doorstep.

 

She completely ignored me, and started going into her spiel about "immediate payment by debit card of [full amount]". Hung up . Since then I've also been getting 'silent calls' from their number. I keep track of the incoming number, so I know it's them.

 

PS. Does anyone know why my signature doesn't show up in my posts? I've ticked all the boxes.

[slick132]

Hi Uptoneck,

 

AFAIK, your sig're won't always show when you post but I don't know the criteria concerning this. Sorry.

[uptoneck]

Another update...

 

Received the following from Power2Contact.

 

 

Not fair to say I have ignored all CSLs contact requests -- I won't speak to them on the phone, but that's another matter. I have written to them, and sent the letter recorded delivery so I know they got it.

 

Have my b****r off letter ready and my digital camera on standby this time.

[AA99]

Hi Mr uptoneck! AA99 v Barclaycard Acc.2

 

My card started with Morgan Stanley, then Goldfish, then Barclays, then Mercers, and lo and behold ScotCall today

 

Barclaycard have already responded 11 days ago that they are unhappy that I'm unhappy and will respond by 19 November. In the meantime I have a barrage of threats from Mercers and ScotCall. Left hand/Right hand?

 

Good Luck!

[slick132]

Hi UTN,

 

Funny, isn't it, that P2C appear to share the address and phone lines with Credit Solutions.

 

Or perhaps it's a bad case of DCA schizophrenia..................

 

File under "No Acton Necessary".

[uptoneck]

I've got fed up with all the calls from CSL -- sometimes five or six a day on my landline and mobile -- plus text messages saying "we need to speak with you urgently". The final straw came when I got a call from them on my mobile as I was talking to a neighbour while we were both in the queue at Sainsbury's. They called from a mobile number I didn't recognise, and I took the call. I managed to fob it off as a sales call, but it could have been very embarrassing. When they called the next day, I made a formal request for them to stop calling and only communicate with me by letter. The girl refused saying my numbers were in an auto-dialler, and it's "our policy to keep calling". I've got that on tape.

 

I fired of a letter based on the excellent one used by Diskmandave found here. I sent it recorded delivery, and the calls stopped they day they received it.

 

Today I received the load of gobbledegook below. I note they've got a posey new letterhead to go with their irritating Belamy Brothers tuned advert -- apt, I suppose, as it's always the customer who gets a soaking. I'm not sure if it's worthy of a reply, or one straight for the bin. I don't recall raising anything about Section 60 in any of my correspondence, so I figure this must be a round robin straight off the computer.

 

 

 

Comments, anyone?

Edited December 16, 2008 by uptoneck
Typo

[banker_rhymes_with]

Hello U2N!

 

This is just F-F-F-Farclays trying ever so hard to hide the fact that they do not have what they need.

 

It's a tiresome mish-mash of snippets of Legislation wrapped up and entwined with various flavours sampled from their most favourite case, namely Rankine Blaa Blaa.

 

If they have not issued a Court Claim, then ignore that, and go straight here to use CPR 31.16:

 

why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement

 

If they have issued a Court Claim, then ignore that, and go straight here to use CPR 31.14:

 

Getting Them To Reveal Their Vitals. Using CPR 31.14 to Your Advantage

 

Or, just sit back and wait for them to come up with a better and/or more creative reason to try and hide their stupidity in failing to organise, or look after, a suitable Agreement.

 

Otherwise, I think the above letter is ideal Paper Dart raw material ready for entertaining the kids on Boxing Day. Farclays like to spend extra on heavier weight paper, so it should fold and fly quite well.

 

Cheers,

BRW

[slick132]

Hi UTN,

 

I made a formal request for them to stop calling and only communicate with me by letter. The girl refused saying my numbers were in an auto-dialler, and it's "our policy to keep calling". I've got that on tape.:grin:

Please ensure you keep this recording in case it's useful to the Site's efforts about phone harassment.

[uptoneck]

Will do. It's amazing how threatening them with the Protection from Harassment Act 1997 really hits a nerve.

 

I'll save the letter for a Boxing Day paper dart.

[the_shadow]

Hi Uptoneck... any update on this?

[uptoneck]

At the risk of tempting fate, it's all gone ominously quiet. I haven't heard a peep out of CSL since I sent them the “Harassment Warning” letter, and nothing from Barclaycard since the load of gibberish they sent before Christmas. I didn't bother to respond, by the way. Until I hear from them again, I think it's better to let sleeping dog's lie.

 

 

I still check my post with trepidation – not that I've had any post at home for the last few days because of all the snow (and my landlord's reluctance to grit the path leading to my block of flats).

 

 

Will keep you informed of any developments.

[the_shadow]

At the risk of tempting fate, it's all gone ominously quiet. I haven't heard a peep out of CSL since I sent them the “Harassment Warning” letter, and nothing from Barclaycard since the load of gibberish they sent before Christmas. I didn't bother to respond, by the way. Until I hear from them again, I think it's better to let sleeping dog's lie.

 

 

I still check my post with trepidation – not that I've had any post at home for the last few days because of all the snow (and my landlord's reluctance to grit the path leading to my block of flats).

 

 

Will keep you informed of any developments.

 

Snap on the post front.. I've a few items I've sent recorded delivery and still awaiting notification they've been delivered

 

In the same boat re: Barclaycard and electronic signature so have read the thread with much interest.

 

Here's hoping for continuing silence

[uptoneck]

Here's hoping for continuing silence

 

Thanks. 8-)

[uptoneck]

There's been an important development regarding my Barclaycard Visa account. Please check out my sister thread at http://www.consumeractiongroup.co.uk/forum/barclaycard/164727-uptoneck-bc-visa.html#post2339211