Lowell/HFO claimform - old barclaycard debt **WON***

[Pank]

I received a demand from Lowell on behalf of Barclaycard. When I requested a copy of the Credit Agreement they have sent me a letter in response, advising me that they have had to request it from their client. Therefore it may take longer then 12 days to supply me with a copy. I was under the impression that if they are not in receipt of the CA they can not chase for the money? What is my possition now if it takes them 3 month before/if they find it, and then send it to me?

[Pinky69]

They still have to meet the laid down time limits no matter what they say about possible delays. They also cannot collect on a disputed debt and that debt is in dispute if they default on the 12 (plus 2) deadline and have not sent you a copy of the agreement in that time. Thereafter you don't have to make them any further payment. If they produce a copy of the agreement months down the line, they can ask for payment if the agreement is enforceable but they will still have committed an offence for not providing a copy of the agreement within the laid down time limits.

[I've got no money]

If you don't receive the reply within 12 days make a complaint to the OFT and to both your local Trading Standards and also the TS where lowell's are based.

[noggsy]

Dont forget the 30 calender days after the 12 +2.

[Pank]

What are the 30 calendar days after the 12+2?

[Pinky69]

Once the 12(plus2) have expired, if they still haven't sent a copy of the credit agreement after a further 30 days, they commit an offence under the CCA1974. You can them report them to Trading Standards and the OFT. OFT don't deal with individual complaints but they will note it on their records. Trading Standards can prosecute and there is new legislation on this under the recently issued Unfair Consumer Practices.

[Pank]

I have now received a second letter. "Following your recent request to be provided with a copy of the original credit agreement in respect of the Consumer Credit Act I can confirm our client Barclaycard has requested that your credit agreement be retrived from archive.

 

Once the agreement is retreived you will be required to trpay the outstanding balance in full. If deemed necessary we may initiate legal proceedings which could eventually see your outstanding balance increase due to court costs and interest.

 

In an attempt to resolve this matter in an amicable way we would like to offer you a settlement to bring this matter to a close. As long as payment is received by 21/6/2008 I am willing to accept £1021.60 as full and final settlement. on your account. If payment is not received within the time we reserve the right to proceed to collect the full balance."

 

Now, Question: They are now over the 12 days since I asked for the Credit Agreement. How will I know if the agreement is still enforcable? They are abviously desperate as they have asked me to pay 35% of the original debt. Should I now report them to Trading Standards? Should I send them a letter? If so saying what?

[Pinky69]

They are hedging their bets in case there is no agreement - offering you early settlement in the hope they can panic you into payment when they haven't fulfilled the CCA request. Ignore this letter and wait to see what they come up with. Patience. The best time to inform the OFT of a breach of the CCA 1974 is once the further 30 days is passed and they have committed an offence.

[noggsy]

I agree with Pinky, sit tight as it suggests that there is no valid CCA agreement. As far as TS are concerned you can only report them if they continue to persue the debt, which if they go to form they will send a letter out soon stating they cannot access the CCA so they are sending the case back to their "client". One word of warning, if at a later stage they do find a valid CCA they can ressurrect the matter, unless it is Statute Barred (over 6 years old since written acknowledge or payment of the debt by you). So Good Luck and Sit Tight !

[ODC]

This is Lowells usual practice. They will offer you a 60% discount twice before giving up and admitting defeat.

 

There is no point in making any complaint to TS unless Lowells continue to demand money

[Pank]

I received a letter in May from HFO for an old Barclaycard dept. I sent the letter from this site to request a copy of the Credit agreement. I sent this together with a postal order and recorded delivery on the 15th of May 08.

I did not hear anything further until yeaterday. Yesterday I received a letter enclosing a copy of the Credit Agreement. The letter was dated the 17th of December 08. I know that the time limit is well and truly past for HFO. What is my possition now? What do I need to do now? I do not have the monies to pay. I have not acknowleded the debt. Help!!

[spamheed]

When you say the time limit is well and truly past - are you referring to the 12+2 days for the CCA, or the 6 years statute barring limit?.

 

Although the 12+2 date limit is law, if a DCA delivers the CCA at a later date, then they are allowed to pursue the debt from that date, They are not allowed to attempt enforcement when the debt is in dispute, but as soon as an enforceable CCA is produced, the dispute is effectively lifted and they can start their collection process once more - as long as the debt is not statute barred.

 

I think the best thing would be to scan a copy of the agreement, remove all personal information and then post it on here to see if it's enforceable

[Pank]

HFO.pdf

 

Here it is. I was refering to the 12+2. If it is enforcable, what would you suggest I do now?

[spamheed]

Firstly, this is an application form and I would say it is not enforceable.

 

There appears to be a number of items missing.

 

There is/are no:

Credit amount

APR applied to the account: (except the balance transfer rate)

 

Is the text in the consumer credit notice box (to the bottom left hand corner) as bad on the copy that you received, or is it down to the scanning process? coz as it stands it is illegible and renders the document unenforceable

[42man]

Is this all they sent you ? If it is then there are no prescribed terms, and no terms and conditions. and in my opinion unenforceable (and illegible)

 

Edit this, and send recorded...

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

As you will be no doubt aware, the Copy Document Regulations requires that documents are easily legible and clearly the terms of the agreement are not easily legible, infact far from it. most of the document is blurred and cannot be interpreted and there are no temrs and conditions.

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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 situation 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.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, 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

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the application form is illegible and unenforceable, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

[Pank]

Thank you so much, I will send the letter today. It never even occured to me it was not the credit agreement. This is all they sent me and the Credit Agreement section is anuditable.

 

I will keep you posted.

[Pank]

Are application forms used a lot instead of Credit agreements?

[Pank]

More help wanted. More desperate now!! Sent the letter to HFO services recorded. Now I have received a letter from HFO's solicitor that they are now going to persue a Charging Order on my propery. Thurnbull Solicitors.I have seven days to respond. The letter I received is dated the 27th November. I send the letter to HFO recorded delivery on the 24th. What do I do now? I do not know if HFO are ignooring the letter sent and they are carrying on rgrdless. Should I send the same letter I sent to HFO to the solicitor.

Please help quite scared of what can happen. Any advise will be helpfull.

 

Help!

[sillygirl1]

They have very little to go on. They can only get a charging order if they go for a county court judgement and you don't challenge them. As you have already got an unenforceable CCA that is your solid defence against them. Please please do not panic and under no circumstances sign for something called a Tomlin order, they will try this just before court and you will loose all your rights.

 

Do not do anything unless you have had advice from us. HFO exist to terrify people and Turnbull solicitors are their soulmates. If you read other threads on this forum about HFO you will see we have beaten them several times.

[Pank]

Thank you. What should I do about this letter? Should I send the same letter to the solicitor that I sent to HFO? I want to do do something to show that I am contesting this. Is there somewhere I can report them?

Panicking here!

[sillygirl1]

Pleaseplease don't panic, that is what they want you to do. They have broken consumer credit law here - not you. Turnbulls have a poor reputation, all they will do is pursue it to court, frighten you into paying more than you can afford and then go for the charging order.

 

Your line of defence is

 

1. They haven't supplied a proper CCA so the debt is unenforcable.

2. Send Turnbulls the letter that 42man wrote and complain to the following people.

 

Solicitors Regulation Authority (although they won't do anything)

Your trading standards, go via the Consumer Direct website - the more complaints they ge the better, copy in THEIR trading standards as well as TS tend to 'pass the buck' between departments.

The Information Commissioners Office as HFO have passed on information when a debt is clearly in dispute.

 

Please please dont panic as that is what they want you to do. You do not legally have to pay anyone other than the original creditor for this debt - I would also write to Barclaycards Managing Director and ask him why they are employing people to break the law on their behalf - which is what HFO and Turnballs are doing.

 

If you want any more help please write in again....

 

 

Dear Turnbulls

 

I am frankly astonished that you have written to me - I sent xxx a valid CCA letter on xxx date and all they have sent is a

[42man]

You could send them this courtesy of Martin3030 (to Turnbull Rutherford) by recorded

 

Their address

 

 

date ****NOTICE UNDER CIVIL PROCEDURE RULES***

 

reference

 

 

 

 

 

Dear Sir/Madam,

 

 

This is in acknowledgement of your letter dated ................and also of .............The contents of which have been duly noted.

Further to you stressing that County Court proceedings will be actioned by yourselves should I fail to make contact/stressing that proccedings are about to be commenced in regard to alleged sums outstanding and alleged owed by me on the above account,I remind you of Civil procedure rules protocols.

Nevertheless in my response to your letter please be advised of the following.

 

 

I put forward that you now have a requirement to provide me with;

 

 

1) A true copy of the executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened. Please note that a "true copy" as defined by the Consumer Credit Act will not be acceptable in this case, and a copy of the actual executed agreement, including signature, is required.

 

2) All records you hold on me relevant to this case, including but not limited to

 

1. A transcript of all transactions, including charges, fees, interest, payments and both the amounts of credit and any repayments made to the account.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations

3. Where there has been any event in the account history over this period that has required manual intervention by any person, disclosure of any indication or notes that have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to the account held by me with........... is required.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you sent to me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charge added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998.

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I make this request to ensure that each party has equal footings which can allow action to proceed speedily fairly and without undue costs or waste of courts time,as defined within Pre-action Practice Directions -Protocols 4.6 of the Civil Procedures Rules.

I will give you 14 days to respond with the above,failure to comply will result in a complaint being made to the Court./In addition to the FOS for any breaches of OFT and CCA codes.This includes breaches as a result of initiating a Country Court claim where failing to provide or produce documents make litigation improper..

Specifically this relates to one or any number of the following;

 

* demand any payment on the account, nor am I obliged to offer any payment to you.

* add any further interest or charges to the account.

* pass/sell the account or outstanding balance to any third party.

* register any information in respect of the account with any of the credit reference agencies.

* issue a default notice related to the account.

 

Furthermore,I reserve my right to make a copy of this letter available for inspection to the Court and Financial/Consumer regulators should you fail to comply with this request.

I await your response,and should you need further clarification on any of the above points,then I suggest that you direct them to your legal department.

 

 

 

Yours Faithfully/Sincerely

 

 

 

 

......................... . (not to be signed) Print name

 

 

Dated..........

[Pank]

Dear All,

 

I am a little bit calmer. I think I will send the letter sent to HFO again to the solicitor and then I will try the second letter 42 Man has put in. I just want to look like I am responding to every stage in the process.

 

I have a couple of questions. How do I know that the agreement is unforcebal. It does have a section at the bottom ( see attatched above) "Credit Agreement Regulated by the Customer Credit Act" . It says, this is a credit agreement between us Barclay Bank Plc and you the person whose name appears in section, I can't read any of the rest as it is not clear, but it sounds enforcable to me? At the top it says it is an application form, I am confused, There are no payment term, no terms and conditions and no interest rate.

 

If they carry on and it goes to County court, how does that work. Do I supply the court with my deffence and paper work and they review and hopefully throw the case out? Or do I physically have to go to court?

 

What time scale am I looking at? Will this take weeks or months to get to the court stage? Has anyone had any dealing with Thurnbull?

 

Many Thanks for your imput.

[spamheed]

Dear All,

 

I am a little bit calmer. I think I will send the letter sent to HFO again to the solicitor and then I will try the second letter 42 Man has put in. I just want to look like I am responding to every stage in the process.

 

I have a couple of questions. How do I know that the agreement is unforcebal. It does have a section at the bottom ( see attatched above) "Credit Agreement Regulated by the Customer Credit Act" . It says, this is a credit agreement between us Barclay Bank Plc and you the person whose name appears in section, I can't read any of the rest as it is not clear, but it sounds enforcable to me? At the top it says it is an application form, I am confused, There are no payment term, no terms and conditions and no interest rate. This is what will make the CCA unenforceable, irrespective of what it says elsewhere on the form. I

 

If they carry on and it goes to County court, how does that work. Do I supply the court with my deffence and paper work and they review and hopefully throw the case out? In theory, yes, this is what it's like - It's like a game (not a nice one) they send you something, you respond, then they send you something else, then you respond, Or do I physically have to go to court? You may have to attend court, but it's not like the telly, it would be you, their rep and the judge, sitting around a table, they say this is the enforceable agreement, you show where it isn't, then after clarifying the situation by question and answers - the judge decides

What time scale am I looking at? Will this take weeks or months to get to the court stage? Has anyone had any dealing with Thurnbull? it normally takes just over a month from start to finish

 

Many Thanks for your imput.

 

Turnbulls are like all of the other DCA "solicitors" they can only go on what they're told, if they are told that there is an enforceable CCA, then they will attend on this basis, if you prove (and you can) that the CCA is flawed, then either, the judge will rule in your favour, or if the judge thinks that the CCA is enforceable then he/she will rule in their favour.

 

Often the solicitors will not attend at all, or drop out before the case gets to court, in which case you will win by default. If, however you don't attend and defend against their claim then they will win by default.

 

Basically, if this goes to court, it depends on who can back up what they say, your defence is based on statute, there is a current law which states that a CCA must contain certain elements, no matter how good/bad/indifferent their solicitor is, they won't be able to change this.

As long as you inform yourself as much as possible on how the CCA is invalid and what laws make it so, then unless you get a particularly unreasonable judge, you should win easilly

[Number6]

The muppets from Turnbulls, on behalf of HFO, that I have met in court have been just that, muppets with no clue about what to do if a defendant makes the slightest effort to present legal counter arguments.

 

Stick to your guns and if you need any help or advice then please let us know. I recently won a case against Turnbulls and I know exactly how they behave and the type of person they send to court.