cca and barcays

[rory32]

In the past i have read that when an agreement is eventually found the whole debt is again liable? Once they find an agreement i understood it to mean, that's it, end of. The whole debt is enforceable and therefore payable?

That's correct. The whole debt is repayable but what they can't do is state that you missed a number of repayments while they were in default and say you now have arrears of x amount due to this.

That's if you signed the back of the cheque (CCA payment only) and or added to the text of the accompanying letter 'this is to be used to CCA and not to be put towards the account.

I'm thinking later down the line, if it goes to Court, all you have is a copy of that letter and a statement from the creditor showing you made a 'payment' towards the account. A Judge is most likely going to side with the strongest evidence i would assume: That statement showing a payment?

The judge should consider the payment charged to the account (not paid to the account by the alleged debtor) as irrelevant. Below is some detail about what would amount to an acknowledgement or not of a debt.

 

The basic requirements of an acknowledgment are that it must be in writing and signed by the debtor or his agent. In this context ‘signed’ means in manuscript and not typed (see Firstpost Homes Limited v Johnson [1995] 1 WLR 1567).

 

The vital characteristic of an acknowledgement is that it must amount to an unequivocal admission that the debt remains due: Surrendra Overseas Ltd v Government of Sri Lanka [1977] 1 WLR 565. The court must construe the alleged acknowledgment as a whole – the creditor will not be allowed to pick and choose those parts of a document which suits it, while ignoring others.

 

An acknowledgment need not quantify the debt due, it is sufficient that the amount owed may be ascertained by extrinsic evidence: Dungate v Dungate [1965] 1 WLR 1477. However, a document which admits all the facts necessary to give rise to liability, but in which the debtor denies that he is in fact liable, will not amount to an effective acknowledgement.

 

To be effective, the denial must amount to a denial of liability for all times and all purposes: Bank of Baroda v Mahomed [1999] Lloyds Rep Bank 14.

 

However a statement by the debtor that he is unable to pay the debt “at the moment” will constitute an acknowledgement because it amounts to an admission that the liability exists.

[Becca00]

Thanks for all the info.

 

Glad to hear payments wouldn't be backdated. I was going to try to put the money aside each month incase this wasn't the case and I got hit with demands for all the payments I've missed but it's impossible to do. Too many other bills hitting the door mat!

 

In my letter requesting the cca I stated that the £1.00 was to be used for the fee payable under the Consumer Credit Act. However I didn't write on the back of the cheque. I also didn't think about the signature on the cheque and that a postal order would be better. Oh dear.....

[rory32]

In my letter requesting the cca I stated that the £1.00 was to be used for the fee payable under the Consumer Credit Act. However I didn't write on the back of the cheque.

What you stated in the letter is sufficient. There was no need to write on the back of the cheque.

 

I also didn't think about the signature on the cheque and that a postal order would be better. Oh dear.....

It's actually quite difficult to lift a signature off a cheque and there are always telltale signs if it has. It's not something I would lose any sleep about.

[Becca00]

Thanks Rory

 

This is a huge learning curve but in a perverse way I'm quite enjoying it! Perhaps something to do with living north of the border.....

[Becca00]

Sent Sharkleys the 'in dispute' letter on 8th January after no reply to cca request at beginnng of December. Nothing back from them yet - just the numerous calls which I haven't answered.

 

Do I just sit tight and wait for them to send my application form? Don't know if they'll even have that as it was originally Goldfish about 12 years ago so might be terms and conditions I receive.

 

Just didn't know if I should send another letter or just wait.

 

Got a letter from them about my complaint about phoning daughter's mobile. Just their usual 'looking into your complaint' letter saying they'll contact me by 24th February.

 

Many thanks!

[Becca00]

Just a quick update.

 

Still no response to my cca request of beginning of December but the phone calls continue. I decided to answer one the other day to see if I could have a bit of fun! When I told Sharkleys phone operator that the account was in dispute due to not receiving my cca she didn't know what I was talking about. She put me on hold for a couple of minutes while she spoke to her manager, then said I would need to speak to Equifax!?! You would think an organisation the size of Sharkleys could afford to give their staff proper training in these matters.

 

Starting to worry a bit about not being able to do cpr thing as I'm in Scotland. Do I have to be living in England or just be able to travel there as its only half an hour away from me. Does anyone know?

 

Many thanks!

[slick132]

Hi Becca,

 

Instead of worrying about the CPR route not being available to you in Scotland, why not make a formal complaint to the ICO about Barclays failure to respond to your CCA request.

 

Have a read here - http://www.consumeractiongroup.co.uk/forum/barclaycard/166293-tiz-me-barclaycard-visa-3.html#post2004801

 

Gotta be worth a shot.

Edited March 1, 2009 by slick132
typo

[Becca00]

Thanks Slick, will do that this week.

 

Becca

[Becca00]

Quick update. Still no reply to my cca request but today received a letter from Mercers, a 'Default Notice served under section 87(i) if the Consumer Credit Act 1974. Was going to send them the letter below which has been copied from another post. Is this the right thing to do?

 

 

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.

*SEE NEXT POST*

 

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,

Edited March 9, 2009 by slick132

[slick132]

Hi Becca,

 

You could add the following where I've suggested above.

 

 

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. If a Default is registered with any Credit Reference Agencies, Formal Complaints will be made as stated two paragraphs above.

[Becca00]

Thanks Slick, will get that typed up and posted off today.

[Becca00]

Just a quick update.

 

Sent Mercers a letter after they sent their threat of a door step caller. The calls then started from an 0151 number instead of 0845 but weren't so frequent. Then a letter from Barclays in response to cca request stating my balance, credit limit and arrears and saying my agreement would follow. That was over a week ago and nothing yet except another letter from Mercers saying the same as their first.

 

Things then went quiet for about a week with no calls from Mercers. Got a call from an 0845 number this morning. Got so excited as I'd been missing their calls so much that I just had to answer. Told the lady on the other end I never give personal details on the phone which frustrated her hugely. I think she thought I was slightly unhinged when I started babbling on about 'big brother' and you never knew who was listening! She didn't know what to say except that someone would call to my house. Was just about to launch into my 'noone can call without my agreement' speach when she hung up.

 

Where do I go from here? Can't go down CPR route as I'm in Scotland but should I do SAR request? Am quite happy to sit tight for a while while my account gets passed around. Most of the time I forget about it but occassionaly the panic sets in and I think 'what have I started'. I'm on my own with an 8 year old and she thinks the 'double glazing salesman' is very persistant with his phone calls. Would hate for her to be around if someone calls to the door.

 

Any advice would be appreciated.

 

Thanks!

[bazaar]

Send the doorstep call letter off. Keep a cheap camera at the ready, just in case they trespass.

If youve got window boxes upstairs, it would be not be your fault if they got wet when they visited. 'Oh I didnt see you down there' springs to mind;)

[Becca00]

The letter I sent them a couple of weeks ago stated that I certainly did NOT give agreement to anyone visiting my home. Was sent recorded and has been signed for. Might just send them another to remind them.

 

Have a camera at the ready just incase. Unfortunately no window boxes but front door leads into kitchen so might just be throwing out the dirty water from mopping the floor at the moment someone arrives.

 

They rang again a little while ago so I answered, told them to hold on a minute and left the phone sitting in the kitchen for 20 minutes. Won't stop the calls but it gives me some sense of getting back at them in a small way.

 

Do I just wait to see what happens next? Expecting my cca any day now as Sharkleys said it was being sent under seperate cover but just expecting the usual terms and conditions and application. Was originally a goldfish card taken out about 12 or so years ago so hopefully no original agreement.

[slick132]

Hi Becca,

 

We know BC won't reply to your CCA request with the actual agreement, and that you're not going to try the CPR route just now.

 

So why not send the SAR - this will get you your a/c statements so you can see what you've been charged in penalties which you can reclaim.

 

But they should also send a copy of the credit agreement, along with everything else they have for you. If they don't (and we know they won't), you can make a complaint to the Information Commissioners Office.

 

If the ICO won't help you, you can seek the backing of the court (hope this works in Scotland) for their non-compliance with the SAR.

 

[bazaar]

Well if youre not going CPR then the only option as Slick states is the SAR, you need to be specific in what you want from them, ( they wriggle out of the Agreement ). It also costs you £10. ( CPR costs nothing)

Its all part of a very long game, so you may as well be pro-active and start totting up their charges etc.

use the figures as a counterclaim figure if by some chance they produce a valid agreement for any court proceedings.

My own personal feeling is to wait until they produce the goods as it were. Then hit them with the counterpunch.

If they dont produce an executed agreement, then there is nothing they can legally do to enforce it, unless a Judge says so.

My reasoning is this, If you claim all their charges back before this , you are sorta kinda admitting to an agreement being in place. This will give them a slight advantage. Youre best taking that away from them. After all, why would they pester you if they had the agreement to hand??

If it were me, I'd give you one chance to pay, then haul your butt to court.

Keep your chin up, theres lots more to life than worrying what they'll do next.

If you let them pester you, then thats what they'll do. If you get organised and report their actions, you've got a lot more ammo than them.

Have fun with it, their poo smells just the same as yours:p. They aint no better than you

[Becca00]

Thanks Slick and Bazaar. Have decided to wait a week or so until I get my 'under seperate cover' stuff from Sharkleys. Will then be nearing pay day so can do SAR then. In the meantime will look through the Scotland threads to see what others have done.

 

Thanks for the advice.

[meerkatsmimm]

Hi Becca,

 

Subbing your thread because we are in the same position as you.

 

Had the T&C's response to CCAing Barclays and then got a DN from Mercers, even though it is an invalid DN!

 

Anyway, sent the acc. in dispute letter this week and continue to wait. Also SAR'd them, not so much for charges as I dont think we have that many before all the late charges etc have been recently applied, but want to see if the Credit Agreement slips out by accident here. Doubt it, but its all defence in court against what they should have produced but failed to.

 

I like your brass neck with the phone calls, good for you! ours have all but tailed off now strangely (all except Cap1) but my wife wants to have ago at them all - I think its just not worth the hassle they will give - but I like how you have got them thinking you are a bit mental! Ill bet it frustrates them no end

 

Keep heart and stick with the forum - we are new as well and the people are fantastic - even just for a bit of support when its needed!

[Becca00]

Thanks for that. It's the court bit that worries me. Would I have to travel down to a court in Northampton or elsewhere in England or would things happen at my local court in Scotland? Does anyone know?

 

Many thanks.

[meerkatsmimm]

Im not sure as this is new to me as well, but im sure one of the elders will be through soon to put your mind at rest, try not to worry.

[slick132]

Hi Becca,

 

I know the Scottish court system differs in certain ways from the English. My comments are based on the latter so you'll need to check locally.

 

If you or the bank start court action and a defence is filed, you would seek and get a transfer of the case to your local county court. This is where the case would by run from and where any hearings would be held.

[Blood Money]

Hi Becca,

 

Subbing - in same boat & at similar stage. Good luck.

[Becca00]

Still nothing from Sharkleys. Last letter from them a few weeks ago said they'd send a copy of my agreement under seperate cover but it hasn't appeared yet. However, got a letter from Scotcall today which spooked me a bit. It states they are acting on behalf of Mercers and have been instructed by them to collect the outstanding arrears due on my Barclaycard account. If I don't ring Mercers immediately it may lead to a personal visit by one of their representatives to collect payment.

 

What should I do? Should I reply stating account is in dispute as no agreement has been sent to me? Is it ok to do this by email or is a recorded letter best?

 

I've read on other threads about Scotcall being involved with Barclaycard arrears so trying not to panic too much!!

[sunflower99]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/159235-barclaycard-mercers-dept-collectors.html Hi Becca! I have given you a link to Gaz thread which i have been subscribing too,There are quite a few posts abut Scotcall and other doorstep agents and we have all posted discussed and joked about our expereinces with doorstop caller !If you read Gaz thread you will realise what a pathetic joke these doorstep collecters are! and not anything to worry about.They have no powers and just turn and run when challegened ! You could print a no visiter letter and hand it to man when he calls or if you dont want to answer door push lettter through letterbox.I am keeping a letter by my door ready to hand to the scotcall man if he tries to visit me again:D

[sunflower99]

http://www.consumeractiongroup.co.uk/forum/barclaycard/187749-barclaycard-response-my-cca.html and here is a link to my Barclayshark thread:)