Barclaycard - No Consumer Credit Agreement

[talbot649]

Hi there,

 

I've started a new thread following the advice of a kind poster who responded to our post on a different thread.

 

My partner has had a Barclaycard for over 10 years now, and we have been on the receiving end of some shocking customer service for the last 12 months. We've had enough, and thought we'd fight back a little!

 

We sent them the following request for a copy of the signed CCA on the 3rd November 2008:

 

Dear Sir/Madam

Re:− Account/Reference Number ****

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77(6) will apply.

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

I enclose a cheque in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

We look forward to hearing from you.

We received nothing back, and sent them another letter on the 4th December 2008:

Dear Sir/Madam

 

Re:− Account/Reference Number ****

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

On 3rd November 2008 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. You have failed to comply with my request, and as such the account entered default on 17th November 2008.

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

Furthermore you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation. This limit has expired.

As you are no doubt aware section 77(6) states:

If the creditor fails to comply with Subsection (1)

(a) He is not entitled , while the default continues, to enforce the agreement.

Therefore this account has become unenforceable at law as you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

Please note you may also consider this letter as 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.

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 not respond within 14 days I expect that this means you agree to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

We have received no response still, and have received the statement as usual.

Come January they will start to collect on us - is there any advice anyone can give us as to the next step in this process?

[Desperate Daniella]

Hello,

 

We are in the same time frame, although I didn't send a second letter, just told Mercers that I was waiting for the CCA and had nothing to discuss with them until they sent it. Today I received the Barclaycard Terms and Conditions from Barclaycard. I also received exactly the same letter enclosing the same Terms and Conditions in response to my request to send me the CCA for Morgan Stanley. No CCAs for either.

 

I think I have had a Barclaycard for about 25 years - weren't we originally given them as cheque guarantee cards?

 

I have seen that Barclaycard are apparently taking people to court without a CCA but don't understand how they can enforce an agreement they don't have, so I am missing something.

 

I would like to start a new thread, but can't see the button to push so I am obviously being completely stupid. Can someone explain in words of one syllable please. Thank you.

 

DD

[SteveH2508]

Go to the forum index (in the case of this forum General Debt Issues) http://www.consumeractiongroup.co.uk/forum/general-debt-issues/

 

There you will see a New Thread button (sort of top-leftish of the screen.)

[Desperate Daniella]

Thank you!!!!!

 

DD

[silverfox1961]

Hi Talbot,

As I see it, once no valid CCA appeared, your account with BC became in dispute so when they start asking for money you can tell them to go forth until such time as a valid CCA turns up. If they pass it on to their tame DCA you can do the same and if they sell it on you can tell the external DCA to swivel.

 

Once you stop paying, BC will send you a default notice and mark your credit file as such.

 

Basically until they provide you with a valid CCA, they haven't a leg to stand on. You may even be able to offer a full & final settlement.

 

Beware if you have a bank account with them as they'll just start taking your money from there instead. If you want to make sure they don't get hold of your money, start a parachute account.

 

fox

[talbot649]

Many thanks for your help.

 

I thought when the account is in dispute they are not allowed to:

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

Is this not the case?

 

I'm quite keen to take pre-emptive action (through the courts if necessary/possible) to have the agreement declared unenforceable and then pursue them to purge the credit records. After all, is there is no agreement then how can then say I am in default?

Edited December 22, 2008 by talbot649
Use 'default' instead of 'dispute'

[silverfox1961]

You are correct in what you're saying with them not being able to do anything but, if you look around a few threads you will see that this doesn't stop them sending out threatograms,defaulting you and marking your credit file.

 

BC's opinion is that they can do anything they want short of actually taking you to court (as they would lose-no CCA= absolute defence). If you were to start court action you would also need them to clean your credit file too.

 

Ther's not much you can do at the moment until such time as they start threatening you with this and that.

 

You may get letters saying we "MAY" do this that or the other but that's all it is, a threat. The only time to take things seriously is when they get stupid enough to try taking you to court.

 

 

fox

[B3rty]

May be worth sending the letter Paul has created in this thread as this isn't a terminated account and you are within the terms of the CCA withholdng payment

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[talbot649]

Has anybody managed to get their credit file cleaned of a default that wasn't supported by a signed CCA?

[silverfox1961]

That's exactly the route I am going down at the moment.

I had a debt with a DCA who have closed my file because of no CCA and they won't clean my file.

I may have to take them to court to get them to do so.

At the moment I'm just at the letter stage to the DCA and experian.

 

fox

[talbot649]

It's good to know that others are trying to achieve the same thing!

 

What sort of letters have you sent to the credit reference agencies and the DCA? If you could paste in your letters it would be really useful to know

[silverfox1961]

Give me a few minutes to find the letters and wash them of my details

[silverfox1961]

This is the letter I'm sending to my DCA:

I am in receipt of you letter dated 17th December 2008, the contents are noted.

 

 

I note in your letter you state that a notice of assignment was sent to me on 01/02/07. I can categorically state that I have never received a notice of assignment letter from yourselves or Capital One AND I have never received a default notice from Capital One.

With that in mind I would like you to provide proof that you sent a notice of assignment, the method of postage and when it was delivered.

 

 

According to yourselves you have the right to process data about me because of a contract to which I am party. As this is the same contract you do not have, how can you say that I agreed to my data being used. In your letter dated 08/12/08 you state that the agreement is no longer available. Therefore it is reasonable to assume that you never had the agreement and as such never had my permission to process my data.

 

 

The fourth principal of the Data Protection Act 1998 states that all data must be accurate and up to date. By your own admission, you do not have a copy of any agreement therefore, any data you process about me would be regarded as inaccurate.

 

 

Due to your not having my permission to use my data, I require you to remove and destroy all the information you hold. This request also means that you contact all Credit Reference agencies AND third party organisations that you have disclosed my personal information, and have them remove said data..

 

 

The marking of my credit record as “satisfied” in my opinion not good enough. I want the data removed as it will affect my chances of obtaining a suitable bank account, changing my telephone supplier and getting credit until at least May 2010.

 

 

It is reasonable for me to expect you to respond with your intentions within one calendar month so if I receive either no response or a negative response I will pass my complaint on to the Information Commissioners office. Please could you also supply me with a copy of your complaints procedure.

If you do not understand the ramifications of this, I suggest you pass this letter to someone with legal expertise.

 

 

 

 

Yours Faithfully

 

and this is the letter I'm sending to experian:

Dear Sir/Madam,

I am writing to you with regards to the credit report I received this week.

 

 

I refer you to item C1 in the credit account information section.

It states that Lowell Portfolio 1 Ltd has registered a default against my name. This is inaccurate.

 

 

At no time have Lowell Portfolio had written permission from me to process my data or to report any of that data to any Credit Reference Agency and as such they are in violation of the Data Protection Act 1998.

 

 

I would ask you to liaise with Lowell to verify that this is the case. As I understand, the fourth principle of the Data Protection Act 1998, all data must be up to date and accurate.

 

 

I would like you to verify with Lowell that these documents exist and if not to remedy my file accordingly:

 

 

 

1. A notice of default
   
2. A letter of assignment
   
3. A valid Consumer Credit Act agreement.
   

 

If no such documents exist then it is reasonable to assume that the information you hold is inaccurate. I would also ask that you obtain written proof of these documents and not just the verbal confirmation that they exist from Lowell and to forward any responses to me.

 

 

It is reasonable for you to reply to my concerns within one calendar month so if I do not receive a response from you within that time, a complaint to the Information Commissioner will be immediately commenced.

 

 

 

 

Yours sincerely

 

 

I don't expect experian to do much as they are the banks puppies and do as they are told by them but by going on a two front attack, I hope to get some result.

 

fox

[talbot649]

That's really helpful, thanks very much.

 

In the event that they ignore the letters and do nothing, leaving the information in the credit report, are you confident that the Information Commissioner will support you and instruct them to remove it?

 

I don't mind if the process is a lengthy one (months, not years), but if eventually I can have the information removed I'll be happy and fight them to the end.

 

Is there any (data processing) legislation you know of that you could threaten them with court action over?

[silverfox1961]

Sorry, the Data Protection Act is all I know of and that's what I'm using for this.

I can complain to the Financial Ombudsman as well as the Information Commissioner but there's also the Office of Fair Trading as well which I may try if I get nowhere.

As I've asked experian to check, they have a duty to ensure the information the DCA have is correct. As my DCA doesn't have a valid CCA then they shouldn't be using my data as they don't have my permission to do so.

Only a valid CCA gives them that right and they've already admitted to not having one.

 

fox