Militant's Friend v Barclaycard

[militantconsumer]

Barclaycard account opened in 2004.

 

Card has been taken away and account now on a DMP since 2005.

 

Somehow this account never got a default - instead "I" is showing on the credit files every month (I think this means 'arrangement').

 

On the plus side it isn't a "D", but on the negative side the "I"s will presumably continue until it's fully paid off plus 6 years after that. At the present rate that means the credit file won't be 'clean' until 2024!

 

Charges were all reclaimed last year. They put up a fight and tried to short change us on the interest. They backed down as soon as we contacted the FOS.

 

Outstanding alleged balance is now under £2,000.

[militantconsumer]

Reading other threads has made me wonder whether Barclaycard still have a copy of the original agreement or whether it has been destroyed by a dodgy microfiching process.

 

Of course, if the agreement is no longer in existence, the alleged debt becomes totally unenforceable.

 

We also have quite a pile of PPI charges which have built up over the years. If you added those all up, added contractual interest plus 8% pa court interest on top, I think you'd be getting pretty close to the alleged outstanding balance.

 

It is highly questionable whether my friend ever agreed to the PPI charges, and we are considering whether it will be possible to claim them back.

[militantconsumer]

All of the above means we would really love to see a signed copy of the original credit agreement for this account, as we sadly no longer have our own copy.

 

Barclays have been typically awkward in their responses to our CCA 1974 s78 request.

 

Actually, they have been confused, because we have received two different letters, a few days apart.

 

Letter A says it encloses "A copy of your original Barclaycard Credit Agreement at the time you opened your account"

 

Letter B says it encloses "A copy of your original Barclaycard Terms and Conditions at the time you entered into the agreement".

 

In fact, both letters contain only copies of standard terms and conditions. I understand that they are technically allowed to do this. But you have to wonder why they would have two different letters. Surely not one letter to send when they DO have a copy of the agreement, and one letter when they DON'T have a copy.....?

Edited March 3, 2009 by militantconsumer

[militantconsumer]

Undetered, we are now going down the CPR 31.16 route as an alternative way of obtaining a copy of our agreement where the CCA 1974 s78 request has failed. We are using the templates on this thread:

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

 

Letter 1 was ignored. Letter 2 has been sent by special delivery with a copy of letter 1 attached, so they can't claim they never received the first one.

 

Time will be up about a week from now, at which point we will be issuing the N244 form.

 

I imagine we will need some help and input to make sure we do it properly, and especially in such a way as we do not open ourselves up to paying Barclaycard's costs.

[slick132]

Hi MC,

 

You could wait a while before actually issuing the N244 to put this matter in the court's hands...........

 

........... by which time, you will see how others have got on with their N244 applications. More importantly, we should know if users have had any problems re costs, or any other aspects of this strategy.

 

Another option is to send a new SAR (with £10 fee) asking clearly for the executed Credit Agreement. If or when BC fail to produce it, report the matter to the Info Commissioners Office and ask them to investigate with a view to oibtaining the Agreement on your behalf.

 

[militantconsumer]

Thanks for that slick132, I hadn't thought about using the Information Commissioner to get hold of it.

 

Can you point me to a thread where somebody is using the N244 route against Barclaycard? As you suggest, we could wait a while and see how others are getting on, rather than all making the same mistakes....

[slick132]

You'll see several threads here in BC where users have started down the CPR route, but only quite recently.

 

Also, if you read the CPR thread, I think you'll see peeps saying they'll start - if you click on their username, then search for threads started by them, you should find the relevant threads to read.

 

Or try a SEARCH (top of the page) for CPR 31.16 and see what comes up.

 

I'll put a link here to any threads which I see that may help you.

 

As always on CAG, the best advice is to read around on the threads.

[angel_1]

Hi MC,

 

You could wait a while before actually issuing the N244 to put this matter in the court's hands...........

 

........... by which time, you will see how others have got on with their N244 applications. More importantly, we should know if users have had any problems re costs, or any other aspects of this strategy.

 

Another option is to send a new SAR (with £10 fee) asking clearly for the executed Credit Agreement. If or when BC fail to produce it, report the matter to the Info Commissioners Office and ask them to investigate with a view to oibtaining the Agreement on your behalf.

 

 

hiya all

 

i rang the ico today and specifically said to them that bcard had only sent me 6 yrs of statments and told me that is all the info they hold, yet id asked for other stuff ie cca, terms, default notices etc,,,was told that it was for me to contact oft regarding this and not under the data subject request application and also the cca had certain rulings !

 

not sure of this but i thought id let you know what i was told by the ico

 

so although i have req bcard now under cpr i am being extra reasonable to see what i get,,,before i have to send the second letter which i will and then have to take the advice from here re the court claim,,,,but always mindful that they may ask for costs re this from bcard!

 

good luck laters angel x

[slick132]

Hi Militant - please excuse the hijack but the reply to Angel here may be useful.

 

Hi Angel,

 

I think when you say "cca" above, you are actually referring to the Credit Agreement.

 

Usually, CCA means Consumer Credit Act (as in CCA 1974) or we use it as a verb - ie, I CCA'd Barclaycard last week.

 

AFAIK, if you send a SAR asking for the Credit Agreement and BC fail to supply it, they are guilty of non-compliance according to the Data Protection Act.

 

This would be reported to and, I hope, acted upon by the ICO who should order production of the Agreement.

 

Try putting your complaint to the ICO in writing and see hw they reply. You could ask about non-compliance generally, or refer specifically to your BC case.

 

See how they reply in writing.

[angel_1]

Hi Angel,

 

I think when you say "cca" above, you are actually referring to the Credit Agreement.

 

Usually, CCA means Consumer Credit Act (as in CCA 1974) or we use it as a verb - ie, I CCA'd Barclaycard last week.

 

AFAIK, if you send a SAR asking for the Credit Agreement and BC fail to supply it, they are guilty of non-compliance according to the Data Protection Act.

 

This would be reported to and, I hope, acted upon by the ICO who should order production of the Agreement.

 

Try putting your complaint to the ICO in writing and see hw they reply. You could ask about non-compliance generally, or refer specifically to your BC case.

 

See how they reply in writing.

 

hiya slick,,,

 

my huge apologies, to you too Militant,, and to slick (((( the reply has helped me and hopefully for others reading the thread to not make the same mistake))))

 

,,definately, i meant Credit Card Agreement not Consumer Credit Act as in cca 1974.

 

That annoyed me today from the ico helpdesk,,, but reflecting and reading more tonight, i had thought to put it in writing as a new complaint to ICO to see what i got back from them in writing.

 

Thanks again for clarification, and since im waiting on the cpr from bcard, i might as well send my complaint to ico too, and see how things pan out;)

 

laters angel x

[militantconsumer]

I think the problem is that even if we prove that they have failed to comply with the Data Protection Act, then the maximum fine is £5,000.

 

For the individual consumer, the result could be you think they don't have a copy of the agreement, you stop paying, you get a default, and then later a CCJ if they sue you and produce the original agreement in court.

 

At that point it is no use to you complaining they didn't comply with an entirely different and unconnected piece of legislation.

[slick132]

Angel - No HUGE apologies required. Your input is useful to Militant and to all readers.

 

Militant - The reason for using the CPR route is to demand sight of the document on your terms.

 

This won't stop the OC taking you to court but, if they do this, they must produce the Credit Agreement as the basis of their claim. Either way, you'll get to see the document.

 

In the meantime, if you're concerned about stopping payments without good reason, you could continue to pay each month.

[angel_1]

hiya both slick and militant

 

thanks both,,,,,i wonder if this would interest you both, ive just replied to a thread and the poster has had a reply from bcard and we both think in responce to the cpr letter, will go and link it here for you both to view as ive yet to see that reply from barclaycard and we both think its a new template letter

 

see what you both think am back================= see below link any help appreciated

 

http://www.consumeractiongroup.co.uk/forum/barclaycard/188960-gary68-barclaycard-new-reply.html

 

laters angel x

[militantconsumer]

Yes, we have now received this "new" letter as posted in gary68's thread.

 

Ok, fine, maybe they don't have to show us a copy of the agreement under CCA 1974. We're not going to argue the toss about that.

 

But that's not what we asked for. We asked for disclosure under CPR 31.16 of a copy of the original signed agreement because we believe that it may be improperly executed and/or we believe they may have wrongly charged us for mis-sold payment protection insurance premiums.

 

What a ludicrous situation. Can you imagine a commercial situation where two companies were arguing about who owed what to whom, and the company who held the signed agreement refused to produce a copy of it. Or refused to admit they had lost or destroyed it! What kind of nonsense is this?

 

[militantconsumer]

We will be following smt's case with interest:

(N244 already issued in this one)

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/165349-smt37-morgan-stanley-goldfish.html

[militantconsumer]

I suppose in the spirit of avoiding costs it's going to be necessary to write ANOTHER letter to Barclaycard, just to spell it out to them that we really aren't interested in section 78 of the CCA 1974 anymore.

 

Otherwise I suppose they could say we hadn't been reasonable enough in explaining things so that their tiny minds could understand what we wanted, and that we had jumped straight in with litigation.

 

This will be the 5th letter since last November asking them for a copy of the credit agreement in one way or another.....

[slick132]

Hi MC,

 

Sorry, but if this is your 5th letter, you'll win NO prizes.

 

Some have been at this for months and years, with letters running to 20+ and more.

 

You must send the LBA giving them another period to comply, as you say, to show reasonable behaviour.

[Desperate Daniella]

Hi MC,

 

I've got this stupid 'new' reply too. I love the bit about providing "an excerpt" from the application form "to show you signed a contract with us." Well, I'd like the "excerpt" with something on it which relates to me.

 

I just don't know what to say in reply to this, apart from what I have already said, which is that I want a copy of the agreement I signed and why are they so reluctant to produce it?

 

DD

[markmarcos]

Hi Slick

 

Not noticed you on my thread lately, but wanted to thank you for that letter and your help in relation to my case.

 

Got a response today, with Barclaycard admitting failures/mistakes, and a compensation offer of £50, which i have rejected, and have asked the lady dealing with the case to re assess the comp

[slick132]

Hi MM, I've just replied on your thread about this with a draft letter for you.

 

Militant C - sorry for the little hijack of your thread.

[militantconsumer]

[To be sent by "signed for" recorded delivery]

 

-------

 

Dear Ms Garrad

 

LETTER BEFORE ACTION

 

Thank you for your letter dated XX March 2009, which you state that you have sent in reply to my previous letters.

 

I note with disappointment that the most recent letter that you have sent me appears to be a standard template letter that you have sent to numerous other customers, and which in no way addresses the letters I sent to your organisation on XX January 2009 and XX February 2009.

 

Specifically, the letter which you have sent me on XX March 2009 appears to have been written as a response where a customer has expressed dissatisfaction with documents received in response to a request made under Section 77/78 of the Consumer Credit Act.

 

It is true that I made such a request on XX January 2009. However, I have since learned that Barclays Bank PLC have decided not to provide customers with a copy of their original signed Barclaycard agreement in this situation, and I do not intend to challenge this decision at the present time.

 

However, I would like to remind you that my letters of XX January 2009 and XX February 2009 were NOT made persuant to section 78 Consumer Credit Act 1974 but were made pursuant to the Civil Procedure Rules (Pre action protocols and Part 31.16).

 

I have attached a second copy of my previous letters dated XX January 2009 and XX February 2009, which clearly set out why I need a copy of the original signed contract in its original form.

 

For the avoidance of doubt, I require this document for the following reasons:-

 

1. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

2. Because I believe that you may have charged me for payment protection insurance without my permission.

 

Obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides.

 

In view of the circumstances I do not feel it is unreasonable to ask for this document to be disclosed. It is not commercially sensitive, nor is it a restricted document, and it should be easily accessible for an organisation such as yours. Therefore I would ask that you provide me with a copy of the contract which bears my signature. I require the complete document with all its parts.

 

Since this matter is likely to be subject to proceedings, and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D), which gives the court the power to order you to disclose this document to me.

 

The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation. Therefore I again ask that you provide me with the documents which I have previously requested. I do not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to XXXXXXXX County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which I have requested.

 

Additionally I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary.

 

Please confirm by no later than 4pm on XX April 2009 [giving at least 21 days plus postage] that you will comply with my request or, if you will not comply, please provide your reasons in writing.

 

Yours sincerely

 

XXXXXXXXXX [printed not signed]

[slick132]

Good response Milli.

 

[angel_1]

Wow Milli

 

fab letter, i guess it really points it out yet again, but you know what, you are being direct and responsible in requesting this information so hopefully it will be part of your acting as very very reasonable as pt's thread is keen to tell us:cool:

 

i will be following as im getting to do the second letter in a bit,,,,,,,

 

mind you its all a stalling tactic by them but who knows how it all pans out in the end,,,,

 

keep positive laters angel x

[Desperate Daniella]

Hi MC,

 

That is a terrific response.

 

This morning I got the same letter for the second time, but at the end after saying they will be carrying on with collection services, it finishes with:

 

"If you send us further correspondence questioning compliance with these areas of law, we are not obliged to respond beyond the statutory response we have already given you. We would require you to provide comprehensive legal and documentary evidence to support your claim to ascertain whether further response is necessary."

 

If you haven't had this updated version today, I expect it will arrive very soon. You may want to hold back your later until you get it.

 

The "evidence" must be in the agreement we are not allowed to see.

 

DD

[Desperate Daniella]

Sorry, typo, meant to write your "letter" not later!!

 

DD