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Barclay loan which definately has no loan agreement - unenforceable?


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Hi All

 

I'm hoping some of you more experienced people can help me out with this.

 

I have a loan with Barclays that definately has no credit agreement and want to dispute it as unenforceable. I have been paying it through CCCS and have just found out today that they got a CCJ against me in 2006 which I knew nothing about (they had the wrong address at the time dispite me giving it to Westcott) and they didn't think to mention it in the last 2 years. Obviously I am pretty p***ed and now want to get the CCJ removed and the loan acknowledged as unenforcable.

 

I am sure there is no agreement as this is an old barclays staff loan, and literally all I had to do was call up and ask for it, didn't even need to give my income/expenditure (a bank acting irresponsibly, who would have thought!!!).

 

I have read quite a few threads and realise that I need to do a CCA/SAR for a copy of the agreement, but as I know the answer to this already I am thinking ahead. Firstly I want to do a set aside to remove the CCJ on the basis that I knew nothing of the court action and didn't have a chance to put in a defence, plus with no credit agreement the loan cannot be enforced Is that reasonable and what do you think are my chances of getting it removed?

 

Would be grateful for any help!

 

 

Thanks xxx

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bumping

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Hi All

 

I'm hoping some of you more experienced people can help me out with this.

 

I have a loan with Barclays that definately has no credit agreement and want to dispute it as unenforceable. I have been paying it through CCCS and have just found out today that they got a CCJ against me in 2006 which I knew nothing about (they had the wrong address at the time dispite me giving it to Westcott) and they didn't think to mention it in the last 2 years. Obviously I am pretty p***ed and now want to get the CCJ removed and the loan acknowledged as unenforcable.

 

I am sure there is no agreement as this is an old barclays staff loan, and literally all I had to do was call up and ask for it, didn't even need to give my income/expenditure (a bank acting irresponsibly, who would have thought!!!).

 

I have read quite a few threads and realise that I need to do a CCA/SAR for a copy of the agreement, but as I know the answer to this already I am thinking ahead. Firstly I want to do a set aside to remove the CCJ on the basis that I knew nothing of the court action and didn't have a chance to put in a defence,

 

OK, this is my take, wait for confirmation on the basis that I'm a n00b but am going through similar with help from the site:

 

In applying for a Set Aside you will need to prove reason for not defending, and means by which you "might" be able to defend. It doesnt have to be cut and dried, although (IMHO) it helps if it is. So:

 

1) a lot will depend on how "reasonable" your delay is. ie:

 

a) Can you prove it ? - or in the long term show how and why you had no idea about the Claim (change of address for instance)

 

b) How long is the delay between Claim / Judgement and your application for set aside?

 

c) What reasonable excuse could you offer for the delay? This can include, IMHO, "I moved, then a year later did a credit check and found the CCJ" in which case the Court might reasonably at the hearing expect you to pony up some evidence. (I'm about to start a thread related to this so I'll link when I have.)

 

2) You need to be able to offer what *might* be a defence - ie, at least some argument, if possible backed by some evidence. Non-compliance with a CCA is such cut and dried evidence, since you cant have an agreement without an agreement, so what the hell is the Claimant claiming against?! Whether or not they rock up at Court with an agreement and have you bang to rights at a later date is immaterial at the Set Aside stage.

What you're doing is "offering your chin for their best shot", but you know that, and by the sounds of it they havent a punch to throw, but in asking for a Set Aside you need to show the Court (IMHO) some tangiable argument, and non-compliance with a CCA req is just that.

 

1) So, if I was you I would CCA them now by Recorded delivery.

2) Use the 14 days grace they have to prepare your N244 for the set aside.

When nothing, or something that isnt obviously an enforceable agreement turns up, tailor your final draft of the N244 to suit, eg "I moved from xxx to yyyy in xxxx and did not recieve ..." and "I have requested pursuant to - a True Copy of the agreement they appear to base this Claim upon, and they have been unable / unwilling to supply such. There are templates and other peoples N244 submissions which will help at that stage, and advice from more learn'd sources if you ask - but for now, CCA them.

In knowledge lies wisdom

 

Mo - not even a bar-stool lawyer, but I'll help where I can...

 

 

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Hi, thanks for your reply Last of the Mohicans

 

Not sure if I should show my hand straight away, and tell them straight out that as there is no credit agreement I will be applying to get the CCJ removed. I am hoping to get the CCJ removed on the basis that with no credit agreement ever existing it cannot be enforced by law. And then off the back of that hit them with 'it's unenforceable'.

 

Any thoughts?

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Hi, thanks for your reply Last of the Mohicans

 

Not sure if I should show my hand straight away, and tell them straight out that as there is no credit agreement I will be applying to get the CCJ removed. I am hoping to get the CCJ removed on the basis that with no credit agreement ever existing it cannot be enforced by law. And then off the back of that hit them with 'it's unenforceable'.

 

Any thoughts?

 

How can something that doesnt exsist be enforceable?

In knowledge lies wisdom

 

Mo - not even a bar-stool lawyer, but I'll help where I can...

 

 

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Have just received a letter from Barclays to say that if my arrears (the full outstanding amount) is not paid within 7 days they will apply to the court to get a warrant of execution or attachment to earnings. I have been paying them £100+/mth through CCCS (which they have been perfectly happy with for the last 2 yrs) but they want more as the CCJ is for £575/mth. As the first I knew of the CCJ was on thursday I asked them for copies of the CCJ which they point blank refused to send me. From reading some other threads I am going to apply to the court for all the documents but I'm expected this to take more than 7 days to receive, so need some help on what to do to hold them back in the meantime.

 

If I get a copy of the all the papers that the court that issued the CCJ has for the case, can I also use this in my defence because the credit agreement will be missing therefore the judgement was made when no proof of debt was provided.

 

How do I prove that Barclays has had the wrong address all along, dispite me giving 2 different addresses to Westcott (who they passed the loan over to before taking it back). Westcott were contacting me at these addresses but when Barclays phoned me they they quoted a really old address, so obviously Westcott didn't update the addresses with them, hence why I never knew about the CCJ. I think I need to do a SAR but from what I have read I need to do this to Barclays, so do they need to include all the stuff that Westcott had on me?

 

I want to plow straight in with the set aside but need to get a whole copy of my file from Barclays/Westcott. Is it best to wait for the SAR or can I request all the information as part of the set aside?

 

Any help much appreciated.

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Meant to add as well that didn't want to sort it through CCCS as they will just tell me to roll over, and I am done playing nice with them, especially when they have no credit agreement.

Am worried though that if I don't get the judgement set aside the loan has in effect become enforceable by the CCJ when it was otherwise definately unenforceable.

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Can anyone advise me on whether Barclays have any case in denying that the loan is covered by the CCA 1974, ie can they say it is a verbal agreement as no written agreement exists and therefore the CCA 1974 doesn't apply. I think it should be cover by the act but am just wondering if they can use it as a loophole.

 

I have done a lot of reading of the CCA 1974, and under the act Barclays are required to have a licence to provide 'consumer credit', which obviously they have. Does this mean that all the credit they provide is covered by this act? What constitutes a 'regulated agreement'?

 

I got a copy of the CCJ paperwork and Barclays made no reference to the CCA but I have read on many other threads where the CCJ paperwork mentions the claim is under the CCA.

 

I am filing my CCJ set aside paperwork on Monday, so fingers crossed!

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Can anyone advise me on whether Barclays have any case in denying that the loan is covered by the CCA 1974, ie can they say it is a verbal agreement as no written agreement exists and therefore the CCA 1974 doesn't apply. I think it should be cover by the act but am just wondering if they can use it as a loophole.

 

If it helps:

 

 

" In my judgment ... section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. ......."

In knowledge lies wisdom

 

Mo - not even a bar-stool lawyer, but I'll help where I can...

 

 

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Can anyone advise me on whether Barclays have any case in denying that the loan is covered by the CCA 1974, ie can they say it is a verbal agreement as no written agreement exists and therefore the CCA 1974 doesn't apply. I think it should be cover by the act but am just wondering if they can use it as a loophole.

 

No way do Barclays or any other creditor loan people money on a verbal basis only. That's a joke.

Did they say anything to that effect? If they did bet it was over the phone as they would never admit to that in writing.

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Thanks Davy & Mo for your replies.

They haven't said anything but they don't know that I am doing a set aside yet. What got me wondering is I have a copy of the court CCJ document and it just says monies owed to the bank, but makes no reference to CCA 1974 yet many threads on CAG mention CCJ where it does refer to CCA 1974. They obviously know there is an issue.

Just trying to predict the arguements that they will come up with cos I have them over a barrell with the written agreement, no T&Cs etc.

The way I see it is under the CCA 1974 they have to have a license to provide consumer credit, and therefore all the credit they provide is under that license and covered by the CCA. I did not receive the loan or make monthly repayments within my wage packet, therefore how can it be considered anything other than a normal loan (just with preferencial rates because I was staff).

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That they got a CCJ against you in 2006 implies that the non-existant agreement wasnt signed by you at a time where it would have fallen under the 1974 act if it exsisted and you'd signed it.

 

 

 

 

:D

 

 

I *think* I'm right in saying that provided the loan was less that £25K in total, then it would have to be a regulated agreement (that doesnt exsist that you didnt sign)

 

 

;)

In knowledge lies wisdom

 

Mo - not even a bar-stool lawyer, but I'll help where I can...

 

 

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  • 1 month later...

Phoned the court today to find out why the set aside application still hadn't been dealt with and was informed that it was at 2pm TODAY!!!! :-(

 

Turns out court had sent information to address on original CCJ rather than the address I gave them. Luckily managed to dash down there but was not prepared and had no paperwork with me.

 

It was a ot easier than I thought. The judge questioned me over the 3yr time lapse and what my defence would be. Then granted the set aside. It was all over and done with in 10mins!! Some how I don't think the next bit will be as easy. I have 2 weeks to submit my defence to the court and Barclay's.

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  • 2 months later...

Can anyone help please???

 

I won my set aside and as part of that I had to submit a defence against the original claim to the court and the other party, which I did. The claimant had to submit their reply to my defence more than 6 weeks ago but they have not done this. I have written to the court to ask for the claim to be struck out as the claimants have not replied. The DJ has said that an "application on notice is required". What is this and what do I need to do?

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