meerkatsmimmsbetterhalf vs. barclaycard

[meerkatsmimm]

Hello Folks,

 

I hope this is ok, my wife has recently became a member and as we both have serious debts I thought it best to get on with putting our specific posts up. Im logged in with her account, but as per the thread title, im her 'better half', (sometimes!).

 

Just before Christmas we realised that we couldnt continue to make payments anymore, we had been relying on savings and they had dried up. Having made an emotional call to CCCS we got our first appointment with a counsellor (sp.) for the end of Jan 09 and were asked to just make token payments of £1 to all. I have been a carer for 9 years and are left with a large deficit at the end of the month.

 

The Counsellor call did not go well, and bankruptcy was the best option placed to us. However, as we own our own home (just about) we do not want to risk losing it in a BR order, as with so many, there may or may not be any equity after 1st charge would be paid, but we cant no for sure (even after valuations, because they vary so greatly depending on how soon you want/need to sell).

 

Barclaycard for me is around 1/4 of the debit I have and have had the card since late 03/early 04. Typically, they would not accept the £1 payments and even after stating that we were in contact with the CCCS, they stated that a letter must come directly from CCCS offering payment. However, our circumstances dont allow for a DMP and therefore the CCCS wont get involved (something wrong with that I feel BTW).

 

So 1st Default was served asap and spoke with a member of staff at a call centre in India who again said it would have to be £5 per month minimum backed up with a letter from a recognised charity.

 

Been paying the £1 per month for the last 3 months and they have been crediting this to my account, although refuse to freeze interest or charges.

 

Having thankfully found you guys last month, we sent off CCA requests for all our accounts on 4th March. As best I remember Barclaycard only cashed the cheque on 25th March 09.

 

Typically, a letter came back stating that they wouldnt accept the £1 without a 3rd party being involved, and it would have to be £5 minimum. Also, this would be their last response and I could complain to the FOS now if I wished.

 

CCA pack arrived, consisting of a photocopied T&C's relating to a card from 01-02 (yet my card is from late 03/04), no CCA signed or blank, yet the attached letter states that it was included. Another letter with more T&C's followed the same day.

 

Further to this, Mercers sent a letter issuing a Default Notice, stating that they would be sending doorstep collectors etc, etc.

 

Adding insult to all of this, power2connect sent a letter to my old address (which is still on redirection thankfully) stating that Mercers have been unable to reach me and they are seeking me out as an untraceable person! Yet Barclaycard have been writing to me at my current address for many months now??

 

My wife spoke again with a lovely lady at Payplan who was good enough to supply us with a personalised headed letter to send to Barclaycard (and other creditors who are refusing to help) asking them to take the £1 minimum. This will be sent off with the next payment, but what are the chances of them accepting this now?

 

Having read as much as I can in the last month from this great site, I am unsure of my next move. Given that I am trying to get them to accept the £1 still, should I send a CCA reminder letter, should I SAR them or should I go all out and CPR them?

 

Obviously my fear is that they ramp up the threats (had lots of calls initially, but this stopped when my wife answered the phone by mistake and stated she didnt know who or what they were talking about) and actually force a CCJ. We have no other assets except for our home and any equity would be very negligable. We are trying to sort a 2nd charge/voluntary charge for my father & mother on the property as they gave the deposit monies and supported us with the mortgage, in the hope that if the worst happened, at least they would get some of their money back.

 

Whats my next move folks? if they wont help I am prepared to fight them, I just am not sure if its possible to strike a balance between being doing this and them amping up the threats.

 

All your advice and time appreciated in advance.

[mrwheeler]

Morning Folks, a warm welcome to the site.

 

Understand your situation totally, I was in a similar situation to yourselves before I stumbled, quite by accident, on this fantastic site, you will find some amazing people on here and by sharing experiences we all gain strength to manage the situations we all find ourselves in.

 

Never ever talk to them on the phone, absolutely never, keep everything in writing so you have an accountable paper trail, they are a slippery bunch and will deny phone conversations if it suits their cause.

 

Firstly, make no mistake, you could be in a position to fight Barclayshark and bankruptcy (if it comes to that) first you need to ascertain the strengths of your position measured against the creditors, bit like chess moving your pieces into position.

 

If Barclayshark do not have a correctly executed agreement containing all the presecribed terms as laid down by the Consumer Credit Act 1974 they are right royally stuffed. The Act is the law, having been on the statute book for more than 30 years there are lots of test cases judgements which will demonstrate this point eg

 

Sir Andrew Morrits Judgment in the Court of Appeal in the Wilson & First Counties Trust case : "In effect, the creditor--by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms--must (in the light of the provisions in ss 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift,of the loan moneys to the debtor. The creditor had chosen to part with the moneys in circumstances in which it was never entitled to have them repaid".

 

So you need to ascertain the agreement position.

 

As a general rule of thumb, do not offer to pay them any more than you can realistically afford, in the unlikley event of it going to court, the court would require to take into account your financial situation and will not or should not make an order for you to pay more than you can afford - so stick to your guns pay what you can afford, not what they want, all they want is money as much as they can get - possibly on the back of a dodgy agreement - worth bearing in mind

 

 

Hope this helps

[meerkatsmimm]

Thanks Mr. Wheeler,

 

The welcome is appreciated greatly.

 

Can someone suggest our next move in terms of what we have recieved from them in the 1st CCA request?

 

Of all our creditors they are the most unhelpful so I am happy to do what we need to do.

[meerkatsmimm]

My mistake folks, this appears to be the only default served to date by BC, and its been served by Mercers. As my wife said on her thread, how can they serve this on Behalf of BC if they arent the OC?

 

BTW in both instances the envelopes are Royal Mail stamped postage paid, not dated.

 

The second page will follow, they were both the same for myself and my wife, so I have only included it with mine.

 

 

[meerkatsmimm]

Page 2:

 

[mrwheeler]

Hi

 

Do you have any statements with charges for over limit / late payments on account? - If so Letter before action to barclayshark asking for refund + interest, if no reply, start a small claims N1 from route requesting all charges + interest.

 

That will improve your position and get Barclayshark / mercers off your back as soon as you file your court papers - there are lots of template letters re N1 and reclaiming charges + interest on the site.

 

If you don't have the statements required ask for full statements showing charges etc within your Subject Access request them for copies of both sides (ie front and rear)original signed executed agreement contract document.

 

The CCA route seems exactly what everyone else is coming up against with barcalyshark, keep at them, some Caggers have finally received the original signed agreement after some protracted pressure.

 

Have you put the account into dispute owing to their failure to supply agreement?

 

Cheers for now

[meerkatsmimm]

Hey Again,

 

Thanks for your reply.

 

To be honest my wife and I are a feeling a bit overwhelmed by this all atm. To start with it was fear, then we settled down, then we felt like fighting and today it just feels like we have a mountain to climb, with 18 creditors between us.

 

We will be putting both accounts in dispute as per my wifes thread, also will send off the Payplan letter together with the £1 payment, although I read on another thread last night that the minimum they will accept is £5, so not sure if we should send this instead if it gets the account frozen for a while - we cant afford it, but if it buys us sometime for the moment it would be better trying to cut back again in other areas to find it.

 

I have the most recent statments showing the overlimit payments etc, I reckon I will have to SAR them as well though to get anything from the past though. Then (in the case of BC especially) I feel like going down the CPR route, because I just dont understand why they wont supply an agreement if they have one.

 

Another thread I read late last night (very early this morning!) was made from another cager who made the statement that BC dont have any pre-2007 agreements - this chappy also won against BC (Nomill I think his login is), and Im not sure how he knows this for sure, but it is very interesting to read nonetheless.

 

I want to keep paying something to show willing if we end up in court, but what I dont want is to be forced into a CCJ situation whereby they go after my home, which would have little or no equity. With one of my wifes accounts, with GE, they have sold it onto CL Finance, yet GE took the monthly agreed payment over two weeks after they stated they sold the debt on - and this has only become apparent because both GE and CL Finance are obviously messing around with the dates to suit themselves - So I know these Creditors and their DCA's are capable of manipulating things to suit themselves.

 

Again other threads I have read suggest that simply by them not supplying the CCA after requesting it, is enough for me to refuse to pay any further and put the account in dispute. In this instance, can they take me to court and obtain a CCJ (and then onwards towards a charging order) without a valid CCA, or would a judge not care eitherway and grant the CCJ on their word?

 

This worries me alot and my wife and I are in disagreement about what they can and cant do, so it would be really appreciated if someone could explain this further for us both - it would settle our minds alot.

 

Thanks again Mr. Wheeler!

[mrwheeler]

At the moment, what Mercers appear to be doing is throwing their toys around and trying to get you to pay the appears.

 

While not to be taken lightly, the issue of DN may not necessarily mean they intend to start proceedings, there are many many caggers who have been issued DN and are simply pursued by DCA's who then buy the debt.

 

Well going down the court route, my understanding would be this :

 

Assuming you will defend any proceedings, if they have an unenforceable agreement then technically the court should not enforce if any of the prescribed terms are missing under section 127(3).

Regarding the Enforceability issue due to incorrect pre-contractual form and content:

 

As per section 127(3) of the act the minimum requirement for a court to consider enforcing a agreement of this type(Running account Credit) is that it should have the Debtor/ Hirer’s signature and all the prescribed terms contained in Statutory instruments 1983/1553 Schedule 6; As directed by section 60 of the Act

• Credit limit• Rate of interest • Repayments

If any of these items are missing then a court cannot enforce any agreement made and regulated by the Act prior to April 6th 2007.

 

In these circumstances, a CCJ and then a charging order then would appear somewhat difficult to obtain - as long as you defend.

 

Do not be put off even if they do initiate proceedings, they may very well be bluffing on the thought you may be scared of the big bad court and they get a judgement by default.

 

Your main concern, If I gather correct, is a charging order, therefore finding what the cretins have in the way of an agreement pdq is obviously the main objective so you can posture and tell them to get stuffed if it is unenforceable.

 

Just my understanding, hope it helps.

 

[diamondgirl]

Well put mrwheeler.

However I would get the account in dispute letter of straight away. Get it in the post tomorrow if possible and please do not sign the letter just print of type your name on it. That will take a little bit of pressure off you.

With regards your wife with CL Finance/GE Money - GE Money will keep taking your money, I know because after supposedly selling my debt to Link Financial they have kept taking the payments. I have SARs GE Money and I am still waiting to see what they can produce as I had nothing at all from them after March 200x. Whether I get any info from them before my hearing in the CC we'll just have to wait and see.

 

Please do try not to worry and I know it easier said than done, been there and done that.

 

You will get lots of help from everyone on this forum as I am sure your wife is doing.

DG:)

[meerkatsmimm]

Thanks again Mr.Wheeler and you too Diamond Girl,

 

I am prepared to go to court to defend, be it for a CPR request or other, I just wonder if the next stage is any of my creditors issuing me with A Court summons with their intentions being to obtain a CCJ, (then a charging order on my property, etc).

 

As I have CCA'd them with no CCA provided (yet), can they take me to court without a valid and enforceable (and signed) CCA, and will the court grant them the CCJ without such a document?

 

Im not saying they dont have these, but it seems likely that most of our accounts are either without a signed agreement, or well have missing terms etc, making them unenforceable.

 

I just wouldnt like to think we are doing all of this to get them to show their hand, and in the meantime they take me to court without having to provide the documents to the court either, and are successful in obtaining a CCJ.

 

Sorry to keep banging on about this, I simply dont know if this is how things happen and apologies if you are answering me and I havent picked up on it!

 

Easter weekend, so we will do our best for our little girl, she is the most important thing to us both - im sure you will all agree! Dont eat too much chocolate btw!

[diamondgirl]

What date did you CCA your creditors and did you send the £1 PO with them?

If they had no documents or unenforceable agreement they would be thrown out of court. They do need to have something to go to court with but that should be away off yet. If they did the judge would only order you to pay what you could afford.

You said CCCS wasn't much use have to spoken to Debt Line or to CAB they are very helpful.

I most certainly do agree that your little girl is the most important thing and you must try to stop worrying for her sake as well as your own.

You will get lots of advice from more knowledgeable people than I can give.

Please have a lovely Easter weekend with your OH and daughter.

DG:)

[mrwheeler]

Thanks Diamond Girl, that does put things into perspective.

 

Under the Consumer Credit Act, when a debtor is in default under an agreement, a creditor is required to issue you with a DN before they can demand recovery of the full sums owing, this would enable them to commence proceedings if they so wish.

 

As I said, on many occasions they commence / threaten litigation but invariably this is a stance taken against those they presume to be a soft target on the hope of a judgement by default.

 

If you are worried about proceedings being started - You have to acknowledge any claim within 14 days of the date on the claim form stating you want to defend ALL (if that is what you want to do)....then you get a further 14+3 days in which to submit a defence.

 

Along with the claim, you should be served with copies of the documents the claimant will be relying on in court. If they don't supply the documents requested, you then request them at this juncture.

 

If you have not been able to get the agreement up to this point, then you will see their cards then.... I know it is difficult, but I try to focus on things I can change, like putting the account in dispute and nailing the SAR down.

 

Cheers for now

[meerkatsmimm]

thanks again

 

going to send SAR's to creditors as and when finances allow.

 

do we send £10 per account?per creditor?

do we send for OH and myself separately? we have 1 joint nationwide overdraft - although other cards have cards for both of us the applications were in individual names - meaning OH has £40k debt, I have £30k and jointly there is £2.5k overdraft.

 

thanks-

[mrwheeler]

Morning it is £10 per individual per organisation, irrespective of number of accounts held.

 

Yes you send a SAR for yourself and other half under a separate cover, recorded or special delivery to the Data Controller/Data process teams don't sign your letters but state clearly they have hitherto found it acceptable to send information of a similar sensitive nature so there should be no issues.

 

To limit their ability to pratt about and stall the request - as a method of providing proof of ID - you could photocopy your driving license or other form of ID - cover over the signatures with a slice of post it note or similar

 

I have a similar amount of debt to you, presently trying to ascertain what is and is not going to be relevant - in my case the overall figure will be lower as most of my creditiors have unenforceable agreements - therefore my overall picture is much better than I first though, hope it is the same for you guys.

 

If you have like me, cards taken out 6 or more years ago then the chances are they just got the application form, photocopied the front cover then shredded the original application document which likely would not have had the correctly prescribed terms on anyway.

 

They deserve to be punished, effectively they did not conduct their business according to the regulations established by an Act of Parliament, failed to inform consumers of the true cost of borrowing before entering into an agreement - If I did that in my job I would be in Jail right now.....

 

Cheers

[meerkatsmimm]

last debt was taken out in early 2005 - capital one. Most are from 2002/2003 and there are some from 2004. There are a total of 4 creditors on my part, plus one joint. OH obviously has 1 joint, and 9 others. 3 GE accounts have been sold to CL finance and OH no longer owes ge any money - they've written to us and said exactly that. Can't see CL being able to produce an enforceable agreement on any of these but you never can be sure.

 

I know what you mean about the way they conducted their business - OH used to manage a retail outlet who conducted financial agreements on a daily basis and got hammered regularly if there was anything amiss when the store was internally audited - which happened 3-4 times a year!

 

The t&c's sent by barclaycard to me do not even match the time that the agreement was taken out! We're writing to SAR them and also put te account in dispute due to them not providing a valid CCA. Think we weill continue to pay the £1 gesture as it shows willing on our prt if/when this goes to court!

 

Thanks and good luck with all your dealings!

[mrwheeler]

Yes I reckon you likely have a good few Unenforceable, duff agreements.

 

As far as Barclaycard are concerned, they have lots of trouble with their own crap agreements, not to mention goldfish and morgan stanley agreements they bought over.

 

I have surfed this site for more hours than I care to remember (nor would admit to) and I have never seen any caggers detailing Barclaycard going to court.

 

Their agressive telephone collection activities as soon as a debtor misses a payment compared to other creditors are totally despicable and I despise them for treating people in such a draconian manner.

 

If it was me, I would state any £1 payment or similar is purely a gesture of goodwill - nothing more.

 

cheers

[meerkatsmimm]

Think this link should work

 

http://www.consumeractiongroup.co.uk/forum/nationwide/193958-meerkatsmimm-nationwide-cc-default.html#post2098638

 

this is the link to my OH's nccs default notice - does anyone know if it is valid?

 

Thanks--

[slick132]

Hi Meerkats,

 

I see you were asked above if you've suffered any penalty charges on the BC a/c, but I can't see your answer.

 

If there ARE penalty charges, this would make the Default Notice worthless by virtue of the unlawful penalty charges on the a/c.

 

[meerkatsmimm]

Hi Slick,

 

Can you explain what you mean by penalty charges?

 

Ive had any number of returned direct debit charges, late payment charges and over credit limit charges in the last few months? Is this what you mean? £12.00 for each, everytime they charge me.

 

Thanks for checking it out. Could I ask if you would have a look at my nationwide DN's that I have posted on my other threads as I am desperate to know if these have been messed up as well.

 

If the DN's are unenforceable, do I wait until they terminate the account or sell the account on before I make them aware - and how do I make them aware that the DN's are unenforceable?

 

I have seen from other threads that this means I am only liable for the arrears, is this correct.

 

Thanks again buddy!

[slick132]

Penalty charges on credit card a/c's are unlawful and you are entitled to a refund of the full amount of each and every charge.

 

This includes over-limit fees, late payment fees, etc.

 

Getting the DN and other negative markers removed from your credit records is a slow process and will usually only happen when you successfully challenge the credit agreement's validity.

 

This may happen more quickly if a DCA tries to take a case to court, where they often fail or don't attend.

 

The trouble is getting sight of the agreement to challenge it - BC are doing all they can to avoid supplying this, and will not do so in response to a CCA request.

 

Users are therefore now trying the CPR route - see Link No2 in my signature below.

 

However, seeing the number of a/c's you have, I think you can wait and see how this approach works before you embark on it.

[meerkatsmimm]

Thanks for that Slick,

 

My concern is that I will run out of time before they try to take me to court.

 

Not that I want it, but I read other threads where members have been paying token payments for years, perhaps allowing them time to sort their finances out to be in a position to make F&F settlements (were needed).

 

Given that I have been charged (and my wife has also) by BC, does that now mean that this DN from Mercers is unenforceable? To be honest, my concern is not so much with the negative markers on my Credit History, but getting them off my back!

 

If this DN is unenforceable due to the penalty charges, does that mean that should BC terminate my account or sell the account onto a DCA, that they cannot enforce my debt, only being able to enforce the arrears?

 

Sorry for so many questions, but I am learning so much so quickly and it is empowering us as a family greatly.

 

Thanks again.

[slick132]

Hi MK's,

 

I doubt you'll run out of time - them taking you to court is a long way off.

 

Any penalty charges included in the DN total make it inaccurate and it should be removed in time.

 

Getting the DCA's off your back, as you say you want, may not happen in a hurry. But you'll get used to their ways and their phone calls. In time, you'll be ready to face them full on, and challenge the way they harass you. In the meantime, keep a log (time and date) of who calls you when and for which a/c.

 

Don't speak to them, don't do any security checks, then hang up.

 

You'll also learn that what SHOULD happen is not what DOES happen (eg getting them to acknowledge and remove the faulty DN). But, if any particular case becomes more urgent, you can concentrate on what is needed for that case.

[meerkatsmimm]

Thanks Slick,

 

Your advice is much appreciated.

 

It looks like my other Nationwide Credit Card Default Notices are also unenforceable and although not sure if Current Account Overdrafts DN's work the same as CC DN's, it appears the Nationwide has fallen on both counts here also.

 

How do I bring these accounts to a conclusion whereby I force them to terminate the accounts? I know in time they may do this themselves, but also aware that they can change the DN's (reissue them) before terminating the accounts. We have so many accounts between us, it would be great to be able to get some sorted out to be able to concentrate on others!

 

Thanks again!

[slick132]

This may be a useful thread to read re DN's - http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html

[meerkatsmimm]

Thanks Slick, had a read and then onwards to a few other threads! Its so good to be amongst fighters, good on you all!