Fingers Vs Barclaycard

[Fingers60]

Hey All

 

So Im on my 2nd CPR letter with BC, after 2 failed S78 requests.

I have put the account in default with them but still maintaining min payments.

Have receved T & Cs only so hopefully the CPR route will flush em out !

 

In the meantime BC were kind enough to send my SAR pack of info through within the 40 days.

 

I have not defaulted on this card, have never had over limit fees etc and currently pay the monthly minimum payments.

 

Question...

 

Is there any info contained within the SAR pack that I should be looking for with regards bringing a claim of unenforcability against BC ?

 

It does not contain a copy of my original credit agreement...

 

Thx

 

Fingers

[slick132]

Hi Fingers,

 

If you're lucky, BC will send you a BIG letter explaining why they still won't send you a credit agreement.

 

You could try complaining to the Information Commisioners Office that they've failed to supply a copy of the agreement.

[Fingers60]

Thanks Slick I will complain to the ICO today.

 

Best

 

F

[Fingers60]

OK so I am about to submit my N244 to county court under CPR 31.16

 

I am enclosing the following docs and would be grateful if someone could check my checklist for what I have prepared:

 

-N244 application notice to my local county court

-witness statement between myself and Barclays

-copies of correspondence between myself and Barclays eg 1st and 2nd requests for copy of my original CCA under CPRs + the track and trace post office print outs to evidence these were delivered to barclays (all attached to the witness statement)

-draft order for disclosure

-court fee by way of cheque

 

I have attached below a copy of my draft order for disclosure which I would be grateful if someone could look over.

 

-Should I be changing anything on the document below and should I be inputting relevant dates?

 

-I assume this document is just a draft I am providing the court and they will then draft the final document and send this to Barclays ?

 

 

 

IN THE ******** COUNTY COURTClaim No:

 

IN A PROPOSED ACTION

 

BETWEEN

Fingers

 

 

Claimant

 

 

And

 

 

 

 

Barclays Bank PLC, T/A Barclaycard

 

 

 

 

Defendant

 

 

Draft/ORDER

 

 

[hearing the claimant and the defendant

 

AND UPON [reading the witness statements of [ ] and [ ][/font]

 

 

IT IS ORDERED THAT:

• the Defendant by [Date] shall confirm in writing to the claimant, which of the following documents are still in their possession
   
  1. The Credit agreement which is signed by the claimant and in its original form
   
  2. Any terms and conditions associated with the credit agreement being those which were relevant at the time the agreement was signed
  3. Notices of variation (if any) which vary the terms of the original agreement in accordance with s82 Consumer Credit Act 1974
   
  
• if any of the above listed documents are not in the possession of the Defendant, the defendant shall give to the claimant an explanation as to what has happened to them
  

• The defendant by [date] shall supply the claimant copies of the documents listed in paragraph 1 which are still in the defendants possession
  

• The defendant shall pay the claimant’s costs of this application to be assessed by the Court and paid within 14 days of the assessment
  

Dated the day of 2009

[slick132]

Hi Fingers,

 

Have you read this - http://www.consumeractiongroup.co.uk/forum/barclaycard/195898-cpr-strategy-important-success.html

 

If you've set everything out as per Pt's CPR thread and followed the advice about the 1st and 2nd letters, you should be fine.

 

The Draft Order looks ok and the court will enter the relevant dates.

[Fingers60]

Thanks Slick, yes have been following smt's thread which is great news.

 

Looks like we are ready to rumble !

 

Appreciate your post.

 

Fingers

[militantconsumer]

Subbing - good luck!

[The GodMother]

subbing - good luck i may need to use this at a later date.

[meerkatsmimm]

subbing also, best of luck fingers!

[Fingers60]

Cheers guys appreciated

 

Will keep you updated

 

Kind regards

 

Fingers

[izzitme101]

subbing

[Fingers60]

Hi Guys

 

Still waiting for my court date, in the meantime I have a few questions I need help with. I am still paying the minimum payments on my card even though I put the account in dispute. My questions relate to the following in my dispute letter:

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."

 

On reading the forum over the last few months I have not heard of any lenders that take a blind bit of notice of what their obligations are, my questions are:

 

1) Are the above obligations listed under the consumer credit act ?

2) Who do you complain to if / when the card company regsiters adverse information agaisnt you, proceed to default you and then pass you to a DCA?

3) When they do register adverse info agaisnt you, and lets say the "dispute" comes to an end eg court rules in their favour...would you have to go to court to get them to clean up your credit file ? Even if the card is enforecable they have still not forfilled their obligations by registering adverse agaisnt you when the account is in dispute etc

4) My card went into dispute 3 months ago, up until now i have made min payments....if for example the card co wrote the debt off...can i claim the interest payments back from the date i put the account into dispute...beaing in mind under the act they should not have been taking them ?

5) Should i be makimg a formal complaint and who to....that they have continued to take interest payments ?

6) and lastly an opinion needed on this one...i work in the financial industry and requirement that I have a clean credit file no adverse....if you have adverse you are deemed to be an "unfit and proper" person ....however...if i am excersing my legal rights here....and the account is in dispute ...would i still be deemed "unfit " if i was taking my lender to court and advised by a solictor to stop my payments ??

An interesting one for me and possibly untested in employment law..not sure i want to be the ginea pig here !!

 

Any help / advice / opinions here would be gratefully received as always !!

 

Fingers

Edited June 7, 2009 by Fingers60

[militantconsumer]

1. I'm not aware of it being in the Consumer Credit Act - I think it comes from OFT guidelines and the Banking Code.

 

2a. Adverse info & default would be a complaint to the Information Commissioners Office, who enforce the Data Protection Act. However, the ICO have stated that they consider defaults to be a fair reflection of what happened (i.e. credit facility not repaid) if there is any evidence of you having received the money in the first place, which there is. So they take the banks' side on this issue.

 

2b. Passing onto DCAs when disputed would be OFT via local trading standards, but as you have started legal action they may not want to look into it.

 

3. This the wrong way around to do things. It is better to start with a CPR 31.16 (as you are doing) and then, if Barclays won't settle out of court, proceed to an injunction to stop them processing the adverse data.

 

4. There is a certainly legal redress to the area of payments made under mistake. Perhaps if you wrote to them (signed for delivery) stating that all payments were now being made under protest for the sole purpose of protecting your credit rating, but you did not recognise any debt due to them, this would be a useful piece of evidence if you ever came to attempt such a claim - or at the very least you could use it as a bargaining chip in getting the debt written off.

 

5. As you have commenced legal action this will prevent you starting complaints with most bodies.

 

6. No idea about this one, but suggest it's not worth the risk as you can avoid it happening using the CPR > Injunction route.

[Fingers60]

I love this site !

 

Militant thx for your response Im loving your response to point 4 and going to do that today !!!!

 

"1. I'm not aware of it being in the Consumer Credit Act - I think it comes from OFT guidelines and the Banking Code."

 

Does anyone else know the answer to point 1 so I can reference in my letter?

 

Feeling inspired to crack on again !!!!

 

Fingers

[militantconsumer]

Here is some more reading for you:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/175553-payments-made-under-mistake.html

 

The above thread seems to have died a death, but it makes some interesting points.

[Fingers60]

Here is some more reading for you:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/175553-payments-made-under-mistake.html

 

The above thread seems to have died a death, but it makes some interesting points.

 

Thank you very much MC

[slick132]

Hi Fingers. I have a different take on some of your points.

 

1. The CCA 1974 sets out the obligations of the bank or credit card Co. See this letter - http://www.consumeractiongroup.co.uk/forum/barclaycard/167584-barclaycard-no-cca.html#post1805429

 

2. The matter of defaults or negative markers on your credit files is d/w in the above-linked letter. Complaints about this would be d/w by the ICO.

 

However, the crux of this matter is whether the a/c is formally In Dispute.**

 

3. If any adverse data is on your file and there is no credit agreement, that data should be removed and the ICO would d/w any complaint. If there is a credit agreement, generally the data on your crdit file would remain.

 

4. You can reclaim any charges and interest on them but you cannot reclaim pay'ts made to reduce the a/c balance.

 

5. Complaints should go to the FOS.

 

But see below.**

 

6. Because of the area in which you work, you should be very careful to avoid placing yourself in a vulnerable position.

 

** If you started the CPR process without first making a formal CCA request with the £1 fee, the a/c may not be considered to be In Dispute.

 

Even if you did make a CCA request, BC will maintain the a/c is NOT In Dispute if they have supplied just T&C's in response.

[Fingers60]

Hi Fingers. I have a different take on some of your points.

 

1. The CCA 1974 sets out the obligations of the bank or credit card Co. See this letter - http://www.consumeractiongroup.co.uk/forum/barclaycard/167584-barclaycard-no-cca.html#post1805429

 

2. The matter of defaults or negative markers on your credit files is d/w in the above-linked letter. Complaints about this would be d/w by the ICO.

 

However, the crux of this matter is whether the a/c is formally In Dispute.**

 

3. If any adverse data is on your file and there is no credit agreement, that data should be removed and the ICO would d/w any complaint. If there is a credit agreement, generally the data on your crdit file would remain.

 

4. You can reclaim any charges and interest on them but you cannot reclaim pay'ts made to reduce the a/c balance.

 

5. Complaints should go to the FOS.

 

But see below.**

 

6. Because of the area in which you work, you should be very careful to avoid placing yourself in a vulnerable position.

 

** If you started the CPR process without first making a formal CCA request with the £1 fee, the a/c may not be considered to be In Dispute.

 

Even if you did make a CCA request, BC will maintain the a/c is NOT In Dispute if they have supplied just T&C's in response.

 

Hey Slick

 

Thanks for your time on this.

 

Yes I did the CCA request route first with Barclays, put the account in dispute, disputed the T & Cs, and yes they maintain acc is not in dispute !

 

Thanks for you help.

 

Should get my court date soon via CPR and will update.

 

I am going to send another letter to Barclays reiterating that the account was put into dispute on X date for my records as I would like the option to reclaim interest from this date should the oppotunity arise.

 

Thank you very much

 

Fingers

[slick132]

Hi Fingers,

 

It is good that you started with the CCA request although the difference between your own and BC's opinions does not necessarily put the a/c In Dispute, as I've already said.

 

I would like the option to reclaim interest from this date should the oppotunity arise.

I'm not sure this opportunity actually exists.

Edited June 7, 2009 by slick132

[The GodMother]

Also another point you can complain direct to the OFT it does not have to go threw trading standards.

[Fingers60]

Also another point you can complain direct to the OFT it does not have to go threw trading standards.

 

thank you

[Fingers60]

Brief update

 

Submitted N244 application to court. On the same day i sent in my N1 application for my barclays bank charges both in different envelopes.

 

I called 10 days ago to be told that both applications had been put together in front of the judge as one application which alarmed me because they are completely seperate applications?!

 

I was told there was a delay because judges were off...i just called to be told actaully the cases were approved back on 1st june...but had been sitting on file ever since mistakenly?!

Both cases had been allocated 1 case number and were due to be sent off today as 1 case ?!

 

Just because the cases are agaisnt the same institution surely the court recognises these are 2 seperate applications ?

 

I have asked for the court manager to call me.

 

Any guidnace here ?!

 

Sorry for offloading !

 

Fingers

Edited August 10, 2009 by Fingers60

[the_shadow]

Brief update

 

Submitted N244 application to court. On the same day i sent in my N1 application for my barclays bank charges both in different envelopes.

 

I called 10 days ago to be told that both applications had been put together in front of the judge as one application which alarmed me because they are completely seperate applications?!

 

I was told there was a delay because judges were off...i just called to be told actaully the cases were approved back on 1st june...but had been sitting on file ever since mistakenly?!

Both cases had been allocated 1 case number and were due to be sent off today as 1 case ?!

 

Just because the cases are agaisnt the same institution surely the court recognises these are 2 seperate applications ?

 

Are courts nomrally a shower of **** like this and we pay court fees for this **** ?!

 

I have asked for the court manager to call me.

 

Any guidnace here ?!

 

Sorry for offloading !

 

Fingers

 

I believe the court has leeway to put multiple claims together if its towards the overriding principles... one of which is save of court resources.

 

What you may find is that you will get a hearing date where both issues will be discussed.

 

S.

[Beck1968]

Subbing

[Fingers60]

I sent an email this morning to the court manager complaining.

 

By close of play both claims had been seperated, given seperate ref numbers and served on Barclays seperately.

 

They dealt with it correctly and swiftly...thought i was going to have to take the court to court at one point !!