Barclaycard / RMA

[nilrs]

Can anyone give me any advice reagrding my cca request from Barclaycard. I sent off my cca request on the 22/4/09 and i was sent the usual Terms and Conditions rubbish. The account went into dispute on the 14/05/09. At the time Calders was dealing with my account. Barclaycard sent me a letter on the 12/06/09 explaining in there eyes that the account is not in dispute. I beleive this is a standard letter which Barclaycard send to everyone.

The last paragraph reads : As our response fulfils the obligation under section 78 of the consumer credit act 1974, you should carry on paying the debt you have accured on your account. We do not class the account as in dispute, you havebeen supplied with the relevant documentation under section 78 of the consumer credit act 1974,and we will carry on with collection services. If you send us further correspondence questioning compliance with these aeras of law, we are not obliged to respond beyond the statutory response we have already given to you.We would require you to provide comprehensive legal and documentary evidence to support you claim to ascertain whether response is necessary.

 

My account is now with RMA. Their first letter arrived on the 13/06/09.

These are persistant buggers who like to phone many times a day. I did speak to them once and explained that the account was in dispute but their answer was "Says who" i explained to them that i had sent Barclaycard my cca request and now the account was in dispute and their reply was "The law has changed and what Barclaycard had sent me was all they needed to do by law" I then asked them to send i will only communicate with them in writing and they told me that they were only a phone company and they did not put things in writing. I replied good guess i wont be hearing from you again then.

Two weeks later i received a letter from them (guess they found someone who could use a computer to type a letter) saying that if we can not reach a suitable agreement then they would have no hesitation in handing the account back to Barclaycard. But in the meantime could i supply them the name and address of my employer, my address for which a court summons could be served and a list of any assets i have and if i dont legal proceedings would commence.

Now my question is what do i do next? Any help or advise please!

Also can they pass my account to another company while it is in dispute?

[slick132]

Hi Nilrs,

 

The letter from RMA sounds interesting - their request for employer details, assets list, etc sounds like they are way out of line.

 

Can you please post a copy of the letter on here, or link us to a Photobucket scan of it. Hide any personal data that would identify you. See here if you're unsure how to use PBucket - http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

 

We can then decide how you should reply, if at all, to RMA. Don't be intimidated by these tactics - they are powerless.

[nilrs]

This is what the letter reads.

 

Dear sir / madam.

 

Despite all previous communication the above outstanding debt, which you owe our client, Barclaycard, remains unpaid.

 

Under the terms and conditions of the contract you have signed, the full balance is now seriously overdue.

 

Unless we agree suitable repayment terms with you, we will have no hesitation in referring this debt back to Barclaycard. We will recommend that immediate enforcement action is taken against you in order to recover the balance in full (plus interest and costs), by whatever means they consider appropriate.

 

In order that the appropiate pre-litigation report may be prepared, you are required to provide the following in writing:-

 

The full name and address of your employer, together with your annual salary.

Your full residential address upon which a court summons may be served.

Details of any assets that you own together with confirmation that they are unencumbered.

 

THIS IS YOUR FINAL OPPORTUNITY TO RESOLVE THIS MATTER VOLUNTARILY.

 

Failure to do so may lead to the commencement of legal proceedings that could well necessitate the appointment of bailiffs against you, which will be recorded on your credit report for a period of six years.

 

Please note that your card sholud have already been returned to this office cut in half.

 

You shoud contact this office immediately upon opening this letter on 08707******, or alternaitively email : [email protected]. Please provide us with a contact number and a time you wish us to call back on.

 

Yours faithfully

For and on behalf of RMA

 

Any thoughts what to do next?

[slick132]

Thanks for this - I'll refer it to the Site Team to see if the letter and RMA's action should be reported to the OFT and the FOS.

[citizenB]

I would report it to both the OFT and Trading Standards.

 

You can report it to the OFT using the letter in the following link..

 

http://www.consumerforums.com/resources/templates-library/50-complaint-in-respect-of-dca-threat-re-expired-debt/101-complaint-in-respect-of-invalid-cca-agreement

 

They will only reply that they cannot deal with individual complaints however, they will record the complaint. When the number of complaints for an individual company reaches a certain amount they do investigate.

 

The letter from Susan Edwards from the OFT, in the following post might be of interest. I have put the link and also copied the text over.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2271340.html

 

 

Hello Miss Muppet!

 

This may be of use, it's the OFT letter above, but in Text Format, so people can Copy/Paste anything they need:

 

Quote:

THE CONSUMER CREDIT ACT 1974 - Sections 77 and 78

 

Summary

 

On request and when accompanied by £1, a consumer has the right to:

 

• a copy of their executed agreement

• any other document referred to in it

• a statement showing

- the total sum paid under the agreement by the debtor

- the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due, and

- the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due. If the creditor is unable to give this information, he can state instead how the dates and amounts fall to be ascertained.

 

The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.

 

In our view a debt collector who has bought the debt is the ‘creditor’ and as such takes on the liabilities of section 77.

 

Under section 77(4), if the creditor is unable to provide this information, he is not entitled to enforce the debt while he remains in default (Decriminalised from 26 May 2008 on the coming into force of the CPRs).

 

Legal Argument

 

A copy of the executed agreement

 

Under the prescribed condition, section 77 of the Act requires the debtor to (Typo, she means Creditor I think) ‘...give the debtor a copy of the executed agreement (if any)....‘. The ‘if any’ most naturally refers to the exception for agreements older than 1985 (Not sure this is correct, "if any" was inserted to cover Verbal Agreements).

 

Where a creditor receives a request to supply a copy of the executed agreement, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (‘1983 regs’) apply. Regulation 3(1) sets out the basic position that ‘every copy of an executed agreement... shall be a true copy’.

 

Regulation 3(2) goes on to concede that there may be omitted from this true copy various information such as details which are not required to be in the agreement by law: the signature box, signature (it should be noted that sub-ss 3-5 of section 127 do not apply to agreements entered into after 1 April 2007.A Court may then, for example, enforce unsigned agreements if it considers it is just to do so.) and date of signature. In our view the effect of Regulation 3(2) is that the creditor is only obliged to send out a generic copy of the agreement the debtor has signed up to. The creditor is not obliged to make an actual photocopy of the agreement.

 

However, the copy does have to be a ‘true copy’. This is a technical term, which has been discussed in a number of cases, mostly relating to bills of sale and the need to register a ‘true copy’ of the bill with the High Court. These cases come from the days before typewriters, when copies were made by hand. The consequences of filing a copy which was not a true copy were severe, since the bill would then be void and the creditor deprived of his security.

 

Meaning of ‘true copy’

 

In this context, the courts decided that a ‘true copy’ need not necessarily be an ‘exact copy,’ but it must be ‘so true that nobody reading it can by any possibility misunderstand it’ or be misled by it (In re Hewer ex parte Kahen (1882) LR 21 Ch.D. 871 at 875). The copy must contain ‘every material provision which is contained in the original’ (except that if the defect is made good by reading the document as a whole, the omission will not be fatal) (Court of Appeal in Burchell v Thompson [1920] 2 KB 80 at 98-99). Further, it is not sufficient for the copy merely ‘to state with complete accuracy in a summary form the effect of the stipulations contained in the original. It is not merely a document that is to state the true legal effect of the original; it is to be a copy of the original’ (per Atkin LJ in Burchell at 105).

 

Hewer, ex parte Kahen - the filed copy of the bill omitted the precise day of the month on which payment was to be made. The court held this was trivial, and no debtor would be misled by it.

Sharp v McHenry (1888 ) LR 38 Ch.D. 427- the copy contained blanks which were not in the original. The court decided that the blanks were unimportant, since the omitted words were not required for the original bill to be valid.

Burchell v Thompson [1920] 2 KB 80 - the copy failed to include the words ‘per annum’ after the interest rate of 55%. The reader of the copy would have to guess whether the interest was per annum, per month or something else but as one could sensibly assume, correctly, that it was per annum it was a true copy.

Commercial Credit Company of Canada Ltd v Fuiton [1923] AC 798 - suggested further that where there are a raft of smaller differences in a bill of exchange copy, this could prevent it being a true copy. However where the differences were such as to make the copy contract actually different to the original, the copy will not be true. Lord Sumner, speaking of the man who may wish to refer to the copy, concluded that ‘the Act promises him ... a true copy, not a puzzle. He is to inspect it, not to recover the original by a process of conjectural emendation’ (at 807).

 

Terms and Conditions

 

Regulation 7(1) of the 1983 Regs requires that a requested copy of an agreement which has been unilaterally varied under section 82(1) of the Act, shall be accompanied either by the latest notice of variation or a copy of the terms and conditions as varied. Regulation 7(2) extends the principle to copies of varied securities supplied either to the consumer or the surety.

 

Debt collectors as creditors

 

A consumer credit debt can be assigned in two ways: in law under the Law of Property Act 1925 or in equity but in practice we need to be concerned only with statutory assignments.

 

For a debt to be assigned in law, there are three conditions:

 

• the assignment must be absolute.

 

• the assignor must make the assignment in writing.

 

• express notice of the assignment must be given in writing to the debtor (see section 136 of the Law of Property Act 1925).

 

The reason the debt is assigned is immaterial. For instance, books of loans may be sold on to be collected as an asset rather than as a discounted debt.

 

In some instances, the debt collector may have purchased a debt but not have the relevant agreement. Whilst, in general, ‘liabilities’ cannot be assigned there must be a question mark over whether ‘duties’ are the same. This is important since there is a rule, expressed in Tito v Waddell (No 2) [1977] Ch 106 at 289 to 302, that where a benefit is conditional upon some burden, the assignee must also take the burden. An example is where the contractor has the right to mine on condition that they pay compensation to those disrupted by the mining. If they assign their right to mine, the assignee takes this right subject to the duty to pay compensation.

 

Therefore, there is a strong argument that under the Act, the right to payment is never absolute. It is always subject to duties (many of which are imposed under the Act). For instance, the right to enforce the credit agreement at all is subject to the duty to comply with section 77 or 78. This duty is not a ‘liability’ as such under the credit agreement but is a condition of the right to repayment.

 

There has been a suggestion that debt collectors can avoid complying with section 77 and 78 by claiming that the agreement is no longer `live’ in some way as it has been ‘terminated’ based on section 103 of the Act. This talks of a ‘trader’ who was the creditor under a regulated agreement, implying that ‘trader’ is no longer a creditor once an agreement is ended. Section 103, however, deals with where the customer no longer owes any money at all and therefore it is correct to say that he is no longer a debtor and the trader is no longer his creditor. Where money is still owed, section 103 would not apply, since the consumer would not be entitled to a termination statement.

 

The first issue on when the debt collector becomes the creditor is relatively simple. Section 189(1) of the Act defines ‘creditor’ as ‘the person providing credit under a consumer credit agreement or the person to whom his rights and duties under the agreement have passed by assignment or operation of law.’

 

Where the debt collector is not acting as the creditor’s agent, or otherwise on his behalf, the only legal basis he can have for demanding payment from the debtor is if the creditor’s rights and duties have been assigned to him. Therefore we can be reasonably confident that a debt collector who has bought the debt is the ‘creditor’.

 

Unpalatable though section 77 and 78 may be for some creditors, if the debt collector is unable to prove the debt, they should be more careful about the debts they buy. They cannot complain that the sections are somehow unfair as it is in the Act and so must be complied with. It is up to them to ensure they purchase and maintain sufficient records to be able to prove the debt and comply with the other requirements of the Act.

 

Misleading statements to debtors

 

Sections 77 and 78 refer to supplying a copy of the ‘executed’ agreement within 12 working days of receiving a written request from the debtor. Failure to do so makes the agreement unenforceable against the debtor until a copy is provided. In addition, if the default continues for a period of 1 month the creditor is in breach of the Act.

 

Execution involves signing the agreement. If no agreement has been executed, it is impossible to supply a true copy of the agreement. Should a creditor supply a copy agreement, even though the debtor has never signed any agreement with that creditor, no indication should be given that it is a true copy or a copy of an executed agreement. To do so may contravene Regulation 5 of the CPRs and be an unfair or improper business practice.

 

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

 

Therefore it is misleading to state, when complying with a section 77 or 78 request, that the debtor has signed or would have signed (or similar) the enclosed agreement where the debtor has not done so. From 26 May 2008 such a statement will be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Regulation 5 of the CPRs states that a commercial practice is a misleading action if it contains false information in relation to the main characteristics of the product (amongst other matters) and is likely therefore to cause the average consumer to take a transactional decision he would not have taken otherwise. The product in question is the credit agreement and the main characteristics include the ‘execution of the product’ (Regulation 5(5)(d) of the CPRs).

 

Telling a consumer that he signed such an agreement is also a misleading statement about his rights and the risks he might face as covered by Regulation 5(4)(k) of the CPRs. It is our view that it is likely that a consumer will take a transactional decision to make a payment under the credit agreement or to refrain from exercising his rights under the agreement as a result of being misled about whether he signed it.

 

Breach of Regulation 5 of the CPRs is a criminal offence under Regulation 9 and can also be enforced under Part 8 of the Enterprise Act 2002. Under section 218A of the Enterprise Act, where an application for an Enforcement Order is made the court may require the Respondent ‘to provide evidence of the accuracy of any factual claim’ (such as a claim that a debtor has signed a credit agreement).

 

In addition, it should be noted that threats to take action that cannot be taken is listed as one of the factors that will be considered in assessing aggressive practices in Regulation 7(2) of the CPRs.

 

May 2008

 

Susan Edwards

Head of Credit Investigations and Enforcement, Office of Fair Trading

Cheers,

BRW

[nilrs]

Is there anything i can do to stop this parasites bugging me.

 

One thing i have never done is sent Rma a cca request. I was dealing with Mercers when i sent my request off. Barclaycard replied with their standard terms and conditins that when i sent of the second letter and put the account in dispute.

I told Rma that i had sent my request to Mercers and the account was in dispute their reply was what i was sent was all Barclaycard needed to send by law and the account was NOT is dispute.

Do i need to send a request again and pay a pound for another terms and conditions sheet?? Because i know this is all i will receive.

 

Any ideas...

[slick132]

I suggest you write to RMA as follows:-

 

Dear sir/madam,

 

FORMAL COMPLAINT

Account no. xxxxxxxx

 

I refer to your letter of xxdate.

 

I have previously told you in my letter of xxdate / during a phone conversation on xxdate that this account is in dispute because Barclaycard have failed to provide me with documentation to which I am entitled.

 

You should have stopped calling or writing to me in accordance with the OFT Debt Collection Guidelines. Instead you have chosen to call me repeatedly.

 

Furthermore, your letter of xxdate threatens various possible actions and asks for information to which you have no right whatsoever.

 

As well as being in breach of the OFT DCG's, your letter breaches the Consumer Protection from Unfair Trading Regulations 2008 in various ways.

 

Accordingly, Formal Complaints have been made to both the OFT and the FOS.

 

If you contact me further by phone or letter, I will also report such contact to the regulatory bodies.

 

Yours faithfully,

 

Send by RM Special Delivery 1st Class.

 

I'd then send a copy of the RMA letter to both the OFT and the FOS and ask if they would care to comment on the implied actions threatened by RMA.

[nilrs]

Thanks for your help. I have sent the letter so now its time to wait and see.

[nilrs]

I have now received a letter from Westminsters solicitors.

 

NOTICE BEFORE LEGAL PROCEEDINGS.

 

Dear sirs

 

Despite previous reminders to you, the above outstanding amount remains unpaid.

Unless payment of the above amount is made direct to RMA by the 29/07/2009, we may sissue court proceedings for the recovery of the full amount outstanding, plus costs.

You should be aware that the issue of court proceedings will increase the outstanding amount.

IN ORDER TO PREVENT FURTHER ACTION YOU SHOULD CALL RMA. PRE-LITIGATION DEPARTMENT ON *********** QUOTING THE ABOVE REFERENCE NUMBER AND THE DATE OF THIS LETTER.

 

 

Do i contact these people or wait to see if RMA make contact?

I don't really want to just ignore them because i'm sure they wont just go away.

 

Any help??

[slick132]

Hi Nilrs,

 

Ltr to Westminster Sol'rs:-

 

Dear sir or madam,

Barclaycard a/c no. xxxx xxxx

I refer to your letter of xxdate.

I enclose for your information a copy of my recent letter to RMA, who have just been reported to the OFT and the FOS for breaches of the OFT Debt Collection Guidelines.

This account is in dispute with Barclaycard and, until the dispute is suitably resolved, no collection activity should take place.

If I here from you again, you will also be reported to the appropriate regulatory bodies.

Yours faithfully,

[nilrs]

Hi

 

All been very quiet since July and today a letter dropped through my door.

 

From a company called Apex Credit Management Services.

 

Letter Reads as follows:

 

Our client has requested we contact you to arrange payment of the full outstanding balance.

 

We have made enquiries and sources have shown that you are resident at the address on this letter. Our clients have advised that previous attempts to contact you via other agencies have been unsuccessful and this os potentially your last opportunity to arrange payment before further action will be considered.

 

Our staff are fully trained to assist you with your current situation and have a range of options to help. If you are unable to pay in full and are experiencing financial difficulty, we strongly recommend that you call us to discuss re-payment of your balance.

 

To prevent this matter becoming unmanageable please contact our office on 0871 (This Premium Rate Number) within ten days from the date of this letter.

 

Yours Sincerely ( My a**e sincere)

 

Now this is the fourth company Barclaycard has put my account to. It has been in dispute since May and all i have been sent is the standard terms and conditions rubbish.

 

Can they keep passing my account around to different companies even though it is in dispute??

 

Anybody have a letter i can send them to explaining that this account is still in dispute and i have on many occasions requested a copy of my cca from various different collection companies and all i get is the standard terms and conditions rubbish.

 

 

Any help would be really appreciated.

 

Thanks

[slick132]

Hi Nilrs,

 

Did you complain to the OFT, Trading Standards or the FOS.

 

Send Apex Credit Mgt a copy of either your BC complaint letter, or a letter from the FOS confirming their reference number.

 

Also, you could try asking the FOS to help you get sight of your credit agreement. In your first post you said BC had already said they would not reply further.

 

Read here - http://www.consumeractiongroup.co.uk/forum/barclaycard/231901-tony3x-barclaycard.html