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nutter192

Nutter192 vs Barclaycard Credit Card/Wescot

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Hi, I'm new to all this, I'm currently claiming my credit card charges from Barclaycard which are £1453.79.

 

I wrote them a letter threatning court action and they wrote back saying they are willing to refund all the charges including the 8% interest. However, they also say that the charges will be refunded to the account which currently has a minus balance of -£1708.00

 

At the same time, I have written to Wescot Credit Services who are collecting the debt on behalf on Barclaycard and requested the original Consumer Credit Agreement.

 

They have yet to reply, The problem I am faced is with how can I get the money from Barclaycard because as a result of the letter requesting the CCA Agreement sent to Wescot, the account is now in dispute. Therefore, do Barclaycard have to refund the money to me instead of reducing the balance with Wescot because the debt is disputed and therefore all monies in charges are due back to me.

 

Some advice on the best course of action would be appreciated.


If there are spelling mistakes on my posts, I blame the gremlins tapping my keys. :eek:

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Hi and Welcome

 

It does seem that most companies are refunding charges back to the account they are from unless there is no balance on the account. I know this is happening a fair bit because I see it at the compant I work for. There has only been one to my knowledge that has actually got the money back by cheque but as your account is in default I don't know how that will work. I am sure someone with more knowledge will be along soon.

 

DG:)


I have no legal training my knowledge comes from my personal life experiences

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Thank you, will await further wisdom.


If there are spelling mistakes on my posts, I blame the gremlins tapping my keys. :eek:

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Hi Nutter,

 

Do Westcott now own the debt or are they collecting on behalf of BC. If the debt was sold to Westcott, you should have received formal notice of this.

 

I'm not sure you can do much about this now - it may already be too late.

 

Don't correspond any further with BC just now.


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I think that Westcot are acting on behalf of Barclaycard as they have them down as a client rather than stating that an amount is outstanding.

 

I have written to them asking for the CCA Agreeement which has shut them up a bit :D, the last letter they sent threatned court action, so nothing so far. I was hoping to get the CCA Agreement ruled unenforceable and claim the charges back.8)


If there are spelling mistakes on my posts, I blame the gremlins tapping my keys. :eek:

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Hi Nutter,

 

Hopefully, asking Westcott for the credit agreement will, as you say, shut them up.

 

Don't say anymore, for now, to BC about the charges. If they credit the a/c there's little you can do.

 

If the debt had actually been sold on and the new creditor couldn't produce an agreement, you could have reclaimed the charges from them and they'd have been unable to enforce the debt.

 

That's the theory, but ultimately it might have to be decided by a judge.

 

The other way this could have turned out better for you is if you claimed Contractual Interest on the charges. BC would refuse to refund this and you'd file at court for it. They'd negotiate before court and you could force them to repy you direct before agreeing to discontinue the claim.


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wescot are the festering boil on the poor and struggling people of today.

this may cheer you all up (it may bring a smile.) Have you ever been in a situation when you know for sure that you are 100% sure you dont owe them nothing. i had that the other day. this is for L_ _ _ SE at WESCOT.

"WHAT MAKES YOU THINK I OWE YOU THIS MONEY" 1-0 to the little man,

wescot can rest assured i will be back after the17th. bigpaddy

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It seems Wescot have simply handed the letter to Barclaycard who have sent the following as evidence of a CCA. Thing is, its not worth the paper its written on.

 

BarclaycardOriginalAgreementPart1.jpg

 

BarclaycardOriginalAgreementPart2.jpg

 

I then sent a letter as below to barclaycard:

 

Thank you for your letter dated 4 September, the contents of which are noted

 

Your attention is drawn to the fact that this account is subject to a serious dispute. On 1 September 2009, I requested Barclaycard supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date Barclaycard have failed to comply with my request in full. Without production of the signed and executed agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78. Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v-FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as Barclaycard become compliant with my request. As Barclaycard are still not in compliance with my request I insist that the following takes place with immediate effect

All charges levied are to be removed from the account and further charges cease until such time as Barclaycard comply fully with my original request or such time as a court makes an enforcement order

All entries which refer to missed payments are to be removed from my credit file

All collection activities by your company cease with immediate effect until Barclaycard comply with my request from 1 September 2009 or such time as a court makes an enforcement order

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

I therefore require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 10 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 1974 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40.

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

I trust this clarifies my position on the above and would seek to be in receipt of either the signed and executed agreement within 10 days or confirmation that the said agreement does not exist.

 

I then received the following from Barclaycard in response to my letter, my question is how do i go about from here?

LetterfromBarclaycardpage1-1.jpg

LetterfromBarclaycardPart2.jpg

LetterfromBarclaycardpart3.jpg


If there are spelling mistakes on my posts, I blame the gremlins tapping my keys. :eek:

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The reply is their standard response - you say the a/c is in dispute and they say it's not.

 

Have a look at the CPR strategy at Link No2 in my signature below. Don't bother sending them Letters 1 & 2 unless you're prepared to take the matter forward with a court apllication on form N244.

 

If you start reclaiming charges without claiming Contractual or Restitutionary Interest, they'll make a refund of penalty charges to your a/c.

 

If you do reclaim the higher interest, the amount you get back could be significantly higher and you shopuld get a refund paid to you direct.

 

But you'll have to file a claim a court and prepare a court bundle for your evidence. They will normally negotiate and settle just before a court hearing, if you've prepared your case thoroughly.


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Thanks for the advice. The charges that I incurred have been credited back to the account. Is there anyway to reclaim these off the DCA if the agreement is proved to be unenforceable and the DCA have bought the debt?

 

Will look at the thread of CPR 31.16 and send the letter tommorrow recorded delivery.


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Is there anyway to reclaim these off the DCA if the agreement is proved to be unenforceable and the DCA have bought the debt?

In a word - NO.

 

I think BC still own the debt as I can see nothing to suggest that it's been sold to a DCA.

 

As said above, only go down the CPR route when you understand the risks involved and you are prepared to make the necessary Court Application. :)


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Hi, seems Wescot got tired of waiting and passed it on to Nelson Guest Sols. Letter is pasted in below. Should I do the CCA or should I wait for proceedings and then do CPR request etc??

 

Letterreceivedfromnelsonguest.gif


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Hi Nutter,

 

I don't see the point, at this stage, of sending another CCA request.

 

Send the Bemused Letter :-

 

 

Dear Sir or Madam,

 

ACCOUNT IN DISPUTE - Account number: XXXX XXXX XXXX XXXX

 

I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE.

 

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be resolved on **DATE**. This obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines have breached and I consider this account to be in SERIOUS DISPUTE.

 

As you are aware, while my Consumer Credit Act request remains in default, enforcement action is NOT permitted and, under s127, this constitutes a complete defence at law.

I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

I hope that this will not be necessary and an acceptable solution can be accomplished.

I would appreciate your due diligence in this matter and look forward to hearing from you in writing.

Yours faithfully,

Adapt the letter carefully and make the point that BC have supplied some documents but they've failed to supply a valid credit agreement.


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shall i include a copy of my original cca request to wescot as well?


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Hi Nutter,

 

Not necessary IMHO.

 

:)


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