letsgeteven v Barclaycard

[letsgeteven]

I got all backdated statements and noticed a load of charges for payment protection. They have admitted no agreement exists, and I have asked Barclaycard (and been ignored) to explain why they have taken payment protection. I now have the attached letter, what do I do?

Edited August 17, 2009 by letsgeteven

[cerberusalert]

If you upload them to TinyPic - Free Image Hosting, Photo Sharing & Video Hosting & then copy and paste the URL back here we'll be able to see them.

[letsgeteven]

try this

 

http://i28.tinypic.com/j9njaf.jpg

[cerberusalert]

Send DM this; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

[letsgeteven]

Thanks for the link/reply, how should I deal with Barclaycard? I have written asking why they have taken payment protection and have been ignored now 3 times. My FOS complaint about no executed agreement has led them to admit having no signed agreement? Am i on solid ground?

[cerberusalert]

They cannot take any enforcement action without an agreement. As it stands now you just dispute the debt and stop any future payments & they can't do anything about it.

[letsgeteven]

The FOS have investigated and whilst they have made it clear no agreement exists, they are saying it should be paid? Where do I stand?

[car2403]

I've moved you to a new thread so as to not hijack.

 

If they don't have an agreement, a Court cannot enforce the debt. That said a DCA will continue chasing it, regardless.

[cerberusalert]

The FOS have investigated and whilst they have made it clear no agreement exists, they are saying it should be paid? Where do I stand?

 

FOS always take that stance and side with the creditor. It is their opinion that a debt still exists and they do not have to take into account the legalities of a dispute.

 

Barclaycard cannot provide an enforceable agreement so it follows they cannot take any legal action.

[letsgeteven]

Help needed with a vehicle leasing agreement. Perhaps we should start a new thread?

 

I leased a car on a 3 year term in 2004, got a quote in 2007 for a 2 year extension but didn't actually take it up until 9 months later. by this time a new quote was done and agreement put in place. I was sure I had 3 months at the end without payment so cancelled the dd. They chased me for late payment, so when looking through paperwork, realised they had hiked the interest rate without telling me (remember the agreement was sold as one that could be extended, not interest rate increased). I then looked at the original extension quote and calculated I have been charge £1000 more on the last agreement than the 1st quote. I've wrtitten to them for an explaination and chased it with letters whenever they chase me for payment, so far they have ignored me and are now threatening a default notice, help?

[letsgeteven]

on the bc front, the update is that I have written with an offer of full and final settlement in return for all data being wiped. they've ignore it but have written twice a week apart threatening court action and stating that the courts will view that they can obtain judgement as the fos have found in their favour. is this a bluff?

[cerberusalert]

is this a bluff?

 

yes

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

[letsgeteven]

Thanks once again for such a prompt and useful reply! Am I best to ignor these notices or reply with something?

[cerberusalert]

Send the muppets this;

 

Dear Sir/Madam

 

Re:− Account/Reference

 

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.The document received does not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

 

The absence of a properly executed credit agreement prevents you from:

Adding interest to the account

Taking any enforcement action on the account

Issuing any default notices or registering any default marker with a credit reference agency

This situation 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.

 

 

 

 

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

 

 

 

 

What I Require

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for you to write the alleged debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

 

Yours Faithfully

Print name do not sign

 

 

Edit to suit

[letsgeteven]

thanks again, can you help with vehicle leasing agreement dispute?

[cerberusalert]

thanks again, can you help with vehicle leasing agreement dispute?

 

It's not my field I'm afraid, but you would be better starting a new thread otherwise it might get lost in this one. If you scan the agreement & remove identifying details before you post it up there are a couple of Caggers who will help.

[letsgeteven]

just a quick question re you suggested letter, the bit at the begining I have received the documents you sent and in the accompanying letter you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. Which docs are you refering to or are you making the point that there is a lack of them?

[cerberusalert]

Just edit it out.

[letsgeteven]

how do i start a new thread, cannot find the tab anywhere?

[cerberusalert]

Scroll to the bottom of General Debt Issues - The Consumer Forums & click 'new Thread'.

[car2403]

Or take a looky at the beginners guide to CAG, in my signature, which will show you how

[noddyaccount]

yes

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

 

What does "subject to the powers of the court " , mean in this context please

[car2403]

What does "subject to the powers of the court " , mean in this context please

 

Lovell referring to s.65, but Morritt was talking about an irredeemably unenforceable agreement under s.127(3)

[letsgeteven]

I wrote making them an offer of full and final payment in return for all data being wiped from reference agencies as suggested. They have written back with the following letter (copied word for word as no scanner at present)

 

 

Thank you for your recent letter. Our letter dated 19th Aug 2009 advised you of our clients view on this matter and they have advised us to continue action for recovery of this debt. In view of this, we are not willing to enter into any further protracted correspondence from you regarding the balance.

 

 

You now have 72 hours from the date of this letter to pay the full balance as shown. If you are unable to make the required payment, we are willing to consider a payment agreement upon receipt of a full breakdown of your income and expenditure including details of any other creditors you may have, the offers made to them and proof of your earnings/benefits.

A payment must be enclosed.

 

Failure to make payment as requested or supply the required documents may result in legal action commencing in line with our client’s instructions.

 

We trust we have clarified our position in this matter. Copies of this letter and any previous correspondence will be made available to the courts should they be required.

 

 

How am I best to respond? Not keen on going down the route suggested? Should I write back making them another "final" offer and state that I am happy to go to court? After all there is no agreement?

 

Help!

[letsgeteven]

They seem to be hinting that they can take this to court with confidence, have there been any cases where a credit agreement has been enforced without the actual signed agreement?