Barclays Resolve Loan

[championless]

I don't need to write to them again? They sent me a default letter on Saturday? Surely this is breaking the law, since they are unable to provide me with a true signed copy?

[championless]

Would this be better to send them or is it worth just complaining to FOS?

 

Dear Sirs,

 

Account No: XXXXXXXX

 

On xx/xx/xxxx I wrote requesting that you supply me a true copy of the executed credit agreement for the above numbered account. In response to this request I was supplied the document, a copy of which is attached, which did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974).

 

The document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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 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.

 

In addition should you continue to pursue me for this debt you will be in breach of OFT guidelines. These guidelines (issued July 2003/updated December 2006) relate 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 require you to produce a compliant copy of the 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 the relevant governing authorities.

 

Since the agreement is unenforceable, it would be in everyone’s interest to consider the matter closed and for you to write the 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.

 

I respectfully request a response to this letter in 14 days.

 

Yours faithfully

 

 

 

 

Sign digitally

[slick132]

Hi Champ,

 

IMHO, another letter to them will be a waste of your time, paper and ink. They will not send you a copy of the agreement in response.

 

FOS would be my recommendation, as per the draft letter from Tony's thread which I linked in post #25 above.

[championless]

Surely they can't issue a default though if the account's in dispute? What if they record it on my credit record? Plus, the phone calls have started again!! Is there anything i can say to them when they call?

 

Is it even worth writing to the FOS? I believe they're not that good..?

[slick132]

Hi Champ,

 

Re the Default, the a/c may not be in default because they have complied with the requirements imposed by CCA1974, by sending you their T&C's.

 

..... since they are unable to provide me with a true signed copy?

Have they said this ?

 

Normally, they are unwilling to send out the copy agreement, but this is very different to being unable.

[championless]

I thought they had to send me a true signed copy? Isn't that what the letter i sent asks for?

 

Can anyone help me. I've received a default for this now and they are now threatening court action. Calls from Barclays are coming in several times a day. I ask them to communicate with me via letter but they refuse and tell me calls will continue.

 

Please can someone help me? Surely there must be something i can do. I'm really worried that i'll be taken to court. Don't they have to prove that i signed an agreement? Help help help?!

[slick132]

Hi Champ,

 

Just because you asked for a copy of the signed agreement does not mean they have to send it.

 

The recent Manchester test cases showed that the banks can respond to a CCA request without having to supply a true copy of the actual agreement. They can then continue to demand payment.

 

However, to succeed with a court claim against you, they need the original agreement showing the Prescribed Terms with your signature on it.

 

If you read other threads, you'll see many people are having this problem.

 

Re the phone calls, a TrueCall device apparently puts an end to the calls and is widely praised by users - The Consumer Forums - Telephone Recorders reviews.

 

For more info about the DN, read up in the Data Protection and Default Issues forum. If it's from Mercers, it is likely to be invalid anyway but that won't stop them registering adverse credit info about you. Keep the DN envelope.

[championless]

So does this mean i need to start paying them again? Can i still challenge the debt or does the manchester test case mean that i'm back to square one and have to pay this?

[slick132]

The Manchester case really just confirmed that it's a bad idea to try and take the bank to court seeking an uneforceability declaration.

 

If you can continue to pay this, you should or you'll get defaulted.

 

Go to the FOS and ask for their help in getting the credit agreement.

[championless]

The thing is, Barclays have never reported this loan to any of the credit reference agencies. Are they able to do so years later and immediately register a default?

[championless]

Bump?

[slick132]

Sorry this went unanswered.

 

If you fail to make payments as required on the a/c, they can and will register a default.

 

Did you complain to the FOS that Barclays failed to send you the credit agreement. After the ruling by HHJ Waksman in the Manchester test cases, the FOS seem to now side with the bank about what they must supply in response to a CCA request.

 

[championless]

That's ok, i know you must have loads of posts to answer.

 

I didn't complain to the FOS as i thought it wouldn't do any good. Do you think it's worth it?

 

They've since registered the default, i wish i'd just paid it as i thought they couldn't do that whilst it was in dispute. I've been advised to do a SAR. What do you think?

[cerberusalert]

Can you post up the default notice after removing identifying details?

[cerberusalert]

The thing is, Barclays have never reported this loan to any of the credit reference agencies. Are they able to do so years later and immediately register a default?

 

They are supposed to register the default within a 'reasonable' time period IIRC within six months.

[championless]

They didn't register the account with any CRA. However, once they issued the default, the account suddenly registered with Experian.

 

I've just had a thought though. The account numbers don't match up. The original account number is now different to the one listed on the default notice. AND a different sort code. Is this relevant?

 

Copy of default notice to follow...

[championless]

 

[championless]

Bump?

[slick132]

We can't check the dates on the DN, to see if you had adequate time to remedy the default.

 

Please confirm the date of the DN and the remedy date specified by them.

 

Do you have the envelope to show if the DN was sent by 1st or 2nd class post.

 

[championless]

Yes, the date on the letter is 10th December 2009 but i don't have the envelope anymore.

[slick132]

We need to know the two dates please, ie:-

 

The letter's date

 

The remedy date which they give you to pay up.

[championless]

The letter's date is 10th December 2009.

 

The other date is 28th December 2009.

 

I'm sending a SAR today and this one too:

 

Dear Sir/Madam

Account Number: XXXXXXXX Sort Code: XXXXXX

I am writing with regards to the default entry you have placed on my credit file dated 25/02/2010.

Please confirm which account the default refers to as I am unable to match it to the account above, which is detailed on previous correspondence from you.

I would also like to refer to the 4th principle of the Data Protection Act that personal data shall be accurate and, where necessary, kept up to date.

As this default notice does not relate to any account I have had with Barclays you are in breach of the Data Protection Act by adding the entry to my credit file.

Please provide me with a full explanation and remove this entry from my file within the next 14 days otherwise I will issue proceedings against you for breach of the Data Protection Act.

 

Yours faithfully

[championless]

I've just had a quick look over the copy of the CCA and it mentions nothing about sharing data with CRAs or that i give permission for them to do so. Is this relevant?

[cerberusalert]

The DN could be a problem for them, it was dated on a Thurs and unless it was posted 1st class it is assumed unless they can prove otherwise it was 2nd class and you have to allow 4 working days for service which would mean you received it 15th then you add 14 days to remedy which makes it one day short.

 

Now it gets even more interesting, because not only were there postal strikes during this period but also with it being Xmas you have to take into account when the last day for posting was because of the Xmas holidays & when the Post Office resumed normal service again + the Bank Holidays.

[championless]

The last date for posting second class was 18th December, last for first was 21st.

 

How do you think i should proceed?