Barclaycard - CCA is it enforceable?

[fredsdebt]

Hi all, thank you for reading this post. I would be most grateful for any comments on the CCA agreement copy received from Barclaycard. What they have is sent is all that they have. It was signed by me in July 1994.

 

http://i891.photobucket.com/albums/ac120/fredsdebt/Barclaycard.jpg

[silverfox1961]

Hi

As far as I can see (and that aint easy:|) I can see no key terms within that document.

 

UNenforceable (but just my opinion )

[fredsdebt]

Hi Silverfox1961, thanks for your comments.

[cerberusalert]

Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any 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 none of the terms are present in the 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 the OFT guidelines, 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 refer to 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 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 and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client 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

 

 

I trust this out lines the situation

Print name do not sign

[vint1954]

Hi all, thank you for reading this post. I would be most grateful for any comments on the CCA agreement copy received from Barclaycard. What they have is sent is all that they have. It was signed by me in July 1994.

 

http://i891.photobucket.com/albums/ac120/fredsdebt/Barclaycard.jpg

It is an application form, without heading " this is a credit agreement regulated.........................", it is devoid of all prescribed terms. So in my opinion also, most unenforceable.

[fredsdebt]

Thanks to both 'cerberusalert' and 'vint1954' I shall be looking at sending Barclaycard just such a letter.

 

Any other 'caggers' comments welcome as well!! although it does seem quite clear that it is unenforceable.

 

Two questions:

 

1) Are there any good links as to what I should do next ie. after sending the letter do I hold back any further payments?

 

2) If it is unenforceable where do I stand with regard to all the previous payments I have made against the Accrued Interest and Charges applied?

 

Thanks

[vint1954]

Thanks to both 'cerberusalert' and 'vint1954' I shall be looking at sending Barclaycard just such a letter.

 

Any other 'caggers' comments welcome as well!! although it does seem quite clear that it is unenforceable.

 

Follow cerberusalerts advice. You won't go wrong.

 

Two questions:

 

1) Are there any good links as to what I should do next ie. after sending the letter do I hold back any further payments?

 

Yes, post 4 this thread. You can hold back payments while the account is in dispute, however expect defaults and threatening letters if you do and no action from them if you don't

 

 

 

2) If it is unenforceable where do I stand with regard to all the previous payments I have made against the Accrued Interest and Charges applied?

 

You can claim the charges back, plus the interest on those charges, but not previous payments.

 

Thanks

Vint

[fredsdebt]

Just had 'Mercers Debt Collection' on the phone - threats of doorstep call. Used some of the information etc.. from this Forum to basically say "go away" Thanks for the info up here - it is good to know.

[vint1954]

Just had 'Mercers Debt Collection' on the phone - threats of doorstep call. Used some of the information etc.. from this Forum to basically say "go away" Thanks for the info up here - it is good to know.

Refuse to talk to them on the grounds of security, surrounding identity theft, then say goodbye.

 

Have you sent them:

 

This account is in serious dispute with Barclaycard, the details of which are none of your concern.

TAKE URGENT NOTE:

I DO NOT WISH TO RECEIVE ANY REPRESENTATIVE OF YOUR ORGANISATION, OR INDEED AN AGENT OR REPRESENTATIVE EMPLOYED BY ANY ORGANISATION THAT YOU ISSUE INSTRUCTIONS TO.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.)

THEREFORE TAKE NOTE THAT I REVOKE LICENSE UNDER COMMON LAW FOR YOU, OR YOUR REPRESENTATIVES TO VISIT ME AT MY PROPERTY AND IF YOU DO SO, THEN YOU WILL BE LIABLE FOR DAMAGES FOR A TORT OF TRESSPASS AND ACTION WILL BE TAKEN, INCLUDING BUT NOT LIMITED TO , POLICE ATTENDANCE.

 

I also caution you here that should you ignore my request on this point, the actions of your representative(s) will happily be recorded either by CCTV or by telephone recording equipment – whichever is applicable. Accordingly I reserve the right to use any evidence of you or your representatives’ ignoring this request in connection with any actions that I choose to pursue, including media exposure.

 

Should it be your intention to disregard my wishes, and break your obligations, please be advised that the following rules also apply, as laid down by the OFT in respect of debt collection, and that you, as a holder of a consumer credit license, are obliged to follow:

The areas of the OFT guidance which applies to you in this instance are:

Debt collection visits

2.12 Examples of unfair practices are:

 

a. not making the purpose of any proposed visit clear, for example, merely stating that collectors or field agents will call is not sufficient

f. visiting or threatening to visit debtors without prior agreement when the debt is deadlocked or disputed

Deceptive and/or unfair methods

2.8 Examples of unfair practices are as follows:

 

k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any third parties and credit reference agencies.

Please confirm that you have complied with my request under section 10 of the Data Protection Act.

[fredsdebt]

Had Mercers again on phone this morning so I think the time is right to fire off the above letter (Recorded Delivery) that 'vint1954' has suggested. Thanks again.

[citizenB]

Fred, your image is a bit grainy round the edges and I cant see if it is one of the trifold application forms that had the sticky bit round the edge for sealing ?

 

If so, the chances of any other information being on the back of the document are zero as there would have just been an address for it to be returned to.

[fredsdebt]

Fred, your image is a bit grainy round the edges and I cant see if it is one of the trifold application forms that had the sticky bit round the edge for sealing ?

 

If so, the chances of any other information being on the back of the document are zero as there would have just been an address for it to be returned to.

 

Hi 'CitizenB'. Yes the image Barclaycard sent is really grainy and looks like a print out from a Microfische reader. I can't recall for certain if it was one of those tri-fold application forms (view on here is that it looks like an Application Form) but the name and address box (which I have blanked out) originally had my full name pre-printed. Not sure how they got my name as I am not / havent been a Barclays Bank customer? I think if it is a tri-fold (sticky round the edge) then the other side would proberbly just been the pre-paid postage to return back.

 

This looks like all Barclaycard have on me.

[fredsdebt]

Update....

 

above suggested letters all sent off and with Mercers and Barclaycard. No replies yet.

 

Thanks,

 

ps/ are Mercers run by the Chuckle Brothers? - just asking

[cerberusalert]

ps/ are Mercers run by the Chuckle Brothers? - just asking

Mercers are the in-house collection arm of Barclays, but they pretend to be a seperate entity. They must be embarrassed.

[fredsdebt]

Mercers are the in-house collection arm of Barclays, but they pretend to be a seperate entity. They must be embarrassed.

 

 

Thats right - I got on same day a letter from Mercers and one from Barclays - saying different things but same typeface and layout on same paper just different logos!

 

Chuckle Brothers!

[Artie44]

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

Re: my request under the Consumer Credit Act 1974

This account is in Dispute .

I'm a bit confused about this point. I understand that in the absence of an enforceable agreement the creditor cannot pursue the debt via the courts, but they can continue to request that the debt is repaid.

 

Saying the account is disputed is like saying the debt does not exist. But if the money was loaned to the debtor, albeit on the back of an invalid and unenforceable agreement, the debt still exists so how can it be disputed? Isn't it only the enforceability that is being disputed? Isn't that different to the account itself being disputed?

[fredsdebt]

I'm a bit confused about this point. I understand that in the absence of an enforceable agreement the creditor cannot pursue the debt via the courts, but they can continue to request that the debt is repaid.

 

Saying the account is disputed is like saying the debt does not exist. But if the money was loaned to the debtor, albeit on the back of an invalid and unenforceable agreement, the debt still exists so how can it be disputed? Isn't it only the enforceability that is being disputed? Isn't that different to the account itself being disputed?

 

 

To me its about making the statement to Barclaycard/Mercers (same for other credit cards) that you are informing them that the account they are chasing is disputed and throwing the onus back to them to prove it else go away. In this case Mercers/Barclaycard havent got a clue what they are doing - seen lots on this forum that all the pre April 1997 credit agreements are all appliction forms and none are enforecable.

 

Being chased by Mercers is like being chased by a lame sheep with no teeth. Barclaycard and Mercers send out letters that clearly show they dont have a clue and dont know what they are doing - hence the reference to Chuckle Brothers!

 

My view is make the statement then cease paying anymore to them.

 

Thanks,

[fredsdebt]

Letter in from Barclacard "appology" for me having raised a complaint (had earlier told them their agreement was unenforceable and to the way/lack of respose from Barclaycard). Reply promised back from Barclaycard by 8th December.

 

Mercers still being very poor at doing anything. When I phone them they havent got my letters on file saying a back log of post!! Seems like chaos there to me! I have resent all my letters (nice thick envelope went off yesterday) and will now wait. My plan now is thats it - the agreement is in my view (and others on here) uneforceable so I will leave things and just see if they contact me again.

 

Thanks,

[fredsdebt]

Calders have been hounding meover a credit card debt with Barclaycard.

 

I am ok dealing with Calders and not looking for help to see if my agreement is enforcable or not.

 

What I am looking for is advice/help/comments on the attached recently received from Calders. I have several chasing letters from Calders on their headed paper as follows:

 

http://i891.photobucket.com/albums/ac120/fredsdebt/Calderletter.jpg

 

The above is similar to what I have seen on CAG forum.

 

I recently had a phone call from Calders wanting to do a full and final settlement. Strange not only the call but as my agreement appears enforceable (its not pre 1997) as not expecting it. The offer was 30% of the balance outstanding. Interesting that 30% seems to be a %age that has come up a few times as being a %age from likes of Calder and others before the debt gets sold to 'real' debt collectors.

 

I said to Calders that any 'deals' for a F&F need to be sent to me in writing. Here is what I got from Calders:

 

http://i891.photobucket.com/albums/ac120/fredsdebt/Calderofferletter.jpg

 

I have a couple of questions on the above - the main one being why is it on different style 'home made' headed paper and not look like the first letter?

 

1) the letter had wrong date on (I have blanked it out). It was a date prior to the telephone conversation.

 

2) The font colour and style is diffrent.

 

3) Account number quoted was incomplete.

 

4) Calder Registered Office not on front of the letter (at foot of the letter as with the first letter).

 

5) The letter is not signed.

 

I also have a friend/contact who is also in same boat with Barclaycard/Calder and he recently had similar phone call wth F&F offer and he asked for it to be sent in writing. Instead a week later he got a letter from Moorcroft syig they had the debt and now collecting arrears. He called Calders and asked why this had been done when he was expecting the F&F letter - he was told cant do now and need to contact Moorcrofts. Again the F&F offer was 30%.

 

Thanks,

[dx100uk]

ok well first things first

 

NEVER talk to a dca on the phone...ever!

 

now.

if they are offering a settlement lower than the outstanding balance then there is SOMETHING WRONG with either the agreement or the bal is made of charges and/or PPI.

 

when was you last in/out too?

 

dx

[lickthewallfatboy]

Calder ARE barclaycard

[fredsdebt]

Calder ARE barclaycard

 

Yes, I know this fact. Thanks for pointing out to anyone reading this.

[fredsdebt]

ok well first things first

 

NEVER talk to a dca on the phone...ever!

 

now.

if they are offering a settlement lower than the outstanding balance then there is SOMETHING WRONG with either the agreement or the bal is made of charges and/or PPI.

 

when was you last in/out too?

 

dx

 

I agree Never talk to a DCA on phone. I only metiond that I had spoken after they called saying lets do a F&F when I think my agreement could/would go against me if I were to end up in court. I thought the phone call was strange - I said to them put it (ie, 30% offer) in writing to me as this would help me negotiate even lower as any counter offers and further offers wont go above 30% so maybe I can get it lower.

 

My point here is the letter received (copy above). I am also looking for comments on Calders approach to me and to my freind as detailed in my opening post rather than "dont talk to a DCA".

 

I take your point though that maybe there is something wrong with my agreement - but seeing as it only couple of years old it proberbly complies with the latest Consumer Credit Act law - which is why I found it odd (and why I was curious I suppose) to talk to Calders when I know the basic rule is never talk to them.

 

Thanks,