Mercers/Barclaycard

[tony3x]

Hi,

I am new on here so please bear with me.

 

I have several credit cards and due to having a much reduced income at the moment cannot make the full payment. I have managed to agree reduced payments with Halifax, Cap One & MBNA but Barclaycard will not play ball, I have 3 accounts (1 is ex Morg Stan, 1 ex Goldfish).

 

I have made an offer in writing of £50 per month for each card which was declined, they said that they would only accept a minimum of 1% of the o/s balance and if I wanted to pay less I had to deal with them via someone like Payplan.

 

This has been going on since May and my accounts have been passed to Mercers. This joke of an organisation phone at all hours and always ask for me by first name, if my children answer they do even say they who they are from. I have repeatedly told them, verbally and written, that I will only deal with them in writing but they continue to ring - they think that 7pm on a Sunday is acceptable - and that they will only deal by phone.

 

After reading this site I have sent the harrassment by telephone letter but did not send recorded. The last few times they have called I have refused to answer the security questions and have told them the the letter has been sent. Today i recieved a letter from them giving me 48 hours notice as I have ignored demands for payment (I have continued to make payments of £50 per month) and that they will now pass my account to a local debt collection firm unless I phone them.

 

I have previously asked for the executed credit agreements but did not give time frame. I have not recieved copies of the signed agreements so have written back asking for them again or an explanation why they cannot be provided. (all this to Barclaycard). They did send me terms & conditions but the dates were all after I took out the cards.

 

Bit of a loss now so any advice will be appreciated.

[Midas029]

Tony,

 

I too joined only today and have been lurking for about a week.

 

Really as was pointed out to me don`t get too worked up over it.

 

I too have a thing with mercers and am posting request for cca tomorrow.

 

My general thoughts from looking at the site today is that unless they can give a full documented copy of cca they haven`t got a leg to stand on.

 

Maybe someone who knows a lot more?

 

Thats what I seemed to discover today and feel better for it.

 

Have a look through the different forums and you should learn a lot more about other peoples experiences. HTH

[tony3x]

Mercers just phoned. My daughter answered and asked who was speaking, they said their name and asked for me by first name, daughter asked where they were calling from - they refused to say and asked to speak to me again, daughter again asked who they were calling from, again they refused to say so she hung up on them.

[bainmarie]

Hi Tony,

I had loads of problems getting b'card,mercers then calders and the last dca( i cant even remember the name of!) to accept reduced payments, was offering them £40 per month. I got in touch with payplan, didnt set up a dmp or anything, just asked their advice. They sent me an I&E form and gave me a case number. Sent all this to dca and offered £1 token monthly payment which they've accepted.

Dont let them get to you!

hope this helps

BM

[42man]

http://www.consumerforums.com/resources/templates-library/50-complaint-in-respect-of-dca-threat-re-expired-debt/100-complaint-about-telephone-harassment-by-debt-collection-agency

[tony3x]

After 2 letters asking for my executed credit aggrement I have recieved the following for 2 of the cards:

 

Reference; Section 78 of The Credit Consumer Act 1974

I write further to the letter whereby you note dissatisfaction to the documents you received in relation to a request made under Section 77/78 of the Consumer Credit Act 1974.

Firstly, credit cards are regulated under Section 78. Section 78(1) of the Act states that the creditor shall give the debtor a copy of the executed agreement and a statement of account which is practicable to refer. Regarding a statement of account which is practicable to refer, the letters which we send in response to a Section 78(1) request includes this information. To cover the issue of executed agreement.

How does the Act define an "executed agreement"?

"Executed agreement" is defined in section 189 of the Act as, "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement ".

What do the rules say about providing a copy?

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Regulations") made under the Act deal with how we are to provide a "copy" of an agreement. These Regulations provide that any copy of the agreement supplied to a debtor should be a 'true' copy. Regulation 3(2) provides that a copy may omit certain information, which allows you to be provided with a true copy, not a complete copy.

 

What happens if the original agreement has been varied since it was originally signed?

The Regulations also set out what should happen where the agreement has been varied since it was signed. Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied. Regulation 7 does not state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a "true copy" which sets out the terms and conditions current at the time of provision of the copy.

Conclusions in relation to the document we have to provide

A "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included as clarified by Regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

The definition of "executed agreement" refers to a document embodying the terms of the regulated agreement. When this is read with Regulation 7 •- for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms.

The issue of what is an executed agreement has been interpreted in the High Court. It was held that an executed agreement begins as the credit agreement which is sent to the cardholder when they receive their credit card; therefore, establishing what is the original executed agreement. When the agreement has been varied, Regulation 7 mentioned above applies.

To summarise, if the agreement has not been varied, we must send the original executed agreement; this would be the credit agreement which is currently regulated. If the credit agreement has been varied, we must send the current credit agreement as this will contain the terms of the regulated agreement. We have sent you this and the original executed agreement for reference.

To address any issue about our lack of compliance with Section 60 of the Consumer Credit Act 1974. Section 60 relates to the form and content agreements. All Barclaycard credit agreements are in compliance with this. You may state that the application form which we provided you, for reference, when you made a request under Section 78 does not adhere to Section 60. This is not a complete copy of your application form, but rather an excerpt to show you signed a contract with us. When you completed your application form, the document would have been presented to you in full, in a legible form, and would have adhered to the requirements under Section 60 of the Consumer Credit Act 1974.

 

I hope this letter has helped with your concerns about the documents you have been supplied with under Section 78 of the Consumer Credit Act 1974. As our response fulfils the obligation under Section 78 of the Consumer Credit Act 1974, you should carry on paying the debt you have accrued on your account. We do not class the account as in dispute, you have been 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 areas of law, we are not obliged to respond beyond the statutory response we have already given you. We would require you to provide comprehensive legal and documentary evidence to support your claim to ascertain whether response is necessary.

 

 

Please advise what action to take next.

 

 

 

just giving this a bump as, after reading the letter Barclaycard have sent I am not sure where to go. The letter implies that they have supplied everything required, is this the case or do I need to send follow up stating that account is unenforcable?

 

My Timeline for the 3 accounts is as follows:

 

CCA request to Barclaycard - 25/08

T&C recieved from Barclaycard - dated 27/08

2nd CCA request to Barclaycard - 09/10

more T&C recieved for 1 card dated 14/10. For the other 2

I recieved letters as detailed 2 posts above.

 

During this time I have also sent a telephone harassment letter (11/10) to Mercers, unfortunatley not recorded delivery. The calls have slowed (only 4 since) and they now refuse to talk to me because I will not answer security questions. I have also requested in writing and verbally that they only contact me in writing they say they have but a warning notice asking me to ring defeats the object!!

 

Would my next move be to send the 'unenforcable agreement letter' to Barclaycard and cc Mercers?

 

I have been making reduced payments during this time.

[bigandyuk1]

You can send what you like, but BC will still say they have done all that is needed and then it will be passed to Calders (still BC) and eventually Calders will pass it to a real Debt collection agency... Best of Luck

[tony3x]

where does this leave me. can they pass the debt on if the account is in dispute?

 

what should be my next course of action?

 

Hi, sorry to hijack but, after reading this and many other threads, I am trying to work out my next course of action.

 

I have recieved the standard reply as below. The bits that concern me are in blue. Also I have never received a copy of the application form as thye have stated. I have been making reduced payments for a while now, and seemed to have seen off Mercers & Calders for the time being, was thinking of stopping payments all together.

 

All advice appreciated.

 

Reference; Section 78 of The Credit Consumer Act 1974

I write further to the letter whereby you note dissatisfaction to the documents you received in relation to a request made under Section 77/78 of the Consumer Credit Act 1974.

Firstly, credit cards are regulated under Section 78. Section 78(1) of the Act states that the creditor shall give the debtor a copy of the executed agreement and a statement of account which is practicable to refer. Regarding a statement of account which is practicable to refer, the letters which we send in response to a Section 78(1) request includes this information. To cover the issue of executed agreement.

How does the Act define an "executed agreement"?

"Executed agreement" is defined in section 189 of the Act as, "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement ".

What do the rules say about providing a copy?

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 ("the Regulations") made under the Act deal with how we are to provide a "copy" of an agreement. These Regulations provide that any copy of the agreement supplied to a debtor should be a 'true' copy. Regulation 3(2) provides that a copy may omit certain information, which allows you to be provided with a true copy, not a complete copy.

 

What happens if the original agreement has been varied since it was originally signed?

The Regulations also set out what should happen where the agreement has been varied since it was signed. Regulation 7 provides creditors with a choice of including in the copy of the executed agreement either a copy of the latest notice of variation relating to each discrete term which has been varied, or an easily legible statement of the terms varied. Regulation 7 does not state that the copy of the agreement shall include a statement of the original terms as well as a statement of the varied terms. Regulation 7 allows us to provide you with a "true copy" which sets out the terms and conditions current at the time of provision of the copy.

Conclusions in relation to the document we have to provide

A "copy" of an agreement will satisfy the requirements even if the signature box and/or the signatures are not included as clarified by Regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

The definition of "executed agreement" refers to a document embodying the terms of the regulated agreement. When this is read with Regulation 7 •- for agreements that have been varied - a copy of the original agreement would not embody its terms. A copy of the agreement as varied would embody its terms.

The issue of what is an executed agreement has been interpreted in the High Court. It was held that an executed agreement begins as the credit agreement which is sent to the cardholder when they receive their credit card; therefore, establishing what is the original executed agreement. When the agreement has been varied, Regulation 7 mentioned above applies.

To summarise, if the agreement has not been varied, we must send the original executed agreement; this would be the credit agreement which is currently regulated. If the credit agreement has been varied, we must send the current credit agreement as this will contain the terms of the regulated agreement. We have sent you this and the original executed agreement for reference.

To address any issue about our lack of compliance with Section 60 of the Consumer Credit Act 1974. Section 60 relates to the form and content agreements. All Barclaycard credit agreements are in compliance with this. You may state that the application form which we provided you, for reference, when you made a request under Section 78 does not adhere to Section 60. This is not a complete copy of your application form, but rather an excerpt to show you signed a contract with us. When you completed your application form, the document would have been presented to you in full, in a legible form, and would have adhered to the requirements under Section 60 of the Consumer Credit Act 1974.

 

I hope this letter has helped with your concerns about the documents you have been supplied with under Section 78 of the Consumer Credit Act 1974. As our response fulfils the obligation under Section 78 of the Consumer Credit Act 1974, you should carry on paying the debt you have accrued on your account. We do not class the account as in dispute, you have been 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 areas of law, we are not obliged to respond beyond the statutory response we have already given you. We would require you to provide comprehensive legal and documentary evidence to support your claim to ascertain whether response is necessary.

[the_shadow]

Tony,

 

If you've read the other threads you will realise that you say its in dispute and I agree by the way... they will say not....

 

They will default you

They will pass the account between the internal DCA's

They will eventually pass it to an external DCA

They (external DCA) MAY initiate court proceedings although without showing you the original CCA thats shakey.

 

... and this is about the size of it I'm afraid. The alternative is to take the battle to them via CPR 31.16 pre action disclosure which with Barclays WILL INVOLVE COURT.

 

S.

[the_shadow]

Hi, sorry to hijack but, after reading this and many other threads, I am trying to work out my next course of action.

 

I have recieved the standard reply as below. The bits that concern me are in blue. Also I have never received a copy of the application form as thye have stated. I have been making reduced payments for a while now, and seemed to have seen off Mercers & Calders for the time being, was thinking of stopping payments all together.

 

 

Replied on your thread Tony.... as to the stuff in blue its legalise for saying either:- "we cant send you the CCA, we dont have it, theres a problem retrieving it, we cant be bothered to retrieve it as its microfiched and will cost us too much to..." take your pick

 

"smoke and mirrors" springs to mind everytime I receive a letter from Sharkleys

 

S.

[tony3x]

Thanks for the quick reply and sorry for the hijack.

 

I am not sure that I want to go to court just yet so will write back again pointing out that I think the account is in dispute as they have not complied with the request and point out the following:

 

(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.

 

I may, due to affordablility have to stop payments.

 

Funny thing - got a letter from them today re one of the accounts offering to credit my account if I were to pay a amount off the account.

[LB145]

Hi Tony

Had a look at your thread - make an official complaint to the FOS - against BC and Mercers - as you peeked on my thread you will have seen I have been battling them since April - unlike you I stopped payment - whether this was wise I cannot say but I have gone down this route now - I have SAR them and still no copy of signed CCA only the typed version (their version). Also make a complaint to Tradig Standards - I think it is the Merseyside office - they are very aware of Mercers activities. Tere is nothing they can do to enforce but al complaints count.

[slick132]

Hi Tony,

 

I've put your post and TS's reply in your own thread to avoid hijacking.

 

Use this to discuss the BC case further if you wish.

 

I suggest you now make a complaint to the FOS saying that BC have refused to send you a copy of your credit agreement, to which you are entitled, in response to your CCA request and your follow-up letter.

 

Enclose copies of relevant letters and any doc'ts that BC sent to you.

 

You'll see from other threads here that there have been recent successes after FOS became involved.

[tony3x]

Thanks Slick,

 

Is there a standard template for an FOS complaint. I have looked but cannot seem to find one - it may be me but the threads seem to be merging into one now, I have read so many.

 

thanks

 

Tony

[slick132]

There is no template for this but, if this route continues to show results, I'll draft a template.

 

In the meantime, use something like this, adapted to reflect your own case:-

 

The Financial Ombudsman Service

South Quay Plaza

183 Marsh Wall

London E14 9SR

Dear sir or madam,

Dispute with Barclaycard - A/c No xxxx xxxx xxxx xxxx

I sent a CCA request to Barclaycard on xxdate asking for a copy of the executed credit agreement for the above account and enclosed the £1 fee. I am entitled to this by virtue of s.78 Consumer Credit Act 1974.

They replied by sending me a set of Terms and Conditions (not specifically relating to me, or the account) saying this is all they are required to do. They do not consider the account to be in dispute and will continue with collection proceedings.

They say they are not obliged to communicate further unless I produce legal arguments to back up my assertion that I am entitled to sight of the agreement.

 

Would you please intervene on my behalf, by contacting Barclaycard to ask that they send me a copy of the signed executed credit agreement, to which I am entitled.

 

I enclose copies of relevant letters and documents for your perusal.

 

Your efforts in this matter will be greatly appreciated.

Yours faithfully,

They are v busy so may take a while to respond. Let us know how you get on.

[Izzy40]

Thanks for your help.

[tony3x]

Thanks Slick,

 

Got all my copies done today, letters go tomorrow. Will update as soon as I hear.

[MandM]

subbing

[tony3x]

Received 3 replies from the FOS quoting the usual ' we are experiencing very high volume of enquiries' etc.

 

Will now write to Barclaycard to explain that I have complained to the FOS and the accounts ARE in dispute and I will be withholding payments until my complain is resolved.

[steve2577]

Hi

 

 

I have exactly the same issue

 

http://www.consumeractiongroup.co.uk/forum/getting-out-debt/234566-barclaycard-3-my-14-a.html#post2612122

 

and even though I am behind you on this I was thinking about sending the Letter No 3 CCA Query to keep them on the back foot but only when th 12+2 day timescale has lapsed in my case around 7th Dec.

 

Unenforceability & Template Letters II - MoneySavingExpert.com Forums

 

I dont know if you are aware of these template letters if not you have made my day in that I seem to be sponging info from everybody without assisting others.

 

I was also thinking about hitting them with a SAR request to keep the ball rolling.

 

 

Steve

 

If you pop onto my thread now and again maybe we might be able to help each other.

[tony3x]

I have now written to Barclaycard to explain that I still consider the accounts to be in dispute and have asked the FOS to intervene on my behalf.

 

However today I received a letter (or should I say demand) from Calders. Have written back with the following:

 

Dear Ms King,

Further to your demand for payment dated 1st December 2009 I would like to raise a few points:

1) I previously wrote to Calders on 31/10/2009 – I have yet to receive a reply from you.

2) You have stated that I have not complied with the recent Default Notice – I have never received a default notice. If you did indeed send one can you resend by some form of registered post to make sure I receive it.

3) The account is currently in default as Barclaycard have yet to supply me with a copy of the executed credit agreement.

4) I have contacted the FOS to intervene on my behalf as Barclaycard, and companies associated with it, have not complied with any request I have made to supply a copy of the executed credit agreement.

5) You may be aware of the following announcement of a draft guidance made by the OFT today: The OFT's draft guidance says: "No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot and will not be entitled so to enforce the agreement."

"The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable," it adds.

The guidance goes on to warn that: "To mislead debtors into making payment may in certain circumstances amount to an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008."

As I have yet to be supplied with a copy of the executed credit agreement the above may apply.

I look forward to receiving your written response.

 

 

Now lets see what there next move is.

[nick20045]

I have now written to Barclaycard to explain that I still consider the accounts to be in dispute and have asked the FOS to intervene on my behalf.

 

However today I received a letter (or should I say demand) from Calders. Have written back with the following:

 

Dear Ms King,

Further to your demand for payment dated 1st December 2009 I would like to raise a few points:

1)I previously wrote to Calders on 31/10/2009 – I have yet to receive a reply from you.

2)You have stated that I have not complied with the recent Default Notice – I have never received a default notice. If you did indeed send one can you resend by some form of registered post to make sure I receive it.

3)The account is currently in default as Barclaycard have yet to supply me with a copy of the executed credit agreement.

4)I have contacted the FOS to intervene on my behalf as Barclaycard, and companies associated with it, have not complied with any request I have made to supply a copy of the executed credit agreement.

5)You may be aware of the following announcement of a draft guidance made by the OFT today: The OFT's draft guidance says: "No communications or requests for payment should in any way threaten court action or other enforcement of the debt where the creditor or owner is aware that it cannot and will not be entitled so to enforce the agreement."

"The creditor or owner should make it clear in communications to the debtor that the debt is in fact unenforceable," it adds.

The guidance goes on to warn that: "To mislead debtors into making payment may in certain circumstances amount to an unfair commercial practice under the Consumer Protection from Unfair Trading Regulations 2008."

 

As I have yet to be supplied with a copy of the executed credit agreement the above may apply.

 

I look forward to receiving your written response.

 

 

Now lets see what there next move is.

Comments posted. Hope they help.

[tony3x]

Thanks for your comments Nick.

 

I have not had a reply from Calders and probably unlikely to get one as when they phoned today they told me they only communicate by phone. As I will not answer any security questions they will not discuss my case. They asked me to call them as I will not need to answer the security questions but I politely declined. I did point out that if I were to phone them (unlikely) I would only do so if they supplied a geographical number - the girl I spoke to asked what it was .

 

I have now had a reply from The FOS on one of my cases stating that they have written to Barclays who should now contact me. It also says that if I do not hear from them within the next few days I may want to write to them, at an address in Stockton on Tees, and mention that the FOS have written to them. They now have 8 weeks to respond.

 

I have now received the following:

 

1) Letter from Calders saying that they have no alternative but to pass my account to a local representative who may call at my home - looks like the letter denying them permission to call is needed.

 

2) Letter from BC after contact from the FOS.11 December 2009

 

Reference: Dear Mr

I write further to the complaint you raised with the Financial Ombudsman Service.

You claim that Barclaycard has not provided you with the information you requested previously. You require a true, signed copy of any credit agreement that exists in relation to your Barclaycard account, in accordance with Section 78 of the Consumer Credit Act 1974.

Our previous letter dated 27 August 2009 enclosed a copy of your Executed Agreement with the Barclaycard Terms and Conditions at the time you entered into your agreement. This is in the prescribed form which embodied the full terms and conditions of your Credit Agreement in accordance with the terms of Section 61 of the CCA 1974.

A copy of the current Barclaycard Conditions was also sent to you under separate cover.

In requesting a signed copy of your Executed Agreement, we make reference to the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 which states that there is no requirement for the copy of an Executed Agreement to contain any signature box, any date or signature.

We believe that the information sent to you on 27 August 2009 completes our obligation to supply the information and copy documents under Section 78 of the CCA 1974. We would also refer you to the Barclaycard Conditions for an explanation of what Barclaycard is, and is not, allowed to do in relation to your account

 

In the circumstances, we confirm that Barclaycard will be pursuing your outstanding debt in accordance with the Barclaycard Conditions. Your balance is now £xxxxx and you should continue to pay your account in accordance with your monthly statements. However, if you are experiencing any financial difficulty, please contact us so that we can arrange a mutually acceptable repayment agreement. I very much hope that I have fully resolved your complaint but I am obliged to tell you that at this stage you do have the option to ask the Financial Ombudsman Service to review your complaint further, if you so wish.

Please find enclosed their leaflet which explains how they deal with complaints. For the purposes of the Financial Ombudsman Service you may regard this letter as our "Final Response" to your complaint.

Yours sincerely

 

Mark Hutchinson

Customer Relationship Manager

Enc: Financial Ombudsman Service - "Explanatory Leaflet".

 

 

I suppose the way forward would be to complete the claim form for the FOS but before I do some guidance would be appreciated.

[nick20045]

Have edited the letter and do not think there is anything else I can add.

 

Open to any suggestions. (Except rude ones of course). :rolleyes:

[slick132]

Hi Tony,

 

I suggest you forward to the FOS a copy of BC's letter and point out that BC have now made their Final Response.

 

As regards the letter Nick suggests writing to BC, this will be a waste of time and effort. BC won't alter their stance re sending the agreement.

 

This verbal sparring is unnecessary and is likely to be unproductive.