DarkRain vs Link Financial / Barclaycard

[DarkRain]

I have a debt for a Barclaycard which was assigned to Link Financial in 2002.

Unfortunately I acknowledged the debt in 2008 but I've never made any payments.

So in May this year I decided to see if it's enforceable so sent off a CCA request.

 

I've now received a reply direct from Barclaycard, but all they've sent me is a

blank application form (from 1994) and some Barclaycard conditions on a separate

piece of paper.

 

Here's the letter from them:-

http://i959.photobucket.com/albums/ae80/darkrain10/scan0061-1.jpg

http://i959.photobucket.com/albums/ae80/darkrain10/scan0062.jpg

 

Application form:

http://i959.photobucket.com/albums/ae80/darkrain10/scan0066.jpg

http://i959.photobucket.com/albums/ae80/darkrain10/scan0065.jpg

Some extra terms and conditions:

http://i959.photobucket.com/albums/ae80/darkrain10/scan0063.jpg

http://i959.photobucket.com/albums/ae80/darkrain10/scan0064.jpg

 

Could somebody help me with a suitable reply letter please? Clearly they

haven't sent me a true copy of my agreement (it's not even filled in and signed!).

 

I wonder if they're likely to have it from 1994.

 

I'd certainly appreciate some help in how to proceed now.

 

 

Thanks,

 

 

DarkRain

[silverfox1961]

Hi,

I take it you CCA'd Link and BC sent the reply?

 

I would send them letter 9 here:

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors.html

 

Just out of interest, you say the account was assigned in 2002 but you started paying in 2008

 

when in 2002 was it assigned and when in 2008 did you start paying?

 

Edit. You say you acknowledged this debt in 2008. Was this in writing?

Edited August 24, 2010 by silverfox1961
added a bit

[DarkRain]

Yes I CCA's Link and Barclaycard replied.

 

Link purchased the debt in June 2002. I have never paid them anything but I did acknowledge the debt in writing sometime during 2008.

[DarkRain]

I wrote back to Barclaycard asking again for a true copy of my agreement (I want something hopefully with at least my signature on it), but they've now sent me this letter and I don't know how to respond:-

 

http://i959.photobucket.com/albums/ae80/darkrain10/1.jpg

http://i959.photobucket.com/albums/ae80/darkrain10/2.jpg

http://i959.photobucket.com/albums/ae80/darkrain10/3.jpg

 

They appear to be basically saying they've complied with my request for a copy of my CCA.

 

What should I do now?!

[silverfox1961]

What BC are saying is technically correct in that they can send you a reconstructed agreement BUT without the original, this debt cannot be enforces via the courts.

It's a case of who blinks first.

 

I think it's time to stop talking to BC and go on the attack with Link.

 

I wouldn't normally send a SAR to a DCA but in your case I think it would be worth it.

 

You need to find out when you acknowledged this debt. Once the account was passed to link, at least a couple of months had passed when you stopped paying so, If you acknowledged this debt in say, July 08, the debt would be Statute Barred. You need to be sure of your facts and of course if link don't keep paperwork that bolsters your case as well

[debbbbsy]

They appear to be basically saying they've complied with my request for a copy of my CCA.

 

They do that a lot. Barclaycard are notorious for failing to comply with CCA requests.

 

You have atleast 2 options.

It would appear that the account was almost statute barred, you can send Link a DSAR, asking for all data they hold on you. This should reveal the exact dates. Admitting the debt will not affect your rights if it was statute barred. It will mean that Link acted "Unlawfully" in demanding payment. You may be able to demand your money back.

The other option, if it isn't statute barred, send Link the letter informing them that Barclaycard are unable to comply with your request, the account is now in dispute & stop making payments.

[DarkRain]

Thanks for the replies.

 

I should have been clearer that I know I have acknowledged the debt between 2002-2008 as well, but last time was in 2008. I've never paid Link a penny though, only sent them letters explaining I couldn't afford to pay anything.

 

So I'm not sure what to do now. I can't see how I can tell Link Barclays haven't complied with my CCA request if in fact they have.

 

A SAR request might be worth it, there may have been a CCJ against me for this debt for all I know (which changes things obviously). Nothing appears on my credit file now though.

[debbbbsy]

So I'm not sure what to do now. I can't see how I can tell Link

Barclays

haven't complied with my CCA request if in fact they have.

But they have not complied with your CCA request, they have not produced the agreement with your signature which link will rely upon to enforce a court claim. Yes, they can ask you to pay, but any threats of court action will be pointless.

 

Here are some letters from the library, amend to suit.

 

A possible letter sent when an 'agreement/application' is received and is questionable..

 

Address

 

Date

 

Dear sir/madam

 

Thank you for your response to my request under the Consumer Credit Act section 78.

In your response you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any (prescribed terms / signature) means that a court would be prevented from enforcing it under s127(3).

 

I am granting to you a further 21 days to produce a copy of an executable agreement. After that I will consider that the above account is closed and that you will no longer pursue the alleged debt.

 

After this period you should close the file and cease processing an personal data relating to me on this matter.

 

Yours faithfully

 

A possible letter sent when an 'agreement/application' is received and is questionable..

 

Address

 

Date

 

Dear sir/madam

 

Thank you for your response to my request under the Consumer Credit Act section 78.

In your response you confirm this as a true copy of the original agreement executed by yourselves on the XXXXX.

 

As you must realise this agreement does not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, the absence of any (prescribed terms / signature) means that a court would be prevented from enforcing it under s127(3).

 

I am granting to you a further 21 days to produce a copy of an executable agreement. After that I will consider that the above account is closed and that you will no longer pursue the alleged debt.

 

After this period you should close the file and cease processing an personal data relating to me on this matter.

 

Yours faithfully

 

A letter when the account has been passed to another debt collection agency/or from a bank/financial organisation/credit provider TO a debt collection agency whilst the account is in dispute due to non compliance with an CCA agreement request.

 

ACCOUNT IN DISPUTE

 

Date:

 

Dear Sir or Madam,

 

Account number: XXXX XXXX XXXX XXXX

 

I am in receipt of your letter dated XXXXX

 

This account is in dispute with **original creditor/DCA** and has been since DATE .

Not only is this a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My previous dispute from **DATE** has NOT been answered.

 

As **original creditor/name of debt collection agency** are now in default of my Consumer Credit Act agreementrequest and have also breached *s10 Data Protection Act request , 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, under s127 this constitutes a complete defence at law.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Now 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.

 

After taking advice, I am of the opinion that any continued pursuit is in violation of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Tradings Collection Guidelines

 

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

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

Yours faithfully

 

Letter when a debt collection agency refuses to comply with a CCA request (thanks again to Mark)

 

Address

 

Date

 

Dear Sir/Madam

 

I refer to your letter dated (date) in which you confirm that you are unable to comply with my formal request pursuant to s.78(1) of the Consumer Credit Act 1974. However, despite being in default of my request, you have continued to make unlawful demands for payment contrary to s.78(6) of the CCA 1974 and the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I note that the Credit Services Association, in the first paragraph of its Code, state that members must act lawfully at all times. Furthermore, under the CPUTR 2008 failing to comply with a code of conduct to which you have subscribed is unfair trading.

 

In the circumstances, I will not enter into further correspondence with you, and any further unlawful demands or contact will be viewed as harassment and reported to the appropriate enforcement agency.

 

Finally, as you have failed to comply with my request, I require you to return the £1.00 fee without delay.

 

Yours faithfully.

 

Make Link fully aware that there is no agreement with your signature & advice them to pass the account back to Barclaycard.

[debbbbsy]

A

SAR

request might be worth it, there may have been a CCJ against me for this debt for all I know (which changes things obviously). Nothing appears on my credit file

now though.

 

If they already had a CCJ, they do not have to comply with your CCA request. The CCJ becomes your agreement with link. The very fact they have sort of complied and there is nothing on your credit file means that judgment has not been entered. But even if it had, if you did not recieve the court docs, you could apply to have it set a side.

[DarkRain]

Thank you very much for the reply.

 

I'm still confused as to whether they have actually complied though, especially when I read threads like this one:-

http://consumeractiongroup.co.uk/forum/showthread.php?173201

 

Quote:

"This means that while the lender may have complied with the legislation, you will not have your signed agreement or a copy anywhere near to it."

 

But I'll do as you suggest and make Link aware that I haven't received an agreement with my signature on it

[debbbbsy]

Using the CCA is always the first route.

Ask yourself, why have Barclaycard sent a blank application form ? They know that this document cannot be used by the DCA to enforce a claim. If they had your Original Agreement with your signature, they would send it. Put the account in dispute.

The CPR's are very useful. The main one used is CPR 31.14, this is used when proceedings are instigated, you can demand the documents they refer to in any claim made. The Agreement, the Default Notice, The Notice of Assignment & The statements.

The likelihood of Link instigating a claim,which will cost them money, when Barclaycard have ineffect admitted they don't have an agreement, is unlikely. From experience,Link will push a bit more, when they realise your fighting back they will pass it back to Barclaycard, who will pass it to another DCA, & you'll tell them the same, Moorcroft, Credit Solutions, Westcott....to name a few. There bark will be loud, but there bite....well toothless.

 

Don't give up. Thats what they want.

 

Debs xx

[DarkRain]

Okay. I'll send Link a letter using one of the templates you've posted above.

 

Thanks again for your help.

[debbbbsy]

Send it recorded & print a few copies, for future....you'll need them .

 

debsxx