tonixx v Barclaycard

[tonixx]

Sorry, ive not got my scanner plugged up at the minute.

 

Its the usual tosh, we cannot find a copy of your credit agreement. We accept that we are therefore prevented from enforcing our agreement with you while this state of affairs continues

 

BUT carries on to

 

Notwithstanding that we cannot currently enforce the agreement, our rights continue to exist under the agreement. You should therefore continue to pay the debt that as accured on youraccount. We can and will continue to take any action short of enforcement, which includes reporting to credit reference agencies without also telling them that the agreement is currently unenforceable, demanding payment from you, issuing a default notice to youand instructing a third party to demand payment or otherwise seek to procure payment. We refer you to the case of Phillip McGuffick v The Royal Bank of Scotland [2009] EWHC2386 in which it was held that none of these steps constituted 'enforcement' for this purpose.

 

Please note that the decision in Carey v HSBC [2009] EWHC3417QB makes it clear that an unfair reletionship cannot said to have arisen between us as a result of the fact that we have not currently complied with a section 78 of the Acr. To the extent that you seek to allege that an unfair reletionship as arisen, such allegations will be opposed.

 

Yours sincerly .....

 

 

Now, having re read what theyve put, having typed it. It seems they know they cant do alot.... they mention passing onto a third party, which they cannot do once in dispute, correct?

 

how about the 2 cases they refer to, this just a threat they will pass it on to credit agencies?

 

Am I right in thinking, just to carry on and send the dispute letter after 14 days.

[coledog]

I would say yes, definately send the account in dispute letter.

[Master Chief]

I think I'm right in saying that the McGuffick case says that - although they can't 'enforce' take you to court, they can ask you to pay nicely, without legal threats.

 

The Carey case says that they don't have to produce the original executed agreement to chase you for the money a 'reconstituted or True Copy' agreement will do to comply with s.78. I'm fairly sure that this means if they have provided a reconstituted agreement then the debt can be chased, but not enforced. This would also include the OC/DCA being lawfully allowed to update your credit file(s). But still, without the original signed/executed agreement they are precluded from court action (enforcement).

 

If they haven't sent you anything at all, neither a True Copy or Original/Executed agreement, then they have not complied with with S.78 CCA and the debt is legally 'In Dispute', this precludes them from doing anything at all. So you would need to send the in dispute letter and following that they can't chase you for payment, update credit files, add charges etc. If they did, they would be in contravention of OFT, ICO, CCA 1974 regs. Until they comply with s.788)

 

Reading betwwen the lines, I think what they are saying is 'we know we can't force you to pay, but would you mind awfully....pretty please......go on......please give me some money'

 

However, I'm a noob at this stuff so could well be wrong, if that be the case could someone more knowledgable put us right?

 

 

MC

Edited November 16, 2010 by Master Chief
clarification/typo's

[firstship]

Am surprised they have not sent you a Recon; agreement,as it stands you do not have to pay them and all of the defaults ie;adding interest or charges,informing CRA,employing 3rd party..demanding money .........apply.However this is Barclaycard..they will ignore pretty much all of these,and be happy to get into letter ping pong at their own speed and further beware as they cant be bothered to find the agreement it does not mean it does not exist,{after 19 months they found mine),having said all this many Caggers have won against them,.....good luck............FS

[tonixx]

Ive been paying all the time, we agreed they would freeze interest, they asked if the repayments could be increased so I happily agreed, on the basis the interest was still frozen. It wasnt til a couple of months ago I bothered checking the statements and theyve been adding more and more charges...

 

I rang them and asked for the charges back or id cancel the standing order. The woman said she would refund half of them, so we cancelled it.

 

It is as I expected, a bit of a smoke screen. Im new to this too.

 

Ive got one account in dispute with Natwest which hasnt moved back or forth for about 3 months now.

 

Gunna be printing the dispute letter off ready for sending this Friday (the 15th working day)

[tonixx]

They have kindly sent me back a copy of the Terms and Conditions.....

 

No signature, no date, no nothing.... not even a blank space where you do sign.

 

Our name is printed at the top of the Terms but like I said, no signature, date or anything else.

 

I'd aready put the account in dispute, as it went over the 12+2 days, now they send this?

 

Whats my next step please? Is it ignore or do I send another letter as this isnt what I asked for.

[rebel11]

Hi ton

 

It's standard for Barclaycard to send T's and C's. So I don't think you can do too much at the moment, lets see what they do.

[tonixx]

Received another letter today

 

[victoria_siempre]

Hi tonixx

 

The killer line is:

 

"Notwithstanding that we cannot currently enforce the agreement.."

 

Keep this letter very safe.

 

You can safely ignore by their own logic.

 

You might preempt their harassment by writing back quoting just this line and OFT and CPUTR guidance on this very matter.

 

love

 

vic

[tonixx]

Thankyou Vic.

[victoria_siempre]

No probs

 

CAG is here to help,

 

For everything else, there is Barclaycard:-)

 

x

 

v

[Tingy]

If they pass it on for collection, include this in a letter. It will totally stuff them. Might be worth sending a copy to OC as well saying if they do pursue it, it may be legal under S78, but is not legal with a debt disputed for the following reasons:

 

"In light of the complete absence of any enforceable documentation, I am concerned over xxxxxx'x persistent attempts to pursue payment on an unsubstantiated debt in defiance of OFT guidelines and the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008 by now passing “instructions” and personal data to yourselves. According to your letter these are in fact instructions from instructions, from your client’s clients, leaving me to assume that neither your client nor your client’s clients have actually informed you of the facts surrounding the unsubstantiated debt that they have instructed you to pursue and it’s current legal unenforceability under The Consumer Credit Act 1974; sec 127 (3). I have also assumed that your clients have also failed to mention my recent request for confirmation under CPUTR (2008 on xx/xx/xx either; a request that remains outstanding to this day due to the reluctance of your clients to provide an answer one way or the other.

 

Under the circumstances, should you now decide to accept “instructions” from your client or your client’s clients in the continued absence of any enforceable documentation from anyone at all and/or fail to confirm upon request whether you, your client (xxxxxxxx) or your client’s clients (xxxxxxxxx) currently hold or have ever held a properly executed Consumer Credit Agreement (Consumer Credit Act, 1974) in your/their possession under the Consumer Protection from Unfair Trading Regulations (CPUTR) 2008, then you, your clients and your client’s clients will be falling foul of ss.5(2), 3(b), 6 and 7, their actions/activities will be added to existing complaints and your company will be reported to the Solicitors’ Regulatory Authority without any further notice.

 

It would appear that xxxxxxxxx have already breached CPUTR (2008) anyway by failing to confirm or deny their possession of such an Agreement when requested to do so on xx/xx/xx (by recorded delivery) and passing “instructions” to you regardless.

 

Please therefore take note that this letter serves as an additional formal request under the Consumer Protection from Unfair Trading Regulations (CPUTR, 2008) for written confirmation as to whether xxxxxxx (solicitors), xxxxxxxxxxx, and/or xxxxxxxxxx currently hold or have ever held a properly executed Consumer Credit Agreement in your/their possession pertaining to myself and if not, to kindly confirm so in writing".

 

 

[The Debt Star]

BUT...they WILL trash your credit files regardless. Bear that in mind.

[victoria_siempre]

If you can't afford to pay them Debtstar,

 

Que sera, sera.

 

vic

[The Debt Star]

and I suppose once they've trashed the credit files there's nothing else they can do to harm you. and you'll know that after 6 years the data has to be removed.

[tonixx]

This is the latest... does this comply with the CCA request - I see no signature or date though.

 

 

Thanks.

[rebel11]

I'm not sure why you have started another thread, people trying to help you won't have a clue as to whats going on.

 

Thread merged.

[coledog]

Does it have your name and address on at the time you took out the account? I don't think that is even a recon as you should be given all the T and Cs relevant during the period of the account. It is just a copy of a form

[tonixx]

It does on the 3rd page yes - printed on, but its not dated.

 

*and thanks for merging the threads.*

[rebel11]

Hi tonixx

 

If you want the title changed just ask, something like tonixx v Barclaycard,

[tonixx]

Would u please change the title as you suggested? Thankyou.

[victoria_siempre]

Hi tonixx

 

It costs nothing to be polite to the volunteers who run this wonderful site.

 

Hit the triangle report button!

 

vic

[cerberusalert]

Title changed to tonixx v Barclaycard

[tonixx]

Hi, can anyone help on this please? Its been passed onto Power2Contact now.

 

Thankyou.

[victoria_siempre]

Hi tonixx

 

Our line remains as per post 13:

 

 

x

v

 

 

 

 

x