Cap1 & CCA return

[Matheram]

Thanks for that Car and jeff and anyone else who told me there outcome. well im going to send Barclaycard a CCA letter today, iv heard a few people have managed to get them to just drop the debt quite quickly purly through letters but im sure this is very rare! :-| i have my first letter to send and i ahve the second one for when they dont reply in time as im sure they wont lol!

 

i have read a few barclaycard threads but if anyone has delt with them in hear and has any helpful points please let me know guys and girls!

 

[car2403]

Thanks for that Car and jeff and anyone else who told me there outcome. well im going to send Barclaycard a CCA letter today, iv heard a few people have managed to get them to just drop the debt quite quickly purly through letters but im sure this is very rare! :-| i have my first letter to send and i ahve the second one for when they dont reply in time as im sure they wont lol!

 

i have read a few barclaycard threads but if anyone has delt with them in hear and has any helpful points please let me know guys and girls!

 

 

Have you tried the Barclaycard success forums?

[Matheram]

I think so iv read a few car so iv looked at the templates they used and tried to see if that will help so fingers crossed! i guess we will find out when they send me something back, if they do of course!

 

id be happy with a deal out of court but just have to see what they come up with im sure ill have something to scan in and hopefully someone can take a look and see and give me some advice:confused:

[Jeff2000]

Hi Matheram,

 

 

Have you started your own thread yet regarding this alleged debt?

 

 

Jeff.

[Matheram]

Hi jeff yeah started it not had many coments yet though

[car2403]

Here it's

 

http://www.consumeractiongroup.co.uk/forum/general/211624-help-unenforceable-credit-card.html

[Matheram]

hahahahah well ahead of me car

[Jeff2000]

Here it's

 

http://www.consumeractiongroup.co.uk/forum/general/211624-help-unenforceable-credit-card.html

 

 

Thanks car. I'll take a peek.

 

 

Jeff.

[davefirewalker]

Have you tried the Barclaycard success forums?

 

I got Barclays to write off two cards if that counts as a success, both for about £4k .......

 

but I still have fish to fry with them so it isn't settled yet....

 

Dave

[Matheram]

Hi dave good to hear that! when did you take your agreements with barclaycard out? also how long did it take you with them and did you have to go all the way to court to get them declared unenforceable or did they give up before hand ? did you follow whet everyone has done here i.e requesting CCA then a follow up then stopping payment and being chased by a DCA etc any advice or things you did you would advise me to do? or things you did you would do different if you had to do it again?

 

Thanks dave

[alisindebt]

Hi Matheram and Dave.

 

I am glad that you have aksed this follow up question because there are various viewpoints on the various threads about paying or not paying when a CCA is unenforcebale. Some,s ay that you should stop payments. Others say that you should keep paying, so that if the case does go to court, you will appear morally superior. My own personal suspicion, however, is that most cases don't even get as far as court.

[Matheram]

Yeah it seems a funny point really because i understand you may need to stop paying to put the pressure on them, after alll if they ignore your requests and you keep paying i dont guess it will go much further! i was wondering though if maybe you could keep a record of the letters sent and the details of dates etc and any correspondence and after you have given them may be 2 months so 2 more payments you could go to the ombudsmen and pursue it that way and avoid all the chasing etc and maybe then once it was in there hand you would be in a better possition to stop paying once you receive word they are looking into it this may encourage them maybe not to pas it to a DCA and deal with it as they should ???????????

 

i dont know just an idea any thoughts????

[car2403]

Guys, you really need to decide how far you are willing to take this before you take any action.

 

Reason being that if you are not prepared to take them to Court, or you are not prepared to stop payments so they take you to Court, this will simply backfire on you.

 

If you take them to Court, you need to know everything about your individual claim so that you can be sure that you know you will win and are prepared for dealing with numpty judges that get the law wrong - this is why you need to read as many escapades on here before going along that path. There isn't much we haven't already seen on this forum.

 

If you want to stop making payments, be prepared to have your account Defaulted/Terminated (hopefully unlawfully ) and for that to be recorded on your Credit Reference file. At this point, you'll get threats of Court, probably from DCA's rather than the Creditor, but it might not actually make it to Court. In which case you'll end up with a debt being chased and a Default on your CRA file.

 

For me, start with your target goal then work back from there...

[alisindebt]

Hi Chris

 

All four of mine defualted back in 2005 and I only made token payments from abroad since then, which i stopped recently once i realised that there was a CCA issue. I didn't know about CCAs before that.

 

My target goal now that they have all had unenforecable CCS latters from me is to stop any further contact with them, since I live and work abroad. After 6 years the will all be statute barred anyway, I assume.

[Matheram]

So from your post car are you implying that stoping payments is just another neccisary step as this forces them to make more mistakes? i dont really mind going to court but like you say for me i have to be 100% sure i have a cast iron case !

[car2403]

I don't advocate stopping payments, but I have done this in my claims previously as I felt I had no choice. I made sure the Judge knew that when they did get to Court, though.

 

Stopping payments is the only way to get them to consider taking Court action against you - but it's no guarantee.

 

This is all a moot point, as you won't know if you have a case or not before requesting documents and receiving a reply

[alisindebt]

What I mean is that i tried everything with them before, settlement offers, lower payments and they still continued to send CCJ threat letters even when I am abroad, so to be honest, i have pretty well given up n them. They all 4 have unenforecable CCA of which i have no intention of paying. they can't take me to court as I am abroad. So it will just sit there.

[enoughisenough]

Hi all

 

If you take them to Court, you need to know everything about your individual claim so that you can be sure that you know you will win and are prepared for dealing with numpty judges that get the law wrong

 

When you stop paying (for whatever reason) you are in a less strong position than you would be if you carried on paying sums that you are not contractually obliged to pay.

 

Although morality should not be confused with the law, the conduct of the parties is a relevant factor in proceedings. In spite of all the dubious and unlawful conduct they mete out to us there's something peculiar in the mind set of Judges that tends to favour those who have behaved reasonably against those that have conducted themselves unreasonably. What then tends to happen is the pick and mix approach to decision making. A party with the law on its side who behaves unreasonably reduces their chances of success. I've cracked a few nuts open by letting them get on with their tactics. When you get a numpty this doesn't matter much but when you get a good DJ it matters a hell of a lot.

 

It could be argued that they breach the contract the minute they apply any charge that is unlawful. No unlawful term (contractual or otherwise) is enforceable and the interest is then also subsequently unlawfully constituted.

 

The relevant question is whether the remainder of the contract is capable of being performed by both parties without the presence of the unfair term. If it is all well and good. A fair price for a legitimate service. If not (i.e. they could'nt continue to offer the service without the term this effectively means...(if I'm right)...that all contracts are unenforceable in the presence of any unfair term.

[car2403]

Hi all

 

 

 

When you stop paying (for whatever reason) you are in a less strong position than you would be if you carried on paying sums that you are not contractually obliged to pay.

 

Although morality should not be confused with the law, the conduct of the parties is a relevant factor in proceedings. In spite of all the dubious and unlawful conduct they mete out to us there's something peculiar in the mind set of Judges that tends to favour those who have behaved reasonably against those that have conducted themselves unreasonably. What then tends to happen is the pick and mix approach to decision making. A party with the law on its side who behaves unreasonably reduces their chances of success. I've cracked a few nuts open by letting them get on with their tactics. When you get a numpty this doesn't matter much but when you get a good DJ it matters a hell of a lot.

 

It could be argued that they breach the contract the minute they apply any charge that is unlawful. No unlawful term (contractual or otherwise) is enforceable and the interest is then also subsequently unlawfully constituted.

 

The relevant question is whether the remainder of the contract is capable of being performed by both parties without the presence of the unfair term. If it is all well and good. A fair price for a legitimate service. If not (i.e. they could'nt continue to offer the service without the term this effectively means...(if I'm right)...that all contracts are unenforceable in the presence of any unfair term.

 

Unfairness has nothing to do with unenforceability?

 

If the contract is unenforceable, whether it is fair or not is irrelevant - the contract never "existed" back to the day it was incepted. Arguing unfairness of charges on an unenforceable debt will get you in to trouble later, as you're technically acknowledging the enforceability by arguing the charges are unfair. Far better to argue unenforceability first, using unfairness as a backstop (even if just to convince a Judge it's all wrong) if that should start to look dodgy. I just love "in the alternative" arguments...

[Matheram]

Thats what i mean Car so are you saying the only way to get this all resolved is to force them to take you to court? because how or why would they do that unless you stopped payments? which brings me back to continuing payments but when they fail to provide what they have to then taking this up with the FSA OR (AND) OMBUDSMEN so that there is more pressure on them then maybe stop paying if the ombudsmen say they have a case against them this i think would also make it less likely to go to court if i have further evidence from another authority body which may just make them give up at that point if i write a letter and say i will be making no further payments

[car2403]

The FSA won't touch this.

 

The FOS won't rule on enforceability issues - they claim that only a Court can do that, referring to s.142 CCA 1974, so will find any complaint about unenforceable agreements in the favour of the creditor as a result.

 

For me, the only option is Court.

[Matheram]

No im not talking about asking them to make a ruling on enforceability but they can certainly demand that barclays fulfill there legan obligation to provide me a copy of my CCA and if they dont i can complain to them they are in breach of this and ask them to pursue it and then stop payment this would also show very completly that the account was in dispute so if they still passed it to a DCA this is a further breach is it not?

[enoughisenough]

Unfairness has nothing to do with unenforceability?

 

If the contract is unenforceable, whether it is fair or not is irrelevant - the contract never "existed" back to the day it was incepted. Arguing unfairness of charges on an unenforceable debt will get you in to trouble later, as you're technically acknowledging the enforceability by arguing the charges are unfair. Far better to argue unenforceability first, using unfairness as a backstop (even if just to convince a Judge it's all wrong) if that should start to look dodgy. I just love "in the alternative" arguments...

 

Hi Chris

 

I agree that the first line is to discover whether there is a valid CCA. Where there isn't it then becomes a case of cat and mouse. They won't go to court in these circumstances but might keep coming after you via DCAs. It then becomes a question of what you want. You can take them to court and in most foreseeable circumstances win. You should then get some restitution because all the obligations you were held to are also unenforceable.

 

The only dodgy circumstance I can think of is that the DJ starts to argue 'well you were happy to use the credit and pay sums due..." but in all likelihood they don't want it in court anyway.

 

Agreed the unfairness issue comes in as a reserve argument: This is what I was referring to but I'll stop now as it is a diversion:

 

Whereas Member States should ensure that unfair terms are not used in contracts concluded with consumers by a seller or supplier and that if, nevertheless, such terms are so used, they will not bind the consumer, and the contract will continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair provisions;

 

EUR-Lex - 31993L0013 - EN

[car2403]

No im not talking about asking them to make a ruling on enforceability but they can certainly demand that barclays fulfill there legan obligation to provide me a copy of my CCA and if they dont i can complain to them they are in breach of this and ask them to pursue it and then stop payment this would also show very completly that the account was in dispute so if they still passed it to a DCA this is a further breach is it not?

 

I think you've misunderstood. They won't get involved in discussions on CCA's at all - they state that they regulations are complied with by sending you a copy of your original agreement (i.e, a photocopy, regardless of signatures) plus the current T&C's. If you don't believe me, look at the threads where people have gone to the FOS, waited a year, then had to take Court action. You're wasting your time, but it's up to you if you want to do that.

 

I agree that the first line is to discover whether there is a valid CCA. Where there isn't it then becomes a case of cat and mouse. They won't go to court in these circumstances but might keep coming after you via DCAs. It then becomes a question of what you want. You can take them to court and in most foreseeable circumstances win. You should then get some restitution because all the obligations you were held to are also unenforceable.

 

Agree with that, but not the bit in bold. Go back a few pages and re-read what I've said about restitution. I won't repeat here, as this thread is already too long.

 

The only dodgy circumstance I can think of is that the DJ starts to argue 'well you were happy to use the credit and pay sums due..." but in all likelihood they don't want it in court anyway.

 

Agreed and I've covered that in this thread, (again, back a few pages) before also.

 

Agreed the unfairness issue comes in as a reserve argument: This is what I was referring to but I'll stop now as it is a diversion:

 

Fair enough, but what you've quoted is from the European Directive. European law requires Member states to comply with the Directive, and, we, the UK, do that under an Act of Parliament - in fact, the CCA goes further than the Directive requires, by making unenforceable agreements totally unenforceable against the debtor, even if the unfair terms are removed and the contract can endure without them. (Worth noting that the prescribed terms are deemed unfair, so the debt is unenforceable, which fits in with that statement - it's just that Parliament (or, more accurately, the drafter of the CCA, as Parliament didn't discuss it, it just enacted what was put before it) decided that the whole agreement should fail, rather than simply removing the unfair terms and letting the rest reside.

 

Now, there's a tedious link between the CCA and that Directive, but I'm now well off topic, and I don't want to confuse further, but, yes, I can see where you're coming from EIE.

 

What is clear, though, is that there's plenty of reading to be done before you even consider taking this on. (Or looking to find a CMC to do it for you - double :eek:)

[vint1954]

Thats what i mean Car so are you saying the only way to get this all resolved is to force them to take you to court? because how or why would they do that unless you stopped payments? which brings me back to continuing payments but when they fail to provide what they have to then taking this up with the FSA OR (AND) OMBUDSMEN so that there is more pressure on them then maybe stop paying if the ombudsmen say they have a case against them this i think would also make it less likely to go to court if i have further evidence from another authority body which may just make them give up at that point if i write a letter and say i will be making no further payments

Car is spot on.

 

FSO cannot rule on enforcability.

 

If they do not have a signed CCA, then they have nothing to rely on in court, so probably won't bother.

 

If they have an unenforcable signed agreement, then this can only be decided in court.

 

Most CCC's ignore the regulatory bodies anyway, they just persue their own agenda.

 

Regarding payments, that must be down to you to decide. If you are unable to pay like most of us, then it is fairly easy to make the decision. If you stop, then you can expect:

 

Threatening calls and letters.

 

DCA becoming involved.

 

Marker on your CRF.

 

Eventual court action, if they come up with a signed agreement.

 

I see from your thread, that you have only just sent out the CCA request. It is best to wait for their response, or until 12 + 2 working days have passed, then put the account in dispute. It is not until the account is in dispute, that you can concider witholding any payments.

 

There is no short cut formula to a resolution, unfortunately. If you follow the advice from Car and have a read through the other threads on your CCC, you will get a good understanding of what top expect and how to proceed.

 

You can complain to the information commissioners if they do not supply your CCA, or the OFT if the misbehave during any dispute.