Cap1 & CCA return

[noomill060]

Finally got a full reply to my s.78 request to Barclaycard a while back.

 

(Another photoscan of my application form, and this time - a photoscan of the original T&Cs from 1999.)

 

As ive said previously, on examination the Credit limit on T&Cs differs from the acual credit limit. This is a Prescribed Term so the agreement is unenforeable without a court order, but s.127(3) would preclude any court from issuing one. This has been confirmed by Trading Standards.

 

Wrote back to Adrian Ruffhead pointing this out and included a Data Protection Act s.10 notice to remove default.

 

Eventually I got a response from Adrian Whalley. A big NO.

 

Today I got a letter from Sonia Simmonds -Court Orders and Disclosures manager refering me to s.15 and s.15(1) of my T&Cs. These refer to sharing of data with CRAs.

 

Interestingly, though (and in response to my repayment request for unlawful charges) around £230 has been removed from my alleged debt. about 20% of that asked for), her letter makes no mention at all of the unenforceabillity or otherwise of the credit agreement and she says that collection recovery has been suspended for one month "to allow me time to discuss repayment"

 

(There has been no "recovery action", save for two final demands from Wescot in April)

 

I draw my own conclusion that recovery has been suspended and that no mention is made of the legal enforceabillity of the agreement. Any thoughts from you guys?

 

On another point, a S.A.R - (Subject Access Request) for data from 1985/86 was ignored and I have started a small claim for enforcement of this.

 

A complaint to the Information Commissioners Office has also been made.

[noomill060]

...And of course, the Application Form was a mail shot (DSR regs apply) The photoscanned Application Form isnt signed by Barclaycard, so would come under the transitional arrangements for the 2006 Act, the prescribed form to which, it doesnt confirm.

 

Transitional arrangements means that agreements made prior to September 2005 and signed only by the borrower on that date will be considered to come under the 2004 amendments to the CCA 1974(as amended by SI 1983/1553), which make the need for clarity in the prescribed form of agreements a lot more stringent on the creditor.

[noomill060]

Most pre 2005 credit agreements would not meet the prescribed form under the 2005 ammendments and would thus be void if unexecuted in September 2005

[noomill060]

Check section 1.8 of these OFT FAQs

 

Consumer Credit (Agreements) Regulations 1983 as amended by the 2004 Amendment Regulations

[noomill060]

These are in relation to the 2004 amendments rather than the 2006 Act.

 

Sorry if I confused the issue.

[noomill060]

I detect a little desparation and panic begining to set in with Barclaycard with domestic poultry coming home to roost, straws being located for clutching at, paddles being sought and navigational charts of Sh!te Creek being unfolded.

[noomill060]

If anyone does get a copy of their T&Cs, check your original credit limit against that stated on them.

 

Mine say that it will either be: £350 £500 £1000 £1500 or £2500

 

It was none of these.

[noomill060]

patrick- Im in a similar position, credit card co defaulted me for amount 2/3rds of which is penalty charges and interest.

 

S.A.R - (Subject Access Request)'d and CCA'd them, turns out the agreement isnt actually enforceable due to Prescribed Terms being incorrect and s.127(3), but they beleive the default notice and processing to CRAs is quite legal and lawful due to their T&Cs.

 

(No doubt in the same way as they believe that penalty charges are also lawful.)

[noomill060]

Would love to, but no idea where to start.

 

(Only started all this to get the charges removed to reduce my liability to them- turns out the agreement has been unenforceable from the start, back in 1999. Credit limit given is not that as stated in the T&Cs)

 

[noomill060]

If an agreement is unenforceable then you CANNOT be defaulted because defaulting you IS in fact just another form of enforcement:rolleyes:

 

 

Been done to death this one hasnt it?

 

Application for claim to return charges, interest levied theron and removal of default?

 

**Greed mode**

 

If agreement is unenforceable, I take it they didnt have any legal right to charge interest in the first place...?

[noomill060]

If agreement is unenforceable, I take it they didnt have any legal right to charge interest in the first place...?

 

In which case, there is no debt, as Ive paid back every penny I borrowed, the alledged debt is maup up entirely of:

 

1) Unlawful charges

 

2)Interest levied thereon

 

3)Contractual interest which they had no agreement from me to levy.

 

 

We know its not right, they know its not right and that its all down to their own incompetance.

 

Can the Courts or the FOS be trusted to see us right, though...?

[noomill060]

Absolutely.

 

We need a template!

 

Or a good solicitor, or even simply a moderately competant one!

 

Looking at the CCA, this part is as made as clear as daylight, unlike most of the rest of that monstrous epic.

[noomill060]

Defaulted for £8400 odd

 

After first letter wanting charges removed £8170 odd

 

Total of charges, interest levied on charges £7000 odd.

[noomill060]

Ive had three final demands from two different DCAs, the first one one vanished into thin air as soon as I CCAd and SARd them

 

It took 6 months and court action to get them to comply with my SAR.

 

Its taken 8 months to get them to comply with my s.78 request, finally including an email to Barclay's CEO at [email protected]

 

In the mean time, Ive had three final demands, and as soon as let them know that its blindingly obvious that the agreement is unenforceable, they back off and suspend recovery action.

 

Hmmmmm - does this sound like they know they are on a sticky wicket?

[noomill060]

No reply from Varley, but his grovelling minions responded VERY, VERY quickly.

 

Ok they responded with drivel, but at least I got a reponse.

 

I just started to copy John Varley [email protected] in on each email I sent to his muppets.

 

 

Barclays email addys are just

 

 

[email protected]

[noomill060]

I wonder if this consent remains in force if the agreement is unenforceable due to being improperly executed and Key Financial Information being incorrect.

[noomill060]

As Peter says, a copy of a sig document/ application form/mailer and copy of the T&Cs, does not a true copy of a properly executed agreement make.

 

Peter has written confirmation of this from the Secretary of State himself.

[noomill060]

**thinks** BCard have sent me two versions of their T&Cs.

 

Neither of them are the same. One is dated as as 7/99 and the other 8/99.

 

Both came with a letter saying

 

1) herewith are enclosed copy of your executed agreement in the prescribed format. (unsigned photocopy of the T&Cs)

 

2)A copy of your Barclaycard signed Credit Agreement regulated by the CCA 1974, which you signed in agreement that you were legally bound by the Barclaycard Terms and conditions. (my application form/mailshot- no prescribed terms)

[noomill060]

Peter- My local Consumer Direct doesnt seem at all clued up on this, they told me that an application form and a copy of T&Cs is fine, where about is your Consumer Direct?

 

I sometimes get the feeling the guy I spoke to is so impartial that he feels the need to act as advocate for the creditor and is out of his depth.

[noomill060]

Apart from uniboy, no one I know has gone to law over this.

 

By the same token though, i havent seen any example of any DCA going to court and winning when CAG members have challenged a duff credit agreement. Plenty of examples of DCAs crawling back under their stones, though.

[noomill060]

Thats a long post, I'll have a read of it later on.

[noomill060]

Of course, an engineer would tell you that the volumetric capacity of the glass was incorrect for the job to start with...

[noomill060]

True. Having worked with several engineers I can tell you that the only remedy for such pedantry is to pour the remaining contents of the glass over their head. then there is no doubt as to the state of the glass.

 

This attitude is why engineers only drink from shot glasses - only ever seen completely full or empty!!

 

 

 

Yup!

 

(Pours another wee dram of Irish firewater into his shot glass to keep the other wee drams company)

[noomill060]

The CRAs were up and running long before the 1980s.

[noomill060]

Not snotty Peter- definative.