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lowells/carter - Old Barclaycard debt


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SAR being posted to Barclaycard today.

Use signed for post, check delivery date, the 40 days starts from the day the letter is signed for.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

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Will do, Brigadier. I've also written a letter to Bryan Carter advising them that I've sent an SAR to Barclaycard and I don't expect any action to be taken during the 40 days Barclaycard have to comply with the request.

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UPDATE: Have received a letter from Fredrickson International stating:

 

QUOTE: "We note your comments regarding the agreement you were sent however, our client is only obligated to send you a true copy of the agreement, a "true copy" will therefore contain all the material provisions which would have been in the original. it is not necessary to provide you with a copy of your contract for this purpose. We therefore consider that our client has complied with its obligations under the Consumer Credit Act 1974".

 

We confirm we have referred your request in regards to a Subject Access Request to our client and will revert back to you in due course". UNQUOTE.

 

Does that mean that my husband has to start paying back the alleged debt even if Barclaycard cannot produce the originally signed agreement?

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There may be something else you can do.

 

When they respond to your Subject Access Request, you should make an ote of all credit card charges such as overlimit fees, late peyment fees etc.

 

As these are unlawful your husband could sue in the small claims for these back. Why is this useful? Well you could claim interest in restitution. Some people use interest rates of 24.9- 29.99% compounde dinterest on the charges. This makes a £20 charge from 2004 worth a couple of hundred £

 

If won or settled, the amount could take a huge chunk out of the outstanding balance and in some circumstances wipe it out and leave you with the excess.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?309037-Charges-older-than-6-years-***WON***-Compound-Int-t-and-**NO-SET-OFF**/page4

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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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Thanks for the info, Sabre Sheep - that sounds like a good idea. However, I'm still confused. How come Barclaycard can still claim this amount is owed when no signed agreement exists?

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If what they sent you is illegible then it does not fulfil your CCA request because how can you judge your position if you can not read it.

 

Write back to Freds telling them that what they sent is illegible and therefore they are still in default

 

Quite a long letter but you can edit if you wish

Dear Sirs

Account No: XXXXXXXX

On XX/XX/XXXX I wrote requesting that you supply me a true copy of the executed credit agreement for the above account. In response to this request I was supplied an illegible document, a copy of which is attached. What you sent does not comply with current CCA legislation because without such agreement, I am unable to adjudge my position effectively. I would require a "true legible copy" of the actual agreement .

The document that you are obliged to send me is a true copy of the executed agreement that contains the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in s.61(1) of the CCA(1974) and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account. The documents I received appear to be an illegible photocopy of the Terms & Agreement. The prescribed terms as required by section 60(1) Consumer Credit Act 1974, are not at all visible and therefore the documents provided do not constitute a ‘true copy’. As you are no doubt aware, the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI/1557) states:

2 - Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .

Similarly, in line with the recent Cabot v Bachellier judgment from 2010 (DDJ Winslett), it was determined that an illegible copy would not suffice. I quote from the judgment;

"The evidence that I did hear, and certainly Mr McCausky endeavoured to do the best he could on the information that was available, but there were holes in providing perhaps clearer details relating to the original contract. I am not satisfied that the claimants have complied with section 78(1). Nor am I satisfied that the documents that they did supply and with the best will in the world, and I pondered over this because it is a question of common sense, it is not a question of law or otherwise, whether or not the documents that were put before me were legible. I do not find that they were and therefore, in those circumstances, in light of those two findings that I make under section 78 and the under the Regulations, and as it was conceded by Mr Newman at the outset of this case if I find against the claimants on those points then the claim must fail and therefore in those circumstances, although I find that the debt was assigned, I do not find that there has been compliance by the claimants with the provisions of section 78 of the Consumer Credit Act, nor the provisions of Regulation 2(1) of the Consumer Credit (Cancellation Notice and Copies of Documents) Regulations 1983, and therefore in those circumstances this case must fail"

The FCA Guidance clearly states that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

• hiding or disguising the fact that there was never a proper signed agreement in the first place

• providing only a copy of the current terms and conditions, not the original ones

Similarly, in line with recent FCA Guidance surrounding Unenforceability, I presume you're aware that the FCA has stipulated the following;

Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

• a copy of their agreement

• copies of some of the other documents mentioned in their agreement

• a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to

• get a court judgment against the debtor

In line with the above, this account is unenforceable until such time you comply with my original s.78 request and send a legible copy of the original purported document, if it exists. If it does not, then you must confirm this to me in line with your licensing guidance, as detailed above.

Yours faithfully,

Any opinion I give is from personal experience .

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No the Sar could take 40 days.

On you last letter from Freds, does it give you a time scale for example we will place your account on hold for 14 days while we come to an arrangement?

 

If not I would wait a week or so maybe a bit more but not too long. If you received that letter today , quite easily be Monday before you actually received it so maybe post it 2nd class with free proof of posting next weekend , I mean you are a busy woman and can only respond when you have time !

Any opinion I give is from personal experience .

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Fletch70, no there isn't any mention of a timescale at all on the Fredrickson letter. OK, I'll respond to them with the suggested letter early next week. Thanks again for your help.

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UPDATE: Have received a letter from Fredrickson International stating:

 

QUOTE: "We note your comments regarding the agreement you were sent however, our client is only obligated to send you a true copy of the agreement, a "true copy" will therefore contain all the material provisions which would have been in the original. it is not necessary to provide you with a copy of your contract for this purpose. We therefore consider that our client has complied with its obligations under the Consumer Credit Act 1974".

 

We confirm we have referred your request in regards to a Subject Access Request to our client and will revert back to you in due course". UNQUOTE.

 

Does that mean that my husband has to start paying back the alleged debt even if Barclaycard cannot produce the originally signed agreement?

They are partly right But a " true copy" (reconstituted agreement) must comply with the following:

 

 

1. Your name and address at the inception of the agreement.

2. The Creditors details at inception.

3. The Ts and Cs at inception and closure of the agreement.

4. Any material amendments to the agreement during its life.

5. The financial detail Must be that of the original agreement.

 

 

The recon "May" satisfy a CCA request but that does not mean that it is enforceable, a judge would decide upon the balance of probabilities.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

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Hi womble,

 

What I would do (and what I have always done) is to write back and say you don't want a reconstituted agreement although you appreciate that this fulfils their obligations .... 77/78.......

 

Then refer them again to the Waksman Judgment, 234 (4).

 

Then the paragraph about CPUTR 2008. At the end of that paragraph I would say: That is a very simple question and the answer is either YES or NO.

 

It can take years before they back off but many of us have got them to give up in the end. :-)

 

DD

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UPDATE: had a letter from Lowell Group dated 4th June which reads:

 

QUOTE "I am writing to update you on the progress of your complaint investigation. Thank you for your patience so far.

 

In order to investigate your complaint fully, it has been necessary to gather and review relevant information about your case and this is taking longer than anticipated. I hope to have completed my investigation and be in a position to provide you with a full response as soon as possible.

 

As it has now been eight weeks since we received your complaint, you do have a right to refer your case to the Financial Ombudsman Service, although I trust that this will not be necessary. Please find enclosed a copy of the leaflet "Your complaint and the ombudsman" for your information. If you would like to discuss your case further at this stage, please feel free to contact us on 0800 542 0058" UNQUOTE.

 

A couple of points from our side:

1. We never, actually, made a 'complaint' to Lowell or Barclaycard in the first place. Dialogue with them first began by way of a letter sent via CAGmail on the 6th December 2013 to Lowell Group. However, if Lowell wish to refer to the matter as a 'complaint', then they've actually had WAY longer than eight weeks to provide the requested documentation as the 6th December was 27 weeks ago.

 

2. We've already made a complaint to the Ombudsman on the basis of Lowell/Barclaycard failing to provide any proof of the debt in a timely manner. The Ombudsman are processing the complaint now.

 

Comments and feedback appreciated.

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  • 1 month later...

UPDATE: we wrote to the Data Controller at Barclaycard on the 3rd June (now well over the 40 days time limit) with an SAR. The only thing we've received from Barclaycard is a letter dated 18th June which reads:

 

"We are still looking into your complaint.

 

We wrote to you on the 18th June 2014 about your complaint. I am sorry that we are not in a position to give you a final response, but wanted to reassure you that we are still looking into it.

 

Thank you again for your patience. We are working to resolve your complaint as quickly as we can and we will be in touch again by 6th August 2014.

 

If you have any questions in the meantime, please call us on the telephone number above".

 

We didn't receive any letter from Barclaycard dated the 18th June. We haven't received any further letters from either Lowell or Bryan Carter since the 29th May when BC sent a reconstituted credit agreement - large parts of which were completely illegible.

 

Thoughts/comments greatly appreciated.

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Well that's good. You have the last letter on file with them so they should keep quiet for sometime.

 

TBH I get this all the time with differing DCA's , you write with a request and you get a complaint letter back.

As for the SAR, I am confused..in one sentence you say a letter dated 18th June in another you say we didn't receive any letter dated 18th June. Maybe it's a typo. I would be sending the SAR follow up letter

Any opinion I give is from personal experience .

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  • 1 month later...

UPDATE: we have received a letter from Lowells stating that they do not have to provide an exact copy of the signed CCA, and are permitted to send a reconstituted copy of the agreement - which they have enclosed, although it is no more legible than the previous version. They are stating that they believe the balance to be valid and due.

 

They further state that, because my husband made a payment via 'Scotcall' (one payment in Jan and Feb 2013), that this is an admission of liability. My husband was experiencing severe emotional distress between December 2012 and April 2013 owing to the death of his parents (and I have already made Lowells, Fredrickson and Bryan Carter aware of this fact). When he heard the words 'court', he panicked and made a payment - without recalling any details of the alleged debt at the time. Therefore, I would argue that this is in no way an 'admission of liability'.

 

Next move?

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PS: Lowells letter also states that Barclaycard have said they never received the SAR. Funny that, seeing as how I have proof of delivery from the Royal Mail website - signed for the day after I posted it.

 

Therefore, Barclaycard are LYING by saying they never received the SAR - surely that's worth a complaint to the Ombudsman alone?

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PS: Lowells letter also states that Barclaycard have said they never received the SAR. Funny that, seeing as how I have proof of delivery from the Royal Mail website - signed for the day after I posted it.

 

Therefore, Barclaycard are LYING by saying they never received the SAR - surely that's worth a complaint to the Ombudsman alone?

 

 

If the document supplied is illegible recon or a copy of the actual agreement it Must Be Easily Legible.

 

 

If not it does Not comply.

Any Letters I Draft are N0T approved by CAG and no personal liability is accepted.

Please Consider making a donation to keep this site running!

Nemo Mortalium Omnibus Horis Sapit: Animo et Fide:

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Hi Womble,

 

I think you must accept that the debt was acknowledged or liability was accepted when the payments were made in Jan and Feb 2013, despite you making Lowells aware of YH's distressed state after the loss of his parents.

 

If you have not yet had a reply to your SAR, send a SAR Non-Compliance letter from the library. If they fail to provide your data, complain to the ICO.

 

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As far as I am aware the fact your husband made a payment does not as such make the debt valid although it might be suggested so. It will however restart the statute barred clock . If they can not provide a compliant S78 request and you can show that on balance you never signed a valid agreement then the account is unenforceable

Any opinion I give is from personal experience .

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