Barclaycard debt - no CCA - Do I CCA again? being passed around

[andyb78]

Sorry to drag up and old thread, but the silence has been broken.

 

I have received a letter from Shoosmiths on behalf of Arrow Global chasing an old Egg loan from back in 2003.

 

 

I have already CCA'd Arrow and they failed to supply,

but this letter from Shoosmiths states that court action will be started without any further warning unless I make an arrangement to pay.

 

I called Shoosmith and they wanted all manner of info from me to meet "data protection",

but I only confirmed my name and address that was on the letter,

but they refused to discuss the debt unless I gave my DOB etc.

 

 

all of my defaults fell off my credit report last november and I'm now in the process of trying to buy a house,

so the last thing i need is a CCJ on my record!

 

I advised Shoosmiths that I did not know about this debt and that I have previously CCA'd Arrow without success,

but she said that I need to write to them, as they will not speak to me about it on the phone.

 

 

What is the best thing for me to do now?

 

 

Shall I CCA Arrow again to be safe and then let Shoosmiths see a copy of the letter?

 

 

I am a little worried to just ignore it, as the letter states that if I do not reply in 14 days

the court proceedings will commence.

 

 

If this was a normal DCA, I wouldn't give two hoots as I have handled them with your help before,

but from looking on the forum,

 

 

Shoosmiths seem quite serious and able to screw me with a CCJ.

 

Many thanks for your help as always.

[Bazooka Boo]

Ignore them, stay OFF the phone.

 

If it's not on your credit file, then it is probably SB.

 

|Check your files/letters/accounts etc, the letters are computer generated and purely designed to intimidate you and get you to react, DON'T!

[dx100uk]

why have you phoned a fleecing DCA?

 

 

you need to READ THE LETTER PROPERLY

 

 

nowhere does it use the word WILL ?

 

you fell for the oldest trick in the book.

 

 

hook line and sinker

 

 

more forest to come now through your door

expect the discount letters soon.

 

 

dx

[Bandit127]

While Shoosmith's will take your money (and therefore collect debt and could be called a DCA) they are also proper solicitors and may well issue a claim. They took me to court a few years ago.

 

Stay off the phone.

 

If you have the original letter that states Barclaycard do not have the agreement, I would copy that in a letter to Shoosmiths telling them that they have no basis for a claim and that, if they do proceed, you will robustly defend.

 

And start preparing for a claim to land on your mat.

 

I don't wont to scare monger here. But I do see Shoosmiths as presenting a real threat. Your letter may not be full of "mights" and "maybes", I am guessing it is quite short and actually says "can" and "will".

[dx100uk]

they've had their chance to produce paperwork shoes or rectums

 

 

are both the same , doesn't matter what you do

they'll issue if they want to a claimform.

if they think the debtor is weak enough too.

 

 

sometimes as oleg said earlier

its far better to keep quiet and only fire bullets when needed

a court claim.

[slick132]

Hi Andy,

 

My last payments made to my creditors was June 2013, so not very far in.

 

From post #22, you acknowledge that this is a long way off being SB'd.

 

Shoosmiths may well take court action for this so you should research and prepare to defend as best you can.

 

Do not attempt to speak to them for any reason. Just as with DCA's, stay off the phone, don't call them and, if they call you, tell them to write.

 

[fletch70]

Hi

You could treat this as a letter before action or if indeed it says so then do.

I am afraid the advice BB gave is generally very ill conceived , as you say it is a long way off being SB so the mere idea that not on credit file=SB really is a dangerous one. If it were me I would be writing to Shoosmiths and telling them that you CCA'd arrow on xx/xx/xxxx and to date you have not had a response. I can not remember the part of the FCA handbook of the top of my head but it does say that if no CCA is forthcoming then they should stop chasing you . Thewre should be no need to CCA again especially if you have proof of youlast CCA

[fletch70]

My last payments made to my creditors was June 2013, so not very far in. All have failed on CCA, only debt that I have to really oblige to is an overdraft, as from what I discovered on here, it's not really contestable.

 

OD's are contestable if they have not following procedures. I have 3 and to date (3 years in) have not had any claims although I am not working so have no assets and am barking mad (well suffer from depression and anxiety)

[Bazooka Boo]

I am afraid the advice BB gave is generally very ill conceived , as you say it is a long way off being SB so the mere idea that not on credit file=SB really is a dangerous one.

 

Why thank you for interpreting my advice as 'ill conceived' & 'dangerous!'

 

I must remember to run all of my advice past you before posting it.

How foolish of me not to go back to the beginning of every thread I advise on and read them from the very beginning to refresh my memory.

 

Is this what you're referring to?

CONC 13.1.6

Failure to Comply.

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.

(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.

(4) The firm should, in any communication or request for payment in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable.

(5) In the judgment of McGuffick -v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm) Flaux J held in a case under section 77 of the CCA that passing details of a debt to a credit reference agency and related activities do not constitute enforcement under the CCA. He also held that steps taken with a view to enforcement, including demanding payment from a claimant, issuing a default notice, threatening legal action and the actual bringing of proceedings, are not themselves 'enforcement' under the CCA. On the other hand he confirmed that the actions listed under sections 76(1) and 87(1) of the CCA did amount to enforcement notwithstanding that some of the actions 'less obviously' amounted to enforcement. These actions are demanding earlier payment, recovering possession of goods or land, treating any right conferred on the debtor by the agreement as terminated, restricted or deferred, enforcing any security and terminating the agreement.

(6) While Flaux J agreed with the decision of HHJ Simon Brown QC (sitting as a Deputy High Court Judge) in Tesco Personal Finance v Rankine [2009] C.C.L.R. 3 that commencing proceedings was not enforcement, but a step taken with a view to enforcement, both he and HHJ Simon Brown appear to have been drawing a distinction between commencing proceedings and entering judgment in those proceedings.

(7) This guidance deals only with the question of whether an agreement is unenforceable in relation to sections 77, 78 and 79 of the CCA. A lender's rights to enforce an agreement may be restricted for a variety of reasons, by the Act, by or under the CCA and by virtue of the general law.

(8) However, where a firm is aware that an agreement is unenforceable because of non-compliance with an information request under section 77, 78 or 79 of the CCA, a firm should make it clear when communicating to a customer about a debt that the debt is in fact unenforceable. Failure to do so, in that case, would in the FCA's view unfairly mislead the customer by omission. Any communication that implies expressly or otherwise that a debt is enforceable when it is known that it is not, would be misleading. One way to avoid this would be for the firm to explain to the customer the full meaning of 'unenforceable'.

 

http://www.fshandbook.info/FS/html/handbook/CONC/13/1

[fletch70]

BB, the thought of running all your ideas past me is a pretty good one:lol: Apologises if it sounded harsh , I was being Mr Grumpy and for me that is very grumpy indeed. I try never to make assumptions about SB because there seem to be so many cases where it is claimed and then refuted.

 

Yes that is part of the FCA rulebook I was meaning , so really Shoosmiths should not have even mentioned court action with an outstanding CCA request. I suspect the fault lies with AG as they are the ones employing Shoosmiths

[slick132]

Come on please folks !!

 

We've all offered advice that's off-target, or without looking back far enough back in a thread.

 

But this can be pointed out politely and without being unnecessarily critical.

 

Please keep comments polite and geared to helping the OP.

 

Thanks

[andyb78]

Would you guys like me to upload a scan on the letter,

just so you can see exactly what it says?

No problem for me to do so.

 

I did realise that by speaking to them it confirms my address and have avoided this before with DCA's.

The only reason I felt compelled to call them is that I have seen on here,

Shoosmith's DO take action and pursue CCJ's if possible and that it the last thing I need.

 

Annoyingly, I lost a load of my CCA letters as I used Google Drive to write them

and went back to old letters to just change address and account info,

the bloomin thing auto-saves and overwrites, so i lost some of the original letters before i realised!

 

 

I am quite happy to and am in the process of, CCA Arrow Global again,

 

 

I will advise Shoosmith's of this too.

 

 

I'm also going to SAR Egg, as there is a large possibility that what I owe could be made of charges and PPI,

hell, I might even be owed something!

 

Shall I continue with what I am doing or just hold tight?

[Bandit127]

On balance of the well informed advice here (and ignoring the "distractions") you have 2 choices.

1. Ignore until you get a claim.

2. Try to (legitimately) bat a claim away by advising Shoosmiths that you have been advised that no agreement is available.

 

After considering the arguments to keep your powder dry, I still think I would advise Shoosmiths that the account is unenforceable and that any claim will be defended. I would keep that very simple (a few lines) and not be tempted to delve in to Conc this and FCA advise that. They are solicitors and do not need telling what law and rules apply. But they may not know the history on this debt.

[andyb78]

OK, i will issue the CCA again to Arrow Global and make Shoosmith's aware of this and state that I have done this before and no agreement was forth coming.

 

At least this time I will have a record of when it was sent too! I'll keep the Post Office recorded delivery notice and staple it to the letter, not just keep the digital copy as I did before.

 

Thanks for your advice as always guys and gals.

[andyb78]

[ATTACH=CONFIG]55534[/ATTACH]

 

 

Here's a copy of the letter too.

[Bazooka Boo]

You can always get ''proof of posting'' which is free from the PO counter, that is all you would need to prove you

sent a CCA request, I'm loathed to pay anything more than necessary, especially where tin pot powerless DCA's are concerned.

[fletch70]

I would take that as a LBA although I think it is defective . I know the courts are not happy with the incorrect use of the CPR

 

This might be what you need to send to shoosmiths http://www.consumeractiongroup.co.uk/forum/showthread.php?387485-Letter-to-solicitors-threatening-legal-action-in-default-of-agreement-request-(update-21.04.2014)

[fletch70]

I might get shot for posting this but here goes

 

Dear Sirs,

 

Reference: 123456789

 

Thank you for your letter of the xx/xx/xxxx, which for the avoidance of doubt is being treated as a formal letter before action.

 

I refer you to the Practice Direction-Pre-Action Conduct (“PD-PAC”). In particular I refer you to paragraph 1 of PD-PAC which states that its purpose is to “enable the parties to settle the issues between them” and to encourage the parties to “exchange information”. Compliance with the PD-PAC will mean that proceedings will be avoided if possible and cases that proceed to trial are dealt with efficiently.

 

The court will take into account failure to comply with PD-PAC. I put you on notice that I have asked for copy documents and that you have failed to send copies of them to me. If proceedings are issued I will therefore inform the court of this and ask that sanctions are imposed for this failure and in this regard I refer you to paragraph 4.4 (4) PD-PAC which lists as an example of non-compliance with PD-PAC a circumstance where a party has - “without good reason, not disclosed documents requested to be disclosed”.

 

Paragraph 2.2 (1) of Annex A of the PD-PAC places on you an obligation to “list the essential documents on which the Claimant intends to rely” in your letter of claim. I could not identify any such list in your letter of claim. Please list your documents so that I can see the case against me and request copies of anything that I need to assist me in narrowing the issues in this matter.

 

You will note that paragraph 3.2 (3) of Annex A of the PD-PAC permits me to “request further information to enable (me) to provide a full response”. In this instance that request is in the form of a request for documents as the information that I seek is within those documents. Paragraph 5.1 of Annex A states that you should “provide the documents requested by the defendant within as short a period of time as is practicable or explain in writing why the documents will not be provided”.

 

For the avoidance of doubt the documents that I require to be sent to me are as follows:

 

1. A copy of the original credit agreement;

 

2. A copy of the Default Notice;

 

3. A copy of the Termination Notice;

 

4. A copy of the Notice of Assignment;

 

5. Copies of statements;

 

6. Copies of any communication between yourselves and the creditor.

 

The documents listed above are all ones that I would expect to be disclosed during the course of proceedings and which would likely be in your possession when drafting a claim in any event so their production to me should not cause any difficulty to you. If you do consider that there is difficulty in providing a copy of a document please identify that document and the reason for its non disclosure at this stage.

 

You will no doubt be aware that in addition to the PD-PAC requirements there is an additional responsibility to supply documents which is imposed by the Consumer Credit Act 1974 (“CCA 1974”). A request was made under s.77 / s.78 / s.79 on the xx/xx/xxxx and this has not been complied with. The agreement is therefore rendered unenforceable whilst that failure to comply remains outstanding. To issue proceedings in such circumstances would be premature and would be met by an application by me to strike out the claim as having no prospect of success. Upon receipt of the documents requested and your reply to the above I will respond with the grounds for my defence so that the issues can be identified.

 

I am willing to consider ADR upon receipt of full disclosure of documents. I cannot consider it before then as I will not have the full information before me. Failure to provide full disclosure may therefore result in an opportunity for ADR to be missed.

 

You will no doubt be aware of paragraph 9.7 of PD-PAC. It is my view that you will be unable to state that there has been the required compliance in the absence of full “cards on the table” disclosure of documents before proceedings have been issued.

 

I anticipate being able to provide you with a full response to your aforementioned letter within 14 days of receipt of the documents listed above and also reserve the right to refer to the contents of this letter if proceedings are issued without first providing copy documents to me.

 

Yours faithfully,

[Bandit127]

No ifs, buts and maybes there. Just "we will". I think that is a clear letter before action.

 

I hope they see sense after your letter.

 

I would start reading up on some success threads in the Financial Legal Issues forum to start to learn how to defend a claim. If you are anything like me, knowledge is power and knowing what to expect and how to deal with it is insurance against the odd sleepless night.

 

If they don't issue a claim then you have wasted a few hours. If they do, you will be better set up to deal with it.

[dx100uk]

when did you take the card out please

 

 

dx

[andyb78]

when did you take the card out please

 

 

dx

 

It was in 2003 ish

[andyb78]

I might get shot for posting this but here goes

 

 

So, shall I just send this to Shoosmiths then?

 

And why would you get shot?

[andyb78]

Just to add, should i be able to raise some money to meet the demand or close to it, to get these sods off my back, how do I got about obtaining all of the payment info that was made during my DMP to Arrow? I'm not just going to pay the amount shown on the letter without having proof I actually owe said amount.

 

How can I keep Shoosmiths from taking court action to allow me time to get the SAR from Egg? Also, shall I SAR Arrow too, as they will have records of payments I have made on file too i guess? Or will they be dishonest?

 

I guess that what I am getting at here is, if I can get PPI back and charges etc, and the amount reduces significantly to a few hundred quid, then I can afford to pay it and get closure on the matter. I'm just worried about Shoosmith's pushing ahead and not giving me time.

 

Can you guys read over the letter below to let me know if it is ok to send to Shoosmith's too please. It's kind of a hybrid from the letter above plus a paragraph that I have added. Many thanks.

 

 

Dear Sir/Madam

 

I am in receipt of your letter dated 9th January 2015, in which you state that I am liable for a debt to Arrow Global Limited.

 

I have previously issued a CCA to the creditor in 2013 asking for a full and signed copy of the agreement, but as yet have not received a response. I have, once again, issued another CCA request to Arrow Global today asking for the same information, as I am not in possession of any paperwork or proof of the amount owed or even the debt itself.

 

I refer you to the Practice Direction-Pre-Action Conduct (“PD-PAC”). In particular I refer you to paragraph 1 of PD-PAC which states that its purpose is to “enable the parties to settle the issues between them” and to encourage the parties to “exchange information”. Compliance with the PD-PAC will mean that proceedings will be avoided if possible and cases that proceed to trial are dealt with efficiently.

 

The court will take into account failure to comply with PD-PAC. I put you on notice that I have asked for copy documents (set out below) and that you have failed to send copies of them to me. If proceedings are issued I will therefore inform the court of this and ask that sanctions are imposed for this failure and in this regard I refer you to paragraph 4.4 (4) PD-PAC which lists as an example of non-compliance with PD-PAC a circumstance where a party has - “without good reason, not disclosed documents requested to be disclosed”.

 

Paragraph 2.2 (1) of Annex A of the PD-PAC places on you an obligation to “list the essential documents on which the Claimant intends to rely” in your letter of claim. I could not identify any such list in your letter of claim. Please list your documents so that I can see the case against me and request copies of anything that I need to assist me in narrowing the issues in this matter.

 

You will note that paragraph 3.2 (3) of Annex A of the PD-PAC permits me to “request further information to enable (me) to provide a full response”. In this instance that request is in the form of a request for documents as the information that I seek is within those documents. Paragraph 5.1 of Annex A states that you should “provide the documents requested by the defendant within as short a period of time as is practicable or explain in writing why the documents will not be provided”.

 

For the avoidance of doubt the documents that I require to be sent to me are as follows:

 

1. A copy of the original signed credit agreement;

 

2. A copy of the Default Notice;

 

3. A copy of the Termination Notice;

 

4. A copy of the Notice of Assignment;

 

5. Copies of statements;

 

6. Copies of any communication between yourselves and the creditor.

 

The documents listed above are all ones that I would expect to be disclosed during the course of proceedings and which would likely be in your possession when drafting a claim in any event so their production to me should not cause any difficulty to you. If you do consider that there is difficulty in providing a copy of a document please identify that document and the reason for its non disclosure at this stage.

 

I am willing to consider ADR upon receipt of full disclosure of documents. I cannot consider it before then as I will not have the full information before me. Failure to provide full disclosure may therefore result in an opportunity for ADR to be missed.

 

You will no doubt be aware of paragraph 9.7 of PD-PAC. It is my view that you will be unable to state that there has been the required compliance in the absence of full “cards on the table” disclosure of documents before proceedings have been issued.

 

I anticipate being able to provide you with a full response to your aforementioned letter within 14 days of receipt of the documents listed above and also reserve the right to refer to the contents of this letter if proceedings are issued without first providing copy documents to me.

 

Yours faithfully,

[dx100uk]

for a 2003 agreement they will NEED the signed agreement. no if's or but's

 

 

per I'd be sending shoes a CCA request

 

 

blank PO don't sign the letter.

copy and staple their last letter to the CCA request.........

 

 

 

 

if yo need all the statements

you'll have to SAR Canadian Square address.

 

 

only my views

but I wouldn't bother with any other letter

not worth it.

fess up shoes or bugger off.

they know they'll lose in court

with NO CCA as they've done lots of time here already.

dx

[Bandit127]

I would keep it simple.

 

I might send something like this.

 

Dear Sirs.

 

I note your letter of demand, ref XXX-XXXX.

 

I have previously requested a copy of the agreement for this account, a valid request according to the Consumer Credit Act 1974. I was informed at the time that no copy of the agreement was available. The account is therefore unenforceable.

 

I therefore require that you desist from proceeding to action, or alternatively I request that you provide me with a true copy of the agreement for the account under S.77-79 of the Consumer Credit Act 1974 within 14 working days.

 

Let me know how you intend to proceed.

 

Yours Faithfully,

 

You

 

You are addressing solicitors. They know the rules and you will lose respect by trying to point those rules out to them.