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

[fletch70]

Although there is a time limit on a CCA request it is never too late for them to reply , one of mine took over a year to arrive.

 

Just a simple

On xxxxxx i sent a S77-79 request to XXXXXX. To date they have failed to respond.

As such any alleged debt is unenforceable .

I refer you to the CCA S78(6) and S77(4) also to the FCA sourcebook CONC13 particularly 13.1.6

 

On a separate note sadly is is not classed as in dispute when there is an outstanding CCA request so there is nothing to stop them passing it around.

 

 

A disputed debt is one where you are being chased for a debt that is not yours,

you genuinely believe the debt is not yours or the amount being asked for is wrong

however for the last one it would mean admitting to some of the debt .

 

 

For more details see CONC 7.14.1

[fletch70]

That's fine and I see where you are coming from, I was taking wordings from the FCA and DCG. I suppose it is all down to what communication you have had.

[fletch70]

I would just send a letter to the current DCA as outlined above . That is what I always do when they pass one of my many accounts around. It shuts them up for a while and either they comply or go quiet . Remember not to acknowledge the debt .

 

It seems to me that the CCA request is becoming one of our stronger weapons and it beggars belief just how little effort creditors put into getting it right

 

Edit removed

 

I think the above link sums up the arrogance of the debt purchase industry perfectly

Edited July 15, 2014 by Andyorch
External link removed.

[fletch70]

Indeed yes arguments can be made for many actions

My personal problem was I could not stand the constant telephone calls and piles of letters every day so I became proactive and sent CCA requests

 

As for hearts I think they are made of stone but at least they are there unlike their brains

[fletch70]

Well actually not quite true or I don't think so

from 2005 a tick box could be used on an online application but they still needed an agreement with the PT's etc S127(3) and (4) have been repealed

 

From April 2007 they do not even need an agreement with the PT's

however if they can not comply with a CCA request they can not enforce a

nd with the new tougher regulations they should not even be issuing claims until the have complied.

In the old days they could issue a claim and provide the info up to the start of trial. the relevant parts of S77-79 are still there

[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)

[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

[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,

[fletch70]

Hi Andy

The reason i said i will get shot is that i borrowed that letter from somewhere else.

The reason i suggested it is because i am told that courts are now getting very particular about the pre action protocols.

The point of them is to try and minimise court time etc.

It's a full disclosure thing.

On this i would disagree with dx

 

however although not strictly necessary a new cca request would be a good idea.

If they do manage to provide a recon cca they do not strictly speaking have to provide the original signed document

but without it you have the advantage.

 

A positive assertion with reasons that you didn't sign such an agreement should win the day.

 

Finally if you do want to pay up then a very carefully drafted letter offering a very low full and final would be a start.

Maybe start at 10% of the balance and increase if necessary

[fletch70]

Andy

You sent out the original cca requests in 2013.

When was the last time you paid anything towards this account?

If you have already said then I apologise I missed it.

 

There is no real right or wrong time to make an offer but if they can not supply a valid cca I would ask why pay at all ?

Some people have different views to me but I believe if they can't get it right it is only karma that they reap what they sow.

The one thing you really want to avoid is a ccj so if they cough up an agreement I would then reconsider an offer .

It is unlikely imo that they will have all the paperwork needed to win a defended claim.

[fletch70]

The law is a funny old thing. For a debt of that age to be enforceable the creditor has to show that on the balance of probabilities you signed an agreement containing all the prescribed terms . In addition it needs to have been defaulted and terminated correctly. Of course the easiest way to show this is to be able to provide a copy of the signed agreement but many creditors can't. In the absence of a signed agreement they have to show that you probably did sign one.

 

Now just to be warned, there was a case last year where the Judge decided that even without a signed agreement he thought there probably was one although it must be said that the defendants in that case had run up the bill immediately prior to defaulting and were not credible witnesses.

 

All that is different to a S77-79 request (cca request) . If the creditor does not comply with that request it would be an absolute defence for you . Note though that they do not need a signed agreement for a cca request , a recon will do.

 

DX is correct that there are lots of successes or claims stayed/struck out where I suspect if truth be known there was a signed agreement but the banks just didn't keep good records or couldn't be bothered to dig it out.

 

It is a bit of a lottery and a lot also can depend on your circumstances, do you have a job, a house etc etc . I am a mature student with no property or assets and have had some debts written off and most have just gone quiet on me , oddly it tends to be little ones that are causing the most grief. My total debt level is somewhere between 40 and 50K but so long as no claims come they will all be statue barred in 3 years (before I graduate)

[fletch70]

This is exactly the problem when they send a recon. You can of course google certain info , maybe images of CCA's from who ever to compare. In times gone by they used to drop clangers such as getting the charges incorrect at the time of inception. One idea I have used is to look at the original T&C's as well as the default T&C's to see if they are different.

Of course if I was cynical and perish the thought that I am as the T&C's are often in a separate document how could you be sure anyway?

[fletch70]

they will NEED the signed agreement

else they will lose the case.

 

 

no if's or but's

 

 

dx

 

Tell that to the Frosts

Arrow Global V Frost

I have a copy of the judgement . There was no signed agreement but as I said before the Judge labelled them unreliable witnesses

[fletch70]

There is a very strong possibility that provided you keep them informed of the lack of cca request or lack of signed agreement it wont even get to a claim and if it does during pre action disclosure they would discontinue. I just think people need to be aware that even a defended claim was lost? It is true it was quite specific, the card was maxed out just before default and the witness could not make a positive assertion nothing was signed and got dates mixed up. The judge thought that at best she was mistaken and at worst , well not being totally honest.

The aim now is first to try and keep it out of court and then to defend if it gets there. I have sent letters in the past asking them to confirm if they do or do not hold the original signed agreement. I asked under CPUTR 2008

[fletch70]

This is the letter I used with a couple of my creditors , one with a balance of 15K the other over 5K. One replied admitting they did not have the original the other ignored me completely however I have not heard from them in over a year (touch wood) . It is of course no guarantee but if it makes you feel more comfortable then go for it.

 

There are some on here who say ignore everything unless a claim comes through , there are others who say reply to every letter. I sit somewhere in the middle, I reply to letters that I think have some importance e.g a new DCA or what might be a threat. Sometimes it is just to say I refer you to my letter of xxxxxx (which might have been a letter saying they were in default of a CCA request or in some cases a case of take me to court or shut up-just remember that I have no job and no assets as such so they are pretty much wasting money chasing me -I hope)

Dear Sirs

Ref: xxxxxxxx

This is a formal request under the Consumer Protection From Unfair Trading Regulations (CPUTR) 2008.

I require your organisation to provide written confirmation that states clearly whether you currently hold an original signed Consumer Credit Agreement, or whether you do not hold an original signed Consumer Credit Agreement pertaining to myself.

For the avoidance of doubt, an original signed Consumer Credit Agreement is just that; not an application for credit and not a reconstructed or microfiched document from other sources but indeed the original signed document purporting to be signed by myself.

Please note that until such times as a legally enforceable, original Consumer Credit Agreement can be produced and a copy sent to me by return, then this letter is not an acknowledgement of debt and this account will remain in an unenforceable state protected in line with s.127 (CCA1974).

Please also note that failure to provide a direct answer to this request will be brought before the court, should you decide to defy the content of this letter and instruct solicitors to pursue enforcement action regardless.

Yours faithfully,

[fletch70]

I am assuming it is a credit card, I haven't read back.

 

Assuming it is the amount you have definitely paid will not be on the CCA (if it was an enforceable loan agreement it would be). If they do not come back with the SAR then you can go to the ICO. The only thing I would warn is that if you claim back PPI it will be very difficult if not impossible not to acknowledge the debt however if any repayment covers the total it is well worth it

[fletch70]

Ah right , in which case yes the amount of PPI should be on the CCA request and as a separate amount.