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noomill v Barclaycard **WON**


noomill060
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Hi guys,

 

 

Way back last October just after I joined CAG and after reading the first few months of the "no loan agreement" thread, I sent a CCA request to the DCA that were handling my defaulted Barclaycard debt.

 

The 12 days were up in early November. I never heard anything from them again and was too busy dealing with my first claim and lacked the confidence follow up their criminal default.

 

On Saturday 25 May I finally got a response from Barclaycard's recovery department in Liverpool.

 

I opened the envelope and couldnt believe my eyes.

 

It was a just a copy of the "Priority Application Form" that came through my letter box back in 1999.

 

No prescribed terms

 

Not signed or dated or even stamped by the creditor

 

(I hadnt even filled my name in completely -I'd forgotten to put my surname in the "Surname " box!)

 

In short, it isnt a credit agreement. This is all I ever signed.

 

I had posted it off and much to my amazement within week, I had a Barclaycard with a credit limit of £1400.

 

Now, clearly it isnt enforcable and no doubt Barclaycard will have no choice but to write off my alleged (and not insignificant) debt. This much i know from reading the wise words of peterbard on the loan agreement thread.

 

I will be wanting:

 

a) The removal of the default notice

 

b) All the interest I've paid over years when there wasnt any contract stating I had to!

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Hi Noomill, I've looked at your thread like you said, but I don't really understand what you've done! Bit new to all this, so any guidance would be very much appreciated!!

x

POPPY07

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Adrian Ruffhead

Barclaycard Litigation & Disputes Team,

Level 29,

1 Churchill Place,

London,

E14 5HP.

 

 

31 May 2007

Re: a/c number XXXXXXXXXXXXXXXXX

 

Dear Mr Ruffhead,

On 31 August 2006 Barclaycard issued a default against me, apparently under s.87 (1) of the Consumer Credit Act 1974.

I note that Barclaycard continued to debit interest to my account after the default.

On 19 October 2006 I sent a request under s.78 of the Consumer Credit Act 1974 for a true, executed copy of my Credit Agreement to your recovery agents “Debt Managers Ltd” to whom you had delegated recovery of my alleged debt.

This was sent by Recorded Delivery (Royal Mail id:Dxxxxxxxxxx) together with a £1 postal order (id: xxxxxxxxx) in the prescribed manner as per CCA s.78 , and was delivered to and signed for by your agents “Debt Managers Ltd” on 23 October 2006.

You had 12 working days in which to comply, after which time the alleged agreement became unenforceable by law. A further calendar month later, Barclaycard was deemed to have committed an offence.

s.78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

 

 

 

 

s.78 (5) A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

On 5 April 2007 another offence was committed when I received a demand for payment (threatening legal action) from Barclaycard, via “Wescot Credit Services Ltd” and I again requested a true copy of my Credit Agreement is the same manner described earlier. Wescot acknowledged my s.78 CCA request.

I believe this attempt to enforce an apparent debt was a crude retaliatory action against me due to Barclaycard’s deadline to enter a defence in my Small Claim (07/01692) against Barclaycard under the Data Protection Act 1998 (now settled, thank you) and was intended in some way to intimidate me.

 

As you are now aware, it didn’t intimidate me in the slightest.

 

On 26 May 2007, I received a copy of my original application form. This is not a Credit Agreement as it contains none of the Prescribed Terms as specified in s.60

S.60 Form and content of agreements

(1) The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of—

(a) the rights and duties conferred or imposed on him by the agreement,

(b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),

© the protection and remedies available to him under this Act, and

(d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.

(2) Regulations under subsection (1) may in particular—

(a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;

(b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another.

And not properly executed as specified in s.61

s.61 Signing of agreement

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible. CONTINUED

 

It is clear from your failure to supply me with such on demand, that no Credit Agreement exists, nor has ever existed, between myself and Barclaycard.

In the absence of any Credit Agreement, any alleged debt is unenforceable under s.127 (3) of the Consumer Credit Act 1974.

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

 

I require the following:

a) that within 7 days Barclays Bank PLC t/a Barclaycard ceases to process my data to third parties and that all Default Notices in my name be removed from all credit reference agencies.

( Please find enclosed s.10 Notice under the Data Protection Act 1998 to “cease and desist” processing information. I may seek redress for removal of information and damages under s.13 and s.14 of the Data Protection Act 1998.)

b) that within 7 days Barclays Bank PLC t/a Barclaycard provide me with a statement of account showing my balance as zero.

c) Consolidation and restitution of all monies and interest paid, and restitution of all unlawful penalty charges and all interest levied thereon.

Failure to do so will leave me no option but to inform Trading Standards, the Office of Fair Trading and the Information Commissioner’ Office.

 

 

As it is my intention to consider litigation in this matter, you may consider this as a letter before action and your attention is drawn to:

CPR 4.6 © enclose copies of documents asked for by the claimant, or explain why they are not enclosed;

I would therefore request in compliance with CPR 4.6© a copy of the document that you be relying on as proof that a properly executed agreement, complying in all respects with the form and content requirements of the CCA and signed by both parties in respect to the alleged debt.

In accordance the CPR, I expect your prompt response to this formal request without further delay.

I look forward to your reply.

 

Yours Sincerely,

 

 

 

noomill060

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It was a just a copy of the "Priority Application Form" that came through my letter box back in 1999.

 

quote]

 

I received exactly the same.... I am reclaiming charges back from them, and also every PPI payment I have made to them..... Not even had an acknowledgement back from them yet.

Call me naive, but I didnt realise that the copy of the application form that they sent to me was all they have.... Where does that leave me I wonder..... Interesting, particularly as I have a similar situation with MBNA where they cannot supply me with a true copy of my CCA either..

 

xx

I won against MBNA, Nat West , Barclays, Barclaycard and PPI payments from Barclaycard

Abbey National still to go.... what will I do with my spare time?

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:evil: :evil: :evil: :evil:

 

" toot toot toot" shouted Thomas angrily as raced off up the track to Churchill place station!!!

 

 

Best of

 

FC

Barclaycard: SETTLED AFTER LBA

Barclays 1: AT COURT

Barclays 2: WITH FOS

Capital One: SETTLED AFTER N1

Egg: SETTLED AFTER LBA

HFC: S.A.R - (Subject Access Request)

Lloyds TSB: S.A.R - (Subject Access Request) - WITH Information Commissioners Office

RBS: AT COURT

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  • 3 weeks later...

Sent BCard application form off to Trading Standards.

 

Phoned them next day to ask if it represented an enforceable agreement.

 

TS was astounded that BCard could have been so stupid.

 

No APR

 

No Repayment intervals

 

All they have is a signed application form that means nothing.

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  • 1 month later...

Right, time for an update!

 

Finally got a reply to my s.78 request.

 

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

 

On examination Credit limit on T&Cs different from the real 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 DPA 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.

 

Interestingly (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)

 

Also, her letter makes no mention at all of the unenforceabillity of the credit agreement and she says that collection recovery has been suspended for one month "to allow me time to discuss repayment"

 

I may draw my own conclusion that no mention is made of the legal enforceabillity of the agreement.

 

On another point, a SAR for data from 1985/86 was ignored and I have started a small claim for enforcement of this.

 

A complaint to the ICO has also been made.

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  • 2 weeks later...
Got a letter from Wescot today saying that as a result being unable to to comply with my CCA s.78 request they have returned the account back to Barclaycard. :D

 

I presume from the :D that you are happy with this Noomill?

'Fortune favours the brave.'

 

 

 

 

 

 

 

Any advice given is purely on the basis of my own views and opinions and offered in good faith.

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Yes, Wescot realise they havent got a leg to stand on and dont want anything more to do with it, because, they know they havent got a leg to stand on, and more importantly, they know that I know they havent got a leg to stand on!

 

They are more than happy to hassle less well informed consumers, but when faced with a CAGer with the support of others, they've just crawled back under their stone, just as Debt Managers Ltd did back in November.

 

At least Wescot have had the decency to let me know, even though they didnt inform me they were taking over from DM back in April, as they were legally obliged to.

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  • 2 months later...

I think its time to issue a claim for return of charges and interest.

 

I've already sent a prelim letter- They credited my account with the difference between what they charged and the OFT's £12 max charge, but no interest, of course.

 

No response to my letter pointing out that the Credit Agreement was unenforceable due to Prescribed Term of credit limit bearing no relation to reality, or my query to what their settlement figure would be.

 

Just a letter saying they were putting collection on hold until 19 August and that they would get back to me. This last letter was dated 1 September.

 

They failed to enter a defence to my DPA claim for failing to comply with my SAR for data from 1986. I got a letter from them offering to pay £230 odd, but the letter appeared to be a template response to a claim for bank charges as it made no mention of my SAR at all, but did mention they would show this letter to the judge, should I choose not to accept and mention my failure to accept in their defence.

 

No defence was forthcoming and I applied for Default Judgement on 9 September. The case is due to be heard on 25 October.

 

 

My charges dating from 2001 are begining to drop over the 6 year barrier.

 

(first one dropped off on 16 August, next one is dropping of on 16 October)

 

Slightly in a quandary as to what to do next.

 

Do I start claim ASAP or wait until I get judgement on 25 October.

 

My gut feeling is start claim ASAP, so not to lose another charge+ 6 years interest and have to argue unecessarily against Limitation Act.

 

Account stands at just under £8000 with £2000 or so charges+interest from last six years and another £3500 charges+interest from 1986.

 

A claim for the lot, plus County Court interest at the contractual rate, would more than clear the alleged debt. (For which the Credit Agreement is at best, only enforceable by a court and I have a good/water tight argument against enforcementunder s.127 (3) of the CCA.

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