Living Overseas and DCAs... advice needed please

[Poker Queen]

Hi,

 

Hoping someone on here can help.

 

Several years ago my husband was out of work for some while and we managed to run up some large credit card bills just trying to live - pay the rent etc. He has since moved overseas for his work and despite us now both earning reasonably well it is about all we have been able to do to keep up with the minimum repayments and we've still got pretty much the same debts we've had for the past 5 years - the minimum payments are just about covering the interest they've been adding each month but not a lot else .

 

Since discovering this fantastic forum I'm now taking back control and have written to all the Credit Card companies requesting a copy of the orginal CCAs on each account (the most recent account was opened in around '93 so I'm hoping they won't have them!!).

 

The problem is though that due to a failed direct debit we are now a few months behind with payments to Barclaycard and have had Mercers chasing us for a while. I made a payment to them at the beginning of December and then just before Christmas I made a payment of £5 to get them off the phone!!

 

We have now received the letter below from Mercer - note that although it is dated 1st Feb we didn't receive this until the 8th.

 

 

Now despite having sent a CCA request to Barclaycard, this was not sent until 28th Jan so I believe I am correct in assuming that they are not in default until the end of this week and we should therefore still be making payments.

 

My biggest concern is due to the fact that we are now living in Belgium. I understand that without the CCA Barclaycard cannot sell the debt to a DCA - but does anyone know if Barclaycard have arrangements with overseas DCA and if so would they be bound by the same regulations.

 

I would be extremely grateful if anyone could possibly through any light on this please.

 

Thank you so much.

[Michael Browne]

DCA's very rarely actually visit in UK, let alone Belgium. It's not cost effective for them. It's much cheaper by phone and letter.

 

The letter is merely to frighten you into phoning them, so they can further threaten and intimidate you.

 

Never speak to them, insist all communication is in writing

[Poker Queen]

Thanks for that Michael. We have already sent Mercers a letter insisting that all communication is in writing and that we would record all future phone calls. That does actually seem to have stopped their phone calls - which were coming several times a day.

 

I guess my biggest fear is that as the 12 working days aren't up since we sent the CCA request, are Barclaycard / Mercer likely to sell this on to a debt collection agency here in Belgium and what recourse do we have if they do so (in the absence of a CCA). Whilst we are living here we don't speak the language so well yet and certainly aren't familiar with the intricacies of the Belgian legal system so would struggle even more to fight against a local DCA! If we receive contact from a Belgian DCA do we just go back to Barclaycard saying they are not allowed to sell this on without a properly executed CCA???

 

Hope this makes sense. I appreciate that this isn't a particularly common problem but appreciate anything that anyone can offer on this.

 

Thanks

[Michael Browne]

TBH I have no idea of the legal situation re DCA's in Belgium. But I would think it would be far from simple to chase a foreign civil debt through a Belgium court

 

However Barclaycard have not sold the debt on. Mercers are part of Barclays (they are their in-house DCA) and there is more chance of winning the Lottery than having a visit by Mercers or anybody else.

[Poker Queen]

Thanks for that Michael - my fear was that although they haven't actually sold the debt on yet the letter was implying that they would do so in the next 48 hours (which is now in the past).

 

Does anyone have a template / correctly worded letter I can send Mercers to say 'Barclaycard have yet to provide a correct CCA and therefore the account is in dispute and you can not take further action'? I want to try and make sure that I don't dig myself a deeper whole by using the wrong terminology!

 

Thanks so much for any help anyone can offer.

[Poker Queen]

Sorry - one other thing - I have sent a CCA request to Barclaycard, but should I really have sent one to Mercers (instead of or as well as to Barclaycard???)

[slick132]

Hi PQ,

 

You could carefully adapt the following letter (courtesey of CurlyBen) to reflect your circumstances and send off to BC and to Mercers.

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the **DATE** I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On **DATE** a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

 

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the **DATE** I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

If that request is not satisfied after a further 30 calendar days your client commits a summary criminal offence.

 

These limits have expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor 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.

 

Therefore this account has become unenforceable at law.

 

You have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

Despite my letter regarding ANY communication from your company, which stated that I require ALL communications in writing, your telephone calls continue.

 

This behaviour constitutes harassment; the letters stated quite clearly to you that I require ALL communications in writing for future use. Do not telephone me again - remove any telephone numbers you hold for me from your systems.

 

Your telephone calls are in breach of the Office of Fair Trading guidelines. If you continue with them after the receipt of this letter an official complaint, together with a log recording the times and frequency of the calls will be passed both to that office and to the Trading Standards office. For your information note that ALL telephone calls are taped.

 

This type of debt collection method is contrary to the ‘Administration of Justice Act 1970’ in that it is intended to cause alarm and distress to the recipient. Your methods will not be tolerated. A formal complaint, containing copies of all correspondence including yours, has now been submitted to the relevant authorities. This will be relevant to questions of your fitness to hold a licence under the Consumer Credit Act, whether or not it results in a prosecution.

 

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

 

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

 

HOWEVER, CALLS WILL TRIGGER COMPLAINTS TO THE REGULATORY BODIES.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

BLAH

[Poker Queen]

Thanks very much for that Slick.

 

I sent the CCA request to Barclaycard - should I also have sent one (or something else) to Mercers?? I'm starting to think I should. - Although Mercers are just a Barclaycard in-house department aren't they??

 

Really desperate to get control back of this whole big mess, but feeling a little out of my depth!! Got a lot of reading still to do around here I think!

[slick132]

Hi PQ,

 

I think sending the CCA request to BC only was fine - as you say, Mercers are just BC's in-house DCA.

 

Sending the last letter which I posted to BC and Mercers seemed sensible and may save time.

 

See what comes back.

[Poker Queen]

oops clicked post before I'd finished the post!!! - Full post below!

[Poker Queen]

Have just got back home this evening to find this from Barclaycard:

 

 

They also included the following terms and conditions (which as they refer to an annual fee for the card, I suspect are from the account opening date).

 

They included also the current terms and conditions.

 

They state in their covering letter that they are sending "A signed copy of your Application Credit Card Agreement regulated by the Consumer Credit Act 1974" hmmmmmm - so which is it then an application or an agreement???!!

 

I suspect that this is simply an application and therefore not enforceable, but not sure whether them including the (possibly) original terms and condition affects this at all. These were on a completely separate sheet of paper to the signed application, and judging by the respective shapes/sizes of the 2 documents could never have been 2 sides of a single document.

 

Any opinions on this will be very gratefully received.

 

PQ

[slick132]

Hi PQ,

 

I'll get an expert eye to have a look for you.

[Poker Queen]

Thanks very muck slick - you're a star

[steven4064]

It says its an application form in big letters - it is not enforceable.

 

It doesn't have a signature from BArclays and, more importantly, it doesn't have the terms oresecribed by schedule 6 of the Consumer Credit (Agreements) Regulations 1983 -

 

APR,

Credit limit or how it will be defined

Minimum payments or haow they will be calcualted

 

As an application form it is void under s59 of the CCA 1974.

[Poker Queen]

Thanks very much Steven.

 

I was very much hoping that was the case, but just a little worried with the (original??) terms and conditions they sent.

 

Now to let them know they won't be seeing any more of our cash

[diskmandave]

It says its an application form in big letters - it is not enforceable.

 

It doesn't have a signature from BArclays and, more importantly, it doesn't have the terms oresecribed by schedule 6 of the Consumer Credit (Agreements) Regulations 1983 -

 

APR,

Credit limit or how it will be defined

Minimum payments or haow they will be calcualted

 

As an application form it is void under s59 of the CCA 1974.

I concur...

[slick132]

Well, there you go - Two sets of expert eyes !!

 

You can now send the letter I posted earlier, adapted to acknowledge that they've replied to your request but have failed to produce the necessary document showing the Prescribed Terms - alll they've sent is a copy of an application form.

[dannyboy660]

I'm probably already too late for this one but as a small footnote, the application form very clearly states it is regulated by the Consumer Credit Act 1974. As long as no CCJ already exists in the UK, it can not be enforced in Belgium, or anywhere else for that matter.

 

Should you be hassled by a Belgian DCA threatening you with court action, just politely point them to section 141 of the agreement. http://www.fisa.co.uk/downloads/CCA%201974.pdf

 

There have been various amendments and alterations over the years, but without an uncontested judgement in the UK, that paper is worthless and a European Enforcement Order is out of the question. (In my opinion )

[InnocentMan_2008]

I'm probably already too late for this one but as a small footnote, the application form very clearly states it is regulated by the Consumer Credit Act 1974. As long as no CCJ already exists in the UK, it can not be enforced in Belgium, or anywhere else for that matter.

 

Should you be hassled by a Belgian DCA threatening you with court action, just politely point them to section 141 of the agreement. http://www.fisa.co.uk/downloads/CCA%201974.pdf

 

There have been various amendments and alterations over the years, but without an uncontested judgement in the UK, that paper is worthless and a European Enforcement Order is out of the question. (In my opinion )

Could you explore it a bit further "As long as no CCJ already exists in the UK"? Would really appreciate it.

[dannyboy660]

It's all a very tricky and complicated situation with a lot depending on your circumstances and where you are considered to be "resident" in EU terms.

 

I have picked up quite a lot by going through a situation on this thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/130659-dca-chasing-english-cc.html with some other CAGgers.

 

I'm not an expert on these matters (by any means), but if you take a look at some of the info which has been gleaned, a lot seems to boil down to whether a CCJ or equivalent already exists in the member state where the debt was incurred in the case of unsecured consumer debt. Basically, if there is no CCJ any action can be quite easily defended, but if a CCJ or equivalent already exists, you may have a bit of a problem if the DCA/Creditor is awarded a European Enforcement (or Payment) Order.

 

What might be of interest to the original poster is that some countries, notably Belgium, may be prepared to limit the amount a 'third party' (i.e not the original creditor) can claim, and in Belgium it's just 1850 Euros (I think). Many EU states have a "Civil Code" which will prevent outside enforcement of orders which endanger your home, your general well-being and livelihood, if you have been resident for a minimum of three years as three years in most countries is the Limitation Period for recovery of unsecured debt. UK is an exception.

 

It's all very complicated and mind scrambling stuff, and the rules can differ slightly from place to place.