Barclaycard Cca Received! - Claim now issued ***SETTLED***

[tosh1]

thanks wilma shoozfit

 

i didn't send an sar request, bit i did request cpr and that deadline passed at the end of febuary.

 

is it too late for the sar

 

tosh1

[angel_1]

hiya tosh

 

have replied to your pm

 

however, wanted to alert you to this thread,,,,maybe you have other ideas now?

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/187437-howard-cohen-no-more.html

 

im subbed to this thread of yours now too so will help where i can

 

laters angel x

[citizenB]

Tosh, you could adapt the letter in the following link.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1800199.html

[tosh1]

is there anyway we can take the dca to court to stop them from harrassing you without the correct documents and also is there anyway we can get the default removed.

[citizenB]

Yes, read the threads in the link below.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115280-useful-information.html

 

http://www.consumeractiongroup.co.uk/forum/dca-legal-successes/150988-elizabeth1-cabot.html

[angel_1]

hiya tosh

 

can you post up your letter you were wanting to send out so we can get more ideas or the go ahead to send

 

of course without any of your personal info - very generic so we can get the jink of it all

 

laters angel x

[tosh1]

i will be sending this to Howard Cohen. do you think i should send a cpr request to howard cohen.

 

 

ACCOUNT IN DISPUTE

 

I understand from your letter dated 02/03/09 that you are preparing court papers to issue against me for the above alleged debt. I am rather bemused as to why this account has been passed to yourselves by CL Finance Limited, as it is in dispute with Barclaycardand has been since 01/10/08. Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

As Barclaycard are now in default of my Consumer Credit Act request. I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defense at law. Whilst I appreciate your client has endeavored to persuade me that the provision of a copy of the Terms and Conditions is sufficient to discharge your client from further obligations under section 78 of the Act. Likewise I too have explained that the mere provision of a copy of Terms and Conditions is not a legally permissible substitute for the provision of a true copy of the executed agreement as required under section 78 of the Act and as prescribed by Regulation 3 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

I have also made a formal request for information under the CPR part 31:16 and your client has failed to produce any information. After sending 2 requests for this information under the CPR 31:16 and the deadline passing on the 20/02/09, I have decided to ask the court to force your client to produce the information.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Now I would respectfully suggest that this account is returned to the Barclaycardfor resolution of these defaults and breaches, as Howard Cohen cannot lawfully pursue any enforcement activities and as such I HAVE filed a report with the Financial Ombudsman.

 

If Howard Cohen chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office and possible court action. After taking advice,

 

 

 

I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines I note that there is only an implied license under English Common Law for certain people to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

 

Take note, I revoke license under English Common Law for you, or any of your representatives to visit me at my property and if you do so without my permission, you will then be liable to damages for a tort of trespass. You would also be conspiring in a trespass if you sent someone to visit me nevertheless. Any trespassers you attempt to send therefore will be dealt with accordingly. I hope that this will not be necessary and an acceptable solution can be accomplished. I would appreciate your due diligence in this matter.

I am of the view that your continued harassment of me by telephone puts you in breach of section 40 of the Administration of Justice Act 1970, and the protection from Harassment Act 1997.

If you continue to harass me by telephone, you will be also be breach of the Communication Act (2003)s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you may be liable to a substantial fine.

THIS ACCOUNT WILL NOT BE DISCUSSED BY PHONE. ALL CORRESPONDANCE FROM YOU MUST BE IN WRITING.

 

 

 

Regards

 

 

 

Tosh1

[tosh1]

ok.

 

I have today recieved a letter from Lewis Debt Recovery asking me to forward evidence to support that this is in dispute and if it is not received by return of post the further action will be taken.

 

Does anyone have any ideas on what could be my next step?

[tosh1]

I want to send the letter below can someone please advise. Thank you in advance -

 

Your client Barclaycard has failed to provide a signed Consumer Credit Agreement. This is the reason why this account is in dispute. If you need evidence I suggest that you contact Barclaycard and ask to see their terms and conditions which is what they have sent me.

 

I am sure that you are aware that I have long since requested the Consumer Credit Agreement to which both you and your client allege that I am a signatory. To date this has not been provided to me and whilst I appreciate your client has endeavored to persuade me that the provision of a copy of the Terms and Conditions is sufficient to discharge your client from further obligations under section 78 of the Act. Likewise I too have explained that the mere provision of a copy of Terms and Conditions is not a legally permissible substitute for the provision of a true copy of the executed agreement as required under section 78 of the Act and as prescribed by Regulation 3 Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defense at law.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Now I would respectfully suggest that this account is returned to the Barclaycard for resolution of these defaults and breaches, as Lewis Debt Recovery cannot lawfully pursue any enforcement activities.

[tosh1]

Hi

 

i'm sorry if i sounding annoying, but could someone please please look at this and comment. It's just that i have got my exams coming up next week and I have not done enough revision. I just don't want to fail again.

[bazaar]

That letter is good, its to the point,

But you might want to add at the bottom that any further correspondence from them will result in a fee and subsequent invoice.

If they agree to this clause, then continue to send correspondence. 20 quid a pop.

Oh and by the way, Good luck in your exams

[tosh1]

Hi Bazaar

 

Thanks for the reply.

 

Tosh1

[tosh1]

Got a letter from our freinds at Howard Cohen and co.

 

They want £1.00 to so that they can send me a cca under the consumer credit agreement 1974!!!!

 

Any Ideas

[tosh1]

i want to send something like the letter below -

 

ACCOUNT IN DISPUTE

With regards to your letter dated 15/07/09.

On the 02/03/09, you sent me a letter stating that you are preparing court papers to issue against me for the above alleged debt.

On the 07/03/09, I requested that you send me a copy of the credit agreement which bears my signature under the CPR part 31:16 rules. (I enclose a copy of the letter which was sent should for your information.) I also requested this to Barclaycard. Both you and Barclaycard have failed to produce this.

In view of the circumstances I do not feel it unreasonable to ask for this document to be disclosed, it is not commercially sensitive nor is it a restricted document and should be easily accessible for an organisation such as yours. Therefore I would ask that you provide me with a copy of the contract which bears my signature, I require the complete document with all its parts.

Please confirm if you are in a position to make a copy of the Original Agreement, and confirm if this will involve making copies of more than one Page.

 

If you are in a position to make new copies from the Original Agreement, please ensure that any such fresh copes include a signed confirmation that they were copied directly from the Original, stating the date when the copies were made from the Original. Please also advise the name of the person who made the copies so that, if needed, they can be called as a Witness to confirm the copies were indeed taken directly from the Original Agreement.

 

If you cannot make new copies taken directly from the Original Agreement, please confirm why not.

 

I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed as well as other reasons as described in my original letter dated 07/03/09

 

Since this matter is likely to be subject to proceedings and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me.

 

The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation. Therefore I again ask that you provide me with the documents which I have previously requested. I don't not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which I have repeatedly requested.

 

Additionally I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary

Given that this matter is now subject to a potential legal proceeding, consider this a formal request to YOU for any information under the CPR 31:16. I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me. I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules (Pre action protocols and Part 31.16) and, therefore, an unsigned copy will not suffice. Only a copy of the original Contract in its unaltered form will suffice in these circumstances

 

 

You are obliged to provide, under the Civil Procedures Rules, information to ensure that all parties are on an equal footing, and also to ensure the claim is dealt with expediently and fairly, avoiding an unnecessary burden to the court's resources.

 

 

Under the Pre-action Practice Directions - Protocols 4.6 of the Civil Procedures Rules, I request that you supply copies of the following documents:

 

Regards

 

Tosh1

[citizenB]

They have no right to demand money for a request made under the CPR.. just shows what plonkers they are

[tosh1]

just an update.

 

i recieved a barclaycard application form today with a signiture that closly resembles mine after just over a year. still do not think it's passes the cca agreement though. i post it on today for everyone to give thier opinon.

 

thanks

[citizenB]

Tosh, make sure you remove anything that will identify you.. ie name, address, account number, before posting it on the forum.

[tosh1]

i have been told that what i have recieved is barclaycard application/mailer. is this the response that i requested under the cpr rules. there is a payment card protection box that is ticked but i honestly cannot remember ticking it. there are no t and c

 

any advice would be welcome

Edited July 18, 2010 by tosh1

[tosh1]

i have just been going through some posts here and i saw something mentioned about a Carey v HSBC case -

 

my story is this -

 

I sent a letter to bc stating that they failed to comply to my request for a true signed copy of a credit agreement. I then received a copy of BC t and c which had no relevance to my account.

 

I then received another standard looking letter from BC stating the law with regards to section 78 of the Credit Consumer Act 1974, I replied to this stating that the credit agreement they sent does not conform to the Credit Consumer Act 1974 etc…

 

I then asked for a copy of the credit agreement which bears my signature and stated that it was not a request under the section 78 etc but made pursuant to thecpr rules. after around a year i recieved an old mailer with no terms and conditions on it.

 

i have two questions -

 

1, does the Carey v HSBC case effect this dispute?

2, could i send a letter stating that this is enforceable?

 

thanks

[slick132]

Hi Tosh - looking in as asked.

 

Without seeing what they've sent you, we can only go by what you describe.

 

You appear to be in the same position as many, namely :-

 

1. BC have probably fulfilled the obligations imposed by CCA 1974 by supplying the T&C's and or the signed Application form. This means they will continue seeking payments from you.

 

2. Some would say BC should still have to supply T&C's for each occasion when the terms have been varied for any reason, eg interest rate change, penalty charge amount change, etc.

 

3. Whether you pay or not is your prerogative but you have poor grounds to maintain that the a/c is still in dispute.

 

4. IF BC wanted to seek enforcement of the a/c in court (which they rarely do), you have good grounds to defend on the basis that the documents supplied so far do not include a properly executed credit agreement.

 

Carey v HSBC is relevant in that it clarified, to some extent, how the bank should respond to your CCA request. What the case makes far clearer is that you should not seek a ruling of unenforceability based on events to date and, if you do, you will fail.

 

To summarise, BC have the right to continue seeking payments but they would be foolish if they took you to court without better documents.

 

This is my overall opinion, although there are several details which can be further argued or debated.

 

[tosh1]

thanks for this.

 

if bc supplied an application form/mailer with a barcode stuck on a small t and c box, would that still be enforcable?

 

Also there is a payment protection tick box that is ticked. there is a payment card protection box that is ticked that, is that also disputable?

[slick132]

1. That would depend on whether the form included the necessary Prescribed Terms either on the front or reverse of the doc't.

 

2. It's disputable if you did not tick the box or if the PPI was mis-sold or inappropriate for your circumstances.

[tosh1]

i don't know if the prescribed terms are on the mailer and i cannot remember ticking a box for the ppi. i certainly would NOT have ticked by choice

[Desperate Daniella]

Hi tosh,

 

I got your pm. Can you post up what they have sent you, please.

 

Were they actually charging you the PPI?

 

DD

[MARTIN3030]

I also got pm-but see theres plenty on here assisting.