Barclaycard v debt star *WON charges * - now

[The Debt Star]

In essence, yes.

 

 

Bloody hell, that lets creditors off the hook line and sinker doesn't it?

[slick132]

I think you'd stand a poor chance of claiming estimated penalties for the earlier years. It would be different if you had older statements showing that you paid penalties of £xx every month and had a few statements missing. It would then be reasonable to assume you would have been charged in the same way and to use estimates for the missing data.

 

You should stick to the actual data that you have IMHO.

 

The only alternative, if you're sure there were plenty of earlier penalties, is to take court action to get statements or data for the earlier years. See here - http://www.consumeractiongroup.co.uk/forum/showthread.php?206050-Webby-v-Barclaycard&highlight=

 

[The Debt Star]

thanks. there will have earlier penalties!

[slick132]

If you want to get older data and are willing to take court action for it, that is the best option. See Articles 15, 16 and 17 here - http://www.consumeractiongroup.co.uk/resources/templates-library/48-bank-templates

 

Complaining to the ICO will be slow and may produce nothing.

[The Debt Star]

Not sure if this is the right forum but have a question about B'cards antics.

 

I sent a CCA and they sent a letter referring to - but not actually enclosing - a "reconstructed CCA."

 

Have had the B'card since 1999 if not earlier.

 

B'card are refusing to admit they didn't enclose it and deny there is any dispute. I know that if they have avried the terms (egAPR) since the original CCA that I should get a copy of the signed CCA (I think that's correct?), but what's to stop them runningroughshod over all of this and pursuingdebt collection / sending a DN etc?

[rebel11]

Hi The Debt Star

 

I've moved this to the Barclaycard Forum. Barclaycard will basically ignore your request, they will send what they consider to be a response. They 'cherry pick' what they like and disregard what they don't like. If the agreement has been varied then, i.e. interest rate has increased then they need to send a copy of the Original Agreement and the relevant Terms and Conditions at the time of request.

 

Carey v HSBC (2009) http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

Theres a summary at the bottom.

[The Debt Star]

still no CCA from Barcrapcard

[The Debt Star]

Hi folks. I haven't updated this for a goodly amount of time. 8 September! Gosh how time flies when you're having fun!

 

Still no copy CCA from Barclaycard (true copy OR recon copy) and no response from them to my claim for unlawful charges either. Barclays of course refuse to recognise the dispute and continue to process data with the CRAs so I have been blackmailed into continuing payments to them and am still being charged interest and charges etc. I have, as mentioned, now complained to the FOS. Have taken a call from the FOS now and they tell me

 

1. forget penalty charges claim. case law has closed down that loophole and even if barcrap did charge me 20 a pop over the past 6 years that would be reasonable. Something to do with a case called McGossick?? So FOS won't press that part of the dispute

 

 

2. Even though Barcrap haven't given me a copy of my agreement, the fact that they may not have one at all will not prevent them from suing me for recovery anyway. so there's not much point asking for a CCA anyway. however the FOS are going to force them to send me a copy or admit they don't have one, thanks, even though it won't make any difference

 

3. Barcrap can continue to enter data against me with the CRAs and get DCAs to threaten me as this is not considred enforcement. There is another case law precdent for this. They can do this during a dispute. It doesn't amiunt to enforcement "action."

 

all in all, I would say the consumer is royally screwed these days and the creditors have it all their own way.

 

 

So I kind of 'complained' to the FOS and sent them this email:

 

Dear Mr Palpatine,

I write further to our telephone conversation on X 2010. I am now in receipt of your letter of even date and I look forward to your detailed response in connection with this complaint.

However, I do want to raise some issues with you following our conversation on the Xth. I have undertaken some further research and in light of this I am hoping you can clarify certain things which are worrying me.

 

*PENALTY CHARGES *

You appeared to state that I should disregard my claim for unfair penalty charges against Barclaycard. You said that recent case law has closed down that aspect of claims against creditors, regardless of how unfair such charges may have been and that and even if Barclaycard did charge me £20.00 for each charge over the past 6 years that would be considered “reasonable.” You stated the case of McGuffick v Royal Bank of Scotland plc QBD Commercial Court 06/10/09 [2009] EWHC 2386 in support of this. You implied that the Ombudsman would not press that part of my dispute.

 

I have taken the opportunity to read the case of McGuffick and can see no reference in it to the question of unlawful charges. The case seems to be concerned with the processing of adverse data against a consumer during a dispute process. I am only aware of one case relating to penalty charges on credit cards is American Express v Ian Brandon, however you will be aware this is still subject to appeal.

Barclaycard should still be held accountable for unfair and unreasonable charges, particularly over £12, as the OFT has issued guidance on this dated 5 April 2006 which concluded that certain charges are considered unfair to the consumer.

 

Following a recent Freedom of Information request to the Office of Fair Trading I was informed by them (and they stated, I quote): "Following consultation with eight leading credit card issuers we have concluded that default charges in most credit card contracts across the sector are highly unfair in terms of the UnfairTerms in consumer Contracts Regulations (UTCCRs) and therefore unlikely to be enforceable against consumers” It is clear that Barclaycard’s charges are penalties and they have refused to;

 

(a) acknowledge my claim and dispute in this regard and;

(b) have not provided me with a full breakdown of the costs they have incurred as a result of my alleged breaches, in order to prove to me that their penalties really do reflect their actual losses.

 

In this respect, I must therefore ask you to investigate fully this aspect of my complaint against Barclaycard. I understand and acknowledge that you will only do so for the 6 years prior to my complaint At the time the charges were incurred I was on a debt management plan and suffered an element of financial hardship.

*CONSUMER CREDIT ACT*

 

You implied that Barclaycard (who have not given me a copy of my CCA 1974 agreement) may turn out to not have one at all and that, if so, this will not prevent them from suing me for recovery. I agree with this, however a court will not have jurisdiction to enforce the debt whilst no credit agreement is in existence.

 

It will be further noted that Barclaycard referred to a copy of my CCA (albeit reconstructed) in their letter to me (a copy was not actually enclosed), and what they have done is therefore blatantly misleading if it transpires they cannot supply a copy of even a reconstructed agreement.

I note that you have asked them for a copy of my CCA agreement, for which I extend my thanks as they have refused to do so on countless prior occasions. There are a couple of concerns I have here also, namely (a) that Barclaycard should not, at any point during this dispute, be charging interest and further penalty charges and (b) they should not have refused to acknowledge a valid dispute.

 

Barclaycard continue to enter data against me with the credit reference agencies.

 

You stated that there was another case law precedent for this. I believe you are referring to McGuffick.

 

However, as the data controllers, Barclaycard are under an obligation to register true and accurate data, which they have not been doing as they are recording my payments as late when in fact the account has been in lawful dispute.

 

As previously discussed they have not applied a number of payments, made under my Debt Management Plan, to the account. Barclaycard are under an obligation to send me statements and communicate excess notices where they have my address (which you acknowledge they did have). Without communication from Barclaycard I would have been unaware that payments made in good faith through my Debt Management Plan were being disapplied by Barclaycard.

I hope you will be able to answer these points and I look forward to hearing from you shortly.

 

Yours sincerely,

The Debt Star

 

I then received the following response from the FOS, since when it has all gone suspiciously quiet...

 

Dear Debt Star,

Thank you for your email.

 

With regards to the merits of your complaint - I believe these are best dealt with when I come to issue my formal opinion on this matter and once I have all the information I have asked for.

 

I note your points on the case law below and you are correct, McGuffick addresses what amounts to enforcement, including whether reporting information to a Credit Reference Agency is a legitimate enforcement method. I will address this and any other relevant case law on 'penalty' charges, if and when this becomes necessary when formulating my opinion. However, please remember that whilst I must have regard to the law, I am not bound by it and instead must have regard for what is 'fair and reasonable' - which is the test we apply at the Financial Ombudsman Service.

 

All of the points you have raised will be referred to, but I will focus my opinion on the main issues that I believe effect the outcome of your complaint.

 

Regards

Mr Palpatine

 

I responded more recently with this email to the FOS:

 

Dear Mr Palpatine,

I write with a view to ascertaining whether or not you have yet received from Barclaycard a copy of my Credit Agreement?

 

I have recently read that a complete lack of agreement means that a creditor is unable to enforce, albeit temporarily, until they find it. If this is the case, and if Barclaycard do not have a copy of the signed Agreement, I would have thought (a) their continued refusal to acknowledge my dispute and (b) levying interest and late payment charges (plus registering adverse data (ie "late" payment entries) with the credit reference agencies is wholly unfair?

 

I look forward to hearing further from you.

 

Yours sincerely,

The Debt Star

The response received from the FOS was:

 

"I have asked the bank for a copy of the credit agreement, and am still waiting for a response in this regard."

 

That's all thus far. I stand by my claim for unfair / unlawful charges and a refund of interest charges paid by me since the account was disputed (assuming the FOS agree there is a valid dispute) and compensation for distress and inconvenience. Shall see what happens and comes of this.

 

DS

[slick132]

Hi Debt Star,

 

Addressing the items st the top of your post:-

 

1. Credit card penalty charges are still being reclaimed in full, plus compound interest at the a/c's contractual rate. Don't waste time arguing this point with the FOS. Even if they tell BC to refund them, you won't get the higher interest that others are successfully claiming. Start the reclaim process with BC using the Prelim Letter, then the LBA. When they fail to refund in full as per your SOC, file a claim at your local county court.

 

2. The FOS may or may not get a copy of the credit agreement. If BC admit there is none, they should be unable to get a CCJ for the debt.

 

3. If BC have replied adequately to the CCA request with T&C's, they can continue to chase payments and post negative data with the CRA's.

 

I would concentrate your energy on claiming back the max poss in respect of penalty charges, thereby reducing the balance remaining on the a/c. Then continue to service the debt as best you can afford if there is a balance still payable.

 

8)

[The Debt Star]

Cheers Slick.

I will see what comes of the FOS route first and, if as anticipated this results in no satisfactory outcome, I will send the Prelim Letter and then the lba.

DS

[The Debt Star]

Slick, can you move this thread to the Barclaycard forum?

[The Debt Star]

I would concentrate your energy on claiming back the max poss in respect of penalty charges, thereby reducing the balance remaining on the a/c. Then continue to service the debt as best you can afford if there is a balance still payable.

 

Hi. I will also focus on getting something for distress and inconvenience.

 

I have raosed with the FOS that it has now been over 4 months since my CCA request and, further, that interest has been applied to my account during the dispute. Am I right in thinking that interest and payments can be legitimately witheld during a dispute>?

 

know BC refuse to acknoledge there is a dispute & hopefully the FOS will agree with me that I have a valid dispute (and the absence of a CCA is a dispute presumably?).

[slick132]

Hi DS,

 

Thread now in BC forum as requested above.

 

Have BC sent you anything in response to your CCA request, such as T&C's for the a/c. If they have, you will not convince BC or the FOS that the a/c is in dispute.

 

8-)

[The Debt Star]

Hi. They sent T&C current in 1999 but these were illegible and the FOS agreed with me (on the 'phone) that they couldn't raed them either! So on that basis at least the FOS would agree there is a dispute? BC of course deny they are illegible. They deny everything. They "Plead the Fifth" it seems to me on everything and its their standard policy to deny a dispute exists. Probably because they have so many and would sink if they corresponded properly to each one.

[slick132]

OK, so if the T&C's were illegible according to the FOS, I assume you're waiting on further doc'ts from BC which I hope the FOS will attempt to extract from BC on your behalf.

 

Have you anything in writing to confirm that the FOS think BC's CCA response is inadequate.

 

A phone conversation is worth nothing when dealing with either the FOS or BC.

 

8-)

[The Debt Star]

OK, so if the T&C's were illegible according to the FOS, I assume you're waiting on further doc'ts from BC which I hope the FOS will attempt to extract from BC on your behalf.

 

Hi. You are 100% spot on Slick, FOS are attempting to get further docs including the CCA! To no aviail thus far! And remember, this is despite Barclaycard writing to me with the alleged "enclosed" recon CCA! Now they can't even get a copy of THAT to the FOS either.

 

Have you anything in writing to confirm that the FOS think BC's CCA response is inadequate.

 

No, just a verbal from the FOs that its illegible. And yes, quite agree, unless that's in writing it aint worth doodly sqwat. But its all I've got for now.

[The Debt Star]

Barclaycard sent this in a recent SAR, plus ToB separately.

 

http://i822.photobucket.com/albums/zz150/mozz11/05dd1a18.jpg

 

It states "THis is a Credit Agreement..." etc and was signed.

 

Is it enforceable? The condition you see it in is exactly how I received it.

 

Same with the following ToB:

 

http://i822.photobucket.com/albums/zz150/mozz11/fef4e0ab.jpg

http://i822.photobucket.com/albums/zz150/mozz11/105e3522.jpg

 

Nothing in response to my CCA. They said a recon was enclosed with their letter but nothing was. So just the above application.

[Halibutt]

Not sure if it's enforceable or not. It's headed "Application" but it does contain terms, conditions, etc. and most of the other required data.

 

I notice you opted for the PPI - you may be able to reclaim that, regardless of whether or not the "agreement" is enforceable.

 

Have they also supplied you with a copy of a valid Default Notice, a breakdown of all payments made on the account and any/all admin and interest charges related to the account?

 

All worth considering, but someone with more experience with the validity of CCA responses will be able to help further.

 

Good luck!

 

H. x

[Bazooka Boo]

Illegible definitely, enforceable Highly doubt it due to the lack of legibility, and the small point of a sticker obscuring what could be important info..

[coledog]

Barclaycard and their associated debt purchasers seem to be doing this a lot recently and the DCAs are arguing that a pre approved application form and statements are enough to prove the money is owed. At the end of the day, it is an application form and not a credit agreement.

[The Debt Star]

I notice you opted for the PPI - you may be able to reclaim that

 

Have they also supplied you with a copy of a valid Default Notice, a breakdown of all payments made on the account and any/all admin and interest charges related to the account?

 

Hi. I have put in for PPI now but can't quantify it as BC refuse to send statements going back more than 6 years. may have to go the FOS as a separate complaint. I have claimed chrages but they have ignored this request - so I have already raised this with the FOS as a formal complaint.

[The Debt Star]

Illegible definitely, enforceable Highly doubt it due to the lack of legibility, and the small point of a sticker obscuring what could be important info..

 

 

Yes the sticker was originally a barcode. I have pasted it out to remove personal data. Both the app and Tob are illegible. But won't the court just apply the "balance of probabilities" rule regardless?

[The Debt Star]

Barclaycard and their associated debt purchasers seem to be doing this a lot recently and the DCAs are arguing that a pre approved application form and statements are enough to prove the money is owed. At the end of the day, it is an application form and not a credit agreement.

 

But of course as we all know the courts are inclined to back them up and go against the tenet of the CCA 1974 regardless...

[coledog]

It is probably that if you claim back the PPI you are admitting that you owe this anyway?

[The Debt Star]

It is probably that if you claim back the PPI you are admitting that you owe this anyway?

 

I don't deny the debt to BC. My claim with them is in connection with unfair charges, PPI and adverse data entries with the CRAs. However, if they have an uneforceable agreement that strengthens my hand with these claims, especially as they have denied there is a dispute (in contravenetion of the OFT Guidance).