Red debt collection - barclaycard, fighting me!

[coledog]

Sounds a bit more certain then. I woud still await SAR and then hit em with SB letter and complaints to OFT

[coledog]

SNAP Formister!

[FORMISTER]

I beat you this time CD, we'll call it one all for the the morning!

[coledog]

I think it was you 500th post also! Well done:wink:

[FORMISTER]

If I had known that I would of posted something more profound or Churchillian, i'll have to wait for my 1000th

[cerberusalert]

SB starts when the last payment became due not when a default is registered with a CRA. i.e if you last made payment 1/04/04 and was next due 1/05/04 and you failed to make payment then the SB clock starts 2/05/04.

[FORMISTER]

Thanks for clearing that up

[DonkeyB]

Must wait for the SAR, then all the evidence will be there. Then your complaints to the OFT et al will have the supporting evidence showing the claimant’s lies for what they are.

[FORMISTER]

Any update on this?

[Piercy75]

Evening all!! Well ... I haven't heard a peep from Lowells so today I've sent the following -- Recorded Delivery -- Of course:

 

FORMAL NOTICE - ACCOUNT IN DISPUTE.

 

7th February 2011

 

Ref: XXXXXXXX

 

Dear Sir/Madam,

 

Thank you for your letter dated 20th January 2011 the contents of which have been noted.

 

You have now 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 17th January 2011 I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On the 18th January 2011 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. Please also note I have attached a copy of your letter dated 20th January 2011 which acknowledges receipt of my request which you received on the 18th January 2011.

 

To date you have failed to comply with these requests in any way.

 

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 17th January 2011 I made a formal request for a copy of the signed, executed credit agreement for the above account under Sections 77-79 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 you enter into a default situation.

 

These limits have expired.

 

As you are no doubt aware section the Consumer Credit Act states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

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

 

Furthermore I shall counter-claim 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.

 

Please also supply me with a copy of your complaints procedure in writing.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully,

MR X XXXXXXXXX

 

Ok, so what do you think? oh, and err ... What do you think will happen now? Thanks CAG Team!

[Piercy75]

On a further note I still aint received the SAR from Barclaycard yet? .. Im not worried though as I still have my VERY OLD bank statement from 2004 showing my last ever payment... Reckon they can't get the CCA then? Thanks again team!

[coledog]

Fine - await SAR, chase if necessary

[FORMISTER]

BC normally comply within the 40 days in my experience, but they still don't rush. And expect more than one delivery from them.

 

I should imagine Red are still waiting for BC to send them the details, I don't know many DCA' who manage to comply within the 12+2 day.

[Piercy75]

Yeah but if they haven't honoured the 12+2 day period then surely they have forfitted their so called attempt at trying to make me cough up???? If they come up with the CCA in the next few days then surely it doesn't stand!?!?!?

[FORMISTER]

No guidence changed some while back. They can produce the agreement at anytime in the future.

 

After the 12+2 days you may put the account into dispute, it then remains uneforcable in the court of law until such point that they produce an enforcable agreement

Edited February 7, 2011 by FORMISTER

[FORMISTER]

Here are the OFT guidelines

 

Borrowers and hirers are able to ask creditors to send them information about their credit agreements. If information is not provided within 12 working days, the debt becomes unenforceable until they get the information they asked for

Sections 77, 78 and 79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account and hire agreements.

Under these sections a debtor can pay £1 to get:

• a copy of their agreement
  
• copies of some of the other documents mentioned in their agreement
  
• a statement of account.
  

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor:

• cannot:
  - make the debtor pay the debt before they're supposed to
  - get a court judgment against the debtor
  - take back anything hired or bought on credit, or take anything used as security in the agreement.
  
• can:
  - ask debtors to pay what they owe
  - send a default notice
  - pass information on to a credit reference agency
  - pass information on to a debt collector
  - sell the debt to someone else
  - take the case to court.
  

[Piercy75]

UPDATE!!!!!!! Today I've received a letter from Lowell which reads as follows:

 

7th February 2011

 

Dear MR XXXXXXXX

 

WE ARE WAITING FOR YOUR CREDIT AGREEMENT

I am afraid we have not received a copy of your credit agreement from Barclaycard yet. They are still trying to retrieve it from their archives. We have placed your account on hold until we receive further information.

 

WE WILL BE IN TOUCH

When we have received it from them we will post it to you straightaway.

 

WE'RE HERE TO HELP HELP

We won't write to you again until we have the agreement, but if you have anymore questions in the meantime, please do phone us on 0113 308 6021

 

Yours Sincerely,

 

Andrew Bartle

Chief Operations Officer

 

Ok CAG Team, what are your thoughts????? ........ Piercy75

[tosh1]

Wait

[coledog]

Still send the 'account in dispute' letter when the 12 plus 2 working days are up, their letter makes no difference

[daverules]

Subbing

[Piercy75]

UPDATE!!! >> Barclaycard have now wrote to me at the original address of the debt ((my parents address)) ... I think I have won but need further advise. The letter from Barcalaycard reads as follows....

 

9th February 2011

Dear Mr XXXXXX

BARCLAYCARD SERVICES

ACCOUNT NUMBER: XXXX XXXX XXXX XXXX

Reference: Section 78 of the Consumer Credit Act 1974

We are currently unable to provide all the documentation and information required by section 78 of the Consumer Credit Act 1974 (the "Act") . We accept that we are therefore prevented from enforcing our agreement with you while this state of affairs continues.

. The current credit limit on your account is £00.00

. The current balance on your account today is £661.75

Due to the current status of your account, the full outstanding balance is now due. However, if you are experiencing difficulty, please contact us to discuss a mutually acceptable repayment arrangement.

Notwithstanding that we cannot currently enforce the agreement, our rights continue to exist under the agreement. You should therefore continue to pay the debt that has accrued on your account. We can and will continue to take any action short of enforcement, which includes reporting to Credit Reference Agencies without also telling them that the agreement is currently unenforceable, demanding payment from you, issuing a default notice to you, and instructing a third party to demand payment or otherwise seek to procure payment. We refer you to the case of Philip McGuffick Vs The Royal Bank Of Scotland [2009] EWHC 2386 in which it was held that none of these steps constituted "enforcement" for this purpose.

Please note that the decision in Carey Vs HSBC [2009] EWHC 3417QB makes it clear that an unfair relationship cannot be said to have arisen between us as a result of the fact that we have not currently complied with section 78 of the Act. To the extent that you seek to allege that an unfait relationship has arisen, such allegations will be opposed.

Yours sincerely

Phil Clark

Barclaycard Customer Services.

OK >>>> So I received the above letter at my parents house ((which is where this debt originally was)) on Friday 11th February 2011. I have had no answer to my SAR request from Barclaycard and only had a generic letter from Lowells ((which I mentioned earlier in my thread)) saying they were digging out the CCA. Now forgive me if I'm wrong, but if the original creditor ((Barclaycard)) have wrote to me saying they don't have it, then Lowells definitly won't have it either. Yet they both say they're going to keep writing to me. This debt hasn't had a payment made in 7 years, my parents address fell off my credit report around 2 years ago due to the amount of time I last held any form of credit there, plus there are no defaults/CCJs or anything adverse from Barclaycard showing on any of my credit files, purely because well over 6 years has gone by since I made any sort of payment or even lived at my parents. I wrote to Lowells with the account in dispute letter as mentioned previously as they failed to provide the CCA within the 12+2 timeframe. Can anyone advise what I should do now?? Both Barclaycard & Lowells are making out they will keep writing to me, plus they say they can keep adding things onto my credit files. This is getting silly now because I know this debt is so old that 1). It doesn't appear any longer on any of my files, 2). I have proof of my last ever payment to Barclaycard back in 2004, 3). They can't even produce a CCA.

Can anyone advise a way of getting them to just stop bothering me??? Appreciate your assistance CAG Team!!! Piercy75

[coledog]

Await the SAR results - phone and chase them up. You can send the Statute Barred letter when you have proof of the last payment made or no acknowledgement in writing

 

Send the Statute Barred letter if the gap is 6 years since the last cause of action (e.g. one month after last payment) check with us to make sure. Once SB they cannot chase you. It is 5 years if you live in Scotland.

[DonkeyB]

Er... Barclaycard are getting confused!

 

They have erroneously written that letter as if they still own the account, and as if it were still live. Neither of which is true.

 

Why have Barclays written to you? Because someone at Barclays is being stupid with the generic letters. We’ve seen this a few times recently. They most certainly CANNOT report to CRAs after six years! Time for another complaint...

 

You CCA’d Lowell, yeah? And an SAR to Barclaycard?

 

The main info we want is Barclaycard’s record of when the last payment was made.

 

But, yes, this is good in that you now know that Lowell won’t be able to respond (honestly, at least) to your CCA request. But proving it’s statute barred is the key.

 

Nearly there.

[teaboy2]

Totally agree with DB statement above, like how they say they can report to CRA without disclosing the debt is unenforcable. Errr i dont think so Lieutenant Barclay, as without an enforceable agreement it would be detrimental to make such note and reports, when the debt is likley to be statuted barred. Oh and say for issuing another Default notice on the same debt! tut tut tut.

[DonkeyB]

McGuffick does state that they can record an unenforceable account. What McGuffick doesn’t say is that you can do it for more than six years!